Mumtaj Ansari vs State Of Chhattisgarh

Conviction,Sentence

Under Section 302 of the Indian Penal Code (for short 'the

IPC')","Life imprisonment and fine amount of Rs.2000/- and, in

default of payment of fine amount, further Rigorous

Imprisonment for 3 months

Under Section 363 and 364-A IPC,"Life imprisonment and fine amount of Rs.2000/- under

Section 364-A IPC and, in default

him on his mobile phone and demanded ransom amount of Rs.3 lakhs in order to release their daughter. Upon hearing the said fact, she went to her",

neighbour's house but did not get any information about her daughter Mithali. In her cross-examination, she has stated that when her husband was",

saying about the alleged message, the accused was trying to snatch the mobile from him and has stated further that she came to know from her",

husband on the next day that the accused has thrown her daughter into the river.,

Chhotelal (P.W.3) was also on duty at the relevant time when complainant had received the alleged call from an unknown person. After receiving,

the alleged call, the complainant Premuram Thakur informed that his daughter has been abducted by some unknown person and is demanding ransom",

amount of Rs.3 lakhs in order to get his daughter freed. In his cross-examination, he has stated that the accused while in custody informed about",

throwing the child into the river. They have made search about the girl but they could not find her.,

Lakshram Verma (P.W.4) is a mobile shopkeeper, has stated in his evidence that the alleged so called SIM bearing its No. 7898886050 was",

purchased by the accused from him. Mukesh Kumar Bhargav (P.W.5) is a hearsay witness as he heard from his brother Devendra on phone that,

complainant's daughter has been abducted by someone, who was demanding ransom amount of Rs.3 lakhs for release of the said girl. He has stated",

further that Bhupendra (appellant) contacted him on his mobile for deleting the alleged message. He has asked for the reasons of its deletion, but he",

did not inform anything, however, later on told that he has committed a mistake that he demanded ransom amount from Mithali's father through SMS",

that he had abducted his daughter and informed further that she is in his safe custody and assured to make her available on the next day morning but,

he did not relieve her.,

Devendra Bhargav (P.W.6) has stated in his evidence that daughter's mother came to his house and informed him that her daughter Mithali was,

kidnapped by someone. They made a search about her but could not find. Shiv Kumar (P.W.7) is a formal witness as he came to know that someone,

has abducted complainant's daughter. Mohan Yadav (P.W.8) is also a formal witness. Ashish Kashyap (P.W.9) has stated in his evidence that he,

came to know that accused has abducted one girl. B.L.Patel (P.W.10) also came to know from the complainant that his daughter has been abducted,

by someone. These witnesses are thus hearsay witnesses.,

Gitram Thakur (P.W.11), brother-in-law of the complainant Premuram Thakur is a witness to the disclosure statement (Ex.P.7) of the accused, at",

whose instance, the motorcycle and alleged white mobile set were seized vide Ex.P.8. He is the witness of spot map (Ex.P.9) of the place where the",

said girl was said to have been thrown away by the accused and also the witness of Panchnama (Ex.P.10) when the body of girl was not recovered,

despite search being made.,

Jitendra Singh (P.W.12) is a witness from whom the alleged call details report (Ex.P.11), pertaining to alleged SMS sent from accused by his",

mobile No.7898886050 to complainant's mobile bearing No.9752876469, was recovered. Mohammad Toufiq (P.W.13) is the witness of seizure memo",

(Ex.P.11). K.R. Koshley (P.W.14), Satish Kumar (P.W.15) and Rajendra Shrivastav (P.W.17) are the part of investigation of the matter and have",

assisted the prosecution case.,

Manoj Kumar Ajgalle (P.W.16) is a photocopier who has stated in his evidence that he got the copy of print vide Ex.P.18 pertaining to the alleged,

message sent on 08.09.2011 from accused's mobile bearing No.7898886050 (Article A.4) to complainant's mobile bearing No. 9752876469 (Article,

A.1) and handed over it to the investigating agency. He has stated further that a copy of print (Ex.P.18 A and P.18,

C) pertaining to the alleged message recovered through the Court's computer from mobile bearing No.9752876469 (Article A.1) which was sent to,

this number from mobile bearing No.7898886050 (Article A.4) and likewise, the copy of print (Ex.P.18 B & P.18 D) pertaining to the message, which",

was sent from accused's alleged mobile No.7898886050 (Article A.4) was tallied and was found correct. This witness has thus supported the,

prosecution case.,

The entire prosecution case, as reflected from the aforesaid evidence, would show that the complainant Premuram Thakur, a Junior Engineer was",

on duty on the fateful day, i.e., 08.09.2011 when he had received a phone call at 09.15 PM on his mobile bearing No.9752876469 from an unknown",

person demanding ransom amount of Rs.3 lakhs from him in order to release his daughter, namely, Mithali, aged about 5 ½ years old. Further",

prosecution evidence would reveal that after sometime, he had received SMS in this regard from the said mobile phone again and it was saved by the",

complainant in his mobile bearing No.9752876469 seized from him vide seizure memo (Ex.P.3). The alleged message/call details was thereafter got,

printed vide Ex.P.18. A bare perusal of it, would show that the alleged SMS/Call details was sent from mobile bearing No.7898886050 to",

complainant's mobile bearing No.9752876469 andb it was recovered from the appellant vide seizure memo (Ex.P.8) based upon his disclosure,

statement (Ex.P.7). Thus, a material link regarding the alleged communication demanding ransom amount from the complainant for releasing his",

daughter Mithali is duly established.,

Shri N.S.Dhurandhar, learned counsel for the appellant at this juncture has questioned the authenticity of the alleged SMS/Call details (Ex.P.8) by",

placing his reliance upon the principles laid down by the Supreme Court in the matter of Anvar P.V. v. P.K.Basheer and others (supra) by submitting,",

inter alia, that since it was not accompanied by the certificate as required mandatorily under sub-section (4) of Section 65-B of the Evidence Act,",

therefore, it has no evidentiary value and based upon such a weak circumstantial evidence, the conviction of the appellant cannot be sustainable in",

relation to the crime in question.,

We have examined the aforesaid contention and the principles laid down in the said judgment as relied upon by the appellants. It is true that the,

alleged 'SMS/Call details' (Ex.P.18) are not accompanied by a certificate as required under Section 65-B (4) of the Indian Evidence Act, 1872, but",

merely on this ground and particularly when its admissibility was not objected during trial, the authenticity of it cannot be doubted. In a similar situation,",

the Supreme Court recently in the matter of Sonu alias Amar v. State of Haryana, AIR 2017 SC 3441 has held that when Call Details Records",

(CDR), which are not accompanied by a certificate, are not reliable due to violation of the procedure prescribed in Section 65-B(4) of the Indian",

Evidence Act, 1872, but its reliability cannot be permitted to be raised when it was admitted in evidence without any objection. While considering the",

said issue, it has been observed at paragraphs 26, 27 and 30, which read as under:-",

“26. That an electronic record is not admissible unless it is accompanied by a certificate as contemplated under Section 65-B (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 (AIR 2003 SC 4548), this Court held as follows:",

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 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: (AIR 1972 SC 608). 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.""",

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 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.,

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",

(1983 CriLJ 487 (Bom) (FB)) is not applicable to the facts of this case and so, is not relevant. The Effect of Overrule â€​",

By applying the aforesaid principles to the case in hand, the contention raised by the learned counsels for the appellant based upon the said case",

law, i.e., Anvar P.V. vs. P.K.Basheer and others (supra) is noted to be rejected as the alleged 'SMS/Call details' (Ex.P.18) was duly exhibited and",

admitted in evidence without any objection being raised during the trial.,

Consequently, we do not find any substance in this appeal. The appeal is accordingly dismissed.",