TaxTMI 
TaxTMI 
2022 (5) TMI 1593
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....aged about 10 years and 6 years respectively were kidnapped and murdered. There were three accused namely; Anita @ Arti (mother of the children) (A­1); Ravinder Singh @ Kaku (A­2) and Ranjit Kumar Gupta (A­3). The Trial Court convicted all the three accused and sentenced them to death for the offence punishable under Section 302 read with 120B IPC and rigorous imprisonment for 10 years and fine of Rs.5000/­each for the offence punishable under Section 364 IPC. 2. 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 co­accused persons. 3. The High Court, vide judgment dated 22.02.2011, acquitted Anita @Arti (A­1) and Ranjit Kumar Gupta (A­3) and partly allowed the appeal filed by Ravinder Singh @ Kaku (A­2) and while setting­aside 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. Ters....
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....u and Ranjit Kumar Gupta, to which they pleaded not guilty and claimed trial". 5. The High Court opined that the prosecution had established the motive of the offence committed by A2, which was his determination to eliminate the school going children of Rakesh Kumar (PW5) and A1 because he was madly in love with A1. The High Court further held that the prosecution's attempt to rope in A1 in the crime of murder was not successful as their only witness against A1 i.e. PW10 [Krishan Lal, who accompanied 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 disclo....
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....n jail comes out after 20 years, he may not be a menace to the society." 7. Challenging his conviction and sentence of 20 years, the present appellant Ravinder Kumar @ Kaku filed Criminal Appeal No. 1307 of 2019 @ SLP (Crl.) 9431 of 2011, which shall be treated by us as the lead appeal/petition. 8. The case of the prosecution herein has remained that the Trial Court and the High Court have rightly convicted A2 since the prosecution could successfully establish 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 ....
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....dditionally, the argument of the Respondent that the call details produced relating to the phone used by A1 and A2 have established that they shared an intimate relationship and that this relationship became the root cause of offence is also unworthy of acceptance. 12. 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 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 ....
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.... intimacy between him and A1, which has admittedly not been established by any direct evidence. 14. In the context of the Prosecution's Last Seen Theory, it is imperative to examine the evidence of PW6 and PW7, since the prosecution claims to have established the theory against A2 on the testimonies of these two witnesses. In essence, the prosecution tried to establish the first limb of its Last Seen Theory against A1 through 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 self­contradictory 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 dec....
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.... PW5. Lastly, the testimonies of PW6 and PW7 also differ on the question of when did they reach the police station to report. PW7 deposed that he and PW6 reached the CIA Staff at 6 PM and remained there only for 2 hours i.e. they left by 8 PM. However, contradicting this, PW6 clearly states that he reached the CIA Staff along with PW7 at 9 PM. 17. In a case where the conviction is solely based on circumstantial evidence, such 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 t....
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....d in his testimony that "one school bag of Aman Kumar deceased containing books and geometry box etc. was lifted from the spot.". As for the second bag, PW12 deposed that "Thereafter on 29.09.2009, accused Ranjit Kumar[A3] suffered disclosure statement that one school bag was kept concealed by him in the fields of paddy along with the rope which only he knew and he could get the same recovered." These contradictions and inconsistencies in the testimonies of PW6, PW5, PW9 and PW12 make the story of the prosecution weak and non­conclusive 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. ....