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TMI Blog2022 (5) TMI 1593X X X X Extracts X X X X X X X X Extracts X X X X ..... have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab [ 1954 (2) TMI 24 - SUPREME COURT] , it was laid down that where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negate the innocence of the accused and bring the offence home beyond any reasonable doubt. Upon thorough application of the above settled law on the facts of the present case, it is held that the circumstantial evidence against the present appellant i.e. A2 does not conclusively establish the guilt of A2 in committing the murder of the deceased children. The last seen theory, the arrest of the accused, the recovery of material objects and the call details produced, do not conclusively complete the chain of evidence and do not establish the fact that A2 committed the murder of the children of PW5 - The High Court fell in grave error when it fallaciously drew dubious inferences from the details of the call records of A1 and A2 that were produced before them. The High Court inferred from the call details of A2 and A1 that they shared an abnormally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Being aggrieved by the Trial Court order, the present appellant filed a criminal appeal before the High Court of Punjab and Haryana, which got tagged along with the criminal appeals filed by the other co accused persons. 3. The High Court, vide judgment dated 22.02.2011, acquitted Anita @Arti (A 1) and Ranjit Kumar Gupta (A 3) and partly allowed the appeal filed by Ravinder Singh @ Kaku (A 2) and while setting aside the death penalty, sentenced him to undergo rigorous imprisonment for 20 years under Section 302 IPC. 4. The facts leading to the present case are dealt with in paragraphs 2,3 and 4 of the judgment dated 25.05.2010 of the Trial Court, which are reproduced below: 2. Tersely put, on 24.09.2009, complainant Rakesh Kumar son of Khushal Chand, resident of Nanak Nagri, Moga moved application to the Station House Officer (SHO), Police Station City1. Moga regarding missing of his two sons namely Aman Kumar and Om, aged about 10 years and 6 years respectively. He submitted in the application that on 24.09.2009, both of his sons had gone for tuition as usual near their house. Usually, they used to return from tuition at about 6 p.m. But on that day, they did not retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanied PW5 while searching for the deceased kids] turned hostile. However, against A2 and A3, it was held that the prosecution has partially established the last seen theory through the testimonies of PW6 and PW7. The High Court further rejected the evidence of PW13 which was in the nature of extra judicial confession of A2 and A3. 6. As far as A2 i.e. the present appellant is concerned, the High Court, while upholding his conviction held that: As regards the second accused, it is evident that PW12 who raided his house, arrested him on 27.09.2009 and recovered the mobile phone bearing sim card No. 9781956918. A school bag and a rope also were recovered from the field based on the disclosure statement given by him. DW1 had been fielded by A2 to bat his cause. In the face of the credible evidence as to the arrest of A2 by PW12 on 27.09.2009 during the raid of his house, the evidence of DW1 does not seem to be trustworthy. The arrest of second accused and the recovery effected based on his disclosure statement lend corroboration to the case of the prosecution as against the second accused. . . At the initial stage the first accused Anita was not at all suspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish that there was a motive for the murder. It is contented that the call details produced relating to the phone used by A1 and A2 have established that they shared an intimate relationship, which became the root cause of offence committed herein. It is further submitted that the last seen theory, the arrest of the accused, the recovery of material objects and the call details produced, would conclusively establish the guilt of the accused persons in conspiring the murder of the children of PW5. 9. We have heard learned counsel for the parties at length and have perused the record. 10. The conviction of A2 is based only upon circumstantial evidence. Hence, in order to sustain a conviction, it is imperative that the chain of circumstances is complete, cogent and coherent. This court has consistently held in a long line of cases [See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa @ Krishnappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh @ Dalbir Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt inferred from the call details of A2 and A1 that they shared an abnormally close intimate relation. The court further inferred from this, that unless they had been madly in love with each other, such chatting for hours would not have taken place. The High Court eventually observed that: We have to infer that the unusual attraction of A2 towards A1 had completely blinded his senses, which ultimately caused the death of minor children. It is quite probable that A2 would have through that the minor children had been a hurdle for his close proximity with A1 [Emphasis supplied] The above inferences were drawn by the High Court through erroneous extrapolation of the facts, and in our considered opinion, such conjectures could not have been the ground for conviction of A2. Moreover, the High Court itself observed that there is no direct evidence to establish that A1 and A2 had developed illicit intimacy and in spite of this observation, the court erroneously inferred that the murder was caused as an outcome of this alleged illicit intimacy between A1 and A2. 13. When a conviction is based solely on circumstantial evidence, such evidence and the chain of circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh PW10, claiming that A2 and A3 used to visit the house of A1 and hence all three colluded to commit the murder of the minor children. However, the High Court rightly rejected this limb of the theory and held that since the entire attempt to rope A1 in as an accused was based on the testimony of PW10 and he himself had turned hostile and had come up with a self contradictory version of his testimony, no portion of his evidence could be relied upon. 15. However, where the High Court has erred is that it held that the second limb of the prosecution s Last Seen Theory stands duly established against A2 and A3 through the evidence of PW6 and PW7. PW6 (Amarjit Singh) is the farm servant of PW7 (Gurnaib Singh) who claims to have seen A2 and A3 along with the deceased children of PW5. PW6 deposed that though he was present when the police was conducting inquest on the dead bodies, he chose not to disclose the fact of the presence of A2 and A3 to the police. Rather, PW6 shared this information with PW7 and thereafter both of them proceeded to inform the police about the presence of A2 and A3. However, the High Court erred in not appreciating the numerous contradictions and inconsistenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inconsistencies in the testimonies of the important witnesses cannot be ignored to uphold the conviction of A2, especially in light of the fact that the High Court has already erred in extrapolating the facts to infer a dubious conclusion regarding the existence of a motive that is rooted in conjectures and probabilities. 18. With respect to the extra judicial confessions, suffice it to say that the attempt of the respondent herein to rely on that is untenable since the High Court has taken note of the inconsistences in the evidence of PW13 Goverdhan Lal and has rightly rejected his evidence in toto . We uphold the judgement of the High Court to the extent that it rejects the testimony of PW13 and finds the theory of extra judicial confession of A2 and A3 to be unnatural. 19. The last piece of evidence against A2 remains the alleged recovery of the school bag at the instance of the disclosure statement given by A2. However, similar to the other evidence against A2, this also suffers from the same inconsistencies and incoherence that makes it difficult for the such evidence to support the conviction of A2. In this context, it is imperative to understand that there were two b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consistencies in the testimonies of PW6, PW5, PW9 and PW12 make the story of the prosecution weak and non conclusive to hold and establish the guilt of A2, especially in light of the fact that there is virtually no direct evidence to link A2 to the commission of the offence. 20. Lastly, this appeal also raised an important substantive question of law that whether the call records produced by the prosecution would be admissible under section 65A and 65B of the Indian Evidence Act, given the fact that the requirement of certification of electronic evidence has not been complied with as contemplated under the Act. The uncertainty of whether Anvar P.V. vs P.K. Basheer Ors [ (2014) 10 SCC 473] occupies the filed in this area of law or whether Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801 lays down the correct law in this regard has now been conclusively settled by this court by a judgement dated 14/07/2020 in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal [ (2020) 7 SCC 1] wherein the court has held that: We may reiterate, therefore, that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of el ..... X X X X Extracts X X X X X X X X Extracts X X X X
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