2012 Supreme(Del) 1898

High Court of Delhi
THE HONOURABLE MR. JUSTICE S. RAVINDRA BHAT & THE HONOURABLE MR. JUSTICE S.P. GARG
Mohd. Shakil @ Bhola & Others
Versus
State
CRL.A. Nos. 98, 117, 212 & 264 of 2012 & CRL.M. (Bail) 160, 190 & 459 of 2012
Decided on : 14-09-2012

Call records are inadmissible in evidence without a Section 65B certificate.

Headnote:

CRIMINAL - EVIDENCE ACT - SECTION 65B - ADMISSIBILITY OF CALL RECORDS - SECTION 302/201/120B IPC - MURDER - CIRCUMSTANTIAL EVIDENCE - LAST SEEN CIRCUMSTANCE - RECOVERY OF BURNT CAR - MOTIVE - SECTION 120B IPC - CONSPIRACY - SECTION 201 IPC - DESTRUCTION OF EVIDENCE - CONVICTION - SENTENCE.

Fact of the Case:

The deceased, a lawyer, was engaged by the appellants to defend them in several cases. The prosecution alleged that the deceased used to demand payment towards his fees from the appellants, which was the motive for murder; further, they suspected him of having divulged some information to one Kishan Solanki. The appellants, except Sunil, were sentenced to undergo life imprisonment, and pay fine; Sunil was sentenced to undergo RI for seven years and pay fine.

Finding of the Court:

The court found that the prosecution was able to successfully establish and prove vital incriminating circumstances, such as the “last seen” evidence, through the testimony of PW-9; it also proved that the car used to abduct the deceased belonged to Kamal Tyagi, and that after committing the crime, the accused quickly sought to dispose it off by handing it over to accused Sunil. The testimony of PW-40 proved that Sunil had suffered burn injuries; the Wagon-R was found in a burnt condition in Ghaziabad, UP. The other three accused mentioned about it, and about the role played by Sunil. That led the police to Sunil; his disclosure statement led to recovery of the burnt chasis of the car. PW-7 proved that the burnt car was seized and transported by the police. The postmortem report established that the approximate time of death was 10 PM on 17-3-2005; the deceased was last seen together with the three accused, in the Wagon-R car at around 8 PM that evening.

Issues: 1. Whether the call records were admissible in evidence without a Section 65B certificate? 2. Whether the prosecution proved the last seen circumstance? 3. Whether the prosecution proved the recovery of the burnt car? 4. Whether the prosecution proved the motive for the murder? 5. Whether the appellants were guilty of conspiracy under Section 120B IPC? 6. Whether the appellants were guilty of destruction of evidence under Section 201 IPC?

Ratio Decidendi: 1. The court held that the call records were inadmissible in evidence without a Section 65B certificate. The court observed that neither the deposition of PW-24, the security officer of the telecom service provider, nor that of PW-27 who claims to have seized the call detail print outs in respect of Shakeel’s mobile number, are supported by Section 65-B certification, or even deposition in conformity with its provisions. In the absence of any such material, the Court cannot entertain and rely on such documents. 2. The court held that the prosecution proved the last seen circumstance through the testimony of PW-9. The court observed that PW-9 deposed to having seen the deceased in the Wagon-R car with all the accused, at around 7-45 PM on the day of the incident. He claimed to have known them, as they used to hire his buses. According to the witness, two accused, Kamal Tyagi and Shakeel had hired his buses, even on the day of the incident. His Section 161 statement was recorded on 19.03.2005. He also deposed to having been informed about Deepak's death, and having gone later to his house, and to the police. 3. The court held that the prosecution proved the recovery of the burnt car. The court observed that the burnt car was in the vicinity of Ghaziabad. Sunil was arrested from the house Sahni Gate, Dhokna Mohalla. PW-48 deposed that accused Sunil, when he was found at the house, was lying on a cot and his face and front portion of the body had burn injuries. PW-29’s deposition reveals that Sunil led the police party to a place in the area of PS Murad Nagar, a katcharaasta. The white-colored Wagon-R was in a burnt condition. All its four tyres were burnt and so was its rear seat. Only its structure and concerned seats were visible. The car was loaded on to a tractor trolley which was passing by. 4. The court held that the prosecution proved the motive for the murder. The court observed that the witness had stated during his testimony that the accused and deceased had a quarrel regarding the amount payable as fees for representing them, and had left, threatening the deceased. 5. The court held that the appellants were not guilty of conspiracy under Section 120B IPC. The court observed that in the absence of any other evidence linking the accused Sunil with the other accused, there could not have, on the basis of assumption of conspiracy, been a finding that he was guilty of the offence under Section 120-B of the Indian Penal Code. 6. The court held that the appellants were guilty of destruction of evidence under Section 201 IPC.

Final Decision: The conviction of Mohd. Shakeel, Kamal Tyagi and Devraj under section 302/201/120B, IPC is confirmed. The conviction of appellant Sunil under section 120B, IPC is set aside; his conviction is, thereby, modified to one under section 201, IPC. Consequently, sentence awarded to him is modified to rigorous imprisonment for a period of three years.