Dilip Rana And Ors. vs State Of Uttarakhand

G. Narendar, CJ

Heard Mr. Aditya Singh and Mr. Nandan Arya, learned counsel for the appellants/ applicants in all these bail applications; Mr. J.S. Virk, learned Deputy Advocate General for the State of Uttarakhand; and Mr. Aditya Pratap Singh, learned counsel for the com plainant.

The present bail applications arise from the conviction and sentence imposed by the learned Vth Additional Sessions Judge, Haridwar, in Sessions Trial No. 178/ 2012, titled "State v. Bablu & Others," arising out of FI R/ Case Crime No. 22/ 2012, under Sections 302, 34 & 506 I PC, registered at Police Station Pathri, District Haridwar. The accused persons, nam ely Bablu (A-1), Dharam jeet (A-2), and Dilip Rana (A-4), were convicted under Sections 302 and 506 I PC.

As per the prosecution’s case, on 14.02.2012 at about 8: 00 PM, the complainant Gun Bahadur (PW1), along with his brother Gauravdeep (PW-2), allegedly saw their father, Jagdish Prasad, being assaulted in the field of Pancham Singh (PW-7). It is alleged that A-1 Bablu was holding a stone, while A-2 Dharamjeet, A-3 Somlal (since deceased), and A-4 Dilip Rana had pinned down the deceased on the ground. The complainant stated that upon seeing the witnesses, the accused threatened them, following which the complainant and his brother fled the spot and later found their father dead.

The learned trial court relied primarily on the testimonies of PW-1 and PW-2, treating them as eyewitnesses, and also took into consideration Call Detail Records (CDRs) to convict the accused. However, a careful perusal of the impugned judgment, specifically paragraphs 103, 104, 105, 106, 108, 109, 114, 116, and 117, raises significant doubts regarding the prosecution’s case and the evidentiary value of the CDRs.

Submissions on Behalf of the State and the Complainant:

Learned Deputy Advocate General for the State and learned counsel for the complainant vehemently opposed the grant of bail, arguing that the conviction order passed by the learned Sessions Court was correct and was based on all the evidence produced by the prosecution.

It was contended that the prosecution had successfully established the guilt of the accused beyond a reasonable doubt, and the trial court had rightly convicted the accused/ appellants after appreciating the entire evidence, including the eyewitness testimonies and corroborative material.

They further submitted that the CDRs and other material relied upon by the defense do not exonerate the accused, and the trial court had rightly disregarded the CDRs due to non-compliance with Section 65B of the Indian Evidence Act.

The CDRs were relied upon by the prosecution without compliance with Section 65B of the Indian Evidence Act, which mandates an accompanying certificate for the admissibility of electronic records. The investigating officer failed to obtain the requisite certificate at the time of filing the charge-sheet, despite the records being procured and relied upon in court. The trial court disregarded the CDRs due to the absence of a Section 65B certificate but failed to consider that the investigating officer’s omission in obtaining the certificate should not operate to the detriment of the accused. It is a well-settled legal position, as reaffirmed in Arjun Pandit Rao Khokhar v. Kailash Kushan Rao Goratiyal (2020) 7 SCC 1 and Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473, that electronic records are inadmissible without a Section 65B(4) certificate unless primary evidence is produced. The trial court, instead of outright rejecting the CDRs, ought to have considered them in favour of the accused, given that the mobile location data contradicts the prosecution’s case.

Further grounds for bail:

PW-1 and PW-2’s credibility as eye-witnesses is questionable, as they claim to have seen the incident from a distance, in dim light, using only a torch. DW-1, Deputy Superintendent of Police B.S. Chauhan, stated that the investigation was partially conducted based on a previously recorded case diary, and he did not independently verify the previous investigating officer’s findings.

DW-3, Rampal Singh, a material defense witness, stated that he was present with the deceased’s family for an entire day after the incident, yet none of the family members informed him about the manner of death, casting doubt on the spontaneity of the FI R.

In view of the above discussion, Bail Application I A/ 01/ 2023 in CRLA No. 496/ 2023, Bail Application I A/ 01/ 2023 in CRLA No. 497/ 2023, and Bail Application I A/ 01/ 2023 in CRLA No. 559/ 2023 are allowed.

The sentence of the accused is suspended. The accused shall be forthwith released on bail, if not required in any other case, subject to each accused executing a personal bond of ₹25,000/- and furnishing one solvent surety to the satisfaction of the Jurisdictional Magistrate.

Registry is directed to communicate the operative portion of this order to the Jail Authorities forthwith.