Bombay High Court
Yogesh Arun Wakure vs The State Of Maharashtra And ... on 10 March, 2021
Bench: R.V. Ghuge, B. U. Debadwar
-1- 905APEAL105-2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 74 OF 2021
Yogesh Arun Wakure .... Appellant
Versus
The State of Maharashtra & Anr. .... Respondents
...
Shri. Sudarshan J. Salunke, Advocate for the appellant
Shri. S. D. Ghayal, APP for respondent No.1/State
Shri. S. S. Jadhavar, Advocate for respondent No. 2
....
WITH
CRIMINAL APPEAL NO. 105 OF 2021
Yogesh Arun Wakure .... Appellant
Versus
The State of Maharashtra & Anr. .... Respondents
...
Shri. Sudarshan J. Salunke, Advocate for the appellant
Shri. S. D. Ghayal, APP for respondent/State
Shri. S. S. Jadhavar, Advocate for respondent No. 2
....
CORAM : RAVINDRA V. GHUGE
AND
B. U. DEBADWAR, JJ.
DATE : 10th MARCH, 2021
SG Punde, PA/d
-2- 905APEAL105-2021
PER COURT : -
1. On 04.03.2021, after briefly hearing the learned
Advocates/prosecutor for the respective sides, we had passed the
following order : -
"1. By Criminal Appeal No.105 of 2021 the appellant seeks
to challenge the order dated 22-01- 2021 delivered by the learned
Special Judge, Osmanabad, vide which, the report of the investigating
agency under Section 169 of the CrPC, has been negated and the
Investigating Officer has been directed to submit supplementary
charge-sheet against the present appellant / accused - Yogesh.
2. Hearing of this appeal has commenced and as the
learned Advocate for the appellant took us through the record
available, we noticed that the CDR / SDR compilation at page nos.
194 to 196 set out in Criminal Appeal No.74 of 2021 (appeal paper
book), does not reflect that the nodal officer of the cellular service
provider has submitted those details.
3. The learned Prosecutor has drawn our attention to
certain pages of the case diary pertaining to the case in hand
indicating that the Investigating Officer (SDPO) has tendered a
communication to the Superintendent of Police, Osmanabad praying
for obtaining the CDR / SDR record from the service provider. The
trial Court has disbelieved the said record. Ex facie, we find that the
said record does not carry the letterhead of the service provider,
inasmuch as, the nodal officer of the service provider is empowered to
issue such CDR / SDR record print out only on a specific request as is
prescribed in law.
4. Since we do not find that there is any authenticity lent
to such record, we are directing the Superintendent of Police,
Osmanabad to contact the service provider (we are informed that the
appellant Yogesh was a subscriber with Jio Reliance) and obtain the
CDR/ SDR record for his (appellant - Yogesh) Cell No.9975079298 for
the 24 hours, beginning from 19-08-2020 (00.00 hours) ending on
19-08-2020 (23.59 hours). This record shall be urgently placed before
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this Court, in view of the commencement of the hearing of this
appeal, in a sealed envelope, on 10-03-2021.
5. Since the I.O. has already collected the CCTV footage
from Hotel Saptarang, Ausa Road, Latur from 11:00 a.m. till 14:12
hrs, dated 19-08-2020, the transcription of the said footage shall be
placed before us on 10-03-2021.
6. In the meanwhile, considering that appellant - Yogesh
Wakure has been arrested on 25-08-2020, he is at liberty to seek
default bail, from the Trial Court. In the event of Yogesh making an
application for default bail, the trial Court shall decide the said
application on it's merits, within 3 days.
7. Stand over to 10-03-2021 in the urgent category. This
matter is part-heard."
2. Pursuant to our above order, the learned Counsel for the
appellant - Yogesh submits, that his Criminal Appeal No. 74 of 2021 can
be disposed off as being infructuous since he has been granted default bail
by the trial Court on 06.03.2021. As such, Criminal Appeal No. 74 of
2021 is disposed off as being infructuous.
3. In the present Criminal Appeal No. 105 of 2021, the appellant
is aggrieved by the direction of the trial Court, below Exh.1 in Special
Case No. 99/2020, vide which, the trial Court has expressed an
apprehension about the electronic evidence available as well as the
production of the CDR / SDR record by a Cellular Service Provider.
Further grievance of the appellant is, that the trial Court relied upon the
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statement of an alleged eye-witness, on the basis of which, the presence of
the accused at the crime spot is alleged in between 12:00 noon to
01:00 pm on 19.08.2020. Shri. Salunke strenuously contends, that when
the I.O. himself has submitted his report u/s 169 of the Code of Criminal
Procedure (in short 'Cr.P.C.'), concluding on the basis of the electronic
evidence, that the present appellant was 60 kms away from the crime spot
during the same time frame when the crime occurred, the trial Court
cannot sit over the independent view expressed by the I.O. and disbelieve
the said evidence by relying on the word of mouth of an alleged
eye-witness.
4. The learned Prosecutor for the State and the learned
Advocate representing the original complainant, are in unison in
contending that the report of the I.O. is not to be accepted by the trial
Court, blindly and without scrutiny. Hence, the trial Court was within it's
jurisdiction in directing the I.O. to submit a supplementary charge-sheet
against the appellant-accused Yogesh, in connection with Crime No.
220/2020.
5. We find, that Crime No. 220/2020 was registered in view of
the murder of the only male child of the informant. She has two married
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daughters. The deceased Suresh is said to have been killed after he had
left the agricultural field around 12:00 noon. He had visited the said field
along with his mother. The informant stayed back in the field. At around
2:30 pm, a relative of the informant namely Prayagbai had broken the
news to the informant that her son has been killed and his body is hung to
a tree. Based on the events that occurred, the informant lodged the FIR
with the Police Station, Dhoki, Tq. & Dist. Osmanabad.
6. It is undisputed that, an officer of the rank of Sub-Divisional
Police Officer was entrusted with the investigation. In all, 6 accused have
been named in the FIR and the present appellant is accused no. 6. He was
arrested pursuant to interrogation along with all other accused. Presently,
accused nos. 1 to 5 are in magisterial custody. Accused no. 6 was also in
magisterial custody having been arrested on 25.08.2020. All accused are
facing the charge of murder punishable u/s 302, 201, 323, 143, 147, 149
r/w Section 135 of the IPC.
7. We find from the material before us, that the present
appellant was found to be in Hotel Saptarang, Ausa road, Latur in
between 11:15 am to 02:30 pm on 19.08.2020. The I.O., in the course of
his investigation, noticed this aspect and had collected CCTV footage from
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11:15 to 14:30 hrs and had produced the transcript, albeit, for the period
14:00 hrs till 14.15 hrs. Apprehension was voiced by the learned
Prosecutor and the learned Advocate for the informant that if the crime
has taken place in between 12:00 noon to 01:00 pm at the crime spot 60
kms away, it would be humanly possible for the appellant to kick start his
motorcycle and reach Hotel Saptarang around 14:00 hrs. It is, in this
backdrop, that we had called for the viewing and presentation of the
transcript, by the I.O., for the entire period in between 11:15 hrs to
14:30 hrs.
8. In addition to the above, we had also ordered that the Nodal
Officer of the Cellular Service Provider shall submit specific CDR / SDR
details about the appellant based on his cell phone number recorded in
our order. That record is also produced before us by the Additional
Superintendent of Police, Osmanabad obtained through the Nodal Officer
of Reliance Jio Infocomm Limited. The DVD pertaining to the footage is
also before us.
9. The copy of the covering letter received by the learned
Prosecutor from the I.O. (02 pages), the closed envelope containing CDR /
SDR details from the Cellular Service Provider, the communication of the
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I.O. to the Nodal Officer dated 05.03.2021, a sealed envelope received
from Police Station, Dhoki with the DVD containing the CCTV footage and
the two paged report dated 09.03.2021 from the I.O. expressing his views
about the CCTV footage, has been placed before us.
10. Prima facie, we find from the report of the I.O. dated
09.03.2021, that the present appellant had reached Hotel Saptarang, as is
seen in the footage, before 12:00 noon. He came out of the hotel on three
occasions to visit the washroom, approximately at 12:42, 13:21 and finally
while leaving the hotel around 14:00 hrs. His presence inside the hotel is,
therefore, prima-facie established on the basis of the said footage.
11. The learned Prosecutor contends that the said footage should
not be accepted at it's face value. The trial Court could give a second look
to the footage. The learned Advocate for the informant supports the
contentions of the Prosecutor. The learned Counsel for the appellant
opposes the same on the ground that the report of the I.O. and the CCTV
footage cannot be disbelieved.
12. It is often said that "humans may lie, but documents would
not lie" or "documents would speak louder than words". An eye-witness
claims to have seen the present appellant at the crime spot in between
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12:00 to 13:00 hrs. Such is his oral statement. A human cannot be at two
places at the same time. The CCTV footage is now accepted to be a piece
of electronic evidence and as such, need not be disbelieved, save and
except, when there is material before the Court or the I.O. to draw an
impression that the electronic evidence has been tampered with or is a
manufactured piece of evidence.
13. In our view, Section 45A of the Indian Evidence Act, 1872
would take care of such an eventuality and for the said purpose, the
footage could be referred to for opinion of the Examiner of Electronic
Evidence provided u/s 79A of the Information Technology Act, 2000. We
have no hesitation in forming a view that a report by the I.O. u/s 169 of
the Cr.P.C. concluding at the investigation stage that there is no material
against a particular person, should not be blindly accepted. Nevertheless,
such a report should also not be suspected merely on the ground of
suspicion voiced by a litigant. The trial Court should not have discarded
the report u/s 169 Cr.P.C. based on the CDR / SDR documents, considering
the effect of Section 65B of the Indian Evidence Act. Section 65A of the
Indian Evidence Act mandates that evidence relating to electronic record
needs to be examined for it's admissibility subject to the parameters of
Section 65B of the Indian Evidence Act.
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14. In Prashant Bharti Vs. State (NCT of Delhi), (2013) 9 SCC
293, the Hon'ble Apex Court has held that the proof of facts based on
mobile phone call details must be considered to be conclusive for all
intents and purposes. Reliance was placed on an earlier judgment in
Gajraj Vs. State (NCT of Delhi), (2011) 10 SCC 675.
15. In Anvar P.V. Vs. P.K.Basheer and others, (2014) 10 SCC 473, it
was held by the Hon'ble Apex Court that only if the electronic record is
duly produced in terms of Section 65B of the Evidence Act, would the
question arise as to the genuineness thereof and in that situation, resort
can be made to Section 45A of the Evidence Act for seeking opinion of the
examiner of electronic evidence.
16. In Union of India Vs. Prakash P. Hinduja and others, AIR 2003
SC 2612, it was held that the manner and method of investigation is to be
left entirely to the Police Office. A Magistrate can not interfere u/s 190 of
the Cr.P.C. Refusal by Magistrate to accept final report (closure report)
does not mean interference with investigation. The Magistrate is no doubt
not bound to accept a final report, commonly called as the closure report,
submitted by the Police and if he feels that the evidence and material
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collected during investigation justices prosecution of the accused, he may
not accept the final report and take cognizance of the offence and
summon the accused. But this does not mean that he would be interfering
with the investigation, as such. He would be doing so in exercise of
powers conferred by Section 190 of the Cr.P.C.
17. In Satish Sharma and another Vs. State of Gujarath, AIR 2003
SC 648, the accused were charged of serious offences. Anticipatory bail
was refused on 2 occasions. The investigating Agency subsequently
tendered/filed a report u/s 169 of the Cr.P.C. before the Court indicating
it's intention that all the 3 accused be discharged. The High Court
observed that the Officers have tried to interfere with the administration
of justice amounting to a serious misconduct and that the State
Government should initiate serious action including suspension of such
Officers from service. The Hon'ble Apex Court concluded that such
observations and directions by the High Court are unjustified. It is difficult
to perceive that such a step would amount to interference with the
administration of justice. It was thus held that a report u/s 169 of the
Cr.P.C. does not amount to interfering with the administration of justice.
18. In view of the above, we do not find that the trial Court has
considered the report u/s 169 Cr.P.C. along with the electronic evidence in
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the form of a CCTV footage and CDR / SDR record, within the parameters
of Section 45A and Section 65B of the Indian Evidence Act. As such, the
impugned order dated 22.01.2021 stands quashed and set aside. This
appeal is partly allowed with the following directions : -
A. The appellant, though released on default bail, shall abide by
the bail conditions.
B. The report of the I.O. u/s 169 Cr.P.C. stands restored to the file
of Special Case No. 99 of 2020.
C. The report tendered by the I.O. u/s 169 Cr.P.C. shall be
revisited by the trial Court subject to the compliance of
Section 45A of the Indian Evidence Act r/w Section 79A of
the Information Technology Act, 2000.
D. After a report is received by the trial Court from the Expert
Examiner u/s 45A r/w Section 79A, the trial Court would
then decide the fate of the report filed by the I.O. u/s 169.
19. We direct the learned Registrar (Judicial) of this Court to
place the documents, inclusive of the closed envelope containing the
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CDR / SDR record and the sealed envelope containing the DVD, in an
envelope, seal the envelope and transmit it to the learned Special Judge,
Osmanabad in Special Case No. 99 of 2020 for compliance of our above
directions, through a special messenger, expeditiously. The contents of
this envelope which would be opened by the trial Court upon receipt and
shall be a part and parcel of the original record in Special Case No. 99 of
2020.
[ B. U. DEBADWAR ] [ RAVINDRA V. GHUGE ]
JUDGE JUDGE
SG Punde, PA/d
