In CRIMINAL APPEAL NO.1307 OF 2019-SC- Section 65B(4) of Evidence Act is mandatory requirement; Certificate required under such Section is condition precedent to admissibility of evidence by way of electronic record and oral evidence in place of such certificate cannot possibly suffice: SC Justices Uday Umesh Lalit & Vineet Saran [04-05-2022]

Read Judgment: RAVINDER SINGH @ KAKU Vs STATE OF PUNJAB  

Mansimran Kaur

New Delhi, May 05, 2022: While considering certain appeals in a case in which two children were kidnapped and murdered, the Supreme Court has observed that when a conviction is based solely on circumstantial evidence, such evidence and the chain of circumstances must be conclusive enough to sustain a conviction. 

Referring to the Evidence Act, the Division Bench of Justice Uday Umesh Lalit and Justice Vineet Saran said, “…the electronic evidence produced before the High Court should have been in accordance with the statute and should have complied with the certification requirement, for it to be admissible in the court of law. As rightly stated above, Oral evidence in the place of such certificate, as is the case in the present matter, cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law.”

The Supreme Court observed that the tripod stand of motive, last seen theory and recovery, that supported the conviction of the appellant  was found to be inconclusive and the inconsistencies found in the evidence vitiated the conviction.Thus, the conviction solely on such circumstantial evidence was not sustained. 

The Bench was dealing with a case based solely on circumstantial evidence and observed that in order to sustain conviction in such cases, it is imperative that the chain of circumstances is complete, cogent and coherent and as the same was found missing in the present case, so the appeal was allowed. 

The present appeals were preferred against the judgment dated February 22, 2011 passed by the High Court of Punjab and Haryana while dealing with a case in a case wherein two children namely, Aman Kumar and Om aged 10 and 6 years respectively were kidnapped and murdered. 

There were three accused in the case namely, Anita (mother of the children), Ravinder Singh and Ranjit Kumar Gupta. All three were convicted by the Trial Court and sentenced to death for the offense punishable under Section 302 of IPC read with Section 120B of IPC and rigorous imprisonment of 10 years and fine of Rs. 5000 each for the offence punishable under Section 364 of IPC. 

Aggrieved by the order of the Trial Court, the present appellant instituted a criminal  appeal  before the High Court of Punjab and Haryana which was tagged along with the criminal appeals filed by the other co-accused persons. 

The High Court, by its udgment dated February 22, 2011, acquitted Anita @Arti (A1) and Ranjit Kumar Gupta (A3) and partly allowed the appeal filed by Ravinder Singh @ Kaku (A2) and while setting aside the death penalty, sentenced him to undergo rigorous imprisonment for 20 years under Section 302 IPC. 

The Apex Court after considering the submissions from both the sides, noted that the conviction of A2 was based on circumstantial evidence, thus in order to sustain a conviction, it wad imperative that the chain of circumstances is complete, cogent and coherent, the Court remarked. 

The Court preferred a plethora of cases such as Hukam Singh v. State of Rajasthan , Eradu and Ors. v. State of Hyderabad, Earabhadrappa    @ Krishnappa  v. State  of Karnataka  State of U.P. v. Sukhbasi and Ors,  Balwinder Singh @ Dalbir Singh v. State of Punjab,  Ashok Kumar Chatterjee v. State of M.P, wherein it was observed that in cases based on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are to be found to be compatible with the innocence of the accused. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.

 Further reliance was placed on the case of Bhagat Ram v. State of Punjab, wherein  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. 

Further reference was made  to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P  wherein it was held that a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is drawn  should be fully provedand   such   circumstances must be conclusive in nature. Moreover, all  the circumstances should be complete.Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused & totally inconsistent with his innocence. 

Thus in light of the observations made above, the Court in the instant case opined that circumstantial evidence against the present appellant did not conclusively establish the guilt of A2. The last seen theory, the arrest of the accused, the recovery of material objects and the call details produced, did not conclusively complete the chain of evidence and did not establish the fact that A2 committed the murder of the children, the Court observed. 

It was further opined that the High Court erred when it fallaciously drew dubious inferences from the details of the call records of A1 and A2 that were produced before them. It was further observed the High Court itself observed that there was 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. 

Further this appeal also raised a 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 had not been complied with as contemplated under the Act. 

Reliance was placed on the judgment in Arjun Panditrao Khotkar vs   Kailash   Kushanrao   Gorantyal wherein the Court held that in cases   where  the “computer”   happens   to   be   a   part  of   a “computer   system”   or   “computer   network” and it becomes impossible to physically bring such  system or network to the Court, then the only means   of   providing   information contained in such electronic record can be in accordance with Section   65B(1),together with   the   requisite   certificate  under   Section 65B(4).

It was observed that oral evidence in the place of such certificate, cannot possibly suffice, as  Section 65B(4)   is a mandatory requirement of the law.

In light of the above, it was observed that the electronic evidence produced before the High Court should have been in accordance with the statute   and   should   have   complied   with   the   certification requirement, for it to be admissible in the court of law. As rightly stated above, oral    evidence in the place of such certificate, as   is   the scenario in the instant case cannot possibly   suffice,as   Section   65B(4)   is a mandatory requirement of the law,held the Bench.

Lastly, it was opined thar the tripod stand of motive, last seen theory and recovery, that supported the conviction of A2 according to the High Court, was found to be inconclusive and the evidence supporting the conviction  of  A2 was  vitiated  with inconsistencies and contradictions, thus, the conviction solely on such circumstantial evidence couldn’t be sustained.

Accordingly, the appeal filed by the appellant Ravinder Singh (A2) was allowed and the impugned order of the High Court was set aside to the extent of conviction of A2 under section 302 and 364 of the Indian Penal Code.