Electronic evidence section 65b : Supreme court 2018

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1418 of 2013
SONU @ AMAR
…. Appellant(s)
Versus
STATE OF HARYANA
….Respondent(s)
With
CRIMINAL APPEAL No.1416 of 2013
CRIMINAL APPEAL No. 1653 of 2014
CRIMINAL APPEAL No. 1652 of 2014
J U D G M E N T
L. NAGESWARA RAO, J.
The Appellants in the above appeals along with
Dharmender @ Bunty were found guilty of abduction and
murder of Ramesh Jain. They were convicted and sentenced
for life imprisonment. Their conviction and sentence was
confirmed by the High Court. Accused Dharmender @ Bunty
did not file an appeal before this Court. Accused Rampal was
convicted under Section 328 read with 201 IPC and was
sentenced to 7 years imprisonment. His conviction was also
confirmed by the High Court which is not assailed before us.

1
2. Dinesh Jain (PW-1) approached the SHO, Ganaur Police
Station (PW 31) at 01:30 pm on 26.12.2005 with a complaint
that his father was missing on the basis of which FIR was
registered by PW 31. As per the FIR, Dinesh Jain left the rice
mill at 7:00 pm on 25.12.2005 and went home while his father
stayed back. As his father did not reach home even at 10:00
pm, he called his father’s mobile number and found it to be
switched off. He went to the rice mill and enquired about the
whereabouts of his father from Radhey, the Chowkidar and was
informed that his father left the rice mill at 9:30 pm on his
motor cycle bearing Registration No. DL-8-SY-4510. He along
with his family members searched for his father but could not
trace him. He apprehended that his father might have been
kidnapped.
3. After registration of the FIR, PW 31 started investigation
by visiting the rice mill and making inquiries. On 28.12.2005
one motor cycle was recovered from a pit near Bai crossing. As
the number plate of the vehicle was blurred, PW31 verified the
engine number, compared it with the registration certificate to
find that the seized motor cycle belonged to Ramesh Jain.
4. On 09.01.2006, Dinesh Jain (PW 1) and Ashok Jain (PW 3)
informed PW 31 that a call was received on the mobile phone
of PW 1 from a person who identified himself as Bunty and who
2
was speaking in Bihari dialect. He informed them that Ramesh
Jain was in his custody and demanded a ransom of Rs.1 crore
for his release. They were also asked to purchase another
mobile phone having Delhi network to which future calls would
be made. The Investigating Officer (PW31) visited the rice mill
belonging to deceased Ramesh Jain on 17.01.2006 and met PW
1, PW3 and Dhir Singh (PW 7). They handed over four
threatening letters (Exh.P 1 to P 4), one key ring (Exh.P 9), one
silver ring having a precious stone (Exh.P 10) and a piece of
cloth of a shirt worn by the deceased on 25.12.2005 when he
was kidnapped (Exh.P11). PW 1 and PW 3 informed the
Investigating Officer that Bunty called them and told them that
they would find the key ring, silver ring, a piece of cloth and
cuttings of newspaper near Bai crossing. They collected the
said articles from Bai crossing.

5. The Investigating Officer along with SHO Special Cell,
Rohini, Delhi constituted three raiding parties on 20.01.2006 on
the basis of information that the accused would visit Tibetan
Market. Pawan (A1), Surender (A2) and Dharmender @ Bunty
(A3) were arrested at 11:45 pm when they visited the Tibetan
Market, Delhi in a Maruti car. Their mobile phones and some
cash were recovered from them.
6. On 22.01.2006, Amar @ Sonu (A5) and Parveen (A4) were
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arrested near the bus stand at Ganaur Chowk, GT Road,
Ganaur. Two mobile phones were seized from Sonu (A5).
Parveen @ Titu (A4) suffered a disclosure statement during the
course of investigation that Ramesh Jain was abducted and a
demand of Rs. 1 crore was made from his family members for
his release. Parveen (A4) stated that Ramesh Jain was
murdered and his dead body was buried at Baba Rude Nath
temple in village Kheri Khusnam. In his disclosure statement,
Surender (A2) further disclosed that Dr. Rampal administered
injections to keep Ramesh Jain unconscious. He further
disclosed that Ramesh Jain was murdered on 29.12.2005 and
his dead body was buried in a pit at Baba Rude Nath temple.
Dharmender @ Bunty (A3) and Surender (A2) also suffered
disclosure statements in which they stated that they can
identify the place where Ramesh Jain was murdered and buried.
7. The Investigating Officer was led by Parveen (A4),
Dharmender (A3) and Surender (A2) to Baba Rude Nath temple
in village Kheri Khusnam on 22.01.2006. The room in which
Ramesh Jain was confined and murdered was pointed out by A2
to A4. The dead body of Ramesh Jain was exhumed from the
place identified by A2 and A4. PW1, PW3, PW6 along with
PW11 Jai Chand, SDM were present at the spot from where the
dead body of Ramesh Jain was taken out from the pit.
4
8. On 24.01.2006, a disclosure statement was made by
Parveen (A4) pursuant to which he identified the place where
the key ring of the motor cycle, threatening letters and a ring
of deceased Ramesh Jain were placed near a sign board at the
crossing of village Bai. He further disclosed that he concealed
another ring of Ramesh Jain at his house in village Ghasoli at a
place which he can only identify. Parveen led the police party
to the place where he concealed the golden ring of the
deceased which was identified by PW1 and recovered through
memo Exh.PT/5. Dharmender @ Bunty (A3) led the police
party to a rented room situated at Shashtri Park, Delhi from
where the SIM card of mobile No. 9896351091 belonging to
deceased Ramesh Jain was recovered from a concealed place.
Pursuant to a disclosure statement, he also identified the place
where the motor cycle of deceased was thrown after he was
abducted. On 30.01.2006, Sonu @ Amar suffered a disclosure
statement to the effect that he had concealed the wallet of
Ramesh Jain and certain documents like PAN card, diary, three
electricity bills, two water bills and his photographs underneath
the seat of his shop which were exclusively in his knowledge.
The said documents were seized by the Investigating Officer
from the shop belonging to Sonu @ Amar (A5). The registration
certificate of the motor cycle of deceased Ramesh Jain was
5
recovered from a drawer of the table in the house situated at
Begha Road, Ganaur which was occupied by Pawan (A1)
pursuant to a disclosure statement by him. A country made
pistol with two live cartridges were recovered from the same
room situated at Begha Road on the basis of disclosure
statement made by Surender (A2).
9. Dr. Ram Pal (A6) surrendered in the Court of Sub Divisional
Judicial Magistrate (SDJM), Ganaur on 01.02.2006. He suffered
a disclosure statement on the basis of which a syringe which
was used for giving injections to keep the deceased
unconscious was seized from the roof of Baba Rude Nath
temple, village Kheri Khusnam. A spade was also recovered
from underneath a cot in his house on the basis of his
disclosure statement.
10. The Investigating Officer collected the Call Detail Records
(CDRs) of all the mobile phones that were recovered from the
accused, mobile phones of the deceased and Dinesh Jain (PW
1) from the Nodal officers of the mobile companies.
11. Accused Manish (A7) who is a cousin of Sonu (A5)
surrendered on 12.04.2006 in the Court of SDJM, Ganaur. He is
alleged to have assisted A5 in the abduction. He was acquitted
by the Trial Court which was confirmed by the High Court which
remains unchallenged. The accused were tried for offences
6
punishable under Section 120 B, 364 A, 302, 328 A and 201
read with 120 B of the Indian Penal Code. In addition, A2 was
also charged for committing an offence under Section 25 of the
Arms Act. The Additional Sessions Judge, Sonepat by his
judgment dated 11.10.2010 convicted A1 to A5 for the
aforesaid offences and sentenced them to life imprisonment.
A6 was convicted under Section 328 and 201 of IPC and
sentenced to seven years. All the convicted accused filed
appeals before the High Court. Dinesh Jain (PW 1) filed an
appeal for enhancement of the sentence of the convicted
appellants. He also challenged the acquittal of accused Manish
(A7). The High Court dismissed all the appeals after a detailed
re-appreciation of the material on record. A1, A2, A4 and A5
have approached this Court by filing appeals against the
confirmation of their conviction and sentence.
12. We have carefully examined the entire material on record
and the judgments of the Trial Court and the High Court. The
Trial Court relied on the testimonies of PW1 and PW3, the
recoveries made pursuant to the disclosure statements of the
accused and the CDRs of the mobile phones of the accused,
the deceased and PW 1 to conclude that the prosecution
established that the accused are guilty beyond reasonable
doubt. The Trial Court also discussed the complicity of each of
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the accused threadbare. The High Court re-appreciated the
evidence and placed reliance on the disclosure statements, the
consequential recoveries and the CDRs of the mobile phones to
confirm the findings of the Trial Court.
13. Ramesh Jain left his rice mill at 9:30 pm on 25.12.2005.
His dead body was exhumed from the premises of the temple
in village Kheri Khusnam on the intervening night of
22/23.01.2006. The post mortem examination was conducted
by Dr. Pankaj Jain (PW16) on 23.01.2006. He deposed that the
process of decomposition was in progress. The skin was
peeled off at most places. A muffler was present around the
neck of the dead body. Both wrists and ankles were tied by a
piece of cloth. The hyoid bone was found fractured. In the
opinion of PW 16, Ramesh Jain died of asphyxia. The probable
time of death, according to him, was 3/4 weeks prior to
23.01.2006. He also deposed that the process of
decomposition would be slower during winter. Dinesh Jain
(PW1) deposed that there was a demand of ransom of Rs.1
crore for the release of his father which was made through a
telephone call on 06.01.2006 from a person who identified
himself as Bunty and who was speaking in Bihari dialect. He
also spoke of the calls that were made from the mobile phone
bearing No. 9896351091 belonging to his father on 08.01.2006
8
and 09.01.2006 by which the ransom demands were repeated.
He further stated about the threatening letters received by him
at his shop address. He also deposed that he collected a piece
of shirt worn by his father on the day of his abduction along
with one silver ring and a key ring of the motor cycle of his
father at a place specified in a call received by him on
16.01.2006. He was present when the dead body of his father
was being taken out and he video-graphed the exhumation.
Ashok Jain (PW3) who is the brother of deceased Ramesh Jain,
corroborated the evidence of PW1 regarding the demands that
were made for payment of ransom for the release of Ramesh
Jain.
14. The arrest of A1 to A3 from Tibetan Market, Delhi at 11:45
pm on 20.01.2006 led to several disclosure statements made
by the accused pursuant to which relevant material was
recovered. The details of recoveries made from each of the
accused will be discussed later. The dead body of the
deceased Ramesh Jain was also recovered pursuant to a
disclosure statement made by A2 to A4. The CDRs that were
obtained from the Nodal officers of the telephone companies
which were exhibited in the Court without objection clearly
prove the complicity of all the accused. A detailed and
thorough examination of the number of calls that were made
9
between the accused during the period 25.12.2005 to
20.01.2006 was made by the Courts below to hold the accused
guilty of committing the offences. We do not see any reason to
differ from the conclusions of the Courts below on the basis of
the evidence available on record. Neither do we see any
perversity in the reasons and the conclusion of the Courts
below. The jurisdiction of this Court in criminal appeals filed
against concurrent findings is circumscribed by principles
summarised by this Court in Dalbir Kaur v. State of Punjab,
(1976) 4 SCC 158 ¶ 8, as follows:
“8. Thus the principles governing interference by this
Court in a criminal appeal by special leave may be
summarised as follows:
“(1) that this Court would not interfere with the
concurrent finding of fact based on pure
appreciation of evidence even if it were to take a
different view on the evidence;
(2) that the Court will not normally enter into a
re-appraisement or review of the evidence,
unless the assessment of the High Court is
vitiated by an error of law or procedure or is
based on error of record, misreading of evidence
or is inconsistent with the evidence, for instance,
where the ocular evidence is totally inconsistent
with the medical evidence and so on;
(3) that the Court would not enter into credibility
of the evidence with a view to substitute its own
opinion for that of the High Court;
(4) that the Court would interfere where the High
Court has arrived at a finding of fact in disregard
of a judicial process, principles of natural justice
or a fair hearing or has acted in violation of a
mandatory provision of law or procedure
resulting in serious prejudice or injustice to the
accused;
(5) this Court might also interfere where on the
proved facts wrong inferences of law have been
drawn or where the conclusions of the High Court
10
are manifestly perverse and based on no
evidence.”
15. Admittedly, there is no direct evidence of kidnapping or
the murder of Ramesh Jain. This is a case of circumstantial
evidence. In a catena of cases, this Court has laid down certain
principles to be followed in cases of circumstantial evidence.
They are as under:
1. The circumstances from which an inference of guilt is
sought to be proved must be cogently or firmly
established.
2. The circumstances should be of a definite tendency
unerringly pointing towards the guilt of the accused.
3. The circumstances taken cumulatively must form a
chain so complete that there is no escape from the
conclusion that within all human probability, the
crime was committed by the accused and none else.
4. The circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of the
guilt of the accused and such evidence should not
only be consistent with the guilt of the accused but
should be inconsistent with his innocence.
(See: Shanti Devi v. State of Rajasthan, (2012) 12
SCC 158 ¶10); (See also: Hanumant v. State of
Madhya Pradesh (1952) SCR 1091 (P.1097) Sharad
Birdhichand Sarda v. State of Maharashtra (1984) 4
SCC 116 ¶153).
16. Applying the above principles to the facts of this case, we
find that the following circumstances would lead to the
conclusion of guilt against the accused:
A. The deceased was missing from 23.12.2005 and
his dead body was dug out from the premises of a
temple on 23.01.2006.
B. Demand of ransom for the release of the
11
deceased is proved by the oral testimonies of
PW1 and PW3.
C. Disclosure statements of A2 to A4 and the
recovery of the dead body from the premises of
the temple.
D. Disclosure statements made by the accused
pursuant to which there was recovery of several
articles belonging to the deceased including the
SIM card of his mobile number, wallet containing
his personal belongings, etc.
E. The CDRs of the mobile which clearly show the
interaction of the accused during the period from
25.12.2005 to 20.01.2006 as well as the calls
made to PW1 including the calls made from the
mobile phone of the deceased.
F. The silver ring, key ring of the motor cycle and a
piece of cloth worn by the deceased on
25.12.2005 which were sent to PW1 by the
accused.
17. We deem it proper to consider the submissions made by
the learned counsel for the accused.
A1 – Pawan (Criminal Appeal No.1416 of 2013)
18. The registration certificate of motor cycle No.
DL-8-SY-4510 of the deceased was recovered from A1 pursuant
to the disclosure statement Exh.PDD. The registration
certificate was recovered from the drawer of a table lying in the
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room of his house situated at Begha Road, Ganaur.
19. Mr. D. B. Goswami, learned counsel appearing for A1
submitted that A1 and A4 are brothers. A4 and A2 were
partners in transport business. He submitted that A1 was
arrested from his house in his village Ghasoli, District Sonepat.
He relied upon the evidence of DW 2 and DW 5 in support
thereof. DW2 and DW 5 who are residents of village Ghasoli
deposed that police personnel visited the village around 9 am
in search of Parveen (A4) on 20.01.2006. They stated that A1
accompanied the police to the police station. He travelled in
his own car and the police went in the Govt. Jeep. On the other
hand, the case of the prosecution is that A1 was arrested along
with A2 and A3 at 11:45 PM on 20.01.2006 at Tibetan Market,
Delhi. The police from Rohini Police Station, Delhi were also
involved in the raid pursuant to which A1 was arrested. The
interested testimonies of DW2 and DW5 do not merit
acceptance, especially when the prosecution has proved the
arrest and the subsequent recoveries made pursuant to the
disclosure statement of A1. The learned counsel submitted
that the application filed by A1 to take his voice sample was
rejected by the Trial Court and so he cannot be found fault with
for not giving his voice sample. A1 refused to give his voice
sample when the prosecution moved the Court. Thereafter, A1
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filed an application to take his voice sample and the said
application was disposed of by the Trial Court giving liberty to
A1 to file again after the prosecution evidence was completed.
Therefore, the learned counsel for A1 is wrong in contending
that his application for giving voice samples was rejected by
the Court. The learned counsel further submitted that the
CDRs of the mobile phone of A1 would suggest that he was
making calls only to A2, A3 and A4. He made an attempt to
justify the calls on the ground that A4 was his brother and A2
was his brother’s partner. No justification has been given for
the 28 calls between him and A3 who is from Bihar and who
was making the calls demanding a ransom of Rs.1 crore from
PW 1.
A2 – Surender (Criminal Appeal No.1652 of 2014)
20. A2 was arrested on 20.01.2006 in Tibetan Market, Delhi
along with A1 and A3 and was found to be in possession of a
mobile phone bearing No.9813091701 which was used by him
for conversing with A1, A3 and A4 between 25.12.2005 to
20.01.2006. Three STD booth receipts Exh.P41, P42 and P43
were recovered from A2. These receipts showed calls being
made to mobile No. 9896001906 which belongs to A5 Sonu. He
was a resident of Jhinjhana village and the calls made from the
STD booth with telephone No. 01398257974 pertain to
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Jhinjhana. An amount of Rs.20,000/- was also recovered from
him at the time of his arrest. The said amount was supposed to
have been given to him by A5 Sonu. Pursuant to his disclosure
statement Exh.PCC A2 led the police party to his rented
accommodation at Begha Road, Ganaur and a country made
pistol with two live cartridges .315 bore were recovered in the
presence of PW5 Mohan Lal. He also identified the place of
abduction of Ramesh Jain at Ganaur and the place where the
dead body was buried at Baba Rude Nath temple in village
Kheri Khusnam. Mr. Ram Lal Roy, learned counsel for A2
doubted the recovery of the country made pistol and
cartridges. He submitted that the dead body recovered on
22.01.2006 is that of a priest and not of Ramesh Jain. There is
no foundation laid by the defence in support of this contention.
There is nothing on record to prove that the dead body is that
of a priest. We are of the opinion that the dead body is that of
Ramesh Jain as identified by his relatives. The medical
evidence shows that the skin was peeled off at several places
but the features of the body could easily be made out. PW 16
also deposed that decomposition is slow in winter months. We
have perused the photograph of Ramesh Jain and compared it
with a photograph of the dead body recovered. We are
convinced that the body recovered is that of the deceased
15
Ramesh Jain.
A4 – Parveen @ Titu (Criminal Appeal No.1653 of 2014)
21. The STD booth receipt Exh. P44 showing a call made from
STD booth having No. 01398257974 from Shamli village in
Uttar Pradesh was recovered from A4 at the time of his arrest
on 22.01.2006. As per the receipt, a call was made to mobile
No.9896001906 which belongs to Sonu (A5). Pursuant to the
disclosure statement made by him, he identified the place at
village Bai crossing on GT Road where he kept the key ring of
motor cycle, silver ring belonging to deceased Ramesh Jain and
the threatening letters. A golden ring of the deceased was
also recovered from his residential house at village Ghasoli. He
also made a disclosure statement which led the police to the
place where the deceased was wrongfully confined. His SIM
card with mobile No. 9812016269 was seized from his
residential house. There is sufficient evidence on record to
suggest that he was in constant touch with the other accused.
His mobile phone and the recoveries that were made pursuant
to the disclosure statement would clearly prove his
involvement in the crime.
A5 – Sonu (Criminal Appeal No.1418 of 2013)
22. Mr. Sidharth Luthra, learned Senior Counsel appearing for
A5 submitted that it is highly improbable that A5 was arrested
16
at a bus stop at Ganaur Chowk, GT Road, Ganaur. According to
him, A5 was arrested on 20.01.2006 at 10:15(30) pm from his
house. He relied upon the evidence of DW5 and DW8. We do
not find any substance in the submission that A5 was arrested
on 20.01.2006 itself as it is clear from the testimony of DW8
that no complaint was made regarding the forcible arrest of A5
on 20.01.2006. A disclosure statement was made by A5 which
was marked as Exh.PBB pursuant to which there was a
recovery of the wallet belonging to the deceased from the shop
of A5. A laminated PAN card, one passport size photograph of
the deceased, three electricity bills, two water bills and a small
diary of Jain Mantras bearing title ‘Aanu Purvi’ were recovered
from underneath the seat of his Aarat shop at Ganaur Mandi.
The STD booth receipts which were recovered from A2
Surender and A4 Parveen at the time of their arrest show that
they made calls on the mobile No.9896001906 belonging to A5
on 29th and 30th December, 2005. A5 also received a call from
an STD booth in Patna on 06.01.2006. Pursuant to a disclosure
statement made by him an Indica car bearing No. DL-3CW-2447
which was used in the abduction was seized. The recoveries
made pursuant to the disclosure statements of A5 cannot be
relied upon, according to Mr. Luthra. He referred to the six
disclosure statements made by A5 between 22.01.2006 and
17
04.02.2006. He commented upon the improbability of recovery
of the wallet from underneath his seat at his shop. He also
submitted that the recovery is from a public place accessible to
everybody and so the recoveries made cannot be relied upon.
We disagree with Mr. Luthra as the recovery of the wallet from
underneath his seat is something which is to his exclusive
knowledge though other people might have access to his shop.

23. Mr. Luthra contended that the CDRs are not admissible
under Section 65B of the Indian Evidence Act, 1872 as
admittedly they were not certified in accordance with
sub-section (4) thereof. He placed reliance upon the
judgment of this Court in Anvar P.V. v. P.K. Basheer, (2014)
10 SCC 473 by which the judgment of this Court in State
(NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 was
overruled. In Navjot Sandhu (supra) this court held as
follows:
“Irrespective of the compliance with the requirements of
Section 65-B, which is a provision dealing with
admissibility of electronic records, there is no bar to
adducing secondary evidence under the other provisions
of the Evidence Act, namely, Sections 63 and 65. It may
be that the certificate containing the details in sub-section
(4) of Section 65-B is not filed in the instant case, but that
does not mean that secondary evidence cannot be given
even if the law permits such evidence to be given in the
circumstances mentioned in the relevant provisions,
namely, Sections 63 and 65”.
In Anvar’s case, this Court held as under:
“22. The evidence relating to electronic record, as noted
18
hereinbefore, being a special provision, the general law
on secondary evidence under Section 63 read with
Section 65 of the Evidence Act shall yield to the
same. Generalia specialibus non derogant, special law will
always prevail over the general law. It appears, the court
omitted to take note of Sections 59 and 65-A dealing with
the admissibility of electronic record. Sections 63 and 65
have no application in the case of secondary evidence by
way of electronic record; the same is wholly governed by
Sections 65-A and 65-B. To that extent, the statement of
law on admissibility of secondary evidence pertaining to
electronic record, as stated by this Court in Navjot
Sandhu, does not lay down the correct legal position. It
requires to be overruled and we do so. An electronic
record by way of secondary evidence shall not be
admitted in evidence unless the requirements under
Section 65-B are satisfied. Thus, in the case of CD, VCD,
chip, etc., the same shall be accompanied by the
certificate in terms of Section 65-B obtained at the time of
taking the document, without which, the secondary
evidence pertaining to that electronic record, is
inadmissible.
23. The appellant admittedly has not produced any
certificate in terms of Section 65-B in respect of the CDs,
Exts. P-4, P-8, P-9, P-10, P-12, P-13, P-15, P-20 and P-22.
Therefore, the same cannot be admitted in evidence.
Thus, the whole case set up regarding the corrupt
practice using songs, announcements and speeches fall
to the ground.”
In view of the law laid down in the case of Anvar, Mr. Luthra
submitted that the CDRs are liable to be eschewed from
consideration.
24. Mr. Vivek Sood, learned Senior Counsel appearing for the
State of Haryana submitted that the CDRs were adduced in
evidence without any objection from the defence. He
submitted that the accused cannot be permitted to raise the
point of admissibility of the CDRs at the appellate stage. He
placed reliance on Padman v. Hanwanta, AIR 1915 PC 1 in
19
which the Privy Council held that objections regarding
admissibility of a document must be raised in the Trial Court.
Mr. Sood contended that there can be two classes of objections
regarding admissibility of documents. The first class is that a
document is per se inadmissible in evidence. The second is
where the objection is regarding the method or mode of the
proof of the document. He submitted that the objection of the
accused in this case is regarding the mode or method of proof
as it cannot be said that the CDRs are per se inadmissible in
evidence.
25. Refuting the contentions of the learned senior counsel for
the State, Mr. Luthra submitted that the objection raised by him
pertains to inadmissibility of the document and not the mode of
proof. He urged that the CDRs are inadmissible without the
certificate which is clear from the judgment of this Court in
Anvar’s case. He refers to the judgment of RVE
Venkatachala Gounder v. Arulmigu Visweswaraswami,
(2003) 8 SCC 752 relied upon by the prosecution to contend
that an objection relating to admissibility can be raised even at
the appellate stage. Mr. Luthra also argued that proof required
in a criminal case cannot be waived by the accused. He relied
upon a judgment of the Privy Council in Chainchal Singh v.
King Emperor, AIR 1946 PC 1 in which it was held as under:
20
“In a civil case, a party can, if he chooses, waive
the proof, but in a criminal case strict proof ought
to be given that the witness is incapable of giving
evidence”
He further relied upon the judgment of a Full Bench of the
Bombay High Court in Shaikh Farid v. State of
Maharashtra, 1983 CrLJ 487. He also submitted that
Section 294 Cr. P.C. which is an exception to the rule as to
mode of proof has no application to the facts of the present
case.
26. That an electronic record is not admissible unless it is
accompanied by a certificate as contemplated under Section
65B (4) of the Indian Evidence Act is no more res integra. The
question that falls for our consideration in this case is the
permissibility of an objection regarding inadmissibility at this
stage. Admittedly, no objection was taken when the CDRs
were adduced in evidence before the Trial Court. It does not
appear from the record that any such objection was taken even
at the appellate stage before the High Court. In Gopal Das v.
Sri Thakurji, AIR 1943 PC 83, it was held that:
“Where the objection to be taken is not that the
document is in itself inadmissible but that the mode of
proof put forward is irregular or insufficient, it is essential
that the objection should be taken at the trial before the
document is marked as an exhibit and admitted to the
record. A party cannot lie by until the case comes before
a Court of Appeal and then complain for the first time of
the mode of proof.”

In RVE Venkatachala Gounder, this Court held as follows:
21
“Ordinarily an objection to the admissibility of evidence
should be taken when it is tendered and not subsequently.
The objections as to admissibility of documents in
evidence may be classified into two classes: (i) an
objection that the document which is sought to be proved
is itself inadmissible in evidence; and (ii) where the
objection does not dispute the admissibility of the
document in evidence but is directed towards the mode
of proof alleging the same to be irregular or insufficient.
In the first case, merely because a document has been
marked as ‘an exhibit’, an objection as to its admissibility
is not excluded and is available to be raised even at a
later stage or even in appeal or revision. In the latter
case, the objection should be taken before the evidence is
tendered and once the document has been admitted in
evidence and marked as an exhibit, the objection that it
should not have been admitted in evidence or that the
mode adopted for proving the document is irregular
cannot be allowed to be raised at any stage subsequent
to the marking of the document as an exhibit. The later
proposition is a rule of fair play. The crucial test is
whether an objection, if taken at the appropriate
point of time, would have enabled the party
tendering the evidence to cure the defect and
resort to such mode of proof as would be regular.
The omission to object becomes fatal because by
his failure the party entitled to object allows the
party tendering the evidence to act on an
assumption that the opposite party is not serious
about the mode of proof. On the other hand, a
prompt objection does not prejudice the party
tendering the evidence, for two reasons: firstly, it
enables the Court to apply its mind and pronounce
its decision on the question of admissibility then
and there; and secondly, in the event of finding of
the Court on the mode of proof sought to be
adopted going against the party tendering the
evidence, the opportunity of seeking indulgence of
the Court for permitting a regular mode or method
of proof and thereby removing the objection raised
by the opposite party, is available to the party
leading the evidence. Such practice and procedure is
fair to both the parties. Out of the two types of objections,
referred to hereinabove, in the later case, failure to raise
a prompt and timely objection amounts to waiver of the
necessity for insisting on formal proof of a document, the
document itself which is sought to be proved being
admissible in evidence. In the first case, acquiescence
would be no bar to raising the objection in superior
22
Court.” [Emphasis supplied]
It would be relevant to refer to another case decided by this
Court in PC Purshothama Reddiar v. S Perumal, (1972) 1
SCC 9. The earlier cases referred to are civil cases while this
case pertains to police reports being admitted in evidence
without objection during the trial. This Court did not permit
such an objection to be taken at the appellate stage by holding
that:
“Before leaving this case it is necessary to refer to one of the
contentions taken by Mr. Ramamurthi, learned Counsel for the
respondent. He contended that the police reports referred to
earlier are inadmissible in evidence as the Head-constables
who covered those meetings have not been examined in the
case. Those reports were marked without any objection. Hence
it is not open to the respondent now to object to their
admissibility.”
27. It is nobody’s case that CDRs which are a form of
electronic record are not inherently admissible in evidence.
The objection is that they were marked before the Trial Court
without a certificate as required by Section 65B (4). It is clear
from the judgments referred to supra that an objection relating
to the mode or method of proof has to be raised at the time of
marking of the document as an exhibit and not later. The
crucial test, as affirmed by this Court, is whether the defect
could have been cured at the stage of marking the document.
Applying this test to the present case, if an objection was taken
to the CDRs being marked without a certificate, the Court could
23
have given the prosecution an opportunity to rectify the
deficiency. It is also clear from the above judgments that
objections regarding admissibility of documents which are per
se inadmissible can be taken even at the appellate stage.
Admissibility of a document which is inherently inadmissible is
an issue which can be taken up at the appellate stage because
it is a fundamental issue. The mode or method of proof is
procedural and objections, if not taken at the trial, cannot be
permitted at the appellate stage. If the objections to the mode
of proof are permitted to be taken at the appellate stage by a
party, the other side does not have an opportunity of rectifying
the deficiencies. The learned Senior Counsel for the State
referred to statements under Section 161 of the Cr. P.C. 1973 as
an example of documents falling under the said category of
inherently inadmissible evidence. CDRs do not fall in the said
category of documents. We are satisfied that an objection that
CDRs are unreliable due to violation of the procedure
prescribed in Section 65 B (4) cannot be permitted to be raised
at this stage as the objection relates to the mode or method of
proof.
28. Another point which remains to be considered is whether
the accused is competent to waive his right to mode of proof.
Mr. Luthra’s submission is that such a waiver is permissible in
24
civil cases and not in criminal cases. He relies upon a
judgment of the Privy Council in Chainchal Singh’s case in
support of the proposition. The Privy Council held that the
accused was not competent to waive his right. Chainchal
Singh’s case may have no application to the case in hand at
all. In that case, the issue was under Section 33 of the
Evidence Act, and was whether evidence recorded in an earlier
judicial proceeding could be read into, or not. The question
was whether the statements made by a witness in an earlier
judicial proceeding can be considered relevant for proving the
truth or facts stated in a subsequent judicial proceeding.
Section 33 of the Evidence Act allows for this inter alia where
the witness is incapable of getting evidence in the subsequent
proceeding. In Chainchal Singh, the accused had not
objected to the evidence being read into in the subsequent
proceeding. In this context, the Privy Council held that in a civil
case, a party can waive proof but in a criminal case, strict proof
ought to be given that the witness is incapable of giving
evidence. Moreover, the judge must be satisfied that the
witness cannot give evidence. Chainchal Singh also held
that:
“In a civil case a party can, if he chooses, waive the
proof, but in a criminal case strict proof ought to be
given that the witness is incapable of giving
evidence”.
25
The witness, who had deposed earlier, did not appear in the
subsequent proceeding on the ground that he was unable to
move from his house because of tuberculosis, as deposed by
the process server. There was no medical evidence in this
regard. The Court observed that the question of whether or not
he was incapable of giving evidence must be proved in this
context, and in the proof of such a fact it was a condition that
statements given in an earlier proceeding can be taken as
proved in a subsequent proceeding. Chainchal Singh’s case
therefore, does not lay down a general proposition that an
accused cannot waive an objection of mode of proof in a
criminal case. In the present case, there is a clear failure to
object to the mode of proof of the CDRs and the case is
therefore covered by the test in R.V.E. Venkatachala
Gounder.
29. We proceed to deal with the submission of Mr. Luthra that
the ratio of the judgment of the Bombay High Court in Shaikh
Farid’s case is not applicable to the facts of this case. It was
held in Shaikh Farid’s case as under:
“6. In civil cases mode of proof can be waived by the
person against whom it is sought to be used. Admission
thereof or failure to raise objection to their tendering in
evidence amount to such waiver. No such waiver from
the accused was permissible in criminal cases till the
enactment of the present Code of Criminal Procedure in
26
1973. The accused was supposed to be a silent spectator
at the trial, being under no obligation to open his mouth
till the occasion to record his statement under section
342 (present S. 313) of the Code arose. Even then he
was not bound to answer and explain the circumstances
put to him as being appearing against him. In the case
of Chainchal Singh v. Emperor AIR 1946 PC 1 it was held
by the Privy Council that the accused was not competent
to waive his right and the obligation of the prosecution to
prove the documents on which the prosecution relied.
Resultantly, the prosecution was driven to examine
witnesses even when the accused was not interested in
challenging the facts sought to be proved though them.
The inconvenience and the delay was avoidable.
7. Section 294 of the Code is introduced to dispense with
this avoidable waste of time and facilitate removal of
such obstruction in the speedy trial. The accused is now
enabled to waive the said right and save the time. This is
a new provision having no corresponding provision in the
repealed Code of Criminal Procedure. It requires the
prosecutor or the accused, as the case may be, to admit
or deny the genuineness of the document sought to be
relied against him at the outset in writing. On his
admitting or indicating no dispute as to the genuineness,
the Court is authorised to dispense with its formal proof
thereof. In fact after indication of no dispute as to the
genuineness, proof of documents is reduced to a sheer
empty formality. The section is obviously aimed at
undoing the judicial view by legislative process.
8. The preceding Section 293 of the Code also dispenses
with the proof of certain documents. It corresponds
with Section 510 of the repealed Code of Criminal
Procedure. It enumerates the category of documents,
proof of which is not necessary unless the Court itself
thinks it necessary. Section 294 makes dispensation of
formal proof dependent on the accused or the
prosecutor, not disputing the genuineness of the
documents sought to be used against them. Such
contemplated dispensation is not restricted to any class
or category of documents as under section 293, in which
ordinarily authenticity is dependent more on the
mechanical process involved than on the knowledge,
observation or the skill of the author rendering oral
evidence just formal. Nor it is made dependent on the
relative importance of the document or probative value
thereof. The documents being primary or secondary or
substantive or corroborative, is not relevant for
27
attracting Sec. 294 of the Code. Not disputing its
genuineness is the only solitary test therefor.
9. Now the post-mortem report is also a document as
any other document. Primary evidence of such a
document is the report itself. It is a contemporaneous
record, prepared in the prescribed form, of what the
doctor has noticed in the course of post-mortem of the
dead body, while investigation the cause of the death. It
being relevant, it can be proved by producing the same.
But production is only a step towards proof of it. It can be
received in evidence only on the establishment of its
authenticity by the mode of its proof as provided
under sections 67 to 71 of the Evidence Act. Section
294(1) of the Code enables the accused also, to waive
this mode of proof, by admitting it or raising no dispute
as to its genuineness when called upon to do so under
sub-section (1). Sub-section (3) enables the Court to read
it in evidence without requiring the same to be proved in
accordance with the Evidence Act. There is nothing
in Section 294 to justify exclusion of it, from the purview
of “documents” covered thereby. The mode of proof of it
also is liable to be waived as of any other document.”
30. Section 294 of the Cr. P.C. 1973 provides a procedure for
filing documents in a Court by the prosecution or the accused.
The documents have to be included in a list and the other side
shall be given an opportunity to admit or deny the genuineness
of each document. In case the genuineness is not disputed,
such document shall be read in evidence without formal proof
in accordance with the Evidence Act. The judgment in Shaikh
Farid’s case is not applicable to the facts of this case and so,
is not relevant.
The Effect of Overrule
31. Electronic records play a crucial role in criminal
28
investigations and prosecutions. The contents of electronic
records may be proved in accordance with the provisions
contained in Section 65B of the Indian Evidence Act.
Interpreting Section 65B (4), this Court in Anvar’s case held
that an electronic record is inadmissible in evidence without
the certification as provided therein. Navjot Sandhu’s case
which took the opposite view was overruled.
32. The interpretation of Section 65B (4) by this Court by a
judgment dated 04.08.2005 in Navjot Sandhu held the field
till it was overruled on 18.09.2014 in Anvar’s case. All the
criminal courts in this country are bound to follow the law as
interpreted by this Court. Because of the interpretation of
Section 65B in Navjot Sandhu, there was no necessity of a
certificate for proving electronic records. A large number of
trials have been held during the period between 04.08.2005
and 18.09.2014. Electronic records without a certificate might
have been adduced in evidence. There is no doubt that the
judgment of this Court in Anvar’s case has to be retrospective
in operation unless the judicial tool of ‘prospective overruling’
is applied. However, retrospective application of the judgment
is not in the interests of administration of justice as it would
necessitate the reopening of a large number of criminal cases.
Criminal cases decided on the basis of electronic records
29
adduced in evidence without certification have to be revisited
as and when objections are taken by the accused at the
appellate stage. Attempts will be made to reopen cases which
have become final.
33. This Court in IC Golak Nath v. State of Punjab, (1967)
2 SCR 762 held that there is no acceptable reason why it could
not restrict the operation of the law declared by it to the future
and save transactions that were effected on the basis of earlier
law. While referring to the doctrine of prospective overruling as
expounded by jurists George F. Canfield, Robert Hill Freeman,
John Henry Wigmore and Cardozo, this Court held that when a
subsequent decision changes an earlier one, the latter decision
does not make law but rather discovers the correct principle of
law and the result is that it is necessarily retrospective in
operation. As the law declared by this Court is the law of land,
it was held that there is no reason why this Court declaring the
law in supersession of the law declared by it earlier cannot
restrict the operation of the law as declared to the future and
save transactions that were affected on the basis of earlier law.
While so holding, this Court in Golak Nath laid down the
following propositions:
“(1) The power of the Parliament to amend the
Constitution is derived from Articles 245, 246 and 248 of
the Constitution and not from Article 368 thereof which
30
only deals with procedure. Amendment is a legislative
process.
(2) Amendment is ‘law’ within the meaning of Article
13 of the Constitution and, therefore, if it takes away or
abridges the rights conferred by Part III thereof, it is void.
(3) The Constitution (First Amendment) Act, 1951,
Constitution (Fourth Amendment) Act, 1955, and, the
Constitution (Seventeenth Amendment) Act, 1964,
abridge the scope of the fundamental rights. But, on the
basis of earlier decisions of this Court, they were valid.”
While taking note of the doctrine of ‘prospective overruling’ in
the United States, this Court referred to the decisions
concerning the admissibility of evidence obtained by
unreasonable search and seizure. In Weeks v. United
States, 232 U.S. 383 (1914), the US Supreme Court held
that evidence obtained by an unreasonable search and seizure
has to be excluded in criminal trials. In 1949, the US Supreme
Court in Wolf v. Colorado, 338 U.S. 25 (1949) held that the
rule of exclusion laid down in Weeks did not apply to
proceedings in State Courts. The judgment in Wolf was over
ruled in Mapp v. Ohio, 367 U.S. 643 (1961). Subsequently,
the US Supreme Court applied the doctrine of prospective
overruling in Linkletter v. Walker, 381 U.S. 618 (1965) as it
was of the opinion that if Mapp was applied retrospectively it
would affect the interest of the administration of justice and the
integrity of the judicial process.
34. The effect of overrule of a judgment on past transactions
31
has been the subject matter of discussion in England as well. In
R. v. Governor of H.M. Prison Brockhill, ex p. Evans (No.
2), [2000] 4 All ER 15, Lord Slynn dealing with the principle
of prospective over ruling observed as under:
“The judgment of the Divisional Court in this case follows
the traditional route of declaring not only what was the
meaning of the section at the date of the judgment but
what was always the correct meaning of the section. The
court did not seek to limit the effect of its judgment to the
future. I consider that there may be situations in which it
would be desirable, and in no way unjust, that the effect
of judicial rulings should be prospective or limited to
certain claimants. The European Court of Justice, though
cautiously and infrequently, has restricted the effect of its
ruling to the particular claimant in the case before it and
to those who had begun proceedings before the date of
its judgment. Those who had not sought to challenge
the legality of acts perhaps done years before
could only rely on the ruling prospectively. Such a
course avoided unscrambling transactions perhaps
long since over and doing injustice to defendants.”
[Emphasis supplied]

35. This Court did not apply the principle of prospective
overruling in Anvar’s case. The dilemma is whether we
should. This Court in K. Madhav Reddy v. State of Andhra
Pradesh, (2014) 6 SCC 537 held that an earlier judgment
would be prospective taking note of the ramifications of its
retrospective operation. If the judgment in the case of Anvar is
applied retrospectively, it would result in unscrambling past
transactions and adversely affecting the administration of
justice. As Anvar’s case was decided by a Three Judge Bench,
propriety demands that we refrain from declaring that the
32
judgment would be prospective in operation. We leave it open
to be decided in an appropriate case by a Three Judge Bench.
In any event, this question is not germane for adjudication of
the present dispute in view of the adjudication of the other
issues against the accused.
36. For the aforementioned reasons, the judgment of the High
Court confirming the Trial Court is upheld. The appeals are
dismissed.
..…………………………..J
[S. A. BOBDE]

……………………………..J
[L. NAGESWARA RAO]
New Delhi,
July 18, 2017
33