REPORTABLE   

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1418 of 2013

SONU @ AMAR                                                                      .... Appellant(s)

Versus STATE OF HARYANA

                                            ….Respondent(s) With  

CRIMINAL APPEAL No.1416 of 2013 CRIMINAL APPEAL No. 1653 of 2014 CRIMINAL APPEAL No. 1652 of 2014

J U D G M E N T

L. NAGESWARA RAO, J.

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 Rampal was

convicted  under  Section  328  read  with  201  IPC  and  was

sentenced to 7 years imprisonment.  His conviction was also

confirmed by the High Court which is not assailed before us.   

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2. Dinesh  Jain  (PW-1)  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 10:00

pm, he called his father’s mobile number and found it to be

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 have been

kidnapped.   

3. After registration of the FIR, PW 31 started investigation

by 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.  

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

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was speaking in Bihari dialect.  He informed them that Ramesh

Jain was in his custody and demanded a ransom of Rs.1 crore

for  his  release.   They  were  also  asked  to  purchase  another

mobile phone having Delhi network to which 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 deceased on 25.12.2005 when he

was  kidnapped  (Exh.P11).   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  SHO  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 (A1), 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.  

6. On 22.01.2006, Amar @ Sonu (A5) and Parveen (A4) were

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arrested  near  the  bus  stand  at  Ganaur  Chowk,  GT  Road,

Ganaur.   Two  mobile  phones  were  seized  from  Sonu  (A5).

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 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. Rampal administered

injections  to  keep  Ramesh  Jain  unconscious.  He  further

disclosed that Ramesh 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),

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.   PW1,  PW3,  PW6 along with

PW11 Jai Chand, SDM were present at the spot from where the

dead body of Ramesh Jain was taken out from the pit.  

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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 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 PW1 and recovered through

memo Exh.PT/5.    Dharmender  @ Bunty (A3)  led 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 (A5).  The registration

certificate  of  the  motor  cycle  of  deceased Ramesh  Jain  was

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recovered from a drawer of the table in the house situated at

Begha  Road,  Ganaur  which  was  occupied  by  Pawan  (A1)

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).

9. Dr. Ram Pal (A6) surrendered in the Court of Sub Divisional

Judicial Magistrate (SDJM), Ganaur on 01.02.2006.  He suffered

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.     

10. The Investigating Officer collected the Call Detail Records

(CDRs) 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  (A7)  who  is  a  cousin  of  Sonu  (A5)

surrendered on 12.04.2006 in the Court of SDJM, Ganaur.  He is

alleged to have assisted A5 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

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punishable under Section 120 B, 364 A, 302, 328 A and 201

read with 120 B of the Indian Penal Code.   In addition, A2 was

also charged for committing an offence under Section 25 of the

Arms  Act.   The  Additional  Sessions  Judge,  Sonepat  by  his

judgment  dated  11.10.2010  convicted  A1  to  A5  for  the

aforesaid offences and sentenced them to life imprisonment.

A6  was  convicted  under  Section  328  and  201  of  IPC  and

sentenced  to  seven  years.   All  the  convicted  accused  filed

appeals  before the High Court.   Dinesh Jain  (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.   A1, A2, A4 and A5

have  approached  this  Court  by  filing  appeals  against  the

confirmation of their conviction and sentence.   

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  PW1  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

established  that  the  accused  are  guilty  beyond  reasonable

doubt.  The Trial Court also discussed the complicity of each of

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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.  

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 (PW16) 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  Jain

(PW1) deposed that  there was a demand of  ransom of  Rs.1

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 on 08.01.2006

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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 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 PW1 regarding the demands that

were made for payment of ransom for the release of Ramesh

Jain.  

14. The arrest of A1 to A3 from Tibetan Market, Delhi at 11:45

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  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

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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 conclusions of the Courts below on the basis of

the  evidence  available  on  record.   Neither  do  we  see  any

perversity  in  the  reasons  and  the  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 SCC 158 ¶ 8, as follows:     

“8. Thus  the  principles  governing  interference  by  this Court  in  a  criminal  appeal  by  special  leave  may  be summarised as follows:

“(1) that this Court would not interfere with the concurrent  finding  of  fact  based  on  pure appreciation of evidence even if it were to take a different view on the evidence; (2) that the Court will not normally enter into a re-appraisement  or  review  of  the  evidence, unless  the  assessment  of  the  High  Court  is vitiated  by  an  error  of  law  or  procedure  or  is based on error of record, 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 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 violation of  a mandatory  provision  of  law  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

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are  manifestly  perverse  and  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  firmly established.

2. The circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused.

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. (See:  Shanti  Devi  v.  State  of  Rajasthan,  (2012)  12 SCC  158 ¶10);  (See  also:  Hanumant  v.  State  of Madhya  Pradesh  (1952)  SCR 1091 (P.1097)  Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 ¶153).  

16. Applying the above principles to the facts of this case, we

find  that  the  following  circumstances  would  lead  to  the

conclusion of guilt against the accused:

A. The deceased was missing from 23.12.2005 and his dead body was dug out from the premises of a temple on 23.01.2006.

B. Demand  of  ransom  for  the  release  of  the

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deceased  is  proved  by  the  oral  testimonies  of PW1 and PW3.

C. Disclosure  statements  of  A2  to  A4  and  the recovery of the dead body from the premises of the temple.

D. Disclosure  statements  made  by  the  accused pursuant to which there was recovery of several articles belonging to the deceased including the SIM card of his mobile number, wallet containing his personal belongings, etc.   

E. The CDRs of the mobile which clearly show the interaction of the accused during the period from 25.12.2005  to  20.01.2006  as  well  as  the  calls made to PW1 including the calls made from the mobile phone of the deceased.   

F. The silver ring, key ring of the motor cycle and a piece  of  cloth  worn  by  the  deceased  on 25.12.2005  which  were  sent  to  PW1  by  the accused.    

17. We deem it proper to consider the submissions made by

the learned counsel for the accused.    

A1 - Pawan  (Criminal Appeal No.1416 of 2013)

18. The  registration  certificate  of  motor  cycle  No.

DL-8-SY-4510 of the deceased was recovered from A1 pursuant

to  the  disclosure  statement  Exh.PDD.    The  registration

certificate was recovered from the drawer of a table lying in the

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room of his house situated at Begha Road, Ganaur.      

19.  Mr.  D.  B.  Goswami,  learned  counsel  appearing  for  A1

submitted  that  A1  and  A4  are  brothers.   A4  and  A2  were

partners  in  transport  business.   He  submitted  that  A1  was

arrested from his house in his village Ghasoli, District Sonepat.

He relied upon the evidence of  DW 2 and DW 5 in  support

thereof.   DW2 and DW 5 who are residents of village Ghasoli

deposed that police personnel visited the village around 9 am

in search of Parveen (A4) on 20.01.2006.  They stated that A1

accompanied the police to the police station.  He travelled in

his own car and the police went in the Govt. Jeep.  On the other

hand, the case of the prosecution is that A1 was arrested along

with A2 and A3 at 11:45 PM on 20.01.2006 at Tibetan Market,

Delhi.   The police from Rohini Police Station, Delhi were also

involved in the raid pursuant to which A1 was arrested.    The

interested  testimonies  of  DW2  and  DW5  do  not  merit

acceptance,  especially  when the prosecution has proved the

arrest  and the subsequent  recoveries  made pursuant  to  the

disclosure  statement  of  A1.   The  learned  counsel  submitted

that the application filed by A1 to take his voice sample was

rejected by the Trial Court and so he cannot be found fault with

for not giving his voice sample.   A1 refused to give his voice

sample when the prosecution moved the Court.   Thereafter, A1

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filed  an  application  to  take  his  voice  sample  and  the  said

application was disposed of by the Trial Court giving liberty to

A1 to file again after the prosecution evidence was completed.

Therefore, the learned counsel for A1 is wrong in contending

that his application for giving voice samples was rejected by

the  Court.   The  learned  counsel  further  submitted  that  the

CDRs of the mobile phone of A1 would suggest that he was

making calls only to A2, A3 and A4.  He made an attempt to

justify the calls on the ground that A4 was his brother and A2

was his brother’s partner.  No justification has been given for

the 28 calls between him and A3 who is from Bihar and who

was making the calls demanding a ransom of Rs.1 crore from

PW 1.  

A2 - Surender (Criminal Appeal No.1652 of 2014)

20. A2 was arrested on 20.01.2006 in Tibetan Market, Delhi

along with A1 and A3 and was found to be in possession of a

mobile phone bearing No.9813091701 which was used by him

for  conversing  with  A1,  A3  and  A4  between  25.12.2005  to

20.01.2006.  Three STD booth receipts Exh.P41, P42 and P43

were recovered from A2.   These receipts showed calls being

made to mobile No. 9896001906 which belongs to A5 Sonu. He

was a resident of Jhinjhana village and the calls made from the

STD  booth  with  telephone  No.  01398257974  pertain  to

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Jhinjhana.  An amount of Rs.20,000/- was also recovered from

him at the time of his arrest.  The said amount was supposed to

have been given to him by A5 Sonu.  Pursuant to his disclosure

statement  Exh.PCC  A2  led  the  police  party  to  his  rented

accommodation at Begha Road, Ganaur and a country made

pistol with two live cartridges .315 bore were recovered in the

presence of PW5 Mohan Lal.   He also identified the place of

abduction of Ramesh Jain at Ganaur and the place where the

dead body was  buried at  Baba Rude Nath  temple  in  village

Kheri  Khusnam.   Mr.  Ram  Lal  Roy,  learned  counsel  for  A2

doubted  the  recovery  of  the  country  made  pistol  and

cartridges.   He  submitted  that  the  dead  body recovered  on

22.01.2006 is that of a priest and not of Ramesh Jain. There is

no foundation laid by the defence in support of this contention.

There is nothing on record to prove that the dead body is that

of a priest.  We are of the opinion that the dead body is that of

Ramesh  Jain  as  identified  by  his  relatives.   The  medical

evidence shows that the skin was peeled off at several places

but the features of the body could easily be made out.  PW 16

also deposed that decomposition is slow in winter months.  We

have perused the photograph of Ramesh Jain and compared it

with  a  photograph  of  the  dead  body  recovered.   We  are

convinced  that  the  body  recovered  is  that  of  the  deceased

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Ramesh Jain.                  

A4 - Parveen @ Titu (Criminal Appeal No.1653 of 2014)

21. The STD booth receipt Exh. P44 showing a call made from

STD  booth  having  No.  01398257974  from  Shamli  village  in

Uttar Pradesh was recovered from A4 at the time of his arrest

on 22.01.2006.  As per the receipt, a call was made to mobile

No.9896001906 which belongs to Sonu (A5).  Pursuant to the

disclosure statement made by him, he identified the place at

village Bai crossing on GT Road where he kept the key ring of

motor cycle, silver ring belonging to deceased Ramesh Jain and

the threatening letters.   A golden ring of the deceased was

also recovered from his residential house at village Ghasoli.  He

also made a disclosure statement which led the police to the

place where the deceased was wrongfully confined.  His SIM

card  with  mobile  No.  9812016269  was  seized  from  his

residential  house.   There  is  sufficient  evidence on  record  to

suggest that he was in constant touch with the other accused.

His mobile phone and the recoveries that were made pursuant

to  the  disclosure  statement  would  clearly  prove  his

involvement in the crime.              

A5 - Sonu (Criminal Appeal No.1418 of 2013)

22. Mr. Sidharth Luthra, learned Senior Counsel appearing for

A5 submitted that it is highly improbable that A5 was arrested

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at a bus stop at Ganaur Chowk, GT Road, Ganaur. According to

him, A5 was arrested on 20.01.2006 at 10:15(30) pm from his

house.   He relied upon the evidence of DW5 and DW8.   We do

not find any substance in the submission that A5 was arrested

on 20.01.2006 itself as it is clear from the testimony of DW8

that no complaint was made regarding the forcible arrest of A5

on 20.01.2006.   A disclosure statement was made by A5 which

was  marked  as  Exh.PBB  pursuant  to  which  there  was  a

recovery of the wallet belonging to the deceased from the shop

of A5.  A laminated PAN card, one passport size photograph of

the deceased, three electricity bills, two water bills and a small

diary of Jain Mantras bearing title ‘Aanu Purvi’ were recovered

from underneath the seat of his Aarat shop at Ganaur Mandi.

The  STD  booth  receipts  which  were  recovered  from  A2

Surender and A4 Parveen at the time of their arrest show that

they made calls on the mobile No.9896001906 belonging to A5

on 29th and 30th December, 2005.  A5 also received a call from

an STD booth in Patna on 06.01.2006.  Pursuant to a disclosure

statement made by him an Indica car bearing No. DL-3CW-2447

which was used in the abduction was seized. The recoveries

made pursuant to the disclosure statements of A5 cannot be

relied upon,  according to Mr.  Luthra.   He referred to the six

disclosure  statements  made by A5 between 22.01.2006 and

17

04.02.2006. He commented upon the improbability of recovery

of the wallet from underneath his seat at his shop.  He also

submitted that the recovery is from a public place accessible to

everybody and so the recoveries made cannot be relied upon.

We disagree with Mr. Luthra as the recovery of the wallet from

underneath  his  seat  is  something  which  is  to  his  exclusive

knowledge though other people might have access to his shop.       23.  Mr. Luthra contended that the CDRs are not admissible

under  Section  65B  of  the  Indian  Evidence  Act,  1872  as

admittedly  they  were  not  certified  in  accordance  with

sub-section  (4)  thereof.     He  placed  reliance  upon  the

judgment of this Court in Anvar P.V. v. P.K. Basheer, (2014)

10 SCC 473  by which the judgment  of  this  Court  in  State

(NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 was

overruled.   In  Navjot  Sandhu (supra)  this  court  held  as

follows:

“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”.

In Anvar’s case, this Court held as under:  

“22. The evidence relating to electronic record, as noted

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hereinbefore,  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 specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A 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 65-A and 65-B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic  record,  as  stated  by  this  Court  in Navjot Sandhu, 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 65-B are satisfied. Thus, in the case of CD, VCD, chip,  etc.,  the  same  shall  be  accompanied  by  the certificate in terms of Section 65-B 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 65-B in respect of the CDs, Exts. P-4, P-8, P-9, P-10, P-12, P-13, P-15, P-20 and P-22. 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.”

In view of the law laid down in the case of Anvar, Mr. Luthra

submitted  that  the  CDRs  are  liable  to  be  eschewed  from

consideration.    

24. Mr. Vivek Sood, learned Senior Counsel appearing for the

State of  Haryana submitted that  the CDRs were adduced in

evidence  without  any  objection  from  the  defence.   He

submitted that the accused cannot be permitted to raise the

point of admissibility of the CDRs at the appellate stage.   He

placed reliance on Padman v. Hanwanta, AIR 1915 PC 1 in

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which  the  Privy  Council  held  that  objections  regarding

admissibility of a document must be raised in the Trial Court.

Mr. Sood contended that there can be two classes of objections

regarding admissibility of documents. The first class is that a

document  is  per  se inadmissible  in  evidence.  The second is

where the objection is regarding the method or mode of the

proof of the document.  He submitted that the objection of the

accused in this case is regarding the mode or method of proof

as it cannot be said that the CDRs are  per se inadmissible in

evidence.    

25. Refuting the contentions of the learned senior counsel for

the State, Mr. Luthra submitted that the objection raised by him

pertains to inadmissibility of the document and not the mode of

proof.   He urged that the CDRs are inadmissible without the

certificate which is  clear  from the judgment  of  this  Court  in

Anvar’s  case. He  refers  to  the  judgment  of  RVE

Venkatachala  Gounder  v.  Arulmigu  Visweswaraswami,

(2003) 8 SCC 752 relied upon by the prosecution to contend

that an objection relating to admissibility can be raised even at

the appellate stage.   Mr. Luthra also argued that proof required

in a criminal case cannot be waived by the accused.   He relied

upon a judgment of the Privy Council in  Chainchal Singh v.

King Emperor, AIR 1946 PC 1 in which it was held as under:

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“In a civil case, a party can, if he chooses, waive the proof, but in a criminal case strict proof ought to be given that the witness is incapable of giving evidence”

He further  relied  upon the  judgment  of  a  Full  Bench of  the

Bombay  High  Court  in Shaikh  Farid  v.  State  of

Maharashtra,  1983  CrLJ  487.    He  also  submitted  that

Section 294 Cr.  P.C.  which is  an exception to  the rule  as to

mode of proof has no application to the facts of the present

case.      

26. That  an  electronic  record  is  not  admissible  unless  it  is

accompanied by a certificate as contemplated under Section

65B (4) of the Indian Evidence Act is no more res integra.  The

question  that  falls  for  our  consideration  in  this  case  is  the

permissibility of an objection regarding inadmissibility at this

stage.    Admittedly,  no objection was taken when the CDRs

were adduced in evidence before the Trial Court.   It does not

appear from the record that any such objection was taken even

at the appellate stage before the High Court. In Gopal Das v.

Sri Thakurji, AIR 1943 PC 83, it was held that:

“Where  the  objection  to  be  taken  is  not  that  the document is in itself  inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit  and admitted to the record. A party cannot lie by until the case comes before a Court of Appeal and then complain for the first time of the mode of proof.”       

     In RVE Venkatachala Gounder, this Court held as follows:

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“Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The  objections  as  to  admissibility  of  documents  in evidence  may  be  classified  into  two  classes:  (i)  an objection that the document which is sought to be proved is  itself  inadmissible in  evidence;  and  (ii)  where  the objection  does  not  dispute  the  admissibility  of  the document in evidence but is directed towards the  mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later  stage  or  even in  appeal  or  revision.  In  the  latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode  adopted  for  proving  the  document  is  irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition  is  a  rule  of  fair  play.  The  crucial  test  is whether an objection, if taken at the appropriate point  of  time,  would  have  enabled  the  party tendering  the  evidence  to  cure  the  defect  and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party  tendering  the  evidence  to  act  on  an assumption that the opposite party is not serious about  the  mode  of  proof.  On  the  other  hand,  a prompt  objection  does  not  prejudice  the  party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the  Court  on  the  mode  of  proof  sought  to  be adopted  going  against  the  party  tendering  the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by  the  opposite  party,  is  available  to  the  party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document  itself  which  is  sought  to  be  proved  being admissible  in  evidence.  In  the  first  case,  acquiescence would  be  no  bar  to  raising  the  objection  in  superior

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Court.” [Emphasis supplied]

It would be relevant to refer to another case decided by this

Court in PC Purshothama Reddiar v. S Perumal, (1972) 1

SCC 9. The earlier cases referred to are civil cases while this

case  pertains  to  police  reports  being  admitted  in  evidence

without  objection  during  the  trial.  This  Court  did  not  permit

such an objection to be taken at the appellate stage by holding

that:

“Before leaving this case it is necessary to refer to one of the contentions taken by Mr. Ramamurthi, learned Counsel for the respondent. He contended that the police reports referred to earlier  are  inadmissible  in  evidence as  the  Head-constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it  is  not  open  to  the  respondent  now  to  object  to  their admissibility.”  

 27. 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

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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 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.  We are satisfied that 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.   

28. Another point which remains to be considered is whether

the accused is competent to waive his right to mode of proof.

Mr. Luthra’s submission is that such a waiver is permissible in

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civil  cases  and  not  in  criminal  cases.   He  relies  upon  a

judgment of the Privy Council in  Chainchal  Singh’s case in

support  of  the  proposition.   The Privy  Council  held  that  the

accused  was  not  competent  to  waive  his  right.  Chainchal

Singh’s case may have no application to the case in hand at

all.   In  that  case,  the  issue  was  under  Section  33  of  the

Evidence Act, and was whether evidence recorded in an earlier

judicial  proceeding could be read into,  or not.   The question

was whether the statements made by a witness in an earlier

judicial proceeding can be considered relevant for proving the

truth  or  facts  stated  in  a  subsequent  judicial  proceeding.

Section 33 of the Evidence Act allows for this  inter alia  where

the witness is incapable of getting evidence in the subsequent

proceeding.   In  Chainchal  Singh,  the  accused  had  not

objected to  the  evidence being read into  in  the  subsequent

proceeding.  In this context, the Privy Council held that in a civil

case, a party can waive proof but in a criminal case, strict proof

ought  to  be  given  that  the  witness  is  incapable  of  giving

evidence.   Moreover,  the  judge  must  be  satisfied  that  the

witness  cannot  give  evidence.   Chainchal  Singh also  held

that:  “In a civil case a party can, if he chooses, waive the proof, but in a criminal case strict proof ought to be given  that  the  witness  is  incapable  of  giving evidence”.   

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The witness, who had deposed earlier, did not appear in the

subsequent proceeding on the ground that he was unable to

move from his house because of tuberculosis, as deposed by

the  process  server.   There  was  no  medical  evidence  in  this

regard.  The Court observed that the question of whether or not

he was incapable of giving evidence must be proved in  this

context, and in the proof of such a fact it was a condition that

statements  given  in  an  earlier  proceeding  can  be  taken  as

proved in a subsequent proceeding.  Chainchal Singh’s case

therefore,  does  not  lay  down  a  general  proposition  that  an

accused  cannot  waive  an  objection  of  mode  of  proof  in  a

criminal case.  In the present case, there is a clear failure to

object  to  the  mode  of  proof  of  the  CDRs  and  the  case  is

therefore  covered  by  the  test  in    R.V.E.  Venkatachala

Gounder.

29. We proceed to deal with the submission of Mr. Luthra that

the ratio of the judgment of the Bombay High Court in Shaikh

Farid’s case is not applicable to the facts of this case.  It was

held in Shaikh Farid’s case as under:

“6. In civil cases mode of proof can be waived by the person against whom it is sought to be used. Admission thereof or failure to raise objection to their tendering in evidence amount to such waiver. No such waiver from the accused  was  permissible  in  criminal  cases  till  the enactment of the present Code of Criminal Procedure in

26

1973. The accused was supposed to be a silent spectator at the trial, being under no obligation to open his mouth till  the occasion to  record  his  statement  under section 342 (present S.  313) of  the  Code arose.  Even  then  he was not bound to answer and explain the circumstances put to him as being appearing against him. In the case of Chainchal Singh v. Emperor AIR 1946 PC 1 it was held by the Privy Council that the accused was not competent to waive his right and the obligation of the prosecution to prove the documents  on which  the prosecution relied. Resultantly,  the  prosecution  was  driven  to  examine witnesses even when the accused was not interested in challenging the facts sought to be proved though them. The inconvenience and the delay was avoidable.

7. Section 294 of the Code is introduced to dispense with this  avoidable  waste  of  time and facilitate  removal  of such obstruction in the speedy trial. The accused is now enabled to waive the said right and save the time. This is a new provision having no corresponding provision in the repealed  Code  of  Criminal  Procedure.  It  requires  the prosecutor or the accused, as the case may be, to admit or deny the genuineness of the document sought to be relied  against  him  at  the  outset  in  writing.  On  his admitting or indicating no dispute as to the genuineness, the Court is authorised to dispense with its formal proof thereof. In fact after indication of no dispute as to the genuineness, proof of documents is reduced to a sheer empty  formality.  The  section  is  obviously  aimed  at undoing the judicial view by legislative process.

8. The preceding Section 293 of the Code also dispenses with  the  proof  of  certain  documents.  It  corresponds with Section  510 of  the  repealed  Code  of  Criminal Procedure.  It  enumerates  the  category  of  documents, proof of which is not necessary unless the Court itself thinks  it  necessary. Section  294 makes  dispensation  of formal  proof  dependent  on  the  accused  or  the prosecutor,  not  disputing  the  genuineness  of  the documents  sought  to  be  used  against  them.  Such contemplated dispensation is not restricted to any class or category of documents as under section 293, in which ordinarily  authenticity  is  dependent  more  on  the mechanical  process  involved  than  on  the  knowledge, observation  or  the  skill  of  the  author  rendering  oral evidence just formal. Nor it is made dependent on the relative importance of the document or probative value thereof. The documents being primary or secondary or substantive  or  corroborative,  is  not  relevant  for

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investigations  and  prosecutions.   The  contents  of  electronic

records  may  be  proved  in  accordance  with  the  provisions

contained  in  Section  65B  of  the  Indian  Evidence  Act.

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.  Navjot Sandhu’s case

which took the opposite view was overruled.  

32. 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

Section 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 period between 04.08.2005

and 18.09.2014.  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

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has been the subject matter of discussion in England as well. In

R. v. Governor of H.M. Prison Brockhill, ex p. Evans (No.

2), [2000] 4 All ER 15, Lord Slynn dealing with the principle

of prospective over ruling observed as under:

“The judgment of the Divisional Court in this case follows the traditional route of declaring not only what was the meaning of the section at the date of the judgment but what was always the correct meaning of the section. The court did not seek to limit the effect of its judgment to the future. I consider that there may be situations in which it would be desirable, and in no way unjust, that the effect of  judicial  rulings  should  be  prospective  or  limited  to certain claimants. The European Court of Justice, though cautiously and infrequently, has restricted the effect of its ruling to the particular claimant in the case before it and to those who had begun proceedings before the date of its judgment. Those who had not sought to challenge the  legality  of  acts  perhaps  done  years  before could only rely on the ruling prospectively. Such a course avoided unscrambling transactions perhaps long since over and doing injustice to defendants.” [Emphasis supplied]

         35. This  Court  did  not  apply  the  principle  of  prospective

overruling  in  Anvar’s  case.   The  dilemma  is  whether  we

should.  This Court in K. Madhav Reddy v. State of Andhra

Pradesh, (2014) 6 SCC 537 held that an earlier  judgment

would  be  prospective  taking  note  of  the  ramifications  of  its

retrospective operation. 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  we  refrain  from  declaring  that  the

32

judgment would be prospective in operation.  We leave it open

to be decided in an appropriate case by a Three Judge Bench.

In any event, this question is not germane for adjudication of

the present  dispute in  view of  the adjudication of  the other

issues against the accused.   

36. For the aforementioned reasons, the judgment of the High

Court  confirming  the  Trial  Court  is  upheld.  The  appeals  are

dismissed.            

                                                                     ..……..........................J                                                       [S. A. BOBDE]

                                  …................................J                                                                      [L. NAGESWARA RAO]

New Delhi, July 18, 2017

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