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2023 DIGILAW 147 (SC)

Bhupendra @ Prakash Bhargav v. State of Chhattisgarh

2023-02-01

BELA M.TRIVEDI, DINESH MAHESHWARI

body2023
ORDER 1. Leave granted. 2. Having heard learned counsel for the parties and having perused the record, we are clearly of the view that the impugned judgment and order dated 16.4.2018, as passed by the High Court of Chhattisgarh at Bilaspur in CRA No. 14 of 2013, cannot be approved when it is noticed that the High Court has not dealt with all the salient features and material aspects of the case before approving the conviction of the appellant; and, therefore, the matter deserves to be remanded to the High Court for reconsideration and for decision afresh on merits. 3. As the matter is proposed to be remanded for reconsideration, dilation on all the factual aspects and merits of the case is neither necessary nor desirable. 3.1. Suffice it to notice for the present purpose that the informant of the present case alleged to have received a call on his mobile on 8.9.2011 at 21:15 hrs. from an unknown person that his 5½ -years-old daughter was with the caller, who demanded a ransom of Rs. 3 lacs while threatening to kill his daughter if any information was furnished to the police. The informant immediately contacted his wife and enquired about the child who, in turn, informed that their daughter had not returned from the house of a neighbour. The informant further alleged that he also received a message from mobile number 7898886050. After returning from duty, he lodged the written complaint with the Station House Officer, Pamgarh, District Janjagir-Champa. 3.2. Based on the said information, FIR was registered for offences under sections 363 and 364A of the Indian Penal Code, 1860 (‘IPC’) against unknown person. As per the prosecution, the appellant was apprehended and upon his alleged disclosure statement (Ex. P-7), a motor cycle bearing registration number CG-11B-3164; and a white mobile set carrying the aforesaid number 7898886050 was also recovered at his instance under a seizure memo (Ex. P-8). It was also alleged that the appellant made another disclosure about his having thrown away the girl over Arpa river but, the dead body was not recovered. 3.3. After investigation, the charge-sheet was filed against the appellant for offences under sections 363, 364A and 302 IPC and under section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3.4. 3.3. After investigation, the charge-sheet was filed against the appellant for offences under sections 363, 364A and 302 IPC and under section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3.4. After trial, the Court of Special Sessions Judge, Janjgir-Champa, by its judgment and order dated 11.12.2012, held that though the ingredients of section 3(2)(v) of the said Act of 1989 were not established but, the offences under sections 363, 364A and 302 IPC were clearly established against the appellant. In this regard, the Trial Court essentially relied upon the facts that the appellant obtained a SIM card without documents, as stated by PW-4; that though the mobile was not registered in the name of the appellant but was recovered from the place disclosed by him; that by the testimony of PW-17 Rajendra Shrivastav, the documents of call details (Ex. P-22) were proved and it was also proved that the calls and message in question were made from the mobile seized from the appellant; and that the appellant was seen going on the motor cycle that was seized from him. The Trial Court also relied upon the testimony of PW-5 before whom the appellant had allegedly made the admission about commission of offences. The appellant was convicted accordingly and was awarded varying punishments, including that of imprisonment for life in relation to the offence under section 364A as also in relation to the offence under section 302 IPC. 4. It appears that in appeal before the High Court, submissions were made that the impugned judgment was perverse inasmuch as the trial Court did not appreciate the evidence in its proper perspective and that in the absence of any eye-witness, the trial Court ought not to have based its judgment on the weak circumstantial evidence like SMS/call details. It was also submitted that the alleged SMS/call details were not duly proved because the certificate as required under section 65B of the Indian Evidence Act, 1872 (‘the Evidence Act’) was not produced. On the other hand, the impugned judgment of the Trial Court was duly supported on behalf of the State and it was also submitted that the Trial Court had duly appreciated the evidence on record. 4.1. On the other hand, the impugned judgment of the Trial Court was duly supported on behalf of the State and it was also submitted that the Trial Court had duly appreciated the evidence on record. 4.1. The High Court, after taking note of rival contentions, referred in brief to the testimonies of the relevant witnesses and then, proceeded to examine the contention urged on behalf of the appellant pertaining to the mandatory requirements of section 65B of the Evidence Act. In that regard, after reproducing paragraphs 26, 27 and 30 of the decision of this Court in the case of Sonu alias Amar v. State of Haryana : AIR 2017 SC 3441 , the High Court concluded on the matter while observing that by applying the principles so laid down, the contentions on behalf of the appellant based on the other decision of this Court in the case of Anvar P.V. v. P.K. Basheer : (2014) 10 SCC 473 were required to be rejected because the SMS/call details were duly exhibited and admitted in evidence without any objection being raised during trial. 5. Having examined the judgment of the High Court, we are impelled to observe that, in a matter relating to conviction of the offences under sections 363, 364A and 302 IPC leading to the sentence extending to imprisonment for life, the appeal by the accused-appellant could not have been disposed of by mere rejection of one of the contentions pertaining to section 65B of the Evidence Act. 5.1. The relevant submissions on behalf of the appellant, that in the present case based on circumstantial evidence, the conclusion on guilt beyond reasonable doubt could not have been recorded merely with reference to SMS/call details appear not to have gone into consideration of the High Court. Putting it in different words, it is difficult to find from the impugned judgment if the High Court has analysed the relevant evidence on record, so as to form a considered opinion about existence of an unfailing chain of circumstances leading to the only hypothesis of the guilt of the appellant. 5.2. Putting it in different words, it is difficult to find from the impugned judgment if the High Court has analysed the relevant evidence on record, so as to form a considered opinion about existence of an unfailing chain of circumstances leading to the only hypothesis of the guilt of the appellant. 5.2. We would hasten to observe that we are not commenting on the sustainability or otherwise of the findings of the trial Court nor we are recording any findings on merits but, are clearly of the view that in disposal of the criminal appeal of present nature, due appreciation of the material evidence on record and due recording of the necessary findings remains a necessity, which could neither be ignored nor obviated by the Court dealing with a regular criminal appeal. That being the position, we deem it appropriate to restore the appeal for reconsideration of the High Court. 6. Accordingly, and in view of the above, the impugned judgment and order dated 16.4.2018 is set aside and CRA No.14 of 2013 stands restored for reconsideration of the High Court. 7. The parties through their respective counsel shall stand at notice to appear before the High Court on 20.2.2023. 8. This being an old matter but having been restored for reconsideration in the peculiar circumstances, particularly for want of all reasons and considerations in the impugned judgment and the appellant being in custody since 10.9.2011, we would request the High Court to assign top priority for hearing to the restored appeal and to decide the same expeditiously. If the appeal is not likely to be heard within a reasonable time in future, and if an application seeking suspension of execution of sentence is moved by the appellant, the same may be considered by the High Court on its own merits. It goes without saying that all the questions pertaining to the merits remain open to be argued before the High Court by the parties. 9. The appeal stands disposed of, accordingly.