State of Kerala v. Unni
(2018) 4 KLT (SN 60) 51
In the High Court of Kerala at Ernakulam
Death Sentence Ref. 8/2009
Before Justice A.M. Shaffique and Justice P. Somarajan
Decided on August 17, 2018

Relevancy of the case: Admissibility of Call Detail Records

Statutes & Provisions Involved

• The Information Technology Act, 2000 (Section 2(1)(t), 2(1)(o))
• The Indian Penal Code, 1860 (Section 109, 120A, 120B, 212, 302, 307)
• The Indian Evidence Act, 1872 (Section 11, 21, 24, 25, 26, 32(1), 45A, 62, 65A, 65B)
• The Code of Criminal Procedure, 1973 (Section 162, 294)

Relevant Facts of the Case

• There was an accident which occurred due to the rash and negligent act of the lorry driver. There were three deceased and while their inquest was being prepared, it was doubted that the accident was deliberate.
• The case was originally heard by the division bench of the court but was remitted back to the trial court as it lacked certification under Section 65B of the Indian Evidence Act, 1872. The witnesses could not provide such certification since the call details were not available in the database of the respective companies because it could only be stored for a year.
• Accused 3 and 4 were giving information over a mobile phone to the first accused about the whereabouts of the deceased.
• The recovery of the mobile phone from the 1^st accused was not proved. Hence, the issue which has to be focussed upon is that the Call Detail Records (CDR) can’t be admitted as evidence in the case for want of certification under Section 65B of the Indian Evidence Act, 1872.

Opinion of the Bench

• The principle laid down in the case of Anvar v. Basheer applies only to secondary evidence of the electronic records. If an electronic record is used as primary evidence under Section 62 of the Indian Evidence Act, 1872, then the same would be admissible in evidence, without compliance of the conditions in Section 65B.
• In some of the call detail records, the incoming and outgoing calls are shown separately and in some, the time of the call is not in serial order. But these are all infirmities which normally occur depending upon the data which are being prepared in an excel sheet and it is always possible for creating different formats in a computer as per the requirement.
• When it is held in the case of Shafhi Mohammad v. State of Himachal Pradesh that section 65B is only procedural, the interests of justice require that the said CDRs are received in evidence.
• Previously, when the matter was remitted back to the trial court for obtaining certification, the concerned authorities had reported that such details are not available for certification as the same has been deleted from the database after one year. Therefore, in this case, it was impossible for the prosecution to obtain certification from the competent authorities and discarding such evidence which had already been proved before the court without any objection will amount to a miscarriage of justice.

Final Decision

• The death sentence imposed on the 1^st accused was set aside and was modified to imprisonment for life. It was further directed that the accused shall not be entitled to remission without suffering imprisonment for a minimum period of 25 years.
• The criminal appeal filed by the accused 2, 3 and 6 were dismissed, confirming their conviction and sentence under sections 120B, 109, 302 and 307 of the Indian Penal Code, 1860.
• The criminal appeal filed by the State was partly allowed directing that the 6^th accused shall not be given remission until he completes 25 years of imprisonment.
• The conviction of accused 4, 5, 7, 8 and 12 was set aside thereby leading to their acquittal. Bail bond of accused 5, 8 and 12 was cancelled. Accused 4 and 7 were released.

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