Supreme Court of India
RAVINDER SINGH @ KAKUversusSTATE OF PUNJAB
- Citation
- 2022 INSC 505
- Decided
- 4 May 2022
- Disposal
- Disposed off
- Bench
- UDAY UMESH LALIT
Holding
A conviction based solely on circumstantial evidence that does not form a complete, cogent chain and on electronic evidence lacking a Section 65B(4) certificate cannot be sustained, so the conviction under Sections 302 and 364 IPC was set aside.
Summary
The case involved the kidnapping and murder of two minor children, for which three persons – Anita (A-1), Ravinder Singh alias Kaku (A-2) and Ranjit Kumar Gupta (A-3) – were charged. The trial court convicted all three, sentencing A-2 to death; the High Court later acquitted A-1 and A-3 and reduced A-2's sentence to 20 years, relying on circumstantial evidence, motive inferred from call records, a "last seen" theory and recovered material. On appeal, the Supreme Court examined whether the circumstantial evidence formed a complete, cogent chain and whether the electronic call records were admissible without a Section 65B(4) certificate. The Court held that the evidence against A-2 was fragmented, contradictory and failed to establish motive or his participation beyond reasonable doubt, and that the electronic evidence was inadmissible without the statutory certification. Consequently, the conviction under Sections 302 and 364 IPC was set aside, A-2 was released, and the acquittals of A-1 and A-3 were upheld.
Issues considered
- The adequacy of circumstantial evidence to sustain a conviction under Sections 302 and 364 IPC.
- Whether the chain of circumstances was complete, cogent and coherent.
- Whether motive for the murder was proved beyond reasonable doubt.
- Whether electronic call records are admissible without a Section 65B(4) certification.
- Whether inconsistencies in witness testimonies preclude conviction.
Legislation cited
- Indian Evidence Act, 1872s. 65A, s. 65B(4)
- Indian Penal Code, 1860s. 120B, s. 302, s. 364
Subjects
circumstantial evidenceconvictionIndian Evidence ActSection 65Bmotivelast seen theorykidnapping and murderelectronic evidencewitness inconsistenciesacquittal
Judgment
[2022] 4 S.C.R. 589 589
RAVINDER SINGH @ KAKU A
v.
STATE OF PUNJAB
(Criminal Appeal No. 1307 of 2019)
MAY 04, 2022 B
[UDAY UMESH LALIT AND VINEET SARAN, JJ.]
Penal Code,1860: ss. 302 r/w 120B and 364 – Murder and
kidnapping – Kidnapping and murder of two minor children –
Conviction of the main accused and other co-accused including
C
the mother of the children and imposed death sentence for offence
punishable u/s. 302 r/w 120B and ten years rigorous imprisonment
for offence punishable u/s. 364 – However, the High Court acquitted
the co-accused and sentenced the main accused to rigorous
imprisonment for 20 years – On appeal, held – When conviction is
based solely on circumstantial evidence, it is imperative that the D
chain of circumstances is complete, cogent and coherent in order to
sustain a conviction – Circumstantial evidence against the main
accused does not conclusively establish his guilt in committing the
murder of the children – Motive, last seen theory, the arrest of the
accused, the recovery of material objects and the call details
E
produced, do not conclusively complete the chain of evidence –
Inconsistencies and contractions are found in the evidences given
against the main accused – Fact that he committed the murder of
the children not established – Thus, the conviction of main accused
solely on circumstantial evidence not possible and is set aside –
Evidence. F
Evidence Act, 1872: s. 65B(4) – Certification of electronic
evidence – Requirement of – Held: Oral Evidence in place of such
certificate cannot suffice as s.65B(4) is a mandatory requirement
of the Law.
Evidence: Circumstantial evidence – Conviction on basis of G
– When – Held: 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 – 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 H
589
590 SUPREME COURT REPORTS [2022] 4 S.C.R.
A connected with the principal fact sought to be inferred from those
circumstances.
Disposing of the appeals, the Court
HELD : 1.1 In order to sustain a conviction, it is imperative
that the chain of circumstances is complete, cogent and coherent.
B 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
C beyond reasonable doubt and have to be shown to be closely
connected with the principal fact sought to be inferred from those
circumstances. [Para 10][598-E, F-G]
1.2 The circumstantial evidence against the appellant-A2
does not conclusively establish the guilt of A2 in committing the
D 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 submission of the respondent that the call
details produced relating to the phone used by A1 and A2 have
E established that they shared an intimate relationship and that this
relationship became the root cause of offence is also cannot be
accepted. [Para 11][599-D-E]
1.3 When a conviction is based solely on circumstantial
evidence, such evidence and the chain of circumstances must be
F conclusive enough to sustain a conviction. In the instant case, it
was submitted that conviction of A2 could not just be upheld solely
on the ground that the prosecution has established a motive via
the call records. However, it is held that not only is such
conviction not possible on the present scattered and incoherent
G pieces of evidence, but that the prosecution has not even
established the motive of the crime beyond reasonable doubt. In
the instant case, the fact that A1 and A2 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 A1 and A2. The High Court’s
H
RAVINDER SINGH @ KAKU v. STATE OF PUNJAB 591
inference in this regard was a mere dubious conclusion that was A
drawn in absence of any cogent or concrete evidence. The High
Court itself based its inferences on mere probability. Moreover,
the prosecution 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 A2
B
was inspired by the desire to “exclusively possess” A1. However,
it seems improbable that A2 would murder the minor children of
PW5 and A1 to increase or protect his intimacy to A1 rather than
eliminate the husband of A1 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 C
in light of the fact that there is admittedly no direct evidence to
establish such alleged intimacy and that the entire conviction of
A2 is based on mere circumstantial evidence. A conviction which
is based upon a probability of infatuation of A2, which in turn is
based on an alleged intimacy between him and A1, which has
D
admittedly not been established by any direct evidence cannot
be upheld. [Para 13][600-C-H]
1.4 The High Court erred in holding 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. The
High Court erred in not appreciating the numerous contradictions E
and inconsistencies that the evidence of PW6 and PW7 entail.
These contradictions and inconsistencies assume capital
important in light of the fact that the entire conviction of A2 is
based merely on circumstantial evidence, and they also render
the evidence non-conclusive to establish the guilt of A2. [Para F
15][601-C-D, E-F]
1.5 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 G
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. [Para 17][602-E]
H
592 SUPREME COURT REPORTS [2022] 4 S.C.R.
A 1.6 With respect to the extra judicial confessions, suffice it
to say that the attempt of the respondent to rely on that is
untenable since the High Court has taken note of the
inconsistences in the evidence of PW13 and rightly rejected his
evidence “in toto”. The judgement of the High Court to the extent
that it rejects the testimony of PW13 and finds the theory of extra
B
judicial confession of A2 and A3 to be unnatural is upheld. 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
C makes it difficult for the such evidence to support the conviction
of A2. The contradictions and inconsistencies 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. [Paras 18,
D
19][602-F-H; 603-G]
1.7 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
E admissible in the court of law. Oral evidence in the place of such
certificate, as is the case in the instant matter, cannot possibly
suffice as Section 65B(4) is a mandatory requirement of the law.
[Para 21][605-C-D]
Anvar P.V. v. P. K. Basheer & Ors. (2014) 10 SCC 473
F : [2014] 11 SCR 399; Shafhi Mohammad v. State of
Himachal Pradesh (2018) 2 SCC 801; Arjun Panditrao
Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC
1 – referred to.
1.8 The tripod stand of motive, last seen theory and
G recovery, that supported the conviction of A2 according to the
High Court, is found to be non-conclusive and the evidence
supporting the conviction of A2 is marred with inconsistencies
and contradictions, thereby making it impossible to sustain a
conviction solely on such circumstantial evidence. Thus, the
impugned order of the High Court is set aside to the extent that
H
RAVINDER SINGH @ KAKU v. STATE OF PUNJAB 593
it convicts A2 under section 302 and 364 IPC. Hence, the A
conviction of A2 is set aside. However, the acquittal of A1 and A3
by the impugned order is upheld. [Paras 22, 23][605-D-F]
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 B
Karnataka AIR 1983 SC 446 : [1983] 2 SCR 552; 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 1989 SC 1890; Bhagat Ram v. State of Punjab C
AIR 1954 SC 621; C. Chenga Reddy and Ors. v. State
of A.P. (1996) 10 SCC 193 : [1996] 3 Suppl. SCR 479;
Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473 :
[2014] 11 SCR 399; Shafhi Mohammad v. State of
Himachal Pradesh (2018) 2 SCC 801; Arjun Panditrao
Khotkar vs Kailash Kushanrao Gorantyal (2020) 7 SCC D
1 – referred to.
Case Law Reference
AIR 1977 SC 1063 referred to Para 10
E
AIR 1956 SC 316 referred to Para 10
[1983] 2 SCR 552 referred to Para 10
AIR 1985 SC 1224 referred to Para 10
AIR 1987 SC 350 referred to Para 10 F
AIR 1989 SC 1890 referred to Para 10
AIR 1954 SC 621 referred to Para 10
[1996] 3 Suppl. SCR 479 referred to Para 10
G
[2014] 11 SCR 399 referred to Para 20
(2018) 2 SCC 801 referred to Para 20
(2020) 7 SCC 1 referred to Para 20
H
594 SUPREME COURT REPORTS [2022] 4 S.C.R.
A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1307 of 2019.
From the Judgment and Order dated 22.02.2011 of the High Court
of Punjab and Haryana at Chandigarh in Criminal Appeal No. 861-DB
of 2010.
B With
Criminal Appeal Nos. 1308-1311 of 2019
Bharat Bhushan, Ms. Jaspreet Gogia, Ms. Mandakini Singh,
Ms. Ashima Mandla, Ms. Shirin Khajuria, Ms. Aakansh Kaul, B. V.
C Balaram Das, Vikas Mahajan, Vishal Mahajan, Vinod Sharma, Anil
Kumar, Ms. Anuradha Mutatkar, Ranjit Malhotra, Avadh Pratap Singh,
Ms. Sucheta Kumari, Sandeep Kumar Dwivedi, Shiva Bhardwaj,
Ms. Aditi Chhopra, Rakesh Mishra, Advs. for the appearing parties.
The Judgment of the Court was delivered by
D VINEET SARAN, J.
1. These appeals arise out of the judgment dated 22.02.2011 passed
by the High Court of Punjab & 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
E namely; Anita @ Arti (mother of the children) (A-1); Ravinder Singh @
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 120B IPC and rigorous
imprisonment for 10 years and fine of Rs.5000/-each for the offence
punishable under Section 364 IPC.
F
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.
G 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.
H
RAVINDER SINGH @ KAKU v. STATE OF PUNJAB 595
[VINEET SARAN, J.]
4. The facts leading to the present case are dealt with in paragraphs A
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 B
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 24.09.2009, 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 return to their house till 9 p.m. He C
(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 D
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
24.09.2009 was made in the Roznamcha. The matter was
entrusted to S.I. Subhash Chander for investigation and on
the basis of his report, F.I.R under Sections 364/506/120-B E
IPC was registered against Ranjit Kumar Gupta and his wife
Sanju.
3. On 25.09.2009, 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 F
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 G
Mehme Wala, Moga, Ravinder Singh alias Kaku and Anita
alias Arti also nominated as accused. The accused were
arrested on 27.09.2009. However, during investigation,
accused Sanju was found innocent. After completion of entire
investigation, accused Anita alias Arti, Ravinder Singh alias
H
596 SUPREME COURT REPORTS [2022] 4 S.C.R.
A 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 No.2 of report under Section 173 Cr.P.C.
4. On commitment of the case to this Court, charge under
B 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 A2, which was his determination to
C 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
D 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:
E
“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
F 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
G to the case of the prosecution as against the second accused.
.
.
At the initial stage the first accused Anita was not at all
suspected. Later on she was arrested from her house on
H
RAVINDER SINGH @ KAKU v. STATE OF PUNJAB 597
[VINEET SARAN, J.]
27.09.2009 and from her custody the mobile phone bearing A
sim cards No. 9592851851 and 9914505216 were recovered.
The recovery of those mobile phones and the relevant call
details Ex.D41 to Ex.D44 would support the case of the
prosecution that A2 had a close intimacy with A1 which
culminated in the unfortunate occurrence.
B
.
.
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 C
accused projected through PW10 Krishan Lal by the
prosecution failed, the prosecution could establish the second
limb of the last seen theory through PW6 Amarjit Singh and
PW7 Gurnaib Singh. His arrest and recovery of the material
objects also would support the case of the prosecution as D
against him. The failure to establish the extra judicial
confession alleged to have been given by the second accused
to PW13 Goverdhan Lal does not affect the case of the
prosecution as against him. It is to be noted that arrest of A2
and the recovery of material objects from his person and also
at his instance were established. E
.
.
A2 is convicted only based on the circumstantial evidence
produced by the prosecution. The infatuation he had with A1 F
had completely blinded his sense of proportion and ultimately
he had committed the cruel murder of the children of PW5
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 A2. A2 was just
G
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 women. Reformation
is possible during the long years of his imprisonment in jail.
Further, if the second accused having spent his prime time in
H
598 SUPREME COURT REPORTS [2022] 4 S.C.R.
A 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
B 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
C 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.
D
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
E 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.
F State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v.
State of M.P. (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
G 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. 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
H be such as to negate the innocence of the accused and bring the offence
RAVINDER SINGH @ KAKU v. STATE OF PUNJAB 599
[VINEET SARAN, J.]
home beyond any reasonable doubt. We may also make a reference to A
a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P.
(1996) 10 SCC 193, wherein it has been observed that:
“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 B
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....”.
C
[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. A2 does not conclusively establish the guilt of
A2 in committing the murder of the deceased children. The last seen D
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. Additionally, 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 E
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 F
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 G
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] H
600 SUPREME COURT REPORTS [2022] 4 S.C.R.
A 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
B
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 circumstances must be conclusive enough
to sustain a conviction. In the present case, the learned counsel of the
C appellant has argued that conviction of A2 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
D reasonable doubt. In the present case, the fact that A1 and A2 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 A1 and A2. 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
E inferences on mere probability when it held that “It is quite probable
that A2 would have through that the minor children had been a
hurdle for his close proximity with A1”. 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.
F The court observed that the act of A2 was inspired by the desire to
“exclusively possess” A1. However, it seems improbable that A2 would
murder the minor children of PW5 and A1 to increase or protect his
intimacy to A1 rather than eliminate the husband of A1 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,
G especially in light of the fact that there is admittedly no direct evidence
to establish such alleged intimacy and that the entire conviction of A2 is
based on mere circumstantial evidence. We cannot uphold a conviction
which is based upon a probability of infatuation of A2, which in turn is
based on an alleged intimacy between him and A1, which has admittedly
H not been established by any direct evidence.
RAVINDER SINGH @ KAKU v. STATE OF PUNJAB 601
[VINEET SARAN, J.]
14. In the context of the Prosecution’s Last Seen Theory, it is A
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
B
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. C
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 D
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 inconsistencies E
that the evidence of PW6 and PW7 entail. These contradictions and
inconsistencies assume capital important in light of the fact that the entire
conviction of A2 is based merely on circumstantial evidence, and they
also render the evidence non-conclusive to establish the guilt of A2.
16. In the context of the abovementioned contradictions and F
inconsistencies, the following must be noted: Firstly, W6 deposed that
when he saw A2 in the field with the two children, he went ahead and
made inquiries from him, to which A2 responded that his associate has
gone to answer the call of nature. PW6 gives no reason in his deposition
as to why he went ahead and asked such questions from A2. The need G
and rational of such line of inquiry is missing from his testimony and the
same appears to be cooked up. Secondly, PW6 did not immediately
disclose the fact to the police that he had earlier seen A2 and A3 with
the deceased children. More importantly, the story of the prosecution is
that the accused were arrested on 27.09.2009. However, PW6 said in
H
602 SUPREME COURT REPORTS [2022] 4 S.C.R.
A his testimony said that “the accused were present in the CIA staff
when I visited there on 25.09.2009”. When the prosecution itself says
that the police arrested the accused on 27.09.2009, it is not understood
that how could they have been present in the CIA staff on 25.09.2009.
Moreover, PW7 in his testimony stated that when he reached the CIA
Staff, A2 and A1 were not present there and he did not ask the police if
B
the accused persons were arrested. Such material contradictions regarding
the arrest of the accused persons make it difficult to believe the evidence
of PA6 and PW7. Thirdly, PW6 explicitly stated that he and PW7 came
to condole the death of the kids to PW5 and that PW5 and PW7 had
previous relations with each other. On the contrary, PW7 in his testimony
C explicitly states that he had no acquaintance with the complainant (PW5)
and that he and PW6 did not go to condole the death of the kids of 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
D
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
E 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
F 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
G 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 bags involved
H in the entire offence, which belonged to the two deceased children. The
RAVINDER SINGH @ KAKU v. STATE OF PUNJAB 603
[VINEET SARAN, J.]
learned counsel for the respondent has contended that the recovery of A
one of such bags was at the instance of the disclosure statement given
by A2. The High Court also has supported its conviction of A2 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
B
the other testimonies and evidence, it becomes apparent that even this
evidence of Recovery is not free from contradictions and inconsistencies.
For instance, PW6 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. This contradiction is also supported by C
the Testimony of PW5 i.e. father of the deceased children himself, who
explicitly states that “The belongings of the children i.e. clothes, bags
and chapels 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
D
both the bags and belongings on 30.09.2009 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 A2. Moreover, to add to the inconsistency, PW9 in his testimony states
that “when I had gone to my field, I found dead bodies of two children E
in my field. Nothing else was lying by their side.” Although the
prosecutions maintains that the second bag was recovered at the instance
of A2, the statement of the Investigating Officer (PW12) itself contradicts
the stand of the prosecution. PW12 stated in his testimony that “one
school bag of Aman Kumar deceased containing books and geometry
F
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 G
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 H
604 SUPREME COURT REPORTS [2022] 4 S.C.R.
A 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
B
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
C Section 65B(4) is a condition precedent to the admissibility
of evidence by way of electronic record, as correctly held in
Anvar P.V. (supra), and incorrectly “clarified” in Shafhi
Mohammed (supra). Oral evidence in the place of such
certificate cannot possibly suffice as Section 65B(4) is a
D mandatory requirement of the law. Indeed, the hallowed
principle in Taylor v. Taylor (1876) 1 Ch.D 426, which has
been followed in a number of the judgments of this Court,
can also be applied. Section 65B(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
E render Section 65B(4) otiose.
.
.
Anvar P.V. (supra), as clarified by us hereinabove, is the law
declared by this Court on Section 65B of the Evidence Act.
F The judgment in Tomaso Bruno (supra), being per incuriam,
does not lay down the law correctly. Also, the judgment in
SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad
(supra) and the judgment dated 03.04.2018 reported as
(2018) 5 SCC 311, do not lay down the law correctly and are
G therefore overruled.
.
.
The clarification referred to above is that the required
certificate under Section 65B(4) is unnecessary if the original
H document itself is produced. This can be done by the owner
RAVINDER SINGH @ KAKU v. STATE OF PUNJAB 605
[VINEET SARAN, J.]
of a laptop computer, computer tablet or even a mobile phone, A
by stepping into the witness box and proving that the
concerned device, 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
B
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).”
21. In light of the above, the electronic evidence produced before
the High Court should have been in accordance with the statute and C
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. D
22. To conclude, the tripod stand of Motive, Last Seen Theory
and Recovery, that supported the conviction of A2 according to the High
Court, is found to be non-conclusive and the evidence supporting the
conviction of A2 is marred with inconsistencies and contradictions,
thereby making it impossible to sustain a conviction solely on such
circumstantial evidence. E
23. Accordingly, the appeal filed by the appellant Ravinder Singh
(A2) i.e. Criminal Appeal No.1307 of 2019 is allowed and the impugned
order of the High Court is set aside to the extent that it convicts A2
under section 302 and 364 of the Indian Penal Code. Hence, the conviction
of A2 is set aside. However, the acquittal of A1 and A3 by the impugned F
order is upheld. Accordingly, the appeals filed by the Respondent/State
against the impugned order challenging the acquittal of A1 and A3 i.e.
Criminal Appeal Nos. 1308-1311 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 (A2) be immediately
G
set at liberty, unless his detention is required in any other case.
No order as to costs.
Nidhi Jain Appeals disposed of.
(Assisted by : Tamana, LCRA)
H
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