CHANDRABHAN SUDAM SANAP v. THE STATE OF MAHARASHTRA

Citation: (1984) 4 SCC 116, (2020) 3 SCC 216, (2005) 11 SCC 600, (2020) 7 SCC 1, (2018) 2 SCC 801, (2017) 8 SCC 570, (2014) 10 SCC 473, [2025] 1 S.C.R. 1041, 2025 INSC 116

Court: Supreme Court of India

Bench: B.R. Gavai, Prashant Kumar Mishra and K.V. Viswanathan, JJ.

Judgment text

SUPREME COURT OF INDIA Chandrabhan Sudam Sanap v. The State of Maharashtra Criminal Appeal No. 879 of 2019 [2025] 1 S. C. R. 1041 : 2025 INSC 116 Chandrabhan Sudam Sanap v. The State of Maharashtra (Criminal Appeal No. 879 of 2019) 28 January 2025 [B. R. Gavai, Prashant Kumar Mishra and K. V. Viswanathan,* JJ. ] Issue for Consideration Matter pertains to the correctness of the order passed by the High Court upholding the conviction of the appellant for rape and murder of the deceased and imposition of death sentence. Headnotes† Evidence - Circumstantial evidence - Admissibility of evidence of witnesses and recovery - Admissibility of CCTV evidence - Requirement of certificate u/s. 65 B(4) - On facts, conviction of the appellant for offences punishable u/ss. 302, 364, 366, 376(2)(m), 376A, 392 rw ss.

397 and 201 IPC for rape and murder of the deceased and sentenced to death by the courts below - Hypothesis of guilt, if established on basis of the circumstantial evidence: Held: There are gaping holes in the prosecution story leading to the irresistible conclusion that there is something more than what meets the eye - Circumstances relied upon when taken together do not lead to the sole hypothesis of the guilt of the accused and the chain is not complete - Test of Sharad Birdhichand Sarda's case on circumstantial evidence not satisfied - Sustaining conviction based on this sketchy and disjointed evidence not justified - On the available evidence, extremely unsafe to sustain conviction against the appellant - Prosecution did not establish its case beyond reasonable doubt - Certificate u/s. 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record - When the prosecution was aware of the need for the s.

65-B (4) certificate and they themselves collected it for the CDRs, no reason as to why they did not collect the same for the CCTV * Author 1042 footage - No reliance can be placed on the CCTV footage, insofar as an attempt was made by the prosecution to attribute that the appellant and the deceased were last seen together based on the CCTV footage, and is eschewed the same from consideration - Evidence of the prosecution witnesses for the last seen together as well as evidence of the prosecution witnesses for sighting the appellant, fails to inspire the necessary confidence to clinchingly establish the circumstances of last seen - Test identification parade vitiated as the photographs of the appellants were all over the place in the media - Evidence of the dog walker to establish presence of the appellant in the vicinity of the crime unnatural - He is not the witness in the last seen category, but only claims to have seen the appellant under circumstances which are doubtful, thus, his evidence is discarded - Also, the evidence given by other prosecution witnesses do not constitute circumstantial evidence having any nexus with the commission of the crime, thus, totally discarded from the chain of circumstances - Extra judicial confession of the prosecution witness-so called friend of the appellant, by its very nature, is a weak piece of evidence and is rejected - There are so many omissions in the statement of the said prosecution witness, as also no corroboration in material particulars - Evidence of recovery of articles also not impressive - Furthermore, the prosecution not been able to answer the infirmities pointed out - Thus, no conviction for the offence charged could be sustained against the appellant - Impugned judgment set aside and the appellant is acquitted - Penal Code, 1860 - Evidence Act, 1872.

[Paras 49, 51, 70, 72, 75, 77, 81, 90, 104, 120, 121, 123, 124] Case Law Cited Anvar P. V. v. P. K. Basheer & Ors. [2014] 11 SCR 399 : (2014) 10 SCC 473; Sharad Birdhichand Sarda v. State of Maharashtra [1985] 1 SCR 88 : (1984) 4 SCC 116 - relied on. State (N. C. T. of Delhi) v. Navjot Sandhu @ Afsan Guru [2005] Supp. 2 SCR 79 : (2005) 11 SCC 600; Shafhi Mohammad v. The State of Himachal Pradesh (2018) 2 SCC 801; Sonu @ Amar v. State of Haryana [2017] 8 SCR 151 : (2017) 8 SCC 570; Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors. [2020] 7 SCR 180 : (2020) 3 SCC 216; Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors. [2020] 7 SCR 180 :(2020) 7 SCC 1; Sundar @ Sundarrajan v. State by Inspector of Police [2023] 5 Chandrabhan Sudam Sanap v. The State of Maharashtra SCR 1016 : 2023 SCC OnLine SC 310; Mohd. Arif @ Ashfaq v. State (NCT of Delhi) [2022] 7 SCR 792 : (2023) 3 SCC 654; State of Goa v. Sanjay Thakran & Anr.

[2007] 3 SCR 507 : (2007) 3 SCC 755; Anjan Kumar Sarma & Ors. Vs. State of Assam [2017] 3 SCR 991 : (2017) 14 SCC 359; Suryamoorthi and Another v. Govindaswamy and Others (1989) 3 SCC 24; Gireesan Nair & Ors. v. State of Kerala [2022] 8 SCR 599 : (2023) 1 SCC 180; Sattatiya @ Satish Rajanna Kartalla v. State of Maharashtra (2008) 3 SCC 210; Nikhil Chandra Mondal v. State of W. B. [2023] 2 SCR 20 : (2023) 6 SCC 605; Laxmi Raj Shetty v. State of T. N. [1988] 3 SCR 706 : (1988) 3 SCC 319; Hanumant v. State of Madhya Pradesh [1952] 1 SCR 1091 : AIR 1952 SC 343- referred to. List of Acts Penal Code, 1860; Evidence Act, 1872; Code of Criminal Procedure, 1973.

List of Keywords Murder; Rape; Death sentence; Circumstantial evidence; Five golden principles of circumstantial evidence; Sharad Birdhichand Sarda's case on circumstantial evidence; Last seen together evidence; Identification Parade; Law on circumstantial evidence; Evidence of recovery; Sole hypothesis of the guilt; Admissibility of CCTV footage; Life span of CCTV footage; Admissibility of electronic records; Secondary evidence for adducing electronic records; Certificate u/s. 65-B of the Evidence Act; Inherently inadmissible document; Recovery; Chain of circumstances; Extra judicial confession; Gaping holes in prosecution story. Case Arising From CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 879 of 2019 From the Judgment and Order dated 20. 12. 2018 of the High Court of Judicature at Bombay in CCN No. 3 of 2015 Appearances for Parties Advs. for the Appellant: Shri Singh, Ms. Pratiksha Basarkar, Ms. Sakshi Jain, Ms. Surabhi Vaya, Ms. Pritha Srikumar Iyer. 1044 Advs.

for the Respondent: Raja Thakare, A. S. G. , Siddharth Dharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla, Aditya Krishna, Ms. Preet S. Phanse, Adarsh Dubey. Judgment / Order of the Supreme Court Judgment K. V. Viswanathan, J. 1. The present appeal calls in question the correctness of the judgment of the High Court of Judicature at Bombay dated 20. 12. 2018 in Confirmation Case no. 3 of 2015 with Criminal Appeal No. 1111 of 2015. By the said judgment, the High Court upheld the conviction and the sentence of death imposed on the appellant by the Court of Sessions for Greater Bombay (hereinafter referred to as the 'Trial Court') in Sessions Case No. 388 of 2014 and consequently dismissed the criminal appeal filed by the appellant. The Trial Court convicted the appellant for the offences punishable under Sections 302, 364, 366, 376(2)(m), 376A, 392 read with Section 397 and 201 of the Indian Penal Code (for short 'IPC').

For the offences punishable; under Section 302 IPC, the appellant was sentenced to death; under Section 364 IPC, rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/-, in default to undergo rigorous imprisonment of one year; under Section 366 IPC, a sentence of ten years RI and to pay a fine of Rs. 10,000/-, in default RI for one year; under Section 376(2)(m) IPC, a sentence of RI for ten years; under Section 376A IPC, RI for life which was to mean imprisonment for remainder of his natural life; under Section 392 read with 397 IPC, a sentence of RI for seven years and under Section 201 IPC, he was sentenced to RI of seven years. All the sentences were to run concurrently. The appellant was directed to pay a sum of Rs. 50,000/- as compensation to be payable to the parents of the deceased. The case of the Prosecution:- 2. The deceased is a 23 year old young woman (hereinafter referred to as 'EA' in the judgment).

PW-26 Singavarapa Jonathan Surendra Prasad is the father of the deceased EA. According to the prosecution, the deceased, who was working in Mumbai and staying at the YWCA Chandrabhan Sudam Sanap v. The State of Maharashtra Hostel for Women in Andheri, visted her parents at Machilipatnam in Andhra Pradesh between 22. 12. 2013 and 04. 01. 2014. On 04. 01. 2014, PW-26 dropped her at the Vijayawada Railway Station at about 05:00 AM. The deceased EA boarded Visakhapatnam LTT Express which was to reach Mumbai early morning on 05. 01. 2014. The deceased EA called her father at 09:00 PM on 04. 01. 2014 when the train was crossing Solapur Station. According to PW-26, after reaching Mumbai, EA did not contact him. He, however, constantly made attempts to contact her mobile number but there was no response. PW-26 contacted the YWCA Hostel where she was staying, and he was informed that EA had not turned up. According to PW-26, on 05. 01.

2014 itself, he lodged a missing complaint with the Railway Police Station at Vijayawada. Thereafter, he took the missing complaint and went to Mumbai. He along with his relatives went to LTT Railway Station where the Railway Police told PW-26 that the case did not come under their jurisdiction and directed him to go to Kurla Police Station. 3. Thereafter, PW-26 states that with the help of police they started searching for his daughter and the last signal of the tower location of her mobile was found at Bhandup. The anxious father continued his search along with his relatives. Ultimately, on 16. 01. 2014, they found the body of EA in the bushes near the Express Highway. PW-26 states that the condition of the body was burnt and beyond recognition. Based on a ring in her finger, he identified the body as that of his daughter. According to PW-26, as the case came under Kanjur Marg Police Station, he lodged a complaint therein for the offence of murder and an F. I. R. (Exh.

134) was registered. 4. PW-30 Dattatray Tukaram Naikodi is the Police Inspector who was then attached to Kanjur Marg Police Station. He recorded the F. I. R. and registered the crime bearing No. 6 of 2014 for the offences punishable under Section 302 and 201 of IPC at about 08:15 PM (information received at 5. 45 PM) on 16. 01. 2014. He proceeded to the spot and found a decomposed body of a female. He arranged for dog squad and for persons from the Forensic Science Laboratory (FSL). He made arrangements for lighting and conducted the inquest Panchnama which is marked as Exh. 84 and seized the ring of yellow metal (Article 27) and thereafter he sent the body for post- mortem. A spot Panchnama was also drawn in the presence of two panchas. While PW-2 Bapu Mahadev Adsul deposed with regard 1046 to spot Panchnama (Exh. 38), PW-6 Nirmala Vilas Kadu testified for the inquest Panchnama (Exh. 84).

PW-30 further testified that on the spot a mobile phone of Samsung company with two sim cards, one grey colour scarf, red colour T-shirt, bunch of hair, one knicker and one wrist-watch having a broken belt were found and seized. He collected the blood samples, the grass and the mud from the spot with the help of FSL persons. He deposed that the back portion of the body and chest were decomposed and that the chest was looking like half burnt. He deposed further that the leg was half burnt. 5. PW-25 Dr. Gajanan Shirserao Chavan, Assistant Professor, Forensic Medicine Department, J. J. Hospital conducted the post-mortem between 11:00 AM and 12:30 PM on 17. 01. 2014. The dead body was received at 05:45 AM. According to the doctor, the dead body showed a black colour brassier avulsed with metallic hook and a pink colour hair band. Rigor Mortis was absent and variable mixed pattern of decomposition was seen.

Facial skin was burnt, there was blackish adherent to skull bone; no maggots were seen, the genitals were distorted due to decomposition and the vaginal wall showed blackish, reddish discolouration. Limbs, hand and feet were absent. He noticed the following:- 12. E x t e n t , a n d s i g n s o f Va r i a b l e m i x e d p a t t e r n o f decomposition, presence, post- decomposition was seen. Fascial mortem lividity of buttocks, loins, skin burnt, blackish adherent to skull back and thighs or any other part bone. Skin absent at some places of whether bullae present and the extremities and abdomen exposing nature of their contained fluid. bones and abdominal viscera at Condition of the cuticle. places. Ends of long bones are nibbled and exposed. 13. Features - whether natural or Natural separations seen at most of swollen, state of eyes, position the joints without evidence of ante of tongue, nature of fluid (if any) mortem fractures.

No maggots and oozing from mouth, nostrils or no foul smell. Features distorted due ears to decomposition. Tongue absent, Eyes sunken. No oozing of fluid from eyes, mouth and nose. 14. Condition of skin - marks of blood Skin destroyed due to decomposition. etc. in suspected drowning the presence or absence of cutes anserina to be notes. Chandrabhan Sudam Sanap v. The State of Maharashtra 15. Injuries to external genitals. G e n i t a l s d i s t o r t e d d u e t o Indication of purging. decomposition. Vaginal wall shows blackish, reddish discolouration at posterior wall, confirmed by cut section. Swabs taken for CA. 16. Position of limbs - Especially of Limbs, hand & feet absent. Nibbling arms and of fingers in suspected seen as mentioned in column No. 12 drowning the presence or right middle ring, little finger present. absence of sand or earth within Nails of this finger showing bluish the nails or on the skin of hands black discolouration. and feet. 17.

Surface wounds and injuries- 1) Contusion over LT-Left fronto Their nature, position, dimensions temporal area 4 x 5 cm, blackish (measured) and directions to be red colour accurately stated - their probable 2) Contusion over lower lip right age and causes to be noted side against canines - blackish red If bruises be present what is the in colour 2 x 2 cm. Both contusions condition of the subcutaneous confirmed by cut section. tissues? (N. B. - when injuries are numerous and cannot be mentioned within the space available they should be mentioned on a separate paper which should be signed) 18. Other injuries discovered No ante mortem fracture. by external examination or perlustration as fractures etc. 22. Opinion as to the cause probable Evidence of blunt injuries over body cause of death and genital injuries seen. However, final opinion reserved pending for C. A. of samples. 6.

The provisional cause of death was given as evidence of blunt injuries over the body and genital injuries were noticed. However, final opinion was reserved pending chemical analysis of samples. After receipt of the chemical analysis report, final cause of death was given as death due to head injury with smothering associated with genital injuries. 7. Most importantly, the time of death was estimated to be 8-10 days before the post-mortem date as no maggots or pupa were seen on 1048 the body. The post-mortem date was 17. 01. 2014. The defence has a case based on this that death would have occurred anytime between 07. 01. 2014 and 09. 01. 2014. The appellant also raised an issue about the failure to draw Panchnama when the brassier of the deceased was purportedly handed over in the hospital to PW-7 Bhausaheb Suresh Mistry. It was only in the police station, according to the prosecution, as spoken to by PW-14 Satyavan Shridhar Gawade, that the Panchnama for the brassier was prepared.

The stand was that between the hospital and the police station, the brassier was not in a sealed condition. It has also been the case of the defence that PW-30 Dattatray Tukaram Naikodi admits to have not made the handing over Panchnama of the brassier from the hospital and also that the brassier was not seen mentioned in the spot Panchnama Exh. 38 or inquest Panchnama Exh. 84. 8. The defence has also raised a grievance with regard to the final conclusion in the death certificate (Exh. 128) about the cause of death being "head injury with smothering associated with genital injuries", contending that this was without any medical or scientific basis since PW-25 admitted in evidence that there was nothing found in the chemical analysis report which he was awaiting. The defence also stated that there was no mention in the Post-mortem Report (Exh. 127) of forceful penetration and that a belated query letter of 28. 07. 2014 (Exh.

129) was sent, in response to which three doctors including PW- 25 stated that injury in column 15 mentioned hereinabove could be due to forcible entry of some article in the vagina and subsequently due to decomposition, vide Exh. 130, dated 14. 08. 2014. 9. Exh. 130, which sets out the queries and the answers are extracted hereinbelow: "Sir, The opinion on the following points with regard to the facts mentioned in column No. 15 of the post-mortem Report, as asked by you vide letter under reference are given as under: 1) What could cause the condition of the organ, as mentioned in the column No. 15? Answer:- Such condition can be caused due to said private part (organ) sustaining injuries before death and subsequently due to decomposition (of its surface) Chandrabhan Sudam Sanap v. The State of Maharashtra 2) Whether forcible entry of some article in the vagina could cause the condition of the organ as mentioned in column No. 15?

Answer:- Yes, on the basis of the entry made in respect of the private part such condition can be caused due to forcible entry of some article in the vagina. 3) Whether the condition of the organ as mentioned in column No. 15 could be caused due to decomposition? Answer:- peruse the answer given at Sr. No. 1. Sd/- (Illegible) Sd/- (Illegible) Sd/- (Illegible) (Dr. M. M. Jawle) (Dr. G. D. Nithurkar) (Dr. G. S. Chavan) Assistant Professor Assistant Professor Deptt. Of Forensic Deptt. Of Forensic Deptt. Of Forensic Medicine Grant Medicine Grant Medicine Grant Medical College, Medical College, Medical College, Mumbai-08" Mumbai-08 Mumbai-08 10. The defence also states that no semen was found on any articles received from the spot or the biological samples of the deceased since the chemical analysis Reports (Exh. 17 to Exh. 34) indicates that on the scarf, T-shirt, knicker with cotton pad, burnt cloth pieces and in the partly burnt cloth pieces and grass, no semen was detected. 11.

Having carefully perused the evidence of PW-25 and the Exh. 127 to Exh. 130, we have no reason to dislodge the findings of the courts below that the death is homicidal in nature. The doctors have clearly opined that the final cause of death was due to head injury with smothering associated with genital injuries and clarified that injuries to the genitals are possible by forcible entry of some article in the vagina. 12. After the post-mortem, the body was handed over to PW-26 on 17. 01. 2014 for performance of last rites which were duly performed. The Appellant has a grievance that when he was arrested, there were parallel investigations being conducted by Kanjur Marg Police Station and Unit V, VI, VII and other Units of Crime Branch between 16. 01. 2014 and 02. 03. 2014. According to the defence, all reporting 1050 within the Crime Branch was oral and there was no legal basis for investigation by the Crime Branch till 02. 03.

2014, when formal orders transferring the investigation were made. Accordingly they contend that, as a result of this, the appellant was in a state of forced ignorance about events from 16. 01. 2014 to 02. 03. 2014, including possible exculpatory material found during the parallel investigation by the Crime Branch. The appellant was arrested on 02. 03. 2014. PW-8 Salim Mustaq Shaikh was the panch witness in the arrest panchnama (Exh. 90). He deposed that during the physical search of the accused, one xerox copy of the letter in the back pocket of his jeans pant was found and when enquired by the police, the appellant told them that it was a Kundli (horoscope) (Article 28) prepared by PW-17 Rajabhau Baburao Aher. We have discussed this aspect in detail later in the judgment. The Crime Branch ultimately filed the charge-sheet for the offences mentioned above.

PW-38 Vyanket Bhanudas Patil stated that investigation in serious offences parallel investigation is often conducted along with the police station having jurisdiction. The prosecution has submitted that parallel investigation was about detection and not collection of evidence. It was further submitted that no prejudice has been caused to the appellant. Keeping in mind the ultimate conclusion that we have arrived at, we do not deem it necessary to delve into this aspect in great detail. It is also not disputed that ultimately, on 02. 03. 2014, formal orders of transfer were made to the Crime Branch. PW-38 further admitted that he called for the opinion of three doctors marked as Exh. 130, after framing of charges and that at the time of addition of Section 376(2)(m) the said opinion was not there. He expressly denied the suggestion that the report was planted since there was no prima facie material for the charges.

We are satisfied that prejudice has been caused to the accused on this score. All the witnesses have been examined only after all the charges were in position. 13. Between 16. 01. 2014 and 02. 03. 2014, investigation was carried on and the prosecution claims that the pen drive of the CCTV footage for the date 05. 01. 2014 between 4:00 AM and 07:00 AM were taken on 18. 01. 2014 from the Lokmanya Tilak Terminus; then the father of the deceased was contacted with the pen drive for identification of deceased EA and statements of witnesses were recorded. Chargesheet was filed after obtaining the FSL report for offences Chandrabhan Sudam Sanap v. The State of Maharashtra mentioned above. At the trial, the prosecution examined 39 witnesses and marked approximately 200 exhibits. The defence examined four witnesses.

DW-1 to DW-3 reporters and editors who are associated with newspapers and DW-4 the official from the mobile company who spoke of CDR details and marked approximately eight exhibits. The appellant was examined under Section 313 and in answer to the last question as to whether he wanted to say anything more, the appellant stated that he was falsely implicated in the case and added that in February 2014, the Kurla Police detained him for 15 days. 14. We have heard Mr. Shri Singh, learned counsel appearing pro bono, for the appellant who presented the case comprehensively and was ably assisted by M/s Pritha Srikumar Iyer, Pratiksha Basarkar, Sakshi Jain and Surabhi Vaya. The prosecution has been effectively represented by Mr. Raja Thakare, learned Additional Solicitor General ably assisted by M/s Siddharth Dharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla, Aditya Krishna, Preet S. Phanse, Adarsh Dubey and Ms. Yamini Singh. Both sides have submitted detailed written submissions.

We have also considered the submissions and perused the records including the Trial Court records. 15. The case rests on circumstantial evidence. We are conscious of the five golden principles enunciated in long line of cases including Sharad Birdhichand Sarda vs State of Maharashtra, (1984) 4 SCC 116, wherein it was held as under:- "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: "(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v.

State of Maharashtra [(1973) 2 SCC 793] where the observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict 1052 and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. " (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. " 16. Keeping in mind the above principles, we have approached the case at hand.

The High Court has tabulated the following circumstances to sustain the conviction in Para 40 of the Judgment:- "(i) The deceased EA who was working with TCS Andheri, Mumbai and a resident of Vijaywada, Andhra Pradesh has boarded the train from Vijaywada to LTT, Kurla on 4th January2014. (ii) Phone calls made by her father to EA on 5th January were not answered and she did not reach her hostel located in Andheri. (iii) A partly burnt decomposed body was found on 16th January2014 near the service road of Eastern Express Highway near Kanjur Marg which came to be identified by PW no. 26 as to be of his missing daughter EA. (iv) The post mortem report establish that the death of the deceased was homicidal and there was injury to her private parts, thereby establishing that she was raped. (v) The Inquest Panchnama and Post Mortem report establish that the body was partly burnt and attempt was made to destroy the evidence by burning the body. Chandrabhan Sudam Sanap v.

The State of Maharashtra (vi) The accused consumed liquor at the residence of PW no. 12 in the company of PW no. 9 and then left his residence by a motorcycle belonging to PW No. 9. (vii) The CCIV footage collected from the LTT Railway station disclosed that the accused was loitering on the platform at 4:50 am. (viii) In the CCIV footage it is seen that the deceased had accompanied the accused while leaving LTT and she was last seen in the company of the accused in the footage. (ix) The accused was seen near the spot on the Eastern Express Highway with the trolley bag and a bag pack belonging to the deceased. (x) The circumstance of the accused seen along with the trolley bag in the morning on the date of incident by PW 13 leaving the building. (xi) The subsequent conduct of the accused i. e. going to the Astrologer and performing a puja in order to wash off the sin committed on a woman and the entry in the register of PW 17 establishing that he has paid an amount of Rs.

3,000/- for performing the said puja. (xii) Articles 22, 23 and 24 belonging to the deceased were identified by PW No. 26 came to be recovered at the instance of the accused along with her articles i. e. identity card, spectacles, her eye-liner, pencil and the DNA Test confirm that it belonged to the deceased. (xiii) The accused in his extra-judicial confession to PW9 had disclosed that he had poured petrol on the dead body of EA and set it on fire after committing rape and on killing her. (xiv) The medical examination of the accused about his potency test and mental health. " We have, while marshalling the evidence below, kept each of the above circumstances in mind. Few circumstances relied upon by the High Court, do not figure in the tabulation. They have also been discussed hereinbelow. 17. Insofar as the circumstances elucidated hereinabove, circumstance no.

1 to 4 pertains to the homicidal nature of the death of the deceased after her travel from Vijayawada in the morning of 4th January, 2014. We have already found that the death was homicidal in nature relying on the evidence of PW-25 and the post-mortem documents (Exh. 127 to Exh. 130). 18. PW- 26, father of the deceased EA, identified her based on the ring in her finger. We have no reason to doubt his deposition. Notwithstanding the challenge mounted by the defence, we are fully convinced that PW-26 was the father of the deceased and, as such, we are not inclined to disturb the finding that PW-26 was indeed the father of the deceased EA; that deceased EA was dropped at the station in Vijayawada on 04. 01. 2014 by PW-26; that deceased called PW-26 when the train was crossing Solapur Station on 04. 01. 2014 at 09:00 PM and that the deceased died due to the injuries mentioned by the experts in the report. 19.

PW-28 Shrikant Hanumant Lade also testified about the DNA profile of PW-26 - the father matching with the paternal alleles in the source, DNA of the deceased. His report is marked as Exh. 22. He compared the DNA profiles from the blood sample of PW-26 and the DNA extracted from the sweat detected on Exh. 1 - ID card with belt, Exh. 2-spectacles and the bone sample of the deceased. Notwithstanding our finding recorded later on on the alleged recovery aspect of the ID card from the sister, as far as this DNA matching is concerned, considering that the DNA has matched with the blood sample of PW-26 with that of the DNA profiles of the deceased, we have no reason to doubt that PW-26 is the father of the deceased EA. 20. The defence feebly questioned the chain of custody with regard to the blood samples of PW-26 and about the lack of underlying scientific basis in the report and testimony of PW-28, the Assistant Director of FSL.

We are not impressed with the said submission and hence, we reject the same, as we find no merits in the said submissions. 21. Insofar as circumstance no. 5, that an attempt was made to destroy the evidence by burning the body is concerned, herein again the prosecution must demonstrate that there was evidence circumstantial or otherwise pointing to the involvement of the appellant. 22. That leaves us with circumstance no. 6, 7, 8, 9, 10, 11, 12 and 13. Insofar as circumstance no. 14 is concerned about the potency and Chandrabhan Sudam Sanap v. The State of Maharashtra mental health of the accused, that by itself again will not point to the involvement unless other circumstances are made out. Hence, what is really to be addressed is circumstance no. 6 to 13 pointed out above. 23. For convenience, the arguments of counsel have been dealt with while marshalling the evidence adduced by the prosecution in an effort to prove the circumstances.

The circumstances alleged had been specified under the following order for providing a logical sequence: i) The evidence of PW-1, PW-30, PW-31, PW-33 and PW-34 with regard to CCTV footage collected from the LTT Railway Station and its admissibility thereof. ii) The evidence of PW-18, PW-19, PW-20 and PW-21 as advanced to establish the sighting of the accused at the LTT Terminus and also to establish last seen theory (PW-20 and PW-21). iii) The evidence of PW-9, PW-12 and PW-22 with regard to the events that allegedly transpired on the night of 04. 01. 2014 and the morning of 05. 01. 2014. iv) The evidence of PW-23 and PW-13 on the issue of alleged presence of the appellant near the scene of crime and his purported exit from the society building. v) The evidence of PW-15, PW-16 and PW-17 with regard to the subsequent conduct of the accused in going to the astrologer and performing the puja at Nasik.

vi) Recovery of articles 22, 23 and 24 along with recovery of identity card, spectacles, eye liner pencil from the sister (not examined) of the accused and the alleged recovery of the Trolley bag from PW-24. vii) Alleged extra judicial confession to PW-9 and the alleged recovery of the motorcycle bearing no. MH-03-AY-0241. CCTV footage and its admissibility thereof:- 24. The prosecution has relied on the CCTV footage which, according to them, was taken from the camera installed at the Lokmanya Tilak Terminus to establish the fact that the appellant was last seen with the deceased at around 05:00 AM in the morning of 05. 01. 2014. To establish this fact, the prosecution has examined PW-1 Girish Rajeshwar Mishra, PW-31 Chandramani Sitaram Pandey, PW-33 1056 Vishal Bhaskar Patil and PW-34 Nishikant Vishwanath Tungare, the Police Inspector. 25. According to PW-1, the data for 05. 01.

2014 between 04:00 AM to 07:00 AM consisting of the CCTV footage for that time was copied in two pen drives on 18. 01. 2014. He has deposed that PW-31 Chandramani Sitaram Pandey searched for the particular date and copied the footage to the pen drives and in this way the footage was copied from the computer in two pen drives. In all 425 files were copied, according to the witness. The witness states that he signed the Panchnama and thereafter PW-34 Nishikant Vishwanath Tungare sealed the articles and stamped it. Mr. Tungare told PW-1 that one pen drive was for the court and one was for operational purpose. The Panchnama was marked as Exh. 36. In Exh. 36 Panchnama the following description of digital video recorder 1 and digital video recorder 2 is given: "Shri Chandramani Pande, acceding to the request made by the Senior Police Inspector, Shri Tungare, gave brief information in respect of the machinery installed in the said CCTV Control Room.

He said that there are 36 cameras in Kurla Terminus area and the recording done by the said cameras is seen on two screens, installed in the control room. Now two screens are seen in the control room, one of the said screens is of LG Company, the recording by 16 cameras, seen on the said screen is stored in HP Company computer CPU, attached thereto. They call the said CPU as Digital Video Recorder-1 (DVR-I). Further, the recording by 20 cameras, seen on the another Samsung Company screen is stored in the i-ball Company computer CPU, attached thereto. They Call the said CPU as Digital Video Recorder-2 (DVR-2). The technician, Shri Pande showed both the said computer CPU. The said CPU are seen to have electric supply from the electric connection in the said room and both the said CPUs are seen to be connected with wires to two separate screens and to the camera installed on platform. " 26.

PW-31 Chandramani Sitaram Pandey is a CCTV operator doing the job in the Central Railway in CCTV department since 2013. According to his deposition, in one monitor, there are 20 cameras and in the Chandrabhan Sudam Sanap v. The State of Maharashtra other there are 16 cameras and the cameras are fixed on all the platforms and rooms and the servers are kept in the control room. He states that there was automatic recording system in the camera and the recording is saved in the server. According to PW-31, in one server there is recording of 12 days and in another server there is recording of one month. After 12 days and one month respectively, the recordings in the servers get automatically deleted and the footage cannot be saved after the said period unless the footage is saved in the hard disc. According to him, the footage of 05. 01. 2014 was available in the CCTV camera and it was copied to the pen drive and given to the police.

In cross-examination, he admitted that he was an employee of contract company Sonal Enterprises. The witness further deposed in the cross-examination as under:- "12.... The limitation for saving the period is for 12 days is in DVR - II. It is correct to say that under DVR II, the recording of 16 cameras is done. I have not stated in my statement that there is recording of 20 cameras in DVR- II. I cannot say why it is mentioned in the statement. The portion marked 'B' in my statement is not stated by me. 13. Sixteen cameras are from platform Nos. 1 to 5 in DVR - II. It is correct to say that the cameras of DVR I is located in outer side of the platform. It is correct to say that 16 cameras which are mentioned in DVR- II covers the half platform and the bridge. It is correct to say that the limitation for saving the data in these 16 cameras are 12 days. I cannot say the date whether the police came to L. T. T. railway station on 18/01/2014.

It is correct to say that the date of 5th March will be deleted on 17th March at night automatically.... 15.... Before 18th the police from Kurla police station never contacted me. RPF also did not call me during the period of 05/01/14 to 18/01/14. It is correct to say that any video can be edited at any stage but not from the server. One can edit the recording from the Pen Drive. " He further admitted that he gave the recording in the pen drive from the server. What is of significance is that the recording on platform nos. 1 to 5 is in DVR-II where the life span is 12 days and also that the DVR-I cameras are located in the outer side of the platform. 1058 27. PW-33 Vishal Bhaskar Patil, is Police Constable attached to Lokmanya Tilak Terminus who was on duty in Railway Protection Force. He speaks of CCTV footage being taken after the Senior Police Officer met the officers of Railway Protection Force and obtained oral permission.

On a specific question whether there was any fault in the CCTV server during the period 01. 01. 2014 to 08. 01. 2014, he answered that on 18. 01. 2014, there was a fault and the server was not working and therefore Mr. Pandey was called. He further stated that after repair, the servers were fine. He further stated that on 18. 01. 2014, there was no fault in the cameras of DVR-II. 28. Mr. Shri Singh, learned counsel relying on Section 65-B of the Indian Evidence Act, 1872 has raised objection regarding admissibility of CCTV evidence. Before we deal with the admissibility, we would briefly discuss the evidence based on the CCTV to see if even assuming the CCTV evidence was admissible as to where it takes the prosecution case? The CCTV footage was marked through the evidence of PW-1 as Article 1 and 1-A being the pen drive and Exh. 36 being the Panchnama for collection of CCTV.

The CCTV was first played before PW-26, the father of the deceased EA who testified to the effect that it was his daughter in the footage who was entering the platform along with a trolley bag and a sack on the back. PW- 26 further stated that in one footage his daughter was holding the mobile and one man was driving her trolley. 29. PW-27 Hemant Dharma Kohli claims to be a neighbour in the building where the appellant resided. He deposes that, on 26. 03. 2014, the police asked him to come to the police station and he states that the police showed him two CCTV footages and in one footage he saw that the appellant was walking on the platform with one bottle of cold drink in his hand and in another footage he was driving the trolley bag. He also stated that the said person was the appellant in both the footages. 30. PW-34 Mr. Nishikant Tungare is a Senior Police Inspector attached to Kanjur Marg Police Station.

He speaks of visiting the CCTV control room and asking for the footage of 05. 01. 2014 between 04:00 AM and 07:00 AM. He speaks of calling for two pen drives from PC Jadhav and about the drawing of Panchnama and completing the same by 07:15 PM. Thereafter, he deposed to the following effect: Chandrabhan Sudam Sanap v. The State of Maharashtra "8. During the investigation, it was found that one person who is working in salt office which is near the spot is having some important information with him. Therefore, I asked the team to call him in the police station. I called him and I recorded his statement. His name is Prahlad Yadav. On 05/01/14 Prahlad Yadav saw that one person was trying to start his motorcycle near the spot. I recorded his statement on 19/01/14. 9. I have recorded the statement of the ASI who has taken the samples to the forensic lab.

When I was watching the CCTV footage in pen drive, I found that one person was talking with somebody therefore I gave the instructions to inquire said person. Said person was seen in said CCTV footage for many times and he was having a bottle of soft drink in his hand. After inquiry, I came to know that said person was talking with the person who was the A. C. mechanic of the railway and his name is Nair. I called him in the police station, inquired him and I recorded his statement on 22/01/14. 10. During inquiry, the investigating team found that said soft drink bottle was purchased by him from one of the stalls in railway staff therefore I called said person in the police station and I recorded his statement. I inquired him how he remembered said person, he gave the statement and accordingly I recorded it. 11.

During the inquiry with auto and taxi drivers, the investigating team found that two drivers have seen the girl whose photo was shown to them therefore I called said taxi drivers and recorded the statements of two taxi drivers. " 31. PW-34 deposed that he went to Kurla Terminus for the first time on 18. 01. 2014 at 10:00 AM and he further stated that he did not enquire with the persons from the Railway Station about the incident. He however, stated that when he was in the CCTV control room, other staff members were enquiring about the crime. PW-34 deposes that he gave the copies of the photographs of the deceased EA to all the investigating team members and that was a coloured photograph. He however added that neither did he collect the photograph of the accused after watching the CCTV footage nor asked for the sketch 1060 of the accused. PW-34 deposed that he did not show the CCTV footage to PW-18 Shivkaran Chotelal Patel. 32. Mr.

Shri Singh, learned counsel vehemently contended that the CCTV footage in no way advances the case of the prosecution. According to the learned counsel, if the footage was admittedly from DVR-II, the life span of the footage would have been only till 17. 01. 2014 and since admittedly the Panchnama was drawn on 18. 01. 2014 and the pen drives were taken on 18. 01. 2014, the CCTV footage is not reliable. CCTV footage, if available from 18. 01. 2014, was inexplicably not used for identification by chance witnesses, raising doubts on its seizure and veracity. According to the learned counsel, if the CCTV footage had been obtained from 18. 01. 2014, there was no reason why it was not shown to PW-18 Shivkaran Chotelal Patel (statement recorded on 08. 02. 2014), PW-19 Surendra P. P. Nayar (statement recorded on 22. 01. 2014) and PW-23 Prahlad Kumar Yadav (statement recorded on 19. 01. 2014) to confirm that the individual person that they saw on 05. 01.

2014 was in fact the same person seen in the CCTV footage. In any case, according to the learned counsel, PW- 18, PW-19 and PW-23 only claim to have seen the appellant and not the appellant and the deceased together. Equally, according to the learned counsel, a serious doubt arises since PW-20 Ramesh Sonu Rathod and PW-21 Ganesh Krishna Shetty were also not shown the CCTV footage since they claim to have seen the appellant with the deceased. No sketch or photograph of the person in the CCTV footage was also prepared and the footage was also not sent for forensic analysis. 33. According to the learned counsel, the CCTV footage will not tantamount to "last seen together evidence" as identification of the appellant and the deceased in the same footage has not been proved.

Learned counsel submits that no witness identified both the deceased and the appellant in the CCTV footage and the two witnesses to whom the CCTV footage was shown Singavarapa Jonathan Surendra Prasad PW-26 (who identified his daughter) and PW-27 who identified the appellant have not established the fact that the identifications were in the same footage. PW-26 identified only his daughter coming out with her bag and with an unknown person on platform no. 4 of LTT Station and PW-27 saw the footage and identified the appellant, in one footage with the cold drink bottle and in another with the trolley bag but did not mention presence of any Chandrabhan Sudam Sanap v. The State of Maharashtra girl, contends the learned counsel. Learned counsel contends that PW-27's identification did not inspire confidence as it was as late as on 26. 03. 2014; that the police brought him into the picture and nothing was there to establish that PW-27 knew the appellant as a person who roams in the area.

Learned counsel further contends that PW-38 Vyanket Bhanudas Patil admitted that he did not collect the address proof of PW-27. According to the learned counsel, it is unclear as to how the police knew that the persons PW-18 and PW-19 were speaking to the same person who was seen in the footage. 34. We find that the infirmities referred to by the defence namely, about the life span of the CCTV footage in DVR-II being 12 days; the absence of identification of both the appellant and deceased in the same footage by the witnesses; the absence of explanation as to how the Police knew that the person PW-18 and 19 were speaking to was the same person in the footage and other infirmities raised have not been adequately answered by the prosecution in its evidence. Learned Additional Solicitor General Mr. Raja Thakare painstakingly took us through the available evidence and objectively placed the matter before us.

However, from the material available on record, these lingering doubts in our mind have not been adequately addressed. 35. However, what resolves this issue against the prosecution completely is the failure of prosecution to follow the mandate under Section 65-B of the Indian Evidence Act, and the failure to produce the Section 65-B(4) certificate. Section 65-B reads as under:- "Section 65-B - Admissibility of electronic records.

(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.

1062 (2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:-- (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; (c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether-- (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, Chandrabhan Sudam Sanap v. The State of Maharashtra all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, -- (a) identifying the electronic record containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section, (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; -- (b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; 1064 (c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.

-- For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived there from by calculation, comparison or any other process. " 36. Mr. Shri Singh learned counsel for the appellant fairly submits that when the CCTV footage was introduced as evidence through PW-1 on 28. 08. 2014, the judgment of this Court in State (N. C. T. of Delhi) v. Navjot Sandhu @ Afsan Guru, (2005) 11 SCC 600 was holding the field. In Navjot Sandhu (supra), this Court held as follows: "150. According to Section 63, secondary evidence means and includes, among other things, "copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies". Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable.

It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service-providing company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge. 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. " Chandrabhan Sudam Sanap v. The State of Maharashtra 37. However, on 18. 09. 2014, in the case of Anvar P. V. v. P. K. Basheer & Ors. , (2014) 10 SCC 473,Navjot Sandhu (supra) was overruled. In Anvar P. V. (supra), it was held as under: "22. The evidence relating to electronic record, as noted 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 case [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 : 2005 SCC (Cri) 1715] , 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. " 38. According to the learned counsel, since the exhibits were marked before 18. 09.

2014, the appellant did not have the benefit of the decision of the Anvar P. V. (supra) when the footages were marked. 39. In Shafhi Mohammad v. The State of Himachal Pradesh (2018) 2 SCC 801 (delivered on 30. 01. 2018), a two Judge Bench of this Court after noticing Anvar P. V. (supra) held that a party who is not in possession of device from which the document is produced cannot be required to produce the certificate under Section 65-B(4) of the Indian Evidence Act. It also held that applicability of requirement of certificate being procedural can be relaxed by the Court wherever interest of justice so justifies. 1066 40. In Sonu @ Amar vs State of Haryana (2017) 8 SCC 570, (delivered on 18. 07. 2017) the following paragraphs being crucial are extracted hereinbelow:- "30. In R. V. E. Venkatachala Gounder [R. V. E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V. P. Temple, (2003) 8 SCC 752] , this Court held as follows: (SCC p. 764, para 20) "20. ...

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 [Ed. : The matter between two asterisks has been emphasised in original. ] itself inadmissible [Ed. : The matter between two asterisks has been emphasised in original. ] in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the [Ed. : The matter between two asterisks has been emphasised in original. ] mode of proof [Ed. : The matter between two asterisks has been emphasised in original. ] 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 when 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 Chandrabhan Sudam Sanap v. The State of Maharashtra 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 latter 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. 31. It would be relevant to refer to another case decided by this Court in P. C. Purushothama Reddiar v. S. Perumal [P. C. Purushothama 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: (SCC p. 15, para 19) "19. 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. " 32. 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 1068 court without a certificate as required by Section 65-B(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 CrPC, 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. " As rightly pointed out by Mr. Raja Thakare, learned Additional Solicitor General, it was held in Sonu (supra) that objection about Section 65-B(4) of the Indian Evidence Act, not being complied, cannot be taken at the appellate stage since that will deny an opportunity for the prosecution or the opposite party to rectify the defect. It was also held that the documents were not inherently inadmissible in evidence. 41. In this case, learned counsel Mr.

Shri Singh contends that even though there was no objection when PW-1 marked the exhibits; question was put to PW-38 Vyanket Bhanudas Patil about the need Chandrabhan Sudam Sanap v. The State of Maharashtra for Section 65-B certificate and its absence in the case of CCTV footage particularly when Section 65-B certificate was furnished for CDR report by the police. Relevant part of the deposition of PW-38 reads as under: "It is correct to say that while calling the CDR reports, I called the certificates u/s. 65-B of Evidence Act. It is correct to say that I was aware that while collecting the electronic evidence, the certificate is required. It is correct to say that I have not collected the certificate for CCTV footage. It is correct to say that I have not taken any authority letter from railway or said company to show that Chandramani Pandey has authority to handle the CCTV server.

It is correct to say that the papers which were received from the Kanjur Marg police station, no such certificate was received. " 42. The deposition of PW-38, when this question was put, was recorded on 18. 06. 2015 when the judgment in Anvar P. V. (supra) was holding the field. The prosecution ought to have taken a cue and attempted to remedy the situation. They have not done so. 43. We are dealing with a criminal case where the accused is being tried for the offences which involve capital punishment. A court of law in this scenario cannot be technical about the manner of objections that are raised. Even though objection has not been raised specifically when the CCTV footage was exhibited by PW-1, when PW-38 was in the witness box a specific question was put to him and subsequent to evidence, he deposed that he was aware of the necessity of furnishing 65-B certificate while collecting electronic evidence.

On the facts of the present case, we are inclined to treat it as an objection taken at the earliest point in time. Thus, when the prosecution was aware of the need for the 65-B (4) certificate and they themselves collected it for the CDRs there was no reason as to why they did not collect the same for the CCTV footage. 44. The resort to Section 465(2) Cr. P. C. by the learned A. S. G. does not impress us because according to us, objection has been taken at the earliest available instance. 45. The Trial Court judgment in this case came on 31. 10. 2015, when Anvar P. V. (supra) was holding the field and the High Court judgment came when Sonu (supra) had been further reinforced by the judgment in Shafhi Mohammad (supra) (delivered on 30. 01. 2018). 1070 46. The High Court pronounced its verdict on 20. 12. 2018.

What is important is that the High Court which also viewed the CCTV footage had the following crucial finding to make: "The CCTV footage obtained by the Investigating Agency during the course of investigation and which was put before the trial Court through Prosecution Witness No. 31 is the axis of the whole chain of circumstances relied upon by the prosecution. " 47. A two-Judge Bench in a referral order reported in Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal & Ors. , (2020) 3 SCC 216 referred the following question to a larger bench: "3. We are of the considered opinion that in view of Anvar P. V. [Anvar P. V. v. P. K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] , the pronouncement of this Court in Shafhi Mohammad [Shafhi Mohammad v. State of H. P. , (2018) 2 SCC 801 : (2018) 2 SCC (Civ) 346 : (2018) 1 SCC (Cri) 860] needs reconsideration.

With the passage of time, reliance on electronic records during investigation is bound to increase. The law therefore needs to be laid down in this regard with certainty. We, therefore, consider it appropriate to refer this matter to a larger Bench. Needless to say that there is an element of urgency in the matter. " 48. The reference came to be answered in the judgment reported in (2020) 7 SCC 1 by a three-Judge bench in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors. The relevant portions of which are as under:- "45. Thus, it is clear that the major premise of Shafhi Mohammad [Shafhi Mohammad v. State of H. P. , (2018) 2 SCC 801 : (2018) 2 SCC 807 : (2018) 2 SCC (Civ) 346 : (2018) 2 SCC (Civ) 351 : (2018) 1 SCC (Cri) 860 : (2018) 1 SCC (Cri) 865] that such certificate cannot be secured by persons who are not in possession of an electronic device is wholly incorrect.

An application can always be made to a Judge for production of such a certificate from the requisite person under Section 65-B(4) in cases in which such person refuses to give it. Chandrabhan Sudam Sanap v. The State of Maharashtra 46. Resultantly, the judgment dated 3-4-2018 of a Division Bench of this Court reported as Shafhi Mohd. v. State of H. P. [Shafhi Mohd. v. State of H. P. , (2018) 5 SCC 311 : (2018) 2 SCC (Cri) 704], in following the law incorrectly laid down in Shafhi Mohammad [Shafhi Mohammad v. State of H. P. , (2018) 2 SCC 801 : (2018) 2 SCC 807 : (2018) 2 SCC (Civ) 346 : (2018) 2 SCC (Civ) 351 : (2018) 1 SCC (Cri) 860 : (2018) 1 SCC (Cri) 865] , must also be, and is hereby, overruled. 47. However, a caveat must be entered here.

The facts of the present case show that despite all efforts made by the respondents, both through the High Court and otherwise, to get the requisite certificate under Section 65-B(4) of the Evidence Act from the authorities concerned, yet the authorities concerned wilfully refused, on some pretext or the other, to give such certificate. In a fact-circumstance where the requisite certificate has been applied for from the person or the authority concerned, and the person or authority either refuses to give such certificate, or does not reply to such demand, the party asking for such certificate can apply to the court for its production under the provisions aforementioned of the Evidence Act, CPC or CrPC.

Once such application is made to the court, and the court then orders or directs that the requisite certificate be produced by a person to whom it sends a summons to produce such certificate, the party asking for the certificate has done all that he can possibly do to obtain the requisite certificate..... 52. We may hasten to add that Section 65-B does not speak of the stage at which such certificate must be furnished to the Court. In Anvar P. V. [Anvar P. V. v. P. K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] , this Court did observe that such certificate must accompany the electronic record when the same is produced in evidence. We may only add that this is so in cases where such certificate could be procured by the person seeking to rely upon an electronic record.

However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by 1072 the person concerned, the Judge conducting the trial must summon the person/persons referred to in Section 65- B(4) of the Evidence Act, and require that such certificate be given by such person/persons. This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned. This is, of course, subject to discretion being exercised in civil cases in accordance with law, and in accordance with the requirements of justice on the facts of each case. When it comes to criminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the CrPC. 56.

Therefore, in terms of general procedure, the prosecution is obligated to supply all documents upon which reliance may be placed to an accused before commencement of the trial. Thus, the exercise of power by the courts in criminal trials in permitting evidence to be filed at a later stage should not result in serious or irreversible prejudice to the accused. A balancing exercise in respect of the rights of parties has to be carried out by the court, in examining any application by the prosecution under Sections 91 or 311 CrPC or Section 165 of the Evidence Act. Depending on the facts of each case, and the court exercising discretion after seeing that the accused is not prejudiced by want of a fair trial, the court may in appropriate cases allow the prosecution to produce such certificate at a later point in time.

If it is the accused who desires to produce the requisite certificate as part of his defence, this again will depend upon the justice of the case -discretion to be exercised by the court in accordance with law. 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. [Anvar P. V. v. P. K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] , and incorrectly Chandrabhan Sudam Sanap v. The State of Maharashtra "clarified" in Shafhi Mohammad [Shafhi Mohammad v. State of H. P. , (2018) 2 SCC 801 : (2018) 2 SCC 807 : (2018) 2 SCC (Civ) 346 : (2018) 2 SCC (Civ) 351 : (2018) 1 SCC (Cri) 860 : (2018) 1 SCC (Cri) 865] . 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 [Taylor v. Taylor, (1875) LR 1 Ch D 426] , 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. 73. The reference is thus answered by stating that: 73. 1. Anvar P. V. [Anvar P. V. v. P. K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] , as clarified by us hereinabove, is the law declared by this Court on Section 65-B of the Evidence Act. The judgment in Tomaso Bruno [Tomaso Bruno v. State of U. P. , (2015) 7 SCC 178 : (2015) 3 SCC (Cri) 54] , being per incuriam, does not lay down the law correctly. Also, the judgment in Shafhi Mohammad [Shafhi Mohammad v. State of H. P.

, (2018) 2 SCC 801 : (2018) 2 SCC 807 : (2018) 2 SCC (Civ) 346 : (2018) 2 SCC (Civ) 351 : (2018) 1 SCC (Cri) 860 : (2018) 1 SCC (Cri) 865] and the judgment dated 3-4-2018 reported as Shafhi Mohd. v. State of H. P. [Shafhi Mohd. v. State of H. P. , (2018) 5 SCC 311 : (2018) 2 SCC (Cri) 704] , 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 1074 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. [Anvar P. V. v. P. K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] 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. [Anvar P. V. v. P. K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] does not need to be revisited.

" (Emphasis supplied) 49. This judgment has put the matter beyond controversy. In view of the above, there is no manner of doubt that certificate under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record and further it is clear that the Court has also held Anvar P. V. (supra) to be the correct position of law. 50. There is one more difficulty in the way of prosecution in this case. In Sundar @ Sundarrajan vs. State by Inspector of Police, (2023) SCC OnLine SC 310 this Court reiterated the holding in Mohd. Arif @ Ashfaq v. State (NCT of Delhi), (2023) 3 SCC 654 and held that in matters pertaining to award of death sentence, the case must be considered in the light of the decisions in Anvar P. V. (supra) and Arjun Panditrao Khotkar (supra). So holding, the Court in both Sundar (supra) andMohd.

Arif (supra), after noticing the holding in Sonu (supra) eschewed the electronic evidence for want of certificate under Section 65-B(4) of Indian Evidence Act and considered the matter. Paragraphs 44 to 46 from Sundar (supra) are extracted hereinbelow:- "44. Therefore, we are inclined to agree with the ratio in Sonu by not allowing the objection which is raised at a belated stage that the CDRS are inadmissible in the absence of a Section 658 certificate, especially in cases, Chandrabhan Sudam Sanap v. The State of Maharashtra where the trial has been completed before 18 September 2014, i. e. before the pronouncement of the decision in Anvar P. V.. However, we are also mindful of the fact that the instant matter involves the death sentence having been awarded. 45. Most recently, in Mohd. Arif v.

State (NCT) of Delhi, a three judge Bench of this Court while deciding a review petition in a case involving the review of a death penalty faced a similar fact situation where the decisions of the trial court and appellate courts were rendered during the period when Navjot Sandhu was the prevailing law. In that case as well, the Court took note of it being a matter involving a death sentence and held that: "24. Navjot Sandhu was decided on 4. 8. 2005 i. e. , before the judgment was rendered by the Trial Court in the instant matter. The subsequent judgments of the High Court and this Court were passed on 13. 9. 2007 and 10. 8. 2011 respectively affirming the award of death sentence. These two judgments were delivered prior to the decision of this Court in Anvar P. V. which was given on 18. 9. 2014. The judgments by the trial Court, High Court and this Court were thus well before the decision in Anvar P. V. and were essentially in the backdrop of law laid down in Navjot Sandhu.

If we go by the principle accepted in paragraph 32 of the decision in Sonu alias Amar, the matter may stand on a completely different footing. It is for this reason that stand on has been placed on certain decisions of this Court to submit that the matter need not be reopened on issues which were dealt with in accordance with the law then prevailing. However, since the instant matter pertains to award of death sentence, this review petition must be considered in light of the decisions made by this Court in Anvar P. V. and Arjun Panditrao. 25. Consequently, we must eschew, for the present purposes, the electronic evidence in the form of CDRs which was without any appropriate certificate under Section 65-B(4) of the Evidence Act. " 1076 46.

Accordingly, we too deem it appropriate to consider this review petition by eschewing the electronic evidence in the form of CDRS as they are without the appropriate certificate under Section 658 even if the law, as it was during the time the trial in the present case was conducted, allowed for such electronic evidence to be admitted. " (Emphasis supplied) 51. In view of the above, we are not able to place any reliance on the CCTV footage, insofar as an attempt is made by the prosecution to attribute that the appellant and the deceased EA were last seen together based on the CCTV footage. We eschew the same from consideration. Evidence of PW-20 and PW-21 for the last seen together as well as evidence of PW-18 and PW-19 for sighting the appellant: 52. Anticipating the problem that he might encounter due to the absence of 65-B(4) certificate, Mr.

Raja Thakare, learned Additional Solicitor General tried to sustain the conviction by relying on the evidence of PW-20 and PW-21 for having last seen the appellant and deceased EA together and also on the evidence of PW-18 and PW-19 for having sighted the appellant on the morning of 05. 01. 2014. 53. PW-20 Ramesh Sonu Rathod is a witness doing the job in taxi pre- paid booth at Kurla Terminus for the last three years as of 11. 02. 2015, the day he deposed. His statement was recorded on 20. 03. 2014, a good two months and 15 days after the incident. He also participated in the identification parade on 25. 03. 2014 and identified the accused. He admits that on 07. 01. 2014 persons from Crime Branch came and met him but could not identify as to who they were. He denies the suggestion that he had disclosed whatever he knew about the incident to them. He admits that thereafter he met the police only on 20. 03. 2014. 54.

According to PW-20, his job as supervisor involved the work of looking after the workers and going to RTO for office purposes. He deposed that in January there was a Sai Bhandara and therefore he was collecting the donation from rickshaw drivers for Sai Bhandara on 05. 01. 2014, while on duty from 09:00 PM on 04. 01. 2014 to 09:00 AM on 05. 01. 2014. He claims that on that day Visakhapatnam Train Chandrabhan Sudam Sanap v. The State of Maharashtra came on the platform at about 05:00 AM to 05:15 AM, and he saw one lady going with one man who was having trolley bag in his hand. The witness deposes that he enquired whether the man required a taxi and the said man told that he was having vehicle. He described the man as having a broad moustache and was bald from front side, about 5'5'' tall and wearing T-shirt and blue jeans pant. He was about 35 years of age. He deposes that police came to enquire regularly and used to pressurize the taxi drivers.

He states that his friend Ganesh Shetty (PW-21) came to him and told him that he visited the police station and gave statement to the police about the said lady. At that time, PW-20 said that he also saw that girl and was ready to give his statement. Thereafter, he went with his friend to Crime Branch on 20. 03. 2014 and gave his statement that he saw the girl going with one person. On 25. 03. 2014, he speaks of the TI parade held to identify the appellant. He deposes in cross-examination that the drivers of pre-paid taxi never called passengers like normal taxi driver and also that about 500-600 persons would get down from the train and leave in a hurry. He further deposed that many people were having thick moustache. 55. PW-20 claimed that he was watching them for two minutes from a distance. He claimed that the girl was wearing T-shirt, jeans and Dupatta though he could not say about the colour of the Dupatta and T-Shirt. He stated that the girl was of 4'5'' in height.

He admits that he came to know about the murder of the said girl on 05. 01. 2014 and was aware that the police was en