Ravinder Singh Alias Kaku v. State Of Punjab .

The Judgment of the Court was delivered by

Vineet Saran, J.— These appeals arise out of the judgment dated 22-2-2011 2011 SCC OnLine P&H 17671 passed by the High Court of Punjab and Haryana in a case in which two children, namely, Aman Kumar and Om, aged about 10 years and 6 years, respectively were kidnapped and murdered. There were three accused, namely, Anita alias Arti (mother of the children) (A-1); Ravinder Singh alias Kaku (A-2) and Ranjit Kumar Gupta (A-3). The trial court convicted all the three accused and sentenced them to death for the offence punishable under Section 302 read with Section 120-B IPC and rigorous imprisonment for 10 years and a 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 co-accused persons.

3. The High Court, vide judgment dated 22-2-2011 2011 SCC OnLine P&H 17671, acquitted Anita alias Arti (A-1) and Ranjit Kumar Gupta (A-3) and partly allowed the appeal filed by Ravinder Singh alias 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 paras 2, 3 and 4 of the judgment dated 25-5-2010 of the trial court, which are reproduced below:

“2. Tersely put, on 24-9-2009, complainant Rakesh Kumar, son of Khushal Chand, resident of Nanak Nagri, Moga moved application to the Station House Officer (SHO), Police Station City 1, 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 24-9-2009, 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 return to their house till 9 p.m. He (complainant) along with his neighbours searched for them. It is further submitted that two days prior to the occurrence, his wife had a dispute with Ranjit Kumar Gupta (accused) and his wife Sanju. And Sanju threatened the complainant and his wife to take care of their children and, therefore, they had suspicion that their children might have been abducted by Ranjit Kumar Gupta and his wife Sanju. On the basis of such application of the complainant, Report No. 23 dated 24-9-2009 was made in the roznamcha. The matter was entrusted to SI Subhash Chander for investigation and on the basis of his report, FIR under Sections 364/506/120-B IPC was registered against Ranjit Kumar Gupta and his wife Sanju.

3. On 25-9-2009, in the morning, dead bodies of both the children were found from the paddy field of Bhagwan Singh, son of Piara Singh, resident of Purana Moga, which were handed over to their relatives for getting the autopsy conducted from Civil Hospital, Moga. And Section 302 IPC was added. During investigation, on the basis of statements of Krishan Lal, son of Shiv Lal Bansal, resident of Nanak Nagri, Moga and Amarjit Singh, son of Jai Singh, resident of Mehme Wala, Moga, Ravinder Singh alias Kaku and Anita alias Arti also nominated as accused. The accused were arrested on 27-9-2009. However, during investigation, accused Sanju was found innocent. After completion of entire investigation, accused Anita alias Arti, Ravinder Singh alias Kaku and Ranjit Kumar Gupta were challaned to face trial in this case under Sections 302/364/506 read with Section 120-B IPC. And Sanju, wife of Ranjit Kumar Gupta (accused) was placed in Column 2 of report under Section 173 CrPC.

4. On commitment of the case to this Court, charge under Sections 302/364/120-B IPC was framed against accused Anita alias Arti, Ravinder Singh alias Kaku 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 A-2, which was his determination to eliminate the school-going children of Rakesh Kumar (PW 5) and A-1 because he was madly in love with A-1. The High Court further held that the prosecution's attempt to rope in A-1 in the crime of murder was not successful as their only witness against A-1 i.e. PW 10 (Krishan Lal, who accompanied PW 5 while searching for the deceased kids) turned hostile. However, against A-2 and A-3, it was held that the prosecution has partially established the last seen theory through the testimonies of PW 6 and PW 7. The High Court further rejected the evidence of PW 13 which was in the nature of extra-judicial confession of A-2 and A-3.

6. As far as A-2 i.e. the present appellant is concerned, the High Court, while upholding his conviction held that : (Anita case 2011 SCC OnLine P&H 17671, SCC OnLine P&H paras 19, 21, 26 & 31)

“19. As regards the second accused, it is evident that PW 12 who raided his house, arrested him on 27-9-2009 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. DW 1 had been fielded by A-2 to bat his cause. In the face of the credible evidence as to the arrest of A-2 by PW 12 on 27-9-2009 during the raid of his house, the evidence of DW 1 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. …

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21. At the initial stage the first accused Anita was not at all suspected. Later on she was arrested from her house on 27-9-2009 and from her custody the mobile phone bearing sim cards Nos. 9592851851 and 9914505216 were recovered. The recovery of those mobile phones and the relevant call details Ext. D-41 to Ext. D-44 would support the case of the prosecution that A-2 had a close intimacy with A-1 which culminated in the unfortunate occurrence.

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26. As far as the second accused is concerned, the motive part of the case has been established by the prosecution. Through the first limb of the last seen theory as regards the second accused projected through PW 10 Krishan Lal by the prosecution failed, the prosecution could establish the second limb of the last seen theory through PW 6 Amarjit Singh and PW 7 Gurnaib Singh. His arrest and recovery of the material objects also would support the case of the prosecution as against him. The failure to establish the extra-judicial confession alleged to have been given by the second accused to PW 13 Goverdhan Lal does not affect the case of the prosecution as against him. It is to be noted that arrest of A-2 and recovery of material objects from his person and also at his instance were established. …

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31. A-2 is convicted only based on the circumstantial evidence produced by the prosecution. The infatuation he had with A-1 had completely blinded his sense of proportion and ultimately he had committed the cruel murder of the children of PW 5 Rakesh Kumar. The murder of the children as such had not been committed in a diabolic or monstrous manner. Both the children had been strangulated to death by A-2. A-2 was just 25/26 years old at the time when he committed the crime. The crime was committed propelled by sexual urge at the young age on account of infatuation towards a woman. Reformation is possible during the long years of his imprisonment in jail. Further, if the second accused having spent his prime time in 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 alias Kaku filed Criminal Appeal No. 1307 of 2019 arising out of SLP (Crl.) No. 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 A-2 since the prosecution could successfully establish that there was a motive for the murder. It is contended that the call details produced relating to the phone used by A-1 and A-2 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 PW 5.

9. We have heard the learned counsel for the parties at length and have perused the record.

10. The conviction of A-2 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 (1977) 2 SCC 99; Eradu v. State of Hyderabad AIR 1956 SC 316; Earabhadrappa v. State of Karnataka (1983) 2 SCC 330; State of U.P. v. Sukhbasi 1985 Supp SCC 79, AIR 1985 SC 1224; Balwinder Singh v. State of Punjab (1987) 1 SCC 1 and Ashok Kumar Chatterjee v. State of M.P. 1989 Supp (1) SCC 560, AIR 1989 SC 1890] that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible 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.

10.1. In Bhagat Ram v. State of Punjab AIR 1954 SC 621, 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.

10.2. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193, wherein it has been observed that :

“21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.”

(emphasis supplied)

11. Upon thorough application of the above-settled law on the facts of the present case, we hold that the circumstantial evidence against the present appellant i.e. A-2 does not conclusively establish the guilt of A-2 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 A-2 committed the murder of the children of PW 5. Additionally, the argument of the respondent that the call details produced relating to the phone used by A-1 and A-2 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 A-1 and A-2 that were produced before them. The High Court inferred from the call details of A-2 and A-1 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 : (Anita case 2011 SCC OnLine P&H 17671, SCC OnLine P&H para 8)

“8. … We have to infer that the unusual attraction of A-2 towards A-1 had completely blinded his senses, which ultimately caused the death of minor children. It is quite probable that A-2 would have thought that the minor children had been a hurdle for his close proximity with A-1.”

(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 A-2. Moreover, the High Court itself observed that “there is no direct evidence to establish that A-1 and A-2 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 A-1 and A-2.

13. When a conviction is based solely on circumstantial evidence, such evidence and the chain of circumstances must be conclusive enough to sustain a conviction. In the present case, the learned counsel of the appellant has argued that conviction of A-2 could not just be upheld solely on the ground that the prosecution has established a motive via the call records. However, we hold that not only is such conviction not possible on the present scattered and incoherent pieces of evidence, but that the prosecution has not even established the motive of the crime beyond reasonable doubt.

14. In the present case, the fact that A-1 and A-2 talked on call, only proves that they shared a close relationship. However, what these records do not prove, is that the murder was somehow in furtherance of this alleged proximity between A-1 and A-2. The High Court's inference in this regard was a mere dubious conclusion that was drawn in absence of any cogent or concrete evidence. The High Court itself based its inferences on mere probability when it held that “It is quite probable that A-2 would have thought that the minor children had been a hurdle for his close proximity with A-1”. Moreover, the prosecution has also failed to establish by evidence the supposed objective of these murders and what was it that was sought to be achieved by such an act. The Court observed that the act of A-2 was inspired by the desire to “exclusively possess” A-1. However, it seems improbable that A-2 would murder the minor children of PW 5 and A-1 to increase or protect his intimacy to A-1 rather than eliminate the husband of A-1 himself. Hence, the inference drawn by the High Court from the information of call details presented before them suffers from infirmity and cannot be upheld, especially in light of the fact that there is admittedly no direct evidence to establish such alleged intimacy and that the entire conviction of A-2 is based on mere circumstantial evidence. We cannot uphold a conviction which is based upon a probability of infatuation of A-2, which in turn is based on an alleged intimacy between him and A-1, which has admittedly not been established by any direct evidence.

15. In the context of the prosecution's last seen theory, it is imperative to examine the evidence of PW 6 and PW 7, since the prosecution claims to have established the theory against A-2 on the testimonies of these two witnesses. In essence, the prosecution tried to establish the first limb of its last seen theory against A-1 through PW 10, claiming that A-2 and A-3 used to visit the house of A-1 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 A-1 in as an accused was based on the testimony of PW 10 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.

16. 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 A-2 and A-3 through the evidence of PW 6 and PW 7. PW 6 (Amarjit Singh) is the farm servant of PW 7 (Gurnaib Singh) who claims to have seen A-2 and A-3 along with the deceased children of PW 5. PW 6 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 A-2 and A-3 to the police. Rather, PW 6 shared this information with PW 7 and thereafter both of them proceeded to inform the police about the presence of A-2 and A-3. However, the High Court erred in not appreciating the numerous contradictions and inconsistencies that the evidence of PW 6 and PW 7 entail. These contradictions and inconsistencies assume capital importance in light of the fact that the entire conviction of A-2 is based merely on circumstantial evidence, and they also render the evidence non-conclusive to establish the guilt of A-2.

17. In the context of the abovementioned contradictions and inconsistencies, the following must be noted:

17.1. Firstly, PW 6 deposed that when he saw A-2 in the field with the two children, he went ahead and made inquiries from him, to which A-2 responded that his associate has gone to answer the call of nature. PW 6 gives no reason in his deposition as to why he went ahead and asked such questions from A-2. The need and rational of such line of inquiry is missing from his testimony and the same appears to be cooked up.

17.2. Secondly, PW 6 did not immediately disclose the fact to the police that he had earlier seen A-2 and A-3 with the deceased children. More importantly, the story of the prosecution is that the accused were arrested on 27-9-2009. However, PW 6, in his testimony, said that “the accused were present in the CIA staff when I visited there on 25-9-2009”. When the prosecution itself says that the police arrested the accused on 27-9-2009, it is not understood that how could they have been present in the CIA staff on 25-9-2009. Moreover, PW 7 in his testimony stated that when he reached the CIA staff, A-2 and A-1 were not present there and he did not ask the police if the accused persons were arrested. Such material contradictions regarding the arrest of the accused persons make it difficult to believe the evidence of PW 6 and PW 7.

17.3. Thirdly, PW 6 explicitly stated that he and PW 7 came to condole the death of the kids to PW 5 and that PW 5 and PW 7 had previous relations with each other. On the contrary, PW 7 in his testimony explicitly states that he had no acquaintance with the complainant (PW 5) and that he and PW 6 did not go to condole the death of the kids of PW 5.

17.4. Lastly, the testimonies of PW 6 and PW 7 also differ on the question of when did they reach the police station to report. PW 7 deposed that he and PW 6 reached the CIA staff at 6 p.m. and remained there only for 2 hours i.e. they left by 8 p.m. However, contradicting this, PW 6 clearly states that he reached the CIA staff along with PW 7 at 9 p.m.

18. 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 A-2, 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.

19. 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 PW 13 Goverdhan Lal and has rightly rejected his evidence “in toto”. We uphold the judgment of the High Court to the extent that it rejects the testimony of PW 13 and finds the theory of extra-judicial confession of A-2 and A-3 to be unnatural.

20. The last piece of evidence against A-2 remains the alleged recovery of the school bag at the instance of the disclosure statement given by A-2. However, similar to the other evidence against A-2, this also suffers from the same inconsistencies and incoherence that makes it difficult for such evidence to support the conviction of A-2. In this context, it is imperative to understand that there were two bags involved in the entire offence, which belonged to the two deceased children. The learned counsel for the respondent has contended that the recovery of one of such bags was at the instance of the disclosure statement given by A-2. The High Court also has supported its conviction of A-2 on this piece of evidence. However, where the High Court has erred is that it analysed this evidence in isolation with the other testimonies. However, when the claim of the prosecution is examined in the entire context of the other testimonies and evidence, it becomes apparent that even this evidence of recovery is not free from contradictions and inconsistencies.

20.1. For instance, PW 6 categorically mentions in his deposition that he observed “two bags” near the dead bodies of the children when he arrived the next day at the place of the unfortunate incident. He further said that he saw those two bags in court also.

20.2. This contradiction is also supported by the testimony of PW 5 i.e. father of the deceased children himself, who explicitly states that “the belongings of the children i.e. clothes, bags and chappals were recovered from the spot”. He further went on to testify in great detail that “the bags contained exercise books, books, geometry box, etc. I bought the bags from the market. I identified both the bags and belongings on 30-9-2009 in the police station”. Hence, it is not understood that when both the bags were recovered beside the dead bodies itself on the day of the inquest by police, then how could a bag be recovered at the instance of the disclosure statement of A-2.

20.3. Moreover, to add to the inconsistency, PW 9 in his testimony states that “when I had gone to my field, I found dead bodies of two children in my field. Nothing else was lying by their side.”

20.4. Although the prosecution maintains that the second bag was recovered at the instance of A-2, the statement of the investigating officer (PW 12) itself contradicts the stand of the prosecution. PW 12 stated 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, PW 12 deposed that “thereafter on 29-9-2009, accused Ranjit Kumar (A-3) 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”.

20.5. These contradictions and inconsistencies in the testimonies of PW 6, PW 5, PW 9 and PW 12 make the story of the prosecution weak and non-conclusive to hold and establish the guilt of A-2, especially in light of the fact that there is virtually no direct evidence to link A-2 to the commission of the offence.

21. Lastly, this appeal also raised an important substantive question of law that whether the call records produced by the prosecution would be admissible under Sections 65-A and 65-B of the 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. v. P.K. Basheer (2014) 10 SCC 473 occupies the filed in this area of law or whether Shafhi Mohammad v. State of H.P. (2018) 2 SCC 801, (2018) 2 SCC 807 lays down the correct law in this regard has now been conclusively settled by this Court by a judgment dated 14-7-2020 in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1 wherein the Court has held that : (Arjun Panditrao Khotkar (2020) 7 SCC 1 & 62, paras 61 & 73)

“61. We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (2014) 10 SCC 473, and incorrectly “clarified” in Shafhi Mohammad (2018) 2 SCC 801, (2018) 2 SCC 807. Oral evidence in the place of such certificate cannot possibly suffice as Section 65-B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor (1875) LR 1 Ch D 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65-B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65-B(4) otiose.

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73.1. Anvar P.V. (2014) 10 SCC 473, as clarified by us hereinabove, is the law declared by this Court on Section 65-B of the Evidence Act. The judgment in Tomaso Bruno (2015) 7 SCC 178, being per incuriam, does not lay down the law correctly. Also, the judgment in Shafhi Mohammad (2018) 2 SCC 801, (2018) 2 SCC 807 and the judgment dated 3-4-2018 reported as Shafhi Mohammad v. State of H.P. (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled.

73.2. The clarification referred to above is that the required certificate under Section 65-B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the device concerned, on which the original information is first stored, is owned and/or operated by him. 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 65-B(1), together with the requisite certificate under Section 65-B(4).”

(emphasis supplied)

22. In light of the above, 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 65-B(4) is a mandatory requirement of the law.

23. To conclude, the tripod stand of motive, last seen theory and recovery, that supported the conviction of A-2 according to the High Court, is found to be non-conclusive and the evidence supporting the conviction of A-2 is marred with inconsistencies and contradictions, thereby making it impossible to sustain a conviction solely on such circumstantial evidence.

24. Accordingly, the appeal filed by the appellant Ravinder Singh (A-2) i.e. Criminal Appeal No. 1307 of 2019 is allowed and the impugned order 2011 SCC OnLine P&H 17671 of the High Court is set aside to the extent that it convicts A-2 under Sections 302 and 364 of the Penal Code, 1860. Hence, the conviction of A-2 is set aside. However, the acquittal of A-1 and A-3 by the impugned order 2011 SCC OnLine P&H 17671 is upheld. Accordingly, the appeals filed by the respondent State against the impugned order 2011 SCC OnLine P&H 17671 challenging the acquittal of A-1 and A-3 i.e. Criminal Appeals Nos. 1308-11 of 2019 are dismissed. Therefore, we direct that a copy of this order be communicated to the relevant jail authorities and the appellant i.e. Ravinder Singh (A-2) be immediately set at liberty, unless his detention is required in any other case. No order as to costs.