SONU@AMAR v. STATE OF HARYANA

1.2 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 658 (4). It is clear that an c 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 is whether the defect could have been cured at the stage of marking the document. Applying this test to the instant case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution D an opportunity to rectify the deficiency. It is also clear 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 Counsel for the State referred to statements under Section 161 Cr. P.C. 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. An objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65 B (4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof. In the instant G case, there is a clear failure to object to the mode of proof of the CDRs. [Paras 27, 28] [170-B-G] E F

1.3 Section 294 Cr. P.C. 1973 provides a procedure for filing documents in a Court by the prosecution or the accused. The H 154 SUPREME COURT REPORTS [2017) 8 S.C.R. A documents have to be included in a list and the other side shall be given an opportunity to admit or deny the genuineness of each document. In case the genuineness is not disputed, such document shall be read in evidence without formal proof in accordance with the Evidence Act. [Para 301 [173-E-Fl B D C

1.4 Electronic records play a crucial role in criminal investigations and prosecutions. The contents of electronic records may be proved in accordance with the provisions contained in Section 65B. Interpreting section 65B(4), this Court in Anvar s case held that an electronic record is inadmissible in evidence without the certification as provided therein. The interpretation of section 65B (4) by this Court by a judgment dated 04.08.2005 in Navjot Sandhu held the field till it was overruled on 18.09.2014 in Anvar's case. All the criminal courts in this country are bound to follow the law as interpreted by this Court. Because of the interpretation of s. 65B in Navjot Sandhu, there was no necessity of a certificate for proving electronic records. A large number of trials have been held during the said period. Electronic records without a certificate might have been adduced in evidence. There is no doubt that the judgment of this Court in Anvar's case has to be retrospective in operation unless the judicial tool of 'prospective overruling' is applied. However, retrospective application of the judgment is not in the interests of administration of justice as it would necessitate the reopening of a large number of criminal cases. Criminal cases decided on the basis of electronic records adduced in evidence without certification have to be revisited as and when objections are taken F by the accused at the appellate stage. Attempts will be made to reopen cases which have become final. [Paras 31, 32[ [173-G-H; 174-A-Dl E

1.5 This Court did not apply the principle of prospective overruling in Anvar's case. If the judgment in the case of Anvar is applied retrospectively, it would result in unscrambling past transactions and adversely affecting the administration of justice. As Anvar's case was decided by a Three Judge Bench, propriety demands that this Court refrains from declaring that the judgment would be prospective in operation. It is left open to be decided in an appropriate case by a Three Judge Bench. In any event, this G H SONU @ AMAR v. STATE OF HARYANA 155 question is not germane for adjudication of the instant dispute in A view of the adjudication of the other issues against the accused. The judgment of the High Court confirming the trial court is upheld. [Paras 35, 36) [176-B-D) Dalbir Kaur v. State of Punjab (1976) 4 SCC 158:(1977) 1 SCR 280; Anvar P. V. v. P.K. Basheer (2014) 10 SCC 473 : (2014) 11 SCR 399; State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 : [2005) 2 Suppl. SCR 79; Padman v. Hanwanta AIR 1915 PC 1; RVE Venkatachala Gounder v. Arulmigu Visweswaraswami (2003) 8 sec 752 : (20031 4 Suppl. SCR 450; Chainchal Singh v. King Emperor AIR 1946 PC 1; Shaikh Farid v. State of Maharashtra 1983 CrLJ 487; Gopal Das v. Sri Thakurji AIR 1943 PC 83; P C Purshothama Reddiar v. S Perumal (1972) 1 SCC 9 : [1972) 2 SCR 646; IC Golak Nath v. State of Punjab, (19671 2 SCR 762; K. Madhav Reddy v. State of Andhra Pradesh (2014) 6 SCC 537: (2014( 7 SCR 348 - referred to. Weeks v. United States, 232 U.S. 383 (1914); Wolf v. Colorado, 338 U.S. 25 (1949); Mapp v. Ohio 367 U.S. 643 (1961); Linkletter v. Walker 381 U.S. 618 (1965); R. v. Governor of H.M. Prison Brockhill, ex p. Evans (No. 2) (20001 4 All ER 15 - referred to. Case Law Reference (1977) 1 SCR 280 (2014) 11 SCR 399 [2005) 2 Suppl. SCR 79 AIR 1915 PC 1 [2003) 4 Suppl. SCR 450 AIR 1946 PC 1 1983 CrLJ 487 AIR 1943 PC 83 [1972) 2 SCR 646 [1967) 2 SCR 762 [2014) 7 SCR 348 referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to Para 14 Para 23 Para 23 Para 24 Para 25 Para 25 Para 25 Para 26 Para 26 Para 33 Para 35 B c D E F G H 156 SUPREME COURT REPORTS [2017] 8 S.C.R. A CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1418 of2013. From the Judgment and Order dated 11.l 0.2012 of the High Court of Punjab & Haryana at Chandigarh in CRA No. I 066-DB of 2010 B WITH Cr!. A. No. 1416 of2013 Crl.A. Nos. 1652and1653 of2014. Sidharth Luthra, Sr. Adv., Sunil Malhotra, Santosh Srivastava, Ms. Sudha Srivastava, Kuna! Malhotra, Ms. Reeta Puri, P. N. Puri, Pawan C Sharma, D. B. Goswami, Deepak Thokchom, Sri Loknath Rath, Dr. Sushil Balwada, Harikesh Singh, Satyendra Kumar, Ram Lal Roy, Advs. for the Appellant. Vivek Sood, U. K. Uniyal, Sr. Advs., Vinod Sharma, Dinesh Chander Yadav, AAGs, Pawan Reley, Dr. Monika Gusain, D. K. Garg, D Dhananjay Garg, Vishwa Pal Singh, Advs. for the Respondent. The Judgment of the Court was delivered by E L. NAGESWARA RAO, J. I. The Appellants in the above appeals along with Dharmender@Bunty were found guilty of abduction and murder of Ramesh Jain. They were convicted and sentenced for life imprisonment. Their conviction and sentence was confirmed by the High Court. Accused Dharmender@ Bunty did not file an appeal before this Court. Accused Rampa) was convicted under Section 328 read with 20 I IPC and was sentenced to 7 years imprisonment. His conviction was also confirmed by the High Court which is not assailed before us. F

#2. Dinesh Jain (PW-I) approached the SHO, Ganaur Police Station (PW 31) at 01 :30 pm on 26.12.2005 with a complaint that his father was missing on the basis of which FIR was registered by PW 31. As per the FIR, Dinesh Jain left the rice mill at 7:00 pm on 25.12.2005 and went home while his father stayed back. As his father did not reach home even at l 0:00 pm, he called his father's mobile number and found it to be G switched off. He went to the rice mill and enquired about the whereabouts of his father from Radhey, the Chowkidar and was informed that his father left the rice mill at 9:30 pm on his motor cycle bearing Registration No. DL-8-SY-4510. He along with his family members searched for his father but could not trace him. He apprehended that his father might H have been kidnapped. SONU @AMAR v. STATE OF HARYANA [L. NAGESWARA RAO, J.] 157

#3. After registration of the FIR, PW 31 started investigation by A visiting the rice mill and making inquiries. On 28.12.2005 one motor cycle was recovered from a pit near Bai crossing. As the number plate of the vehicle was blurred, PW31 verified the engine number, compared it with the registration certificate to find that the seized motor cycle belonged to Ramesh Jain. B

#4. On 09.01.2006, Dinesh Jain (PW 1) and Ashok Jain (PW 3) informed PW 31 that a call was received on the mobile phone of PW 1 from a person who identified himself as Bunty and who was speaking in Bihari dialect. He informed them that Ramesh Jain was in his .custody and demanded a ransom of Rs. I crore for his release. They were also asked to purchase another mobile phone having Delhi network to which C future calls would be made. The Investigating Officer (PW31) visited the rice mill belonging to deceased Ramesh Jain on 17.01.2006 and met PW 1, PW3 and Dhir Singh (PW 7). They handed over four threatening letters (Exh.P 1 to P 4 ), one key ring (Exh.P 9), one silver ring having a precious stone (Exh.P 10) and a piece of cloth of a shirt worn by the D deceased on 25.12.2005 when he was kidnapped (Exh.Pl 1). PW 1 and PW 3 informed the Investigating Officer that Bunty called them and told them that they would find the key ring, silver ring, a piece of cloth and cuttings of newspaper near Bai crossing. They collected the said articles from Bai crossing.

#5. The Investigating Officer along with SRO Special Cell, Rohini, Delhi constituted three raiding parties on 20.01.2006 on the basis of information that the accused would visit Tibetan Market. Pawan (Al), Surender (A2) and Dharmender@ Bunty (A3) were arrested at 11 :45 pm when they visited the Tibetan Market, Delhi in a Maruti car. Their mobile phones and some cash were recovered from them. E F

#6. On 22.01.2006, Amar@ Sonu (AS) and Parveen (A4) were arrested near the bus stand at Ganaur Chowk, GT Road, Ganaur. Two mobile phones were seized from Sonu (AS). Parveen @ Titu (A4) suffered a disclosure statement during the course of investigation that Ramesh Jain was abducted and a demand of Rs. 1 crore was made G from his family members for his release. Parveen (A4) stated that Ramesh Jain was murdered and his dead body was buried at Baba Rude Nath temple in village Kheri Khusnam. In his disclosure statement, Surender (A2) further disclosed that Dr. Rampa! administered injections to keep Ramesh Jain unconscious. He further disclosed that Ramesh H 158 SUPREME COURT REPORTS [2017] 8 S.C.R. A Jain was murdered on 29.12.2005 and his dead body was buried in a pit at Baba Rude Nath temple. Dharmender@ Bunty (A3) and Surender (A2) also suffered disclosure statements in which they stated that they can identify the place where Ramesh Jain was murdered and buried.

#7. The Investigating Officer was led by Parveen (A4), B Dharmender (A3) and Surender (A2) to Baba Rude Nath temple in village Kheri Khusnam on 22.01.2006. The room in which Ramesh Jain was confined and murdered was pointed out by A2 to A4. The dead body of Ramesh Jain was exhumed from the place identified by A2 and A4. PWl, PW3, PW6 along with PWl 1 Jai Chand, SDM were present C at the spot from where the dead body of Ramesh Jain was taken out from the pit. E

#8. On 24.01.2006, a disclosure statement was made by Parveen (A4) pursuant to which he identified the place where the key ring of the motor cycle, threatening letters and a ring of deceased Ramesh Jain were placed near a sign board at the crossing of village Bai. He further D · disclosed that he concealed another ring of Ramesh Jain at his house in village Ghasoli at a place which he can only identify. Parveen led the police party to the place where he concealed the golden ring of the deceased which was identified by PWl and recovered through memo Exh.PT/5. Dharmender@ Bunty (A3) Jed the police party to a rented room situated at Shashtri Park, Delhi from where the SIM card of mobile No. 9896351091 belonging to deceased Ramesh Jain was recovered from a concealed place. Pursuant to a disclosure statement, he also identified the place where the motor cycle of deceased was thrown after he was abducted. On 30.01.2006, Sonu @Amar suffered a disclosure statement to the effect that he had concealed the wallet of Ramesh Jain and certain documents like PAN card, diary, three electricity bills, two water bills and his photographs underneath the seat of his shop which were exclusively in his knowledge. The said documents were seized by the Investigating Officer from the shop belonging to Sonu @ Amar (AS). The registration certificate of the motor cycle of deceased G Ramesh Jain was recovered from a drawer of the table in the house situated at Begha Road, Ganaur which was occupied by Pawan (A I) pursuant to a disclosure statement by him. A country made pistol with two live cartridges were recovered from the same room situated at Begha Road on the basis of disclosure statement made by Surender (A2). F H

#9. Dr. Ram Pal (A6) surrendered in the Court of Sub Divisional SONU @AMAR v. STATE OF HARYANA _, [L. NAGESWARA RAO, J.] 1S9 Judicial Magistrate (SDJM), Ganaur on 01.02.2006. He suffered a A disclosure statement on the basis of which a syringe which was used for giving injections to keep the deceased unconscious was seized from the roof of Baba Rude Nath temple, village Kheri Khusnam. A spade was also recovered from underneath a cot in his house on the basis of his disclosure statement. B

#10. The Investigating Officer collected the Call Detail Records (CD Rs) of all the mobile phones that were recovered from the accused, mobile phones of the deceased and Dinesh Jain (PW 1) from the Nodal officers of the mobile companies.

#11. Accused Manish (A 7) who is a cousin of Sonu (AS) c surrendered on 12.04.2006 in the Court ofSDJM, Ganaur. He is alleged to have assisted AS in the abduction. He was acquitted by the Trial . Court which was confirmed by the High Court which remains unchallenged. The accused were tried for offences punishable tinder Section 120 B, 364A, 302, 328Aand201 read with 120 B of the Indian Penal Code. In addition, A2 was also charged for committing an offence D under Section 2S of the Arms Act. The Additional Sessions Judge, Sonepat by his judgment dated 11.10.2010 convicted Al to AS for the aforesaid offences and sentenced them to life imprisonment. A6 was convicted under Section 328 and 201 oflPC and sentenced to seven years. All the convicted accused filed appeals before the High Court. Dinesh Jain E (PW 1) filed an appeal for enhancement of the sentence of the convicted appellants. He also challenged the acquittal of accused Manish (A7). The High Court dismissed all the appeals after a detailed re-appreciation of the material on record. Al, A2, A4 and AS have approached this Court by filing appeals against the confirmation of their conviction and sentence. F

#12. We have carefully examined the entire material on record and the judgments of the Trial Court and the High Court. The Trial Court relied · on the testimonies of PW l and PW3, the recoveries made pursuant to the disclosure statements of the accused and the CDRs of the mobile phones of the accused, the deceased and PW 1 to conclude that the prosecution G established that the accused are guilty beyond reasonable doubt. The Trial Court also discussed the complicity of each of the accused threadbare. The High Court re-appreciated the evidence and placed reliance on the disclosure statements, the consequential recoveries and the CDRs of the mobile phones to confirm the findings of the Trial Court. H 160 SUPREME COURT REPORTS [2017] 8 S.CR. A 8

#13. Ramesh Jain left his rice mill at 9:30 pm on 25.12.2005. His dead body was exhumed from the premises of the temple in village Kheri Khusnam on the intervening night of 22/23.01.2006. The post mortem examination was conducted by Dr. Pankaj Jain (PWl6) on 23.01.2006. He deposed that the process of decomposition was in progress. The skin was peeled off at most places. A muffler was present around the neck of the dead body. Both wrists and ankles were tied by a piece of cloth. The hyoid bone was found fractured. In the opinion of PW 16, Ramesh Jain died of asphyxia. The probable time of death, according to him, was 3/4 weeks prior to 23.01.2006. He also deposed that the process of decomposition would be slower during winter. Dinesh C Jain (PW!) deposed that there was a demand of ransom of Rs. I crore for the release of his father which was made through a telephone call on 06.01.2006 from a person who identified himself as Bunty and who was speaking in Bihari dialect. He also spoke of the calls that were made from the mobile phone bearing No. 9896351091 belonging to his father D on 08.01.2006 and 09.01.2006 by which the ransom demands were repeated. He further stated about the threatening letters received by him at his shop address. He also deposed that he collected a piece of shirt worn by his father on the day of his abduction along with one silver ring and a key ring of the motor cycle of his father at a place specified in a call received by him on 16.01.2006. He was present when the dead E body of his father was being taken out and he video-graphed the exhumation. Ashok Jain (PW3) who is the brother of deceased Ramesh Jain, corroborated the evidence of PW! regarding the demands that were. made for payment of ransom for the release of Ramesh Jain.

#14. The arrest of Al to A3 from Tibetan Market, Delhi at 11 :45 F pm on 20.01.2006 led to several disclosure statements made by the accused pursuant to which relevant material was recovered. The details of recoveries made from each of the accused will be discussed later. The dead body of the deceased Ramesh Jain was also recovered pursuant to a disclosure statement made by A2 to A4. The CDRs that were obtained from the Nodal officers of the telephone companies which were G exhibited in the Court without objection clearly prove the complicity of all the accused. A detailed and thorough examination of the number of calls that were made between the accused during the period 25.12.2005 to 20.01.2006 was made by the Courts below to hold the accused guilty of committing the offences. We do not see any reason to differ from the H conclusions of the Courts below on the basis of the evidence available SONU @AMAR v. STATE OF HARYANA [L. NAGESWARA RAO, J.] . 161 on record. Neither do we see any perversity in the reasons and the A conclusion of the Courts below. The jurisdiction of this Court in criminal appeals filed against concurrent findings is circumscribed by principles summarised by this Court in Dalbir Kaur v. State of Punjab, (1976) 4 sec 158 ir 8, as follows; "8. Thus the principles governing interference by this Court in a B criminal appeal by special leave may be summarised as follows: "(J) that this Court would not interfere with the concurrent finding offact based on pure appreciation of evidence even if it were to take a different view on the evidence; (2) that the Court will not nonnally enter into a re-appraisement C or review of the evidence, unless the assessment of the High Court is vitiated by an error oflaw or procedure or is based on error ofrecord, misreading of evidence or is inconsistent with the evidence, for instance, where the ocular evidence is totally inconsistent with the medical evidence and so on; (3) that the Court would not enter into credibility of the D evidence with a view to substitute its own opinion for that of the High Court; ( 4) that the Court would interfere where the High Court has arrived at a finding of fact in disregard of a judicial process, principles of natural justice or a fair hearing or has acted in E violation of a mandatory provision oflaw or procedure resulting in serious prejudice or injustice to the accused; ( 5) this Court might also interfere where on the proved facts wrong inferences of law have been drawn or where the conclusions of the High Court are manifestly perverse and F based on no evidence."

#15. Admittedly, there is no direct evidence of kidnapping or the murder of Ramesh Jain. This is a case of circumstantial evidence. In a catena of cases, this Court has laid down certain principles to be followed in cases of circumstantial evidence. They are as under:

#1. The circumstances from which an inference of guilt is sought to be proved must be cogently or finnly established.

#2. The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. G H 162 A B c SUPREME COURT REPORTS [2017] 8 S.C.R.

#3. The circumstances taken cumulatively must form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else.

#4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.