settled the law with respect to the admissibility of evidence
under Section 65B of the Indian Evidence Act. The Court held
that an electronic record by way of secondary evidence is
only admissible in a court of law if the requirements under
Section 65B are complied with. A certificate in terms of
Section 65B of the Evidence Act is mandatory for secondary
evidence pertaining to an electronic record such as a CD or a
chip to be admissible. The factual matrix of that case
involved CDs being used for announcements and songs. If
these CDs had been adduced as primary evidence, the same
would not have been hit by the requirements of Section 65B
of the Evidence Act. The announcements and songs were
recorded using other instruments and were then fed into a
computer, from which CDs were made, which can be
classified as secondary evidence. The Supreme Court held
that CDs could not be admitted as evidence without due
certification and compliance with the requirements under
Section 65B of the Evidence Act. The Court clarified and
made it amply clear that Section 65B of the Evidence Act
seeks to bring within its ambit only secondary evidence on
electronic record and the same does not bar the admissibility
of electronic records being used as primary evidence.
It is thus clear that provision of Section 65B of the
Act itself negates the requirement of the production of the
primary evidence in the form of the original media on which
data or information was stored and makes secondary evidence
admissible in the form of computer output, subject to the
production of a certificate. The purpose behind Section 65B
of the Act is to obviate the difficulty attached to the
production of primary evidence, which can lead to a denial of
justice in many cases. This provision through its
requirements brings secondary evidence to the level of
primary evidence in order to make it admissible in
accordance with law. Evidently, Section 65B is attracted in
cases where an electronic record is printed, copied etc. and
is produced by a computer(computer output), thus making it
a provision dealing with secondary evidence. It is, therefore,
significant to note that the difference between primary
evidence and secondary evidence is of utmost importance. A
tape recorded cassette, seen in the light of this analysis of
law, is clearly a primary and direct evidence of what has been
said and recorded.
The Supreme Court in R.M. Malkani(supra), in
such circumstances held that tape recorded conversation is
admissible provided; first the conversation is relevant to the
matters in issue; secondly, there is identification of the
voice; and, thirdly, the accuracy of the tape recorded
conversation is proved by eliminating the possibility of erasing
the tape record. A contemporaneous tape record of a
relevant conversation is a relevant fact and is admissible
under Section 8 of the Evidence Act. It is res-gestae. It is
also comparable to a photograph of a relevant incident. The
tape recorded conversation is therefore a relevant fact and is
admissible under Section 7 of the Evidence Act. The
importance of Section 65B of the Evidence Act is that it does
away with the requirement to produce the original computer
or the original media on which data or information was stored
and allows the secondary evidence in the form of computer
output to be produced and admitted in evidence, subject to
the condition that when evidence of computer output is
produced and tendered, certificate of a person occupying a
responsible official position in relation to operation of the
relevant device or management of the relevant activities as
prescribed by Section 65B of the Evidence Act is produced.
Since in the present case voice of accused Sunil
Panchal recorded at the time when ransom call was made by
him has matched with his voice recorded in another cassette
and it has been proved by FSL Report(Exhibit P-72) that voice
recorded in two cassettes were of the same person, it is an
important link connecting the accused with the crime.
All afore-discussed individual circumstances, when
joined together, thus form a complete chain which lead to an
inescapable conclusion that it were the accused-appellants
and none else, who abducted Abhishek @ Aakash, demanded
ransom and eventually murdered him. We, therefore, do not
find any error in impugned judgment and order passed by the
trial court and uphold the conviction and sentence awarded
to them by the trial court.
REPORTABLE
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR.
JUDGMENT
D.B. CRIMINIAL APPEAL NO. 151/2007
SUNIL PANCHAL VS. THE STATE OF RAJASTHAN.
DATE OF JUDGMENT : 03.06.2016
MR. JUSTICE MOHAMMAD RAFIQ
MR. JUSTICE VIJAY KUMAR VYAS
Citation: 2016 CRLJ 4238 Raj
These two appeals are directed against the
common judgment dated 21.12.2006 passed by Additional
Sessions Judge(Fast Track) No. 1, Kota(for short ‘the trial
court’) whereby the trail court convicted the accusedappellants
for offences under Sections 120-B, 364-A and 302
IPC and sentenced each of them as under:
Section 120-B IPC: Imprisonment for life with fine of Rs.
1,000/-, in default whereof, to further undergo one month’s
rigorous imprisonment.
Section 364-A IPC: Imprisonment for life with fine of Rs.
3,000/-, in default whereof, to further undergo two months’
rigorous imprisonment.2
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
Section 302 IPC: Imprisonment for life with fine of Rs.
5,000/-, in default whereof, to further undergo three months’
rigorous imprisonment.
Factual matrix of the case is that complainant
Subrato Mukherjee(P.W.3) submitted a written report(Exhibit
P-9) to S.H.O., Police Station Vigyan Nagar, Kota on
11.03.2005 inter alia alleging therein that his son Abhishek @
Akash aged nine years, who was student of Class III, had gone
for playing with his friends at 5.30 P.M. on 10.03.2005 and did
not return back. The police, on that basis, registered a
missing person report No. 707 and entrusted the investigation
to Harji Lal Yadav(P.W.22), Sub Inspector of Police, who after
investigation, submitted a written report (Exhibit P-49)
stating that his enquiry has revealed that certain unknown
persons with intention to extract ransom have abducted
Abhishek @ Akash, which attracted offence punishable under
Section 364-A IPC. Police Station Vigyan Nagar, Kota
therefore lodged regular FIR No. 123/2005(Exhibit P-50) for
the aforesaid offence and commenced investigation. During
investigation, dead body of Abhishek @ Akash was recovered
at 8.00 P.M. on 14.03.2005. Police, after completion of
investigation, filed charge sheet against accused-appellants.
Charges were framed against them under Sections 120-B, 364-3
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
A and 302 IPC. The accused-appellant denied charges and
claimed trial. The prosecution produced 24 witnesses and
exhibited 72 documents. Thereafter, the accused-appellants
were examined under Section 313 Cr.P.C. wherein they
pleaded innocence. Defence produced only one witness and
exhibited five documents. The trial court on conclusion of
the trial vide impugned judgment and order dated 21.12.2006
convicted and sentenced the accused-appellants in the
manner as indicated hereinabove. Hence, these appeals.
We have heard Mr. V.R. Bajwa, learned counsel
appearing on behalf of the accused-appellant Sunil Panchal;
Mr. Asgar Khan, learned counsel appearing on behalf of the
accused-appellant Arif Khan; Ms. Sonia Shandilya and Mr.
Aladeen Khan, learned Public Prosecutor and Mr. Rinesh
Gupta, learned counsel for the complainant.
Mr. V.R. Bajwa, learned counsel appearing on
behalf of the accused-appellant Sunil Panchal argued that
entire prosecution case hinges on circumstantial evidence,
there being no direct evidence against the accusedappellants.
Chain of circumstances against accusedappellants
is having various missing links and is not so
complete as to point to the guilt of the accused-appellants,4
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
especially accused-appellant Sunil Panchal alone. Conviction
of the accused-appellant has been recorded by the trial court
on the ground that the deceased was lastly seen talking to
two young men on the evening of 10.03.2005 and he,
thereafter, went missing. The prosecution has miserably
failed to establish beyond reasonable doubt the identity of
those two young men, who were allegedly seen speaking to
the boy in the evening of 10.03.2005. Devi Singh(P.W.1),
domestic help of Subroto Mukherjee(P.W.3) has stated about
the said fact, but no test identification parade was conducted
of the accused-appellants at the hands of Devi Singh, so as to
ensure that whether he saw the accused-appellants or some
other persons talking to the abducted boy. Devi Singh has not
identified the accused-appellants in the trial court also. On
the contrary, he, in his court statement, stated that he had
seen those two young men only from behind, as their back
was towards him. Besides, the factum of Devi Singh having
seen two young men with whom the deceased left on a
motorcycle was not even mentioned in the FIR(Exhibit P-50),
which was lodged after a due inquiry conducted for two days
by Harji Lal Yadav(P.W.22). In this regard, learned counsel
drew attention of the Court towards statement of Subroto5
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
Mukherjee(P.W.3), who stated that there was another child,
who was also playing with Abhishek at the time when two
young men came, with whom Abhishek went away, but the
identity of that child never came to be revealed, much less
no test identification parade was even conducted at the
hands of that child.
Mr. V.R. Bajwa, learned counsel argued that
recovery of dead body at the instance of accused-appellants
is completely shrouded in mystery. Accused-appellant Sunil
Panchal was arrested on 14.03.2005 at 6.00 P.M. vide arrest
memo(Exhibit P-51) and accused-appellant Arif Khan was
arrested on 14.03.2005 at 6.15 P.M. vide arrest memo(Exhibit
P-52). The police in arrest memos of both the accused had
categorically mentioned the offence under Section 302 IPC
whereas recovery of dead body(Exhibit P-17) has been shown
at 8.00 P.M. on 14.03.2005. Similarly, information under
Section 27 of the Indian Evidence Act regarding dead body
was obtained from accused Arif Khan on 14.03.2005 at 6.30
P.M. vide Exhibit P-65 and said information was obtained from
accused Sunil Panchal (Exhibit P-66) on that day at 6.45 P.M.
and in both the memos, offence under Section 302 IPC was
indicated. It is further argued that in the seizure memo of6
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
motorcycle seized at the instance of Sunil Panchal at 6.20
P.M. on 14.03.2005(Exhibit P-53) again mention of offence
under Section 302 IPC was made. Similarly, in the seizure
memo of STD slip allegedly seized from Sunil Panchal at the
time of his arrest at 6.20 P.M. on 14.03.2005(Exhibit P-54),
offence under Section 302 IPC has been mentioned. If the
recovery of dead body was not made till the time the
accused-appellants were arrested, i.e. two hours prior of
recovery of dead body, how could the police conclude and
mention that the offence under Section 302 IPC is attracted.
Subir Kumar Mukherjee(P.W.2)(Uncle-elder brother of
deceased's father) has stated about the manner in which
recovery of the dead body was effected. He stated that he
was summoned at a particular spot, where the police was
waiting and thereafter he accompanied the police to the
destination from where the dead body was recovered,
whereas Rajendra Ojha(P.W.24), Investigating Officer stated
that Subir Kumar Mukharjee(P.W.2) was summoned through
telephone call to the spot for identification of the dead body,
after the dead body had been recovered. Besides, dead body
was recovered from a house which was open as the same was
in a semi constructed state. Rajendra Ojha(P.W.24),7
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
Investigating officer has also admitted the same in his crossexamination.
Since the recovery was made from an open
space accessible to all, the same cannot be connected with
the accused-appellants. All these circumstances create
suspicion with regard to actual time of recovery of dead body
as also whether the recovery of dead body was really made
persuant to information under Section 27 of the Indian
Evidence Act. Reliance has been placed on the judgment of
the Supreme Court in Bakshish Singh Vs. The State of
Punjab, AIR 1971 SC 2016 wherein it has been held that
recovery of dead body at the instance of accused itself is not
a concluding circumstance.
Mr. V.R. Bjawa, learned counsel further argued
that as per medical evidence, cause of death was manual
strangulation(throttling), leading to asphyxia. The aforesaid
circumstance in itself is a neutral circumstance. Whosoever
was the assailant, as per the prosecution case, he committed
murder of the deceased through manual
strangulation(throttling). The accused-appellant Sunil
Panchal does not get connected with the offence on the
strength of the aforesaid circumstance. Neither finger prints
of the appellant were found on the neck of the deceased, nor8
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
any ruminants of the skin or blood of the deceased were
found in the scraping of the nail clipping of the appellant. In
fact, no such nail clipping or any other form of scientific
evidence was ever collected by the police in the instant case.
No finger prints of the accused-appellant were
lifted/recovered from the spot where the dead body was
recovered.
Learned counsel further argued that recovery of
silver chain(neckless) and amulet(tabij) belonging to the
deceased, at the instance of the accused Sunil Panchal
(Exhibit P-55) and recovery of cricket bat belonging to the
deceased at the instance of accused Arif (Exhibit P-59) cannot
be made basis for recording conviction of the accusedappellants
and said recoveries are also doubtful. Recovery of
silver chain and silver amulet allegedly belonging to the
deceased through information under Section 27 of the
Evidence Act(Exhibit P-68) and the recovery memo (Exhibit P-
55) is nothing more than an eye wash. In the description of
the boy given in the missing report reproduced in
rojnamcha(Exhibit P-9), it has not been mentioned that
whether the boy was wearing a silver chain with a silver
amulet or not. It also does not mention about the fact that9
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
the boy was carrying a cricket bat at that point of time. This
fact also does not find mention in the regular FIR(Exhibit P-
50) lodged two days after the enquiry(Exhibit P-49). In such a
situation, the fact that the deceased was wearing a silver
chain with a silver amulet seems to be an improvement
introduced by the prosecution at later stage through due
confabulation. Niranjan Gautam(P.W.13), the Police
Photographer has categorically stated that while conducting
photography of the dead body on 14.03.2005, he saw a silver
chain with a silver amulet lying near the dead body, on the
floor. He also took pictures of the same, which are on record
as Exhibit P-28, 32 and 33. His testimony and the
photographs exhibiting silver chain and amulet with the dead
body completely demolishes the case of the prosecution.
Recovery of silver chain and silver amulet shown at the
instance of accused Sunil Panchal is nothing but result of
police padding. If as per testimony of Niranjan
Gautam(P.W.13) and photographs, Exhibits P-28, 32 and 33,
these items were found from the place along with the dead
body, but there is no explanation why these items were not
recovered then and there by the police. The trial court has
given a very strange reasoning to discard this argument by10
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
observing that the accused failed to prove that the chain and
amulet recovered at his instance vide Exhibit P-55 were the
same, which were lying along with the dead body. In the
memo of recovery(Exhibit P-55), the police has mentioned
that silver chain was recovered in two pieces whereas amulet
was in one piece. Said recovery was made at the instance of
the accused-appellant Sunil Panchal at 4.00 P.M. on
19.03.2005 and said items were shown to have been wrapped
in Rajasthan Patrika dated 10.03.2005, which also clearly
proves the manipulations made by the police.
Mr. V.R. Bajwa, learned counsel argued that
identification of the silver chain and amulet by father of the
deceased before Hari Mohan Gupta, Additional Chief Judicial
Magistrate, Communal Riots, Kota(P.W.15) in test
identification proceedings is again shrouded in mystery.
There is ample material on record to show that the
identification proceedings were no more than a farce. The
articles, which were added with the subject articles, were
not even similar, much less identical to them. Subroto
Mukherjee(P.W. 3), in his cross examination does not state as
to whether the silver chains which were mixed with the
subject silver chain, were broken or intact. Admittedly, as11
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
per the recovery memo(Exhibit P-55), the silver chain was
recovered in two broken pieces. Hari Mohan Gupta(P.W.15),
who conducted test identification proceedings, has admitted
in his cross examination that the entire contemporaneous
documentary record, which was prepared at the time of
identification proceedings, does not speak of the chain either
being broken or intact, as also it does not speak of the
articles being similar to that effect. He also states that the
articles to be mixed with the subject article were brought by
the Reader of the court whereas Rajendra Ojha(P.W.24),
Investigating Officer stated that he had summoned/brought
those articles to be mixed with the subject article through
Harji Lal Yadav(P.W.22). In such a situation, there is
complete confusion with regard to the summoning of similar
articles as also with regard to mixing of similar/identical
articles with the subject articles. In such circumstances, the
test identification parade(Exhibit P-11) is completely farcical
in nature. Learned counsel in support of his arguments has
relied upon the judgment of the Supreme court in
Nallabothu Ramulu @ Seetharamaiah & Others Vs. State of
Andhra Pradesh, JT 2014 (5) SC 404 and argued that
benefit of defective investigation should go to the accused.12
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
Learned counsel argued that the Supreme Court in Hiralal
Pandey & Ors. Vs. State of U.P., JT 2012 (4) SC 117 has
held that such benefit should go to accused if there is an eye
witness account.
Learned counsel argued that FSL report showing
that voice of Sunil Panchal matched with the voice recorded
in the recording device attached to the land line phone of
Suborto Mukherjee(P.W.3), father of deceased, when ransom
calls were made, is of no value at all. The device with caller
ID and voice recording as per Exhibit P-2 was obtained from
one Sanjay Sharma, S.H.O., Police Station Mahaveer Nagar
and was installed at the spot i.e. with the land line telephone
of father of the deceased, by P.W. 22, Harzi Lal Yadav. First
of all, Sanjay Sharma has not been produced as a witness in
the case by the prosecution, secondly, no witness has been
produced to prove the proper functioning and maintenance of
the said electronic device. There is no certificate as per
Section 65B of the Indian Evidence Act, 1872(for short 'the
Evidence Act') that the device was properly working. In such
circumstances, the said evidence has to be eschewed from
consideration. Even otherwise, evidence of voice
identification is not a sure science, completely free from13
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
error, for want of any scientific instrument comparison.
Relying on the judgment of the Supreme Court in Anvar P.V.
Vs. P.K. Basheer & Others, 2014 (10) SCC 473, it is argued
that unless certificate under Section 65-B of the Indian
Evidence Act was produced, evidence of voice of accused
Sunil Panhal which allegedly matched with the voice recorded
in the recording device attached to the land line phone of
father of the deceased as per FSL report(Exhibit P-72) cannot
be held admissible in evidence. Learned counsel in this
respect referred to definition of 'computer' under Section 2(i)
of the Information and Technology Act, 2000 and argued that
it includes any electronic, magnetic, optical or other high
speed data processing device or system which performs
logical, arithmetic and memory functions by manipulations of
electronic, magnetic or optical impulses, and includes all
input, output, processing, storage, computer software or
communication facilities, which are connected or related to
the computer in a computer system or computer network.
Reference is also made to the definition of 'computer system'
under Section 2(l) of the Act to bring home the point that
electronic device attached to the land line for that matter
would also be a computer or computer system and therefore,14
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
data stored therein are recorded in a device or collection of
devices, including input and output support devices and
excluding calculators which are not programmable and
capable of being used in conjunction with external files which
contain computer programmes, electronic instructions, input
data and output data that performs logic, arithmetic, data
storage and retrieval, communication control and other
functions. Production of any such data for the purpose of
evidence would therefore require certificate envisaged under
Section 65B of the Evidence Act without which such evidence
would not be admissible. Learned counsel in support of his
argument also relied upon the judgment of the Supreme
Court in R.K. Anand Vs. Registrar, Delhi High Court, JT
2009 (10) SC 1 and Nilesh Dinkar Paradkar Vs. State of
Maharashtra, JT 2011 (3) SC 429.
Mr. V.R. Bajwa, learned counsel argued that
recovery of slip of STD booth by accused through his
information does not amount to discovery of any new fact and
Section 27 of the Evidence Act would not be applicable in
such case. Jitendra(P.W.14), owner of STD/PCO and K.K.
Book Depot and Stationery, Dadabari, Kota has turned hostile
and refused to toe line of prosecution case. Bhoop15
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
Singh(P.W.12), STD/PCO owner of Sainik Telecom has
categorically stated that police had visited his STD shop even
prior to pointing out of the said shop by the accused through
information under Section 27 of the Indian Evidence
Act(Exhibit P-62) on 22.03.2005. Harish(P.W.19), owner of
STD/PCO booth and medical store(Hari Om Medical), has also
stated that the police had visited his shop prior to the
discovery of the said shop through discovery memo (Exhibit P-
14) dated 22.03.2005. STD/PCO booth owners of Sualka
Telecom and Firdos Telecom have not been produced in the
case, so as to lend credence to the version of the police. It is
further argued by learned counsel that the link evidence with
regard to the alleged recovery of STD/PCO slip from the
appellant Sunil Panchal at the time of his arrest is completely
missing in the instant case. There is no entry in the malkhana
register with regard to said STD/PCO slip, exhibited by the
prosecution in the case. Radha Kishan(P.W.21), Malkhana
Incharge has categorically stated that the said STD slip was
never given to him in a sealed condition to be deposited in
Malkhana. Therefore, there is no element of discovery at all.
Learned counsel argued that no test identification
parade of the accused persons at the hands of Bhoop16
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
Singh(P.W.12) was conducted during the course of
investigation. Test identification parade serves a
corroborative piece of evidence for dock identification in the
court, which is missing in the instant case. Dock
identification in the court for the first time is a weak type of
evidence, more so when in the facts and circumstances of the
present case, there was no long interaction between Bhoop
Singh(P.W.12) and the accused persons. The place being a
public telephone booth, innumerable number of persons keep
on visiting the place to make a call. In such circumstances, a
fleeting glimpse of the accused persons cannot lend credence
to the dock identification conducted by Bhoop Singh(P.W.12)
in the trial court. Learned counsel relying on the judgment of
the Supreme Court in Suresh Chandra Bahri Vs. State of
Bihar, 1995 Supp(1) SCC 80 argued that dock identification
for the first time in the Court when it is not corroborated
either by previous identification or any other evidence,
cannot be relied to convict the accused. Relying on the
judgment of the Supreme Court in Dana Yadav @ Dahu &
Others Vs. State of Bihar, JT 2002 (7) SC 68, it is argued
that if the witness had seen the accused number of times at
different point of time, then only, test identification parade17
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
is not necessary. Learned counsel has argued that the
Supreme Court in number of cases has held that identification
for first time in the court has to be relied in exceptional cases
only. Reliance in this connection has been placed on
judgments of the Supreme Court in Sheo Shankar Singh Vs.
State of Jharkhand, JT 2011(2) SC 367; Mahabir Vs. The
State of Delhi, JT 2008 (5) SC 308 and Heera & Another
Vs. State of Rajasthan, JT 2007 (9) SC 175.
Lastly, drawing attention of the Court towards
exculpatory circumstances, learned counsel argued that there
is no last seen evidence available on record, of the accusedappellants
being seen with the deceased. As per the medical
evidence, in the form of statement of Dr. Yogesh
Sharma(P.W.23), death of the deceased from the date of post
mortem examination i.e. 15.03.2005 happened between 72-
120 hours, in other words, the death took place 3-5 days prior
to the date of post mortem examination. In such
circumstances, the death seems to have taken place between
10.03.2005 to 12.03.2005. When the boy was dead before
12.03.2005, then seeking ransom after 12.03.2005 is highly
improbable and the same fails the test of human probability.
18
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
Mr. Asgar Khan, learned counsel appearing on
behalf of accused-appellant Arif Khan largely adopted the
arguments advanced by Mr. V.R. Bajwa, learned counsel for
the accused-appellant Sunil Panchal. In addition, he argued
that the accused Arif has been convicted by the trail court on
the basis of recovery of cricket bat made at his instance.
Referring to missing person report(Exhibit P-9), learned
counsel submitted that it was not mentioned in that report
that when the deceased disappeared, he was carrying cricket
bat. In the regular FIR(Exhibit P-50) also, no reference of this
fact was made. Devi Singh(P.W.1) also did not state that
when the deceased accompanied two unknown young men on
motorcycle, he was carrying cricket bat. Referring to
statement of Subroto Mukherjee(P.W.3), informant, learned
counsel submitted that this witness has stated that there was
insulated tape affixed on the bat and he could not see tape
when other bats were mixed therewith at the time and when
the police got the bat identified by him in the presence of
Hari Mohan Gupta(P.W.15), vide Exhibit P-11. He also could
not remember whether handles of other bats also had similar
rubber tube or not. Exhibit P-11 does not prove the fact that
other bats had any insulated tape affixed on them. This19
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
witness stated that no specific measurement of the bat was
given by him nor was indicated otherwise in Exhibit P-11.
This witness has stated that when he lodged missing person
report, he told the police that the deceased Abhishek @
Akash was wearing silver chain and silver amulet, but he
could not explain why the police did not mention the same in
the report.
Learned counsel referred to statement of Ram
Ballabh(P.W.11), Assistant Sub Inspector of Police, who has
stated that Circle Inspector of the Police informed him on
telephone that he was busy in the investigation of the matter
at Bombay Scheme and instructed him(this witness) to go to
STD/PCO and seize STD slip and telephone instrument. This
instruction was given to him by Circle Inspector at 6.00 P.M.,
which shows that dead body was already discovered by the
investigating officer and Circle Inspector at 6.00 P.M. in
Bombay Scheme but arrest of accused was shown much
thereafter at 8.00 P.M. And actual recovery of dead body
was also shown much thereafter. Bhoop Singh(P.W.12),
owner of Sainik Telecom(STD/PCO) has also corroborated this
fact that immediately after phone call was made by the
accused, he received return call from Rakesh Pal, Circle20
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
Inspector, who enquired from him whether he could identify
the accused, who made the phone call and he disclosed their
physiognomy. After half-one hour, police personnel brought
two accused to STD/PCO for being identified by him. Hari
Mohan Gupta(P.W.15), in his cross examination stated that he
did not indicate length of the bat in proceedings(Exhibit P-
11). He also stated that silver chain and amulet and bat so
recovered at the instance of the accused were
arranged/mixed by his Reader. Learned counsel argued that
recovery of bat vide memo Exhibit P-59 was bad in law
because Harji Lal, Yadav, Sub Inspector of Police(P.W.22),
has been associated as an attesting witness thereto. Chain of
circumstances against him is having so many missing links and
the same is not so complete so as to point to the guilt of the
accused-appellant alone and none else. Learned counsel,
therefore, argued that charges against the accused-appellant
have not been proved beyond reasonable doubt.
Ms. Sonia Shandilya and Mr. Aladeen Khan, learned
Public Prosecutors as well as Mr. Rinesh Gupta, learned
counsel for the complainant opposed the appeals and
submitted that each of the circumstances against the
accused-appellants is proved individually and also21
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
collectively. The deceased was seen talking to two young
men on 10.03.2005 and thereafter, he accompanied them on
a motorcycle and went missing. Dead body of the deceased
was recovered at the instance of accused-appellants. As per
medical evidence, cause of death was manual
strangulation(throttling), leading to asphyxia. Recovery of
silver chain and amulet belonging to the deceased was made
at the instance of accused Sunil Panchal and recovery of
cricket bat belonging to the deceased was made at the
instance of accused Arif. Aforesaid articles belonging to the
deceased were identified by Subroto Mukherjee(P.W.3),
father of the deceased, in the presence of Judicial
Magistrate, Hari Mohan Gupta(P.W.15). FSL report(Exhibit P-
72) proved that voice of Sunil Panchal matched with the voice
recorded in the recording device attached to the land line
phone of father of the deceased, when ransom calls were
made. STD/PCO booth was identified by the accused on their
information under Section 27 of the Evidence Act. Bhoop
Singh(P.W.12) identified the accused appellants correctly in
the trial court. Reference has been made to statement of
Devi Singh(P.W.1), domestic helper of Subroto
Mukherjee(P.W.3), informant, who proved factum of22
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
kidnapping of deceased by two unknown young persons on a
motorcycle where after the deceased went missing. Mere
fact that he could not see the face of the kidnappers does not
render his testimony completely inadmissible. In fact, this
fact has been corroborated by Subroto Mukherjee(P.W.3) and
Subir Kumar Mukherjee(P.W.2), who stated in their
statements that it was Devi Singh, who lastly saw the
deceased talking to two unknown young persons and
deceased went with them on their motorcycle.
It is argued that at the time of arrest of Sunil
Panchal, one slip of STD/PCO bearing No. 2481660 was
recovered from right side pocket of his pant, which was
seized vide Exhibit P-54. This slip matched with the slip
obtained by the police from STD/PCO named Sainik
Telecom(Exhibit P-23). It is with the help of this slip that the
police was able to find out the nearby location of accused
and thereby nabbed them. They were brought back to
STD/PCO so that the police could reassure itself that they are
the same persons, who made call from this STD/PCO. Bhoop
Singh(P.W.12) has proved this fact that both the accused
were brought to his STD/PCO immediately after half-one hour
by the police and he correctly identified them. It is argued23
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
that once the accused were identified by Bhoop
Singh(P.W.12) immediately after they were nabbed by the
police, evidence of this witness has to be given utmost
importance and would be admissible by virtue of doctrine of
res-gestae. It is argued that when Bhoop Singh(P.W.12)
identified the accused in the course of investigation and
thereafter also, in the Court, it cannot be said that he only
had a fleeting glimpse of the accused persons and that his
statement cannot lend credence to the dock identification.
Bhoop Singh(P.W.12) had ample time and reason to recognize
and memorise their faces and he correctly recognised them in
the court. Mere fact that identification of the accused by
Bhoop Singh(P.W.12) was not preceded by test identification
parade would not in any manner undermine sanctity of his
evidence.
Learned Public Prosecutor argued that merely
because the police, in the memos of arrest and memos of
information under Section 27 of the Evidence Act, had
indicated offence under Section 302 IPC, which were
prepared prior to recovery of dead body, would not be a
reason to discard important evidence of recovery of dead
body. When the accused were nabbed by the police and24
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
when they disclosed the fact of murder of kidnapped boy,
mention of offence under Section 302 IPC in their arrest
memos and memos of information under Section 27 of
Evidence Act was only natural. This minor lacuna cannot be a
reason to throw away entire case of the prosecution. Arrest
memo of Sunil Panchal(Exhibit P-51) was prepared on
14.03.2005 at 6.00 P.M. Similarly, arrest memo of accused
Arif(Exhbit P-52) was prepared on 14.03.2005 at 6.15 P.M.
Information memo under Section 27 of the Evidence Act by
accused Arif with regard to dead body (Exhibit P-65) was
prepared on same day at 6.30 P.M. Information memo under
Section 27 of the Evidence Act by accused Sunil Panchal with
regard to dead body(Exhibit P-66) was prepared on
14.03.2005 at 6.45 P.M. Likewise seizure memo of STD slip
seized from Sunil Panchal at the time of his arrest was
prepared vide Exhibit P-54 at 6.20 P.M. on the same day. All
these steps were taken by the police at one go and almost
within a duration of 45 minutes. When the police had already
got the information from the accused about murder, there
was nothing wrong in adding offence under Section 302 IPC in
all these memos. 25
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
As regards the argument that dead body was
recovered from open space which could be accessible to any
one, it is argued that Investigating Officer, Rajendra
Ojha(P.W.24) clarified this position by stating that it was a
deserted unfurnished building having multi storied flats where
normally no one visits. It is argued that such building cannot
be termed as an open place visible and accessible to
everyone. The very fact that duration of death of kidnapped
boy Abhishek @ Akash has been opined to be 72-120 hours
before the post mortem(Exhibit P-6) clearly proves the fact
that dead body could not be seen by any one for such a long
time till the police reached there on the information
furnished by the accused-appellant under Section 27 of the
Indian Evidence Act. Contention that as per the statement of
Niranjan Gautam(P.W.13), silver chain(neckless) and silver
amulet(tabij) of the deceased were already lying near the
dead body and therefore, its recovery shown at the instance
of accused Sunil Panchal was false cannot be accepted.
Learned trial court has dealt with this argument on page 20 of
the judgment and held that recovery has been proved by
information memo of accused(Exhibit P-68 and 55) and
statement of Hari Mohan(P.W.15). Trial court has also held26
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
that since in the present case there is otherwise
overwhelming evidence, this one factor cannot be a basis to
discard the entire prosecution case.
Learned Public Prosecutor relied on the judgment
of the Supreme Court in State of Maharashtra Vs. Damu
Gopinath Shinde, AIR 2000 SC 1691, in support of factum of
recovery pursuant to information furnished by the accused
under Section 27 of the Evidence Act. Learned counsel
argued that requirement of certificate under Section 65-B of
the Evidence Act for admissibility of evidence of voice of
accused Sunil Panchal, which matched with the voice
recorded in the recording device attached to the land line
phone of father of the deceased as per FSL report(Exhibit P-
72) is not necessary. Even according to judgment of the
Supreme Court in Anvar P.V.(supra), recording device
attached with telephone instrument and the voice recorded
therein is primary evidence and factum of recording of such
voice is not secondary evidence. Telephone and the caller
I.D. device do not fall under the definition of computer.
Relying on the judgment of Supreme Court in R.K.
Anand(supra), it is contended that all the guidelines issued
by the Supreme Court in that case have been followed in the27
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
present case while recording voice of the accused. FSL
Report(Exhibit P-72) clearly depicts that the voice of the
speaker has been duly identified by the maker of the record
by other who recognizes his voice and showed similarity with
respect of frequency, intonation pattern, linguistics and
phonetic characteristics and belongs to the same person.
Fard Mamoora Telephone dated 11.03.2005(Exhibit P-2)
putting caller ID and voice recording system on land line of
Suborto Mukharjee(P.W.3), father of the deceased, clearly
proves that such device was carefully installed and was
indicating time of recording. Alok Bhargava(P.W.6) was
assigned the job of receiving telephone calls on the land line
of father of the deceased, during the period when the
deceased was kidnapped and kept in captivity. Exhibit P-2
also proves this fact. Telepohone instrument and voice
recording system were validly seized on 15.03.2005.
Learned Public Prosecutor relied upon judgment of
the Supreme Court in Yusufalli Esmail Nagree Vs. The State
of Maharashtra, AIR 1968 SC 147 and argued that therein
the Supreme Court laid down conditions subject to which
tape recorded conversation can be admitted into evidence.
Reliance is also placed upon the judgment of the Supreme28
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
Court in Ram Singh & Others Vs. Col. Ram Singh, AIR 1986
SC 3 and (1) N. Sri Rama Reddy & Others, (2) Sri Abdul
Ghani Dar & Others Vs. Shri V.V. Giri; AIR 1971 SC 1162.
It is argued that Subir Kumar(P.W.2); Subroto
Mukherjee(P.W.3); Alok Bhargava(P.W.6); Bal Krishan
Mishra(P.W.18); Harji Lal Yadav(P.W.22) and Rajendra Kumar
Ojha(P.W.24) have proved all the aforesaid circumstances
against the accused-appellants. Chain of circumstances
against the accused-appellants is so complete which rules out
every possibility of their innocence. It is, therefore, prayed
that the appeals filed by the accused-appellants may be
dismissed and judgment and order passed by the trial court
may be affirmed.
We have given our anxious considerations to rival
submissions and perused the material on record. We have
also carefully studied the judgments cited by learned counsel
for the parties.
Analysis of the evidence on record shows that
number of circumstances were individually proved against the
accused-appellants, which when joined together, form a
chain of circumstances so complete as to point to their guilt
and none else. We shall in the light of arguments of the29
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
defence presently deal with the evidence of prosecution with
reference to each of such circumstances on the basis of which
the trial court has recorded the finding of guilt against the
accused-appellants.
First circumstance which has been found proved
by the trial court is that the deceased was lastly seen talking
to two young persons and thereafter he went missing. Devi
Singh(P.W.1) has stated that he was domestic servant in the
house of Subroto Mukherjee(P.W.3), father of the deceased.
While he was leaving his house at about 7.00 P.M. on
10.03.2005, he saw two boys sitting on stationary motorcycle
talking to Akash. Their back was towards him, but face of
Akash was visible to him. Thereafter, Akash sat between
both of them on the motorcycle and went away. Age of these
two young persons was stated to be about 20-22 years. Akash
at that time was wearing red shirt, brown pant and white
shoes. On the following morning when he reached back there
around 9 O' clock, a crowd was assembled outside the house
of Subroto Mukherjee and when he learnt that Akash was
missing, he immediately informed them about the fact that
he saw Akash talking to two young persons sitting on
stationary motorcycle the previous evening. This witness has30
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
been subjected to extensive cross-examination and was
confronted with his police statement recorded under Section
161 Cr.P.C. (Exhibit D-1), but there was not much deviation
from what he stated to the police. Mere fact that this
witness did not mention that when Akash accompanied two
young persons, he was carrying a cricket bat with him cannot
be a reason to completely discard his testimony at least to
the extent it proves that the deceased went with two young
persons on motorcycle, who were aged about 20-22 years.
Subroto Mukherjee(P.W.3) father of the deceased has also
stated that he returned the house from his factory around
6.45 P.M. on 10.03.2015. His son Abhishek was not there at
home. Around 7.00 P.M., his wife told her that Abhishek had
gone to play cricket and has not yet returned back. When
Abhishek did not come back by 7.15 P.M., he went to the park
where Abhishek used to play and made enquiries from his
friends, who were residing nearby. One of the boys, who
recently started residing there, told him that Abhishek was
playing with them till some time ago and he saw him talking
to two young persons, who had come on motorcycle. A
cumulative reading of statements of these two witnesses
would clearly prove the circumstance of two young persons,31
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
who had come on motorcycle, being seen talking to the
deceased Abhishek and then Abhishek accompanying them on
their motorcycle and thereafter he went missing. Mere fact
that in the first information report which was not lodged
either by Devi Singh(P.W.1) or Subroto Mukherjee(P.W.3) and
was lodged at the instance of Harji Lal Yadav (P.W.22), this
fact was not mentioned, does not in any manner diminish
evidentiary value of their statements.
Another significant circumstance proved against
the accused-appellants was that when the accused-appellants
made phone call from Sainik Telecom, STD/PCO booth owned
by Bhoop Singh(P.W.12), the police immediately discovered
location of STD booth and talked to STD/PCO booth owner,
Bhoop Singh(P.W.12) and enquired about physiognomy of the
accused. Bhoop Singh(P.W.12), owner of STD/PCO booth
categorically stated that two boys had come to his shop
around 2.00-3.00 P.M. One of them entered the cabin to
make the telephone call and another boy stood outside the
cabin. First boy talked hardly for ten seconds and the boy,
who stood outside the cabin, gave him a currency note of Rs.
10/-. He deducted Rs. 2/- and returned Rs. 8/- to them.
First boy made a call on telephone no. 2429199. Soon after32
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
this telephone call, two police personnel came there in civil
uniform and demanded from him copy of bill/STD slip,
whereupon he generated duplicate copy thereof and handed
over the same to them, which was Exhibit P-23. The police
personnel, then and there, made seizure memo of that slip
(Exhibit P-21). The police personnel also seized telephone
instrument vide seizure memo (Exhibit P-22). He was
signatory to both these memos. This witness further stated
that Exhibit P-23 was generated from his STD/PCO booth
because number of telephone of his PCO, i.e. 2481660 was
printed on the same which was allotted to him by telephone
department for the use as STD. Said slip was sealed in an
envelop (Exhibit P-24), which also contain his signature.
Evidence show that the accused were smart
enough to use different STD/PCO booths. The police was
already on vigil, which is evident from the fact that Bhoop
Singh(P.W.12) further stated that two days prior to the date
on which the aforesaid call was made by the accused from his
STD/PCO booth, two police personnel in civil dress had come
to his STD/PCO booth and told his father to note telephone
No. 2429199 and asked that if anyone makes call to this
number, the police should be informed immediately.33
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
Though, this witness did not inform the police immediately
about the said telephone call because shortly thereafter, the
police personnel reached there. This witness has also stated
that two police personnel came to his STD/PCO from Udyog
Nagar Police Station. One of them was named Satveer, after
about half an hour. Rokesh Pal, Circle Inspector was also
accompanying them. They enquired about the physiognomy
of the accused and he told that one of the boy was fatty and
another was slim. Thereafter, the police brought two boys to
his shop after about half-one hour. Rokesh Pal, Circle
Inspector was also with them. This witness has identified
accused-appellants in the Court as those two boys who made
the phone call from his STD/PCO on the aforesaid number.
This is therefore yet another significant circumstance against
the accused-appellants is that the police had traced the
STD/PCO booth and immediately reached there and knew
about the physiognomy of the accused and soon thereafter
they nabbed the accused and brought them back to STD/PCO
and then arrested them. At the time of arrest, police
recovered from right side pocket of pant of accused Sunil
Panchal a STD/PCO slip (Exhibit P-54), which was original bill
generated from the STD machine and given to the accused by34
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
Bhoop Singh(P.W.12) and matched exactly with the duplicate
copy thereof(Exhibit P-23), which was generated and handed
over by him to the police.
Contention of learned counsel for the accusedappellants
that dock identification of the accused for the first
time in the court, in the facts of the present case, should not
be relied to link them with the crime is noted to be rejected.
Even in Suresh Chandra Bahri(supra) case, relied by learned
counsel for the appellants, it has been held by the Supreme
Court that identification of accused by the witness in court is
substantial piece of evidence. Where accused is not
previously known to the witness, test identification parade
must be held at the earliest possible opportunity with
necessary safeguards and precautions. However, when
accused had been seen by the witness for a quite number of
times at different point of time and places, test identification
parade is not necessary. In the present case, the evidence
clearly show that the accused were seen by Bhoop
Singh(P.W.12) not only when they came to his STD/PCO booth
for making telephone call, but thereafter again when they
were brought back to his STD/PCO booth by the police
personnel, who wanted to ascertain whether it were these35
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
very accused, who made the phone call from his STD/PCO
booth. Hence, aforesaid contention of learned counsel for
the appellant is hereby rejected.
Next significant circumstance against appellant is
that pursuant to information given by accused Arif under
Section 27 of the Evidence Act with regard to dead body
(Exhibit P-65) and similar information given by accused Sunil
Panchal(Exhibit P-66), the police immediately reached the
place where from they recovered dead body of Abhishek vide
Exhibit P-17 at 8.00 P.M. on 14.03.2005 itself which heither to
remained untraceable. We are not inclined to countenance
the argument that since recovery of dead body was made
from open place, no new fact can be held to have been
discovered at the instance of the accused. Rajendra
ojha(P.W.24), the investigating officer has made it clear that
it was a deserted multi storied building, which normally no
one visits. Such unfurnished multi storied deserted building
can by no stretch of reasoning be descried as an open place.
Moreover, as per the post mortem report, duration of death
was 72 to 120 hours. The fact that no one could notice the
dead body lying there even for so long, only reinforces the
conclusion that the dead body could be recovered only on the36
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
basis of information furnished by the accused under Section
27 of the Evidence Act. Solely because information memos,
arrest memos and information memo and seizure memo of
motorcycle and STD slip mentioned offence under Section 302
IPC, which were prepared an hour or so prior to preparation
of recovery memo of dead body at 8.00 P.M. on 14.03.2005
could not render this significant stage of investigation as
doubtful. On the information given by the accused
immediately after their arrest, if the police had come to
know about murder of abducted boy and mentioned offence
under Section 302 IPC in the aforesaid memos, the same was
quite natural and there was nothing unnatural in what the
police did at that time.
The Supreme Court in State of Maharashtra Vs.
Damu Gopinath Shinde, AIR 2000 SC 1691(supra) has
observed that the basic idea embedded in Section 27 of the
Evidence Act is the doctrine of confirmation by subsequent
events. The doctrine is founded on the principle that if any
fact is discovered in search made on the strength of any
information obtained from the accused, such a discovery is
guarantee that the information supplied by the accused is
true. The information might be confessional or non37
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
inculpatory in nature, but if it results in discovery of a fact, it
become reliable information. Therefore, the law permits
such information to be used as evidence by restricting the
admissible portion to the minimum. Relying on the judgment
of Privy Council in Pulukuri Kottayya Vs. Emperor, AIR
1947 PC 67, the Supreme Court held that “fact discovered”
envisaged in the section embraces the place from which the
object was produced, the knowledge of the accused as to it,
but the information given must relate distinctly to the effect.
Minor discrepancies in the investigation cannot be
a reason to discard the entire prosecution case. The Supreme
Court in State Govt. of NCT of Delhi Vs. Sunil & Another,
(2001) 1 SCC 652 held that mere absence of independent
witness when investigating officer recorded the statement of
the accused and the article was recovered pursuant thereto is
not sufficient ground to discard the evidence. Evidence of
police officer regarding the recovery at the instance of the
accused should ordinarily be believed. Official acts of police
should be presumed to be regularly performed. Archaic
notion to approach actions of police with initial distrust
should be discarded. Even if, for the present we do not
believe the factum of recovery of silver chain and silver38
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
amulet at the instance of the accused-appellant Sunil
Panchal, because as per Niranjan Gautam(P.W.13), police
photographer, he saw them lying on the floor near the dead
body on 14.03.2005 and took pictures of the same which are
Exhibits P-28, P-32 and P-33, there is otherwise enough
evidence on record which points to the guilt of the accusedappellants
and none else. Since discovery of the place where
the dead body was found was made pursuant to information
given by the accused under Section 27 of the Evidence Act,
which eventually led to recovery of dead body of the
abducted boy, recovery of silver chain and silver amulet from
that place then even, as per testimony of Niranjan
Gautam(P.W.13) relied by the defence, could also be read
against the accused-appellants. Moreover, cricket bat was
also recovered at the instance of accused Arif vide Exhibit P-
59. Mere non-mention of these articles in the missing person
report and first information report may not be a reason to
hold that they did not belong to the deceased, particularly
when they have been identified by his father, Subroto
Mukherjee(P.W.3) in the proceedings conducted by Hari
Mohan Gupta(P.W.15). The fact that in the recovery memo,
chain is shown to be broken into pieces would not be a reason39
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
to disbelieve the fact that this belongs to the deceased.
Similarly, the fact that Hari Mohan Gupta(P.W.15) has stated
that articles similar to silver chain and amulet and cricket bat
were procured by his Reader whereas Investigating Officer,
Rajendra Ojha(P.W.24) has stated that they were procured by
Harji Lal Yadav(P.W.22), the Sub Inspector of Police is also
not so serious contradiction, as to disbelieve that the
aforesaid articles did not belong to the deceased. It is
common knowledge that when a Judicial Magistrate is
entrusted with the task of test identification parade of
persons or articles, his Reader invariably accompany him to
the place where such identification proceedings are
conducted. In the case of identification of articles,
proceedings are mostly conducted in the court premise itself
where availability of Reader is natural. Therefore, if similar
articles were procured by Hari Mohan Gupta(P.W.15) with the
help of his Reader, who in turn relied on police personnel.
There was nothing unusual in such a practice.
The most important and significant circumstance
in the present case is the factum of recording of voice sample
of accused-appellant Sunil Panchal, obtained by Hari Mohan
Gupta(P.W.15), which according to FSL Report(Exhibit P-72)40
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
matched with his voice recorded on the device attached to
the residence land line phone of Subroto Mukherjee(P.W.3),
father of the deceased. Hari Mohan Gupta(P.W.15), the
Judicial Magistrate, has stated that an application was filed
before Chief Judicial Magistrate by S.H.O., Police Station
Vigyan Nagar, Kota seeking permission to record voice sample
of accused Sunil Panchal. As per the order of Chief Judicial
Magistrate, he was to sit at the place where call was to be
received and Bal Krishna Mishra(P.W.18) Additional Chief
Judicial Magistrate, Kota(South) was to remain present at the
place where from the call was to be generated. S.H.O.,
Police Station Vigyan Nagar, Kota produced before him a tape
recorder and two blank cassettes, which were checked by
Hari Mohan Gupta(P.W.15) in the presence of B.K.
Mishra(P.W.18) and they were found empty. Investigating
officer gave him a written transcription of pre-recorded
conversation which was Exhibit P-41. Voice of Sunil Panchal
was recorded directly on one cassette and his voice through
phone call was recorded in another cassette. An application
in this connection was submitted to Chief Judicial
Magistrate(Exhibit P-42) seeking his permission to make use of
his official telephone in the chamber for making an outgoing41
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
call and also use telephone installed in the chamber of
Additional Chief Judicial Magistrate No. 4, Kota for the
purpose of incoming call. Permission was granted by Chief
Judicial Magistrate, Kota, which is contained in Exhibit P-42.
For this purpose, they had to get the telephone instrument
installed in the chamber of Additional Chief Judicial
Magistrate No. 4, Kota replaced as the earlier one was not
compatible with the tape recorder. Thereafter, phone call
was made from the chamber of Chief Judicial Magistrate,
Kota in which accused Sunil Panchal was made to speak and
his recording was made in the chamber of Additional Chief
Judicial Magistrate, No. 4, Kota. Complete proceedings of
this were prepared vide Exhibit P-43 and the cassettes were
sealed. Similarly, Bal Krishna Mishra(P.W.18) also stated that
he obtained permission of Chief Judicial Magistrate, Kota to
make use of his telephone No. 2326956 for making call to
official telephone of Additional Chief Judicial Magistrate No.
4, Kota from his chamber and the accused was made to speak
from the chamber of the Chief Judicial Magistrate, which was
recorded. Proceedings were prepared vide Exhibit P-48 and
the voice recorded was transcribed as Exhibit P-47, both of
which contained signatures of the accused. Hari Mohan42
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
Gupta(P.W.15) made endorsement of his permission vide
Exhibit P-43. The cassette with the help of which voice of
accused Sunil Panchal was recorded was Article-5, which was
handed over to Hari Mohan Gupta(P.W.15).
We are not inclined to uphold the contention of
learned counsel for the appellant that tape recorder attached
to land line telephone of Subroto Mukherjee(P.W.3), father of
the deceased should be deemed to be a computer or
computer system and the voice recorded on the cassettes
should be treated an electronic record, as defined in various
provisions of the Information and Technology Act, 2000 and in
the absence of certificate under Section 65-B of the Evidence
Act, such evidence should be held inadmissible. Although,
learned counsel, in support of his contention, has relied upon
the judgment of the Supreme Court in Anvar P.V.(supra),
but we are not inclined to sustain the aforesaid argument for
the reasons to be stated hereinafter, but before that we
would like to birefly address the law that has developed in
our country in relation to admissibility of voice recording.
The phenomenon of tendering tape recorded
conversation before law courts as evidence, particularly in
cases arising under the Prevention of Corruption Act, where43
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
such conversation is recorded by sending the complainant
with a recording device to the person demanding or offering
bribe has almost become a common practice now. In civil
cases also, parties may rely upon tape records of relevant
conversation to support their version. In such cases, the
court has to face various questions regarding admissibility,
nature and evidentiary value of such a tape recorded
conversation. The Indian Evidence Act, prior to its being
amended by the Information Technology Act, 2000, mainly
dealt with evidence, which was in oral or documentary form.
Nothing was there to point out about the admissibility, nature
and evidentiary value of a conversation or statement
recorded in an electro-magnetic device. Being confronted
with the question of this nature and called upon to decide the
same, the law courts in India as well as in England devised
and developed principles so that such evidence, may be
received in law courts and acted upon. Relationship between
law and technology has not always been an easy one.
However, the law has always yielded in favour of technology
whenever it was found necessary.
The concern of the law courts regarding utility and
admissibility of tape recorded conversation, from time to44
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
time, found its manifestation in various pronouncements. In
India, the earliest case in which the issue of admissibility of
tape recorded conversation arose for consideration was Rup
Chand Vs. Mahabir Parshad & Another, AIR 1956 Punjab
173. The court in that case though declined to treat tape
recorded conversation as writing within the meaning of
Section 3(65) of the General Clauses Act, but allowed the
same to be used under Section 155(3) of the Evidence Act as
previous statement to shake the credit of witness. The Court
held that there is no rule of evidence, which prevents a
party, who is endeavouring to shake the credit of a witness by
use of former inconsistent statement, from deposing that
while he was engaged in conversation with the witness, a
tape recorder was in operation, or from producing the said
tape recorder in support of the assertion that a certain
statement was made in his presence. In S. Pratap Singh Vs.
State of Punjab, AIR 1964 SC 72, a Constitution Bench of
the Supreme Court considered this issue and propounded the
law that tape recorded talks are admissible in evidence and
simple fact that such type of evidence can be easily
tampered, certainly could not be a ground to reject such
evidence as inadmissible or refuse to consider it, because45
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
there are few documents and possibly, no piece of evidence,
which could not be tampered with. In this case the tape
record of the conversation was admitted in evidence to
corroborate the evidence of witnesses, who had stated that
such a conversation has taken place.
The Supreme Court in Yusufalli Esmail
Nagree(supra) considered various aspects of the issue
relating to admissibility of tape recorded conversation. This
was a case relating to an offence under Section 165-A IPC.
The conversation between accused, who wanted bribe and
complainant was tape recorded at the instance of the
Investigating Agency. The prosecution wanted to use this
tape recorded conversation as evidence against accused and
it was argued that the same is hit by Section 162 Cr.P.C. as
well as article 20(3) of the Constitution. In this landmark
decision, the Supreme Court authoritatively laid down in
unequivocal terms that the process of tape recording offers
an accurate method of storing and later reproducing sounds.
If a statement is relevant, an accurate tape record of the
statement is also relevant and admissible. The time and
place and accuracy of the recording must be proved by a
competent witness and the voices must be properly46
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
identified. The imprint on the magnetic tape is direct effect
of the relevant sounds. Like a photograph of a relevant
incident, a contemporaneous tape record of a relevant
conversation is a relevant fact and is admissible under Section
7 of the Evidence Act. The Supreme Court after examining
the entire issue in the light of various previous
pronouncements laid down the following principles:
a) The contemporaneous dialogue, which was tape recorded,
formed part of res-gestae and is relevant and admissible
under Section 8 of the Indian Evidence Act.
b) The contemporaneous tape record of a relevant
conversation is a relevant fact and is admissible under Section
7 of the Indian Evidence Act.
c) Such a statement was not in fact a statement made to
police during investigation and, therefore, cannot be held to
be inadmissible under Section 162 Cr.P.C.
d) Such a recorded conversation though procured without the
knowledge of the accused but the same is not elicited by
duress, coercion or compulsion nor extracted in an oppressive
manner or by force or against the wishes of the accused.
Therefore, the protection of the Article 20(3) was not
available. 47
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
e) One of the features of magnetic tape recording is the
ability to erase and re-use the recording medium. Therefore,
the evidence must be received with caution. The court must
be satisfied beyond reasonable doubt that the record has not
been tampered with.
The point whether tape recorded conversation
would be primary and direct evidence, was dealt with by the
Supreme Court in N. Sri Rama Reddy & Others v. Shri V.V.
Giri, AIR 1971 SC 1162 wherein the Court held that like any
document the tape record itself was primary and direct
evidence admissible of what has been said and picked up by
the receiver. This view was reiterated by the Supreme Court
in R.K. Malkani V. State of Maharashtra, AIR 1973 SC 157
wherein the Court ordained that when a Court permits a tape
recording to be played over, it is acting on real evidence if it
treats the intonation of the words to be relevant and
genuine. A three-Judge Bench of the Supreme Court in
Ziyauddin Burhanuddin Bukhari V. Brijmohan Ramdass
Mehta & Others, AIR 1975 SC 1788 upheld the conclusion of
the High Court in holding that tape records of speeches were
“documents” as defined under Section 3 of the Evidence Act,
which stood on no different footing than photographs and48
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
that they were admissible in evidence on satisfying the
condition of voice being identified and accuracy of what was
actually recorded, being proved by maker of the record or by
others, who know it, by satisfactory evidence, direct or
circumstantial, to rule out possibilities of tampering with the
record and further that subject matter recorded was relevant
as per rules of relevancy found in the Evidence Act. The
Supreme Court further held that tape records were the
primary evidence of what was recorded. Transcripts could be
used to show what the transcriber has found recorded there
at the time of transcription. It has been further held that the
use of tape recorded conversation was not confined to
purpose of corroboration and contradiction only. Giving an
example, the Court pointed out that when it was disputed
whether a person's speech on a particular occasion, contained
a particular statement, there could be no more direct or
better evidence of it than its tape recording, assuming its
authenticity to be duly established.
In the case of Ram Singh & Others V. Col. Ram
Singh, AIR 1986 SC 3, the Supreme Court following the law
laid down in Yusufalli Esmail Nagree(supra) and various
other judgments culled out following as the conditions for49
D.B. CRIMINAL APPEAL
NO. 151/2007 & 282/2007
admissibility of tape recorded conversation:
“(1) The voice of the speaker must be
duly identified by the maker of the
record or by other who recognise his
voice. In other words, it manifestly
follows as a logical corollary that the first
condition for the admissibility of such a
statement is to identify the voice of the
speaker. Where the voice has been
denied by the maker it will require very
strict proof to determine whether or not
it was really the voice of the speaker.
(2) The accuracy of the tape recorded
statement has to be proved by the maker
of the record by satisfactory evidencedirect
or circumstantial.
(3) Every possibility of tampering with or
erasure of a part of a tape recorded
statement must be ruled out otherwise it
may render the said statement out of
context and, therefore, inadmissible.
(4) The statement must be relevant
according to the rules of Evidence Act.
(5) The recorded cassette must be
carefully sealed and kept in a safe or
official custody.
(6) The voice of the speaker should be
clearly audible and not lost or distorted
by other sounds or disturbances.”
In the case of R.K. Anand(supra), those very
conditions, which were laid down in Ram Singh(supra) by the
Apex Court for admissibility of tape recorded conversation,
were reiterated.
The Supreme Court in Anvar P.V.(supra) has
settled the law with respect to the admissibility of evidence
under Section 65B of the Indian Evidence Act. The Court held
that an electronic record by way of secondary evidence is
only admissible in a court of law if the requirements under
Section 65B are complied with. A certificate in terms of
Section 65B of the Evidence Act is mandatory for secondary
evidence pertaining to an electronic record such as a CD or a
chip to be admissible. The factual matrix of that case
involved CDs being used for announcements and songs. If
these CDs had been adduced as primary evidence, the same
would not have been hit by the requirements of Section 65B
of the Evidence Act. The announcements and songs were
recorded using other instruments and were then fed into a
computer, from which CDs were made, which can be
classified as secondary evidence. The Supreme Court held
that CDs could not be admitted as evidence without due
certification and compliance with the requirements under
Section 65B of the Evidence Act. The Court clarified and
made it amply clear that Section 65B of the Evidence Act
seeks to bring within its ambit only secondary evidence on
electronic record and the same does not bar the admissibility
of electronic records being used as primary evidence.
It is thus clear that provision of Section 65B of the
Act itself negates the requirement of the production of the
primary evidence in the form of the original media on which
data or information was stored and makes secondary evidence
admissible in the form of computer output, subject to the
production of a certificate. The purpose behind Section 65B
of the Act is to obviate the difficulty attached to the
production of primary evidence, which can lead to a denial of
justice in many cases. This provision through its
requirements brings secondary evidence to the level of
primary evidence in order to make it admissible in
accordance with law. Evidently, Section 65B is attracted in
cases where an electronic record is printed, copied etc. and
is produced by a computer(computer output), thus making it
a provision dealing with secondary evidence. It is, therefore,
significant to note that the difference between primary
evidence and secondary evidence is of utmost importance. A
tape recorded cassette, seen in the light of this analysis of
law, is clearly a primary and direct evidence of what has been
said and recorded.
The Supreme Court in R.M. Malkani(supra), in
such circumstances held that tape recorded conversation is
admissible provided; first the conversation is relevant to the
matters in issue; secondly, there is identification of the
voice; and, thirdly, the accuracy of the tape recorded
conversation is proved by eliminating the possibility of erasing
the tape record. A contemporaneous tape record of a
relevant conversation is a relevant fact and is admissible
under Section 8 of the Evidence Act. It is res-gestae. It is
also comparable to a photograph of a relevant incident. The
tape recorded conversation is therefore a relevant fact and is
admissible under Section 7 of the Evidence Act. The
importance of Section 65B of the Evidence Act is that it does
away with the requirement to produce the original computer
or the original media on which data or information was stored
and allows the secondary evidence in the form of computer
output to be produced and admitted in evidence, subject to
the condition that when evidence of computer output is
produced and tendered, certificate of a person occupying a
responsible official position in relation to operation of the
relevant device or management of the relevant activities as
prescribed by Section 65B of the Evidence Act is produced.
Since in the present case voice of accused Sunil
Panchal recorded at the time when ransom call was made by
him has matched with his voice recorded in another cassette
and it has been proved by FSL Report(Exhibit P-72) that voice
recorded in two cassettes were of the same person, it is an
important link connecting the accused with the crime.
All afore-discussed individual circumstances, when
joined together, thus form a complete chain which lead to an
inescapable conclusion that it were the accused-appellants
and none else, who abducted Abhishek @ Aakash, demanded
ransom and eventually murdered him. We, therefore, do not
find any error in impugned judgment and order passed by the
trial court and uphold the conviction and sentence awarded
to them by the trial court.
In the result, both the appeals fail and are,
hereby, dismissed.
Office is directed to place a copy of this judgment
on record of connected appeal.
(VIJAY KUMAR VYAS),J. (MOHAMMAD RAFIQ),J.
Manoj
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