KUM. SHUBHA @ SHUBHASHANKAR versus STATE OF KARNATAKA & ANR (14/07/2025) — Supreme Court headnote

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Summary

Four accused, including the fiancee of the deceased, were convicted under Section 302 read with Section 120-B IPC for the 2003 murder of a software engineer two days after his engagement. The Supreme Court disbelieved the two eyewitnesses and the motive witnesses PW-8 and PW-11, but confirmed the convictions on circumstantial evidence: motive proved through PW-23, voluminous call detail records held admissible under Section 65-B of the Evidence Act and showing a synchronised pattern of communications peaking before the murder and ceasing after it, recovery of the weapon and scooter under Section 27, deletion of messages, a false alibi and the unexplained conduct of the accused. Given the passage of two decades and the youth of the accused at the time, the Court permitted them to seek pardon from the Governor under Article 161 and suspended their sentences meanwhile.

Issues

Whether the eyewitness testimonies of PW-15 and PW-16 and the motive evidence of PW-8, PW-11 and PW-23 were reliable.
Whether the call detail records of the accused were admissible under Section 65-B of the Evidence Act and what evidentiary value they carry in a case of circumstantial evidence.
Whether the recovery of the steel pipe and scooter at the instance of the accused was proved under Section 27 of the Evidence Act despite the alleged joint disclosure and the absence of panch witnesses at the disclosure.
Whether the chain of circumstantial evidence established the conspiracy and guilt of all four accused under Section 302 read with Section 120-B IPC, and of A-4 under Section 201 IPC.
Whether, notwithstanding confirmation of the conviction, the accused should be permitted to invoke the Governor's power of pardon under Article 161 of the Constitution.

Provisions considered

Section 65-B, Indian Evidence Act, 1872Compliance with Section 65-B(4) is mandatory for CDR printouts, which are secondary evidence of data stored on servers, but there is no straitjacket formula; the court must satisfy itself from the certificate and the oral evidence of a competent officer of the telecom service provider, who is in the position of a court witness with no axe to grind. A certificate not in the prescribed format is not invalid where authenticity is undisputed; the certifying officer need only hold a responsible official position and depose to the best of his knowledge or belief, and a successor in office is competent. The Reliance and Airtel certificates and the evidence of PW-24 and PW-25 were held sufficient. (¶¶ 63, 64, 65)
Section 27, Indian Evidence Act, 1872A joint or simultaneous disclosure is not per se inadmissible; separately recorded voluntary statements of A-1 and A-2 and the recovery of the weapon from a bush in a secluded military compound on A-2's identification, witnessed by an independent panch, were upheld. Presence of witnesses at the recording of the disclosure statement is a matter of prudence, not a mandate. (¶¶ 87, 88)
Section 3 (definition of 'proved'), Indian Evidence Act, 1872Relying on Rajesh Yadav, the Court restated that a fact is proved on the degree of probability from the matters before the court viewed through the lens of a prudent man, that evidence may be accepted in whole or in part, and that witnesses fall into wholly reliable, wholly unreliable and partly reliable categories, the last needing corroboration. (¶¶ 47, 48)
Sections 302 and 120-B, Indian Penal Code, 1860The conviction of all four accused for murder in pursuance of a criminal conspiracy was confirmed on the circumstantial chain of motive, CDR pattern, recoveries, destruction of evidence, false alibi and unexplained conduct, with A-3 found to have orchestrated and directed the operation and A-2 to have been roped in by A-3 as the assailant. (¶¶ 94, 95, 96, 97, 98)
Section 201, Indian Penal Code, 1860A-4's conviction for causing disappearance of evidence was confirmed on the finding that all messages on her phone and A-1's phone, particularly those of the day of the incident, had been manually deleted to screen herself and the others from punishment. (¶¶ 92, 98)
Article 161, Constitution of IndiaThe Governor's power to pardon, reprieve, respite, remit or commute is a sovereign constitutional power exercised on the advice of the Council of Ministers, wider than the statutory powers under Sections 473 and 474 BNSS (Sections 432 and 433 CrPC), applied case by case, and subject to limited judicial review. It remains exercisable even where a statutory circular or rule exists. The Court permitted the appellants to petition the Governor within eight weeks and suspended their sentences until the petitions are decided. (¶¶ 13, 14, 15, 16, 101, 102)
Section 313, Code of Criminal Procedure, 1973The accused offered no acceptable explanation in their Section 313 statements for the numerous communications between them from 25.11.2003 to 04.12.2003, which, together with the deleted messages, warranted an adverse inference. (¶¶ 65, 92, 96)

Held

The eyewitnesses PW-15 and PW-16 could not be relied upon: PW-15, an ex-serviceman, never reported the incident to the police but was contacted by the investigating officer before the FIR was even registered, without explanation of how the police learnt of him; PW-16's statement was recorded over two months later for contradictory reasons; their evidence on identification was inconsistent; and cited witnesses who could have confirmed their presence were not examined. With the ocular evidence discarded, the case rested on circumstantial evidence to be tested on the five principles of Sharad Birdhichand Sarda. (¶¶ 50, 51, 52, 53, 54)
In a circumstantial case motive is the foundation of the evidentiary chain. The motive witnesses PW-8 and PW-11 were unreliable owing to prior acquaintance with the deceased's family, unproved presence at the engagement, long delays in recording their statements and contradictions with other witnesses. The evidence of PW-23, a close friend of A-4 with no link to the deceased's family, corroborated by his e-mail to her father, was natural and proved that A-4 was unwilling to marry the deceased and was close to A-1. (¶¶ 55, 56, 57, 58, 59)
Section 65-B(4) compliance is mandatory for call detail records, but the court is to satisfy itself on compliance from the certificate and the oral evidence of a competent officer of the service provider, who is akin to a court witness. A certificate not in the prescribed format is not invalid when authenticity is undisputed; the officer need not have technical expertise, may depose to the best of his knowledge or belief, and a successor in office is competent. Omission to mention that data was extracted from a server elsewhere and e-mailed does not vitiate the certificate, and discrepancies in parts of the CDR do not exclude the evidence as a whole. (¶¶ 63, 64, 65)
CDR data is ordinarily not substantive evidence but is to be used for corroboration; its evidentiary value depends on the attending circumstances. Where the evidence is overwhelming and the accused's conduct calls for an explanation which is not given, CDR may even assume the position of substantive evidence and the court may place heavy reliance on it to convict. Here the volume, pattern and timing of communications among the accused, their sharp rise on the day before and the day of the murder, the 38 continuous SMSes between A-4 and A-1 while she was with the deceased, the complete silence during the likely window of the attack, tower locations placing A-1 and A-2 near the scene, and the drying up of contact afterwards pointed only to guilt and proved the conspiracy. (¶¶ 66, 69, 70, 75, 76, 78, 79, 81, 82, 83, 84, 86)
A joint or simultaneous disclosure under Section 27 is not per se inadmissible; mere presence of a co-accused at the recovery does not render it a joint disclosure where separate voluntary statements were recorded. Presence of panch witnesses at the recording of the disclosure is a matter of prudence, not a mandate. The FSL report on bloodstains prevails over the post-mortem doctor's naked-eye observation, delay in sending the weapon to the FSL is a lapse of investigation that does not discard an otherwise cogent recovery, and the steel rod versus pipe description is immaterial. (¶¶ 87, 88, 89, 90, 91)
Manual deletion of all messages from the phones of A-4 and A-1, particularly those of the day of the incident, coupled with failure to explain the extensive communications, warranted an adverse inference and supported A-4's conviction under Section 201 IPC; a plea of alibi unsupported by hospital records was false and attracted an adverse inference against A-1. A-4's presence with the deceased being admitted, her emerging unscathed while the deceased received six injuries, and the absence of any other motive showed her complicity. (¶¶ 92, 93, 94)
The chain of circumstances stood complete through motive (PW-23), the CDR proved by PW-24 and PW-25, the recoveries, and the absence of explanation in the Section 313 statements. A-3, a stranger to A-4 with 34 calls to her in the conspiracy period and none before or after, orchestrated, directed and supervised the operation; A-2 was roped in by A-3 and was linked by the recovery and CDR; A-4 remained in the know till the final act. The convictions under Section 302 read with Section 120-B IPC, and of A-4 under Section 201 IPC, and the life sentences were confirmed, though for reasons differing from those of the courts below. (¶¶ 95, 96, 97, 98)
The constitutional power of pardon under Article 161 is wider than the statutory remission powers under Sections 473 and 474 BNSS (Sections 432 and 433 CrPC), is exercised case by case on the advice of the Council of Ministers, and remains exercisable even where a statutory circular or rule exists, so that justice in individual cases is not constrained by procedural norms. Considering that two decades had passed, that the accused were teenagers or barely older at the time, had no adverse record since and good prison conduct, and that the crime stemmed from an error of judgment under family pressure, the Court permitted them to petition the Governor within eight weeks and suspended their sentences till the petitions are decided. (¶¶ 14, 15, 16, 99, 100, 101, 102)

Result

Appeals dismissed; convictions under Section 302 read with Section 120-B IPC (and Section 201 IPC for A-4) and sentences of life imprisonment confirmed; liberty granted to the appellants to file petitions seeking pardon under Article 161 of the Constitution before the Governor of Karnataka within eight weeks, with no arrest and sentences suspended until those petitions are decided; pending applications disposed of.