Hon'ble Bachchoo Lal,J.
The appellants have been convicted and sentenced for the offences under Sections 364-A, 302, 201 IPC in Session Trial No. 682 of 2009 arising out of Case Crime No. 451 of 2009 for having kidnapped and murdered Ram Kumar son of Dal Chand aged about 24 years for ransom on 2nd July, 2009. Both the appellants have been awarded life imprisonment coupled with Rs.5,000/- fine, and in default thereof to undergo six months further imprisonment. The same sentence has been awarded for the offence under Section 364-A and an additional three years rigorous imprisonment with a fine of Rs.5,000/- has been awarded for the offence under Section 201 IPC and in default thereof to undergo six months further imprisonment.
The facts of the case have been discussed in detail by the trial court in the impugned judgment but the broad facts necessary for deciding this appeal are set out hereinunder.
A missing report was lodged by PW-2 Hemraj, who is the brother of the deceased, at Police Station Kasna, Greater Noida, District-Gautam Budh Nagar, stating therein that his brother Ram Kumar went away from home in village Mursadpur on the 2nd of July, 2009 at about 4:00 pm in the evening towards Kasna but he has not returned as yet. The informant had searched him and after having failed to know about his whereabouts he lodged the missing report giving the description of his body and his outfits with a request to take appropriate action. This missing report was lodged on 4th July, 2009 at about 9:10 am in the morning. The missing report is Exhibit Ka-4.
On the same day at about 4:10 pm, a written report was tendered by PW-2 Hemraj that was scribed by one Ravi, son of Satan Singh before the same police station stating therein that on 2nd July, 2009, the deceased Ram Kumar departed from home in Mursadpur for Kasna at about 4:00 pm in order to realise certain dues from his customers and he has not returned back. It further narrates that a day before of the lodging of the FIR i.e. on 3rd July, 2009, the informant had received calls from Mobile No.-09690227456 on his Mobile No-9953039811 through which a repeated demand was being made for Rs.40 lakhs as ransom, and on receiving these calls, the informant and others had been running about to locate the caller but the person calling on the mobile phone was changing his location every time. The FIR then narrates that the informant suspects the involvement of the brother-in-law of the deceased, Rajendra, son of Dal Chand and Suraj, son of Khadgu Gujjar because they had come to his house and had hurled abuses in the morning of the same day. A request was made to register the FIR and take appropriate action.
We are adverting to a small fact in order to complete the link of events from the evidence of PW-3 Smt. Savitri, the mother of the deceased who has stated that on the 6th July, 2009 information was received from Police Station Kasna informing the family members that a dead body was recovered in Meerut and then she along with PW-2 Hemraj and the Village Pradhan Satish accompanied the police to Meerut. It appears from the evidence on record that after the recovery of the body at Meerut, the same was identified by the family members as that of deceased Ram Kumar on 7th July, 2009. It was then dispatched for post mortem that was conducted on the same day at about 15:50 at District Hospital, Meerut by Dr. N.P. Sharma PW-7 who carried out the autopsy and submitted his report.
On the same day i.e. on 7th July, 2009 the Special Operation Group Police through its Incharge Inspector Sanjay Kumar Bhardwaj apprehended both the appellants at about 11:05 am where the Senior Sub-Inspector of Police, Sri Nathiram Panwar and Sub-Inspector Pradeep Bharadwaj of Police Station Kasna also arrived. Both the appellants were arrested and a search was carried out recording recovery of mobiles with SIM cards whereupon they also made a confessional statement of having murdered the deceased and having thrown his body over a culvert in a running canal. The rope which was utilized for throttling the deceased was cast away by them in a sugarcane field from where they can get it recovered. They are also alleged to have made the confession of having abducted the deceased for ransom. The police also took into custody the car in which they were seated, the make whereof has been described as Santro of blue colour. The recovery memos were accordingly prepared by the police in respect of the arrest, the mobile phones with SIM cards as well as the car.
On the same day, the police is also stated to have recovered the rope at the pointing out of the accused that was stated to have been utilized for the commission of the offence. The rope was about 8 palms length and about 1/8th of an inch thick with a knot at both ends. The same was sealed and preserved. This recovery is said to have been made at about 4:10 pm on the same day.
Charges were framed thereafter and the first witness introduced by the prosecution was a formal witness, namely, Head Constable Rajendra Singh as PW-1 who proved the lodging of the missing report and the First Information Report. He also stated that the investigation was handed over to Sub-Inspector Nathiram Panwar with all the papers who has been examined as PW-9.
The second witness is the brother of the deceased Hemraj and is the informant who has been examined as PW-2. The mother of the deceased, Smt. Savitri has been examined as PW-3 and Sri Satish Kumar, a villager and neighbour was examined as PW-4 as witnesses of last having seen the deceased. Thus three witnesses of fact PW-2 to PW-4 were examined on behalf of the prosecution.
The second formal witness is Anand Pal Singh, the Sub-Inspector who carried out the inquest and has been examined as PW-5. Shyam Singh is a resident of District Meerut, who informed the police about the dead body of an unknown person in the canal, has been examined as PW-6. Dr. N.P. Sharma who carried out the autopsy of the body at Meerut District Hospital and prepared the post mortem report has been examined as PW-7. The Sub-Inspector of Police, Pradeep Bhardwaj who was part of the police party of police station Kasna alongwith Incharge Special Operation Group Sanjay Kumar Bharadwaj had apprehended the appellants and witnessed the arrest of the appellants was examined as PW-8. Nathiram Panwar Sub-Inspector of Police, the Investigating Officer of the case was examined as PW-9. Jawahar Singh is the Constable of Police Station-Partapur who had received the information from Shyam Singh PW-6 about the dead body lying in the canal that was identified as that of the deceased Ram Kumar. He was also a witness to the inquest report prepared whereafter the dead body was carried to the mortuary for post mortem. He also stated that the inquest was filled up showing the body recovered as unknown and, was therefore, placed in the mortuary for 72 hours for verification. The body was lodged in the mortuary on 5th July, 2009 at about 7:00 pm. It is here that the police had called upon the family members of the deceased who had identified the same and whereafter the post mortem was carried out and the body was handed over to the family members. He then described that a police party had accompanied him where the dead body had been recovered from the canal and that the inquest had taken about 2 hours. He further states that the family members of the deceased had arrived in the morning of 7th July, 2009 at the post mortem house where they were shown the body after opening the seal.
The statement of the accused was recorded under 313 Cr.P.C. whereafter they introduced five defence witnesses, namely, Gulfam, Jaipal, Ajeet Singh, Tekchand and Subodh Kumar who were examined as DW-1 to DW-5. Out of these Tekchand was the person who stated that the arrest of the accused was made from another place where they were working and the police had lifted them a day earlier than the date of arrest shown for which a telegram had been sent to the higher authorities. The other four witnesses came up saying that the arrest was made from the working place of the accused in order to get across the evidence of the prosecution showing their arrest from a spot near the Idgah.
After having assessed the entire evidence, the trial Court on 29th January, 2011 by the impugned judgment convicted the appellants and sentenced them accordingly. Hence this appeal.
Sri Sahay, learned counsel for the appellants has urged that this is a case of circumstantial evidence with an allegation of kidnapping, ransom, murder and obliteration of evidence. It is urged that neither any motive on the part of the appellants has been established nor there is any evidence to connect the appellants with kidnapping or having been seen last in the company of the deceased. The theory of ransom is imaginary, inasmuch as, neither the demand nor the delivery of any ransom has been proved.
The mode of communication through mobiles which is electronic evidence was not established. The utilization of any electronic device or message through it or the evidence to establish the communication through mobiles was not proved in terms of the Indian Evidence Act, 1872. The contention is that the evidence of call details record was per se inadmissible and the mobiles which were produced before the Court could not be connected with the demand alleged.
He then submits that there is no evidence of the appellants having committed the murder and the alleged recovery of a rope is a patently false recovery without therebeing any connection of the instrument of death with its cause as described in the post mortem report. It is submitted that no one had seen the appellants either murdering the deceased or dropping his body into the canal from where it was recovered.
Thus there was complete lack of evidence and the investigation coupled with the prosecution nowhere even remotely proved the prosecution case beyond reasonable doubt. In the circumstances, the trial court committed an error in accepting the guilt of the appellants at the behest of the prosecution which had utterly failed to prove its case. Not only this, the trial court has completely overlooked the legal provisions of evidence particularly with regard to circumstantial evidence, the electronic evidence and the oral testimony to bring home the conviction. Simultaneously the trial court failed to discharge its obligation by allowing the opportunity of defence to the appellants to whom the circumstances and the entire incriminating material, which has been made the basis of conviction, was not even made known at the time of the accusation being put to the appellants under Section 313 Cr.P.C.
He has further pointed out the inconsistencies in the statements of PW-2, PW-3 and PW-4 to urge that the contradictions that have emerged during cross examination have been completely misconstrued by the trial court and consequently the trial court misdirected itself in appreciating the same that has caused prejudice to the appellants. He submits that the discrepancies are material in nature which completely demolish the case of the prosecution and therefore the appellants deserve to be acquitted. To supplement his submissions on the aforesaid issues he has relied on the decisions in the case of State of Goa Vs. Sanjay Thakran & Another reported in 2007 (3) SCC 755 and Sharad Birdhichand Sarda Vs. State of Maharashtra reported in 1984 (4) SCC 116.
Controverting the said submissions, Sri Ajit Ray learned AGA for the State submits that the entire chain of events has been established through strong links connecting both the appellants with the incident. He submits that the prosecution witnesses have established close acquaintance with the deceased and his family members, their arrival on the date of the incident and the deceased having accompanied them. He contends that this is not a case of false implication but a case that has been worked out on the basis of clinching evidence and strong motive establishing that the appellants were last seen in the company of the deceased very shortly before he was done to death by them.
The timing of the death of the deceased can be clearly co-related with the timing of the departure of the deceased on 2nd July, 2009 from the duration as indicated in the post mortem report. The inquest report leaves no room for doubt that the death of the deceased was homicidal caused by an assault. His body was thrown into the canal which also indicates that the appellants had clearly attempted to do away with the entire evidence relating to the crime committed by them, and therefore, their intent was clearly to eliminate the deceased, even if it is assumed that the demand of ransom could not be established on the basis of evidence led.
He submits that the motive was clear and the prosecution witnesses have clearly established the linkage of the appellants with the commission of the offence. The investigation as proved by the Investigating Officer and the medico legal reports leaves no room for doubt that the mobile phones of the appellants were put on surveillance through which their complicity came to be established and which is a strong link in the chain of events to establish their motive of kidnapping for ransom and full participation in the commission of the offence.
He submits that there is no other alternative hypothesis or circumstance so as to deviate from the conclusion already arrived at by the trial court where the prosecution led the entire evidence which does not leave room for any doubt about the involvement of the appellants. He contends that there is no reason for the prosecution witnesses to have given a false testimony and then implicate the appellants, inasmuch as, it is evident that when the First Information Report was lodged, the informant and his family had indicated doubts and had raised a suspicion about the participation of the in-laws of the deceased in the crime. He submits that even if they had in mind to implicate the appellants, who were enjoying their trust and confidence of the deceased, they would have named them in the FIR itself. The absence of their names in the FIR does not absolve them of their complicity as per the evidence on record. The learned AGA, therefore, submits that when the layers of evidence were unravelled during investigation, it was then found that the appellants taking advantage of their acquaintance with the deceased and his family members, had taken him away along with them whereafter he disappeared.
He submits that the utilization of mobile phones was clearly established through the call detail records and the production of the mobile sets before the Court, with regard to which no evidence to the contrary was led by the defence to belie the same. In such circumstances, the entire communication, the company of the deceased when he was last seen with the appellants and the other corroborating material including the testimony of PW-2 to PW-4 leaves no room for doubt so as to give any advantage to the appellants to claim a benefit of doubt.
He further submits that the formal witnesses had proved the recovery, of arrest and the entire incriminating material, that was put to the appellants, who had enough opportunity to rebut the same. Having failed to do so, they cannot now turn around and complain of any violation of procedure of tendering the electronic evidence or claim any ignorance about the material in support of the circumstances that were put to the appellants before the conclusion of the trial. He submits that the Court did not lag behind in allowing full opportunity to the appellants to defend themselves on the material adduced during trial. He, therefore, submits that no interference is called for in the above background with the impugned judgment.
We may first deal with the issue relating to the admissibility of the call detail records that were filed in support of the evidence collected, demand of ransom through several mobile calls and also the mobile sets which were produced in Court. In the instant case, we find that a Special Operation Group headed by Sub-Inspector of Police Sanjay Kumar Bharadwaj had apprehended both the appellants at a place near Idgah. In the recovery memo, it is stated that the Special Operation Group, through a police informer, was put on guard about the movements of the appellants who were to arrive at the given place for realization of the amount of ransom as demanded by them. Accordingly, the said Special Operation Group headed by Sub-Inspector of Police Bharadwaj were waiting near the Idgah when they saw a car driven by Amrish with the appellant Sanjay sitting beside him in the front arriving at that place. The car is said to have taken a U-turn and stopped whereafter the appellant Sanjay got down and started talking to somebody on a mobile phone. It is at that very moment that the Special Operation Group police party overpowered the appellants and apprehended them in the presence of the police party of police station Kasna. On enquiry the person seated behind the steering wheel in the vehicle disclosed his identity as Amrish @ Babu, resident of village Rohta Ghashgar, Police Station Suroorpur, District Meerut. On search, a white coloured Nokia mobile was recovered from him bearing IMEI No.- 355654004082595 with SIM Connection No.- 9634929182.
The second person who had come out of the car and was talking on phone, on being apprehended, disclosed his name as Sanjay resident of village Pathaida, Police Station Daurala, District- Meerut. He had one black mobile phone of a Sony Ericsson make in his right hand. The IMEI number of the phone was found to be 3554410154945 and the SIM Card No. in that phone had Connection No.- 9690227456. Another mobile phone of the make FLY 500 was recovered from the left pocket of his pant which had a double SIM system and was a grey black colour mobile. The first IMEI number was 357644020165290 with SIM Connection No.- 979749107. The second IMEI number was 357644020165308 with SIM Connection No.- 9897590291.
The other recovery made was of the Blue Colour Santro Car bearing Registration No.- DL-4 CM-1182 but no documents or registration papers of the vehicle were available. During investigation, it was found that the car was bearing a fake registration number and had been stolen from Delhi. The car allegedly belonged to a person who had lodged an FIR with regard to the theft of his vehicle at Rajendra Nagar Police Station in Delhi but no proof appears to have been tendered during trial.
The recovered SIM cards were placed in a plastic foil. When the mobile phones were produced before the Court, they were in an open envelope. The SIM cards were not produced but the fact remains that the FIR categorically discloses the same telephone number that was recovered from the appellant Sanjay which was a black mobile of Sony Ericsson make bearing SIM Connection No. 9690227456.
The evidence of PW-2 recites that the concerned Investigating Officer had informed him that the mobile numbers have been put on surveillance through computer. The Sub-Inspector of Police, Bharadwaj who deposed before the Court as PW-8, confirmed the recovery of the mobiles from the accused and had put the phone on surveillance after the FIR had been lodged. He also proved the call detail records that were exhibited in the trial and also stated that when he investigated about the connection number as mentioned in the FIR, he found that the SIM card had been obtained on fake address proof. The call detail records have been exhibited as Paper No. Ka-19 to Ka-22.
It may be noticed that no objection was taken before the trial court to the said exhibited documents as per the original records and also from a reading of the impugned judgment. Arguments with regard to the admissibility of the said call detail records were also not raised on behalf of the defence before the trial court.
In this regard, the argument raised by Sri Sahay on behalf of the appellants deserves to be dealt with in view of the law as propounded in the decision referred to by him and the response given by the learned AGA to the same. The first case to be noticed is that of State (NCT of Delhi) Vs. Navjot Sandhu 2005 (11) SCC 600 paragraph no. 150 which is extracted hereinunder:-
"Irrespective of the compliance with the requirements of Section 65-B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in Sub-section (4) of Section 65-B 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 provisions, namely, Sections 63 and 65."
The Apex Court, therefore, took a view that secondary evidence in the shape of electronic records could be tendered keeping in view the provisions of Sections 63 and 65 of the Indian Evidence Act, 1872 irrespective of the compliance with the requirements of Section 65-B of the Indian Evidence Act, 1872, and would be admissible. A view different from the same was taken but not in detail by a Division Bench of the Delhi High Court in the case of Rakesh Kumar and another Vs State (2009) 163 Delhi Law Times 658.
The view taken in the case of Navjot Sandhu (supra) by the Apex Court came to be over-ruled by a three Judges decision of the Apex Court in the case of Anvar P.V. Vs P.K. Basheer and Others 2014 (10) SCC 473 paragraph nos. 22 and 23 which are extracted hereinunder:-
"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.
23. The Appellant admittedly has not produced any certificate in terms of Section 65B in respect of the CDs, Exhibits-P4, P8, P9, P10, P12, P13, P15, P20 and P22. Therefore, the same cannot be admitted in evidence. Thus, the whole case set up regarding the corrupt practice using songs, announcements and speeches fall to the ground."
The aforesaid view holding that the provisions of the Section 65-B were mandatory were reaffirmed in the case of Harpal Singh @ Chhota; Sukhmeet Singh @ Deputy Vs State of Punjab 2017 (1) SCC 734 paragraph no. 11 extracted hereinunder:-
"11. Qua the admissibility of the call details, it is a matter of record that though Pws 24, 25, 26 and 27 have endeavoured to prove on the basis of the printed copy of the computer generated call details kept in usual ordinary course of business and stored in a hard disc of the company server, to co-relate the calls made from and to the cell phones involved including those, amongst others recovered from the accused persons, the prosecution has failed to adduce a certificate relatable thereto as required Under Section 65B(4) of the Act. Though the High Court, in its impugned judgment, while dwelling on this aspect, has dismissed the plea of inadmissibility of such call details by observing that all the stipulations contained Under Section 65 of the Act had been complied with, in the teeth of the decision of this Court in Anvar P.V. (supra) ordaining an inflexible adherence to the enjoinments of Sections 65B(2) and (4) of the Act, we are unable to sustain this finding. As apparently the prosecution has relied upon the secondary evidence in the form of printed copy of the call details, even assuming that the mandate of Section 65B(2) had been complied with, in absence of a certificate Under Section 65B(4), the same has to be held inadmissible in evidence.
This Court in Anvar P.V. (supra) has held in no uncertain terms that the evidence relating to electronic record being a special provision, the general law on secondary evidence Under Section 63 read with Section 65 of the Act would have to yield thereto. It has been propounded that any electric record in the form of secondary evidence cannot be admitted in evidence unless the requirements of Section 65B are satisfied. This conclusion of ours is inevitable in view of the exposition of law pertaining to Sections 65A and 65B of the Act as above."
However in the said, case even though the call detail records had been proved by the deposition of the officials of the telecommunication companies yet they were not found to be proved in terms of Section 65-B(4) of the Indian Evidence Act, but even then the conviction of the appellants on other evidence was upheld. Applying the said principles, what we find in the present case is that there is neither any authentication nor any certificate in terms of Section 65-B(4) of the Indian Evidence Act, 1872 to make the exhibited call detail records admissible as per the law laid down by the Apex Court and indicated hereinabove. No official of the telecommunication company has been produced to corroborate the generation of the call detail records from any device in their custody or authenticated by them.
We have therefore to examine this in the light of the judgments of the Apex Court that have been rendered later on.
Noticing the judgment in the case of Anvar P.V. (supra) which is a three Judges decision, the Apex Court in the case of Shafhi Mohammad Vs. The State of Himachal Pradesh 2018 (2) SCC 801 has held that relaxation with regard to admissibility of such evidence can be made where the person from whom the evidence has been collected is a person not in a position to produce a certificate. The same has been noted by the Division Bench of this Court in the case of Bhuwan @ Sonu Vs State of U.P. reported in 2018 (4) ALJ 258 paragraph nos. 50 to 54 and paragraph nos. 107 to 111. The observations of the Apex Court in the case of Shafhi Mohammad (supra) in paragraph nos. 29 and 30 thereof are as follows:-
"29. 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 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 Section65-B(4) is not always mandatory.
30. 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."
We now come to the decision heavily relied on by the learned AGA in the case of Sonu @ Amar Vs State of Haryana 2017 (8) SCC 570. The Apex Court in this case explained the law and held that objection to electronic evidence which is per se inadmissible can be taken even at the appellate stage but if the objection is with regard to the mode and procedure of admissibility before the trial court, then such an objection has to be taken upon the document being exhibited before the trial court itself. This objection with regard to the mode and procedure of admissibility has been held to be impermissible at the appellate stage. The Apex Court further held that the question of inadmissibility as decided in the case of Anvar P.V. (supra) is a declaration of law, and therefore, it cannot be said that it will not apply retrospectively, but at the same time, the Apex Court ruled that applying it retrospectively would bring about incalculable ramifications and unscramble past transactions adversely affecting the administration of justice. However, the Court also indicated that propriety demanded that it should refrain from declaring the judgment to be prospective as the case of Anvar P.V. (supra) had been decided by a three Judges Bench. Thus, on the issue of call detail records which are a form of an electronic record was held to be admissible in evidence but it was also held that if they are unreliable due to violation of procedure then it cannot be permitted to be raised at the stage of appeal if the objection relates to the mode or method of proof. Paragraph No. 32 of the said judgment is extracted hereinunder:-
"32.It is nobody's case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the Trial Court without a certificate as required by Section 65B(4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies. The learned Senior Counsel for the State referred to statements Under Section 161 of the Code of Criminal Procedure 1973 as an example of documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. We are satisfied that an objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65B(4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof."
Applying the aforesaid law as declared by the Apex Court there is no doubt that if the procedure or method of proof of the call detail records in the present case was not objected to upon the documents being exhibited, then such an objection about the mode and method of proof cannot be permitted to be raised here.
We have perused the record and we find that the exhibits of call detail records were not objected to by the defence nor any such objection with regard to its mode or procedure of administering proof has been raised before the trial court.
The admissibility and proof of such documents in terms of Sections 63 and 65 of the Indian Evidence Act, 1872 can be entertained if relaxation would be permissible in view of the law laid down by the Apex Court in the case of Shafhi Mohammad (supra).
In the instant case it is correct that SIM cards contained in the plastic foil as indicated in the recovery memo were not produced before the Court. It is also correct that the mobile phones, particularly, the one which is alleged to be the same mobile of the SIM connection number 9690227456 on which PW-2 had been contacted for ransom was placed before the Court in an open envelope. It is also evident that no officials of the telecommunication company concerned were produced as witness to prove the call detail records and it was only the Investigating Officer who deposed that he had collected the call detail records after putting the mobile phones on surveillance during investigation. The question is as to whether such evidence is per se inadmissible or it is the mode and manner of proof which is in issue. Learned Counsel for the appellants has emphasized that the evidence is per se inadmissible, and therefore, we will have to examine the nature of the evidence that was tendered keeping in view the provisions of Section 294 Cr.P.C.
From the facts that have emerged, the call detail records have not been substantiated in terms of Section 65-B(4) of the Indian Evidence Act 1872. Neither they are authenticated and certified by any authorized officer nor any official who may have been in custody of the generating device or supervisory control over its operations has been called to the witness box to corroborate the same. The question is as to whether they can be dealt with as secondary evidence. What we find here is that even if the said call detail records are scrutinized as secondary evidence, no one from the telecommunication department was produced to prove the issuance of the said call detail records. It is only the concerned Sub-Inspector of Police who has deposed before the Court of having obtained the same but the source from which it was obtained was not substantiated by any further corroborating evidence. We could have taken the aid of judgment in the case of Shafhi Mohammad (supra) and attempted to relax the rigour of admissibility, but that seems to be impermissible to us, inasmuch as, the source of information and evidence of the call detail records is from the Police Inspector without supporting corroboration from the telecommunication company. In this background, the call detail records cannot be treated to be admissible piece of evidence, even though, it has been exhibited before the trial court. The condition of the mobile phone being placed before the Court in an open envelope without the SIM cards to co-relate it to the mobile phone calls received by PW-2, also does not seem to have been satisfactorily established by the prosecution. The trial court, therefore, was not right in its conclusion in placing reliance on the said evidence.
We may, however, put on record that we have not treated the call detail records to be per se inadmissible but have found it to be inadmissible on account of our assessment as observed above. The very admissibility of the call detail records was entirely dependent upon being proved independently bereft of the mandatory method as prescribed and referred to in the case of Anvar P.V. (supra).
Sri Sahay has then urged that the material relating to the demand of ransom particularly the call detail records and the evidence specifying the circumstances that were to be utilized adverse to the appellants, was not put to them under the provisions of Section 313 Cr.P.C. He has relied on the Apex Court judgment in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra 1984 (4) SCC 116 paragraph no. 143 to urge that every inculpatory material should be brought to the notice of the accused and non-compliance thereof has caused serious prejudice to the accused. He has also relied on the judgment in the case of Asraf Ali Vs. State of Assam 2008 (16) SCC 328 for the same purpose where in paragraph nos. 14 to 22 it has been held that the point in evidence should be squarely put to the accused which has not been done in the present case. The said judgment in turn relies on the Apex Court judgment in the case Jai Dev Vs. State of Punjab AIR 1963 Supreme Court 612 paragraph no. 20. He submits that no such material or circumstance was put to the accused while recording their response under Section 313 Cr.P.C. and consequently the said material relating to electronically generated call detail records cannot be utilized against the appellants.
In this regard we may recall paragraph no. 16 of the judgment in the case of Shivaji Sahebrao Bobade & Another Vs. State of Maharashtra 1973 (2) SCC 793 paragraph no. 16 which is extracted hereinunder:-
"16.......................The pants allegedly worn at the time of the attack by the second accused has stains of blood relatable to the group of the deceased. This circumstance binds him to the crime a little closer but it is unfortunate that no specific question about this circumstance has been put to him by the court. It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction. In such a case, the court proceeds on the footing that though a grave irregularity has occurred as regards compliance with Section 342, Cr.P.C. the omission has not been shown to have caused prejudice to the accused. In the present case, however, the High Court, though not the trial court has relied upon the presence of blood on the pants of the blood group of the deceased. We have not been shown what explanation the accused could have offered to this chemical finding particularly when we remember that his answer to the question regarding the human blood on the blade of the knife was 'I do not know'. Counsel for the appellants could not make out any intelligent explanation and the 'blood' testimony takes the crime closer to the accused. However, we are not inclined to rely over much on this evidentiary circumstance, although we should emphasise how this inadvertence of the trial court had led to a relevant fact being argued as unavailable to the prosecution. Great care is expected of Sessions Judges who try grave cases to collect every incriminating circumstance and put it to the accused even though at the end of a long trial the Judge may be a little fagged out."
A perusal thereof would leave no room for doubt that it is open to the appellate court to call upon the counsel for the accused to show what explanation the accused had in regard to the circumstance established against him and accordingly the accused is obliged to answer this. In the instant case, we had also called upon the learned counsel for the appellants after pointing out to him the contents of Question No. 3 which were framed in respect of both the appellants while recording the answers under Section 313 Cr.P.C. The circumstances put to the appellants were about the mobile call phone for ransom having been received by PW-2 and its narration to the police inspector on a loud speaker of the mobile phone. The question is as to whether this circumstance co-related to the call detail records and whether any omission to specifically mention the extract of the call detail records renders it inadmissible which cannot be utilized against the appellants.
In our opinion, the circumstances of the utilization of a mobile phone, recovery whereof from the appellants was made, was categorically a matter of clear evidence on record both in the recovery memo, which was exhibited, and also in the statement of PW-8 and PW-9. From the deposition of these two police inspectors, we find from their examination-in-chief that both the appellants had full opportunity to question the probity of the entire evidence in support of the circumstance of the use of the mobile phones categorically disclosed and which evidence was relied on by the prosecution to be utilized against the appellants. Neither any such attempt was made before the trial court nor the learned counsel for the appellants has been able to give any satisfactory or convincing answer on this count. We find that the mobile call detail records were exhibited documents and were openly made known through the evidence led. The circumstance of the utilization of the mobile phone for demand of ransom, was clearly and openly put to the appellants in Question No. 3 of the statements recorded under Section 313 Cr.P.C. As observed above, no attempt was made by the defence to question the probity of the call detail records during cross-examination nor any arguments were advanced with regard to their admissibility before the trial court. We, therefore, do not find any prejudice having been caused on this count.
We may explain that the word prejudice in this context means that which may impair or injure or damage a right or interest of a person. A fact or an event the consequence whereof results in injury or detriment to the interest or right of a person can be said to affect injuriously and materially or which has an injurious tendency. This is what we understand of prejudice.
As indicated above, the fact of the call detail records was known to both the appellants and is before us as well, but the learned counsel for the appellants has failed to point out any prejudice on account of want of mere mention of it in Question No. 3. The appellants had full opportunity to set up any defence on that count and therefore the argument that such failure on the part of the Court while inviting the defence under Section 313 Cr.P.C. should be read adverse to the prosecution has to be rejected.
Having found that the call detail records do not come to the aid of the prosecution and having held that no prejudice had been caused to the appellants by any non-disclosure of the adverse material used against them under Section 313 Cr.P.C, we now turn to the next issue of the circumstantial evidence collected by the prosecution to indicate, either the existence of a strong motive, or otherwise the clinching material in the shape of facts leading to the circumstances to evince a strong presumption against the appellants so as to prove the case against them beyond reasonable doubt.
We commence with the argument that has been addressed on the issue of arrest of the appellants from Palheda crossing. The appellants relying on the testimony of Tekchand DW-4 have urged that the appellants had been lifted from Palheda crossing where the appellant Sanjay ran an electrician repair work shop. This lifting of the appellants by the police is alleged to have been communicated to the SSP which aspect has not been dealt with by the trial court. The second argument is with regard to the statement of the other defence witnesses, namely, DW-1, DW-2, DW-3 and DW-5 who have deposed that the appellants had been arrested and lifted by the police from Palheda crossing and had been taken in a Tata Sumo vehicle. One of the witness has also stated that the blue coloured Santro car had also been towed away from the same place. As against this, the prosecution has introduced the testimony of PW-8 and PW-9 to substantiate that they had been arrested on 7th July, 2009 at about 11:05 am. Having gone through the said testimony, we do not find the testimony of DW-1 to DW-5 creditworthy, inasmuch as, the appellants were arrested with the help of Incharge Special Operation Group Sanjay Kumar Bharadwaj who on information received, had apprehended the appellants in the presence of the police party of Police Station Kasna. The memo of arrest not only describes in detail the manner of arrest but also the recovery is made including that of the mobile phone, the sim cards and other incriminating material. This was witnessed by the entire police party and it was not possible for the police in our opinion, to plan this entire recovery together with the vehicle as well as the other items recovered. The confessional statement of the accused were also taken into account in order to ensure further recovery of the incriminating material, and therefore, probability of the arrest as shown and as proved by PW-8 and PW-9 during deposition, appears to be probative and confirmatory. The defence witnesses have narrated the same statement one after the other of having lifted the accused from some other place. We do not find it to be creditworthy for the reason that we have found the memo of arrest to have been proved without any doubt. The recovery of the body from the canal has also been proved. It is true that the rope which was recovered could not be directly connected with the medico legal evidence including the post mortem report, of having been utilized for throttling the deceased but at the same time, we find that the post mortem report indicates that death was caused due to coma on account of ante mortem injuries which were found on the head region. The fall of a body or having been thrown from a height therefore cannot be ruled out which may have caused the fatal injury. In this background, the recovery of the rope even if proved, does not connect it with the cause of death.
There is another doubt which is sought to be created namely about the fact that there was no occasion to demand ransom if the deceased had been done to death on 2nd July, 2009 itself. Learned counsel for the appellants may have succeeded in creating a doubt about the demand of ransom in such circumstances but in view of our findings in relation to the non-establishment of the call detail records, any further comment on this argument would be unnecessary.
On the issue of motive, we find that the prosecution set up a case of demand of ransom of Rs.40 lakhs by the accused. This factum of demand, that was sought to be established through communication on a mobile phone, has not been proved as held hereinabove. There is no other material that may lead us to believe that there was any demand of ransom, and consequently, the charge relating to kidnapping or ransom and then murder in terms of Section 364-A IPC has not been established. The question is that in the absence of any motive for ransom, can still the evidence on record bring about a conviction on the basis of the circumstantial evidence on record.
In this regard learned counsel for the appellants has referred to the inconsistency in the statements of PW-2, PW-3 and PW-4 to urge that the hypothesis of the deceased having been seen last in the company of the accused has not been established.
We may clarify that there is direct ocular testimony relating to the arrival of the accused at the house of the deceased in the afternoon of 2nd July, 2009. For this we may refer to the statement of PW-2 and PW-3 who are the brother and the mother of the deceased. As per the FIR, the initial doubt that arose in the mind of the informant and his family members was due to the incident which had taken place in the morning of the same day when Rajendra and Suraj, brother-in-laws of the deceased, had come to negotiate with regard to the dispute of their sister Sunita, wife of the deceased. When they had arrived, it was PW-2 Hemraj who was at home whereas Ram Kumar the deceased had gone to tend to his sand business. Thus Ram Kumar was not present in the morning when Rajendra and Suraj had arrived and had a heated exchange about which a reference has been made in the FIR itself, and which has also been corroborated by the statement of PW-2. It is on account of this that the initial suspicion was cast on these two persons, but on investigation it was found that Ram Kumar was not even present in the morning nor any further evidence was available to connect the brother-in-laws of the deceased to any such incident.
In the afternoon PW-2 Hemraj had gone out and the deceased Ram Kumar had come back after tending to his business and was at home with his mother PW-3. It is here that the statement of PW-3 assumes importance where she describes the arrival of the two accused between 12:30 and 1:00 pm who were entertained by her at tea and who spent some time at her home.
To understand this first circumstance of the arrival of the accused it would be apt to refer to the statement of PW-2 again relating to the acquaintance of the two accused with the deceased Ram Kumar. It has come in the statement of PW-2 that in the dispute with his wife Sunita, a criminal complaint was lodged against him, PW-3 the mother and the deceased Ram Kumar himself. PW-2 and PW-3 were enlarged on bail in the said criminal complaint but the deceased Ram Kumar had to suffer incarceration for about more than a month in that case whereafter he was bailed out. PW-2 has narrated that the deceased during his detention aforesaid had developed acquaintance with the appellants in jail where these two persons were also lodged along with Ram Kumar. He has also stated that his deceased brother had informed him that he had disclosed to the appellants about having received Rs.1 crore as compensation of acquisition of land. It is thereafter, when the accused also appear to have been bailed out, they had started visiting the deceased frequently and this acquaintance led to a relationship between the deceased and the two accused. This evidence of PW-2 and PW-3 respectively as narrated in their deposition was not subjected to any cross-examination by the defence nor this deposition was attempted to be demolished by any other evidence, and therefore, this link of the acquaintance of the appellants with the deceased and his family stands established.
In this background, the statement of PW-3 about having entertained both the appellants before they left with the deceased cannot be doubted. The question of PW-2 being present at that time may not arise as he himself has stated that he was not there when the deceased had arrived back home.
Learned counsel for the appellants submitted that there is a major variation in the statement of PW-3 while describing her availability at home when the appellants are stated to have arrived and departed. He submits that in her cross-examination PW-3 has stated that she did not know about the appellants prior to the case. She has also stated that prior to the kidnapping and missing report she had not met any of the accused. She then specifically stated that Babu (appellant no. 1) and Sanjay were not known to her from before the incident. While examining this part of the cross examination, we find that the cross examination had proceeded and was also continued with regard to the dispute with the brother-in-laws of the deceased and the incident of the morning as also the case between the deceased and his wife, but in between questions appear to have been interposed about the present incident. Later on she has again stated that the incident is of 2nd July, 2009 of the said month and it was at about 3:00 pm to 4:00 pm that the deceased had departed with the appellants who were described as his friends. She has repeated this by saying that she had made this statement even before the Investigating Officer. She has further stated that she had informed the Investigating Officer that after the departure of the deceased Ram Kumar she had the company of only two daughter-in-laws and no one else. She has then again stated that she did not know the appellants from before nor did she know their name and village and she has no enmity with them. However on the suggestions that she had not seen the deceased accompanying the appellants, she denied the same.
The cross-examination continued that was initiated on 10th February, 2010 after almost three months on 12th May, 2010. Learned counsel for the appellants points out that on cross-examination she stated that she could not clearly see the appellants having accompanied the deceased in a car and whether he was sitting on the front seat or not because at that time she was inside her house. She described that the distance from where the appellants and the deceased sat on the car, which is a gher near to her house, was the same distance which was from the Court to the chamber of the lawyers. She has then further stated that when Ram Kumar was being taken on the vehicle by the accused, she was busy in a condolence of a lady in the neighbourhood, and therefore, she could not see as to whether the deceased was seated on the front seat or on the back seat of the vehicle. She then stated that they immediately took away the deceased on the vehicle and she does not remember the direction in which the vehicle moved. When she returned back after half an hour her daughter-in-law told her that Ram Kumar the deceased had gone with his friends on a car and that she did not actually see them when they moved out on the car.
Learned counsel for the appellants is correct that there are variations that emerge from the cross-examination that was undertaken three months after the first installment of cross-examination. But at the same time she has not deviated in any way with regard to the arrival of the appellants which she has categorically stated that they arrived between 12:00 noon and 1:00 pm. She has also not deviated from describing the blue colour of the vehicle. She has also not deviated from the fact that Ram Kumar left the house with his friends and has named the two appellants Amrish alias Babu and Sanjay. In her examination-in-chief she has recognized the two accused who were present in Court as the same persons. The fact remains that even if she had been unable to substantiate prior acquaintance with them she has certainly stated that they had arrived at her house on 02.07.2009 and they were entertained by her. The First Information Report does not nominate the appellants. It is therefore clear that there was no occasion for the informant or PW-3 to falsely implicate the appellants. As a matter of fact they did not even initially doubt or suspect the appellants and it is for this reason that they were not named in the FIR. Learned counsel for the appellants is correct in his submission that if PW-2 had received the phone calls a day earlier i.e. on 3rd July 2009, and he had come to know of the names of the appellants then the FIR and the subsequent story set up raises a reasonable doubt about the prosecution evidence. If we are to partly believe and accept this theory, inspite of having held that the mobile calls for ransom could not be proved, then in that view of the matter the disclosure of the names by the accused on the mobile phones when it was being heard by the Sub-Inspector of Police appears to be an exaggeration. But if it is a circumstance to create a doubt then the possibility of a phone call having arrived cannot be ruled out. As held above if the said communication has not been established as per law to be admissible then the arrival of the appellants at the house of the deceased independent of the same cannot be doubted.
The variation in the statement of PW-3 that has been pointed out by the learned counsel for the appellants is not with regard to the arrival of the appellants but with regard to their departure of the deceased with them. The accompaniment of deceased Ram Kumar with the appellants after their arrival at his own house is established and it could not be impeached by the defence.
The last seen incident therefore is in two parts, the first being the arrival of the appellants and the deceased being in their company, the second is with regard to the departure of the deceased in the company of the appellants. In this regard PW-3 has consistently maintained that Ram Kumar accompanied his friends, namely, the two appellants and that Ram Kumar had told her that he is going to drop his friends. She is consistent in having seen a blue colour car. The car which has been recovered is of the same colour. The variation as to whether he was sitting in the front or on the hind seat may not have been correctly explained by her, and as stated by PW-3, she appears to have been in the neighbourhood but the fact remains that the arrival and departure of the appellants with the deceased in a short span of time is clearly established. PW-3 has stated that she came to know that the deceased went away in the car from his daughter-in-laws. There is nothing on record to suggest that there was no car in existence or that a vehicle of blue colour did not depart from near the house of the deceased. The arrival of the appellants is not in doubt. There is therefore no other hypothesis or even a remote possibility so as to dislodge the probability supported by the aforesaid evidence that establishes the arrival of the appellants and their departure along with the deceased. Thus this last seen description by PW-3 cannot be discarded on account of any such discrepancy as pointed out which does not materially alter the prosecution case.
The next witness to support this is PW-4. He is a neighbour who has simply stated that he saw a blue colour Santro Car in which the deceased was sitting which was being driven by one boy and another person was sitting behind. The boy sitting behind was lean and thin. This he saw on 2nd July, 2009 at about 4:00 pm. He categorically states that Ram Kumar the deceased was sitting beside the driver. He had informed the mother of the deceased who had told him that the two friends of the deceased had called him with whom he departed. Learned counsel for the appellants submits that firstly that the names of the appellants were not stated by PW-4 and if this fact had been disclosed on 2nd July 2009, then the FIR being completely silent, the prosecution has not been able to give any such explanation which benefit of doubt should be read in favour of the appellants. It is also pointed out that PW-4 had also given this information to PW-2 Hem Raj who had gone to lodge the report after having consulted PW-4. He in his cross-examination has stated that he did not see any incident nor had he seen the two accused before the incident nor did he personally know them and that they were unknown persons so far as he was concerned. He hastily remembered that one of them was lean and thin and the other was a tall and fat person. He had seen the Santro Car from a very short distance of five steps away and there was enough light to recognize them. The fat person was driving infront and the lean and thin boy was sitting behind. The deceased was sitting alongwith them in the Car besides the driver. They left towards the east direction of the village. The said witness has neither exaggerated nor embellished his statement and he has maintained it in the same fashion as was stated before the Investigating Officer. The said statement appears to be honest, inasmuch as, it does not seek to implicate by name the appellants. He has also supplicated and reinforced the utilization of a blue coloured Santro Car in which he saw the deceased seated with two persons. The timing and the date are also categorical which corroborates the version in the FIR and the statement of PW-2 and PW-3. In the said circumstances we see no reason as to why the statement of PW-4 should be discarded or not believed to the extent indicated above. The trial court has in our opinion rightly accepted his version.
The above discussions now takes us to the issue of burden having been discharged by the prosecution and shifting of the onus on the appellants. The prosecution has established that the appellants have turned out to be the strongest suspects with all other possibilities ruled out and with the only probability of the involvement of the appellants. The familiarity and acquaintance of the appellants with the deceased and his family has been discussed in detail hereinabove which is also borne out from the evidence on record. We have also explored all possibilities by penetrating into the existing facts and without venturing into any uncertain material. The disappearance of the deceased within a short span of time of the arrival of the appellants as elicited in the statements of PW-3 and PW-4 which are steady and consistent are circumstances that remove almost every doubt. The witnesses have nowhere varied in the number of friends of the deceased who are two, namely, the appellants and also the colour of the vehicle which is blue. Even though five defence witnesses have been examined, we do not find any denial of the acquaintance of the appellants with that of the deceased and his family. The appellants did have a right of silence but the same is subject to the provisions of Section 106 of the Indian Evidence Act, 1872 which is clearly attracted on the facts of the present case. The prosecution in our opinion through the evidence led had proved the circumstances of the disappearance of the deceased alongwith the appellants beyond reasonable doubt. The calls on the mobile phone on the next day of the disappearance must have helped the Investigating Agency in tracking down the appellants. In the background aforesaid, the only probable inference that can be gathered from the circumstances taken together that the deceased disappeared after he accompanied the appellants and was shortly done to death thereafter. Thus this is a case of clinching circumstantial evidence, and in our opinion, the prosecution has been able to successfully discharge its burden as discussed hereinabove so as to firmly establish the entire links of the chain which could not be dislodged by the defence. We find our conclusions drawn to be in conformity with the principles of law laid down by the Apex Court from time to time in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra 1984 (4) SCC 116, in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra 2006 (10) SCC 681 (Paragraph Nos. 12, 13, 14 and 21) and the reiteration of the said principles in the latest decision of the Apex Court in the case of State of Himachal Pradesh Vs. Raj Kumar 2018 (2) SCC 69. The prosecution has established convincingly the only probable hypothesis of the involvement of the appellants by leading evidence and there is a complete failure on the part of the appellants accused to explain the incriminating circumstances of the disappearance of the deceased after he had joined their company. The corroborating material as pointed out hereinabove inspires complete confidence to conclude that the deceased was eliminated by the appellants. The guilt therefore having been established on the basis of reliable evidence coupled with the circumstances discussed above, the appellants have rightly been convicted by the trial court for having committed the murder of the deceased.
For all the reasons given hereinabove, we do not find any error in conclusions drawn by the trial court in arriving at the findings that the deceased had been done to death by the appellants and they are guilty of the murder of the deceased coupled with the offence of trying to obliterate the evidence in this regard.
In view of what has been stated above, the offence under Section 364-A does not appear to have been established even though the elements of an offence under Section 365 IPC were traceable but in view of inadequate evidence on the issue of ransom and findings arrived at hereinabove we hold that the appellants are guilty only of the offence of committing the murder of deceased, and therefore, they are liable to be punished under Section 302 read with Section 201 IPC. The appellants stand absolved of the offence under Section 364-A I.P.C. and the conviction and the sentence awarded on that count is set aside. Accordingly, we see no reason to reduce the sentence of life imprisonment awarded to the appellants coupled with the fine by the trial court under Section 302 and Section 201 IPC. The conviction and sentence by the trial court to that extent is upheld. The appellants shall serve out their sentence accordingly.
The appeal is therefore dismissed subject to above.
Order date:- 31.08.2018 S.Chaurasia