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Confirmation Case No. 3 of 2018.final.doc

(vi) Call Data Records ie CDRs support the calls made by accused no.1 to PW Rajesh demanding ransom.

(vii) The demands made by accused no. 1 were recorded in the memory card in Nokia mobile handset given by PW-20 IO Shri Desurkar and voice in the said conversation matches with the sample voice of accused no. 1 as per CFSL report.

(viii) Accused nos. 1 and 2 led the panch witnesses and police to the site where the body of deceased child was concealed, leading to discovery under section 27 of the Evidence Act.

17. Total 10 conversations are recorded in the memory card and the initial conversations are of date when that memory card or mobile with recording facility was with PW 20 only. Handing over of that mobile by PW 1 to PW 20 is also not satisfactorily proved and there is no panchanama regarding it or of any recorded conversation at that time. The evidence of PW 12 Mr. Zuber Qureshi is attacked on this ground.

18. It is pointed out that the recovery of Nokia mobile from PW 1 by PW 20 and its sealing looses its sanctity since PW 11 Jayraj Jaiswal does not support it. The memory card or Nokia mobile through which the transfer of recorded conversation has been done by this witness, is not shown to be the same which was taken back from PW 1 in the presence of PW 20. The respective counsel for the accused persons submit that the alleged recorded conversation in the said memory card in Nokia mobile of PW 20, therefore becomes redundant.

99. The said memory card purportedly contains recorded conversation between accused demanding ransom and the informant Mr. Rajesh. We have already taken note of fact that this Nokia mobile with call recording facility was given to respondent (PW-1) by Investigating officer Shri Desurkar. This Nokia mobile was taken back by said Investigating Officer from Rajesh. PW-12 has witnessed this taking back. His deposition does not show reference to any memory card or its number. He only mentions taking back of mobile handset of Nokia company and preparation of panchanama. After said mobile was placed in brown colour packet, it was sealed and labelled with his signatures and signature of co-panch on the label. PW-11-Jayraj does not depose of mobile was taken out form any sealed packet. He does not point out that envelope contained any seal and signatures. PW-12 or then co-panch at Exhibit 116 was not present at that Confirmation Case No. 3 of 2018.final.doc time. Thus, identity of memory card or mobile witnessed by PW- 11 with identity of mobile handset sealed on 7/6/2012 in presence of PW-12 has not been established.

105. We have already noted supra that the details of make or any distinct number of memory card contained in Nokia mobile handed over by IO PW 20 to PW 1 Rajesh, taken back from Rajesh or then used for transcription on 12/6/2012 in the presence of PW 11 Jayraj did not find mention anywhere on record. PW 11 does not point out on oath that the memory card removed from the mobile was in a sealed or labeled packet or container though he specifically states that after the transcription, the said memory card was inserted in the mobile handset and again packed, sealed and labeled. This witness also deposes that in the memory card from which transcription was obtained, there were many voices and police have not taken cognizance of all those voices. The prosecution has opened the specimen sample only of Imtiyaz (accused no.1) and the document at Exh. 140 shows its comparison with memory card in Nokia mobile. If there were many voices, the other voices therein have not been identified and are ignored. It appears that choice or some discretion has Confirmation Case No. 3 of 2018.final.doc been exercised while selecting conversations for transcription.