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“If we go by this report lodged by the wife of the accused, it appears that the said SIM card was lost in transit sometimes from 6.00 p.m. of 20th to 25th June, 2011. Now, according to the accused, from 19th June, 2011, the SIM card of his wife was replaced by the new card and sometimes between the evening of 20th June, 2011 till 25th June, 2011, the old SIM card of 9564784782 was lost. If it is so, this number could not have been used for making any call at least from 21st June, 2011 onwards. On perusal of the CDR, Exhibit T-2, it appears that on 20 th June, 2011 at 13.29 hours, a call was made from this mobile number to mobile No. 9619796549, which was the mobile number of Cdr. Arjun Kumar. The record also shows that on 20th June, 2011 itself at 18.31 hours, again, there was a call from the said mobile to the above referred mobile number of Cdr. Arjun Kumar. There was also call from the said mobile of the accused to the mobile of Cdr.

Arjun Kumar on 23rd June, 2011 at 11.46 hours. On 25th June, 2011 at 09.50 hours and 15.06 hours, again, there were two calls from the said mobile No. 9564784782 to mobile No. 9619796549 of Cdr. Arjun Kumar. Again, there were three calls from the said mobile number to the mobile of Cdr. Arjun Kumar on 28 th June, 2011 between 17.15 to 17.55 hours. PW-33 Cdr. Arjun Kumar has deposed on oath that he had received these calls and that the accused was in contact with him on all these days from his mobile. It shows that the said mobile was being used by the accused even after 25th June, 2011. Cdr. Arjun Kumar had no reason to falsely depose that he had received the calls from the accused on these days.” Dr. Sharma had made extensive argument in endeavour to dislodge the creditworthiness of Cdr. Arjun Kumar. However, in our view, his deposition remains unshaken and credible.

17. One aspect remains to be discussed. In the Court Martial proceedings, officer from Vodafone South Mumbai was produced who had brought the CDR of the Cell Phone in question to prove that calls were made from this phone. The said officer was examined as PW- 13 and CDR record produced by him was marked as Exh. P-27. However, before the AFT, the respondent had raised the objection that Exh. P-27 did not have any evidentiary value as Certificate under Section 65-B of the Indian Evidence Act, 1872 produced by PW-13 was in relation to customer agreement and not for CDR and that PW- 13 was Nodal Officer for Vodafone Mumbai and not for Vodafone South. In view of the aforesaid technical objection, the appellants Criminal Appeal No. 579 of 2016 a/w connected matter filed an application under Section 17 of the Armed Forces Tribunal Act, 2007 for summoning Nodal Officer, Mumbai Sector, Vodafone along with a direction to produce the CDR of the mobile number of the respondent. Order dated November 20, 2014 was passed on this application whereby prayer contained in the application was allowed and summons issued to the Nodal Officer, Mumbai Sector, Vodafone for production of CDR of the mobile number belonging to the respondent along with the Certificate under Section 65-B of the Indian Evidence Act, 1872. This order was not challenged by the respondent. In response to the summons issued by the AFT on November 10, 2014, Vodafone South Limited, Kolkata had submitted the CDR as well as the Customer Agreement of the respondent along with the certificate under Section 65-B which came to be exhibited as Exhibit T-3. However, the AFT was not satisfied with the format in which Exhibit T-3 had been made available by Vodafone South Limited. In its order dated February 26, 2015, the AFT categorically observed that the CDR (Exhibit T-3) made available to the AFT was identical to the previous CDR (Exhibit P-27) in respect of the serial number of calls, the A Number (i.e. the number from which the calls had originated) and the B Number (the number to which the call had been made), the year, time and duration of the call. However, certain details such as the date, time, month etc. were missing from the said Criminal Appeal No. 579 of 2016 a/w connected matter CDR (Exhibit T-3). Further, Section 65-B certificate did not bear the designation of the person who had signed the certificate. As such, vide order dated February 26, 2015, the AFT directed the Nodal Officer, Vodafone South to produce before the Tribunal the complete CDR of the said Mobile phone number for the period from June 01, 2011 to July 04, 2011 along with the Customer Agreement and the Certificate under Section 65-B before the AFT. The concerned official of Vodafone had also been directed to be present before the Tribunal on March 03, 2015. In compliance Mr. Subir Kumar Deb from Vodafone appeared as TW-1 before the AFT and explained that it is only due to improper alignment etc. that certain information had been omitted from being generated in the CDR Exhibit T-3. He also explained that sometimes because of the failure of the linking system in the server, some information may not come out. However, the AFT decided not to take into consideration the CDR Exhibit T-3. In terms of the order dated February 26, 2015 of the AFT, Mr. Sudhir Kumar Deb, official of Vodafone India, appeared before the AFT as TW-1. The AFT has recorded the testimony of TW-1 in relation to the manner in which the CDRs are stored by Vodafone in the Centralized Server located at Pune. TW-1 also produced before the Tribunal – the CDR of the Mobile number of the respondent (Exhibit T-2) along with the Certificate under Section 65-B of the Indian Evidence Act, Criminal Appeal No. 579 of 2016 a/w connected matter 1872 (Exhibit T-1). CDR Exhibit T-2 along with the certificate under Section 65-B being Exhibit T-1 duly proved by TW-1. In his cross- examination, TW-1 had inter alia stated that whereas CDR Exhibit T-3 (submitted to the AFT in December, 2014) had been generated on November 01, 2011, Exhibit T-2 had been generated on March 02, 2015 and had been signed and certified by TW-1. The alleged discrepancy in CDR Exhibit T-2 sought to be pointed out during his cross-examination was also duly explained by TW-1. He had explained that after 2011, as per guidelines issued by DoT, Government of India, the format of the CDR had been changed. After considering the testimony of TW-1, AFT has observed that Exhibit T- 2, submitted by TW-1, is reliable and is properly stored and generated in the Centralized Server of Vodafone, as under:

“However, Subir Kumar Deb deposed on oath and explained that though the CDR, Exhibit T-3, was submitted with certificate in December, 2014, the heading of the same clearly shows that it was generated on November 01, 2011, while the CDR, Exhibit T-2, signed and certified by him, was generated on March 2, 2015, after receipt of summons from this Tribunal. He explained that if the specific command is given for header or heading of the call data for the target mobile number, i.e., the mobile number about which the call data is to be generated, the period, the date and the time of generation are printed and in such case, the first column is always the serial number of the calls. But if that command is not given the heading and the serial number column are not printed. He explained that everyday hundreds of CDRs are generated and printed and possibly, while taking the print of the CDR, Exhibit T-2, he had not given the command for header or heading and, therefore, heading as well as column for serial number is missing from the CDR, Exhibit T-2. He further explained that after 2011, as per the guidelines issued by the Government of India, Department of Tele-Communications, the format of CDR has been changed and as per the said guidelines, missed calls are also required to be Criminal Appeal No. 579 of 2016 a/w connected matter deleted from the CDR. He pointed out that these missed calls in respect of SMS are still maintained because from the SMS, the company generates revenue, while no such revenue is generated from the missed calls. Therefore, the missed calls, which were shown as ‘Null’ or ‘Nil’ call time in the earlier record, are not shown in the present record, but such ‘Null’ record about the SMS is still maintained. It appears that the column for ‘Call Time’ has been shifted from the 9th column to 3rd column due to change in format. In view of the explanation given by witness Subir Kumar Deb, we are satisfied that the CDR, Exhibit T-2, now submitted by him, is reliable and it is properly stored and generated in the Centralised Server, as deposed by him. We do not find any major defect and the minor changes and the differences in the earlier record and the present record, Exhibit T-2, are properly explained by the witness.”