Appeal against acquittal – Reversal of acquittal – When not justified – Prosecution’s case that co-accused-‘S’ (mother and wife of the appellants) and her associates had a quarrel with deceased and ‘S’ threatened to kill the deceased, however, matter was reported to the police and was amicably settled – Later, on receiving a phone call from ‘S’, the deceased went to her residence whereafter, he went missing – FIR filed – Trial court convicted ‘S’ u/s.302/34 with her brother, who was also convicted u/s.201/34 with another co-accused, however, the appellants were acquitted – High Court inter alia upheld the conviction of ‘S’ but, reversed the acquittal of the appellants and held them guilty u/s.302/34, IPC – Appeals filed by the appellants and ‘S’, who died in the meantime and her appeal abated:
Held: Prosecution case is based on circumstantial evidence – After the patch up the deceased returned to his residence – No direct, credible and reliable evidence that the he had actually gone to ‘S’s residence on the fateful evening – Possibility of the witnesses implicating ‘S’ and other family members in the crime out of mere suspicion cannot be ruled out – Further, admittedly, there is no direct evidence with regard to presence of the appellants at their residence when the murder is alleged to have occurred – High Court reversed the acquittal on the specious logic that appellants being the son and husband of ‘S’ and ordinarily residing with her ought to be presumed to be present in the house – Furthermore, in absence of medical evidence that murder was committed by a single person, High Court incorrectly drew its own inference that ‘S’ was assisted by others in committing the crime and roped in her family members-the appellants – High Court not justified in reversing the findings of acquittal on the basis of mere surmises – Impugned judgment set aside to the extent it convicts the appellants. [Paras 11, 19-22, 26, 29]
Appeal against acquittal – Interference by appellate court – Scope:
Held: In an appeal against acquittal, the appellate court would not interfere with the finding of the trial court unless it is wholly perverse or against the weight of evidence on record – In the event acquittal is based on findings which are reasonable and plausible, appellate court would be slow to interfere with the same as the presumption of innocence stands re-enforced by the acquittal. [Para 16] Criminal Law – Burden of proof – Evidence Act, 1872 – s.106 – Adverse inference under, when cannot be drawn – Prosecution’s case that co-accused-‘S’ (mother and wife of the appellants) and her associates had a quarrel with deceased and ‘S’ threatened to kill the deceased, however, matter was reported to the police and was amicably settled – Later, on receiving a phone call from ‘S’, the deceased went to her residence whereafter, he went missing – FIR filed – Trial court convicted ‘S’ u/s.302/34 with her brother, while the appellants were acquitted – Appellants’ presence at ‘S’s residence when the murder of the deceased is alleged to have occurred was not proved – However, High Court reversed the acquittal of both the appellants and held them guilty u/s.302/34, IPC holding that they being the son and husband of ‘S’ and ordinarily residing with her ought to be presumed to be present in the house: Held: In a criminal case, the burden of proof always rests on the prosecution – Only when it discharges the initial onus, that is, proves the incriminating attending circumstances to establish the cause of death was within the ‘special knowledge’ of an accused does the onus shift and an adverse inference against such accused may be drawn if he fails to discharge such onus – In the present case, in absence of reliable evidence proving the presence of the appellants at ‘S’s residence when the deceased is said to have come there, it cannot be said that the prosecution had discharged its initial onus and proved the appellants were present in the house when the murder occurred – Such failure of the prosecution cannot be bridged by an inferential conclusion of presence of all inmates in the house to shift the onus on them to explain away the circumstances leading to the deceased’s homicidal death – High Court failed to appreciate this lacuna in the prosecution case and illegally drew adverse inference against the appellants u/s.106 – Appeal against acquittal. [Paras 42-44]
Evidence Act, 1872 – s.65-B(4) – Call detail records (CDRs) between one of the appellants, ‘R’ and co-accused‘MF’(appellant’s uncle), being Ex.PW 23/A and 23/B were produced – Site details of Airtel in Delhi and NCR were exhibited as Ex.PW23/C – The ownership certificate was also produced as Ex.PW23/D – All the exhibits were secondary evidence being computer printouts of the data preserved in the computers of the service provider concerned – High Court relied on the CDRs and held that as the tower location of R’s mobile number was Nizamuddin, his presence at the place of occurrence was established:
Held: This finding is based on inadmissible evidence and even otherwise such conclusion on the basis of evidence on record is too tenuous – Even if the CDRs and other electronic records were admitted in evidence they merely contain the cell tower location information, that is to say, which tower mobile phone was connected to and how long the calls lasted when it was connected to that tower – These data give an approximate area corresponding to the operational area of the cell tower and not the exact site where the phone is located – Reference to Nizamuddin cell tower in CDRs merely shows that R’s phone was within the operational range of such tower – This evidence cannot be relied on solely to prove his presence at his residence beyond doubt – Also, telephonic exchanges between ‘R’ and ‘MF’ do not lead to an inference of conspiracy to murder as ‘MF’ was acquitted of the charge of murder which was not appealed against – Moreover, during the trial appellants raised objections to admissibility of the secondary electronic evidence relating to ‘R’ which was marked as exhibit PW23/B-D – The prosecutor was put on due notice and had opportunity to fill the lacuna by producing the requisite certificate u/s.65-B(4) but did not do so – Exhibits are inadmissible in law being secondary evidence without certification. [Paras 30, 36, 37, 38, 40, 41] Criminal Law – Incriminating fact, when proved: Held: An incriminating fact is said to be ‘proved’ when after considering the matters before it, the court believes it to exist or considers its existence so probable that a man of ordinary prudence would act as if the same existed. [Para 25]
Evidence – Call detail records (CDRs); Dependence of cell tower ranges on different variables; Cell triangulation – Discussed. [Paras 37-39]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Divya Pandey. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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