Hon'ble Bachchoo Lal,J.
After the arguments had almost been concluded by both sides, the learned A.G.A. Sri Ajit Ray on the issue of admissibility of electronic evidence placed reliance on the judgment of the Apex Court in the case of Sonu @ Amar versus State of Haryana 2017 Vol. 8 SCC page 570 paragraphs 23 to 40. He submits that electronically generated call detail records in the present case had been exhibited and were proved by the Investigating Officer who had obtained the same. The submission is that since no objection was taken to the mode of proof and method of proving the said document at the stage of exhibition before the trial court itself, then in view of the ratio of the abovementioned decision such an objection raised on behalf of the learned counsel for the appellants to discard the same can not be entertained at this stage. At the same time the judgment relied on by the learned counsel for the appellants in the case of Anwar P.V. Vs. P.K. Bashir 2014 Vol. 10 SCC page 473 has also been taken into consideration for the purpose of assessing the impact of overruling of the earlier decision. In the concluding paragraph 40 of the cited judgment, it has been observed that if the judgment in the case of Anwar P.V. (Supra) is applied retrospectively, it would result in unscrambling past transactions and adversely affect the administration of justice, but since the said judgment in the case of Anwar P.V. (Supra) was a 3 judges decision proprietory demands that the court should refrain from declaring that it would be prospective and therefore, the said issue was left open to be resolved in an appropriate case by a 3 judges bench.
The aforesaid issue has also to be examined keeping in view another judgment of the Apex Court in the case of Shafiq Ahmad Vs. State of Himanchal Pradesh 2018 Vol. 2 SCC page 801 which is a 2 judges order, and not a final judgment, clarifying the legal position on the admissibility of electronic evidence especially by a party who is not in a possession of the device from which the document is produced. It has been held that such a party can not be required to produce a certificate under section 65B (4) of the Indian Evidence Act but the applicability of requirement of certificate being procedural can be relaxed by the court wherever the interest of justice so demands.
In the present case one of the major arguments advanced by the learned counsel for the appellants in support of the appeal is about the abduction and demand of ransom which was allegedly communicated through a mobile transmission, the call detail records of which have been relied upon by the prosecution. The said evidence has been impeached before us on the ground that it being inherently inadmissible the same can not be made the basis for convicting the appellants or even construing their involvement in the demand of any ransom.
As a sequence to the arguments it is urged that if the demand of ransom does not exist or has not been proved, then there is a complete absence of motive that can be assigned to the appellants, and this being a case of pure circumstantial evidence, in the absence of motive the trial court's judgment of conviction can not be upheld.
Submissions in detail have also been made by both sides with regard to the evidence of last seen and it is the argument of learned counsel for the appellants that even this part in order to prove the abduction of the deceased has not been established.
Thirdly the recovery and arrest has also been challeged which includes the recovery of the mobile phone which the learned counsel contends is not a genuine recovery. Other ancillary submissions have also been raised and answered by the learned A.G.A. but this issue relating to the admissibility of electronic records gains importance in the present case keeping in view the submissions advanced.
In view of the law as propounded in the case of Sonu Vs. State of Haryana (Supra), learned counsel for the appellants submits that he may be granted some more time to address the court on the aforesaid issue and the applicability of the judgment on the facts of the present case.
As prayed put up on Tuesday next i.e. 7.8.2018.
Order Date :- 31.7.2018 Masarrat