# SONU@AMAR v. STATE OF HARYANA /

- **Citation:** [2017] 8 S.C.R. 151
- **Court:** Supreme Court of India
- **Decided:** 2017
- **Case number:** Criminal Appeal B No. 1418 of2013
- **Bench:** S. A. Bobde, L. Nageswara Rao
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sonu-amar-v-state-of-haryana-32142
- **Pages:** 26

## Headnote

Penal Code, 1860:
A
B
ss. 120B, 364A, 302, 328A and 201 - Abduction and
murder - On facts, abduction and murder of victim - Conviction of C
Al to A5 for the offences punishable u/s. 120B, 364A, 302, 328A
and 201 and sentenced to life imprisonment - Conviction of A6 uls.
328 and 201 and sentenced to seven years - On the basis of
testimonies of PWJ and PW3, recoveries made pursuant to the
disclosure statement of the accused and Call Detail Records (CDR)
D
of the mobile phones of the accused - Upheld by the High Court -
On appeal, held: Prosecution proved the arrest and subsequent
recoveries made pursuant to disclosure statement made by Al,
interested testimonies of DWs 2 and 5 does not merit acceptance -
Dead body of the victim-deceased was ident(fied by his relatives -
As regards A4, there was sufficient evidence to suggest that he was
E
in constant touch with other accused - His mobile phone and
recoveries were made pursuant to the disclosure statement clearly
proves his involvement-As regards A5, recovery of deceased s wallet
from underneath his seat reliable - Thus, the judgment of the High
Court is upheld.
F
Evidence Act, 1872:
s. 65B (4) - interpretation - Admissibility of electronic
records - Admissibility of Call Detail Record (CDR) - No objection
taken when the CDRs were adduced in evidence before the trial
court or appellate stage before the High Court - Permissibility of G
an objection regarding inadmissibility at this stage - Held:
·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 -
Crucial test is whether the d~fect could have been cured at the stage .
of marking the document - Objections regarding admissibility of
151
H
152
SUPREME COURT REPORTS
[2017] 8 S.C.R.
A documents which are per se inadmissible can be taken even at the
appellate stage because it is a .fundamental issue - Mode or method
of proof is procedural and objections, if not taken at the trial, cannot
be permitted at the appellate stage - Objection that CDRs are
unreliable due to violation of the procedure prescribed in s. 65 B (4
B cannot be permitted to be raised at this stage as the objection relates
to the mode or method of proof - Chainchal Singh s case does not
lay down a general proposition taht the acrnsed is not competent to
waive his right to object to the mode of proof of a document in a
criminal case.
c
s. 65B (4) - Certificate for proving electronic records - Held:
Contents of electronic records may be proved in accordance with
the provisions contained in s. 65B - Electronic record is not
admissible unless it is accompanied by a certificate as contemplated
uls. 65B (4) - This Court in 2014, in Anvar's case held that an
electronic record is inadmissible in evidence without the
D certification - This Court in 2005 in Navjot Sandhu's case held that
there was no necessity of a certificate for proving electronic records
which held the field till it was overruled in Anvar's case - In Anvar's
case, the Court did not apply principle of 'prospective
overruling' - If the judgment in Anvar's case is applied
E
F
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, in view of judicial
propriety this Court refrains from declaring that the judgment would
be prospective in operation - Matter left open to be decided in an
appropriate case by a Three Judge Bench - Principle of 'prospective
overruling' - Retrospective operation - Judicial propriety.
Code of Criminal Procedure, 1973:
s. 294 - Procedure for filing documents in a court by the
prosecution or the accused - Documents have to be included in a
list and the other side shall be given an opportunity to admit or
G deny the genuineness of each document - In case the genuineness
H
is not disputed, such document shall be read in evidence without
formal proof in accordance with the Evidence Act.
Dismis

## Text

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[2017] 8 S.C.R. 151
SONU@AMAR
v.
STATE OF HARYANA
/
(Criminal Appeal Np.1418 of2013)
JULY 18,2017
[S. A. BOBDE AND L. NAGESWARA RAO, JJ.]
Penal Code, 1860:
A
B
ss. 120B, 364A, 302, 328A and 201 - Abduction and
murder - On facts, abduction and murder of victim - Conviction of C
Al to A5 for the offences punishable u/s. 120B, 364A, 302, 328A
and 201 and sentenced to life imprisonment - Conviction of A6 uls.
328 and 201 and sentenced to seven years - On the basis of
testimonies of PWJ and PW3, recoveries made pursuant to the
disclosure statement of the accused and Call Detail Records (CDR)
D
of the mobile phones of the accused - Upheld by the High Court -
On appeal, held: Prosecution proved the arrest and subsequent
recoveries made pursuant to disclosure statement made by Al,
interested testimonies of DWs 2 and 5 does not merit acceptance -
Dead body of the victim-deceased was ident(fied by his relatives -
As regards A4, there was sufficient evidence to suggest that he was
E
in constant touch with other accused - His mobile phone and
recoveries were made pursuant to the disclosure statement clearly
proves his involvement-As regards A5, recovery of deceased s wallet
from underneath his seat reliable - Thus, the judgment of the High
Court is upheld.
F
Evidence Act, 1872:
s. 65B (4) - interpretation - Admissibility of electronic
records - Admissibility of Call Detail Record (CDR) - No objection
taken when the CDRs were adduced in evidence before the trial
court or appellate stage before the High Court - Permissibility of G
an objection regarding inadmissibility at this stage - Held:
·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 -
Crucial test is whether the d~fect could have been cured at the stage .
of marking the document - Objections regarding admissibility of
151
H
152
SUPREME COURT REPORTS
[2017] 8 S.C.R.
A documents which are per se inadmissible can be taken even at the
appellate stage because it is a .fundamental issue - Mode or method
of proof is procedural and objections, if not taken at the trial, cannot
be permitted at the appellate stage - Objection that CDRs are
unreliable due to violation of the procedure prescribed in s. 65 B (4
B cannot be permitted to be raised at this stage as the objection relates
to the mode or method of proof - Chainchal Singh s case does not
lay down a general proposition taht the acrnsed is not competent to
waive his right to object to the mode of proof of a document in a
criminal case.
c
s. 65B (4) - Certificate for proving electronic records - Held:
Contents of electronic records may be proved in accordance with
the provisions contained in s. 65B - Electronic record is not
admissible unless it is accompanied by a certificate as contemplated
uls. 65B (4) - This Court in 2014, in Anvar's case held that an
electronic record is inadmissible in evidence without the
D certification - This Court in 2005 in Navjot Sandhu's case held that
there was no necessity of a certificate for proving electronic records
which held the field till it was overruled in Anvar's case - In Anvar's
case, the Court did not apply principle of 'prospective
overruling' - If the judgment in Anvar's case is applied
E
F
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, in view of judicial
propriety this Court refrains from declaring that the judgment would
be prospective in operation - Matter left open to be decided in an
appropriate case by a Three Judge Bench - Principle of 'prospective
overruling' - Retrospective operation - Judicial propriety.
Code of Criminal Procedure, 1973:
s. 294 - Procedure for filing documents in a court by the
prosecution or the accused - Documents have to be included in a
list and the other side shall be given an opportunity to admit or
G deny the genuineness of each document - In case the genuineness
H
is not disputed, such document shall be read in evidence without
formal proof in accordance with the Evidence Act.
Dismissing the appeals, the Court
HELD: 1.1 An electronic record is not admissible unless it
SONU @AMAR v. STATE OF HARYANA
153
is accompanied by a certificate as contemplated under Section A
65B (4) of the Evidence Act. As regards the permissibility of an
objection regarding inadmissibility at this stage, 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.
B
[Para 261 [168-B-C)
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
E
F
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]
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
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
C 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,
D 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,
E
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
1.5 This Court did not apply the principle of prospective
overruling in Anvar's case. If the judgment in the case of Anvar
G 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
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.
B
c
D
643 (1961); Linkletter v. Walker 381 U.S. 618 (1965);
E
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
referred to
Para 14
(2014) 11 SCR 399
referred to
Para 23
F
[2005) 2 Suppl. SCR 79
referred to
Para 23
AIR 1915 PC 1
referred to
Para 24
[2003) 4 Suppl. SCR 450
referred to
Para 25
AIR 1946 PC 1
referred to
Para 25
G
1983 CrLJ 487
referred to
Para 25
AIR 1943 PC 83
referred to
Para 26
[1972) 2 SCR 646
referred to
Para 26
[1967) 2 SCR 762
referred to
Para 33
[2014) 7 SCR 348
referred to
Para 35
H
156
SUPREME COURT REPORTS
[2017] 8 S.C.R.
A
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
B
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
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
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
E 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.
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
B
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.
E
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.
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.
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
E 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
F
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).
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.
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.
B
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.
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
F
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
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SUPREME COURT REPORTS
[2017] 8 S.CR.
A
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
8
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:
G
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.
H
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SUPREME COURT REPORTS
[2017] 8 S.C.R.
A
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
B
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
c
158 ~10); (See also: Hanumant v. State of Madhya Pradesh
(1952) SCR 1091 (P. l 097) 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
D 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 deceased is proved
E
by the oral testimonies of PW 1 and PW3.
F
G
H
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 CD Rs 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 PW! 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 PW! by the accused.
SONU @AMAR v. STATE OF HARYANA
[L. NAGESWARA RAO, J.]
163
17. We deem it proper to consider the submissions made by the A
"learned counsel for the accused.
Al - 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 Al pursuant to the disclosure
statement Exh.PDD. The registration certificate was recovered from
B
the drawer of a table lying in the room of his house situated at Begha
Road, Ganaur.
19. Mr. D. B. Goswami, learned counsel appearing for Al
submitted that Al and A4 are brothers. A4 and A2 were partners in
transport business. He submitted that Al was arrested from his house
C
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 Al
accompanied the police to the police station. He travelled in his own car D
and the police went in the Govt. Jeep. On the other hand, the case of the
prosecution is that Al 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 Al was
arrested. The interested testimonies of DW2 and DW5 do not merit
acceptance, especially when the prosecution has proved the arrest and
E
the subsequent recoveries made pursuant to the disclosure statement of
Al. The learned counsel submitted that the application filed by A 1 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. Al refused to give
his voice sample when the prosecution moved the Court. Thereafter, Al
filed an application to take his voice sample and the said application was
disposed of by the Trial Court giving liberty to Al to file again after the
prosecution evidence was completed. Therefore, the learned counsel
for Al is wrong in contending that his application for giving voice samples
F
was rejected by the Court. The learned counsel further submitted that
the CD Rs of the mobile phone of A I would suggest that he was making G
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 andA3 who
is from Bihar and who was making the calls demanding a ransom of
Rs. I crore from PW I.
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(2017] 8 S.C.R.
A
A2 - Surender (Criminal Appeal No.1652 of 2014)
20. A2 was arrested on 20.01.2006 in Tibetan Market, Delhi along
with A 1 and A3 and was found to be in possession of a mobile phone
bearing No.9813091701 which was used by him for conversing with A 1,
A3 andA4 between 25.12.2005 to 20.01.2006. Three STD booth receipts
B Exh.P41, P42 and P43 were recovered fromA2. These receipts showed
calls being made to mobile No. 9896001906 which belongs toA5 Sonu.
He was a resident of Jhinjhana village and the calls made from the STD
booth with telephone No. 01398257974 pertain to 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.
C 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 ofabduction of Ramesh
Jain at Ganaur and the place where the dead body was buried at Baba
D 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
E 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
F
the dead body recovered. We are convinced that the body recovered is
that of the deceased 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
G 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
H Jain and the threatening letters. A golden ring of the deceased was also
SONU @AMAR v. STATE OF HARYANA
[L. NAGESWARA RAO, J.]
16S
recovered from his residential house at village Ghasoli. He also made a 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
B
disclosure statement would clearly prove his involvement in the crime.
AS - Sonu (Criminal Appeal No.1418 of 2013)
22. Mr. Sidharth Luthra, learned Senior Counsel appearing for
AS submitted that it is highly improbable that AS was arrested at a bus
stop at Ganaur Chowk, GT Roa-d, Ganaur. According to him, AS was c
arrested on 20.01.2006 at 10:1S(30) pm from his house. He relied upon
the evidence ofDWS and DW8. We do not find any substance in the
submission that AS was arrested on 20.01.2006 itself as it is clear from
the testimony ofDW8 that no complaint was made regarding the forcible
arrest of AS on 20.01.2006. A disclosure statement was made by AS
which was marked as Exh.PBB pursuant to which there was a recovery D
of the wallet belonging to the deceased from the shop of AS. A laminated
PAN card, one passport size photograph of the deceased, three electri,·ity
bills, two water bills and a small diary of Jain Mantras bearing title 'Aa1.u
Purvi' were recovered from underneath- the seat of his Aarat shop ·at
Ganaur Mandi. The STD booth receipts which were recovered from
E
A2 Surender andA4 Parveen at the time of their arrest show that they
made calls on the mobile No.9896001906 belonging to AS on 29'h and
· 30'h December, 200S. AS 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 AS cannot be relied upon, according to Mr. Luthra. He
referred to the six disclosure statements made by AS between 22.01.2006
and 04.02.2006. He commented upon the improbability ofrecovery of
the wallet from underneath his seat at his shop. He also submitted that
F
the recovery is from a public place accessible to everybody and so the
G
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 admissibl.e under H
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SUPREME COURT REPORTS
[2017] 8 S.C.R.
A 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 An var 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
B Navjot Sandhu (supra) this court held as follows:
c
"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".
D In Anvar's case, this Court held as under:
E
F
G
H
"22. The evidence relating to electronic record, as noted
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 65B 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.
SONU @AMAR v. STATE OF HARYANA
[L. NAGESWARA RAO, J.)
167
23. The appellant admittedly has not produced any certificate in A
tenns of Section 65-B in respect of the CDs, Exts. P-4, P-8, P9, 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 An var, Mr. Luthra submitted
that the CDRs are liable to be eschewed from consideration.
B
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 c
cannot be pennitted to raise the point of admissibility of the CD Rs at the
appellate stage. He placed reliance on Padman v. Hanwanta, AIR
1915 PC 1 in 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 D
inadmissible in evidence. The second is wh.ere 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.
E
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
F .
judgment of RYE Venkatachala Gounder v. Arulinigu
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 proofrequired 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 G
PC 1 in which it was held as under:
"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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[2017] 8 S.C.R.
A 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.