The prosecution has adduced the evidence in form of
electronic records i.e. call details obtained from the service
provider i.e. Reliance Communications Limited, which were stored
in the Company's computer server. Such evidence is admissible in
evidence as provided under Section 65A and 65B of the Indian
Evidence Act, if the same is produced in the manner specified in
Section 65B(2) of the Evidence Act. The said provision reads as
under:-
“65B(2). The conditions referred to in sub-section
(1) in respect of a computer output shall be the
following, namely:-
(a) the computer output containing the information
was produced by the computer during the period
over which the computer was used regularly to
store or process information for the purposes of
any activities regularly carried on over that period
by the person having lawful control over the use of
the computer;
(b) during the said period, information of the kind
contained in the electronic record or of the kind
from which the information so contained is derived
was regularly fed into the computer in the ordinary
course of the said activities;
(c) throughout the material part of the said period,
the computer was operating properly or, if not,
then in respect of any period in which it was not
operating properly or was out of operation during
that part of the period, was not such as to affect
the electronic record or the accuracy of its
electronic; and
(d) the information contained in the electronic
record reproduces or is derived from such
information fed into the computer in the ordinary
course of the said activities.”
Under sub-section (3) of Section 65B, sub-section (1) and
(2) would apply where single or combination of computers, is used
for storage or processing in the regular course of activities and
the computers used shall be construed as a single computer.
Under sub-section (4) of Section 65B, if evidence is desired to be
led under Section 65B, it would be admissible if a certificate is
tendered, signed by a person either occupying a responsible
official position in relation to the computer or being in the
management of the relevant activities; provided the following is
certified:
31
“(a) electronic record containing the statement is
identified with description of how it was produced;
(b) that electronic record was a computer printout
generated by a device particulars whereof are
given;
(c) deals with matters to which conditions in sub-
section (2) relate.”
In the matter of R v. Shepherd14, Lord Griffiths dealing with the
defence argument held as under:-
“Documents produced by computers are an
increasingly common feature of all business and
more and more people are becoming familiar with
their uses and operation.
Computers vary
immensely in their complexity and in the operations
they perform. The nature of the evidence to
discharge the burden of showing that there has
been no improper use of the computer and that it
was operating properly will inevitably vary from
case to case. The evidence must be tailored to suit
the needs of the case. I suspect that it will very
rarely be necessary to call an expert and that in
the vast majority of cases it will be possible to
discharge the burden by calling a witness who is
familiar with the operation of the computer in the
sense of knowing what the computer is required to
do and who can say that it is doing it properly.
The computer in this case was of the simplest kind
printing limited basic information on each till roll.
The store detective was able to describe how the
tills operated, what the computer did, that there
had been no trouble with the computer and how she
had also examined all the till rolls, which showed no
14
[1993] 1 All ER 225
32
evidence of malfunction either by the tills or the
central computer.
In these circumstances I agree with the Court of
Appeal that she was fully qualified to give the
evidence required by s 69 and that in the light of
her evidence the till rolls were properly admitted
as part of the prosecution case.
I therefore answer the certified question by saying
that s 69 (I) of the Police and Criminal Evidence
Act, 1984 can be satisfied by the oral evidence of a
person familiar with the operation of the computer
who can give evidence of its reliability and such a
person need not be a computer expert.”
71. In the matter of State (NCT of Delhi) Vs. Navjot Sandhu alias
Afsan Guru15, the Supreme Court, while accepting such a plea,
held in paragraph-150 as under:-
“150. According to Section 63, secondary evidence
means and includes, among other things, “copies
made from the original by mechanical processes
which in themselves insure the accuracy of the
copy, and copies compared with such copies.”
Section 65 enables secondary evidence of the
contents of a document to be adduced if the
original is of such a nature as not to be easily
movable. It is not in dispute that the information
contained in the call records is stored in huge
servers which cannot be easily moved and produced
in the court. That is what the High Court has also
observed at para 276. Hence, printouts taken from
the computers/servers by mechanical process and
certified by a responsible official of the service-
providing company can be led in evidence through a
witness who can identify the signatures of the
15
(2005) 11 SCC 600
33
certifying officer or otherwise speak of the facts
based on his personal knowledge. Irrespective of
the compliance with the requirements of Section
65-B, which is a provision dealing with admissibility
of electronic records, there is no bar to adducing
secondary evidence under the other provisions of
the Evidence Act, namely, Sections 63 and 65. It
may be that the certificate containing the details
in sub-section (4) of Section 65-B is not filed in
the instant case, but that does not mean that
secondary evidence cannot be given even if the law
permits such evidence to be given in the
circumstances mentioned in the relevant provisions,
namely, Sections 63 and 65.”
HIGH COURT OF CHHATTISGARH, BILASPUR
---------------------------------------------------------------------------------
DB: HON’BLE SHRI YATINDRA SINGH, CJ &
HON’BLE SHRI PRASHANT KUMAR MISHRA, J.
---------------------------------------------------------------------------------
Criminal Reference No.2 of 2013
Office Reference
Vs.
Govind Chandra & others
AND
Criminal Appeal No.374 of 2013
Govind Chandra & others
Vs.
State of Chhattisgarh
(14/05/2014)
Per Prashant Kumar Mishra, J.
1. This is a reference under section 366 of the Code of Criminal
Procedure for confirmation of death sentence as the 1st
Additional Sessions Judge, Baloda Bazar in Sessions Trial No.
84/2011 vide its judgment dated 27.02.2013 has convicted and
sentenced the accused/ appellants as under:-
Conviction
Sentence
Under Section 302/34 IPC (three Death sentence and fine of
counts) to all the accused
Rs.1,000/- on each count with usual
default stipulation
Under Section 120-B IPC to all the Death sentence and fine of
accused usual
Rs.1,000/- default
with
stipulation
Under Section 27 (3) Arms Act and fine of
usual
default
Death sentence
Rs.1,000/-
with
stipulation
2
Under Section 9B of the Indian RI for 2 years each and fine of
Explosive Act, 1884
Rs.500/-
with
usual
default
stipulation
Under Section 4 of the Explosive RI for 3 years each and fine of
Substances Act, 1908
Rs.500/-
with
usual
default
stipulation
Under Section 5 of the Explosive RI for 3 years each and fine of
Substances Act, 1908
Rs.500/-
with
usual
default
stipulation
2. Criminal Appeal No.374/2013 has been preferred by appellants
Govind
Chandra,
Omprakash
Chandra
&
Ganesh
Chandra
challenging their conviction and sentence imposed by the 1st
Additional Sessions Judge, Baloda Bazar, District Raipur as
mentioned above.
Since the criminal reference and criminal
appeal arise out of same impugned judgment, they are being
decided by this common judgment.
3. The appellants have been convicted for committing murders of
deceased Tikaram Chandra, Mithila & Fagulal Chandra by causing
explosion by means of explosive substance at about 6.30 am on
19.4.2010. While deceased Mithila and Fagulal Chandra died on
their way to the hospital on the date of the incident itself,
deceased Tikaram Chandra died in course of treatment on
21.4.2010.
4. Merg intimation (Ex.-P/1) was lodged by PW-1 Buddheshwar
Chandra at 8.30 am on the date of the incident to the effect that
in the morning he had gone to collect Mahua flowers. At 6.45 am
he was coming back from the agricultural field. When he reached
the village colony, Baldev Chandra informed that explosion has
3
taken place in the house of the informant’s nephew and fire has
broken out in the house.
The informant went to the house of
Tikaram Chandra and saw that the villagers were dousing the fire
and Tikaram, his wife Mithila and Fagulal have sustained grievous
burn injuries. When they were taken to the hospital, Mithila died
on way, and Tikaram & Fagulal have been referred to and taken to
CIMS, Bilaspur.
5. Merg intimation concerning the death of Tikaram was lodged vide
Ex.-P/13 & P/14. Merg intimation concerning the death of Fagulal
was lodged by Surit Ram (PW-2) vide Ex.-P/42 at 10.25 am on
19.4.2010.
6. Dead body inquest of deceased Tikaram was conducted vide Ex.-
P/16 whereas dead body inquest of deceased Mithila was
conducted vide Ex.-P/20.
The dead body inquest of deceased
Fagulal was conducted vide Ex.-P/21. The postmortem on the dead
body of deceased Mithila was conducted on 19.4.2010 by Dr. KK
Gandharwa and postmortem report (Ex.-P/6) was submitted
opining that the death is caused due to extensive burn 98%. The
postmortem on the dead body of deceased Fagulal was conduced
by Dr. KK Gandharva and the postmortem report (Ex.-P/7) was
submitted opining that the death is caused due to extensive burn
injuries 95%.
The postmortem on the dead body of deceased
Tikaram was conducted by PW-18 Dr. A. Tiwari and the
postmortem report (Ex.-P/17) was submitted opining that the
4
death is on account of cardio respiratory failure due to shock as a
result of multiple injuries.
7. After completing merg enquiry, the FIR was registered on
27.4.2010 by the Police Inspector LC Mohale against unknown
persons stating that during enquiry of merg intimation, he
recorded statements of the witnesses, conducted dead body
inquest and obtained postmortem reports, from which the deaths
of the deceased persons were found to have occurred on account
of extensive burn injuries.
The witnesses informed the police
that near about 4 pm on 18.4.2010 2 unknown persons came to the
house of Tikaram Chandra and delivered one suitcase kept in
plastic bag saying that it contains parts of tubewell and in the
next morning, explosion has taken place.
8. During investigation, the appellants were taken into custody.
Terricot shirt and Lungi of Tikaram was recovered vide Ex.-P/2.
One plastic bag, one piece of plastic suitcase together with
black/Khakhi coloured piece of cloth (army cloth); one piece of
iron strip containing front lock of suitcase measuring about 1 ft;
one partially burnt jute bag (Bardana), burnt clothes like Sari,
Pant etc., burnt debris of about 2 kg and 3 kg of soil from the
area where explosion took place inside the house of Tikaram were
recovered from the place of occurrence vide Ex.-P/3.
The
plasters of different walls of the house of Tikaram were
recovered vide Ex.-P/4.
One yellow coloured partially burnt
underwear with cloth strip used for tying the underwear; one
5
partially burnt Sando baniyan; one partially burnt full pant; one
partially burnt shirt and one aluminium box having 25 divisions
having brown colured glass like substance were recovered upon
production by Sudarshan Chandra (PW-5) vide Ex.-P/5.
The
crime detail form along with spot map was prepared vide Ex.-P/10.
Another spot map was prepared vide Ex.-P/11.
9. The accused persons were put to identification parade and memo
of identification was prepared vide Ex.-P/19. They were correctly
identified by Sudarshan Chandra (PW-5).
10.Memorandum statement of accused Govind Chandra was recorded
vide Ex.-P/23 which led to recovery of one bunch of sewing
machine thread; one bunch of thick thread; one nail (khila), one
Nokia mobile bearing SIM No.98274-87924 and one old Atlas
cycle vide Ex.-P/24.
One bright red coloured wrapper of
fireworks and the soil of the place where Govind allegedly
manufactured the bombs were recovered from Govind Chandra’s
house vide Ex.-P/25.
11. Memorandum statement of Om Prakash was recorded vide Ex.-
P/26 which led to recovery of one Hero Honda Splendor
Motorcycle; one towel, one mobile set and one SIM bearing
No.78281-73217 from his possession.
12.Memorandum statement of accused Ganesh Chandra was recorded
vide Ex.-P/28 which led to recovery of one towel from his
possession.
6
13.One inquest was prepared in the Police Station vide Ex.-P/30
wherein appellant Govind Chandra demonstrated the process of
preparing bombs and how the suitcase bomb would ignite
automatically on opening the suitcase.
14.One suitcase was recovered from the shop keeper Taj Mohammed
of Sarangarh vide Ex.-P/31 whereas ‘Top Tiger’ firework (bomb),
explosive licence, fireworks licence etc. were recovered from
Rajesh Agrawal of Agrawal General Store wherefrom accused
Govind allegedly purchased the fireworks (bomb).
15.The call details and the location of mobile towers of the mobile
number possessed and used by the accused persons were sought
for vide Ex.-P/46. The FSL report regarding quality and variety
of explosive substance in the articles recovered from the house
of the deceased persons and the class of explosives were
submitted vide Ex.-P/53/(C-1).
16.On completion of investigation, charge sheet was filed against the
appellants for offences under Sections 302 or 302/34 (three
counts) IPC, Section 27 (3) of the Arms Act, Section 9B of the
Indian Explosive Act, 1884, Sections 4 & 5 of the Explosive
Substances Act, 1908, and the trial Court framed charges against
the accused persons for committing these offences.
17.In course of trial, the prosecution examined 28 witnesses
whereas the appellants, after abjuring the guilt, examined 2
defence witnesses namely, DW-1 Mohan Lal and DW-2 Ku.
7
Sunanda Dhenge.
The defence exhibited copy of the expert
opinion rendered by DW-2 Ku. Sunanda Dhenge vide Ex.-D/8.
18.The trial Court having found that the prosecution has proved its
case, it has convicted the appellants and sentenced them with
death penalty.
19.The question falling for determination is – whether the death
sentence awarded to the appellants is to be confirmed? It is also
to be determined as to whether the appellants have rightly been
convicted for committing murders of Tikaram, Mithila and Fagulal
and whether their conviction under Section 27(3) of the Arms
Act, Section 9B of the Indian Explosive Act, 1884 and Sections 4
& 5 of the Explosive Substances Act, 1908 is sustainable?
20.
PW-1 Buddheshwar is the first informant.
He is the
resident of the same village. He has proved merg intimation Ex.-
P/1 and other documents Ex.-P/2 to Ex.-P/12. He reached the
place of occurrence within half an hour.
He has denied that
Tikaram used to sell kerosene oil in his grocery shop. He also says
that because of explosion clay tiled roof of the house of Tikaram
was completely burnt and the walls had suffered cracks.
21.PW-2 Surit Ram is the father of deceased Fagulal. He is the cow
herd and had gone to village Nallah where he was informed by his
other son Faglal that Fagulal has suffered burn injuries.
He
rushed to the house of Tikaram and witnessed that the house was
burning. According to him, Mithila died at Bilaigarh and Fagulal
8
died near Masturi. He also says that pieces of clothes and ropes
were recovered by the police from the dead body of Fagulal. He
has denied that Tikaram used to sell fireworks and was also
hunting pigs.
22.
PW-3 Birendra Kumar had brought merg intimation lodged
at Police Station Sarkanda, Bilaspur regarding the death of
Tikaram to the Police Station Bilaigarh.
23.
PW-4 Gopal Dubey is a practicing advocate.
Deceased
Tikaram and his wife Mithila had come to his house one day prior
to the incident for attending 6th day ceremony of the newly born
baby (Chhati Karyakram). Tikaram and his wife went back to their
village at 11 pm. Next day, he received information in the morning
from one Dhanesh Sahu that a bomb explosion has taken place in
the house of Tikaram and a doctor is to be arranged for their
treatment. This witness says that Tikaram's wife lost election of
Sarpanch; after 15 days of the election, appellant Govind came to
his house and informed that because of Tikaram he has been
ostracized, therefore, he should convince Tikaram.
After 2-3
days, this witness went to village Jogidipa and tried to convince
Baldev Chandra, deceased Tikaram and 2 other persons of the
village that because of election dispute one should not be
ostracized.
He further says that he was counsel for Tikaram
Chandra in the land dispute between him and appellant Govind
Chandra. This witness is the member of Madhav Gau Sewa Samiti,
Dhansir, of which deceased Tikaram was the president. In cross-
9
examination, he says that the land dispute between Tikaram and
Govind was concerning a WILL and the said matter has already
been compromised.
24.
PW-5 Sudarshan is the younger brother of deceased
Tikaram. At about 3-4 pm in the afternoon of 18.4.2010, he had
gone towards the tubewell for removing cows and at that time, he
had seen appellant Govind on the embankment of the village tank.
He was residing with deceased Tikaram in one premises but had
separate kitchens. When he came back to the house, he had seen
appellants Omprakash and Ganesh, who had come to the residence
of Tikaram along with some articles in a bag (bori). He further
says that when he reached the house, he witnessed that
Omprakash was standing near the motorcycle and Ganesh was just
coming out after leaving the bag in the house of Tikaram. At that
time, Fagulal was standing with Ganesh. Since Ganesh was going
out, deceased Fagulal followed him to move out of the house of
Tikaram.
Fagulal informed to this witness that these persons
(Omprakash and Ganesh) are asking for drinking water and
thereafter this witness provided drinking water to Ganesh.
Fagulal handed over one piece of paper to this witness with an
instruction that the paper is to be handed over to Tikaram when
he returns and if any article is found short, he may call on the
mobile number written on the paper. He also informed that the
piece of paper has been handed over by appellant Ganesh and
according to Ganesh, the bag contains articles/spares of borewell.
10
When this witness asked Fagulal as to where are the pipes of the
borewell, he said that they have asked to enquire on phone. At
this time, Omprakash started motorcycle and Ganesh was sitting a
pillion rider. Ganesh saw towards the village tank and Omprakash
smiled and they went out. Tikaram came back from Bilaigarh in
the night. In the morning, he heard the sound of explosion when
he had gone to the agricultural field by name 'Chuikhacha Khar'
and he came back rushing towards his house and witnessed that
the house is burning and the deceased persons had suffered burn
injuries;
the villagers were trying to douse the fire. Tikaram
was sent to Bilaigarh in one vehicle whereas Mithila and Fagulal
were sent in another vehicle. Mithila died at Bilaigarh whereas
Fagulal died at Masturi on way to Bilaspur.
Tikaram also
succumbed to burn injuries at CIMS, Bilaspur on 21.4.2010. He
has proved the dead body inquest of Tikaram vide Ex.-P/16,
seizure memo from the place of occurrence vide Ex.-P/5, spot
map (Ex.-P/11) and the inquest of the place of occurrence (Ex.-
P/12). He has also proved identification memo Ex.-P/19.
25.
In para-16 of cross-examination, a contradiction has been
pointed out that in his case diary statement, he had not stated
that when he had gone towards borewell, he had seen Govind on
the date of the incident. However, on perusal of his case diary
statement (Ex.-D/2), it would appear that in the last paragraph of
his case diary statement, he has stated that on the date of the
incident, when both the accused had come to the house of
11
Tikaram for leaving the articles, he had seen Govind Chandra
standing on the embankment of the village tank near his house.
Thus, there is no contradiction in the statement of this witness
insofar as this aspect is concerned. He has denied the suggestion
that the policemen had informed him that he has to identify
Omprakash and Ganesh as the persons who had come to his house.
He has denied the suggestion that Tikaram used to sell fireworks
in his grocery shop. He has also denied the suggestion that he,
Tikaram and one Baldev used to hunt wild pigs and for that
Tikaram used to keep bombs in his house.
26.
PW-6 Roop Kunwar is the mother of Tikaram. She derives
information of delivery of one bag by 2 persons containing spares
of borewell from Babulal, but has not seen those persons. She
says that at the time when the articles were delivered in the
house of Tikaram, she had gone to Bilaigarh and at the time when
the bomb exploded, she had gone to collect Mahua.
She has
denied the suggestion that Tikaram used to store diesel and
kerosene oil as he was driving tractor of his son-in-law.
27.
PW-7 Baldev is the cousin of appellant Govind. He reached
the place of incident immediately after the bomb explosion. He
was also involved in arranging vehicles for sending the deceased
persons to the hospital. He is a witness to the dead body inquest
Ex.-P/20 & P/21. He and one Rajkumar received the dead body on
Supurdnama. He has proved seizure memos Ex.-P/2, P/3, P/4 and
12
P/5. He also denies that Tikaram used to hunt wild pigs and for
that he used to manufacture explosive substances and bombs.
28.
PW-8 Pratap is the cousin of appellant Omprakash whereas
appellant Govind Chandra is his brother-in-law (thtk). The mobile
number 78281-73217 used by Omprakash to make conversation
with Govind Chandra is in the name of this witness. He has been
declared hostile.
29.
PW-9 Purshottam has stated that his wife Mela Bai
contested and was declared elected in the election of Sarpanch
defeating deceased Mithila, wife of deceased Tikaram, in the said
election.
This witness belongs to Kewat caste whereas the
deceased and appellant Govind belong to Chandra caste. He has
supported the statement made by PW-4 Gopal Dubey by stating
that Govind Chandra had complained to him that Tikaram accuses
Govind that his wife (Mithila) lost election because of Govind and
for that Tikaram has ostracized him in the village. This witness
suggested Govind Chandra to convene a Panchayat meeting in
which a compromise can be sorted out.
30.
PW-10 Dhanesh Kumar is the Sarpanch of village Dhansir.
He also speaks about Govind making complaint to him that because
of election dispute Tikaram accuses him that his wife Mithila lost
election on account of Govind.
This witness has proved the
memorandum statement of Govind Ex.-P/23 and the seizure
memos Ex.-P/24 & P/25. He has also proved memorandum
13
statement of Omprakash vide Ex.-P/26 and recoveries made from
him vide Ex.-P/27. He has also proved memorandum statement of
Ganesh vide Ex.-P/28 and the seizure of articles made from
Ganesh
vide
Ex.-P/29.
This
witness
has
also
proved
demonstration inquest (Ex.-P/30) in which Govind demonstrated in
the Police Station as to how the bomb fitted in a suitcase can be
ignited automatically when the suitcase is opened. He has also
proved seizure memo Ex.-P/31 & P/32 and the arrest memo Ex.-
P/33 to P/35.
He reached the place of occurrence after 15
minutes when he received information about the bomb explosion
from PW-7 Baldev.
31.PW-11 Awadhram is the resident of village Jogideepa. He reached
the place of occurrence after hearing the sound of bomb
explosion.
32.
PW-12 Samaymati is the wife of deceased Fagulal. She says
that her house is adjoining to the house of deceased Tikaram and
at the time of the incident her husband Fagulal had gone to the
house of Tikaram for milking cows.
Fagulal had informed this
witness that spares of borewell have been delivered in the house
of Tikaram.
33.
PW-13 Taj Mohammed is a witness from whose shop the
suitcase was purchased, which was later on used to prepare
demonstration inquest (Ex.-P/30).
hostile.
This witness has turned
14
34.
PW-14 Rajesh Kumar Agrawal is the owner of General Goods
Store and Fireworks Shop at Sarangarh.
Appellant Govind had
allegedly purchased the bombs from his shop. This witness has
turned hostile.
35. PW-15 PS Sen has conducted some part of investigation.
36. PW-16 Pramod Das is the resident of village Jogideepa. He
had also seen Govind Chandra going towards the tank a day prior
to the incident. In cross-examination, he has categorically denied
the suggestion that he had not seen Govind at the village tank a
day prior to the incident.
37.
PW-17 Tikaram Jaiswal has stated that about 2 years back
Govind had informed him that Tikaram has grabbed 6 acres of
land by preparing forged WILL and Tikaram has ostracized him.
He has further stated that PW-4 Gopal Dubey, Advocate, wanted
to effect compromise but when it did not materialize, he had
exploded the bomb in the house of Tikaram Chandra.
He has
proved memorandum statement of Govind vide Ex.-P/23, recovery
memos Ex.-P/24, P/25; memorandum statement of Omprakash
vide Ex.-P/26 and the seizure of articles made from him vide Ex.-
P/27. He has also proved memorandum statement of Ganesh vide
Ex.-P/28 and the recoveries made from him vide Ex.-P/29.
38.
PW-18 Dr. A. Tiwari has conducted the postmortem on the
dead body of deceased Tikaram. He has proved the postmortem
15
report (Ex.-P/17). He has found the following injuries on the
person of deceased Tikaram:-
• “whole body burn except left upper thigh including
left flank, left side of tunk from midline both
sole, superficial to deep burn, about 75% burn.
• Multiple pallet injuries on both legs, average size 1
x 0.5 cm with 0.5 x 0.5 cm in size with multiple
petechial haemorrhage.
• Multiple small pallets present in side of the
wounds.
• Extradural haematoma along with 150 ml blood
deposition in the base of brain.
• All burn & other injuries are antemortem in nature
and may be caused by explosion.”
39.
PW-19 Shiv Singh Baxal is the Head Constable.
He has
proved information received from the hospital regarding death of
Tikaram vide Ex.-P/41 and the merg intimation (Ex.-P/13).
40.
PW-20 Lakhan Das Mahant is the Patwari, who has prepared
the site map (Ex.-P/11) and the inquest of the place of occurrence
Ex.-P/12.
41.PW-21 Ghanshyam is a witness to the seizure memos (Ex.-P/31 &
P/32). He has turned hostile.
42.
PW-22 Arun Kumar Sharma has conducted identification of
the accused persons and has proved identification memo (Ex.-
P/19).
16
43.
PW-23 Dr. Narayan Singh has proved the postmortem
report of Mithila, conducted by Dr. KK Gandharva vide Ex.-P/6, as
also the postmortem report of deceased Fagulal vide Ex.-P/7. The
following injuries were found on the persons of Mithila and
Fagulal:-
Injuries found on the body of Mithila Bai
• “both eyes are burnt and closed. Skins are
avulsioned of the whole body, only buttock is not
burnt. 4Th degree burn is found in elbow joint
right hand, hair of sole of both foot slightly
burnt. About 98% burn.”
Injuries found on the body of Fagulal
• “eyes closed with burn of eyeball.
• Multiple fracture is found in the ankle joint of
right leg.
• Hair and sole of foot slightly burn, mouth is open.
• Skin avulsion found in whole of the body.
• Burning is about 95%.”
44.
PW-24 PR Dahriya has proved the merg intimation Ex.-P/1
and P/42.
45.
PW-25 Ganesh Prasad Sharma is the Head Constable, who
has proved Ex.-P/15, P/16, P/43 & P/44.
17
46.
PW-26 BR Verma has proved Ex.-P/45 by which the District
Magistrate has accorded sanction to prosecute the accused
persons under the Explosive Substance Act and Explosive Act.
47.
PW-27 Hemant Singh has proved the request Ex.-P/46 by
which permission was sought from SP, Crime Branch, Raipur for
obtaining call details of different mobile numbers.
48.
PW-28 Lal Chand Mohle has conducted major part of
investigation.
49.
Defence witness No.1 Mohar Lal has stated that Tikaram
used to sell fireworks during 'Dipawali' festival and he also used
to keep diesel for the tractor of his son-in-law.
50.
Defence witness No.2 Ku. Sunanda Dhenge has proved the
expert opinion accorded by her vide Ex.-D/8. She has tried to
prove that Tikaram had sustained burn injuries from pallets
whereas pallets are not found in Top Tiger bombs which were
allegedly used by appellant Govind for preparing the bombs which
caused the explosion. She has also stated that if 80 pieces of
Top Tiger bombs are joined together and exploded, it may not
create such intensity of explosion which has taken place in the
present case because the bomb would explode one after another
and when first or second bomb would explode, the other bombs
would get separated from each other. She has also stated that
ammonium nitrate found in the FSL report is not used in Indian
Top Tiger Bombs.
However, in cross-examination, she has
18
admitted that ammonium nitrate is highly explosive substance.
She admits that she has not physically examined the Top Tiger
bomb.
51.By order dated 6.8.2013, this Court allowed IA No.1/2013, filed
by the State under Section 367 read with Section 391 CrPC in the
following manner:-
“It is apparent that though call details are on
record, they could not be exhibited as required under
the law. Reference of these call details has been given
by the investigating officer (PW-28) in his Court
statement and likewise the trial Judge has also
considered the same. Section 367 Cr.P.C. empowers
this Court to direct for further enquiry and issuing a
direction to the prosecution to adduce additional
evidence having a bearing upon the guilt or innocence of
the convicted person. Considering all the aspects of
the case, in our opinion, additional evidence regarding
mobile calls is necessary.
In view of the above, we allow IA No.01/13
filed under Section 367 read with Section 391 of
Cr.P.C.
The prosecution is permitted to file the
documents which are annexed with this application
dated 14.7.2013. Prosecution is permitted to examine
Shri Anil Verma, Nodal Officer, Reliance Telecom Ltd.
Parties shall appear before the Sessions Judge, Raipur
on 26th August, 2013 and thereafter the Sessions
Judge may record the evidence or transfer the case to
any other Additional Sessions Judge. Accused persons
will also be present on that day before the concerned
Court to cross-examine the witnesses produced by the
prosecution and thereafter statements of the accused
persons under Section 313 Cr.P.C. be recorded and the
accused will be permitted to adduce the documentary
19
or any other evidence. Entire proceedings be concluded
within a period of one month, if possible, and
thereafter the file be sent back to the High Court for
decision.”
52.
Accordingly, the records were sent to the concerned trial
Court for recording additional evidence/enquiry and the same was
transmitted
to
this
Court.
Vide
order
passed
on
the
administrative side on 9.12.2013, the matter was directed to be
listed before regular Bench.
Additional evidence
53.
PW-28 Lal Chand Mohle stated in para-25 of his additional
evidence that in course of investigation, he did not record the
statement of Shri Anil Verma, Nodal Officer of the Reliance
Communications Limited for the State of Chhattisgarh. He has
stated on his own that he had obtained call details from the
Reliance Company through Additional SP, Crime Branch, Raipur.
When he was specifically asked as to whether the call details of
cell phone number/SIM number 98274-87924 and 78281-73217
were provided to him by Shri Anil Verma, this witness answered
that the same was provided to him by the Additional SP, Crime
Branch, Raipur. He denied that he had effected seizure of mobile
phone and SIM No. 98274-87924 from Govind Chandra for
creating false evidence knowing well that the said SIM does not
belong to Govind Chandra.
20
54.
PW-29 Anil Verma is the Nodal Officer of the Reliance
Communications Limited for the State of Chhattisgarh. He has
proved the Email request sent by the Additional SP, Crime Branch,
Raipur seeking call details of SIM No. 98274-87924 for the
period 17.4.2010 to 19.4.2010 and the same was provided to him
vide Ex.-P/56.
Similar request for SIM No. 78281-73217 was
made seeking call details from 17.4.2010 to 28.4.2010 vide Ex.-
P/57, which was provided to the said police officer vide Ex.-P/58.
He has also proved that this SIM was issued in the name of
Pratap Kumar Chandra (PW-8). He has also proved the certificate
as required under Section 65B of the Evidence Act (Ex.-P/59) by
which he obtained these call details from his Company's Computer
server.
He has also stated in cross-examination that when a
person makes a call through his mobile number/SIM number, he
gets connected with the nearest reliance tower (BTS) and then he
will be connected with Raipur (M.S.C.) and thereafter with the
data server placed at Mumbai. He has said that the call details
remains available in the server for 6 months and if the call details
are not sought by the police or any other agency within one year,
the same is deleted from the server and it cannot be obtained
after one year. However, if the details are sought by the police or
any other agency, it is saved and the details can be provided
subsequently also.
21
55.
We have heard learned counsel for the appellants and
learned Govt. Advocate for the State at length and perused the
record.
56. Learned counsel for the appellants has relied on judgments in the
matters of Raj Kumar Singh @ Raju @ Batya Vs. State of
Rajasthan1, P.K. Narayanan Vs. State of Kerala2, Baldev Singh
Vs. State of Punjab3, Ram Anup Singh Vs. State of Bihar &
others4, Bachan Singh Vs. State of Punjab 5, Machhi Singh and
others Vs. State of Punjab6, State of MP Vs. Bhim Mohamad
S/o Nyaz Moh.7, Pandurang Kalu Patil and others Vs. State of
Maharashtra8, Mayakaur Baldevsingh Sardar and another Vs.
State of Maharashtra9, and N.J. Suraj Vs. State represented
by Inspector of Police10.
57.
The case of the prosecution is based on circumstantial
evidence as there is no ocular version of the incident.
58. In Sharad Birdhichand Sarda Vs. State of Maharashtra 11, the
Hon’ble Supreme Court has underlined the conditions, which must
(2013) 5 SCC 722
(1995) 1 SCC 142
3
(2009) 6 SCC 564
4
(2002) 6 SCC 686
5
AIR 1980 SC 898
6
(1983) 3 SCC 470
7
2001 (1) CGLJ 91
8
(2002) 2 SCC 490
9
(2007) 12 SCC 654
10
(2004) 11 SCC 346
11
AIR 1984 SC 1622
1
2
22
be
fulfilled
for
convicting
an
accused
on
the
basis
circumstantial evidence and held in para-152 as under:
“152.A close analysis of this decision would show
that the following conditions must be fulfilled
before a case against an accused can be said to be
fully established:
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
It may be noted here that this Court indicated
that the circumstances concerned ‘must or should’
and not ‘may be’ established. There is not only a
grammatical but a legal distinction between ‘may be
proved’ and ‘must be or should be proved’ as was
held by this Court in Shivaji Sahebrao Bobade Vs.
State of Maharashtra, (1973) 2 SCC 793 : (AIR
1973 SC 2622) where the following observations
were made:
“certainly, it is a primary principle that the
accused must be and not merely may be guilty
before a Court can convict and the mental distance
between ‘may be’ and must be’ is long and divides
vague conjectures from sure conclusions.”
(2) the facts so established should be consistent
only with the hypothesis of the guilt of the
accused, that is to say, they should not be
explainable on any other hypothesis except that
the accused is guilty.
(3) the circumstances should be of a conclusive
nature and tendency.
(4) they should exclude every possible hypothesis
except the one to be proved, and
of
23
(5) there must be a chain of evidence so complete
as not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human probability
the act must have been done by the accused.”
59.
To examine whether the prosecution has been able to bring
its case within the parameters of law laid down by the Supreme
Court in the matter of Sharad Birdhichand Sarda (Supra), this
Court has discussed the nature of evidence adduced by the
prosecution.
60.
The circumstances brought on record by the prosecution
against the appellants are of the following nature:-
• Motive for commission of crime.
• Memorandum statements/disclosure statements and
consequent seizures.
• Last seen at the place of occurrence and the
identification.
• Conspiracy/call details.
61.Motive for commission of crime.- The prosecution witnesses
namely, PW-4 Gopal Dubey, Advocate, PW-9 Purshottam and PW-
10 Dhanesh Kumar, Sarpanch of village Dhansir, have stated that
Mela Bai, wife of Purshottam (PW-9) contested the election of
Sarpanch against Mithila (deceased), wife of Tikaram (deceased).
Mela Bai won the said election by defeating Mithila Bai. Deceased
Tikaram was accusing that his wife Mithila lost the election
because of appellant Govind Chandra.
Incidentally, Govind
24
Chandra and deceased Tikaram belong to same caste whereas
elected Sarpanch Mela Bai belongs to Kewat caste. It appears,
because of election related dispute wherein Govind Chandra did
not support the candidate of his own caste i.e. Mithila, wife of
Tikaram, Govind Chandra was ostracized at the instance of
deceased Tikaram. Govind Chandra had requested Gopal Dubey
(PW-4) and Purshottam (PW-9) that because of Tikaram he has
been ostracized, therefore, they should intervene and sort out
the matter. Similarly, PW-4 Gopal Dubey, Advocate and PW-17
Tikaram Jaiswal have stated that there was land dispute between
Tikaram and Govind wherein Govind Chandra was alleging that
Tikaram has grabbed 6 acres of land by preparing forged WILL.
PW-4 Gopal Dubey, Advocate has also stated that the said land
dispute was ultimately compromised.
Thus the prosecution has
proved the motive in the form of ostracizing of Govind Chandra at
the instance of Tikaram pursuant to election dispute and prior
land dispute between them though the same was compromised.
These circumstance have been duly proved by the prosecution
against appellant Govind Chandra.
62.
Memorandum
statements/disclosure
statements
and
consequent seizures.- PW-10 Dhanesh Kumar is the Sarpanch of
village Dhansir whereas PW-17 Tikaram Jaiswal is a villager.
These two witnesses have proved memorandum statement of
Govind Chandra vide Ex.-P/23, which led to recovery of one bunch
of sewing machine thread; one bunch of thick thread; one nail
25
(Kheela); one Nokia mobile bearing SIM No. 98274-87924 and
one old Atlas cycle vide Ex.-P/24. Similarly, bright red coloured
wrapper of fireworks and soil of the place where Govind allegedly
manufactured the bombs were recovered vide Ex.-P/25.
This
document has also been proved by these two witnesses.
They also proved memorandum statements of Om Prakash
vide Ex.-P/26 and recovery of Hero Honda Splendor motorcycle,
towel, one mobile set and one SIM bearing No. 78281-73217 from
him vide Ex.-P/27.
These witnesses have also proved memorandum statement
of Ganesh vide Ex.-P/28 and recovery of towel from him pursuant
to the said memorandum. The witnesses have fully supported the
prosecution and thus, the memorandum statements/disclosure
statements made by the accused persons and consequent seizures
are fully proved and thus, this circumstance has also been proved
against the appellants.
63.
Last seen at the place of occurrence and identification .-
PW-5 Sudarshan is the younger brother of deceased Tikaram. At
about 3-4 pm in the afternoon of 18.4.2010 i.e. the previous
afternoon before the incident which happened at 6-6.30 am on
19.4.2010, he had seen Govind Chandra on the embankment of the
village tank. When he came back to the house, he witnessed Om
Prakash and Ganesh at the residence of Tikaram.
Deceased
Fagulal informed him that Om Prakash and Ganesh are asking for
26
drinking water and thereafter Sudarshan provided them drinking
water. Fagulal informed this witness that Om Prakash and Ganesh
have left a bag containing articles/spares of borewell.
He
handed over a piece of paper, which in turn was provided to him by
Om Prakash and Ganesh.
On this paper, a phone number was
written and when this witness asked Fagulal as to where are the
pipes, Fagulal stated that he can enquire on the phone number
written on the piece of paper. At this time, appellant Om Prakash
and Ganesh started motorcycle; Ganesh saw towards the pond;
Om Prakash smiled and they left the place. PW-16 Pramod Das
had also seen Govind Chandra going towards the tank a day prior
to the incident.
PW-22 Arun Kumar Sharma is the Tehsildar who conducted
TI
parade
of
the
accused
identification memo Ex.-P/19.
persons
and
has
proved
the
PW-5 Sudarshan has correctly
identified the accused persons during the identification parade.
Thus, it is fully established that the witnesses had seen appellants
Om Prakash and Ganesh in the afternoon at 3-4 pm in the house of
Tikaram when they left the bag containing spare of borewell.
Similarly, the witnesses had seen Govind Chandra at the tank
situated very near to the house of Tikaram almost at the same
time when Om Prakash and Ganesh were delivering bag in the house
of Tikaram. The accused persons have been correctly identified
by PW-5 Sudarshan during the test identification parade
conducted by PW-22 Arun Kumar Sharma.
27
64.
Conspiracy/call details.- According to the prosecution, the
appellants had hatched a conspiracy for committing murder of
Tikaram, Mithila and Fagulal.
As earlier discussed, Govind
Chandra had a grudge against Tikaram on account of dispute
concerning election of Sarpanch wherein Govind Chandra had
worked to defeat Tikaram's wife in the election of Sarpanch and
for this reason, Govind Chandra was ostracized. They also had a
property dispute. Appellant Om Prakash is the brother-in-law of
appellant Govind Chandra whereas appellant Ganesh is the nephew
(Bhanja) of appellant Om Prakash. It is said that initially Govind
Chandra and Om Prakash hatched a conspiracy for eliminating
Tikaram. Govind Chandra purchased the bombs from the market
and manufactured a suitcase bomb which would explode the
moment suitcase is opened.
In furtherance of the said
conspiracy, Govind Chandra deputed Om Prakash to deliver the
bag containing suitcase bomb in the house of Tikaram by saying
that the bag contains borewell spares/articles. Om Prakash, in
turn, took appellant Ganesh with him for making delivery of the
bag. On 18.4.2010, Tikaram had gone to attend 6th day ceremony
of birth of a child in the house of PW-4 Gopal Dubey, Advocate.
Therefore, at the time of delivery of bag containing suitcase
bomb, he was not available in the house. He came back in the
night. Next day morning, he opened the suitcase on which the
bomb exploded killing Tikaram and 2 other deceased persons.
About same time when Om Prakash and Ganesh were delivering
the bag containing suitcase bomb in the house of Tikaram, Govind
28
Chandra was seen at the pond adjoining the house of Tikaram by
PW-5 Sudarshan and PW-16 Pramod Das. PW-5 Sudarshan has
also stated that when he reached the house at about 3-4 pm in
the afternoon of 18.4.2010, Om Prakash and Ganesh were present
in the house of Tikaram.
He supplied drinking water to them.
When Om Prakash started motorcycle and Ganesh was sitting as
pillion rider, Ganesh saw towards the village pond (where Govind
Chandra was seen at the same time) and Om Prakash smiled.
65.
It has also been found in the preceding paragraphs that
memorandum statements and consequent seizures of incriminating
articles from each of the accused persons have been proved by
PW-10 Dhanesh Kumar and PW-17 Tikaram Jaiswal.
66. In Mohamad Usman Mohammad Hussain Maniyar and another
Vs. The State of Maharashtra 12, it has been held in paragraph-
17 of the judgment that for an offence under Section 120-B the
prosecution need not necessarily prove that the perpetrators
expressly agreed to do or cause to be done the illegal act; the
agreement may be proved by necessary implication.
67. In Kehar Singh and others V. The State (Delhi Admn.) 13, it has
been held that generally, a conspiracy is hatched in secrecy and it
may be difficult to adduce direct evidence of the same.
The
prosecution will often rely on evidence of acts of various parties
to
12
13
infer
that
they
AIR 1981 SUPREME COURT 1062
AIR 1988 SUPREME COURT 1883
were
done
in
reference
to
their
29
common intention. The prosecution will also more often rely upon
circumstantial evidence.
The conspiracy can be undoubtedly
proved by such evidence direct or circumstantial. But the Court
must enquire whether the two persons are independently pursuing
the same end or they have come together to the pursuit of the
unlawful object. The former does not render them conspirators,
but the latter does. It is, however, essential that the offence of
conspiracy requires some kind of physical manifestation of
agreement. The express agreement, however, need not be proved.
Nor actual meeting of two persons is necessary.
Nor it is
necessary to prove the actual words of communication.
The
evidence as to transmission of thoughts sharing the unlawful
design may be sufficient.
68.
The prosecution has adduced the evidence in form of
electronic records i.e. call details obtained from the service
provider i.e. Reliance Communications Limited, which were stored
in the Company's computer server. Such evidence is admissible in
evidence as provided under Section 65A and 65B of the Indian
Evidence Act, if the same is produced in the manner specified in
Section 65B(2) of the Evidence Act. The said provision reads as
under:-
“65B(2). The conditions referred to in sub-section
(1) in respect of a computer output shall be the
following, namely:-
(a) the computer output containing the information
was produced by the computer during the period
30
over which the computer was used regularly to
store or process information for the purposes of
any activities regularly carried on over that period
by the person having lawful control over the use of
the computer;
(b) during the said period, information of the kind
contained in the electronic record or of the kind
from which the information so contained is derived
was regularly fed into the computer in the ordinary
course of the said activities;
(c) throughout the material part of the said period,
the computer was operating properly or, if not,
then in respect of any period in which it was not
operating properly or was out of operation during
that part of the period, was not such as to affect
the electronic record or the accuracy of its
electronic; and
(d) the information contained in the electronic
record reproduces or is derived from such
information fed into the computer in the ordinary
course of the said activities.”
69.
Under sub-section (3) of Section 65B, sub-section (1) and
(2) would apply where single or combination of computers, is used
for storage or processing in the regular course of activities and
the computers used shall be construed as a single computer.
Under sub-section (4) of Section 65B, if evidence is desired to be
led under Section 65B, it would be admissible if a certificate is
tendered, signed by a person either occupying a responsible
official position in relation to the computer or being in the
management of the relevant activities; provided the following is
certified:
31
“(a) electronic record containing the statement is
identified with description of how it was produced;
(b) that electronic record was a computer printout
generated by a device particulars whereof are
given;
(c) deals with matters to which conditions in sub-
section (2) relate.”
70. In the matter of R v. Shepherd14, Lord Griffiths dealing with the
defence argument held as under:-
“Documents produced by computers are an
increasingly common feature of all business and
more and more people are becoming familiar with
their uses and operation.
Computers vary
immensely in their complexity and in the operations
they perform. The nature of the evidence to
discharge the burden of showing that there has
been no improper use of the computer and that it
was operating properly will inevitably vary from
case to case. The evidence must be tailored to suit
the needs of the case. I suspect that it will very
rarely be necessary to call an expert and that in
the vast majority of cases it will be possible to
discharge the burden by calling a witness who is
familiar with the operation of the computer in the
sense of knowing what the computer is required to
do and who can say that it is doing it properly.
The computer in this case was of the simplest kind
printing limited basic information on each till roll.
The store detective was able to describe how the
tills operated, what the computer did, that there
had been no trouble with the computer and how she
had also examined all the till rolls, which showed no
14
[1993] 1 All ER 225
32
evidence of malfunction either by the tills or the
central computer.
In these circumstances I agree with the Court of
Appeal that she was fully qualified to give the
evidence required by s 69 and that in the light of
her evidence the till rolls were properly admitted
as part of the prosecution case.
I therefore answer the certified question by saying
that s 69 (I) of the Police and Criminal Evidence
Act, 1984 can be satisfied by the oral evidence of a
person familiar with the operation of the computer
who can give evidence of its reliability and such a
person need not be a computer expert.”
71. In the matter of State (NCT of Delhi) Vs. Navjot Sandhu alias
Afsan Guru15, the Supreme Court, while accepting such a plea,
held in paragraph-150 as under:-
“150. According to Section 63, secondary evidence
means and includes, among other things, “copies
made from the original by mechanical processes
which in themselves insure the accuracy of the
copy, and copies compared with such copies.”
Section 65 enables secondary evidence of the
contents of a document to be adduced if the
original is of such a nature as not to be easily
movable. It is not in dispute that the information
contained in the call records is stored in huge
servers which cannot be easily moved and produced
in the court. That is what the High Court has also
observed at para 276. Hence, printouts taken from
the computers/servers by mechanical process and
certified by a responsible official of the service-
providing company can be led in evidence through a
witness who can identify the signatures of the
15
(2005) 11 SCC 600
33
certifying officer or otherwise speak of the facts
based on his personal knowledge. Irrespective of
the compliance with the requirements of Section
65-B, which is a provision dealing with admissibility
of electronic records, there is no bar to adducing
secondary evidence under the other provisions of
the Evidence Act, namely, Sections 63 and 65. It
may be that the certificate containing the details
in sub-section (4) of Section 65-B is not filed in
the instant case, but that does not mean that
secondary evidence cannot be given even if the law
permits such evidence to be given in the
circumstances mentioned in the relevant provisions,
namely, Sections 63 and 65.”
72.
the
In the case in hand, PW-29 Anil Verma, Nodal Officer of
Reliance
Communications
Limited
for
the
State
of
Chhattisgarh has proved that on the request made by the
Additional SP, Crime Branch, Raipur, call details of SIM
No.98274-87924 and SIM No.78281-73217 were provided.
In
para-15 of his cross-examination, he has stated that they get
information immediately if the server is not properly working and
since no such information was available, he would say that the
server was properly working. He has also proved the certificate
(Ex.-P/9) issued by him on behalf of the Reliance Telecom
Limited, in compliance of the provisions contained under Section
65B of the Indian Evidence Act. Thus, we hold that the evidence
in the form of electronic record i.e. the call details are admissible
in evidence, as the same has been issued by the competent officer
of the Reliance Telecom Limited after making due compliance of
the provisions of Section 65B of the Evidence Act.
34
73.
To prove that the accused persons had conspired to commit
the offence, the prosecution has relied upon the call details
obtained from telecom service provider indicating the frequency
of calls made
by Govind Chandra
(from whom SIM number
98274-87924 was seized) with Om Prakash (from whom mobile
SIM bearing number 78281-73217 was recovered). On 17th April,
2010, Govind Chandra called on the mobile number of Om Prakash
thrice. At this time, his mobile was connected with the mobile
tower located in the house of one Ashutosh Sultania at village
Dhansir. Govind Chandra and Om Prakash got connected on mobile
for the first time on 18th April, 2010 at 6.11 am, however, during
the later part of the day, frequency of their connectivity
increased. They had talked at 9.37 am, 10.43 am, 10.46 am, 10.50
am, 11.00 am, 11.06 am, 11.15 am, 13.36 hours, 15.24 hours and on 9
occasions between 16.45 hours & 17.24 hours. During all this time
Govind Chandra was connected with the mobile tower of Ashutosh
Sultania, village Dhansir. Frequency of their conversation on 18th
April, 2010 i.e. the day when bag was delivered by Om Prakash and
during the most relevant time i.e. during noon and evening, shows
that they were constantly in touch with each other, at almost
every 5 minutes intervals. At the time when the bomb exploded
i.e. at about 6 am on 19.4.2010, Govind Chandra and Om Prakash
remained connected at 6.00 hours, 6.14 hours and 7.58 hours and
later in the evening at 17.32 hours.
35
74.
In juxtaposition to call details obtained from the mobile
number of Govind Chandra to that of call details of Om Prakash, it
would appear that on 17th, 18th and 19th April, 2010, Om Prakash
was on the move and was not stationed at a particular place. In
the morning of 18th April, 2010, from 9.37 hours to 17.24 hours
Om Prakash remained connected with mobile tower placed in the
house of Ashutosh Sultania of village Dhansir and during this
period, he received calls from only one mobile number i.e. 98274-
87924 recovered from the possession of Govind Chandra.
It
appears, after alleged delivery of bag by Om Prakash in the house
of Tikaram, he moved out of the village, therefore, when he was
again called by Govind Chandra in the morning of the day of the
incident i.e. 19.4.2010, Om Prakash was connected with the mobile
tower placed on the land belonging to Kanti Bai Shukla of village
Hasaud.
When Govind Chandra called Om Prakash for the 3rd
time in the morning of 19.4.2010 at 7.58 hours, Om Prakash was
connected with the mobile tower located in the house of Shri
Acheram, village Hirri, Tehsil Sarangarh and in the evening he was
connected with the tower located at village Sarsiva, Tehsil
Bilaigarh.
There is no outgoing or incoming call on the mobile
number of Om Prakash during the period 17.32 hours of 19th
April, 2010 to 12.02 hours on 21st April, 2010.
75.
From the above description of the call details of the SIM
numbers recovered from Govind Chandra and Om Prakash, it would
clearly appear that there were high frequency of calls between
36
them before and immediately after delivery of bag by Om Prakash
in the house of Tikaram. The frequency was unusually quick i.e. 9
calls within a gap of every 5 minutes in the late afternoon when
the bag was delivered. When the bomb exploded at 6-6.30 am on
19.4.2010, they had conversation at 6.00 hours, 6.14 hours and
7.58 hours.
More importantly, Om Prakash is the resident of
village Balpur, PS Sarsiva whereas on 18th April, 2010, he was at
village Jogideepa where Govind Chandra resides because call
details of Om Prakash from the morning of 18th April till the
evening of 18th April, 2010 would indicate that during this period
he was connected with mobile tower located in the house of
Ashutosh Sultania at village Dhansir with which SIM/mobile
number recovered from Govind Chandra was also connected. It is
strange as to why both of them had to speak on a mobile phone
throughout the day on 18th April, 2010 when they were present in
a small village i.e. Jogideepa where the incident took place. It is
equally interesting that soon after the time when the bag was
delivered in the afternoon of 18th April, 2010, when the first call
was made between Govind Chandra and Om Prakash at 6 am on
19th April, 2010, Om Prakash had moved out of Jogideepa, as at
that time, he was connected with the mobile tower located at
village Hasaud.
76.
When the evidence of call details together with location of
mobile towers with which Om Prakash and Govind remained
connected on 18th and 19th April, 2010 is read along with the
37
evidence of motive for Govind Chandra, disclosure statements and
consequent seizures from each of the appellants and the presence
of Om Prakash and Ganesh at 3-4 pm in the afternoon by PW-5
Sudarshan in the house of Tikaram, it is established that there
existed a conspiracy between Govind Chandra and Om Prakash for
committing the crime and in furtherance thereof, they have
committed murder of deceased Tikaram and 2 other deceased
persons by causing bomb explosion, which was fitted in the
suitcase and devised in such a manner that the bomb would
explode as soon as the suitcase is opened. At the same time, it
does not appear that Ganesh was a part of the conspiracy because
there is no recovery
of SIM nor any call detail proving
connectivity between Govind Chandra and Ganesh or between Om
Prakash and Ganesh. There is no evidence either to the effect
that Ganesh was aware that the bag contains the suitcase in which
the bomb is fitted.
In the absence of any cogent evidence
against appellant Ganesh, we are of the opinion that the
prosecution has failed to prove that Ganesh was a part of the
conspiracy hatched between Govind Chandra and Om Prakash.
77.
On the basis of above circumstantial evidence, this Court is
of the considered opinion that as regards appellants Govind
Chandra and Om Prakash, the chain of circumstantial evidence is
so established that it is consistent only with the hypothesis of
guilt of these accused and they are not explainable on any other
hypothesis
except
that
the
accused
are
guilty.
The
38
circumstances proved by the prosecution are of a conclusive
nature and tendency and they exclude every possible hypothesis
except the one to be proved i.e. the guilt of the accused. The
chain of circumstantial evidence found proved by the Court shows
that in all human probability the act has been done by accused
Govind Chandra & Om Prakash and it does not leave any reasonable
ground for drawing conclusion consistent with the innocence of
the accused.
78.
However, as against appellant Ganesh, the prosecution has
not been able to prove the existence of conspiracy, therefore, he
is entitled for the benefit of doubt.
79. In Bishnu Prasad Sinha and another Vs. State of Assam16, the
Supreme Court has held that ordinarily in a case based on
circumstantial evidence, death penalty should not be imposed.
80.
In the present case also, the case of the prosecution is
based on circumstantial evidence, therefore, in view of the
observations made by the Supreme Court in the matter of Bishnu
Prasad Sinha (Supra), we hold that imposition of imprisonment
for life would be the adequate sentence.
81.Section 2(h) of the Arms Act, 1959 (for short 'the Act of 1959')
defines “prohibited
ammunition” to mean any ammunition,
containing, or designed or adapted to contain, any noxious liquid,
gas or other such thing, and includes rockets, bombs, grenades,
16
(2007) 11 SCC 467
39
shells, [missiles] articles designed for torpedo service and
submarine mining and such other articles as the Central
Government may, by notification in the Official Gazette, specify
to be prohibited ammunition.
82.
As per Section 27(3) of the Act of 1959, whoever uses any
prohibited arms or prohibited ammunition or does any act in
contravention of section 7 and such use or act results in the
death of any other person, shall be punishable with death.
83.
In the case in hand, it has been proved that appellants
Govind and Omprakash hatched a conspiracy and in furtherance
thereof, Govind prepared a suitcase bomb, which was handed over
to Omprakash, who thereafter took the suitcase bomb along with
third accused Ganesh for delivery of the same in the house of
Tikaram in his absence and thus, appellants Govind and Omprakash
have committed offence under Section 27 (3) of the Act of 1959
and their conviction and sentence imposed by the trial Court for
such offence is fully borne out from the evidence available on
record. Therefore, the appeal to this aspect also deserves to be
dismissed.
84.
Similarly, the appellants have been convicted for committing
offence under Sections 9B of the Indian Explosive Act, 1884 (for
short 'the Act of 1884') and Sections 4 & 5 of the Explosive
Substances Act, 1908 (for short 'the Act of 1908').
40
85.
Since appellants Govind and Omprakash have been found to
hatch a conspiracy, manufacture explosives in contravention of
the provisions of the Act of 1884 and the rules framed
thereunder, their conviction under Section 9B of the Act of 1884
is fully justified. Their conviction under Section 4 of the Act of
1908 for doing the act with intent to cause explosion and being in
possession of explosives has already been proved and as such,
their conviction under Sections 4 & 5 of the Act of 1908 is borne
out from the evidence available on record. Thus, the appeal in
respect of appellants Govind and Omprakash on these counts also
fails. However, the appeal in respect of appellant Ganesh for the
charges under Sections 27(3) of the Arms Act, Section 9B of the
Act of 1884 and Sections 4 & 5 of the Act of 1908 deserves to
be allowed and his conviction under the aforesaid sections
deserve to be set aside.
86.
In the result:-
(i) Criminal Reference No.2/2013 is answered in
negative and we dispose of the criminal reference by
not confirming the death sentence.
(ii)
Criminal appeal No.374/2013 preferred by
the appellants is partly allowed in respect of appellants
Govind Chandra and Om Prakash.
Death sentences
imposed upon them under Sections 302/34 IPC (3
counts), 120B IPC & 27 (3) of the Arms Act are set
41
aside and instead, they are sentenced to undergo
imprisonment for life. Conviction and sentence imposed
upon them under Sections 9B of the Indian Explosive
Act, 1884 and Sections 4 & 5 of the Explosive
Substances Act, 1908 are hereby maintained.
(iii)
The appeal in respect of appellant Ganesh is
allowed. Conviction and sentence imposed upon him as
mentioned in paragraph-1 of the judgment are set
aside. He is acquitted of all the charges.
He be
released forthwith, unless required to be detained in
any other case, on his furnishing a personal bond in sum
of Rs.5,000/- with one surety to the satisfaction of
the concerned trial Court. His bond shall remain in
operation for a period of 6 months from today in view
of the provisions contained under Section 437-A of
the CrPC. He shall appear before the higher Court, as
and when directed.
CHIEF JUSTICE
Barve
J U D G E
42
HEADNOTE
Electronic records proved in the manner required under
Section 65B of the Indian Evidence Act is admissible.
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