Lalu @ Anil Yadav vs The State Of Madhya Pradesh
2022 Latest Caselaw 16582 MP

                                                          1
                                  IN THE HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                  CRA No. 4254 of 2022
                                  (LALU @ ANIL YADAV AND OTHERS Vs THE STATE OF MADHYA PRADESH)

                      Dated : 14-12-2022
                            Shri Aditya Singh Rajput - Advocate for the appellant.

                            Shri Ajay Shukla - Government Advocate for the respondent/State.

I.A. No.19498 of 2022, an application for suspension of sentence and grant of bail to appellant No.2 Malkhan Singh Yadav is taken up.

This appellant has been convicted under Section 302/34 of IPC and

sentenced to undergo life imprisonment and fine of Rs. 5,000/-, under Section 201/34 of the IPC and sentenced to undergo R.I. for three years and fine of Rs.5,000/- and under Section 25(1-B)(a) of Arms Act and sentenced to undergo R.I. for one year with fine of Rs. ,5000/-, with default stipulation.

Learned counsel for the appellant submits that main accused Lalu @ Anil Yadav got benefit of suspension of sentence on 30.09.2022. Para-68 of the impugned judgement shows that appellant has held guilty on the basis of circumstantial evidence. This Court in its detailed order dated 30.09.2022 considered various aspects and then thought it proper to grant benefit of

suspension of sentence to main accused Lalu. Thus, by applying principles of parity, the present appellant may be given similar benefit.

Shri Ajay Shukla, learned Government Advocate opposed the prayer on the basis of objection but did not dispute the arguments related to parity.

We have heard the parties at length.

This Court while suspending the sentence of Lalu (supra) on 30.09.2022 Signature SAN Not Verified recorded as under :-

Digitally signed by VAISHALI AGRAWAL "Learned counsel for this appellant submits that as per Date: 2022.12.15 11:02:58 IST

prosecution story, the appellant had illicit relation with the wife of the deceased namely Narendra @ Ranu Yadav. Infact the deceased was cousin brother-in-law of the present appellant. Para-72 of the impugned judgment shows that the prosecution could not establish its case beyond reasonable doubt against accused Jayanti (wife of deceased). Shri Sankalp Kochar, learned counsel for the appellant submits that indisputably there is no eye-witness in the present case. As per Para-68 of the impugned judgment, the conviction is recorded on the basis of five circumstances.

Criticizing the findings relating to the said circumstances, it is urged that1so far circumstance nos. 1 and 2 are concerned, the allegations is that the last call received by the deceased was called by this appellant's mobile number. By taking this Court to the statement of Rahman Khan, In-charge, Cyber Cell (PW-

22), it is submitted that he has furnished information on the basis of information received regarding certain mobile numbers which were allegedly seized from the accused persons. The information received by Rahman Khan (PW-22) was the information which was furnished by respective mobile companies. Learned counsel for the appellant submits that the name of owner of only one mobile number could be gathered i.e. Komal Singh Jalone, resident of U.P..For rest of the mobile phones seized, the name of owner could not be detected.The Nodal Officers of respective mobile companies did not furnish any certificate as required under Section 65-B of Indian Evidence Act.Learned counsel for the appellant, for this purpose, placed reliance on the judgment of Bombay High Court in 2019 SCC OnLine 4988 The State of Maharashtra & Ors. vs. Ramesh Vishwanath Darandale and ors., and laid emphasis on following paragraphs:

''38. Applicability of procedural requirements

under Section 65B(4) of the Indian Evidence Act, 1872 of furnishing certificate has to be applied only when such electronic evidence is produced by a person, who is in a position to produce such a certificate being in control of said device. Thus, the provisions of Section 65B of the Indian Evidence Act, 1872 lay down procedural requirements to make electronic evidence admissible. Section 65B(4) is attracted in any proceedings "where it is desired t o give a statement in evidence by virtue of this section"‚ and it is admissible provided following conditions are satisfied:

(i) identifies the electronic record containing the statement;

(ii) respective certificates describe the electronic record (CDRs) then produced;

(iii) Nodal Officers have certified that CDRs were retrieved and by means of appropriate electronic equipment and

(iv) Nodal officers clarified that CDRs/printouts are true and correct electronic records, supplied from master computer;

39. In the case of Anvar P.V. v. P.K. Basheer, MANU/SC/0834/2014 : (2014) 10 SCC 473, it has been held that requirement of producing certificate arises when electronic record is sought to be used as evidence and it is clarified in paragraph 16: "16. .... '¦Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records

being more susceptible to tampering, alteration, transposition, excision, etc., without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice."

(emphasis supplied)

40. Keeping in mind the principles culled out by the Apex Court while admitting electronic evidence, we will deal with the objections raised by the appellants.

Prosecution has examined four Nodal Officers who have produced certificates under Section 65B of the Indian Evidence Act, 1872. The first objection of the appellants is certificates produced by the Nodal Officers are falling short of requirement of provisions of Section 65B of the Indian Evidence Act, 1872. It is contended that CDRs being printed on papers and being "computer out-put"‚ are admissible only if conditions contemplated in Sub- section (2) of Section 65B of the Indian Evidence Act, 1872 are fully complied with.

(Emphasis supplied)

Since in the instant case, no certificate of Nodal Officer of Telephone Company in whose master computer data was recorded was produced, the evidence so produced regarding use of mobile number is inadmissible. Apart from this, in view of 2015 SCC OnLine Bom 710 (Mohammed Rashid Kunju vs. State of Maharashtra and another), merely because last call is allegedly received from the mobile of the appellant alone cannot be a ground to hold the appellant as guilty. He placed reliance on Para-12 of this judgment which reads as under :-

"12. The appellant is alleged to be guilty only on the

strength of evidence showing his connection with the other accused i.e. accused Nos. 1 and 2. In this regard, the case of the Investigating Agency is that a Mobile Telephone Instrument without a Sim Card was found with the appellant. That, the IMEI number of the said Motile Telephone Instrument was noted and on obtaining Call Data Records (for short 'CDR‚), thereof, it was noticed that a particular Sim card, creating a particular connectivity number, was used in the said Mobile Telephone Instrument. The CDRs also indicated that there were telephonic contacts between said mobile telephone having that particular number, and the mobile telephone which was being used by the accused No. 1. Thus, it is on the basis that, there were telephonic contact between the accused No. 1 and the appellant, the involvement of the appellant in the alleged offence is sought to be established.. 13 . In my opinion, merely because of such telephonic contacts, the case against the appellant cannot be held to be proved. The telephonic contact would only establish that the accused No. 1 and the appellant knew each other, but it would be difficult to stretch the matter further and to hold that the appellant knew about the counterfeit currency notes, which were found in possession of the accused No. 1. Apartfrom this, there are a number of weaknesses in the evidence in that regard."

(Emphasis supplied)

So far circumstance no.3 is concerned, Shri Kochar submits that it depends on circumstance nos. 1 & 2. Since circumstance nos.1 & 2 are not established, circumstance no.3 fades into insignificance. So far circumstance no.4 is concerned, it is argued that the FSL report (Ex.P/62) makes it clear that no human blood was found on the Car. The finding of the Court below in this regard is clearly perverse. Thus,

circumstance no.4 also cannot be used against the appellant.

Criticizing the last circumstance No.5, Shri Kochar, learned counsel for the appellant further submits that the incident had taken place on 06/08/2013 whereas co- accused Malkhan was arrested on 03/06/2014. Malkhan allegedly informed the investigating agency that he is carrying the used Bullet with him. That used Bullet is tested and an opinion was given by the Expert that its 'firing pin mark' is found on the Bullet. It could not be established that this Bullet was used for murdering the deceased person. The connection of appellant with that Bullet also could not be established with accuracy and precision. The 'panchsheel principles' laid down in the case of Sharad Birdhichand Sarda vs.State of Maharashtra, (1984) 4 SCC 116, could not be established. The final hearing of this matter will take time. Pertinently, co-accused Jayanti has already been acquitted by the Court below. Thus, remaining jail sentence of this appellant may be suspended. Per-contra, learned counsel for the State opposed the application on the strength of objection. Shri Shashank Upadhyay, learned counsel for the objector also took the same stand.

It is common ground taken by the learned counsel for the State as well as learned counsel for the objector that Court below has given justifiable findings. We have heard the parties at length and perused the record and objection.

Considering the aforesaid factual backdrop, paucity of Certificate under Section 65-B of the Indian Evidence Act issued by the Nodal Officer, absence of human blood on the Car and other circumstances, without expressing any conclusive opinion on the merits of the case, we deem it proper to suspend the remaining jail sentence of this appellant.

Considering the aforesaid and by applying principles of

parity, we deem it proper to suspend the remaining jail sentence of the appellant.

Accordingly, I.A.No.12834/22 is allowed."

(Emphasis supplied) In view of the principles of parity, we deem it proper to suspend the remaining jail sentence of appellant No.2 Malkhan Singh Yadav. Accordingly, I.A.No.19498/2022 is allowed.

Subject to depositing the fine amount (if not already deposited), the remaining jail sentence of this appellant Malkhan Singh Yadav is hereby suspended and it is directed that on his furnishing a personal bond for a sum of Rs.50,000/- (Rs. fifty thousand only) along with surety in the like amount to the satisfaction of the Trial court, he shall be released on bail with a further direction to remain present before the trial Court, Tikamgarh on 20.12.2022 and on such other dates as fixed by the trial court in this regard during the pendency of this appeal.

List the appeal for final hearing in due course. C.C as per rules.

      (SUJOY PAUL)                                 (PRAKASH CHANDRA GUPTA)
         JUDGE                                              JUDGE

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