Call Detail Records are Not Admissible Without S.65B Evidence Act Certificate

1. Heard.

2. Leave granted.

3. The appellant, Pooranmal1, along with one Ladu

Lal faced trial in Sessions Case No. 33 of 2010 before

the Court of the Additional Sessions Judge, (Women

Atrocities Cases), Bhilwara, Rajasthan2. Both the

accused were convicted by the trial Court vide

judgment and order dated 8th February, 2012, for the

offence punishable under Sections 302/34 of the

1 Hereinafter, referred to as “appellant-Pooranmal”.

2 Hereinafter, referred to as “trial Court”.

Indian Penal Code, 18603 [Sections 103 (1)/3(5) of the

Bhartatiya Nyaya Sanhita, 20234] and were

sentenced to undergo life imprisonment and fine of

Rs. 5,000/- with default stipulation. Both the

accused were also convicted for the offence

punishable under Section 201 of the IPC [Section 238

of the BNS] and sentenced to undergo seven years

rigorous imprisonment and fine of Rs. 5,000/- with

default stipulation. Both the sentences were ordered

to run concurrently.

4. The common appeal being DB Criminal Appeal

No. 238 of 2012 preferred by the accused persons

against their conviction stands rejected by the High

Court of Judicature for Rajasthan at Jodhpur5 vide

judgment and order dated 16th March, 2018. It may

be mentioned here that Ladu Lal assailed the said

judgment of the High Court by preferring Special

Leave Petition (Crl.) No. 1071 of 2022, which has

been dismissed by this Court in limine vide order

dated 7th February, 2022.

3 Hereinafter, referred to as ‘IPC’.

4 Hereinafter, referred to as ‘BNS’.

5 Hereinafter, referred to as ‘High Court’.

5. The appellant-Pooranmal who was unable to

prefer an appeal owing to poverty and lack of access

to legal assistance, has now filed the present appeal

through legal aid.

6. Vide order dated 28th January, 2026, we took

note of the distinguishing features inter se between

the case of the appellant-Pooranmal and that of the

co-convict Ladu Lal and issued notice in the present

appeal. The case of the prosecution as against the coconvict

Ladu Lal was based on recoveries as well as

the reverse burden of proof as provided under Section

106 of the Indian Evidence Act, 18726 (Section 109 of

the Bharatiya Sakshya Adhiniyam, 20237). In

contrast, insofar as the appellant-Pooranmal is

concerned, the prosecution’s case rests purely on

recoveries and call detail records. It was in these

circumstances and remaining conscious of the

dismissal of the special leave petition preferred by the

co-convict Ladu Lal, that we deemed it appropriate to

entertain the special leave petition filed on behalf of

the appellant-Pooranmal through legal aid,

6 Hereinafter, referred to as ‘Evidence Act’.

7 Hereinafter, referred to as ‘BSA’.

4

notwithstanding the significant delay of 2749 days,

which stands condoned by the aforesaid order.

BRIEF FACTS

7. Succinctly stated, the facts relevant and

essential for disposal of this appeal are noted

hereinbelow.

8. The case as set up by the prosecution is that the

appellant-Pooranmal along with the co-convict Ladu

Lal, committed murder of Aruna, wife of Ladu Lal, in

the latter’s house on the night intervening 2nd March,

2010 and 3rd March, 2010.

9. The written report of the incident (Ex. P-40) was

lodged by none other than Ladu Lal before the Station

House Officer, Police Station Bijolia alleging inter alia

that he was sleeping in the drawing room of his house

with his son Devender. His wife, Smt. Aruna, was

sleeping in the adjacent room. At about 1:30 am, he

got up to attend the call of nature and found that his

room was bolted from outside. He tried calling Smt.

Aruna on her mobile number, but she did not

respond. On this, he called his brother,

Satyanarayan (PW.2), and upon receiving no

response, he called his acquaintance Shankar Singh

Rathore, posted as constable at the Police Station

5

Bijolia. Thereafter, some people gathered at the spot

and opened his room from outside. Upon proceeding

to the adjoining room, they found Smt. Aruna lying

on the bed with visible injuries, including a wound on

her left temple, along with signs of struggle. On

checking closely, they realised that Smt. Aruna was

dead. The almirah situated near the dead body was

lying open, and a sum of approximately Rs. 4 lakh

was missing therefrom. Ladu Lal alleged in the report

that some unknown persons had murdered his wife

by inflicting injuries on her head and requested the

police to take action. On the basis of said report, FIR

No. 28 of 2010 came to be registered at the Police

Station Bijolia under Section 460 of the IPC (Section

331(8) of the BNS). The usual investigation was

undertaken. The dead body was subjected to inquest

proceedings and subsequently forwarded to the

Medical Jurist for postmortem examination.

10. During the course of investigation, Ladu Lal was

interrogated and looking to his evasive response, the

needle of suspicion turned towards him and he was

accordingly arrested. Ladu Lal made a

confession/disclosure statement (Ex. P-42) and

based thereupon, the appellant-Pooranmal was also

6

apprehended in the present case. The Investigating

Officer, Dalpat Singh (PW.22)8, thereafter effected

recoveries of a blood-stained shirt and a sum of

Rs.46,000/-, in furtherance of the disclosure

statements made by the appellant-Pooranmal.

11. The Investigating Officer (PW.22) collected the

call details of mobile Nos. 978****222 and 977****299

belonging to the accused persons, which led to the

conclusion that the appellant-Pooranmal and Ladu

Lal were continuously in contact with each other,

proximate to the probable time of the incident.

12. Upon conclusion of investigation, chargesheet

came to filed against two accused persons i.e. the

appellant-Pooranmal and Ladu Lal for the offences

punishable under Sections 302/34 and 201 of the

IPC [Sections 103 (1)/3(5) and 238 of the BNS]. Since

the offence punishable under Section 302 of the IPC

[103 (1) of the BNS] was exclusively triable by the

Court of Sessions, the case was committed and made

over to the Court of the Additional Sessions Judge,

(Women Atrocities Cases), Bhilwara, Rajasthan for

trial. The trial Court framed charges against both the

8 Hereinafter, referred to as ‘Investigating Officer (PW.22)’.

7

accused who pleaded not guilty and claimed trial. The

prosecution examined twenty-four witnesses (PW.1

to PW.24) and exhibited fifty-five documents (Ex. P-1

to P-55) along with seven articles (Ex. A-1 to A-7) to

prove its case.

13. The accused, upon being questioned under

Section 313 of the Code of Criminal Procedure, 1973

[Section 351 of the Bharatiya Nagarik Suraksha

Sanhita, 2023] denied the prosecution allegations

and claimed to be innocent. Three witnesses (DW.1

to DW.3), and eight documents (Ex. D-1 to D-8) were

exhibited in defence.

14. As stated above, the trial Court vide judgment

and order dated 8th February, 2012 convicted and

sentenced the appellant-Pooranmal and the coaccused

for the offences mentioned above.9

15. The appeal preferred by the appellant-

Pooranmal against his conviction has been rejected

by the High Court vide judgment and order dated 16th

March, 2018 and hence, this appeal by special leave.

9 Supra para 3.

8

SUBMISSIONS ON BEHALF OF THE APPELLANT

16. Learned counsel appearing for the appellant-

Pooranmal, vehemently and fervently contended that

the conviction of the appellant-Pooranmal recorded

by the trial Court, and affirmed by the High Court, is

based purely on conjectures and surmises. It was

submitted that the prosecution’s case rests entirely

on circumstantial evidence and that there is no

credible or reliable evidence on record of the case so

as to connect the appellant-Pooranmal with the

alleged crime.

17. The learned counsel urged that the recovery of

the blood-stained shirt allegedly made at the instance

of the appellant-Pooranmal does not inspire

confidence. The call detail records cannot be

admitted in evidence because the mandatory

certificate under Section 65-B of the Evidence Act

[Section 63 of the BSA] was never proved.

18. The learned counsel further contended that the

recovery of the currency notes cannot be treated to

be incriminating because there is no credible

evidence to show that these currency notes had, as a

matter of fact, been given to the appellant-Pooranmal

9

by the co-convict Ladu Lal for committing the murder

of Smt. Aruna.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

19. Per contra, learned counsel representing the

State opposed the submissions advanced by the

appellant’s counsel. It was submitted that the special

leave petition filed by the co-convict against the selfsame

impugned judgment, having been rejected by

this Court, there is no reason for this Court to take a

different view in the case of the appellant-Pooranmal.

20. It was further submitted that the Investigating

Officer (PW.22) has given unimpeachable evidence

proving the grave incriminating recoveries of the

blood-stained shirt and the currency notes made at

the instance of the appellant-Pooranmal. The shirt

upon being examined at the serological department

of the Forensic Science Laboratory10 tested positive

(FSL Report Ex. P-49) for the presence of the same

blood group (O) as that of the deceased-Aruna. The

appellant-Pooranmal failed to offer any explanation

as to how the shirt worn by him at the time of the

incident was bearing stains of the same blood group

10 Hereinafter, referred to as ‘FSL’.

10

as that of the deceased-Aruna. The failure of the

appellant-Pooranmal to offer any explanation to this

gravely incriminating circumstance requires drawing

of adverse inference.

21. It was further submitted that the call detail

records are gravely incriminating. The appellant-

Pooranmal failed to offer any explanation for the

extensive contact with the main accused Ladu Lal

proximate to the time of the occurrence. Thus, these

incriminating call detail records were rightly relied

upon by the trial Court and the High Court for

drawing the inference of guilt against the appellant-

Pooranmal.

22. It was further contended that the call detail

records were proved by the nodal officers of the

service providers, i.e. Vibhor Rastogi (PW.23) and

Saurabh Kumar (PW.24) and hence, non-production

of the certificate under Section 65-B of the Evidence

Act [Section 63 of the BSA] pales into insignificance.

Mere non-production of the certificate under Section

65-B of the Evidence Act [Section 63 of the BSA] in

this case cannot be treated to be fatal to the

prosecution’s case, particularly, when the call detail

records have been duly proved by examining the

employees of the service providers i.e., Vodafone and

Bharati Hexacom Ltd./Bharati Heckjakom Ltd.

23. The learned counsel also urged that the

appellant-Pooranmal hails from a poor family and as

such, his being in possession of such a large sum of

money soon after the incident is a gravely

incriminating circumstance for which the appellant-

Pooranmal could not offer any explanation. Thus, by

virtue of Section 106 of the Evidence Act [Section 109

of the BSA], the burden shifted on to the appellant-

Pooranmal to explain as to how he came into

possession of the huge sum of money recovered from

his house pursuant to the disclosure made by him

under Section 27 of the Evidence Act [Proviso to

Section 23 of the BSA].

24. On the aforesaid grounds, learned counsel

submitted that the concurrent and well-reasoned

findings recorded against the accused by the trial

Court and affirmed by the High Court, i.e. convicting

the appellant-Pooranmal and upholding his

conviction do not warrant interference. He thus

implored the Court to dismiss the appeal.

12

ANALYSIS AND DISCUSSION

25. We have heard and considered the submissions

advanced by learned counsel for the appellant-

Pooranmal and learned standing counsel appearing

for the State. We have also carefully perused the

impugned judgments and sifted the evidence

available on record.

26. Suffice it to say that, as emerging from the

impugned judgments of the trial Court and the High

Court, the case of the prosecution pertaining to the

murder of Smt. Aruna is based purely on

circumstantial evidence. Insofar as the appellant-

Pooranmal is concerned, the prosecution’s case rests

upon following three incriminating circumstances: –

i. Call detail records indicating continuous and

frequent conversation between the

appellant-Pooranmal and co-convict Ladu

Lal corresponding to the time of the incident.

ii. The recovery of blood-stained shirt, having

same blood group as that of Smt. Aruna, in

furtherance of the disclosure made by the

appellant-Pooranmal under Section 27 of the

Evidence Act [Proviso to Section 23 of the

BSA].

13

iii. The recovery of currency notes totalling

Rs.46,000/-, purportedly paid by co-convict

Ladu Lal to the appellant-Pooranmal for

committing murder of Smt. Aruna.

27. The law governing cases resting on

circumstantial evidence is no longer res integra. It

would, therefore, be apposite to advert to the salient

principles enunciated by this Court in Sharad

Birdhichand Sarda v. State of Maharashtra11,

wherein the parameters for appreciation of

circumstantial evidence have been authoritatively

and succinctly laid down:-

“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: [SCC para 19, p. 807]

“Certainly, it is a primary principle that

the accused must be and not merely may

11 (1984) 4 SCC 116.

14

be guilty before a court can convict 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.”

(Emphasis Supplied)

28. Bearing the aforesaid principles in mind, we

shall now proceed to examine and analyse the

evidence led by the prosecution to prove the

circumstances relied upon by it for bringing home the

guilt of the appellant-Pooranmal.

I. RECOVERY OF CURRENCY NOTES

29. At the outset, we may take note of the fact that

there is a grave discrepancy regarding the exact

amount of currency notes recovered by the

Investigating Officer (PW.22) purportedly in

15

furtherance of the disclosure statement made by the

appellant-Pooranmal.

30. Whilst in the examination-in-chief, the

Investigating Officer (PW.22) deposed that the

appellant-Pooranmal furnished an information under

Section 27 of the Evidence Act [Proviso to Section 23

of the BSA] regarding receipt of the amount of

Rs.46,000/- (Ex. P-44) from Ladu Lal pursuant to a

plan to commit the murder of Smt. Aruna.

31. The Investigating Officer (PW.22) further stated

that in consequence of the said disclosure, as also

another disclosure pertaining to the shirt allegedly

worn at the time of the incident, the appellant-

Pooranmal led the police party to his residence and

got recovered a shirt (suspected to be blood-stained)

kept in an iron box. The said recovery was reduced

into writing vide memo (Ex. P-9), and the shirt was

sealed at the spot. Further as per the information

given by the appellant-Pooranmal, a sum of

Rs.46,000/- was recovered from his house and was

seized vide memo (Ex. P-13). The said amount was

also sealed at the spot.

32. In cross-examination, the Investigating Officer

(PW.22) admitted that though on the chit of material

16

exhibit (Ex. P-52), the currency notes were mentioned

as Rs.46,000/-, but when the notes were counted in

Court, it was noticed that the amount was

Rs.46,145/-. The Investigating Officer (PW.22)

admitted that there was no mention of these extra

Rs.145 on the packet marked as (Ex. P-52).

33. Thus, the very factum of recovery of the

currency notes comes under a grave cloud of doubt.

That apart, mere recovery of currency notes, in the

absence of any cogent evidence establishing a clear

nexus between the said amount and the crime, would

not by itself constitute an incriminating

circumstance against the appellant-Pooranmal.

Thus, the said circumstance was wrongly treated to

be incriminating by the trial Court as the recovery

itself is doubtful and additionally, the mere recovery

of currency notes cannot constitute incriminating

evidence in absence of corroborative evidence.

II. RECOVERY OF BLOOD-STAINED SHIRT

34. The second incriminating article recovered at

the instance of the appellant-Pooranmal was the

blood-stained shirt which upon being analysed at the

FSL purportedly gave a positive test for the presence

17

of the same blood group (O) as that of the deceased-

Aruna. From the evidence of the Investigating Officer

(PW.22), it transpires that the recovery of the shirt

was effected in furtherance of the disclosure

statement of the appellant-Pooranmal (Ex. P-43). The

recovery memo of the shirt was proved as (Ex. P-9).

35. We may observe that the appellant-Pooranmal

herein was a free bird since the day of incident i.e.

from intervening night of 2nd and 3rd March, 2010

until 4th March, 2010, when he came to be formally

arrested in connection with the present case, after

being implicated by the co-convict Ladu Lal. The

recovery memo (Ex. P-9) indicates that the appellant-

Pooranmal had meticulously concealed the shirt in

an iron box and when the same was recovered, it was

bearing blood stains. To our mind, it is highly

improbable and unnatural that the appellant-

Pooranmal, who was a free bird, would have taken

such great pains to conceal the shirt so meticulously

rather than simply destroying it by burning.

Furthermore, even if the appellant-Pooranmal was

desirous of preserving the shirt, all that was required

to obliterate the blood stains was to wash the same.

18

Hence, we are of the firm view that the recovery of the

shirt is totally unreliable.

36. The recovery of the shirt was held to be

incriminating based on the FSL report (Ex. P-49) as

per which the blood stains on the shirt tested positive

for the presence of O blood group being the same as

that of the deceased-Aruna. For treating the FSL

report (Ex. P-49) to be admissible, the prosecution

would have to prove the complete chain of custody

establishing the sanctity of the sealed articles right

from the time of the seizure till the time they reached

the FSL. In this regard, we would like to refer to the

evidence of the following witnesses:-

a. Mathura Singh (P.W.19)

37. Mathura Singh (PW.19), the Head Constable incharge

of the malkhana at Police Station Bijolia,

stated that on 6th March, 2010 the Investigating

Officer (PW.22) deposited blood-stained tissues and

shirt in a sealed cloth bag. An entry to this effect was

made in the malkhana register at Serial No. 227. On

7th March, 2010, the Investigating Officer (PW.22)

deposited a sealed bag containing 46 notes of

Rs.1,000/- each, totalling Rs. 46,000/-. The witness

19

(PW.19) stated that these articles, which also

included the articles/samples recovered from the

crime scene and the t-shirt recovered at the instance

of the co-convict Ladu Lal, bearing marks A, B, C, L,

M (totalling five), were forwarded with constable

Surender Singh (PW.16) to SP office Bhilwara on 15th

March, 2010 for being deposited at the FSL

accompanied by requisite documents. However,

because the FSL forwarding letter was not yet

prepared, the said articles were returned and handed

back to said witness (PW.19) who redeposited the

same in the malkhana with an endorsement made in

the malkhana register (Ex. P-37).

38. These very articles were again taken out from

the malkhana on 18th March, 2010 and handed over

to Surender Singh (PW.16) for delivery to FSL.

Surender Singh (PW.16) proceeded to Udaipur and

deposited the samples at the FSL on 19th March,

2010. He thereafter returned on 20th March, 2010

along with the receipt evidencing such deposit.

39. The witness (PW.19) was confronted with the

malkhana entry in his cross-examination and stated

as below: –

20

“It is wrong to say that I had given the material

to Surendra Singh on 12.3.10 for taking to F.S.L.

and that due to some shortage in it, the material

were returned on 15.3.l0. Ex.D.3 The copy of the

Malkhana which was attached with the challan

in the file, in the C-D part of which it is written

that the material were sent on 12.3.10 is wrong.”

b. Surendra Singh (P.W.16)

40. The Carrier Constable, Surender Singh (PW.16),

emphatically stated that he carried the malkhana

articles to the FSL on 18th March, 2010, deposited

them at the FSL, Udaipur on 19th March, 2010 and

brought back the receipt. In his cross-examination,

the witness (PW.16) stated that he did not recollect

taking the same articles to the S.P. office on 12th

March, 2010. He was confronted with the malkhana

register (Ex. D-3), which records that he had been

handed the samples on 12th March, 2010 and had

attempted to deposit them at the S.P. Office on 15th

March, 2010. However, he feigned ignorance as to the

said entry recorded in the official document (Ex.D-3).

41. On a holistic appreciation of the evidence of

these two witnesses, it becomes clear that there is a

grave discrepancy regarding the safe-keeping/chain

of custody of the muddamal articles. It is clearly

21

discernible from the evidence of Mathura Singh

(PW.19) that the muddamal articles were sent out of

the police station prior to 18th March, 2010, to be

precise on 15th March, 2010, but the same were

returned from the FSL because of some defects. The

precise reason for return of the muddamal articles is

not forthcoming in the evidence of the prosecution

witnesses. The Carrier Constable (PW.16)

categorically denied having carried the samples on

any date prior to 18th March, 2010.

42. The entry made in the malkhana register (Ex. D-

3) with which both the witnesses were confronted,

completely demolishes the versions of PW.19 and

PW.16. In this entry, it is clearly recorded that the

muddamal articles were forwarded to the FSL on 12th

March, 2010. Utter failure of the prosecution to

disclose as to the reasons for which the samples were

returned from the FSL breaches the unbroken chain

of custody mandatorily required to prove the safe

keeping of the muddamal articles.

43. In Karandeep Sharma alias Razia alias

Raju v. State of Uttarakhand12, this Court

12 2025 SCC OnLine SC 773.

22

emphasised that for a DNA/FSL report to be

acceptable and reliable, the prosecution must

establish an unbroken chain of custody and

demonstrate that the samples remained duly sealed

and untampered throughout, and held as follows:-

“54. In order to make the DNA report acceptable,

reliable and admissible, the prosecution would

first be required to prove the sanctity and chain of

custody of the samples/articles right from the

time of their preparation/collection till the time

they reached the FSL. For this purpose, the link

evidence would have to be established by

examining the concerned witness.

55. Evidently, there is not even a semblance of

evidence on record to satisfy the Court that the

samples/articles collected from the dead body of

the child-victim and those collected from the

appellant which were later forwarded to the FSL

were properly sealed or that the same remained in

a self-same condition right from the time of the

seizure till they reached the FSL. No witness from

the FSL was examined by the prosecution to prove

that the samples/articles were received in a

sealed condition. Hence, there is every possibility

of the samples being tampered/manipulated by

the police officers so as to achieve a favourable

result from the FSL, thereby, inculpating the

appellant in the crime.”

44. In view of the analysis of evidence made above,

we are of the firm view that the requisite link evidence

essential to prove the safe-keeping and sanctity of the

muddamal articles is lacking and the chain of

custody has been breached beyond reprieve, thereby,

23

making the FSL report (Ex. P-49) redundant and a

worthless piece of paper.

45. Moreover, this Court in Allarakha Habib

Memon v. State of Gujarat13, expounded that even

if the FSL report establishes that the blood group

detected on the article recovered at the instance of

the accused matches that of the deceased, such

circumstance by itself is not sufficient to link the said

accused with the crime. This Court observed as

follows:-

“42. The trial court as well as the High Court

heavily relied upon the FSL reports (Exts. 111-115)

for finding corroboration to the evidence of the

eyewitnesses and in drawing a conclusion

regarding culpability of the appellants for the

crime. We may reiterate that the testimony of the

so-called eyewitnesses has already been discarded

above by holding the same to be doubtful. Thus,

even presuming that the FSL reports (Exts. 111-

115) conclude that the blood group found on the

weapons recovered at the instance of the

accused matched with the blood group of the

deceased, this circumstance in isolation,

cannot be considered sufficient so as to link the

accused with the crime.

43. In this regard, reliance can be placed on the

judgment of Mustkeem v. State of Rajasthan

[Mustkeem v. State of Rajasthan, (2011) 11 SCC

724 : (2011) 3 SCC (Cri) 473] , wherein this Court

held that sole circumstance of recovery of

bloodstained weapon cannot form the basis of

13 (2024) 9 SCC 546.

24

conviction unless the same was connected with the

murder of the deceased by the accused. The

relevant portion is extracted hereinbelow : (SCC p.

730, para 19)

“19. The AB blood group which was found

on the clothes of the deceased does not by

itself establish the guilt of the appellant

unless the same was connected with the

murder of the deceased by the appellants.

None of the witnesses examined by the

prosecution could establish that fact. The

blood found on the sword recovered at the

instance of Mustkeem was not sufficient for

test as the same had already disintegrated.

At any rate, due to the reasons elaborated

in the following paragraphs, the fact that

the traces of blood found on the deceased

matched those found on the recovered

weapons cannot ipso facto enable us to

arrive at the conclusion that the latter were

used for the murder.”

(Emphasis Supplied)

46. Thus, even if the FSL report (Ex. P-49) shows

that the blood found on the shirt allegedly recovered

at the instance of the appellant-Pooranmal matches

that of the deceased-Aruna, such finding would by

itself not be incriminating in the absence of other

cogent and corroborative evidence completing the

chain of circumstances.

47. Thus, neither the recovery of the currency notes

is reliable, nor the recovery of the shirt inspires

confidence. In addition thereto, the link evidence

25

having not been proved, the FSL report (Ex. P-49)

pales into insignificance.

III. CALL DETAIL RECORDS

48. The last and final piece of circumstantial

evidence relied upon by the prosecution to bring

home the charges against the appellant-Pooranmal

pertains to the call detail records.

49. Section 65-B of the Evidence Act [Section 63 of

the BSA] mandates that electronic evidence in form

of a computer output (call detail records) can only be

admitted in evidence upon satisfaction of the

mandatory conditions prescribed under Section 65-B

(4) of the Evidence Act [Section 63(4) of the BSA],

which reads as follows: –

“(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 sub26

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.

(Emphasis supplied)

50. This position of law was cemented by this Court

in the case of Anvar P.V. v. P.K. Basheer14, wherein

it was held as follows: –

“14. Any documentary evidence by way of an

electronic record under the Evidence Act, in view

of Sections 59 and 65-A, can be proved only in

accordance with the procedure prescribed under

Section 65-B. Section 65-B deals with the

admissibility of the electronic record. The

purpose of these provisions is to sanctify

secondary evidence in electronic form, generated

by a computer. It may be noted that the section

starts with a non obstante clause. Thus,

notwithstanding anything contained in the

Evidence 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 shall be deemed

to be a document only if the conditions

mentioned under sub-section (2) are satisfied,

without further proof or production of the

original. The very admissibility of such a

14 (2014) 10 SCC 473.

27

document i.e. electronic record which is called as

computer output, depends on the satisfaction of

the four conditions under Section 65-B(2).

Following are the specified conditions under

Section 65-B(2) of the Evidence Act:

(i) The electronic record containing the

information should have been produced

by the computer during the period over

which the same was regularly used to

store or process information for the

purpose of any activity regularly carried

on over that period by the person having

lawful control over the use of that

computer;

(ii) The information of the kind contained

in electronic record or of the kind from

which the information is derived was

regularly fed into the computer in the

ordinary course of the said activity;

(iii) During the material part of the said

period, the computer was operating

properly and that even if it was not

operating properly for some time, the

break or breaks had not affected either

the record or the accuracy of its contents;

and

(iv) The information contained in the

record should be a reproduction or

derivation from the information fed into

the computer in the ordinary course of

the said activity.

15. Under Section 65-B(4) of the Evidence Act, if

it is desired to give a statement in any

proceedings pertaining to an electronic record, it

is permissible provided the following conditions

are satisfied:

(a) There must be a certificate which

identifies the electronic record containing

the statement;

28

(b) The certificate must describe the

manner in which the electronic record

was produced;

(c) The certificate must furnish the

particulars of the device involved in the

production of that record;

(d) The certificate must deal with the

applicable conditions mentioned under

Section 65-B(2) of the Evidence Act; and

(e) The certificate must be signed by a

person occupying a responsible official

position in relation to the operation of the

relevant device.

16. It is further clarified that the person need

only to state in the certificate that the same is to

the best of his knowledge and belief. Most

importantly, such a certificate must accompany

the electronic record like computer printout,

compact disc (CD), video compact disc (VCD),

pen drive, etc., pertaining to which a statement

is sought to be given in evidence, when the same

is produced in evidence. All these safeguards are

taken to ensure the source and authenticity,

which are the two hallmarks pertaining to

electronic record sought to be used as evidence.

Electronic records being more susceptible to

tampering, alteration, transposition, excision,

etc. without such safeguards, the whole trial

based on proof of electronic records can lead to

travesty of justice.

17. Only if the electronic record is duly produced

in terms of Section 65-B of the Evidence Act,

would the question arise as to the genuineness

thereof and in that situation, resort can be made

to Section 45-A—opinion of Examiner of

Electronic Evidence.

18. The Evidence Act does not contemplate

or permit the proof of an electronic record by

oral evidence if requirements under Section

65-B of the Evidence Act are not complied

with, as the law now stands in India.”

(Emphasis Supplied)

51. Subsequently, this Court in Arjun Panditrao

Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1.,

reaffirmed and clarified the position laid down in

Anvar P.V. (supra), observing that the requirement of

a certificate under Section 65-B of the Evidence Act

[Section 63 of the BSA] for admissibility of electronic

evidence is mandatory and cannot be dispensed with,

and held as follows:-

“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 “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.”

52. Admittedly, in the present case, the certificate

under Section 65-B of the Evidence Act [Section 63 of

the BSA] was not proved by the prosecution. In the

absence of the certificate, mandatorily required

under Section 65-B of the Evidence Act [Section 63 of

the BSA], the call detail records become inadmissible

in evidence and cannot be relied upon to support the

prosecution’s case.

CONCLUSION

53. In view of the discussion made above, we are of

the opinion that the prosecution has miserably failed

to establish a complete and coherent chain of

incriminating circumstances so as to bring home the

guilt of the appellant-Pooranmal. Neither were the socalled

incriminating circumstances proved by cogent

and admissible evidence, nor do they form an

unbroken chain pointing unequivocally towards the

guilt of the appellant-Pooranmal.

54. As an upshot of the above discussion, we have

no hesitation in concluding that the prosecution has

failed to bring home the charges against the

appellant-Pooranmal and the impugned judgments

do not stand to scrutiny.

55. Consequently, conviction of the appellant-

Pooranmal as recorded by the trial Court and

affirmed by the High Court cannot be sustained.

Hence, the impugned judgments are hereby set aside.

The appellant-Pooranmal is acquitted of the charges.

He is in custody and shall be released forthwith, if

not wanted in any other case.

56. The appeal is accordingly allowed in the above

terms.

57. Pending application(s), if any, shall stand

disposed of.

….……………………J.

(VIKRAM NATH)

……………………….J.

(SANDEEP MEHTA)

….……………………J.

(N.V. ANJARIA)

NEW DELHI;

MARCH 10, 2026