2025 INSC 858 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1856 OF 2014

Rahil & Anr. .… Appellant(s)

Versus

State (Govt. of N.C.T. of Delhi) …. Respondent(s)

J U D G M E N T

Joymalya Bagchi, J

1.By the impugned judgment the High Court had reversed an

acquittal passed by the trial court and convicted the

appellants for commission of offence under Section 302 of

the Indian Penal Code, 1860

1

and sentenced them to life

imprisonment.

2.Prosecution case in brief is as follows:-

Co-accused Suraiya had entered into a sale agreement with

the deceased Shakeel ur Rehman for purchase of property

number 15/1 Jaipur Estate, Nizamuddin, New Delhi. Prior

to the sale deed being executed, on 6.04.2003 Shakeel ur

Rehman started raising a boundary wall in the property.

1 Hereinafter ‘IPC’.

Page 1 of 21

Suraiya and her associates resisted and a quarrel ensued.

Suraiya threatened to kill Shakeel ur Rehman. Matter was

reported to the police and amicably settled. At 7.30 pm,

Suraiya made a phone call to deceased on the landline and

called him to her residence. Thereafter, deceased went

missing. Despite efforts deceased could not be traced.

3.As a consequence, Aniq ur Rehman (PW3) lodged missing

DD entry No. 27A (Ex. PW3/B) at 7.15 AM on 7.04.2003 at

Police Station, Hazrat Nizamuddin. On the same day at 5:30

pm, a written complaint was filed by Aniq ur Rehman (PW3)

which was treated as First Information Report under

Section 365/34 IPC against Suraiya, Mohd. Fazal her

brother, and the appellants, namely Rahil and Noor Ahmed

who are her son and husband, respectively.

4.During the investigation, Fazal and one Mohan Seth were

arrested on 13.04.2003. On their disclosure statements

decomposed body of deceased was recovered near Haridwar.

Dr. Pradeep Kumar, Postmortem Doctor (PW9) opined that

the death was due to asphyxia as a result of strangulation

and had occurred 3 to 5 days ago.

5.In course of trial, charges were framed against Suraiya,

Mohd. Fazal, Mohan Seth and the appellants under

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Sections 120B and 302/34 read with 120B IPC. Mohd.

Fazal and Mohan Seth were also charged under sections

201/34 IPC.

6.During trial, prosecution examined 25 witnesses and

exhibited a number of documents. In conclusion of trial, the

trial judge while convicting Suraiya and Mohd. Fazal under

Section 302/34 IPC acquitted the appellants of the charges

levelled against them. Mohd. Fazal and Mohan Seth were

also convicted under Section 201/34 IPC.

7.Suraiya, Mohd. Fazal and Mohan Seth preferred appeals

against their conviction while the State challenged the

acquittal of appellants before High Court.

8.By a common order, High Court while upholding the

conviction of Suraiya reversed the acquittal of the appellants

and held them guilty under Section 302/34 IPC along with

Suraiya. Mohd. Fazal was acquitted of the charge of murder

but his conviction along with Mohan Seth under Section

201 IPC was upheld. Appellants as well as Suraiya appealed

against their conviction. We are informed that Suraiya has

died in the meantime and her appeal has abated.

Accordingly, the appellants' appeal is taken up for hearing.

9.Mr. Mohd. Irshad Hanif, ld. counsel for Appellants argued

that High Court erred in reversing a well-reasoned acquittal

Page 3 of 21

on the basis of vague surmises and inferences. He

contended mere suspicion howsoever high cannot take the

place of proof.

10.On the other hand, Mr. Rajan Kumar Chourasia, ld. counsel

for Respondent-State argued that findings of trial court were

wholly perverse and against the weight of evidence on record.

PW-3, 4 and 6 unequivocally deposed that appellant had

received a phone call and gone to the house of Suraiya.

Appellants are son and husband of Suraiya, their presence at

the place of occurrence was most natural. No plea of alibi

was taken by the appellants to probabilise their absence.

CDRs show active phone calls between Rahil and Mohd.

Fazal in the night of 6.04.2003. Tower location of Rahil’s

phone probabilises his presence at Nizamuddin.

11.Prosecution case is based on circumstantial evidence. The

incriminating circumstances proposed by the prosecution

are as follows:-

(i)Suraiya had entered into a sale agreement with the

deceased Shakeel ur Rehman. On the fateful day,

before sale deed could be executed Shakeel ur Rehman

started constructing a boundary wall on the property.

Page 4 of 21

This resulted in a skirmish between Shakeel ur

Rehman and Suraiya and her associates.

(ii)The matter was reported to the police and amicably

resolved.

(iii) In the evening of the same day, Shakeel ur Rehman

received a phone call from Suraiya and stated to his

relations, PW-3,4 and 6 that he was going to Suraiya’s

residence.

(iv)Thereafter Shakeel ur Rehman went missing. On

7.04.2003, PW-3 lodged missing diary at 7:15 am

being DD No.27A-Ex.PW 3/B and at 5:30 pm he lodged

FIR against Suraiya, Fazal and the appellants.

(v)On the disclosure statements of Mohd. Fazal and

Mohan Seth dead body was recovered.

(vi)Postmortem Doctor PW9 opined that the cause of

death was asphyxia due to strangulation.

12.Trial Court analysed the evidence on record and acquitted

the appellants holding as follows:-

Noor Ahmed

“There was a property transaction between the

accused's wife Suraiya and the deceased; litigation in

that regard is going on; a quarrel between accused, his

wife & other accused on one side and the deceased

and his brother on the other side on the issue of

construction of boundary wall had taken place on

6.4.03 wife Suraiya had called deceased to their

house; deceased had come to Suraiya's house.

Besides this, no further evidence except his own

disclosure and disclosure statements of co-accused,

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(which are inadmissible in evidence against the

accused) has come on record against the accused;

Thus, there is no material on record to establish that

the accused had concerted and conspired with other

co-accused and had participated in the commission of

the crime i.e. murder of the deceased. In view of the

above, accused Noor Ahmed is acquitted of charges

U/s 302/ r/w 120B IPC”

Rahil

“Accused is the son of the accused Noor Ahmed and

Suraiya. His concern regarding old property dispute of

his mother was there to the extent as would that be of

a son; His presence and participation in the quarrel on

6.4.03 is also substantiated. Beyond that, the only

other evidence which has been placed on record

against the accused is the recovery of deceased's

purse from accused's residence, at his instance. The

recovery of deceased's purse at the instance of

accused has not been proved beyond reasonable

doubt. Besides above material, prosecution has placed

on record the phone call details of accused Rahil which

show that accused Rahil made and received phone

calls from accused Suraiya and Fazal. The said calls

no doubt reflect that the accused Rahil was

associating with accused Suraiya and Fazal. Except

that no other evidence has come on record against the

accused. Except for his own disclosure and that of his

co-accused admitting to his complicity in murdering

the deceased, no other evidence has been led by

prosecution linking accused Rahil to the commission of

murder. The accused Rahil is therefore acquitted of

charge u/s 302 r/w 120B IPC.”

13.The High Court reversed the finding of the trial court

holding as follows:-

Page 6 of 21

“As far are Suraiya, Noor Ahmed and Rahil are

concerned, their presence in the house at 7/7.30 PM

when the deceased Shakeel ur Rehman was called

and came to their residence, has been proved and

should be accepted. Suraiya being a lady could not

have committed the said offence alone. Presence of her

husband and son was axiomatic and normal. We do

not find any explanation has been given by Noor

Ahmed or Rahil as to their absence from the place of

occurrence. In fact, the call details of Rahil (Ex.

PW23/B) and Mohd. Fazal (Ex. PW23/A) as noticed

above, on 6th April, 2003 starting 7.18 PM show

number of calls being exchanged and the presence of

Rahil at Nizamuddin as his mobile was connected

through tower No. 911 in Nizamuddin. The presence of

Noor Ahmed husband of Suraiya with them, when the

deceased was called for discussion was natural and

normal. (ii) We do not agree with the reasoning given

by the trial court that Suraiya and Fazal brother and

sister had a property dispute and the same has no

connection with Noor Ahmed and Rahil, husband and

son of Suraiya. The said reasoning keeping in view the

social and cultural background of the family, merits

rejection and has to be discarded. It is not acceptable

and ignores practical reality.”

14.It may not be out of place to note by the self-same judgment

and order High Court acquitted Mohd. Fazal of the charge of

murder, inter alia holding:-

“his involvement in the offence under Section 302 IPC

would be a matter of debate as he was certainly not in

the premises where Rahil was present, as both of them

were in touch on phone till at least 7.59 PM.”

Page 7 of 21

15.No appeal has been preferred against such acquittal either

by State or the victim’s family.

16.It is trite in an appeal against acquittal, the appellate court

would not interfere with the finding of the trial court unless

the same finding 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. These

principles have been summarized by this Court after

referring to a catena of decisions in Guru Dutt Pathak v.

State of Uttar Pradesh

2

17.Having examined the conclusions of High Court from this

perspective, we are unable to concur with them for the

following reasons.

18.High Court recorded that presence of appellants in the

house at 7-7.30 PM when the deceased Shakeel ur Rehman

was called is proved and should be accepted. In arriving at

such conclusion High Court had relied on the response of

Noor Ahmed to question no.7 in his examination under 313

Cr.PC holding:-

“In his statement under Section 313 Cr.P.C. while

replying to question No. 7, Noor Ahmed had

2 (2021) 6 SCC 116 (paras 15-20).

Page 8 of 21

accepted that Shakeel ur Rehman had come to

their house after the police officers had advised

them to patch up, though this has been denied

and not accepted as correct by Suraiya and

others”

19.Such finding of the High Court is incorrect as would appear

from the nature of the question and the answer of the

appellant therein.

“7Q. It is in evidence against you that in PS police

officials advised both parties for patch up the

matter and thereafter Shakeel Ur Rehman came

to his house. What do you say?

A: It is correct.”

From the tenor of the question it unequivocally appears that

after the amicable settlement at the police station, Shakeel

ur Rehman came to his house. The expression would

naturally mean Shakeel ur Rehman came back to his own

residence and not that of Suraiya/Noor Ahmed. We are

further fortified in arriving at such conclusion as the

prosecution evidence on record, particularly that of PW-3,4

and 6, also states that after the patch up Shakeel ur

Rehman returned to his residence.

20.The other aspect which was overlooked by High Court is that

there is no direct evidence that Shakeel ur Rehman had

actually gone to Suraiya’s residence on the fateful evening.

Prosecution relied on PW-3,4 and 6 to prove this fact. No

Page 9 of 21

doubt, these witnesses stated that after receiving a phone

call from Suraiya in the evening around 7.30 PM on

6.4.2003 Shakeel ur Rehman left his residence stating he is

going to Suraiya’s house. However, the sole evidence that he

actually went to Suraiya’s residence is an embellished

statement of PW-3 who claims he accompanied the deceased

to Suraiya’s residence. Such version is stated by PW-3 for

the first time in court and is significantly absent either in

the missing diary or in the First Information Report lodged

by him. Such omission of a material fact by PW 3 in the FIR

or his previous statement to police would amount to a

contradiction

3

or even otherwise would cast doubt on the

credibility of such embellished version introduced as an

afterthought

4

.

21.Conduct of these witnesses and attending circumstances

also improbabilise the fact that Shakeel had gone to

Suraiya’s house. Evidence has come on record that there

was a scuffle between Shakeel ur Rehman and Suraiya in

the morning which got settled in the police station. Given

such animosity had Shakeel ur Rehman left for Suraiya’s

3 Tahsildar Singh v. State of UP, 1959 SCC Online SC 17 (para 25).

4 Laxman v. State of Maharashtra, (1974) 3 SCC 704 (para 10).

Page 10 of 21

residence in the evening of 06.04.2003, and gone missing, it

would be most natural for these witnesses to go to Suraiya’s

residence and enquire of his whereabouts. None of the

witnesses stated that they either visited Suraiya’s residence

or inquired from her about Shakeel’s whereabouts. In these

circumstances, possibility of the witnesses implicating

Suraiya and other family members in the crime out of mere

suspicion cannot be ruled out.

22.Given this situation, it is difficult for us to conclude that

there is credible and reliable evidence on record that the

deceased actually went to the residence of Suraiya on the

fateful evening.

23.Even if the prosecution case with regard to the deceased

going to Suraiya’s residence is accepted, prosecution must

prove that appellants were present in the house between

7.30 and 9.00 PM when it is alleged that Shakeel ur

Rehman was murdered.

24.The High Court reversed the acquittal on the specious logic

that appellants being the son and husband of Suraiya and

ordinarily residing with her ought to be presumed to be

present in the house. It is nobody’s case that the incident

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occurred in the dead hours of the night when all family

members are expected to remain in the house.

25.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.

26.Admittedly, no direct evidence is forthcoming with regard to

presence of the appellants at their residence when the

murder is alleged to have occurred. High Court drew an

inference with regard to their presence on the ground that

being inmates of the house they would be presumed to be

present there.

27.In Mulak Raj v. State of Haryana

5

where the dead body was

recovered from the house this Court refused to uphold the

guilt of the accused merely because they were the inmates of

the house.

28.In these circumstances, we are of the view High Court erred

in relying on a speculative inference that all inmates must

invariably be present in the house at all times to reverse the

acquittal and convict the appellants.

29.Whether Suraiya, a lady could have committed the murder

alone had not been posed to the Postmortem doctor. In

absence of medical evidence that murder was committed by

5 (1996) 7 SCC 308 (para 22).

Page 12 of 21

a single person High Court incorrectly drew its own

inference that Suraiya was assisted by others in committing

the crime and roped in her family members, that is the

appellants.

30.Against Rahil another circumstance has been relied upon.

High Court referred to call detail records (CDRs) between

Rahil and Mohd. Fazal and observed that as the tower

location of Rahil’s mobile number is Nizamuddin, his

presence at the place of occurrence is established. This

finding is based on inadmissible evidence and even

otherwise such conclusion on the basis of evidence on

record is too tenuous.

31.PW23 Nodal Officer Bharti Airtel produced CDRs of the

phones of Fazal and Rahil being Ex. PW 23/A and 23/B,

respectively. 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

said to be preserved in the computers of the service provider

concerned. During cross-examination, PW23 admitted he

had neither signed the said documents nor were the

documents certified.

Page 13 of 21

32.Section 65-B(4) requires issuance of a certificate by a

person-in-charge or responsible officer in relation to

operations of the relevant computer network in question

stating as per his knowledge or belief that during the

relevant period:-

(a)computer(s) were carrying out regular activities,

and were working properly; and

(b)the relevant information was regularly fed into

the computer in ordinary course of business,

as proof of the facts stated therein.

33.In State (NCT of Delhi) v. Navjot Sandhu

6

this Court held

computer printouts are secondary evidence and may be

admitted on mere production. Production of certificate

under section 65-B(4) was not mandatory for admission of

such secondary evidence. However, in Anvar PV v. PK

Basheer

7

this Court took a different view and held Section

65-B laid down a special procedure for admissibility of

electronic records which mandatorily requires production of

certificate under 65-B(4) for admissibility of secondary

evidence i.e. computer printouts. This view was doubted in

Shafhi Mohammad v. State of Himachal Pradesh

8

. In Sonu v.

6 (2005) 11 SCC 600.

7 (2014) 10 SCC 473.

8 (2018) 2 SCC 801.

Page 14 of 21

State of Haryana

9

, another bench of this Court, held the

ratio in Anvar PV (supra) shall apply prospectively unless the

defence during trial raised objection to admission of

computer printouts. Finally, the issue was settled by a

three-judge bench in Arjun Panditrao Khotkar v. Kailash

Kushanrao Gorantyal

10

, wherein the bench overruling Navjot

Sandhu (supra) and Shafhi Mohd. (supra) upheld the ratio in

Anvar PV (supra) and held issuance of certificate under

section 65-B(4) is a condition precedent for admissibility of

computer-generated secondary evidence. It cannot be

supplemented through oral evidence.

34.It would be argued that Navjot Sandhu (supra) which did not

insist on production of certificate for admissibility of

computer-generated printouts was prevailing at the time

when the case was decided by the Trial Court and the

Appellate Court. The judgement in Anvar PV (supra) was

delivered subsequently and cannot be a ground to render

the CDRs inadmissible. It is also brought to our notice that

issue of retrospective application of the ratio in PV Anvar

(supra) is pending for consideration before this Court

11

.

9 (2017) 8 SCC 570.

10 (2020) 7 SCC 1.

11 M.A. No. 1563/2017 in C.A. No. 4226/2012.

Page 15 of 21

35.Be that as it may, it is relevant to note the larger bench in

Khotkar (supra) while reiterating PV Anvar (supra) did not

hold that its ratio shall apply prospectively. Furthermore, in

Mohd. Arif @ Ashfaq v. State (NCT of Delhi)

12

this Court while

hearing a review petition in a death penalty case

retrospectively applied the ratio in Anvar PV to cases decided

earlier and eschewed secondary electronic evidence dehors

certificate under section 65-B(4), holding as follows:-

“23. 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 para 32 of the decision

in Sonu, the matter may stand on a completely

different footing. It is for this reason that

reliance 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

12 (2023) 3 SCC 654.

Page 16 of 21

must be considered in light of the decisions

made by this Court in Anvar P.V. and Arjun

Panditrao Khotkar.

24. 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.”

Similar view was taken in Sundar @ Sundarrajan v. State by

Inspector of Police

13

.

36. Though the present case does not involve death penalty, it

is undeniable that appellants were facing a criminal trial

and the prosecutor was required to prove a fact beyond

reasonable doubt strictly in accordance with law. Appellants

during trial raised objections to admissibility of the

secondary electronic evidence relating to Rahil which was

marked as exhibit PW23/B-D. Thereby the prosecutor was

put on due notice and had opportunity to fill the lacuna by

producing the requisite certificate under Section 65-B(4) but

did not do so.

In Sonu (supra), this court held if an objection is taken to

CDRs being marked without a certificate and the same was

13 2023 SCC Online SC 310.

Page 17 of 21

not cured by the prosecutor at relevant stage the document

shall be inadmissible in law.

In these circumstances we are inclined to apply the ratio in

PV Anvar and Khotkar to the case and hold that the exhibits

are inadmissible in law being secondary evidence without

certification.

37.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.

38.In the present case, the CDRs show Rahil's phone was

connected to the cell tower at Nizamuddin (Ex. PW/23 C).

Cell towers can reach approximately a half mile to two miles

in city location

14

. No evidence is led regarding the range of

the said tower. It needs to be borne in mind that cell tower

ranges widely vary and are dependent on a number of

variables such as:-

14 Quinteros, Penny. (2023) Confronting NELOS: cross-examining the cellphone industry’s

secret location technology, Syracuse Law Review, 73(1) 375.

Page 18 of 21

a)how high the antenna is over the surrounding

landscape;

b)frequency of the signal in use;

c)rated power of the transmitter;

d)directional characteristic of the antenna array on

the site;

e)nearby buildings and vegetation absorbing and

reflecting radio energy;

f)local geographical or regulatory factors and weather

conditions.

15

39.Cell triangulation identifies at least three towers to which

the cell phone at a particular time is connected and

determines the location of the phone by overlapping the

ranges of these towers. This is a better and comparatively

more precise method than reference to a single tower. The

issue may be better elucidated by the diagrams (Figure 1

and Figure 2

16

) set out herein below.

Single Tower Range Cell Triangulation Range

15 Millman National Land Services, ‘What is a Cell Tower and How Does a Cell Tower

Work?’(12

th

May, 2020), <https://millmanland.com/knowledge/what-is-a-cell-tower-and-

how-does-a-cell-tower-work/> as cited in Bechuram Bag v. State of West Bengal, 2023 SCC

OnLine Cal 419, (para 52).

16 Supra note 12 at 396.

Page 19 of 21

40.Given these circumstances reference to Nizamuddin cell

tower in CDRs would merely show that Rahil’s phone was

within the operational range of such tower and it is

hazardous to rely solely on this evidence to prove his

presence at his residence beyond doubt.

41.Finally, telephonic exchanges between Rahil and Mohd.

Fazal would not lead to an inference of conspiracy to murder

as Mohd. Fazal has been acquitted of the charge of murder

which has not been appealed against.

42.It is settled law in a criminal case whether based on direct

or circumstantial evidence, the burden of proof always rests

on the prosecution. Only when the prosecution discharges

the initial onus, that is, proves the incriminating attending

circumstances to establish the cause of death are 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.

43.In the absence of reliable and convincing evidence proving

the presence of the appellants at Suraiya’s residence when

Shakeel ur Rehman is said to have come there, it cannot be

said that the prosecution had discharged its initial onus

Page 20 of 21

and proved the appellants were present in the house when

the murder occurred.

44.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 Shakeel’s homicidal death. High

Court failed to appreciate this lacuna in the prosecution

case and illegally drew adverse inference against the

appellants under Section 106 of Indian Evidence Act, 1872.

45.Accordingly, we hold that High Court was not justified in

reversing the findings of acquittal on the basis of mere

surmises and the impugned judgment to the extent that it

convicts the appellants is liable to be set aside.

Consequently, appeal is allowed. Pending application(s), if

any, is disposed of.

…..…………………….J.

(SANDEEP MEHTA)

………………………….J.

(JOYMALYA BAGCHI)

New Delhi,

June 25, 2025

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