Indian Kanoon - Search engine for Indian Law

7] So far as appellant Sunitabai is concerned, it is submitted that there is absolutely no evidence on record to connect the her with the offence and she has been falsely implicated in the case only because she happens to be the wife of appellant Shriram Kalota. It is further submitted that so far as the recovery effected by appellant Sunita bai is concerned, it is only a sum of Rs.10,000/- vide Ex.P/79 on 13/06/2011 which cannot be said to be an amount which the appellant had obtained by entering into the conspiracy to murder two people specially when it is alleged that the original conspiracy was between appellant Shriram and appellant Rahul for consideration of Rs.10 Lakhs. It is also submitted that as per the seizure memo dated 07/06/2011 Ex.P/76, the appellant Sunitabai took the ear rings of deceased Gajrabai and if this was the reason for committing the murder of Gajrabai then there is no reason to accused persons to leave behind 42 gold beads on the dead body itself, which were seized by police station Narsullaganj on 19/05/2011, vide Ex.P/2 along with Paijap, Bichhudi, Ring as per Ex.P/22. Thus, it is submitted that the chain of circumstances is not complete against the appellant Sunitabai and the learned Judge of the trial Court has erred in convicting the appellants in connection with the aforesaid offence. 8] It is also submitted that the ear rings seized from the appellant Jeevan ???, actually belonged to the deceased has also not been proved beyond reasonable doubt as the identification was not proper and in accordance with law which is also apparent from deposition of PW/27 Bhagirath who in para 7 has deposed that all the other articles which were mixed with the articles to be identified were brought up by police officer and there is no specification of size, shape, weight and design of the ear rings. It is also submitted that as per the seizure memo Ex.P/67 effected from accused Rahul Mori on 07/06/2011, the seizure is of triple SIM mobile phone having SIMs of Idea, Airtel and Reliance but its call details are not supported by proper certificate as provided under Section 65(B) of the Evidence Act. Thus, the call details cannot be taken into consideration as they cannot be relied upon.

19] Shri Kulshsreshtha has also submitted that although the mobile SIM has been seized from the appellant but it has not been marked as Article in evidence and non production of the SIM has vitiated the entire trial, as also non production of SIM from which the call records have been extracted has made the CDR as a relevant in evidence. It is also submitted that as no Airtel SIM or Videocon SIM has been admitted in evidence as Article or produced in the Court, hence, the resultant collection from the CDR from various service providers is inadmissible in evidence due to failure on the part of the prosecution agencies to corroborate the same with the source of electronic device. It is also submitted that so far as deposition of PW/41 Saidutt Bohre, the Nodal Officer of Airtel is concerned, it also suffers from serious infirmities inasmuch as the letter for CDR has been obtained after 5 years of incident and as per the Ex.P/111, the certificate under Section 65- B of the Evidence Act, it does not disclose as to how the CDR was stored for a duration of around one year which is in violation of government directives and even otherwise, the said witness was not authorized representative of Airtel to produce the CDR in the Court. It is also submitted that even according to the deposition of PW/41 Saidutt Bohre, IMEI number of CDR does not match with Ex.P/68 which is the recovery memo. He has also admitted that he has not filed any document to demonstrate that he is posted as Nodal Officer of the Airtel company.

20] The similar arguments have been advanced by Shri Kulshreshtha in respect of PW/47 Gopal Suryawanshi, the Nodal Officer of Airtel and PW/42 Devesh Gupta, the Nodal Officer of Videocon. The attention of this Court has also been drawn to the deposition of PW/43 Anil Bamboria who was the Accountant of Mahakal Toll Naka on 18/05/2011 and it is submitted that the information given by him vide Ex.109 that the car bearing registration No. MP09-CG-0556 had passed from the aforesaid Toll Naka, and it is submitted that the data entry of the movement of the said vehicle is a computer generated documents, hence, in the absence of certificate under Section 65-B, such document cannot be admitted in evidence. Lastly it is also submitted by Shri Kulshreshtha that admittedly it is a case of no eyewitness account, and there is material discrepancy in the story of the prosecution and the evidence led it. In support of their submissions, counsel for the appellants have also relied upon the decision rendered by the Supreme Court in the case of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others reported as (2020) 7 SCC 1, State of Andhra Pradesh Vs. Punati Ramulu reported as 1993 AIR SC (2) 2644, Anis Vs. State of M.P. reported as M.P.W.N. 59 and in the case of Ravinder Singh @ Kaku Vs. State of Panjab passed by the Supreme Court in Cr.A. No.1307 of 2019 on 04/05/2022.

06.06.2011, he had obtained the memo of appellant Rahul Ex.P/60 at Police Station Kotwali, Dhar at around 8:00 a.m. in the morning and his second memo was also prepared on this day at around 1:00 p.m. vide Ex.P/61 at Indore. He has admitted that the car has been seized from the appellant Shriram's house on 10.06.2011 vide Ex.P/72. He has also admitted that appellant Rahul and Shriram were in police custody since 03.06.2011 only. He has also admitted that in Ex.P/72, he has mentioned that car has no number plates but, he has not taken any photograph of the car. He has denied that he did not take the photograph of the car because it was already having number plate fitted on it and thereafter, after removing the number plate, it has been seized vide Ex.P/68 and has denied that after removing the number plate he has seized it. He has admitted that he did not seize any receipt of Santro car from the toll booth and has even feigned ignorance that he does not have the second copy of the toll receipt which is kept with the concerned person at toll booth only, although, he has admitted that he has taken the record from the toll booth in-charge which is proved as Ex.P/118. PW-40 in para 64 of his deposition of his cross- examination has also admitted that on 10/06/2011, he had prepared the memorandum of appellant Shriram vide Ex.P/69 in which he has mentioned that the Santro car is parked in his house only whereas vide Ex.P/72, the car has been seized from his house. He has also admitted that accused Rahul and Shriram were in jail since 03/06/2011. 64] PW-41, Saidutt Bhore is the Nodal officer of the Airtel who has provided call details of various SIMs of the Airtel Company which have been seized in the investigation and has also proved the certificate under Section 65-B of the Evidence Act as Ex.P/111 and the covering letter is Ex.P/112. He has also mentioned that mobile number 999366614 is registered in the name of Yashwant, S/o Ranchhor, R/o Village- Gardawat. This witness has accepted that the various mobile numbers, the details regarding which he has given do not have the tower location as they are not decoded and has stated that to decode the numbers, he has brought his laptop in the Court to which an objection has been raised by the counsel for the appellants that no such document can be proved in the Court directly as the decoding is in itself is a document hence, it cannot be proved for the Court for the first time to which, the Court has held that since all the documents have already been produced earlier and only call numbers decoding was not done and till the decoding is done, there is no utility of obtaining the mobile numbers and not bringing the decoded number is only a minor error on the part of the witness. Hence, it was allowed that the decoding can be proved in the Court. In his cross-examination, he has also been suggested that the Certificate given under Section 65-B of the Evidence Act is not in accordance with law. He has admitted that he has not brought any certificate to the fact that he is the Circle Nodal Officer of Airtel Company. He has also admitted that there is no description of the computer number viz, its model, make and other particulars are not mentioned. However, subsequently he has also produced the location decoding chart as Ex.P/174.