Ravinder Singh @ Kaku v. State of Punjab

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: “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 through that the minor children had been a hurdle for his close proximity with A1” [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. 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 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. 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.

14. 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 PW10, 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 PW10 and he himself had turned hostile and had come up with a self­contradictory version of his testimony, no portion of his evidence could be relied upon.

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 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 important in light of the fact that the entire conviction of A[2] is based merely on circumstantial evidence, and they also render the evidence non­conclusive to establish the guilt of A[2].

16. In the context of the abovementioned contradictions and inconsistencies, the following must be noted: Firstly, W[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. 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 27.09.2009. However, PW[6] said in 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, 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 PA[6] and PW[7]. 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]. 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 PM and remained there only for 2 hours i.e. they left by 8 PM. However, contradicting this, PW[6] clearly states that he reached the CIA Staff along with PW[7] 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 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.

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 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 A[2] and A[3] to be unnatural.

19. 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 the 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. 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. 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 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 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 A[2]. 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.” Although the prosecutions maintains that the second bag was recovered at the instance of A[2], 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 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 PW[6], PW[5], PW[9] and PW12 make the story of the prosecution weak and non­conclusive 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.

20. Lastly, this appeal also raised an important 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 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 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 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 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 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. 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 therefore overruled... The clarification referred to above is that the required certificate under Section 65B(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 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 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 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.

22. 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 non­conclusive 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.

23. 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 of the High Court is set aside to the extent that it convicts A[2] under section 302 and 364 of the Indian Penal Code. Hence, the conviction of A[2] is set aside. However, the acquittal of A[1] and A[3] by the impugned order is upheld. Accordingly, the appeals filed by the Respondent/State against the impugned order challenging the acquittal of A[1] and A[3] 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 (A[2]) be immediately set at liberty, unless his detention is required in any other case. No order as to costs. …………………………..J (UDAY UMESH LALIT).……………………..J (VINEET SARAN) New Delhi Dated: MAY 4, 2022 REVISED ITEM NO.1501 COURT NO.9 SECTION II-B [For Judgment] S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No(s).1307/2019 RAVINDER SINGH @ KAKU Appellant(s)

VERSUS

THE STATE OF PUNJAB Respondent(s) ([HEARD BY:HON'BLE UDAY UMESH LALIT AND HON'BLE VINEET SARAN, JJ.] IA No.24253/2011 - GRANT OF BAIL, IA No.5326/2012 - PERMISSION TO FILE ADDITIONAL DOCUMENTS) WITH Crl.A. No.1308-1311/2019 (II-B) (IA No.157178/2018 - EXEMPTION FROM FILING O.T., IA No.26736/2012 - EXEMPTION FROM FILING O.T.) Date: 04-05-2022 These matters were called on for pronouncement of judgment. For Parties Mr. Bharat Bhushan, AOR Mr. Shubham Khanduja, Adv. Mr. Aasheesh K. Paandey, Adv. Mr. Sandeep Kumar Dwivedi, Adv. Mr. Avadh Pratap Singh, Adv. Ms. Sucheta Kumari, Adv. Mr. Pradeep Kumar Dwivedi, Adv. Mr. Satyam Pandey, Adv. Mr. Raghvendra Upadhyay, Adv. Mr. Rakesh Mishra, AOR Ms. Jaspreet Gogia, AOR Ms. Shivangi Singhal, Adv. Mr. Karamvir Gogia, Adv. Ms. Anuradha Mutatkar, AOR Mr. Vikas Mahajan, Sr. Adv. Mr. Anil Kumar, Adv. Mr. Vivek Mahajan, Adv. Ms. Reena Devi, Adv. Mr. Arun Singh, Adv. Mr. Salik Ram, Adv. Mr. Vinod Sharma, AOR. Hon’ble Mr. Justice Vineet Saran pronounced the judgment of the Bench comprising Hon’ble Mr. Justice Uday Umesh Lalit and His Lordship. Criminal Appeal No.1307 of 2019 is allowed and Criminal Appeal Nos.1308-1311 of 2019 are dismissed in terms of the signed reportable judgment. The operative part of the judgment reads as under: “22. 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.

23. 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 of the High Court is set aside to the extent that it convicts A[2] under section 302 and 364 of the Indian Penal Code. Hence, the conviction of A[2] is set aside. However, the acquittal of A[1] and A[3] by the impugned order is upheld. Accordingly, the appeals filed by the Respondent/State against the impugned order challenging the acquittal of A[1] and A[3] 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 (A[2]) be immediately set at liberty, unless his detention is required in any other case.” Pending application(s), if any, stands disposed of. (ARJUN BISHT) (PRADEEP KUMAR) (ASHWANI THAKUR) (COURT MASTER (SH) (BRANCH OFFICER)

AR-CUM-PS (signed reportable judgment is placed on the file) *For appearance only ITEM NO.1501 COURT NO.9 SECTION II-B [For Judgment] S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No(s).1307/2019 RAVINDER SINGH @ KAKU Appellant(s)

VERSUS

THE STATE OF PUNJAB Respondent(s) ([HEARD BY:HON'BLE UDAY UMESH LALIT AND HON'BLE VINEET SARAN, JJ.] IA No.24253/2011 - GRANT OF BAIL, IA No.5326/2012 - PERMISSION TO FILE ADDITIONAL DOCUMENTS) WITH Crl.A. No.1308-1311/2019 (II-B) (IA No.157178/2018 - EXEMPTION FROM FILING O.T., IA No.26736/2012 - EXEMPTION FROM FILING O.T.) Date: 04-05-2022 These matters were called on for pronouncement of judgment. For Parties Ms. Jaspreet Gogia, AOR Ms. Shivangi Singhal, Adv. Mr. Karamvir Gogia, Adv. Mr. Sandeep Kumar Dwivedi, Adv. Mr. Avadh Pratap Singh, Adv. Ms. Sucheta Kumari, Adv. Mr. Pradeep Kumar Dwivedi, Adv. Mr. Satyam Pandey, Adv. Mr. Raghvendra Upadhyay, Adv. Mr. Rakesh Mishra, AOR Mr. Bharat Bhushan, AOR Mr. Shubham Khanduja, Adv. Mr. Aasheesh K. Paandey, Adv. Ms. Anuradha Mutatkar, AOR Mr. Vikas Mahajan, Sr. Adv. Mr. Anil Kumar, Adv. Mr. Vivek Mahajan, Adv. Ms. Reena Devi, Adv. Mr. Arun Singh, Adv. Mr. Salik Ram, Adv. Mr. Vinod Sharma, AOR. Hon’ble Mr. Justice Vineet Saran pronounced the judgment of the Bench comprising Hon’ble Mr. Justice Uday Umesh Lalit and His Lordship. Criminal Appeal No.1307 of 2019 is allowed and Criminal Appeal Nos.1308-1311 of 2019 are dismissed in terms of the signed reportable judgment. The operative part of the judgment reads as under: “22. 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.

23. 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 of the High Court is set aside to the extent that it convicts A[2] under section 302 and 364 of the Indian Penal Code. Hence, the conviction of A[2] is set aside. However, the acquittal of A[1] and A[3] by the impugned order is upheld. Accordingly, the appeals filed by the Respondent/State against the impugned order challenging the acquittal of A[1] and A[3] 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 (A[2]) be immediately set at liberty, unless his detention is required in any other case.” Pending application(s), if any, stands disposed of. (ARJUN BISHT) (PRADEEP KUMAR) (ASHWANI THAKUR) (COURT MASTER (SH) (BRANCH OFFICER)