RAVINDER SINGH @ KAKU versus STATE OF PUNJAB on 4 May 2022

[2022] 4 S.C.R. 589

RAVINDER SINGH @ KAKU

v.

STATE OF PUNJAB

(Criminal Appeal No. 1307 of 2019)

MAY 04, 2022

[UDAY UMESH LALIT AND VINEET SARAN, JJ.]

Penal Code,1860: ss. 302 r/w 120B and 364 – Murder andkidnapping – Kidnapping and murder of two minor children –Conviction of the main accused and other co-accused includingthe mother of the children and imposed death sentence for offencepunishable u/s. 302 r/w 120B and ten years rigorous imprisonmentfor offence punishable u/s. 364 – However, the High Court acquittedthe co-accused and sentenced the main accused to rigorousimprisonment for 20 years – On appeal, held – When conviction isbased solely on circumstantial evidence, it is imperative that thechain of circumstances is complete, cogent and coherent in order tosustain a conviction – Circumstantial evidence against the mainaccused does not conclusively establish his guilt in committing themurder of the children – Motive, last seen theory, the arrest of theaccused, the recovery of material objects and the call detailsproduced, do not conclusively complete the chain of evidence –Inconsistencies and contractions are found in the evidences givenagainst the main accused – Fact that he committed the murder ofthe children not established – Thus, the conviction of main accusedsolely on circumstantial evidence not possible and is set aside –Evidence.

Evidence Act, 1872: s. 65B(4) – Certification of electronicevidence – Requirement of – Held: Oral Evidence in place of suchcertificate cannot suffice as s.65B(4) is a mandatory requirementof the Law.

Evidence: Circumstantial evidence – Conviction on basis of– When – Held: Inference of guilt can be justified only when all theincriminating facts and circumstances are found to be incompatiblewith the innocence of the accused – Circumstances from which aninference as to the guilt of the accused is drawn have to be provedbeyond reasonable doubt and have to be shown to be closely

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[2022] 4 S.C.R.

Aconnected with the principal fact sought to be inferred from thosecircumstances.

Disposing of the appeals, the Court

HELD : 1.1 In order to sustain a conviction, it is imperativethat the chain of circumstances is complete, cogent and coherent.BWhere a case rests squarely on circumstantial evidence, theinference of guilt can be justified only when all the incriminatingfacts and circumstances are found to be incompatible with theinnocence of the accused. The circumstances from which aninference as to the guilt of the accused is drawn have to be provedCbeyond reasonable doubt and have to be shown to be closelyconnected with the principal fact sought to be inferred from thosecircumstances. [Para 10][598-E, F-G]

1.2 The circumstantial evidence against the appellant-A2does not conclusively establish the guilt of A2 in committing theDmurder of the deceased children. The last seen theory, the arrestof the accused, the recovery of material objects and the call detailsproduced, do not conclusively complete the chain of evidenceand do not establish the fact that A2 committed the murder of thechildren of PW5. The submission of the respondent that the calldetails produced relating to the phone used by A1 and A2 haveEestablished that they shared an intimate relationship and that thisrelationship became the root cause of offence is also cannot beaccepted. [Para 11][599-D-E]

1.3 When a conviction is based solely on circumstantialevidence, such evidence and the chain of circumstances must beFconclusive enough to sustain a conviction. In the instant case, itwas submitted that conviction of A2 could not just be upheld solelyon the ground that the prosecution has established a motive viathe call records. However, it is held that not only is suchconviction not possible on the present scattered and incoherentGpieces of evidence, but that the prosecution has not evenestablished the motive of the crime beyond reasonable doubt. Inthe instant case, the fact that A1 and A2 talked on call, only provesthat they shared a close relationship. However, what these recordsdo not prove, is that the murder was somehow in furtherance ofthis alleged proximity between A1 and A2. The High Court’sH

inference in this regard was a mere dubious conclusion that wasdrawn in absence of any cogent or concrete evidence. The HighCourt itself based its inferences on mere probability. Moreover,the prosecution also failed to establish by evidence the supposedobjective of these murders and what was it that was sought to beachieved by such an act. The court observed that the act of A2was inspired by the desire to “exclusively possess” A1. However,it seems improbable that A2 would murder the minor children ofPW5 and A1 to increase or protect his intimacy to A1 rather thaneliminate the husband of A1 himself. Hence, the inference drawnby the High Court from the information of call details presentedbefore them suffers from infirmity and cannot be upheld, especiallyin light of the fact that there is admittedly no direct evidence toestablish such alleged intimacy and that the entire conviction ofA2 is based on mere circumstantial evidence. A conviction whichis based upon a probability of infatuation of A2, which in turn isbased on an alleged intimacy between him and A1, which hasadmittedly not been established by any direct evidence cannotbe upheld. [Para 13][600-C-H]

1.4 The High Court erred in holding that the second limbof the prosecution’s Last Seen Theory stands duly establishedagainst A2 and A3 through the evidence of PW6 and PW7. TheHigh Court erred in not appreciating the numerous contradictionsand inconsistencies that the evidence of PW6 and PW7 entail.These contradictions and inconsistencies assume capitalimportant in light of the fact that the entire conviction of A2 isbased merely on circumstantial evidence, and they also renderthe evidence non-conclusive to establish the guilt of A2. [Para15][601-C-D, E-F]

1.5 In a case where the conviction is solely based oncircumstantial evidence, such inconsistencies in the testimoniesof the important witnesses cannot be ignored to uphold theconviction of A2, especially in light of the fact that the High Courthas already erred in extrapolating the facts to infer a dubiousconclusion regarding the existence of a motive that is rooted inconjectures and probabilities. [Para 17][602-E]

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A1.6 With respect to the extra judicial confessions, suffice itto say that the attempt of the respondent to rely on that isuntenable since the High Court has taken note of theinconsistences in the evidence of PW13 and rightly rejected hisevidence “in toto”. The judgement of the High Court to the extentthat it rejects the testimony of PW13 and finds the theory of extraBjudicial confession of A2 and A3 to be unnatural is upheld. Thelast piece of evidence against A2 remains the alleged recoveryof the school bag at the instance of the disclosure statement givenby A2. However, similar to the other evidence against A2, thisalso suffers from the same inconsistencies and incoherence thatCmakes it difficult for the such evidence to support the convictionof A2. The contradictions and inconsistencies in the testimoniesof PW6, PW5, PW9 and PW12 make the story of the prosecutionweak and non-conclusive to hold and establish the guilt of A2,especially in light of the fact that there is virtually no directevidence to link A2 to the commission of the offence. [Paras 18,D19][602-F-H; 603-G]

1.7 The electronic evidence produced before the HighCourt should have been in accordance with the statute and shouldhave complied with the certification requirement, for it to beEadmissible in the court of law. Oral evidence in the place of suchcertificate, as is the case in the instant matter, cannot possiblysuffice as Section 65B(4) is a mandatory requirement of the law.[Para 21][605-C-D]

Anvar P.V. v. P. K. Basheer & Ors. (2014) 10 SCC 473F: [2014] 11 SCR 399; Shafhi Mohammad v. State ofHimachal Pradesh (2018) 2 SCC 801; Arjun PanditraoKhotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC1 – referred to.

1.8 The tripod stand of motive, last seen theory andGrecovery, that supported the conviction of A2 according to theHigh Court, is found to be non-conclusive and the evidencesupporting the conviction of A2 is marred with inconsistenciesand contradictions, thereby making it impossible to sustain aconviction solely on such circumstantial evidence. Thus, theimpugned order of the High Court is set aside to the extent thatH

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it convicts A2 under section 302 and 364 IPC. Hence, theconviction of A2 is set aside. However, the acquittal of A1 and A3by the impugned order is upheld. [Paras 22, 23][605-D-F]

Hukam Singh v. State of Rajasthan AIR 1977 SC 1063;Eradu and Ors. v. State of Hyderabad AIR 1956 SC316; Earabhadrappa @ Krishnappa v. State ofKarnataka AIR 1983 SC 446 : [1983] 2 SCR 552; Stateof U.P. v. Sukhbasi and Ors. AIR 1985 SC 1224;Balwinder Singh @ Dalbir Singh v. State of Punjab AIR1987 SC 350; Ashok Kumar Chatterjee v. State of M.P.AIR 1989 SC 1890; Bhagat Ram v. State of PunjabAIR 1954 SC 621; C. Chenga Reddy and Ors. v. Stateof A.P. (1996) 10 SCC 193 : [1996] 3 Suppl. SCR 479;Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473 :[2014] 11 SCR 399; Shafhi Mohammad v. State ofHimachal Pradesh (2018) 2 SCC 801; Arjun PanditraoKhotkar vs Kailash Kushanrao Gorantyal (2020) 7 SCC1 – referred to.

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Case Law Reference

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ACRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1307 of 2019.

From the Judgment and Order dated 22.02.2011 of the High Courtof Punjab and Haryana at Chandigarh in Criminal Appeal No. 861-DBof 2010.

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Criminal Appeal Nos. 1308-1311 of 2019

Bharat Bhushan, Ms. Jaspreet Gogia, Ms. Mandakini Singh,Ms. Ashima Mandla, Ms. Shirin Khajuria, Ms. Aakansh Kaul, B. V.CBalaram Das, Vikas Mahajan, Vishal Mahajan, Vinod Sharma, AnilKumar, Ms. Anuradha Mutatkar, Ranjit Malhotra, Avadh Pratap Singh,Ms. Sucheta Kumari, Sandeep Kumar Dwivedi, Shiva Bhardwaj,Ms. Aditi Chhopra, Rakesh Mishra, Advs. for the appearing parties.

The Judgment of the Court was delivered by DVINEET SARAN, J.

1. These appeals arise out of the judgment dated 22.02.2011 passedby the High Court of Punjab & Haryana in a case in which two childrennamely; Aman Kumar and Om, aged about 10 years and 6 yearsrespectively were kidnapped and murdered. There were three accusedEnamely; Anita @ Arti (mother of the children) (A-1); Ravinder Singh @Kaku (A-2) and Ranjit Kumar Gupta (A-3). The Trial Court convictedall the three accused and sentenced them to death for the offencepunishable under Section 302 read with 120B IPC and rigorousimprisonment for 10 years and fine of Rs.5000/-each for the offencepunishable under Section 364 IPC.F

2. Being aggrieved by the Trial Court order, the present appellantfiled a criminal appeal before the High Court of Punjab and Haryana,which got tagged along with the criminal appeals filed by the other co-accused persons.

3. The High Court, vide judgment dated 22.02.2011, acquitted Anita@Arti (A-1) and Ranjit Kumar Gupta (A-3) and partly allowed the appealfiled by Ravinder Singh @ Kaku (A-2) and while setting-aside the deathpenalty, sentenced him to undergo rigorous imprisonment for 20 yearsunder Section 302 IPC.

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4. The facts leading to the present case are dealt with in paragraphs2,3 and 4 of the judgment dated 25.05.2010 of the Trial Court, which arereproduced below:

“2. Tersely put, on 24.09.2009, complainant Rakesh Kumarson of Khushal Chand, resident of Nanak Nagri, Moga movedapplication to the Station House Officer (SHO), Police StationCity-1. Moga regarding missing of his two sons namely AmanKumar and Om, aged about 10 years and 6 years respectively.He submitted in the application that on 24.09.2009, both ofhis sons had gone for tuition as usual near their house.Usually, they used to return from tuition at about 6 p.m. Buton that day, they did not return to their house till 9 p.m. He(complainant) along with his neighbours searched for them.It is further submitted that two days prior to the occurrence,his wife had a dispute with Ranjit Kumar Gupta (Accused)and his wife Sanju. And Sanju threatened the complainantand his wife to take care of their children and, therefore, theyhad suspicion that their children might have been abductedby Ranjit Kumar Gupta and his wife Sanju. On the basis ofsuch application of the complainant, report No. 23 dated24.09.2009 was made in the Roznamcha. The matter wasentrusted to S.I. Subhash Chander for investigation and onthe basis of his report, F.I.R under Sections 364/506/120-BIPC was registered against Ranjit Kumar Gupta and his wifeSanju.

3. On 25.09.2009, in the morning, dead bodies of both thechildren were found from the paddy field of Bhagwan Singhson of Piara Singh, resident of Purana Moga, which werehanded over to their relatives for getting the autopsyconducted from Civil Hospital, Moga. And Section 302 IPCwas added. During investigation, on the basis of statementsof Krishan Lal, son of Shiv Lal Bansal, resident of NanakNagri, Moga and Amarjit Singh, son of Jai Singh, resident ofMehme Wala, Moga, Ravinder Singh alias Kaku and Anitaalias Arti also nominated as accused. The accused werearrested on 27.09.2009. However, during investigation,accused Sanju was found innocent. After completion of entireinvestigation, accused Anita alias Arti, Ravinder Singh alias A

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Kaku and Ranjit Kumar Gupta were challaned to face trialin this case under Sections 302/364/506 read with Section120-B IPC. And Sanju, wife of Ranjit Kumar Gupta (accused)was placed in column No.2 of report under Section 173 Cr.P.C.

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4. On commitment of the case to this Court, charge underBSections 302/364/120-B IPC was framed against accusedAnita alias Arti, Ravinder Singh alias Kaku and Ranjit KumarGupta, to which they pleaded not guilty and claimed trial”.

5. The High Court opined that the prosecution had established themotive of the offence committed by A2, which was his determination toCeliminate the school going children of Rakesh Kumar (PW5) and A1because he was madly in love with A1. The High Court further held thatthe prosecution’s attempt to rope in A1 in the crime of murder was notsuccessful as their only witness against A1 i.e. PW10 [Krishan Lal, whoaccompanied PW5 while searching for the deceased kids] turned hostile.However, against A2 and A3, it was held that the prosecution has partiallyDestablished the last seen theory through the testimonies of PW6 andPW7. The High Court further rejected the evidence of PW13 whichwas in the nature of extra judicial confession of A2 and A3.

6. As far as A2 i.e. the present appellant is concerned, the HighCourt, while upholding his conviction held that:

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“As regards the second accused, it is evident that PW12 whoraided his house, arrested him on 27.09.2009 and recoveredthe mobile phone bearing sim card No. [REDACTED]. A schoolbag and a rope also were recovered from the field based onthe disclosure statement given by him. DW1 had been fieldedFby A2 to bat his cause. In the face of the credible evidence asto the arrest of A2 by PW12 on 27.09.2009 during the raid ofhis house, the evidence of DW1 does not seem to betrustworthy. The arrest of second accused and the recoveryeffected based on his disclosure statement lend corroborationto the case of the prosecution as against the second accused.

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At the initial stage the first accused Anita was not at allsuspected. Later on she was arrested from her house on H

27.09.2009 and from her custody the mobile phone bearingsim cards No. [REDACTED] and [REDACTED] were recovered.The recovery of those mobile phones and the relevant calldetails Ex.D41 to Ex.D44 would support the case of theprosecution that A2 had a close intimacy with A1 whichculminated in the unfortunate occurrence.

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As far as the second accused is concerned, the motive part ofthe case has been established by the prosecution. Throughthe first limb of the last seen theory as regards the secondaccused projected through PW10 Krishan Lal by theprosecution failed, the prosecution could establish the secondlimb of the last seen theory through PW6 Amarjit Singh andPW7 Gurnaib Singh. His arrest and recovery of the materialobjects also would support the case of the prosecution asagainst him. The failure to establish the extra judicialconfession alleged to have been given by the second accusedto PW13 Goverdhan Lal does not affect the case of theprosecution as against him. It is to be noted that arrest of A2and the recovery of material objects from his person and alsoat his instance were established.

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A2 is convicted only based on the circumstantial evidenceproduced by the prosecution. The infatuation he had with A1had completely blinded his sense of proportion and ultimatelyhe had committed the cruel murder of the children of PW5Rakesh Kumar. The murder of the children as such had notbeen committed in a diabolic or monstrous manner. Both thechildren had been strangulated to death by A2. A2 was just25/26 years old at the time when he committed the crime. Thecrime was committed propelled by sexual urge at the youngage on account of infatuation towards a women. Reformationis possible during the long years of his imprisonment in jail.Further, if the second accused having spent his prime time in A

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Ajail comes out after 20 years, he may not be a menace to thesociety.”

7. Challenging his conviction and sentence of 20 years, the presentappellant Ravinder Kumar @ Kaku filed Criminal Appeal No. 1307 of2019 @ SLP (Crl.) 9431 of 2011, which shall be treated by us as the leadBappeal/petition.

8. The case of the prosecution herein has remained that the TrialCourt and the High Court have rightly convicted A2 since the prosecutioncould successfully establish that there was a motive for the murder. It iscontented that the call details produced relating to the phone used by A1Cand A2 have established that they shared an intimate relationship, whichbecame the root cause of offence committed herein. It is further submittedthat the last seen theory, the arrest of the accused, the recovery ofmaterial objects and the call details produced, would conclusively establishthe guilt of the accused persons in conspiring the murder of the childrenof PW5.

D9. We have heard learned counsel for the parties at length andhave perused the record.

10. The conviction of A2 is based only upon circumstantial evidence.Hence, in order to sustain a conviction, it is imperative that the chain ofEcircumstances is complete, cogent and coherent. This court hasconsistently held in a long line of cases [See Hukam Singh v. State ofRajasthan AIR (1977 SC 1063); Eradu and Ors. v. State ofHyderabad (AIR 1956 SC 316); Earabhadrappa @ Krishnappa v.State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasiand Ors. (AIR 1985 SC 1224); Balwinder Singh @ Dalbir Singh v.FState of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v.State of M.P. (AIR 1989 SC 1890)] that where a case rests squarelyon circumstantial evidence, the inference of guilt can be justified onlywhen all the incriminating facts and circumstances are found to beincompatible with the innocence of the accused. The circumstances fromGwhich an inference as to the guilt of the accused is drawn have to beproved beyond reasonable doubt and have to be shown to be closelyconnected with the principal fact sought to be inferred from thosecircumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621),it was laid down that where the case depends upon the conclusion drawnfrom circumstances, the cumulative effect of the circumstances mustHbe such as to negate the innocence of the accused and bring the offence home beyond any reasonable doubt. We may also make a reference toa decision of this Court in C. Chenga Reddy and Ors. v. State of A.P.(1996) 10 SCC 193, wherein it has been observed that:

“In a case based on circumstantial evidence, the settled lawis that the circumstances from which the conclusion of guilt isdrawn should be fully proved and such circumstances mustbe conclusive in nature.Moreover, all the circumstances shouldbe complete and there should be no gap left in the chain ofevidence. Further the proved circumstances must be consistentonly with the hypothesis of the guilt of the accused and totally”inconsistent with his innocence.....

[Emphasis supplied]

11. Upon thorough application of the above settled law on thefacts of the present case, we hold that the circumstantial evidence againstthe present appellant i.e. A2 does not conclusively establish the guilt ofA2 in committing the murder of the deceased children. The last seentheory, the arrest of the accused, the recovery of material objects andthe call details produced, do not conclusively complete the chain ofevidence and do not establish the fact that A2 committed the murder ofthe children of PW5. Additionally, the argument of the Respondent thatthe call details produced relating to the phone used by A1 and A2 haveestablished that they shared an intimate relationship and that thisrelationship became the root cause of offence is also unworthy ofacceptance.

12. The High Court fell in grave error when it fallaciously drewdubious inferences from the details of the call records of A1 and A2 thatwere produced before them. The High Court inferred from the call detailsof A2 and A1 that they shared an abnormally close intimate relation.The court further inferred from this, that unless they had been madly inlove with each other, such chatting for hours would not have taken place.The High Court eventually observed that:

“We have to infer that the unusual attraction of A2 towardsA1 had completely blinded his senses, which ultimately causedthe death of minor children. It is quite probablethat A2 wouldhave through that the minor children had been a hurdle forhis close proximity with A1”

[Emphasis supplied]

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AThe above inferences were drawn by the High Court througherroneous extrapolation of the facts, and in our considered opinion, suchconjectures could not have been the ground for conviction of A2.Moreover, the High Court itself observed that “there is no direct evidenceto establish that A1 and A2 had developed illicit intimacy” and inspite of this observation, the court erroneously inferred that the murderBwas caused as an outcome of this alleged illicit intimacy between A1and A2.

13. When a conviction is based solely on circumstantial evidence,such evidence and the chain of circumstances must be conclusive enoughto sustain a conviction. In the present case, the learned counsel of theCappellant has argued that conviction of A2 could not just be upheld solelyon the ground that the prosecution has established a motive via the callrecords. However, we hold that not only is such conviction not possibleon the present scattered and incoherent pieces of evidence, but that theprosecution has not even established the motive of the crime beyondDreasonable doubt. In the present case, the fact that A1 and A2 talked oncall, only proves that they shared a close relationship. However, whatthese records do not prove, is that the murder was somehow in furtheranceof this alleged proximity between A1 and A2. The High Court’s inferencein this regard was a mere dubious conclusion that was drawn in absenceof any cogent or concrete evidence. The High Court itself based itsEinferences on mere probability when it held that “It is quite probablethat A2 would have through that the minor children had been ahurdle for his close proximity with A1”. Moreover, the prosecutionhas also failed to establish by evidence the supposed objective of thesemurders and what was it that was sought to be achieved by such an act.FThe court observed that the act of A2 was inspired by the desire to“exclusively possess” A1. However, it seems improbable that A2 wouldmurder the minor children of PW5 and A1 to increase or protect hisintimacy to A1 rather than eliminate the husband of A1 himself. Hence,the inference drawn by the High Court from the information of call details presented before them suffers from infirmity and cannot be upheld,Gespecially in light of the fact that there is admittedly no direct evidenceto establish such alleged intimacy and that the entire conviction of A2 isbased on mere circumstantial evidence. We cannot uphold a convictionwhich is based upon a probability of infatuation of A2, which in turn isbased on an alleged intimacy between him and A1, which has admittedlyHnot been established by any direct evidence.

14. In the context of the Prosecution’s Last Seen Theory, it isimperative to examine the evidence of PW6 and PW7, since theprosecution claims to have established the theory against A2 on thetestimonies of these two witnesses. In essence, the prosecution tried toestablish the first limb of its Last Seen Theory against A1 through PW10,claiming that A2 and A3 used to visit the house of A1 and hence all threecolluded to commit the murder of the minor children. However, the HighCourt rightly rejected this limb of the theory and held that since theentire attempt to rope A1 in as an accused was based on the testimonyof PW10 and he himself had turned hostile and had come up with a self-contradictory version of his testimony, no portion of his evidence couldbe relied upon.

15. However, where the High Court has erred is that it held thatthe second limb of the prosecution’s Last Seen Theory stands dulyestablished against A2 and A3 through the evidence of PW6 and PW7.PW6 (Amarjit Singh) is the farm servant of PW7 (Gurnaib Singh) whoclaims to have seen A2 and A3 along with the deceased children ofPW5. PW6 deposed that though he was present when the police wasconducting inquest on the dead bodies, he chose not to disclose the factof the presence of A2 and A3 to the police. Rather, PW6 shared thisinformation with PW7 and thereafter both of them proceeded to informthe police about the presence of A2 and A3. However, the High Courterred in not appreciating the numerous contradictions and inconsistenciesthat the evidence of PW6 and PW7 entail. These contradictions andinconsistencies assume capital important in light of the fact that the entireconviction of A2 is based merely on circumstantial evidence, and theyalso render the evidence non-conclusive to establish the guilt of A2.

16. In the context of the abovementioned contradictions andinconsistencies, the following must be noted: Firstly, W6 deposed thatwhen he saw A2 in the field with the two children, he went ahead andmade inquiries from him, to which A2 responded that his associate hasgone to answer the call of nature. PW6 gives no reason in his depositionas to why he went ahead and asked such questions from A2. The needand rational of such line of inquiry is missing from his testimony and thesame appears to be cooked up. Secondly, PW6 did not immediatelydisclose the fact to the police that he had earlier seen A2 and A3 withthe deceased children. More importantly, the story of the prosecution isthat the accused were arrested on 27.09.2009. However, PW6 said in AB

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Ahis testimony said that “the accused were present in the CIA staffwhen I visited there on 25.09.2009”. When the prosecution itself saysthat the police arrested the accused on 27.09.2009, it is not understoodthat how could they have been present in the CIA staff on 25.09.2009.Moreover, PW7 in his testimony stated that when he reached the CIAStaff, A2 and A1 were not present there and he did not ask the police ifBthe accused persons were arrested. Such material contradictions regardingthe arrest of the accused persons make it difficult to believe the evidenceof PA6 and PW7. Thirdly, PW6 explicitly stated that he and PW7 cameto condole the death of the kids to PW5 and that PW5 and PW7 hadprevious relations with each other. On the contrary, PW7 in his testimonyCexplicitly states that he had no acquaintance with the complainant (PW5)and that he and PW6 did not go to condole the death of the kids of PW5.Lastly, the testimonies of PW6 and PW7 also differ on the question ofwhen did they reach the police station to report. PW7 deposed that heand PW6 reached the CIA Staff at 6 PM and remained there only for 2

hours i.e. they left by 8 PM. However, contradicting this, PW6 clearlyDstates that he reached the CIA Staff along with PW7 at 9 PM.

17. In a case where the conviction is solely based on circumstantialevidence, such inconsistencies in the testimonies of the importantwitnesses cannot be ignored to uphold the conviction of A2, especially inlight of the fact that the High Court has already erred in extrapolatingEthe facts to infer a dubious conclusion regarding the existence of a motivethat is rooted in conjectures and probabilities.

18. With respect to the extra judicial confessions, suffice it to saythat the attempt of the respondent herein to rely on that is untenablesince the High Court has taken note of the inconsistences in the evidenceFof PW13 Goverdhan Lal and has rightly rejected his evidence “in toto”.We uphold the judgement of the High Court to the extent that it rejectsthe testimony of PW13 and finds the theory of extra judicial confessionof A2 and A3 to be unnatural.

19. The last piece of evidence against A2 remains the allegedGrecovery of the school bag at the instance of the disclosure statementgiven by A2. However, similar to the other evidence against A2, this alsosuffers from the same inconsistencies and incoherence that makes itdifficult for the such evidence to support the conviction of A2. In thiscontext, it is imperative to understand that there were two bags involvedHin the entire offence, which belonged to the two deceased children. The learned counsel for the respondent has contended that the recovery ofone of such bags was at the instance of the disclosure statement givenby A2. The High Court also has supported its conviction of A2 on thispiece of evidence. However, where the High Court has erred is that itanalysed this evidence in isolation with the other testimonies. However,when the claim of the prosecution is examined in the entire context ofthe other testimonies and evidence, it becomes apparent that even thisevidence of Recovery is not free from contradictions and inconsistencies.For instance, PW6 categorically mentions in his deposition that he observed“two bags” near the dead bodies of the children when he arrived thenext day at the place of the unfortunate incident. He further said that hesaw those two bags in court also. This contradiction is also supported bythe Testimony of PW5 i.e. father of the deceased children himself, whoexplicitly states that “The belongings of the children i.e. clothes, bagsand chapels were recovered from the spot.” He further went on totestify in great detail that “The bags contained exercise books, books,geometry box etc. I bought the bags from the market. I identifiedboth the bags and belongings on 30.09.2009 in the police station”.Hence, it is not understood that when both the bags were recoveredbeside the dead bodies itself on the day of the inquest by police, thenhow could a bag be recovered at the instance of the disclosure statementof A2. Moreover, to add to the inconsistency, PW9 in his testimony statesthat “when I had gone to my field, I found dead bodies of two childrenin my field. Nothing else was lying by their side.” Although theprosecutions maintains that the second bag was recovered at the instanceof A2, the statement of the Investigating Officer (PW12) itself contradictsthe stand of the prosecution. PW12 stated in his testimony that “oneschool bag of Aman Kumar deceased containing books and geometrybox etc. was lifted from the spot.”. As for the second bag, PW12deposed that “Thereafter on 29.09.2009, accused Ranjit Kumar[A3]suffered disclosure statement that one school bag was kept concealedby him in the fields of paddy along with the rope which only heknew and he could get the same recovered.” These contradictionsand inconsistencies in the testimonies of PW6, PW5, PW9 and PW12make the story of the prosecution weak and non-conclusive to hold andestablish the guilt of A2, especially in light of the fact that there is virtuallyno direct evidence to link A2 to the commission of the offence.

20. Lastly, this appeal also raised an important substantive questionof law that whether the call records produced by the prosecution would AB

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Abe admissible under section 65A and 65B of the Indian Evidence Act,given the fact that the requirement of certification of electronic evidencehas not been complied with as contemplated under the Act. Theuncertainty of whether Anvar P.V. vs P.K. Basheer & Ors [(2014) 10SCC 473] occupies the filed in this area of law or whether ShafhiMohammad v. State of Himachal Pradesh (2018) 2 SCC 801 laysBdown the correct law in this regard has now been conclusively settledby this court by a judgement dated 14/07/2020 in Arjun PanditraoKhotkar vs Kailash Kushanrao Gorantyal [ (2020) 7 SCC 1] whereinthe court has held that:

“We may reiterate, therefore, that the certificate required underCSection 65B(4) is a condition precedent to the admissibilityof evidence by way of electronic record, as correctly held inAnvar P.V. (supra), and incorrectly “clarified” in ShafhiMohammed (supra). Oral evidence in the place of suchcertificate cannot possibly suffice as Section 65B(4) is aDmandatory requirement of the law. Indeed, the hallowedprinciple in Taylor v. Taylor (1876) 1 Ch.D 426, which hasbeen followed in a number of the judgments of this Court,can also be applied. Section 65B(4) of the Evidence Act clearlystates that secondary evidence is admissible only if lead inthe manner stated and not otherwise. To hold otherwise wouldErender Section 65B(4) otiose.

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Anvar P.V. (supra), as clarified by us hereinabove, is the lawdeclared by this Court on Section 65B of the Evidence Act.FThe judgment in Tomaso Bruno (supra), being per incuriam,does not lay down the law correctly. Also, the judgment inSLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad(supra) and the judgment dated 03.04.2018 reported as(2018) 5 SCC 311, do not lay down the law correctly and areGtherefore overruled.

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The clarification referred to above is that the requiredcertificate under Section 65B(4) is unnecessary if the originaldocument itself is produced. This can be done by the owner H

of a laptop computer, computer tablet or even a mobile phone,by stepping into the witness box and proving that theconcerned device, on which the original information is firststored, is owned and/or operated by him. In cases where the“computer” happens to be a part of a “computer system” or“computer network” and it becomes impossible to physicallybring such system or network to the Court, then the only meansof providing information contained in such electronic recordcan be in accordance with Section 65B(1), together with therequisite certificate under Section 65B(4).”

21. In light of the above, the electronic evidence produced beforethe High Court should have been in accordance with the statute andshould have complied with the certification requirement, for it to beadmissible in the court of law. As rightly stated above, Oral evidence inthe place of such certificate, as is the case in the present matter, cannotpossibly suffice as Section 65B(4) is a mandatory requirement of thelaw.

22. To conclude, the tripod stand of Motive, Last Seen Theoryand Recovery, that supported the conviction of A2 according to the HighCourt, is found to be non-conclusive and the evidence supporting theconviction of A2 is marred with inconsistencies and contradictions,thereby making it impossible to sustain a conviction solely on suchcircumstantial evidence.

23. Accordingly, the appeal filed by the appellant Ravinder Singh(A2) i.e. Criminal Appeal No.1307 of 2019 is allowed and the impugnedorder of the High Court is set aside to the extent that it convicts A2under section 302 and 364 of the Indian Penal Code. Hence, the convictionof A2 is set aside. However, the acquittal of A1 and A3 by the impugnedorder is upheld. Accordingly, the appeals filed by the Respondent/Stateagainst the impugned order challenging the acquittal of A1 and A3 i.e.Criminal Appeal Nos. 1308-1311 of 2019 are dismissed. Therefore, wedirect that a copy of this order be communicated to the relevant jailauthorities and the appellant i.e. Ravinder Singh (A2) be immediatelyset at liberty, unless his detention is required in any other case.

No order as to costs.

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