Allahabad High Court
Bhuwan @ Sonu vs State Of U.P. on 2 May, 2018
Bench: Amreshwar Pratap Sahi, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved On:-07.03.2018 Delivered On: 02.05.2018 A.F.R. Court No:-40 Case :- CRIMINAL APPEAL No. - 7054 of 2006 Appellant :- Bhuwan @ Sonu Respondent :- State Of U.P. Counsel for Appellant :- Vivek Kumar Singh, A.K. Singh, A.K. Solanki, A.K.Srivastava, Ajay Kumar Singh, Amit Kumar Singh, Brijesh Sahai, Devendra Swarup, Jagdish Singh Sengar, Manish Kumar Tripathi, Rajeev Ojha, Sarvesh, V.K. Srivastava, Vinod Tripathi Counsel for Respondent :- Govt. Advocate, Ajit Kumar Singh Solanki AND Case :- CRIMINAL APPEAL No. - 7050 of 2006 Appellant :- Gopal Narain Respondent :- State Of U.P. Counsel for Appellant :- Jagdev Singh, Ajay Kumar Pandey, Amit Mishra,Apul Misra, Satish Trivedi,Viresh Mishra Counsel for Respondent :- Govt. Advocate Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Rajeev Misra,J.
The two appellants Bhuwan @ Sonu and Gopal Narain were charged for offences under Section 364-A and Section 302 read with Section 34 I.P.C. as well as Section 201 I.P.C. for the kidnapping and murder of a boy Anmol Chauhan aged about 10 years who was stated to have gone missing at about 5.00p.m. in the evening of 19.09.2004. They have been convicted and sentenced to undergo life imprisonment coupled with fine and in default to suffer further incarceration.
The prosecution story is that the victim went away from his home 493/04 Shastri Nagar, police station Nauchandi, district Meerut on his blue coloured bicycle at about 5.00p.m. on the said date and did not return back. The missing report lodged by the father of the victim Awshesh Kumar Chauhan PW-1 which is part of the G.D. and is exhibited as Ex.-Ka-1 in the trial records dated 19.09.2004 simply states that the son of the complainant/informant went away at 5.00p.m. and has not returned. This G.D. entry report is timed as 1.45 a.m. after mid night on 20.09.2004.
On 21.09.2004 the complainant/informant in the same police station gave a written report that his son has been kidnapped. This is entered in the G.D. Of police station Nauchandi as report no.9 at 2.00 a.m. and the first information report was registered under Section 364 I.P.C. against unknown accused.
The investigation commenced and the Sub-Inspector of Police Vijay Singh who is the first Investigation Officer recorded the statement of the witnesses including that of the informant who stated that his brother-in-law Babu Singh had received a SMS on his mobile about ransom being demanded. The Sub-Inspector of Police obtained call details of the mobile number so given.
One Ratanpal son of Dharamveer stated to be the Supervisor of Wheeler Club, Meerut gave a written information to another police station Sadar Bazar, Meerut about a dead body lying on the western side of the club and behind Hotel Derose. This information is entered in the G.D. of police station Sadar Bazaar as report no.26 at 12.05 p.m. dated 27.09.2004. It is important to note that this information was given to the police station Sadar Bazar, Meerut and not to the police station Nauchandi, Meerut where the crime had been reported. On receipt of this information Sub-Inspector of Police R. K. Sharma along with Sub-Inspector of Police Chandrabhan Singh and other police officials of police station Sadar Bazaar went to the place where the dead body was stated to have been found and on recovery of the dead body an inquest report was prepared which is Exhibited as Ka-14. This was accompanied by requisite papers including the detailed scroll, the letter of inquest, the request to the Chief Medical Officer to carry out the post-mortem, the report of the reserve Inspector and the body having been sent in a sealed state.
After the body was received by the Chief Medical Officer the complainant/informant is said to have identified the same whereafter the post-mortem was conducted by PW-3 Dr. N. Nathani on 28.09.2004 at about 5.30 p.m. The dead body was in an advanced stage of decomposition. All the ingredients of decomposition are indicated in the post-mortem report with the teeth loosened in their sockets and the skull was found separated from the body with the cervical vertebra C1 to C3 missing The skin and tissues from the skull were absent. The left forearm and hand below the elbow joint, the left ankle joint and foot, the right ankle joint and right foot, and parts of right wrist joint and right hand were missing. The age of the deceased was reported to be 12-14 years.
The noticeable part of the post-mortem report is that two incised wounds one of 16cms. in length and width 2 ½ cms. bone deep was present on the back of the neck at the level of C4 vertebra. The second incised wound causing amputation was present all around the neck about 30 cms. at the same level of C4 vertebra and bone deep. The margins of the wounds were deeply stained and not washable with water.
A third surprising feature of the post-mortem is the presence of burn injuries over the chest shoulder and left arm of the deceased.
The body was found accompanied by three ties (NARA) one on the neck that was loose, one on the left lower leg above the ankle joint and one on the lower part of the upper left arm in which grass was entangled. These ties and grass were also sealed.
Besides the above one pant and one underwear removed from the body along with ties and grass were sent for police enquiry. The post-mortem report is exhibited as Exhibit Ka-6 and the case was then converted under Section 364-A, 302 read with Section 34 and 201 I.P.C. whereafter the investigation of the case was taken over by K.P.S.Chahal the Station House Officer of police station Nauchandi where the FIR was lodged.
The name of the accused Bhuwan @ Sonu came to the fore during investigation who was arrested from the bus-stand at Meerut at 11.30 am on 28.09.2004. From his possession one mobile phone of Nokia make was discovered the SIM number whereof was disclosed by the detenue as 9837340402 that was found to be correct on being checked. The recovered mobile phone and SIM were sealed on the spot and a memo of arrest and recovery were prepared which is marked as Ext. Ka-7. The accused was taken into custody and his statement was also noted by the Investigating Officer who is alleged to have made a self confession about having murdered the deceased Anmol and having thrown the body near Wheeler Club at an open place. He is also alleged to have confessed to have hidden the bicycle of the victim beneath the bridge over a drain near Rangoli Mandapam. It is also stated that he confessed having thrown the shirt, the vest and the sandle worn by the deceased along with the murdered weapon which was a knife used for committing the murder of the deceased in the drain.
On the same day, i.e. 28.09.2004 the accused Bhuwan @ Sonu is stated to have pointed out the place near Wheeler Club where he had thrown the body of the deceased and from the same place he also got the pieces of burnt bed roll recovered at about 2.20 p.m. The blood stained earth mud and plain earth mud were recovered from the said place and was sealed, whereafter on the pointing out of the accused two plastic bags that were stained with blood and two cotton ropes that were about 2-3 ft. in length and some news-paper with blood stains on them were also recovered. The same was also sealed and marked as Ext. Ka-3.
The blue coloured bicycle is also stated to have been recovered at about 4.10 p.m. on the same day on the pointing out of the accused from beneath the bridge over the drain near Rangoli Mandapam and the same is Ext. Ka-4.
Thereafter on his pointing out one hammer was recovered from the room of the accused's where the deceased is alleged to have been done to death. From this very room parts of the wall and the floor with blood stains were recovered and sealed.
The blue scooter which was used to dispose of the body of the deceased wrapped up in the khakhi coloured bed roll bearing registration no.DLK-9713 was also taken into custody and a recovery memo was prepared and marked as Ext. Ka-5.
On the same day, i.e. 28.09.2004 the accused Gopal Narain was arrested at about 6.10 p.m. This arrest of the other accused was carried out in the company of accused Bhuwan @ Sonu from house no.60-A Parshnath Colony, Mohan Nagar Ghaziabad in a raid conducted by the police who disclosed his parentage as son of Hari Mohan Jha and resident of Kishanpur Madhuban, police station Kundli district Muzaffarpur, Bihar. On being searched, one mobile of Motorolla make white colour with SIM No.9810871929 is stated to have been recovered from the right pocket of his pant. Two SIMs were also recovered from his left pocket one bearing no.9810560234 and the other SIM Dolphin bearing No.9868379684.
The SIM recovered from the white Motorolla mobile was found inserted in the same mobile and was in working order. It is stated that the accused had sent messages through the said mobile utilizing SIM No.9810560234. The message of ransom was sent to mobile no.9412150776 which was that of PW-5 Babu Singh the maternal uncle of the deceased and the brother-in-law of the informant.
The mobile set was switched off and the recovered SIMs were all sealed in a cloth and the recovery memo was prepared.
It is to be noted that there is no independent witness to the said recovery.
On completion of the investigation and recording of statements the charge-sheet/police report was filed which is Ext. Ka-25 and both the accused were produced before the Chief Judicial Magistrate, Meerut who committed them to the Sessions vide his order dated 03.01.2005. The Sessions Court proceeded to frame the charges under the sections in which the accused have been punished who denied having committed the offences whereafter the trial proceeded.
The prosecution examined sixteen witnesses. The father of the deceased, the informant Awshesh Kumar Chauhan was examined as PW-1, Anil Kumar Gupta the neighbour of the deceased and also the witness of the recovery except the dead body was examined as PW-2, Dr.N.Naithani who conducted the autopsy and prepared the post-mortem report was examined as PW-3. The scribe of the written report Abhay Kumar Singh was examined as PW-4, Babu Singh the brother-in-law of the informant and maternal uncle of the deceased was examined as PW-5 who partly turned hostile, Vijay Singh the first Investigating Officer of police station Nauchandi, Meerut was examined as PW-6, Vinod Kumar Tyagi the Head Constable who had transcribed the first information report was examined as PW-7, Janeshwar Singh Constable was examined as PW-8 in reference to the G.D. entry of inquest, Sub-Inspector of Police Ajay Kumar Chauhan who is said to have tapped the phone of accused Bhuwan @ Sonu and Gopal Narain was examined as PW-9. Rahul Kumar Sharma Sub-Inspector of Police who prepared the inquest report of the dead body was examined as PW-10.
The second Investigating Officer who took over the investigation after the recovery of the dead body namely K.P.S. Chahal was examined as PW-11.
Kunwar Chandra Bhan Singh on whose direction the inquest report of the dead body was prepared was examined as PW-12. The first information report of the recovery of the body that was entered in the G.D. at police station Sadar Bazar, Meerut was testified by PW-13.
Sri Pankaj Sharma the Assistant Nodal Officer of the Telecom Company Idea was examined as PW-14 and the Nodal Officer of Telecom Company Airtel R.K.Singh was examined as PW-15.
The stenographer to the Senior Superintendent of Police, Meerut who had testified about the permission granted relating to tapping of the phone, was examined as PW-16.
The rough sketch of the site plan relating to the recovery of the body by the inspector police station Sadar Bazar is Ext. Ka-25, the site plan from where the accused Bhuwan @ Sonu got the bicycle recovered is marked as Ex. Ka-24, the site plan of the room where the accused Bhuwan @ Sonu lived in which the murder is alleged to have been committed is Ex. Ka-23 and the site plan of items that were recovered on the pointing out of the accused Bhuwan @ Sonu is Ext. Ka-22.
On behalf of the accused appellant Bhuwan @ Sonu the arguments were advanced by Sri Bhavya Sahai, Advocate. He contends that the entire case is one of circumstantial evidence the links whereof have not been completed and the prosecution has utterly failed to develop the chain of events and prove it beyond reasonable doubt. He submits that firstly the departure of the deceased either in the company of accused Bhuwan @ Sonu or any other person is not established. There being no connectivity to indicate the departure of the deceased or having been seen in his company on 19.09.2004 at 5.00 p.m. is completely absent. There being no evidence of the victim having been last seen in the company of the accused Bhuwan @ Sonu, the very first link in the chain of events is missing.
He then submits that the allegation of any call having been made for ransom is completely missing in the first information report or even in the missing report. The only allegation is of alleged kidnapping. The electronic evidence of the mobile phones and the messages alleged to have been sent have not been proved. The recipient of the alleged call of ransom Babu Singh has turned hostile, who is the real brother-in-law of the informant and the maternal uncle of the deceased. The testimony of the informant PW-1 on this count therefore is not supported by any corroborative evidence. There is therefore no proof of any motive, much less a strong motive, behind the murder. In the absence of such proof, the most vital requirement of law to prove a case of circumstantial evidence is non-existent.
The body of the deceased was in an advanced stage of decomposition and was beyond recognition. The identification by the PW-1 informant on the strength of an underwear does not match with the clothes that were mentioned in the inquest report.
The clothes that were described to have been worn by the deceased when he went missing were nowhere proved through the exhibits.
The nature of the ante mortem injuries which are incised wounds do not establish and corroborate the story of the prosecution where it is alleged that the deceased was done to death by a hammer in the room occupied by the accused Bhuwan @ Sonu. There are no injuries that can be related to a hammer and there is no recovery of any sharp edged weapon to establish that the head of the deceased was severed which may have caused the death of the deceased. The contention is that it was not the body of the deceased but some other body which was recovered and was beyond identification.
He then contended that the bicycle which was recovered was of the make Atlas Classic whereas the first information report categorically named the make as Hero Ranger bicycle. Thus the bicycle alleged to have been recovered is entirely different from what was alleged. There are no indications of sealing and exhibiting the bicycle nor any paper slip was found tagged on the same and hence it was not proved before the Court that the bicycle recovered was the same bicycle used by the deceased.
The blood stained items stated to have been recovered are after the arrest of the accused Bhuwan @ Sonu and is a planted recovery. He submits that it is strange that if the body was recovered then why the police of police station Sadar Bazaar did not make any attempt to collect the blood stained items and search for other items that were lying near the dead body from where they were allegedly found on the pointing out of the accused on the next day.
There is no explanation about the recovery of the alleged scooter.
The evidence of phone tapping is not established inasmuch as the own evidence of the prosecution indicates that the voice recorder was not working.
Thus there was neither any evidence of the accused Bhuwan @ Sonu accompanying the deceased or having kidnapped him nor is there any evidence that this accused had done to death the deceased as alleged. The medico legal examination and the autopsy of the deceased nowhere substantiates the theory of the prosecution nor is there any co-relation with the recovery made either of the items from the place where the dead body was allegedly recovered or of the bicycle or the articles said to have been utilized for causing injuries. The entire evidence therefore is a vast suspicion or doubt with no clinching material to establish any of the ingredients of kidnapping for ransom, followed by murder or even destroying the evidence with the aid of the other accused. The story of ransom is equally a loud thinking process without any motive to commit the crime having been demonstrated.
Mr Satish Trivedi the learned Senior Councel for the other accused Gopal Narain submits that none of the ingredients of Section 34 I.P.C. exist to establish any such common intention to achieve a common object for abducting or kidnapping and murdering the deceased for ransom. The entire episode is based on mere suspicion and the involvement of the accused Gopal Narain is only on the basis of the recovery of mobile phone, the SIM cards and the alleged tapping of the phone which nowhere stands corroborated by any material evidence either admissible or relevant to the controversy. His submission is that the recovery of the mobile from the accused Gopal Narain nowhere establishes the link of any communication either of kidnapping or ransom and even otherwise the said evidence has not been proved in terms of Section 65-B of the Indian Evidence Act. He therefore submits that the arrest of the second appellant Gopal Narain was merely on suspicion without any proof and his trial and conviction for the alleged offences has not been able to establish the guilt for which he was charged.
Having heard all the learned counsel appearing for the appellants, the primary question which arises for consideration is what should be the parameters for appreciation of evidence. It would be apt to refer the following passage from the decision of the Apex Court in the case of Ram Sharan Yadav Vs. Thakur Muneshwar Nath Singh & Others 1984 (4) SCC 649 that arose from the that of an election petition based on allegation of corrupt practice. Paragraph no. 9 is extracted hereinunder:-
9. By and large, the Court in such cases while appreciating or analyzing the evidence must be guided by the following considerations:
(1) the nature, character, respectability and credibility of the evidence;
(2) the surrounding circumstances and the improbabilities appearing in the case;
(3) the slowness of the appellate court to disturb a finding of fact arrived at by the trial court who had the initial advantage of observing the behavior, character and demeanor of the witnesses appearing before it, and (4) the totality of the effect of the entire evidence which leaves a lasting impression regarding the corrupt practices alleged.
The question as to whether what should be the guidelines for testing a case in order to bring home the guilt or otherwise in a matter of circumstantial evidence, the local classicus of recent origin is the case of Sharad Birdhichand Sarda Vs. State of Maharashtra 1984 (4) SCC 116. The question as to whether the case of circumstantial evidence is on a sound footing would be largely dependent upon the circumstances of a strong motive. An inference of guilt can be gathered, only if the circumstances are strong enough to make conviction possible. For this, strong reliance has been placed by the learned counsel for the appellant, Sri Sahay on the judgment in the case of Majenderan Langeswaran Vs. State (NCT of Delhi) & Another 2013 (7) SCC 192. Paragraph nos. 16 to 25 of the same are extracted hereinunder:-
"16. Now, we have to consider whether the judgment of conviction passed by the trial court and affirmed by the High court can be sustained in law. As noticed above, the conviction is based on circumstantial evidence as no one has seen the Accused committing murder of the deceased. While dealing with the said conviction based on circumstantial evidence, the circumstances from which the conclusion of the guilt is to be drawn should in the first instance be fully established, and all the facts so established should also be consistent with only one hypothesis i.e. the guilt of the Accused, which would mean that the onus lies on the prosecution to prove that the chain of event is complete and not to leave any doubt in the mind of the Court.
17. In the case of Hanumant Govind Nargundkar v. State of M.P. : AIR 1952 SC 343, this Court observed as under:
"10...... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the Accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the Accused and it must be such as to show that within all human probability the act must have been done by the Accused."
18. In the case of Padala Veera Reddy v. State of A.P. : 1989 Supp (2) SCC 706, this Court opined as under:
"10. Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the Accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the Accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the Accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the Accused and such evidence should not only be consistent with the guilt of the Accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra (1982) 2 SCC 351)
19. In the case of C. Chenga Reddy and Ors. v. State of A.P. : (1996) 10 SCC 193, this Court while considering a case of conviction based on the circumstantial evidence, held as under:
"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the Accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence.
20. In the case of Ramreddy Rajesh Khanna Reddy v. State of A.P : (2006) 10 SCC 172, this Court again considered the case of conviction based on circumstantial evidence and held as under:
"26. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the Accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an Accused guilty only on the basis of the circumstantial evidence.
(See Anil Kumar Singh v. State of Bihar (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P. : (2005) 7 SCC 603).
21. In the case of Sattatiya v. State of Maharashtra MANU/SC/7067/2008 : (2008) 3 SCC 210, this Court held as under:
"10. We have thoughtfully considered the entire matter. It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the Accused. Of course, the circumstances from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. This Court further observed in the aforesaid decision that:
"17. At this stage, we also deem it proper to observe that in exercise of power under Article 136 of the Constitution, this Court will be extremely loath to upset the judgment of conviction which is confirmed in appeal. However, if it is found that the appreciation of evidence in a case, which is entirely based on circumstantial evidence, is vitiated by serious errors and on that account miscarriage of justice has been occasioned, then the Court will certainly interfere even with the concurrent findings recorded by the trial court and the High Court-Bharat v. State of M.P. : (2003) 3 SCC. In the light of the above, we shall now consider whether in the present case the prosecution succeeded in establishing the chain of circumstances leading to an inescapable conclusion that the Appellant had committed the crime.
22. In the case of State of Goa v. Pandurang Mohite : (2008) 16 SCC 714, this Court reiterated the settled law that where a conviction rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the Accused or the guilt of any person. The circumstances from which an inference as to the guilt of the Accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
23. It would be appropriate to consider some of the recent decisions of this Court in cases where conviction was based on the circumstantial evidence. In the case of G. Parshwanath v. State of Karnataka : (2010) 8 SCC 593, this Court elaborately dealt with the subject and held as under: 23. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the Accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts.
24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the Accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the Accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the Accused, howsoever, extravagant and fanciful it might be. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the Accused and must show that in all human probability the act must have been done by the Accused, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court.
24. In the case of Rajendra Pralhadrao Wasnik v. State of Maharashtra : (2012) 4 SCC 37, while dealing with the case based on circumstantial evidence, this Court observed as under:
"12 . There is no doubt that it is not a case of direct evidence but the conviction of the Accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis i.e. the guilt of the Accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete as not to leave any substantial doubt in the mind of the court. Irresistibly, the evidence should lead to the conclusion which is inconsistent with the innocence of the Accused and the only possibility is that the Accused has committed the crime.
13. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the Accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the Accused or the guilt of any other person.
25. Last but not least, in the case of Brajendrasingh v. State of M.P.: (2012) 4 SCC 289, this Court while reiterating the above principles further added that:
"28. Furthermore, the rule which needs to be observed by the court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the Accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the Accused is innocent till proven guilty and that the Accused is entitled to a just and fair trial. (Ref. Dhananjoy Chatterjee v. State of W.B. : (1994) 2 SCC 220;S hivu v. High Court of Karnataka : (2007) 4 SCC 713 and Shivaji v. State of Maharashtra: (2008) 15 SCC 269)."
On the strength of the aforesaid ratio of the judgment of the Apex Court, it has been urged that in the absence of any witnesses to the crime, the circumstances in the present case are not strong enough to complete the entire chain with reliable links to establish the case of the prosecution which has utterly failed to prove the guilt beyond reasonable doubt.
This is a case where the identification of the dead body has been seriously challenged on behalf of the accused contending that the trial court has proceeded to treat the body to have been identified only on the strength of a single garment which was an under-wear found on the dead body which was highly decomposed. The contention on behalf of the appellant's counsel is that the body was beyond identification and the under-wear on the basis whereof, the informant attempted to identify the body could not be proved to be that of the deceased. For this, reliance has been placed by the learned counsel for the appellant in the case of Ravindra Prakash & Another Vs. State of Haryana 2003 SCC Criminal 74 paragraph nos. 11, 12 and 13 extracted hereinunder:-
"11. This will take us to the next question involved in this appeal that is in regard to identification of the dead body. For this purpose, the prosecution has relied upon the evidence of PWs 3 and 4 according to the prosecution case, these witnesses were taken on 18.4.1993 by the investigating officer PW-9 to the place where a dead body was lying and after seeing the dead body, these witnesses alleged to have identified the same as that of their relative Chander Has.
12. If we see the evidence of PW-3, he merely says that he identified the dead body without giving any specific reason for the same. From the medical evidence, it is clear that the dead body was in a highly decomposed state, therefore, it was incumbent on the part of his witness to state how he recognised the body, he has failed to give any cogent reason in this regard, hence, his evidence does not help the prosecution.
13. However, PW-4 Jai Bhagwan another relative of Chander Has has gone further and states that he identified the dead body from the artificial jaw (dentures) which Chander Has had got fitted and from his ears and nose. Regarding dentures, he says that he saw them near the dead body. But PW-9, who conducted the inquest, has not supported this version of PW-4. PW-9 has specifically stated that he did not find any such dentures at the place where the dead body was found. So far as the identification of the dead body by this witness from the ears and nose is concerned, we see from the evidence of PW-7 the doctor who conducted the post mortem that the dead body had deteriorated so much that the ears, eye-balls, nose and lips had disfigures. Thus from a total reading of the evidence of the doctor, it is clear that it was not possible for anybody to have identified the dead body from the ears and nose of the deceased because of the condition of decomposition. Therefore, what remains is only the clothes that was found on the dead body of the deceased. It is to be noted neither PW-2 nor PW-5 in their evidence has stated what clothes Chander Has was wearing when he went with the appellants. PW-4 has not given any reason for identifying the clothes of the deceased. PW-3 who is also a relative of Chander Has has not identified the clothes of Chander Has. Therefore, identification of the deed body by PW-4 by the clothes cannot be accepted. Here, we also notice even according to PW-9, the wife of Chander Has, viz. PW-2 had not identified the dead body. Therefore, we find it not safe to rely upon the evidence of PW-4 in regard to identification of the body. That apart if has come in evidence that in the complaint filed on 17.4.1993 before the Police Station it is mentioned that the height of the missing Chander Has was 5.7" while PW-7 the doctor who specifically measured the dead body has in unequivocal terms stated that the height or the length of the dead body was 5.10". This is also a material discrepancy that could be noticed in the identification of the dead body. From the discussion made herein above, we are of the opinion that the prosecution has failed to establish that the dead body found by the Police on 18.4.1993 was that of missing Chander Has."
From the lower court records, we have been able to find from the written submissions dated 2nd August, 2006 moved on behalf of the accused Bhuwan that another judgment of the Apex Court in the case of Hargovandas Devrajbhai Patel & Others Vs. State of Gujarat reported in 1998 (9) SCC 17 was also relied upon on behalf of the learned counsel for the accused Bhuwan, it is urged that a highly decomposed body which according to the medical report could not be identified cannot be said to have been identified on the strength of the dress found on the body of the deceased.
It is urged that the corpus delicti not having been established, it was not possible for the trial court to convict the appellant for which heavy reliance has been placed on the judgment in the case of Rishi Pal Vs. State of Uttarakhand 2013 (12) SCC 551. Paragraph nos. 19 to 26 of the aforesaid judgment are extracted hereinunder:-
"19. It is true that the tell-tale circumstances proved on the basis of the evidence on record give rise to a suspicion against the Appellant but suspicion howsoever strong is not enough to justify conviction of the Appellant for murder. The trial Court has, in our opinion, proceeded more on the basis that the Appellant may have murdered the deceased-Abdul Mabood. In doing so the trial Court over looked the fact that there is a long distance between 'may have' and 'must have' which distance must be traversed by the prosecution by producing cogent and reliable evidence. No such evidence is unfortunately forthcoming in the instant case. The legal position on the subject is well settled and does not require any reiteration. The decisions of this Court have on numerous occasions laid down the requirements that must be satisfied in cases resting on circumstantial evidence. The essence of the said requirement is that not only should the circumstances sought to be proved against the accused be established beyond a reasonable doubt but also that such circumstances form so complete a chain as leaves no option for the Court except to hold that the accused is guilty of the offences with which he is charged. The disappearance of deceased-Abdul Mabood in the present case is not explainable as sought to be argued before us by the prosecution only on the hypothesis that the Appellant killed him near some canal in a manner that is not known or that the Appellant disposed of his body in a fashion about which the prosecution has no evidence except a wild guess that the body may have been dumped into a canal from which it was never recovered.
20. In Mohibur Rahman and Anr. v. State of Assam : (2002) 6 SCC 715, this Court held that the circumstance of last seen does not by itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of each case.
"10.....There may however be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide.
21. Similarly in Arjun Marik and Ors. v. State of Bihar : 1994 Supp (2) SCC 372, this Court reiterated that the solitary circumstance of the accused and victim being last seen will not complete the chain of circumstances for the Court to record a finding that it is consistent only with the hypothesis of the guilt of the accused. No conviction on that basis alone can, therefore, be founded.
22. So also in Godabarish Mishra v. Kuntala Mishra and Anr. : (1996) 11 SCC 264, this Court declared that:
"11.......(g) the theory of last seen together is not of universal application and may not always be sufficient to sustain a conviction unless supported by other links in the chain of circumstances.
23. In Bharat v. State of M.P. : (2003) 3 SCC 106; two circumstances on the basis whereof the Appellant had been convicted were (i) the Appellant having been last seen with the deceased and (ii) Recovery of ornaments made at his instance. This Court held:
"12...............Mere non-explanation cannot lead to the proof of guilt against the Appellant. The prosecution has to prove its case against the Appellant beyond reasonable doubt The chain of circumstances, in our opinion, is not complete so as to sustain the conviction of the Appellant."
24. We may also refer to State of Goa v. Sanjay Thakran and Anr. : (2007) 3 SCC 755 where this Court held that in the absence of any other corroborative piece of evidence to complete the chain of circumstances it is not possible to fasten the guilt on the accused on the solitary circumstance of the two being seen together.
25. Reference may also be made to Bodh Raj alias Bodha and Ors. v. State of Jammu and Kashmir : (2002) 8 SCC 45 where this Court held:
"31.The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases".
26. Finally in Jaswant Gir v. State of Punjab : (2005) 12 SCC 438, this Court held that it is not possible to convict Appellant solely on basis of 'last seen' evidence in the absence of any other links in the chain of circumstantial evidence, the Court gave benefit of doubt to accused persons."
On the strength of the above said judgment, it is urged that last seen company alleged by the prosecution cannot lead to an inference by itself, so as to presume that the appellant Bhuwan was the perpetrator of the crime which remains a suspicion and a mere doubt. This suspicion was never translated into proof by any substantive and corroborative evidence, and in the absence of any motive much less a strong motive, the allegation of last seen cannot be accepted to bring home any guilt. It is urged that in the case of Rishi Pal (supra), the Apex Court allowed the appeal after recording its conclusion which also applies on the facts of the present case.
Learned counsel for the appellant, Sri Sahay has also challenged the alleged recovery on the ground that there is no corroborative evidence so as to connect the alleged discovery of some items in order it admissible in terms of Section 27 of the Indian Evidence Act. Neither the preceding events nor the subsequent events confirm the alleged recovery in view of the serious pitfalls as pointed out in the submissions already noted above, particularly with regard to the make of bicycle and the clothes on the body of the deceased. Additionally, the recovery of a hammer from the room of the accused Bhuwan nowhere connects with the manner of cause of death which has been reported to be the ante-mortem incised wound which cannot be caused by a hammer. In the absence of any sharp edged weapon having been recovered, the recovery of the hammer nowhere establishes a link so as to complete the chain of circumstances and bring home the guilt.
He has then urged that a highly decomposed body with considerable variation in the age of the deceased as mentioned in the FIR which is 10 years and that in the post-mortem which is 12 to 14 years, clearly creates a serious doubt about the body being that of the deceased.
There is absolutely no connection of the appellant Bhuwan with Gopal Narain who was arrested from a far away place, and the allegation that the said arrest was carried out in the presence of the appellant Bhuwan was absolutely wrong. The raid which was conducted allegedly to arrest Gopal Narain was on a mere suspicion without any proof or any evidence that may be admissible in law. He submits that the reliance on electronic records which are stated to be on the strength of the recovery of mobile phones and messages having been exchanged has neither been proved in Court, nor any admissible evidence was led in terms of Section 65-B of the Indian Evidence Act to prove the said material. The Court had no occasion nor did it examine any of the messages stated to be received on the mobile phones and the trial court only drew inferences on the basis of the statements made by the prosecution witnesses which did not substantiate and prove the utilization of such electronic instrument for passing of any message or convey any message of ransom.
It was also urged that one of the witnesses who is said to have received the message namely, Babu Singh has turned hostile and he being the main link to the allegation of the receipt of the message of ransom, the prosecution story of a motive behind the kidnapping and murder vanishes.
Sri Satish Trivedi, learned Senior Counsel appearing for the other accused Gopal Narain submitted that apart from the arguments advanced by Sri Sahay, the only connectivity of appellant Gopal Narain is on the strength of mobile phones and his arrest on a raid conducted by a police party. The recovery is sham and is not in the presence of any independent witness. The main argument advanced by Sri Satish Trivedi is that the evidence of the mobile phones, the statement of the two officials of BSNL and Airtel Company who appeared as PW-14 and PW-15 was not an evidence admissible that could prove the utilization of the electronic instruments recovered or the call detail records, the copy whereof had been filed before the Court. The trial court manifestly erred in totally ignoring the provisions of Section 65-B of the Indian Evidence Act and the clear pronouncement of a three judges Bench on that score of the Apex Court in the case of Anwar P.V. Vs. P.K. Basheer & Others 2014 (10) SCC 473 paragraph nos. 14 to 18, 20 to 22 and then paragraph no. 24 extracted hereinunder:-
"14. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed Under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned Under Sub-section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions Under Section 65B(2). Following are the specified conditions Under Section 65B(2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
15. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned Under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
17. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of examiner of electronic evidence.
18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements Under Section 65B of the Evidence Act are not complied with, as the law now stands in India.
20. Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed Under Section 65B of the Evidence Act. That is a complete code in itself. Being a special law, the general law Under Sections 63 and 65 has to yield.
21. I n State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru (2005) 11 SCC 600, a two-Judge Bench of this Court had an occasion to consider an issue on production of electronic record as evidence. While considering the printouts of the computerized records of the calls pertaining to the cell phones, it was held at Paragraph-150 as follows:
"150. According to Section 63, secondary evidence means and includes, among other things, "copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies". Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service-providing company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge. Irrespective of the compliance with the requirements of Section 65-B, which is a provision dealing with admissibility of electronic record, there is no Bar to adducing secondary evidence under the provision of the Evidence Act, namely, Section 63 and 65. It may be that the certificate containing the details of sub-Section (4) of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provision, namely Sections 63 and 65."
It may be seen that it was a case where a responsible official had duly certified the document at the time of production itself. The signatures in the certificate were also identified. That is apparently in compliance with the procedure prescribed Under Section 65B of the Evidence Act. However, it was held that irrespective of the compliance with the requirements of Section 65B, which is a special provision dealing with admissibility of the electronic record, there is no bar in adducing secondary evidence, Under Sections 63 and 65, of an electronic record.
22. The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence Under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia special bus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements Under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.
24. The situation would have been different had the Appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence on electronic record with reference to Section 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence Under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance of the conditions in Section 65B of the Evidence Act."
He has then invited the attention of the Court to the judgment in the case of Harpal Singh alias Chhota Vs. State of Punjab 2017 (1) SCC 734 to substantiate the said plea which reinforces the ratio of the three judges decision in the case of Anwar P.V. (supra).
During the course of arguments, the Court had invited the attention of the learned counsel for the parties to the latest clarification issued by the Apex Court on this point in the case of Shafiq Ahmad Vs. State of Himachal Pradesh in SLP Criminal No. 2301 of 2017 in its order dated 30.01.2018. The relevant portion in respect of the admissibility of an evidence of electronic record under Sections 65-A and 65-B of the Indian Evidence Act, 1872 is dealt with in the following paragraphs of the said order extracted hereinunder:-
"(1) Since identical question arose for consideration in this special leave petition as noted in Order dated 12th October, 2017, we have heard learned amicus, Mr. Jayant Bhushan, senior advocate, Ms. Meenakshi Arora, senior advocate, assisted by Ms. Ananya Ghosh, Advocate, on the question of admissibility of electronic record. We have also heard Mr. Yashank Adhyaru, learned senior counsel, and Ms. Shirin Khajuria, learned counsel, appearing for Union of India.
(2) An apprehension was expressed on the question of applicability of conditions under Section 65B(4) of the Evidence Act to the effect that if a statement was given in evidence, a certificate was required in terms of the said provision from a person occupying a responsible position in relation to operation of the relevant device or the management of relevant activities. It was submitted that if the electronic evidence was relevant and produced by a person who was not in custody of the device from which the electronic document was generated, requirement of such certificate could 4 not be mandatory. It was submitted that Section 65B of the Evidence Act was a procedural provision to prove relevant admissible evidence and was intended to supplement the law on the point by declaring that any information in an electronic record, covered by the said provision, was to be deemed to be a document and admissible in any proceedings without further proof of the original. This provision could not be read in derogation of the existing law on admissibility of electronic evidence.
(3) We have been taken through certain decisions which may be referred to. In Ram Singh and Others v. Col. Ram Singh, 1985 (Supp) SCC 611, a Three-Judge Bench considered the said issue. English Judgments in R. v. Maqsud Ali, (1965) 2 All ER 464, and R. v. Robson, (1972) 2 ALL ER 699, and American Law as noted in American Jurisprudence 2d (Vol.29) page 494, were cited with approval to the effect that it will be wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. Electronic evidence was held to be admissible subject to safeguards adopted by the Court about the authenticity of the same. In the case of 5 tape-recording it was observed that voice of the speaker must be duly identified, accuracy of the statement was required to be proved by the maker of the record, possibility of tampering was required to be ruled out. Reliability of the piece of evidence is certainly a matter to be determined in the facts and circumstances of a fact situation. However, threshold admissibility of an electronic evidence cannot be ruled out on any technicality if the same was relevant.
(4) In Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329, the same principle was reiterated. This Court observed that new techniques and devices are order of the day. Though such devices are susceptible to tampering, no exhaustive rule could be laid down by which the admission of such evidence may be judged. Standard of proof of its authenticity and accuracy has to be more stringent than other documentary evidence.
(5) In Tomaso Bruno and Anr. v. State of Uttar Pradesh, (2015) 7 SCC 178, a Three-Judge Bench observed that advancement of information technology and scientific temper must pervade the method of investigation. Electronic evidence was relevant to establish facts. Scientific and electronic evidence can be a great help to an investigating agency. 6 Reference was made to the decisions of this Court in Mohd. AjMal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1 and State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600.
(6) We may, however, also refer to judgment of this Court in Anvar P.V. v. P.K. Basheer and Others, (2014) 10 SCC 473, delivered by a Three-Judge Bench. In the said judgment in para 24 it was observed that electronic evidence by way of primary evidence was covered by Section 62 of the Evidence Act to which procedure of Section 65B of the Evidence Act was not admissible. However, for the secondary evidence, procedure of Section 65B of the Evidence Act was required to be followed and a contrary view taken in Navjot Sandh (supra) that secondary evidence of electronic record could be covered under Sections 63 and 65 of the Evidence Act, was not correct. There are, however, observations in para 14 to the effect that electronic record can be proved only as per Section 65B of the Evidence Act.
(7) Though in view of Three-Judge Bench judgments in Tomaso Bruno and Ram Singh (supra), it can be safely held that electronic evidence is admissible and provisions under Sections 65A and 65B of the Evidence Act are by way of a clarification and are procedural provisions. If the 7 electronic evidence is authentic and relevant the same can certainly be admitted subject to the Court being satisfied about its authenticity and procedure for its admissibility may depend on fact situation such as whether the person producing such evidence is in a position to furnish certificate under Section 65B(h).
(8) Sections 65A and 65B of the Evidence Act, 1872 cannot be held to be a complete code on the subject. In Anvar P.V. (supra), this Court in para 24 clarified that primary evidence of electronic record was not covered under Sections 65A and 65B of the Evidence Act. Primary evidence is the document produced before Court and the expression "document" is defined in Section 3 of the Evidence Act to mean any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.
(9). The term "electronic record" is defined in Section 2(t) of the Information Technology Act, 2000 as follows:-
"Electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche." 8 (10). Expression "data" is defined in Section 2(o) of the Information Technology Act as follows:-
"Data" means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a forMalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer."
(11) The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such a document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) is not always mandatory.
(12) Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies."
Sri Satish Trivedi, the learned Senior Counsel contends that the culminating paragraphs extracted hereinabove in the case of Shafiq Ahmad (supra) amounts to an order per-incuriam in the wake of three judges decision in Anwar P.V. (supra) as followed in the judgment in the case of Harpal Singh (supra). He submits that the Apex Court has introduced a dimension through a clarification in a pending matter which does not amount to a ratio nor does finality get attached to it.
Keeping in view the aforesaid submissions, he contends that if the evidence led by the prosecution in the present case is not in conformity with Section 65-B(2) and Section 65-B(4) of the Indian Evidence Act then it is not an evidence admissible in terms of Section 65-A read with Section 65-B and also cannot be admitted by giving it the caption of secondary evidence. He submits that what can be done directly under the provisions of the Indian Evidence Act cannot be permitted to be made admissible under the inherent power of the Court that too even through a judicial pronouncement. This would be running counter to the letter and spirit of the law made by Parliament and already ruled by the Apex Court by a larger Bench of the three judges. The contention is that, even if, the mobile phones are seized and the sim cards are treated as primary evidence and produced in Court, then they ought to have been played and examined by the Court which was not done nor was it proved accordingly so as to fall within such an exception. Thus an inadmissible evidence cannot be converted into an admissible evidence, and in the absence of any such evidence, the connectivity of the appellant Gopal Narain nowhere stands proved and established. Any recovery said to have been made from him, therefore does not lead to a clinching evidence so as to connect him with the intention and object of the appellant Bhuwan as alleged, and consequently neither Section 34 of the Indian Penal Code is attracted nor the other charges involving the appellant and treating him to be a partner in the crime stands established. The trial court has therefore committed a grave error in convicting the appellant Gopal Narain on this score.
To begin with, the introduction and status of the family and the relationship, the proximity of the accused Bhuwan with that of the victim's family is essential to be noted.
The victim's father PW-1 Awshesh Singh Chauhan resides in a small house in Meerut at the given address and was working as a Constable in the Regional Transport Department. PW-1 has four more brothers and is an original resident of District-Bijnor which is 100 miles from Meerut. At the time of the incident, he was residing in a small house built over 50 square metres in Shashtri Nagar, Meerut. In the same locality is the house of the accused Bhuwan near Park No. 3 of Shashtrinagar. PW-1 in his statement has categorically explained his relationship with the accused which is supported by the evidence of PW-5 Babu Singh that corroborates the same and are parts of his statement which are admissible, even though he partly turned hostile. According to the testimony recorded, PW-1 in his cross examination has categorically stated that accused Bhuwan @ Sonu is the son of Narendra. The first cousin sister of Narendra, Tara Devi is married to PW-5 Babu Singh. Babu Singh's sister is married to PW-1. Accordingly Bhuwan is a distant nephew of Babu Singh who is his uncle (Fufa). This fact is admitted to accused Bhuwan in his answer to Question No. 20 in the statement under Section 313 Cr.P.C. Thus, Babu Singh is the maternal uncle of the deceased Anmol and is the Fufa of the accused Bhuwan. The deceased and the accused Bhuwan therefore are distant cousin brothers according to the said admitted position.
It may be clarified at this stage that second accused Gopal Narain Jha is not related either to the accused Bhuwan or to the family of the deceased.
We now proceed to examine the facts leading to the circumstances in order to infer the guilt if any. This is a case largely relying on circumstantial evidence and therefore the links of the facts leading to the commission of the offence and the involvement of the accused has to be traced out step by step.
The departure of the deceased Anmol is stated to be at about 5:00 pm in the evening of 19th September, 2004 on his blue colour bicycle. When he failed to return in the evening, the missing report was lodged and that has been proved by PW-1, as well as, by the Investigating Officer entered as GD No. 5 at 1:45 am after mid night on 20.09.2004. PW-5 Babu Singh stated that he came from Bijnor to Meerut on 19th September, 2004 and since he was related to Bhuwan, he went to meet him and his parents, where he found the door of his premises locked. He has then stated that while he was returning back from the house of Bhuwan, he met Bhuwan and the deceased Anmol on their bicycle. He had a short and brief talk with them and Bhuwan informed him that since his parents have gone to Delhi, therefore he is alone. PW-5 then gave his mobile number to him being Mobile No. 9412150776 that he may call on him when his parents return from Delhi. After enquiring about their welfare, Babu Singh is stated to have returned home.
On the next day Babu Singh is stated to have received a communication from his sister, the mother of the deceased, that Anmol had not returned whereupon Babu Singh with his family came to Meerut on 20th September, 2004 in order to help the family to search out the missing boy.
On the same day, PW-1 in his statement has narrated that he received a call in the night on his Landline Telephone No. 2770772 making a demand of ransom of Rs.10,00,000/- in exchange of his boy.
The next day i.e. on 21st September 2004, a written report was filed about kidnapping. In the report PW-1 has not made any mention of the demand of ransom on his landline telephone number stated hereinabove. This fact of demand of ransom on landline telephone number by PW-1 was also not informed to the police which is admitted by him in his statement. But he does state that he had informed the police later on 23rd September, 2004 about the said call. On cross examination about such a statement not being recorded under Section 161 Cr.P.C., PW-1 has categorically stated that he cannot say as to why such fact was not recorded by the Investigating officer. The first Investigating Officer, Vijay Singh in his statement during cross examination on 14.11.2005 before the Court has stated that PW-1 had not informed him about the demand of ransom of Rs.10,00,000/- on his landline telephone in exchange of his son.
The Investigating Officer has stated that he continued recording statements on 22.09.2004 and 23.09.2004.
One more witness PW-4, who is the uncle of the deceased has given testimony to the effect that he was also searching for his nephew on 20th September, 2004 and had visited Police Station Zaidi Farm which is in the same police station Nauchandi to know about the whereabouts of his nephew. However, the accused Bhuwan @ Sonu had been visiting his house on 21st September, 2004 onwards. In his examination-in-chief, he has categorically stated that on 20.09.2004 he saw Bhuwan driving a Sky Blue Colour scooter loaded with a khakhi coloured bedroll infront of him. When Bhuwan saw the said witness, he was a bit puzzled and then drove towards Mall Road. On further cross examination about his having seen Bhuwan alias Sonu on his Scooter No. DNK 9713 which was spotted by him on the crossing of Mall Road towards Cantt Station, he has said that he was on a rickshaw and he was going towards Topkhana. While going from the canal colony to Topkhana one had to necessarily cross Mall Road.
Babu Singh PW-5 then takes the story further who in his examination-in-chief, before being declared hostile, clearly stated he had received messages on 24th September, 2004 on his Mobile No. 9412150776. He further stated that does not remember the number of the caller as he cannot read English. He also denied having understood the contents of the message but he stated that his brother-in-law the informant PW-1 had read the messages and had told him that the same is about Anmol which should be kept a secret. Then two messages again came on his mobile on 25.09.2004 about Anmol and the same was from Ghaziabad from where a ransom of Rs.10,00,000/- was being demanded. These facts according to him were disclosed to the concerned Circle Officer, Meerut. He also stated that he had received the messages from Bhuwan and had informed the relevant Circle Officer, Meerut about Mobile Nos. 9810871929 and 28106100049 as the source of these messages. At the time when these messages had been received, his brother-in-law was with him and was also there when the concerned Circle Officer, Meerut had interrogated him. Upon being declared hostile, the ADGC cross-examined him whereupon PW-5 stated that the deceased and the accused are both related to him and if Bhuwan has committed the offence, he should be punished. He was thereafter again cross-examined on behalf of the accused Bhuwan and he reaffirmed the fact of having seen Bhuwan and Anmol in each other's company on bicycle in the evening on 19th September, 2004. He also described that he saw them near the park which is 100 metres away from Bhuwan's house.
The aforesaid statement of PW-5 has to be read alongwith the statement of PW-6, the first Investigating Officer, Vijay Singh who is stated to have recorded the statement of Sanjay Chauhan as well as PW-4 Abhay. The said Investigating Officer has categorically stated that from PW-1, he came to know about the messages on the mobile phone of Babu Ram on 26.09.2004. The numbers that had been disclosed by PW-1 were noted by him and he obtained call details thereof. On 27th September 2004, he recorded the call detail numbers and then obtained the call detail records. On the same day i.e. on 27.09.2004, he also recorded the information received from the level of the Deputy Inspector General of Police about the Special Operation Group having been deputed and their activities regarding investigation of the said crime.
It may be noticed that on 27.09.2004 itself information was received at about 12:00 noon about the discovery of an unknown body at Police Station- Sadar Bazar, District-Meerut. The said recovery was proved by Rahul Kumar Sharma, Sub-Inspector of Police, PW-10 who prepared the inquest report indicating the age of the deceased about 15 years. The inquest report has not been made part of the paper book of the High Court but is exhibited as document number Ka-14. We have perused it from the original records and it is worth mentioning that the dress found on the body of the deceased as mentioned therein is a black pant and a maroon under-wear. This fact is further corroborated by the statement of PW-12 Kunwar Chandrabhan Singh, Senior Sub-Inspector of Police who had gone with R.K. Sharma and had recovered the body infront of him and got the inquest report prepared through R.K. Sharma. The recovery memo is exhibited as Ka-27. What is noticeable in the statement of PW-12 is that in his cross-examination on behalf of the accused Bhuwan stated that apart from the dead body, no other material nearby was recovered including any weapon of assault. He reaffirmed that apart from what was recovered, no other incriminating material about the dead body was found nearby. This fact is necessary to be kept in mind as the argument of the learned counsel for the appellant is that the recovery of the other items which is said to have been made at the pointing of the appellant Bhuwan the next day is a planted recovery. We will deal with it later on.
We may now come back to that link of the circumstances which led to the tracking of the accused Bhuwan and the consequential involvement of the other accused Gopal Narain. In his statement, PW-9 Ajay Kumar Chauhan, the Sub-Inspector of Police, Special Operation Group has stated that on 24th and 25th September, 2004 he was informed by his Incharge that the Senior Superintendent of Police, Meerut has constituted a Special Operation Group team and according to the orders received from the Deputy General Inspector of Police, the mobile numbers that have been located, permission has been granted to tap the said telephones. Accordingly on 26.09.2004 and 27.09.2004 he tapped the two telephone numbers through his Telephone No. 9897123838. PW-9 has further stated that he himself heard the exchange of talks on these two telephone numbers about the transaction of ransom in relation to deceased Anmol and he had himself heard it, which information was secretly passed on to the higher officials. He also got his statement recorded with the Investigating Officer on 26.10.2004. This fact of recording of the statement of Ajay Kumar Chauhan, Sub-Inspector who was tapping the phone is also corroborated by the statement of PW-6 Vijay Singh who is the first Investigating Officer who while recording the case diary on 27th September, 2004 had recorded the entire progress of granting of permission by the DIG to the Special Operation Group team and the activities thereafter including tapping.
The aforesaid circumstances of the investigation including the tapping of the telephones by PW-9 being corroborated with the recovery of the telephone numbers on mobile set from Bhuwan was confimred by the First Investigating Officer PW-6 in his testimony that was recorded on 10th October, 2005 before the Court.
One noticeable fact on which the learned counsel for the appellant has laid emphasis is that PW-6 has clearly indicated that he did not collect the messages that were received on the mobile phone of Babu Ram about ransom on his Telephone No. 9412150776. He also did not collect the transcription of the messages and he did not have personal knowledge of the nature of the messages. But he denied any suggestion by the accused that no message had been received. On the other hand, PW-9 who is the police official of SOG Group who had tappped the telephone, had categorically affirmed having heard the talks in relation to the ransom in exchange for the deceased Anmol. He also confirmed the mobile connection numbers but he did indicate that the voice recording system was defective, as a result whereof, the voice could not be recorded. He however said that he does not exactly remember the duration of the talks but it was very precise. As already noted above, these facts were brought to the notice of the Investigating Officer on 27th itself which is the same day on which the dead body was recovered.
After having come across the recovery of the dead body, the same was sent for post mortem where PW-1 was also called by the police to identify the body. It is correct that the post mortem report which was prepared by Dr. N. Nathani PW-3 was proved by him but on the issue of identification of a decomposed body, the doctor categorically stated that it was in an advance stage of decomposition. The body had been received by him in a sealed state with one pant and one under-wear together with strings (nara) and some pieces of grass which were handed over to the police for examination. In the ordinary course as per his testimony, it was difficult to identify such a decomposed body. On the issue of age, he has stated that it was between 12 to 14 years. Learned counsel on the issue of age wanted to point out the variations as according to the date of birth as has been disclosed by PW-1, the boy was a little above 10 years of age on the date of the incident. The opinion of the witnesses to the Panchayatnama that the age of the body found was about 15 years gives a slight variation, but it is of no relevance as an inquest report is only for the purpose of determining as to whether the death was a homicide, un-natural death or what could be the probable cause of death. So far as the age and anthropometry of the body is concerned, the post mortem report shall prevail subject to corroboration by oral evidence.
In the circumstances, we do not find any substance in the argument of the learned counsel for the appellant on the issue of discrepancy of age of the body so found.
PW-1 arrived at the mortuary and he stated that the body was covered with a cloth that was removed and then shown to him. It is here that one of the main arguments advanced on behalf of the appellants has to be dealt with regarding the identification of the body of the deceased Anmol. The status of the decomposition of the body is clearly established on record. In his statement, PW-1 on cross-examination categorically stated that he identified the body on the strength of the under-wear that was on the body of the deceased. What we find is that the inquest report mentions a maroon coloured under-wear and a black pant. The arrival of the body with a pant and an under-wear is also indicated in the post mortem report and the statement of the PW-10 Rahul Kumar Sharma who has proved the inquest report and the recovery of the body clearly indicates that the body had been sent sealed that was received in the mortuary for post mortem on 27.09.2004. The body had been received in a sealed state is corroborated by the statement of PW-3, the doctor who carried out the post mortem. It is urged by the learned counsel for the appellant that a green pant was shown in the missing report which does not match with the colour of the pant. The fact remains that the pant was recovered but it was along with a decomposed body that had been lying for about a week. The colour of the pant having a variation and the description in the missing report is of no consequence as from the cross-examination of PW-1, as well as, the other witnesses of recovery including Rahul Kumar Sharma, Chandrabhan Singh and PW-2 Anil Kumar Gupta and the other witnesses, we do not find any attempt on the part of the defence to cross-examine or confront the witnesses with any question relating to the colour of the pant to disbelieve the recovery of the same. The defence did not even questions the shape and size of the pant that was found on the body of the deceased and consequently it can be inferred that pant was structured relating to the size of the body of the deceased. More so, the availability of the under-wear in the inquest report, in the post mortem report and its description in the statement of PW-12 who has proved the recovery clearly indicates the existence of a maroon coloured under-wear being worn by the deceased which fact was made the basis of identification by PW-1. The defence did not cross-examine PW-1 any further except for the fact that PW-1 had recognized the body on the strength of the under-wear.
Learned counsel for the appellant relying on the decisions referred to hereinabove submits that mere identification through clothes, of a decomposed body, cannot establish the fact that the dead body was that of the deceased. As noted above, we do not find any error in the approximate age of the body of the deceased as also the mode for identification of the body. But it is correct that such identification should be fortified by further corroborative evidence and a single circumstance of the decomposed body being identified on the basis of the clothes worn by the deceased may by itself be not a clinching evidence even though it is quite normal to assume that the father was aware of the regular clothes of his son including his underwear.
The body that was identified was not reported to be of any other child who may have been murdered in the locality. No such information from either of the police stations was solicited by the defence to create a doubt that the body may have been of a different child that could be possibly connected with any other crime or offence that may have occurred during the same period when the incident was reported and the body was recovered. No cross-examination with the police witnesses or the doctor or any other formal witness was attempted by the defence to create any doubt about the identity of the body. It is true that the body was decomposed to a great extent but the father of the victim in his testimony remained firm in his version of having identified the body with the aid of the underwear of the deceased, and the defence could not dislodge his testimony in the cross examination which was both lengthy and detailed.
We therefore, now move on to the recovery of other items that was made with the help of the accused Bhuwan on his being arrested. From the recovery memos, we proceed first with the fact that accused Bhuwan alias Sonu came to be arrested on 28.09.2004 and was sent to the lock up. The memo of arrest which is about 11:30 am has been exhibited as Exhibit Ka-7 and a mobile phone with Sim No. 9837340402 that was recovered from accused Bhuwan who was arrested from a road-ways bus stand has been shown in the recovery memo. It is alleged that the said mobile phone recovered was utilized along with sim cards for communicating with accused Gopal Narain through whom messages had been communicated on the mobile phone of PW-5 Babu Singh on his number 9412150776. The mobile phone was sealed on the spot.
On 28th September 2004, PW-2 Anil Kumar Gupta accompanied the police along with the accused Sonu who according to the prosecution proceeded to point out the place where he had dumped the body as well as had thrown away certain incriminating items. This is stated to have been carried out at about 2:20 pm on 28th September, 2004. The recovery memo which is exhibited as Ka-3 records that on the pointing of the accused Bhuwan, they arrived at the place near the Wheeler Club where he got the vehicle parked whereafter on the right hand side of the road, he pointed out towards the burnt pieces of the bedroll and also admitted of them being pieces of the same bedroll which was utilized by him to wrap up the dead body of the deceased that was carried on the scooter and dumped near to the place from where the dead body had been recovered. He then went about twenty steps further and from a wet place, blood stains and stained soil was recovered which had the smell of a dead body in it. Another fifteen steps forward, he recovered the incriminating material i.e. plastic bags, the strings, a tape that was hidden in a bush. This activity cultimated at about 03:10 pm. Learned counsel for the appellant Sri Sahay has vehemently urged on this issue that the recovery of such incriminating material contradicts the statement of PW-12, Sub-Inspector of Police Chandrabhan Singh, who categorically stated that he had not found any incriminating material nearby when the dead body was recovered a day earlier. On a comparison of the statement of Chandrabhan Singh with that of the recovery memo Exhibit Ka-3, it is clear that Exhibit Ka-3 has been proved by PW-2 who is an independent witness and by PW-11, the Sub-Inspector of Police who carried out the investigation further. It is correct that Chandrabhan Singh in his statement did say that he did not find any incriminating material nearby when the dead body was recovered on 27.09.2004. But the recovery of the incriminating material on the very next day from the same place is from a considerable distance away from the bushes where it was hidden. It is quite possible that at the time of the recovery of the dead body, the police of Police Station- Sadar was not investigating the same in relation to the present crime which was registered at Police Station-Nauchandi. It is after the dead body was identified that the investigation was again set into motion upon the arrest of the accused. The possibility of the incriminating material therefore not being found on the first day when the body was recovered cannot be combined as such so as to disbelieve the recovery on the next day.
It has been urged on behalf of the learned counsel for the appellant that discovery and recovery are distinct features. So far as the statement and pointing out of the accused is concerned, the prosecution has failed to prove the recovery to be connected to the commission of the offence in terms of Section 27 of the Indian Evidence Act. To further emphasize the same, it has been urged by the learned counsel for the appellant that there is no forensic proof to establish that the incriminating items recovered in any way had a connection with the commission of the alleged offence stated to be involving the appellant. Learned counsel is correct in his submission that only that part of the statement of the accused can be relevant in order to locate the place from where the incriminating items are said to have been recovered and therefore the same by itself cannot be proof of the commission of offence. The circumstances of such recovery is therefore to be established by further corroborating evidence.
At this stage, we may again refer to the statement of PW-4 Abhay Kumar Singh who is stated to have cited the accused Bhuwan on his scooter with a bedroll loaded infront of him on 20th September, 2014. This timing of having seen Bhuwan with a bedroll on his scooter has to be read with the statement of the doctor PW-3 who has indicated from an examination of the body of the deceased and its state of decomposition to be about a week old. The recovery of the body is on 27th September 2004 and it is on 19th September, 2004 that Anmol went missing. In our opinion this timing clearly matches with the description given by PW-4 and raises a strong presumption about the body being probably carried on 20th September, 2004 by accused Bhuwan. There is no attempt on the part of the said accused to lead any evidence to contradict this link in the chain of events of riding a scooter which is the same scooter that was recovered from his residence on 28th September, 2004 in the presence of an independent witness PW-2. However, the same being a circumstance, no doubt has to be corroborated by futher circumstances to demonstrate the involvement of the appellant in the commission of the offence.
We therefore now proceed to the next link of recovery which is in continuance on the same day i.e. 28th September, 2004. This recovery is of the blue colour bicycle on the pointing of the deceased Bhuwan at about 4:10 pm. The recovery memo is Exhibit Ka-4 which records that this recovery has been made in the presence of PW-2 of a blue coloured bicycle of ranger model. The recovered bicycle was identified by PW-2 the same bicycle on which he had always seen Anmol. The number of the bicycle was noted as EE065058. The recovery was made from beneath the bridge near Rangoli Mandap after crossing on the other side of the drain from amongst garbage dumped there. This recovery of the bicycle has been seriously contested by the learned counsel for the appellant contending that the missing report mentions the model and make of the bicycle as Hero Ranger whereas in the statement of PW-11, the second Investigating Officer the make of the bicycle is shown as Atlas. This is sought to be matched with the statement of PW-2 in whose presence the bicycle was recovered. It is urged that PW-2 has identified Atlas bicycle which is recorded in his statement on 18.08.2005 and then again on 30.08.2005. To substantiate this argument, it is urged that if the cycle which is recovered is of Atlas make then it is not the same bicycle as the missing report clearly mentions a different make of bicycle that is Hero.
To understand this argument on behalf of the appellant there are two facts about the bicycle which deserve to be clarified. Firstly that the colour of the bicycle has not varied and it remains blue either in the missing report or in the statement of the witnesses referred to above. There is, therefore no discrepancy in the colour of the bicycle. Secondly, the bicycle has been described as a Ranger Model and a sports model in the statement of these witnesses. This fact also reinforces the model of the bicycle. Firstly, PW-2 and PW-1 have nowhere been questioned by the defence about the wrong make of the bicycle having been mentioned in the missing report. The defence may not have found it suitable to raise this question but the fact remains that the blue coloured bicycle was identified as that of the deceased Anmol who was seen on a blue bicycle while departing from his house and also by PW-4 who had seen him in the company of Bhuwan on 19th September, 2004.
Learned counsel for the appellant also submitted that the place of recovery indicates discrepancy in the statement where at one place the witness has faltered in stating that it was not found from beneath the bridge where it had been dumped. On a close perusal of the statement of PW-2 and matching it with the memo of recovery and the statement of PW-11 the Investigating Officer who has proved it, it is evident that the cycle was thrown and dumped near the bridge adjacent to Rangoli Mandap. The only variation is as to whether it was beneath the bridge or across the drain where it is stated to have been found. PW-2 and PW-11 are not at variance on this issue. Any minor discrepancy in the statement does not alter the core of the recovery of the item from the place in question. We, therefore, find that this link of the blue bicycle of the deceased has been proved even though during its identification in Court, the recovery slips on the bicycle were missing. It is quite possible that the bicycle may have been kept in the Malkhana resulting in loss of the slip but the same by itself cannot be the basis much less a reasonable basis to disbelieve the statement and ocular testimony of PW-2 and PW-11 who have proved the recovery memo as indicated above.
Then follows the last chain of the place of the incident that was visited by the police in the company of the accused Bhuwan at about 4:35 pm on the same day. This is the house of the accused Bhuwan that was searched and an alleged weapon of offence that is the hammer, the blood stains on the wall and the floor of the room where the offence of murder as alleged is said to have been committed, were all collected and the recovery memo was prepared and is Exhibit Ka-5. Downstairs in the courtyard of the same premises was recovered the sky blue colour scooter cover bearing Registration No. DNK 9713 of the make Bajaj Chetak which was the same scooter that was stated to have been seen by PW-4 as per his ocular testimony.
The aforesaid recovery process having been completed and with the information of the call details, the police then proceeded towards Ghaziabad alongwith the accused Bhuwan and from premises 60A Paarshnath Colony Mohanagar arrested the other co-accused Gopal Narain at about 6:10 pm. He disclosed himself to be belonging to district Muzaffarpur in Bihar. He is also stated to be then a student of MBA. On search one mobile i.e. Motorolla telephone set of white colour with sim no. 9810871929 was recovered. From the left pocket two sims were recovered, namely, 9810560234 and 9868379684. The mobile set was in running order and it was switched off and then along with two other sims was sealed and taken away.
The recovery of a hammer, the blood stains, the incriminating material from the site where the body had been dumped, the blue coloured bicycle and the mobiles are all in conformity with Section 27 of the Evidence Act. PW-2 is an independent witness to the recovery on the pointing out of accused Bhuwan. He has been criticized to be an interested witness but no evidence was led by the defence to disbelieve the said witness. He, being a neighbour, does not stand disqualified to testify as a witness to the recovery inasmuch as PW-2 on his cross-examination by the defence remained unwaivering and stuck to his original version. There was nothing to discredit his disclosure before the Court. The absence of independent witnesses at the time of the recovery of the mobiles from the accused is not such a lapse in investigation that may loosen the grip of the evidence collected, the connectivity whereof was corroborated by the testimony of the other witnesses. The version of the police witnesses cannot be discarded merely because they are police personnel and therefore their testimony is unbelievable. To the contrary the recovery came to be connected with the exchange of communication as discussed above that led to the unravelling of the commission of the crime by the accused. That part of the information given by the accused that led to the recovery therefore became admissible and can be safely read against the accused as it remained unrebutted.
This brings us to the second part of the argument and the story relating to the demand of ransom and the recovery of electronic equipments from Gopal Narain in order to find out the link and complicity of the two accused. The call detail records had already been obtained on 26th and 27th September, 2004 and the special SOG team constiuted by the Senior Superintendent of Police had set into motion to track the accused through these mobile numbers.
In this regard, we find from the original record that this part of the evidence was sought to be proved by the prosecution by moving an application under Section 311 Cr.P.C. This application dated 3rd March, 2006 that was moved before the trial court is extracted hereinunder:-
"Sir, It is respectfully submitted that the above noted case is fixed for prosecution evidence on 06.03.2006. The prosecution wants to adduce some more evidence regarding the electronic surveillance, which is necessary for fair trial and proper adjudication. The circumstances related to the case are as under:-
1. The two messages (SMS) were received on the cellular No. 9412150776 of Babu Singh who happens to be the brother-in-law of the complainant Awashesh Chauhan from cellular No's 9810610049 & 9810871929 respectively. The SMS regarding demand of ransom were received on 24.09.2004 at 17:9:35 hrs & on 25.09.2004 at 11:35:19 hrs.
2. The IMEI number of handset of cellular No. 9810871929 was ascertained from the cellular company which was found out to be 352294001882220. Now it was necessary to ascertain as to any other sim card is being used by the same hand set, so the help of the cellular company was taken. It was revealed as a result that two sim cards of No's 98100610049 & 9810560234 are also being used by the same hand set.
3. The call details of the above two cell No's 98100610049 & 9810560234 revealed that both these numbers were in constant touch of cellular No. 9837340402. Two more hand sets of IMEI numbers 322546001252540 & 352294001882220 were found to use these sim cards. It came out from it that the user of two cell No's 98100610049 & 9810560234 is one and the same person who is in constant touch with cell No. 9837340402 of Meerut zone.
4. Now the customer's ID of idea cellular No. 9837340402 was ascertained which revealed the owner's name as Bhuwan Kumar s/o Narender Kumar r/o 341/3 Shashtri Nagar, Meerut. On the perusal of the call details of the above number another suspected No. 9837093976 came into light.
5. Consequently on the request of S.S.P., Meerut Inspector General of Police consented for parallel hearing of the talks of the two Idea cellular No's 9837340402 & 9837093976 at the phone No. 9897123838 of SI Ajay Kumar Chauhan of Special Operations Group (SOG), Meerut.
6. The following documents are to be produced by the prosecution which are necessary for fair trial and proper adjudication of the case. The documents are as follows:-
(1) The letter sent to Inspector General of Police, Meerut for his sanction to hear the talks of Phone no's 9837340402 & 9837093976.
(2) The order of Inspector General of Police, Meerut in approval of the same.
(3) The letter sent to The Home Minister, UP for his sanction to hear the talks of Phone no's 9837340402 & 9837093976.
(4) The order of Home Minister, UP in approval of the same.
(5) The copy of the letter, in which the details of the compliance and results of the above orders of hearing have been sent to the state administration.
7. In light of the above discussion the prosecution wants to produce the following witnesses:-
(1) The concerned record keeper at the S.S.P. Office.
(2) SI Ajay Kumar Chauhan (P.W.9).
(3) The Nodal officer / Manager, Idea, Meerut.
(4) The Nodal officer / Manager, Airtel, Delhi.
(8) The above mentioned witnesses may kindly be allowed to be produced for prosecution in light of the powers of the Court under Section 311 Cr.P.C. The case law in support of this fact is as follows:-
2006 CrLJ 711 (All) CHHOTEY BADRI PRASAD V/S STATE OF UP & ANOTHER Criminal P.C. (2 of 1974), S. 311 - Evidence Act (1 of 1872), S. 165 - Re-examination of witnesses - Court has unrestricted power to re-examine or to recall any witness at any stage for just decision of case.
If Court finds any fact or evidence necessary for just decision of case, the Court can summon or re-examine any witness at any stage of case before judgment is delivered. Even if judgment is reserved and while writing judgment Court finds that any material point is omitted consideration of which is necessary, therefore, the paper is required to prove, the Court can pass order for examination or re-examination of witnesses. Thus there is no restriction on power of Court. (Para 8) In the instant case, the trial was proceeding under S. 302, IPC, which is heinous offence. The information was said to have been given by Hospital to police station about death of person, who was injured and later on died in hospital. The information of death was for the first time given by Hospital to police station. If while hearing argument the Sessions Judge finds that proof of this paper was necessary and there were certain other points on which statement of investigation Officer and constable was relevant and necessary, the Court has the duty to exercise power as has been conferred by S. 311 of Criminal P.C. And S. 165 conferred by Evidence Act. It cannot be said to fill up lacunae of the prosecution since evidence was there from the very beginning. What is required is that the evidence, which was already there, should be brought on record and by re-examining the Investigating Officer and examining the constable the evidence can be read in evidence in accordance with law. Therefore, if the Sessions Judge passed the order for re-examination and examination of the witnesses, it is not to fill up lacunae as to cause injustice to accused but it is regarding such evidence, on the basis of which Court will arrive at a just conclusion in case.
1990 CrLJ 111 (All) RAM ACHAL V/S STATE OF UP (A) Criminal P.C. (1974), Ss. 161, 231 - Production of witnesses - Statement of witness not recorded under S. 161 - Prosecution obtaining permission to produce such witness - It is not illegal - Accused cannot be said to have been taken by surprise.
The Investigating Officer under S. 161 is interrogate any person supposed to be acquainted with the facts and circumstances of the case under investigation and is to reduce the statement made to him in writing. But under S. 231, CrPC the Court in the course of trial of a session's case is 'to take all such evidence as may be produced in support of the prosecution'. These words of S. 231, CrPC do not confine production of witnesses by the prosecution side only up to those persons whose statements have been recorded under S. 161, CrPC. On the other hand the words all such evidence clearly signify that the right of the prosecution extends to the production of such persons as its witnesses during the course of the trial which have not been named in the charge sheet or in the calendar or whose statements have not been recorded under S. 161 CrPc. Where the statement of a witness is not recorded under S. 161 but the prosecution with the prior permission of Court produces such witness, the accused cannot be said to have been taken by surprise. (Para 19) 1999(39) ACC 665 (SC) RAJ DEO SHARMA V/S STATE OF BIHAR It is, therefore, prayed that in the light of the above mentioned case law and in interest of justice and proper adjudication the above mentioned four witnesses may kindly be allowed to be produced for prosecution by invoking the powers under Section 311 CrPC.
For State, Dated:-03.03.2006 (Krishan Pahal) ADGC Criminal, Meerut An objection was raised to the said application by the accused which is also on record served on the learned ADGC Criminal on 13th March, 2006. After hearing the learned counsel and considering the objections, the Court allowed the said application on 13th March, 2006. Consequently the entire evidence in this regard was adduced by the prosecution. This was in addition to the evidence of PW-5 Babu Singh who had partly turned hostile and had stated that he did not know the accused Gopal Narain but he knew accused Bhuwan who was his relative.
Here it is pertinent to note that this case was worked out through electronic surveillance as messages i.e. SMS were received on the cellular No. 9412150776 of PW 5 Babu Singh who happens to be the brother-in-law of the complainant informant Awashesh Chauhan from cellular No's 9810610049 & 9810871929 respectively. The SMS regarding demand of ransom were received on 24.09.2004 at 17:9:35 hrs & on 25.09.2004 at 11:35:19 hrs. The IMEI number of handset of cellular No. 9810871929 was ascertained from the cellular company which was found out to be 352294001882220. Now it was necessary to ascertain as to any other sim card is being used by the same hand set, so the help of the cellular company was taken. It was revealed as a result that two sim cards of No's 98100610049 & 9810560234 are also being used by the same hand set. The call details of the above two cell No's 98100610049 & 9810560234 revealed that both these numbers were in constant touch of cellular No. 9837340402. Two more hand sets of IMEI numbers 322546001252540 & 352294001882220 were found to use these sim cards. It came out from it that the user of two cell No's 9810610049 & 9810560234 is one and the same person who is in constant touch with cell No. 9837340402 of Meerut zone. The customer's ID of idea cellular No. 9837340402 was ascertained which revealed the onwer's name as Bhuwan Kumar s/o Narendra Kumar r/o 341/3 Shashtri Nagar, Meerut. On the perusal of the call details of the above number another suspected No. 9837093976 came into light. Consequently on the request of S.S.P., Meerut Inspector General of Police consented for parallel hearing of the talks of the two idea cellular No's 9837340402 & 9837093976 at the phone No. 9897123838 of SI Ajay Chauhan of Special Operations Group (SOG), Meerut.
PW-5 is a witness of fact and even if he was declared hostile, his statement still is of substance as he continues to prove the reading of the messages by his brother-in-law on 24th And 25th September 2004. He also refers to Mobile Nos. 9810871929 and 9810610049 having been informed by him to the police.
PW-6 Vijay Singh is the Investigating Officer who has proved the recovery of the mobiles and the sim cards including the arrest memo of accused Gopal Narain and the exhibited sim cards of Bhuwan. The sim card of Dolphin Company, Airtel and the mobile sets have been proved. The most important link is the statement of PW-9 Ajay Kumar Chauhan who is said to have had heard the talks of the two accused persons about kidnapping and ransom that ultimately culiminated in the murder of deceased Anmol.
He is an all important witness of fact who has worked out the case by electronic surveillance and has proved the fact that SMS were received on the cellular No. 9412150776 of Babu Singh (PW-5) from cellular No's 9810610049 & 9810871929 respectively. The SMS regarding demand of ransom were received on 24.09.2004 at 17:9:35 hrs & on 25.09.2004 at 11:35:19 hrs. The IMEI number of handset of cellular No. 9810871929 was ascertained from the cellular company which was found out to be 352294001882220. Now it was necessary to ascertain as to any other sim card is being used by the same hand set, so the help of the celluar company was taken. It was revealed as a result that two sim cards of No's 98100610049 & 9810560234 are also being used by the same hand set. The call details of the above two cell No's 98100610049 & 987340402. It came out from it that the user of two cell No's 9810610049 & 9810560234 is one and the same person who is in constant touch with cell No. 9837340402 of Meerut zone. Now the customer's ID of Idea Cellular No. 9837340402 was ascertained which revealed the owner's name as Bhuwan Kumar s/o Narender Kumar r/o 341/3 Shashtri Nagar, Meerut. On the perusal of the call details of the above number another suspected No. 9837093976 came into light. Consequently on the request of S.S.P., Meerut Inspector General of Police consented for parallel hearing of the talks of the two Idea cellular No's 9837340402 & 9837093976 at his phone No. 9897123838 from which the complicity of accused Gopal Narayana and Bhuwan in the murder and demand of ransom is reflected at page 1 line 7 as:-
^^ ----- blh Øe essa ,l0,l0ih0 esjB rFkk iqfyl egkfujh{kd egksn; ds vkns'kkuqlkj blh ekeys ds izdk'k esa vk, eksckbZy uEcj 9837340402 rFkk 9837093976 dks esjs eksckbZy ua0 9897123838 ij lekukUrj ykbZu ij lquus dh vuqefr lEcfU/kr dEiuh ls miyC/k djkbZ gS] fnukad 26-09-04 o 27-09-04 dks mijksDr uEcj }kjk vueksy ds vigj.k ds ckn fQjkSrh gsrq Hksts x;s ,l0,e0,l0 ds lEcU/k esa okrkZ dh x;h tks fd eSaus Lo;a lquh] ;g tkudkjh xksiuh; :i ls vf/kdkfj;ksa dks nh rFkk vfHk;ksx ds foospd dks crkbZAfnukad 26-10-04 dks bl ekeys ls lEcfU/kr vfHk;ksx ds foospd dks eSaus viuk c;ku ntZ djk;kA mijksDr nksuksa eksckbZy ij gqbZ ckrksa dks eSaus vkbZ0vks0 dks voxr djk fn;k FkkA---------^^ It is pertinent to note that PW-9 has proved the talks of accused persons which revealed that they were involved in the kidnapping and murder of deceased Anmol.
The aforesaid circumstances right from the departure of Anmol having been seen in the company of Bhuwan on 19.09.2004 by PW-5 Babu Singh, the bedroll bundle being carried by Bhuwan on his sky blue scooter on 20.09.2014 and seen by PW-4 coupled with the recoveries referred to above are circumstances of the same chain which indicate that the deceased appears to have been murdered about the same time which fact is corroborated by the medical evidence on the record.
There are two other doubts that have been put forth by the appellant's counsel namely, the post mortem report indicates incised wounds and there is no recovery of any sharp edged weapon. The cause of death, therefore, cannot be connected with that of the use of hammer which is stated to be the weapon recovered. No one saw the accused Bhuwan or the other accused having killed the boy. This doubt is further fortified by the interested witnesses Abhay Kumar Singh, the uncle of the deceased and PW-4 who in his statement for reasons best known to him narrated that he was in constant touch with the police from 21.09.2004 to 29.09.2004 with regard to the search of his nephew. Learned counsel submits that this statement was false, inasmuch as, the dead body had already been recovered on 27.09.2004 and therefore this witness being an interested witness should be disbelieved and his statement should be discarded. It is he who has built the story of having seen the accused Bhuwan carrying a bedroll of Khakhi colour on his sky blue scooter.
The statement of PW-4 to a limited extent may be an embellishment but on cross-examination he has nowhere faltered in his statement about having seen Bhuwan on his scooter on 20th September, 2004. Thus there is no occasion to discard him as a totally unreliable witness.
Coming to the instrument of weapon, it is no doubt true that the post mortem report gives a description of an incised wound around the neck. However, the body being in a decomposed state, the cause of death may create a doubt as the manner of assault and the weapon of assault has not been witnessed by anyone. This is a clear case of circumstantial evidence. The proximity and relationship of the accused Bhuwan with that of the deceased and his family is clearly established. The circumstances indicating the departure of the deceased in the company of the appellant Bhuwan is corroborated even by the statement of PW-5 who has partly turned hostile. It is settled law that the question of entirely disregarding the statement of a hostile witness does not arise if the core story of the prosecution is substantiated with corroborating material and from a reading of the entire statement. We are, therefore not prepared to discard the entire statement of PW-5. We stand supported on this issue by the pronouncement of the Apex Court in the case of Govindraju alias Govinda Vs. State by Srirampuram P.S. & Another 2012 (4) SCC 722 and Veer Singh Vs. State of U.P. 2014 (2) SCC455.
There is however the most cogent argument which has to be tested in this case namely, the case being one of circumstantial evidence, the motive relating to ransom and kidnapping having not been established the conclusion awarded by the court below is liable to be set aside. We have noted and extracted the evidence on this score as has also been done by the trial court. The tapping of the phone and the recovery of the telephones are primary evidence that have been corroborated by the ocular testimony of PW-6, PW-9 and PW-11 coupled with the statement of PW-1 and PW-2. There does not appear to be a motive of false implication of the accused, inasmuch as, neither the missing report nor the written report did mention the word ransom nor the accused were nominated therein. The written report however mentions kidnapping even though the call for ransom has not been mentioned. Learned counsel for the appellant urged that if PW-1 had received a telephone call on his landline number on 20th September 2004, then there was no reason to have not mentioned this fact in the written report that was submitted on 21.09.2004. From the facts that have been brought on record, it is quite possible that keeping in view the proximity of relationship with the accused Bhuwan, PW-1 may have thought it more prudent to wait for any further firm information about any such ransom. This fact stood fortified with the intervention of the messages and calls disclosed by PW-5 to have been received on 25th and 26th September, 2004. Soon thereafter permission was sought to tap the phones of the accused that disclosed their conversation pointing towards their complicity in the entire episode. This information led to the arrest of the accused and the recovery that was connected with the recovery of the dead body and it's identification.
The primary and basic facts that emerge from the investigation, fortified by the telephone numbers and the call detail records coupled with the tapped conversation heard by PW-9 and testified in Court, indicate a clear connectivity between the two accused and it is on the basis of the above that the accused were tracked and ultimately arrested. The recovery particularly of the bicycle further strengthens the said probability. The prosecution in such terse circumstances was able to work out the case after a prolonged and substantial investigation and monitoring. The material evidence collected during the course of investigation corroborates the oral testimony of the witnesses as discussed above. This burden of assembling the evidence step by step, a clear pointer towards the involvement and probable perpetration of the crime by the accused was successfully discharged by the prosecution. As such the onus shifted on the accused to come out with a plausible defence. No evidence has been led by the accused Bhuwan to doubt his presence during the period between the missing report and the recovery of the dead body. No alibi has been set up. He having accompanied the victim on 19.09.2004, which is the last seen evidence has nowhere been given a dent during the examination of the witnesses, particularly PW-4 and PW-5. Thus cumulatively the entire evidence does not create a doubt much less a reasonable doubt about the prosecution story which has from the circumstances established it's case beyond reasonable doubt.
However a doubt which remains to be tested, as suggested by the learned counsel that if the boy had been already killed either on 19th or 20th September, 2004 which is the approximate date as per the post mortem report as well, then there was no occasion for the accused to have sent messages for ransom after having killed the boy on 24th and 25th May. This doubt, therefore, has to be examined as the probability of the motive surviving after the kidnapped boy had been killed may essentially not stand to reason.
For this, the probability of the manner in which the mind of the perpetrators would have worked needs a little reflection. Both the accused appear to be on their maiden adventure to prove themselves appear innocent. Bhuwan appears to have attempted to screen out the evidence either on having failed to achieve his target of ransom or out of fear and may have decided to end the episode before any further complications. His conversation with the co-accused may also have been to try and get something out even after disposing off the body. The fact remains that he did accompany the deceased as testified by PW-4 on 19.09.2004. It was for both the accused to explain their relationship with each other once their connectivity through mobile phones and simcards that were recovered stands established. The prosecution did tap the mobile phones and brought forth the oral testimony of PW-9 to establish the communication between the two. The defence set up by the accused makes no attempt to dislodge the said facts by leading any evidence. In our opinion the failure to discharge this onus by the accused confirms the doubt about their complicity in trying to extract ransom after having disposed off the body. There could be no other purpose to kidnap the victim, and therefore it was for the defence to bring home such evidence that the accused Bhuwan was under no compulsion to dispose off the victim. The circumstances of the victim having been hammered to silence for any resistance from him may also have been one of the causes when the boy may have been detained inside the room of Bhuwan from where blood stains were found. Having discovered that the boy had died, Bhuwan may have thought it proper to dispose off the body in the manner as sought to be established from the circumstances explained by the prosecution and discussed above. The possible ways that may have been adopted was for the defence to explain in order to remove all doubts which attempt has not been made. The witholding of such information does attract the principles of Section 106 of the Indian Evidence Act 1872 together with the overall conduct of Bhuwan, whose movements were noticed by the witnesses thereby attracting the principles of Section 8 of the 1872 Act. We may mention that no attempt was made by the accused to explain the adverse circumstances as noted having above by leading any evidence reply to the question put forth under Section 313 Cr.P.C.
The entire gamut of facts as discussed above convince us to believe the circumstances that have been set forth whereby the link of the missing of the victim, he having been accompanied by the accused Bhuwan and having died is established. The accused Bhuwan has been unable to explain and rebut the aforesaid circumstances after the prosecution has proved the recovery and has also brought home the motive for the commission of such offence through the mobile communication and the call detail records, as well as, the tapping of the conversation between the two. These circumstances, therefore, strongly lead to the conclusion that the victim was in the company of Bhuwan and was last seen with him on 19th September, 2004. The duration of decomposition of the body of the victim also matches with the said period and, we are therefore, of the considered opinion that the murder of the victim Anmol was committed by Bhuwan who then threw the body from where it was recovered.
Coming to the complicity part and the attraction of the provisions of Section 34 IPC, it is evident that after the arrest of the Bhuwan and the recovery of the mobile from him was on account of the messages received, and the conversation from the telephone numbers of the accused Bhuwan as well as Gopal Narain. The messages had been sent from Ghaziabad from mobile phone and the sim cards utilized by Gopal Narain as enumerated above. The said facts were brought before the Court and were testified by the witnesses of the said facts. Thus, the association of Gopal Narain with Bhuwan is also well established in the same period during which the crime was committed and the body was recovered. It was on the basis of such telephonic talks and conversation that the police was able to track down Gopal Narain as well, after having arrested Bhuwan. The recovery of the other items apart from the dead body on the next day cannot be stated to be a planted recovery as the recoveries have been co-related with the items utilized for the commission of the offence and the disposal of the body thereafter.
The said facts having been proved from the circumstances is also evident from the primary facts already brought before the Court and also from the inferential facts as discussed hereinabove. The case even though of circumstantial evidence, we find all the links to be available to complete the chain of events so as to conclude that Bhuwan had committed the murder with the intention of realizing ransom and the complicity of Gopal Narain the other co-accused also stands established with the electronic evidence corroborated by the oral testimony on record.
Last but not the least comes the potent argument led by Sri Satish Trivedi, the learned Senior Counsel appearing for the accused Gopal Narain that the entire electronic evidence which was made the basis for conviction including the call detail records was inadmissible in terms of Section 65-B of the Indian Evidence Act, 1872 for which reliance has been placed on the decision referred to hereinabove.
We may point out that even in the three judges decision in the case of Anwar P.V. (supra), the Supreme Court in paragraph nos. 21 and 22 of the said judgmment did overrule the two judges decision in the case of Navjot Sandhu (supra) on this issue but in paragraph no. 24 the said decision clarified that if an electronic record is used as primary evidence under Section 62 of the Evidence Act, the same would be admissible without compliance of the conditions under Section 65-B of the 1872 Act. Relying on the said ratio, the two judges of the Apex Court in the case of Shafiq Ahmad (supra) therefore after noticing the aforesaid judgment came to the conclusion that a party who is not in possession of a device from which the document is produced, such party cannot be required to produce a certificate under Section 65-B(4) of the 1872 Act. The said procedure can be relaxed by the Court wherever the interest of justice so demands. The Court further observed that if this is not permitted, then it will be denial of justice to the person who is in possession of authentic evidence but on account of the manner of proving any document, the same if kept out of consideration, would end up in failure of justice.
In the present case, the mobile phone of PW-5 led to the information of messages that were received on 25th and 26th September, 2004 on the basis whereof permission was sought to tap the telephone of both the accused. PW-9 thereafter was authorized to do so and in his deposition he has clarified the said position. This is primary evidence and the mobile phones were very much in custody. The defence did not choose to contest the same which is also evident from the fact that in his cross-examination PW-9 did not falter, and similarly, PW-5 also did not falter in mentioning the mobile numbers from which he had received the messages. Apart from this, the communication with the police authorities and the recording of the same in the general diary further fortifies that the said evidence was genuine and was therefore rightly believed by the trial Court.
Sri Trivedi urged that the call detail records that were produced by the prosecution and the two witnesses who were called upon to prove the said call detail records does not amount to proving the said documents in terms of Section 65-B(4), inasmuch as, there is no certification of the said documents as required therein. It is correct that there was no formal certification of the said documents on the oral testimony of PW-14 and PW-15 did corroborate the telephone numbers referred to in the call detail records. The telephone numbers have not been denied to be that of the accused and the defence has not been able to rebut or controvert the same by any cogent evidence. The mobile in possession of PW-5 and those recovered from the accused were before the Court. The defence did not choose to counter the veracity of the said evidence that was supported by oral testimony either through any cogent cross-examination or by tendering any other evidence. The accused had full opportunity to do so but they failed to bring home any evidence or counter the evidence on record.
The argument of the learned counsel that the judgment in the case of Shafiq Ahmad (supra) is per-incuriam and that it does not in any way over come the decision in the case of Anwar P.V. (supra) is not for us to assess even if the order passed in Shafiq Ahmad's case is by way of a clarification. So far as this Court is concerned, it is bound by the said ratio and which gets attracted on the facts of the present case as well. The evidence has unmasked the case bringing about clarity about the only possible view in relation to the complicity of both the accused.
In the background aforesaid, the contention of Sri Trivedi about the issue of admissibility of evidence also cannot be a ground to reverse the judgment of the trial Court where no such issue appears to have even been raised.
The appellants have failed to suggest any other hypothesis so as to give us any other option or choice that may cause any doubt about the prosecution version. The possibility much less a probability of any other cause for the murder of the victim is far from any other reality. The only possibile conclusion in the given circumstances is that which has been arrived at by the trial court. There is no other perceptible dilemma so as to cause a doubt or a dent in the story of the prosecution. The accused have not been able to absolve themselves of the guilt which is not based on a mere suspicion but on strong foundations of material evidence carefully queued in a legally disciplined format fortified by circumstances that speak for themselves and corroborated by oral testimony coupled with recovery.
In view of the aforesaid findings arrived at by us, we see no reason to interfere with the impugned judgment of the trial Court, the appeals lack merit and are accordingly, dismissed.
Order Date:- 02.05.2018 R./S.Chaurasia.