Vikki @ Bharat vs State Of Chhattisgarh
2022 Latest Caselaw 7484 Chatt

                                              Cr.A.Nos.279/2012, 278/2012 & 272/2012

                                        Page 1 of 23

                                                                                        AFR

              HIGH COURT OF CHHATTISGARH, BILASPUR

                          Criminal Appeal No.279 of 2012

{Arising out of judgment dated 20-1-2012 in Sessions Trial No.52/2011
                 of the Additional Sessions Judge, Balod}

Vikki @ Bharat, S/o Kriparam Sahu, aged about 26 years, R/o Dipak
Nagar, Durg, Gali No.5, P.S. Mohannagar, Durg (C.G.)
                                                     ---- Appellant

                                              Versus

State of Chhattisgarh, Through the Police Station Rajhara, District
Durg (C.G.)
                                                   ---- Respondent

                          Criminal Appeal No.278 of 2012

Ajay Singh, S/o Santosh Kumar Singh, aged about 24 years, R/o
Harinagar, Katulbod, P.S. Mohannagar, Durg (C.G.)
                                                  ---- Appellant

                                              Versus

State of Chhattisgarh, Through the Police Station Rajhara, District
Durg (C.G.)
                                                   ---- Respondent

                                            AND

                          Criminal Appeal No.272 of 2012

Shahid Ali, S/o Badarujama Musalman, age 28 years, R/o Raipur
Naka, Durg, Double Story, Q.No.57, P.S. Kotwali, Durg (C.G.)
                                                         ---- Appellant

                                              Versus

State of Chhattisgarh, through Police Station Rajhara, District Durg
(C.G.)
                                                    ---- Respondent

----------------------------------------------------------------------------------------------
For Appellants in Cr.A.Nos.279/2012 & 278/2012: -
                       Mr. Shikhar Sharma, Advocate.
For Appellant in Cr.A.No.272/2012: -
                       Mr. Aditya Khare, Advocate.
                                               Cr.A.Nos.279/2012, 278/2012 & 272/2012

                                        Page 2 of 23

For State / Respondent: -
                       Mr. Sudeep Verma, Deputy Government Advocate.
----------------------------------------------------------------------------------------------

                      Hon'ble Shri Sanjay K. Agrawal and
                    Hon'ble Shri Rakesh Mohan Pandey, JJ.

Judgment On Board (13/12/2022)

Sanjay K. Agrawal, J.

1. Sole appellant namely, Vikki @ Bharat (A-1) in Cr.A.

No.279/2012; sole appellant namely, Ajay Singh (A-2) in Cr.A.

No.278/2012; and sole appellant namely, Shahid Ali (A-3) in

Cr.A.No.272/2012, have preferred these appeals under Section

374(2) of the CrPC feeling aggrieved and dissatisfied with the

impugned judgment dated 20-1-2012 passed by the Additional

Sessions Judge, Balod, in Sessions Trial No.52/2011, by which

the learned Additional Sessions Judge has convicted and

sentenced the appellants in the following manner: -

Conviction Sentence Sec. 147 read with Sec. Rigorous imprisonment for two years 149 of the IPC

Sec. 364 read with Sec. Imprisonment for life and fine of ₹ 50/- 149 read with Sec. each, in default, additional rigorous 120B of the IPC imprisonment for three months

Sec. 302 read with Sec. Imprisonment for life and fine of ₹ 50/- 149 read with Sec. each, in default, additional rigorous 120B of the IPC imprisonment for three months

Sec. 201 of the IPC Rigorous imprisonment for two years and fine of ₹ 50/- each, in default, additional rigorous imprisonment for three months Cr.A.Nos.279/2012, 278/2012 & 272/2012

2. Since all the three criminal appeals have arisen out of one and

same judgment dated 20-1-2012 passed by the Additional

Sessions Judge, Balod, in one Sessions Trial No.52/2011 and

since common question of fact and law is involved in all the three

appeals, they have been clubbed together, heard together and

are being disposed of by this common judgment.

3. Case of the prosecution, in short, is that in between 10-5-2010

and 2-6-2010, near Sirpur Lohara Nala, Police Station

Dondilohara, the three appellants herein in furtherance of their

common object and in furtherance of their conspiracy, constituted

unlawful assembly and abducted Dr. Avinash Ramteke and in

order to commit his murder, taken him in the Bolero vehicle

bearing registration No.CG-04/ZF-7777 and thereafter,

strangulated him and after causing his murder, in order to screen

themselves of the aforesaid offences, burnt the dead body.

Further case of the prosecution is that on 10-5-2010 at 07.00

p.m., Dr. Avinash Ramteke left his home from Kusumkasa,

Rajhara, Durg to visit Rajnandgaon, but he could reach

Rajnandgaon till evening which led to lodging of missing report

(unexhibited) by his father D.K. Ramteke (PW-9), of his son Dr.

Avinash Ramteke to Police Station Rajhara, District Durg on 10-

5-2010 pursuant to which first information report bearing Crime

No.92/2010 was registered on 21-5-2010 against unknown

person vide Ex.P-25.

4. It is also the case of the prosecution that marriage of deceased Cr.A.Nos.279/2012, 278/2012 & 272/2012

Dr. Avinash Ramteke was about to solemnize with Devi Vaidya -

sister of Keyur Vaidya (PW-5) on 16-5-2010, but before marriage

could be solemnized, Dr. Avinash Ramteke went missing on 10-

5-2010 and thereafter, Devi Vaidya along with one Sudhish Singh

was missing on 24-5-2010. As per the statement of Keyur

Vaidya (PW-5), his sister along with Sudhish Singh was found

dead in a hotel at Shimla (Himachal Pradesh) on 21-6-2010. His

statement also reveals that Devi Vaidya & Sudhish Singh were

already married much prior than Devi Vidya was about to marry

Dr. Avinash Ramteke, vide Ex.P-15 which has been proved by

J.P. Gauthiya (PW-4). As per the statement of D.D. Chandrakar

(PW-14), who is the investigating officer in the present case, he

has obtained morgue diary report from Medical College, Shimla,

but, thereafter, nothing was done in the matter of death of Devi

Vaidya & Sudhish Singh.

5. During the course of investigation, on 2-6-2010, the police

received information of a dead body in the jungle proximate to

Singhpura, Mohara Nala and registered dehati morgue intimation

at zero vide Ex.P-26A at around 04.00 p.m. and consequently,

morgue was also registered as Morgue No.26/2010 vide Ex.P-27

on the same day i.e. on 2-6-2010 at around 04.00 p.m. and on

the same day, panchnama of the dead body / part of skeleton

was drawn vide Ex.P-29. D.K. Ramteke (PW-9) - father of Dr.

Avinash Ramteke, identified the dead body through his burnt

socks vide Ex.P-20. Immediately thereafter, the police Cr.A.Nos.279/2012, 278/2012 & 272/2012

apprehended and arrested appellant Vikki @ Bharat (A-1) on 2-6-

2010 and recorded his memorandum statement vide Ex.P-4 at

08.00 a.m.. Dead body of a human / skeleton was recovered

from the jungle proximate to Singhpura, Mohara Nala vide Ex.P-9

at around 03.00 p.m. on the same day. One Samsung mobile

having IMEI No.325991401069414 along with SIM

No.9626803495 was also seized from appellant Vikki @ Bharat

(A-1) vide Ex.P-10. The police also took appellant Ajay Singh (A-

2) into custody and recorded his memorandum statement vide

Ex.P-3 on 2-6-2010 at 08.30 a.m. and on the strength of the said

memorandum statement, seizure memo vide Ex.P-11 was

prepared wherein two empty bottles of water carrying petrol for

burning the dead body of the deceased was also seized. The

police also recovered a Nokia mobile handset containing SIM

from appellant Ajay Singh (A-2) vide seizure memo Ex.P-5.

Memorandum statement of appellant Shahid Ali (A-3) was also

recorded on 12-6-2010 vide Ex.P-24 pursuant to which mobile of

Shahid Ali of ZTE model bearing SIM No.9300237258 was

recovered vide Ex.P-25.

6. The police also seized soil from the spot and burnt cloths

belonging to the deceased vide Ex.P-12 and sent the same for

chemical examination to the State Judicial Forensic Science

Laboratory, Raipur vide Exs.P-31 & P-32. Bones so recovered

were sent to Dr. R.K. Singh (PW-11) who examined the same

and submitted his report Ex.P-23 and came to the conclusion that Cr.A.Nos.279/2012, 278/2012 & 272/2012

the said bones were morphological bones which show human

bones' character, sex - male in character, age at the time of

death - 30 years ± 5 years, fractures present on bones were

caused with hard & blunt object, and height about 6 feet ± 2

inches, however, he said that cause of death could not be

ascertained.

7. The investigating officer after completion of investigation, charge-

sheeted the three appellants herein before the jurisdictional

criminal court from where the case was committed to the court of

sessions for hearing and disposal in accordance with law.

8. The prosecution, in order to bring home the offence, has

examined as many as 14 witnesses and exhibited 33 documents

Exs.P-1 to P-33 and Articles A, B & C were brought on record.

The appellants abjured the guilt and entered into defence by

stating that they have not committed the offence and they have

been falsely implicated. They have examined none and also not

exhibited any document in support of their case.

9. The trial Court after appreciating ocular, oral and documentary

evidence on record, convicted and sentenced the appellants in

the manner mentioned in the opening paragraph of this judgment

against which these appeals have been preferred.

10. Mr. Shikhar Sharma, learned counsel appearing for the

appellants in Cr.A.Nos.279/2012 & 278/2012, would submit that

the prosecution has failed to prove that death of deceased Dr.

Avinash Ramteke was homicidal in nature and furthermore, Cr.A.Nos.279/2012, 278/2012 & 272/2012

though bones / skeleton of the deceased were recovered, but it

could not be identified to be that of Dr. Avinash Ramteke, as no

DNA test was conducted and the identification allegedly made by

his father D.K. Ramteke (PW-9) on the basis of socks of the

deceased, is not in accordance with law. He would further

submit that motive of the offence and conspiracy were also not

proved and as such, the present two appellants are entitled for

acquittal and their appeals deserve to be allowed.

11. Mr. Aditya Khare, learned counsel appearing for the appellant in

Cr.A.No.272/2012, would submit that the prosecution has failed

to bring home the offence beyond reasonable doubt and no DNA

test was conducted to establish the identity of the deceased as

skeleton was recovered and therefore in light of the decision of

the Supreme Court in the matter of S. Kaleeswaran v. State by

the Inspector of Police Pollachi Town East Police Station,

Coimbatore District, Tamil Nadu1, the appellant deserves to be

acquitted and the appeal deserves to be allowed.

12. Mr. Sudeep Verma, learned State counsel, would submit that the

prosecution has been able to bring home the offences against

the appellants beyond reasonable doubt, therefore, the

appellants have rightly been convicted and furthermore, the trial

Court has rightly recorded the death of the deceased to be

homicidal in nature in view of the identification of skeleton by

D.K. Ramteke (PW-9) which has not been seriously disputed

1 2022 SCC OnLine SC 1511 Cr.A.Nos.279/2012, 278/2012 & 272/2012

before the trial Court. He would further submit that since the

deceased was engaged with Devi Vaidya and marriage was to

be solemnized on 16-5-2010, therefore, he was abducted and

murdered by the appellants, as such, the appeals deserve to be

dismissed.

13. We have heard learned counsel for the parties and considered

their rival submissions made herein-above and also went through

the record with utmost circumspection.

14. The first question to be considered was, whether the trial Court

has rightly held that the skeleton recovered pursuant to the

memorandum statement of Vikki @ Bharat (A-1) was that of

deceased Dr. Avinash Ramteke and whether the said skeleton

has duly been identified through socks to be of deceased Dr.

Avinash Ramteke, by his father D.K. Ramteke (PW-9) and his

uncle Surendra Kumar Ramteke (PW-8)?

15. Undisputedly, Dr. Avinash Ramteke went missing on 10-5-2010

pursuant to which missing report was lodged on 21-5-2010 and

the police during the course of investigation, arrested Vikki @

Bharat (A-1) and recorded his memorandum statement Ex.P-4 at

around 08.00 a.m. on 2-6-2010. Dead body of a human /

skeleton was recovered from the jungle proximate to Singhpura,

Mohara Nala vide Ex.P-9 at 03.00 p.m. on the same day. One

Samsung mobile having IMEI No.325991401069414 along with

SIM No.9626803495 was also seized from him vide Ex.P-10.

The police also recorded memorandum statement (Ex.P-3) of Cr.A.Nos.279/2012, 278/2012 & 272/2012

Ajay Singh (A-2) on 2-6-2010 at 08.30 a.m. and at his instance,

two empty bottles of water carrying petrol for burning the dead

body of deceased Dr. Avinash Ramteke, were recovered vide

Ex.P-11 and one Nokia mobile handset containing SIM was also

recovered from Ajay Singh (A-2) vide Ex.P-5. Socks said to be

of deceased Dr. Avinash Ramteke were recovered from the spot

vide Ex.P-9. Bones were recovered from the spot vide Ex.P-30.

Memorandum statement of Shahid Ali (A-3) was recorded vide

Ex.P-24 pursuant to which his mobile phone was recovered from

vide Ex.P-5.

16. It is apparent on face of record that some bones were recovered

vide Ex.P-30 which were said to be of Dr. Avinash Ramteke and

the said bones were sent for examination before Dr. R.K. Singh

(PW-11) to Medical College, Raipur who has examined the

bones and vide his report Ex.P-23 held that the said bones were

morphological bones which show human bones' character, its

sex was male and age at the time of death was 30 years ± 5

years, and according to him, fractures present on bones were

caused with hard & blunt object, but whether caused during life

or after death, could not be determined and duration of death

could not be determined and stature of the person is about 6 ft. ±

2 inches. However, in his statement before the Court he has

stated that he could not say certainly that the bones were

belonging to Dr. Avinash Ramteke and for that he has preserved

the bones for DNA test. In his report Ex.P-23, he has also clearly Cr.A.Nos.279/2012, 278/2012 & 272/2012

stated that he has preserved one intact tibia bone for DNA

profiling. In cross-examination, D.D. Chandrakar (PW-14) -

investigating officer, has clearly admitted that he did not make

any attempt for DNA profiling of the bones of Dr. Avinash

Ramteke, as his bones were identified by his father D.K.

Ramteke (PW-9) to be of deceased Dr. Avinash Ramteke and

the deceased has been identified by his bones and his socks as

per evidence of Surendra Kumar Ramteke (PW-8) & D.K.

Ramteke (PW-9).

17. In the matter of Rama Nand and others v. State of Himachal

Pradesh2, their Lordships of the Supreme Court have held in no

uncertain terms that discovery of the dead body of the victim

bearing physical evidence of violence, has never been

considered as the only mode of proving the corpus delicti in

murder. Their Lordships further held that the 'body' doctrine is

merely a rule of caution and not of law. It has also been held that

where the dead body of the victim in a murder is not found, other

cogent and satisfactory proof of homicidal death of the victim

must be adduced by the prosecution. But where the fact of

corpus delicti or homicidal death is sought to be established by

circumstantial evidence alone, or by both, the circumstances

must be of a clinching and definitive character unerringly leading

to the inference that the victim concerned has met a homicidal

death. Their Lordships observed as under:-

2 (1981) 1 SCC 511 Cr.A.Nos.279/2012, 278/2012 & 272/2012

"28. This means that before seeking to prove that the accused is the perpetrator of the murder, it must be established that homicidal death has been caused. Ordinarily, the recovery of the dead body of the victim or a vital part of it, bearing marks of violence, is sufficient proof of homicidal death of the victim. There was a time when under the old English law, the finding of the body of the deceased was held to be essential before a person was convicted of committing his culpable homicide. "I would never convict," said Sir Mathew Hale, "a person of murder or manslaughter unless the fact were proved to be done, or at least the body was found dead." This was merely a rule of caution, and not of law. But in those times when execution was the only punishment for murder, the need for adhering to this cautionary rule was greater. Discovery of the dead body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder. Indeed, very many cases are of such a nature where the discovery of the dead body is impossible. A blind adherence to this old "body" doctrine would open the door wide open for many a heinous murderer to escape with impunity simply because they were cunning and clever enough to destroy the body of their victim. In the context of our law, Sir Hale's enunciation has to be interpreted no more than emphasising that where the dead body of the victim in a murder case is not found, other cogent and satisfactory proof of the homicidal death of the victim must be adduced by the prosecution. Such proof may be by the direct ocular account of an eyewitness, or by circumstantial evidence, or by both. But where the fact of corpus delicti i.e. 'homicidal death' is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. Even so, this principle of caution cannot be pushed too far as requiring absolute proof. Perfect proof is seldom to be had in this imperfect world, and absolute certainty is a myth. That is why under Section 3, Evidence Act, a fact is said to be "proved", if the court considering the matters before it, Cr.A.Nos.279/2012, 278/2012 & 272/2012

considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned. ..."

18. The principle of law laid down in Rama Nand (supra) has been

reiterated and followed by the Supreme Court in the matter of

Ramjee Rai and others v. State of Bihar 3 and similar proposition

has been made in the matter of Rishi Pal v. State of Uttarakhand4

following Rama Nand (supra) and it has been held that absence

of corpus delicti is insignificant if cogent and satisfactory proof of

homicidal death of victim is adduced. The decision of the

Supreme Court in Rama Nand (supra) has further been followed

in the matter of Sanjay Rajak v. State of Bihar5.

19. However, in S. Kaleeswaran (supra), their Lordships of the

Supreme Court have made exception to the rule of corpus delicti

that if the entire chain is duly proved by cogent evidence, the

conviction could be recorded even if the corpus is not found, but

when as per the case of the prosecution, the dead body of the

victim was discovered from the place shown by the accused, it is

imperative on the part of the prosecution to prove that the dead

body or the skeleton found at the instance of the accused was

that of the victim and of none else, and it was held as under: -

"14. ... but when as per the case of the prosecution, 3 (2006) 13 SCC 229 4 2013 Cri.L.J. 1534 5 (2019) 12 SCC 552 Cr.A.Nos.279/2012, 278/2012 & 272/2012

the dead body of the victim was discovered from the place shown by the accused, it is imperative on the part of the prosecution to prove that the dead body or the skeleton found at the instance of the accused was that of the victim and of none else."

20. At this stage, the submission of learned counsel for the

appellants that identification of the deceased made by socks is

not in accordance with law and in order to identify the body of the

deceased, DNA test ought to have been conducted by the

prosecution and failure to conduct DNA test will vitiate the

conviction recorded and sentences awarded to the appellants

herein, has to be noted for consideration.

21. In the matter of Rambraksh alias Jalim v. State of Chhattisgarh 6,

the Supreme Court has held that the investigating officer did not

take any attempt to conduct DNA analysis of bones to prove that

the skeleton seized was that of Ramsevak and their Lordships

have held that the prosecution has failed to prove the death of

Ramsevak either homicidal or otherwise.

22. Similarly, in the matter of Rajendra Pralhadrao Wasnik v. State of

Maharashtra7, their Lordships of the Supreme Court referring to

Sections 53-A and 164-A of the CrPC, held that DNA profiling

has now become a part of the statutory scheme and for the

prosecution to decline to produce DNA evidence would be a little

unfortunate particularly when the facility of DNA profiling is

available in the country, and observed in paragraphs 54, 55 & 56

as under: -

6 (2016) 12 SCC 251 7 (2019) 12 SCC 460 Cr.A.Nos.279/2012, 278/2012 & 272/2012

"54. For the prosecution to decline to produce DNA evidence would be a little unfortunate particularly when the facility of DNA profiling is available in the country. The prosecution would be well advised to take advantage of this, particularly in view of the provisions of Section 53-A and Section 164-A of the CrPC. We are not going to the extent of suggesting that if there is no DNA profiling, the prosecution case cannot be proved but we are certainly of the view that where DNA profiling has not been done or it is held back from the trial court, an adverse consequence would follow for the prosecution.

55. In Mukesh v. State (NCT of Delhi) 8 a separate opinion was delivered by Banumathi, J. and in para 455 of the Report it was held that DNA profiling is an extremely accurate way of comparing specimens and such testing can make a virtually positive identification. It was stated:

"455. ... DNA profiling is an extremely accurate way to compare a suspect's DNA with crime scene specimens, victim's DNA on the bloodstained clothes of the accused or other articles recovered, DNA testing can make a virtually positive identification when the two samples match. A DNA fingerprint is identical for every part of the body, whether it is the blood, saliva, brain, kidney or foot or any part of the body. It cannot be changed; it will be identical no matter what is done to a body. Even relatively minute quantities of blood, saliva or semen at a crime scene or on clothes can yield sufficient material for analysis. The experts opine that the identification is almost hundred per cent precise. Using this i.e. chemical structure of genetic information by generating DNA profile of the individual, identification of an individual is done like in the traditional method of identifying finger prints of offenders."

(emphasis supplied)

56. In the context of importance of scientific and technological advances having been made, we may 8 (2017) 6 SCC 1 Cr.A.Nos.279/2012, 278/2012 & 272/2012

recall the observation of this Court in Selvi v. State of Karnataka9 in para 220 of the Report that "The matching of DNA samples is emerging as a vital tool for linking suspects to specific criminal acts.""

23. The Supreme Court in the matter of Pattu Rajan v. State of Tamil

Nadu10 has held that though a DNA test helps the courts

immensely in determining reliability of identification of body of

deceased, but rejected the contention that non-conducting of a

DNA test and reliance on evidence regarding identification

through superimposition is improper. It has been observed in

paragraph 57 of the report as under: -

"57. Therefore, we are of the opinion that the scientific evidence of PW 34 was rightly believed by the trial court as well as by the High Court, and strengthens the evidence of PWs 1 and 2 regarding the identification of the body. Though a DNA test would have helped the courts immensely in determining the reliability of the identification of the body of the deceased, in the presence of other reliable evidence on record in favour of the prosecution version on this aspect, we reject the contention that the non-conducting of a DNA test and the reliance on evidence regarding identification through superimposition is improper. This is all the more true since no material is forthcoming to the effect that the parents of the deceased were alive during the relevant period, so as to conduct comparative DNA tests."

24. Reverting to the facts of the case in light of the aforesaid

parameters laid down by their Lordships of the Supreme Court in

the aforesaid judgments, it is quite vivid that Medical Officer Dr.

R.K. Singh (PW-11) who is the Professor, Medical College,

Raipur, had very well advised the prosecution vide his report

9 (2010) 7 SCC 263 10 (2019) 4 SCC 771 Cr.A.Nos.279/2012, 278/2012 & 272/2012

Ex.P-23 by preserving tibia bone for DNA profiling in order to find

out as to whether the bones were of deceased Dr. Avinash

Ramteke and also stated in paragraph 12 of his statement before

the Court of preserving tibia bone for DNA profiling, but the

investigating officer - D.D. Chandrakar (PW-14) in his statement

before the Court, especially in paragraph 26, has clearly stated

that he did not make any attempt to conduct DNA profiling of the

bones to prove that the bones seized were that of Dr. Avinash

Ramteke and continued to rely upon the statement of the father

of the deceased - D.K. Ramteke (PW-9) who has identified the

socks to be belonging to the deceased. As such, it is quite vivid

that where the dead body of the victim in a murder is not found,

other cogent and satisfactory proof of homicidal death of the

victim must be adduced by the prosecution, but where the fact of

corpus delicti or homicidal death is sought to be established by

circumstantial evidence alone, or by both, the circumstances

must be of a clinching and definitive evidence that the death was

homicidal in nature, but where the dead body of the victim /

bones / skeleton were found at the instance of the accused, the

prosecution is obliged to prove that the dead body or the bones

were of the deceased alone and of none else which the

prosecution has miserably failed in the present case, to prove

that the death of the deceased was either homicidal or otherwise.

25. The prosecution has relied upon the identification of burnt socks

to be of the deceased, identified by his father D.K. Ramteke Cr.A.Nos.279/2012, 278/2012 & 272/2012

(PW-9) and his uncle Surendra Kumar Ramteke (PW-8) vide

Ex.P-20 - identification memo. The burnt socks which were

recovered from the place of incident have been identified by

Surendra Kumar Ramteke (PW-8) & D.K. Ramteke (PW-9) which

have been relied upon by the trial Court as one of the

incriminating circumstances to hold that the bones were of

deceased Dr. Avinash Ramteke, however, there is nothing on

record to show that the seized socks were unique and there is

also nothing on record to show that the same kind of socks is not

easily available in the market or the said burnt socks were of any

peculiar design or of any special workmanship which would show

that it is not easily available in the market. In such

circumstances, it cannot be held to be a conclusive proof that the

socks seized, though burnt, are in any way unique to the

exclusion of everyone else. Therefore, the burnt socks seized

and identified by D.K. Ramteke (PW-9) - father of the deceased,

would be of no help to the prosecution and reliance placed by the

trial Court on the identification of socks is absolutely illegal.

26. In that view of the above-stated analysis, the prosecution has

miserably failed to prove that the death of the deceased was

homicidal in nature for want of DNA profiling. Since skeleton was

found at the instance of the appellants, it was imperative on the

part of the prosecution to prove that the dead body or the

skeleton found at the instance of the accused was that of Dr.

Avinash Ramteke, as held by the Supreme Court in S.

Cr.A.Nos.279/2012, 278/2012 & 272/2012

Kaleeswaran (supra), which the prosecution has miserably failed

to prove.

27. The next incriminating circumstance brought on record on behalf

of the prosecution is call details of the appellants herein which

have been filed as Ex.P-31 and also the call details of Sudhish

Singh & Devi Vaidya to demonstrate conspiracy and that has

been relied upon by the trial Court as one of the incriminating

circumstances.

28. In order to assail the above-stated finding holding it to be a piece

of incriminating circumstance, it has been contended on behalf of

the appellants that it is not supported by certificate under Section

65B(4) of the Indian Evidence Act, 1872, therefore, it is

inadmissible in evidence and as such, no reliance can be placed

upon it, as the trial Court went wrong in accepting it as a piece of

incriminating evidence and reliance has been placed upon the

judgment of the Supreme Court in the matter of Arjun Panditrao

Khotkar v. Kailash Kushanrao Gorantyal 11 in which their

Lordships resolving the dispute and the conflict raised in the

matters of Shafhi Mohammad v. State of Himachal Pradesh12 and

Anvar P.V. v. P.K. Basheer13 have clearly held that production of

certificate under Section 65B of the Evidence Act is mandatory

only in case of secondary evidence where primary evidence is

not laid or original is not produced. Their Lordships further held

that the certificate required under Section 65B(4) of the Evidence 11 (2021) 7 SCC 1 12 (2018) 2 SCC 801 13 (2014) 10 SCC 473 Cr.A.Nos.279/2012, 278/2012 & 272/2012

Act is a condition precedent to the admissibility of secondary

evidence by way of electronic evidence as laid down in Anvar

P.V. (supra) and incorrectly clarified in Shafhi Mohammad

(supra). It was held as under: -

"61. We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (supra), and incorrectly "clarified" in Shafhi Mohammed (supra). Oral evidence in the place of such certificate cannot possibly suffice as Section 65-B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor , which has been

followed in a number of the judgments of this Court, can also be applied. Section 65-B(4) of the Evidence Act clearly states that secondary evidence is admissible only if led in the manner stated and not otherwise. To hold otherwise would render Section 65- B(4) otiose."

Their Lordships also held that the required certificate under

Section 65B(4) is unnecessary if the original document itself is

produced and this can be done by the owner of a laptop

computer, computer tablet or even a mobile phone, by stepping

into the witness box and proving that the concerned device, on

which the original information is first stored, is owned and / or

operated by him. The reference was answered in paragraphs

73.1., 73.2. and 73.3. as under: -

"73.1. Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno15, being per incuriam, does not lay down the law correctly. Also, the judgment in Shafhi 14 (1875) LR 1 Ch D 426 15 Tomaso Bruno v. State of U.P., (2015) 7 SCC 178 : (2015) 3 SCC (Cri) 54 Cr.A.Nos.279/2012, 278/2012 & 272/2012

Mohammad (supra) and the judgment dated 3-4-2018 reported as Shafhi Mohd. v. State of H.P.16, do not lay down the law correctly and are therefore overruled.

73.2. The clarification referred to above is that the required certificate under Section 65-B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the device concerned, on which the original information is first stored, 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 physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65-B(1), together with the requisite certificate under Section 65-B(4). The last sentence in para 24 in Anvar P.V. (supra) which reads as "... if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act ..." is thus clarified; it is to be read without the words "under Section 62 of the Evidence Act, ...". With this clarification, the law stated in para 24 of Anvar P.V. (supra) does not need to be revisited.

73.3. The general directions issued in para 64 (supra) shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage. These directions shall apply in all proceedings, till rules and directions under Section 67-C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers."

29. In the matter of Ravinder Singh @ Kaku v. State of Punjab 17,

their Lordships of the Supreme Court while following the decision

of Arjun Panditrao Khotkar (supra) have held that oral evidence

in the place of certificate cannot be possibly suffice as Section 16 (2018) 5 SCC 311 : (2018) 2 SCC (Cri) 704 17 2022 LiveLaw (SC) 461 Cr.A.Nos.279/2012, 278/2012 & 272/2012

65B(4) is a mandatory requirement of law. Their Lordships held

that Section 65B(4) is a mandatory requirement of law and

observed as under:-

"21. In light of the above, the electronic evidence produced before the High Court should have been in accordance with the statute and should have complied with the certification requirement, for it to be admissible in the court of law. As rightly stated above, oral evidence in the place of such certificate, as is the case in the present matter, cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law."

30. Returning to the facts of the present case in light of the aforesaid

pronouncement of the Supreme Court in Arjun Panditrao Khotkar

(supra) and Ravinder Singh @ Kaku (supra), though call details

of the accused persons and the deceased were brought on

record and proved by oral testimony of M.R. Nayak (PW-13), but

in view of the fact that Section 65B(4) of the Evidence Act is a

mandatory requirement of law and in absence of certificate under

the aforesaid provision, merely on the basis of the statement of

M.R. Nayak (PW-13), call details cannot be said to be proved in

absence of required certificate, though the mobile sets of all the

three appellants have been seized. Thus, the prosecution has

failed to produce mandatory certificate under Section 65B(4) of

the Evidence Act. As such, reliance placed by the trial Court on

the call details of the appellants and that of Sudhish Singh & Devi

Vaidya is of no use to the prosecution.

31. Similarly, since the bones recovered were not proved to be that

of deceased Dr. Avinash Ramteke, the finding recorded by the Cr.A.Nos.279/2012, 278/2012 & 272/2012

trial Court convicting the appellants for offence under Section

120B of the IPC is not in accordance with law and is not

sustainable and as such, the said offence is also not made out

against the appellants. Sudhish Singh & Devi Vaidya died before

framing of charge against the appellants and as such, conviction

of the appellants for offences under Sections 147 & 149 of the

IPC is also not made out as the same is not established against

them. Furthermore, D.D. Chandrakar (PW-14) - investigating

officer, even did not make any attempt as apparent from Ex.P-31

- letter sent to the FSL, Raipur, for DNA profiling of the bones of

Dr. Avinash Ramteke preserved by Dr. R.K. Singh (PW-11). In

that view of the matter, even if motive is proved, since other

circumstances could not be established as held by their

Lordships of the Supreme Court in the matter of Sharad

Birdhichand Sarda v. State of Maharashtra 18, we are of the

opinion that the trial Court is absolutely unjustified in convicting

the appellants and the appellants are entitled for benefit of doubt.

32. Consequently, the three criminal appeals preferred by the three

appellants herein are allowed. Conviction and sentences

imposed upon them under Sections 147 read with Section 149 of

the IPC, 364 read with Section 149 read with Section 120B of the

IPC, 302 read with Section 149 read with Section 120B of the

IPC & 201 of the IPC are set aside and they are acquitted of the

said charges. They are on bail. They need not surrender.

However, their bail bonds shall remain in force for a period of six 18 (1984) 4 SCC 116 Cr.A.Nos.279/2012, 278/2012 & 272/2012

months in view of the provision contained in Section 437A of the

CrPC.

             Sd/-                                        Sd/-
       (Sanjay K. Agrawal)                     (Rakesh Mohan Pandey)
            Judge                                       Judge

Soma