Bombay High Court
Vinod Bapurao Chavan vs The State Of Maharashtra on 10 January, 2025
Author: R. G. Avachat
Bench: R. G. Avachat
2025:BHC-AUG:722-DB
1 Criappeal-698-2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.698 OF 2023
WITH
CRIMINAL APPLICATION NO.651 OF 2024
Vinod Bapurao Chavan
Age: 36 years, Occu: Service
R/o: Chausala, Taluka and
District Beed .... Appellant
Versus
1. The State of Maharashtra
2. Shashank s/o Jalindar Pawar
Age: 53 years, Occu: Service
R/o: Mahatmaphule Nagar,
Beed .... Respondents
_____________________________________________________________
Appearance :-
Mr. Nilesh S. Ghanekar, Advocate for the Appellant
Dr. Kalpalata Patil Bharaswadkar, Addl. PP for Respondent No.1
- State
Miss. Preeti R. Wankhade h/f Mr. D. M. Hange, Advocate for
Respondent No.2
CORAM : R. G. AVACHAT &
NEERAJ P. DHOTE, JJ.
Reserved On : 20/12/2024
Pronounced On : 10/01/2025
JUDGMENT :
[PER NEERAJ P. DHOTE, J.]
1. By the present Appeal preferred under Section 374[2] of
the Criminal Procedure Code, 1973 [hereinafter referred to as
'Cr.P.C.'], the Appellant has challenged his conviction and
sentence awarded by the learned Sessions Judge, Osmanabad,
vide Judgment and Order dated 08/05/2023, in Sessions Case
No.44/2018 for the offence punishable under Sections 302 and
201 of the Indian Penal Code, 1860 [hereinafter referred to as
'I.P.C.']. The sentence is as under :-
2 Criappeal-698-2023.odt
[a] For the offence punishable under Section 302 of IPC, to
suffer imprisonment for life and to pay fne of
Rs.50,000/-, in default, to suffer rigorous imprisonment
for six [6] months.
[b] For the offence punishable under Section 201 of IPC, to
suffer rigorous imprisonment for seven [7] years and to
pay fne of Rs.10,000/-, in default, to suffer rigorous
imprisonment for two [2] months.
2. The Prosecution's case as revealed from the Police Report
is as under : -
[I] The Appellant got married to Monali [hereinafter referred
to as 'the Deceased'], the daughter of Informant - Shashank
Jalindar Pawar, in November - 2014. The Appellant was in
Police Services. At the time of incident, the Appellant and
Deceased were residing together at Yermala, Taluka Kalamb,
District Osmanabad in a rented house. At the time of marriage,
the dowry was demanded by the Appellant and his parents.
After the marriage, the demand for remaining dowry persisted.
As the father of Deceased could not meet the demand, the
Deceased was subjected to harassment. On 24/01/2018, the
Appellant had gone to Aurangabad to attend the workshop. He
returned home in between 23.30 to 24.00 hours. He gave call to
the Deceased to open the door. The Deceased opened the door
and the Appellant went inside the house. The Appellant
doubted that, some person had come to his house and when the
Appellant returned home, an electric bulb of neighbourer was
burning and it was switched off. Quarrel took place between the
Appellant and the Deceased.
On 25/01/2018 around 08.58 hours, the
Deceased gave a phone call to her mother and narrated about
the quarrel by the Appellant with her in the previous night.
The Deceased asked her mother to inform her father to give
understanding to the Appellant. The conversation between the
3 Criappeal-698-2023.odt
Deceased and mother lasted for ten [10] minutes and some
seconds. Thereafter around 09.17 hours, the Deceased's
mother gave phone call to the mobile of the Deceased and she
heard the noise as 'मममे व मममे व'. Immediately, the parents of the
Deceased, who were residing at Beed, proceeded towards
Yermala. When they reached the Hospital at Barshi, they
noticed the dead body of their daughter. The Deceased suffered
frearm injury at her residence and she was moved to the
Hospital where she succumbed to the injuries. On the basis of
MLC, ADR No.0/18 came to be registered with Barshi Police
Station. After the Inquest, the body was referred for
Postmortem. Her last rites were performed. The father of
Deceased lodged the Report with Yermala Police Station against
the Appellant and his parents that, his daughter was treated
with cruelty and murdered, as Rs.5,00,000/- remained to be
given as dowry. Crime No.07/2018 came to be registered
against the Appellant and his parents for the offence punishable
under Sections 302 and 498-A read with Section 34 of IPC.
[II] On registration of the Crime, the investigation started.
The statements of witnesses were recorded. The Inquest and
Spot Panchnama were already done during the inquiry in the
ADR. On Postmortem, the cause of death was revealed as
'haemorrhagic shock due to frearm injury to abdomen '. The
frearm and articles collected during the course of investigation
were referred to the Chemical Analysis. The Investigating
Offcer sought opinion of Chemical Analyeer on certain aspects.
The mobile phones of the Deceased and the Appellant came to
be seieed. On completion of investigation, the Appellant and his
parents came to be Charge-sheeted.
4 Criappeal-698-2023.odt
[III] The learned Trial Court framed the Charge against the
Appellant and his parents for the offence punishable under
Sections 302, 201 and 498-A of IPC vide Exhibit - 67, to which,
the Appellant and his parents pleaded not guilty and claimed to
be tried. To prove the Charge, the Prosecution examined in all
fourteen [14] witnesses and brought on record the relevant
documents. After the Prosecution closed their evidence, the
statement of the Appellant and his parents came to be recorded
by the learned Trial Court under Section 313[1][b] of Cr.P.C. It
was the defence of Appellant that, his wife committed suicide by
using his service revolver, as she was unhappy for not getting
pregnant and false Crime was registered against them. On
appreciating the evidence available on record, the learned Trial
Court passed the impugned Judgment and Order, by which, the
parents of the Appellant came to be acquitted of all the Charges.
The Appellant came to be acquitted for the Charge of the offence
under Section 498-A of I.P.C. and recorded the conviction
against the Appellant as mentioned in Paragraph No.1 above.
3. Heard the learned Advocate for the Appellant, learned
Addl. P.P. for Respondent No.1 - State and the learned Advocate
for Respondent No.2 - Informant. Scrutinieed the evidence on
record.
4. The Prosecution's case is based on circumstantial
evidence. The learned Advocate for the Appellant has aptly
relied on the Judgment in Sharad Biridhichand Sarda Vs. State
of Maharashtra; 1984 [4] SCC 116, wherein, the principles in
respect of the cases based on circumstantial evidence are
reiterated, which reads as follows :-
5 Criappeal-698-2023.odt
"(1) The circumstances from which the conclusion of guilt is to be
drawn should be fully established.
(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."
5. From the evidence available on record and the
submissions advanced by both the sides across the bar,
following are the circumstances relied upon by the Prosecution
to prove the Charge against the Appellant :-
[i] Unnatural death of Appellant's wife at her matrimonial
home by frearm injury ;
[ii] Oral Dying Declaration ;
[iii] Use of frearm from the close range ;
[iv] Absence of gunpowder on the hands of Deceased ;
[v] Body part where the frearm injury was caused ;
[vi] Blood on the towel of the Appellant ;
[vii] Motive
[i] Unnatural death of Appellant's wife at her matrimonial
home by frearm injury
6. As regards the death of Appellant's wife by frearm injury
is concerned, it is not in dispute. It is submitted by the learned
Advocate for the Appellant that, there is no quarrel on the
aspect that, the Appellant's wife died of injury caused by the
bullet fred from the frearm. On this circumstance, the crucial
6 Criappeal-698-2023.odt
evidence is that of PW - 8 [Dr. Santosh Baburao Bhoi], who was
Associate Professor in the Department of Forensic Medicine in
the Government Medical College, Solapur since 2010. He
received the dead body of Appellant's wife from Barshi Shahar,
Solapur Police Station on 26/01/2018 at 01.50 p.m. He
performed the autopsy from 02.00 p.m till 03.30 p.m. He was
assisted by other two Medical Offcers. On external
examination, the Medical Offcers found the following injuries :-
"i) penetrating lacerated wound oval in shape of size 0.8 cm x 0.5 cm.
present on anterior aspect of abdomen. It is 120 cm. from feet. The
wound is 16 cm. infero medial to left nipple, 18 cm. infero medial to
right nipple, 13 cm. from the umbilicus and 25 cm. from the sternal
notch. The abrasion collar and greuse collar are present. The margin
of wound are inverted. The wound is surrounded by burning,
blackening and singeining of hairs in encircling area around entry
wound of diameter 05 cm. suggestive of firearm entry wound.
ii) Penetrating lacerated wound of seize 0.5 x 0.5 cm present on left
side of back 160 cm. Above feet and 4.5cm. From the midline.
Suggestive of firm arm exist wound.
iii) Penetrating lacerated wound of size 0.5 cm. X 0.5 cm. present on
left side of back 116.5 cm. above feet and 4 cm. from the midline,
suggestive of firearm exist wound.
iv) Contused abrasion of size 5 x 5 cm. Present 0.5 cm. Inferior lateral
from injury No.4 redish blue in colour.
v) Track of the firearm injury is skin at the region of firearm entry
wound- underlined fescia underlined muscles then going to posterior
lacerated below the stomach to greater omentum- underlined muscles
corresponding injury No.2, 3- underlined fascia corresponding injury
No.2 & 3, skin corresponding injury No.2 & 3. with infiltration and
extra vessation of blood within the track."
6.1 His evidence shows that, Injury Nos.1 to 3 were
possible by frearm and were fresh in nature. Injury No.4 was
possible by hard and blunt object and all the injuries were ante-
mortem in nature.
6.2 They also did the internal examination of the body.
The following samples were collected for Chemical Analysis :-
7 Criappeal-698-2023.odt
"i) stomach, loop of intestine and its contents.
ii) 1/3rd liver, ½ of spleen, ½ each kidney.
iii) Blood.
iv) Hand washing of both hands with swab.
v) Skin from entry wound, skin from exit wound and skin
from controlled sample.
vi) High vaginal swab and vaginal swab.
vii) finger nail clipping of both hands."
6.3 They opined the cause of death as "haemorrhagic
shock due to frearm injury to abdomen". The Postmortem
Report at Exhibit - 133 is brought on record in his evidence.
His evidence shows that, the Postmortem Report corroborates
his testimony. There is no challenge to the above evidence in
the cross-examination. The cause of death is also not disputed
in the cross-examination. With this evidence available on
record, the Prosecution has successfully established that, the
Appellant's wife died of frearm injury to the abdomen.
7. As regards the spot where the Appellant's wife suffered
the frearm injury, there is no dispute that, it was the
residential home of the Appellant and Deceased. The Spot
Panchnama at Exhibit - 109 is admitted by the defence before
the learned Trial Court. Even the evidence of PW - 9 [Dr. Nitin
Narayan Katekar], who investigated the Crime, shows that, he
prepared the Spot Panchnama at Exhibit - 109.
8. From the above evidence on record, the
circumstance that, the Appellant's wife died of frearm injury in
her abdomen at her residence is conclusively established.
[ii] Oral Dying Declaration
9. It is submitted by the learned Advocate for the
Appellant that, the evidence of informant that, he heard
the utterance of the Deceased that, her husband fred
bullet on her is liable to be discarded, being the
8 Criappeal-698-2023.odt
improvement from his report and no corroboration from the
other Prosecution's witnesses. He submitted that, though the
cell phone of the Deceased containing the call recordings was
seieed and produced before the Court, the call recordings were
not played during the evidence of the relevant witnesses for
identifcation of the voice and therefore, it will not be of any
assistance to the Prosecution.
9.1 On this point, the learned Advocate for the Appellant
relied on the following Judgments :-
[a] Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass
Mehra and Ors. ; AIR 1975 SC 1788 -
MANU/SC/0277/1975 ;
[b] Smt. Shobha Sonba Raut Vs. The State of Maharashtra, in
Criminal Appeal No.103/2017 ;
[c] Anil Krishnarao Apashingkar Vs. The State of
Maharashtra ; 2021 Criminal Law Journal 4629 -
MANU/MH/1406/2021 ;
[d] Ram Singh and Ors. Vs. Ram Singh ; AIR 1986 SC 3 -
MANU/SC/0176/1985 ;
[e] Devidas Harichandra Bhaskar Vs. The State of
Maharashtra, in Criminal Appeal No.918/2015 ;
10. It is submitted by the learned Addl. P.P. for Respondent
No.1 - State and learned Advocate for Respondent No.2 that,
the evidence of PW - 1 [Shashank Jalindar Pawar] and PW - 3
[Vrundawani Shashank Pawar], who were the father and
mother, respectively of the Deceased, shows that, on
25/01/2018 around 08.58 a.m., before the incident, the
Deceased made phone call to PW - 3 [Vrundawani Shashank
Pawar] and narrated the incident of quarrel picked up by the
Appellant with her in the late night and raised doubt on her
character. The evidence of parents further shows that, after
9 Criappeal-698-2023.odt
the said phone call, which ended with an assurance from PW - 3
[Vrundawani Shashank Pawar] that, they would give
understanding to the Appellant and the Deceased was awaiting
the call of her mother. PW - 3 [Vrundawani Shashank Pawar]
called the Deceased on her mobile phone at 9.17 a.m., when the
Deceased was being taken to the Hospital and Deceased stated
that, the Appellant had shot her. They submitted that, the call
recordings between the Deceased and PW - 3 [Vrundawani
Shashank Pawar] were copied and sent to the Forensic
Laboratory and were extracted in DVD in PDF format and also
supplied to the defence. They further submitted that, the same
were duly executed at Exhibit - 229, which were part and
parcel of Exhibit - 183 and no objection was raised by the
defence to exhibit the same.
10.1 The learned Advocate for Respondent No.2 cited the
Judgment in Sonu @ Amar Vs. State of Haryana, in Criminal
Appeal No.1418/2013, of the Hon'ble Supreme Court of India
dated July 18, 2017, in support of the said contention that,
objection to the exhibiting of documents cannot be raised at
appellate stage.
11. Initial part of the evidence of PW - 1 [Shashank Jalindar
Pawar] is in respect of the marriage of his daughter [Deceased]
with the Appellant, demand of dowry from the Appellant's side,
sending of Deceased to her parents house as the remaining
dowry amount was not given, transfer of the Appellant and
other incident. The Appellant is acquitted for the offence
punishable under Section 498-A of IPC and there is no Appeal
by the Prosecution against the acquittal.
10 Criappeal-698-2023.odt
12. Further, the evidence of PW - 1 [Shashank Jalindar
Pawar] shows that, in the morning of 25/01/2018 around 8.58
a.m., the Deceased called his wife PW - 3 [Vrundawani
Shashank Pawar] on her mobile and narrated the incident of
quarrel raised by the Appellant with her in the previous night
and requested PW - 3 [Vrundawani Shashank Pawar] to give
understanding to the Appellant. The said call lasted for ten [10]
minutes and thirty seven [37] seconds. Thereafter around
09.17 minutes, when PW - 3 [Vrundawani Shashank Pawar]
gave phone call to the Deceased, she heard the cry of Deceased
and she was able to hear the conversation, which was going on
at the other end of the call, wherein, the Deceased told the
women, who accompanied the Deceased towards the Hospital,
that 'my husband shot me'. This witness i.e. PW - 1 was able to
hear the said conversation. Immediately, he along with PW - 3
[Vrundawani Shashank Pawar] proceeded towards Yermala
and on the way, they informed their relatives.
13. His cross-examination shows that, he did not narrate in
his report lodged with the Police that, the Deceased uttered that
'my husband shot me'. He further admitted that, he did not
state in his report that, he informed his relatives about the
incident. This clearly shows that, the said evidence of PW - 1
[Shashank Jalindar Pawar] that, he heard Deceased saying
that, her husband shot her, was an improvement from his
report. We agree with the submission of the learned Advocate
for the Appellant that, it was the material omission. In cross,
he admits that, the said utterance by the Deceased that, her
husband shot her, was the serious matter. However, he did not
inform the Police Station where he was posted. His testimony
shows that, the Police Station where he was working was 100
11 Criappeal-698-2023.odt
meters away from his residence. He admits that, on that day,
he did not give any written report to the Police Station in
respect of the incident. This witness volunteered that, he had
orally informed about the same to his Superior Mr. Kaei, P.S.I.,
however, there is no corroboration to the same. His evidence
shows that, from Suvidha Hospital, the dead body was taken to
Barshi Rural Hospital, wherein, he had gone with his brother
PW - 2 [Chandraprakash Jalindar Pawar] where the Police
were present. He admits that, in the said Rural Hospital, the
Police asked him whether he had any complaint in respect of
death of his daughter and at that time, he did not give any
written report in respect of his daughter's death. It is really
strange that, a person, who was in the Police Department and
claims to have heard his daughter saying that, her husband
shot her, doesn't report to the Police.
14. PW - 3 [Vrundawani Shashank Pawar], who was the
mother of Deceased, though corroborates the evidence of PW - 1
[Shashank Jalindar Pawar] in respect of receiving the phone
call from the Deceased, on 25/01/2018 at 8.58 a.m. narrating
the previous night incident between the Appellant and
Deceased and further making a phone call by her to the
Deceased, her evidence nowhere shows that, the Deceased was
heard saying "her husband shot me". Her evidence do not
corroborate the testimony of PW - 1 [Shashank Jalindar
Pawar] in respect of Oral Dying Declaration by the Deceased.
On the contrary, she deposed that, during the phone call in the
morning, the Deceased asked her to come along with her father
to give understanding to the Appellant and thereafter, she and
PW - 1 [Shashank Jalindar Pawar] left for Yermala. At that
time, she made phone call on the mobile of the Deceased and
12 Criappeal-698-2023.odt
she heard noise as 'मममे व मममे व' and 'काकू काकू'. While on the way
towards Yermala, her husband i.e. PW - 1 [Shashank Jalindar
Pawar] received a phone call that, their daughter died. The
evidence of PW - 3 [Vrundawani Shashank Pawar] falsifes the
evidence of PW - 1 [Shashank Jalindar Pawar] in respect of
Oral Dying Declaration.
15. The evidence of PW - 2 [Chandraprakash Jalindar
Pawar], who was the brother of PW - 1 [Shashank Jalindar
Pawar], shows that, when he was telephonically informed by
the brother-in-law of the Deceased on 25/01/2018 that, the
Deceased suffered heart attack and asked them to reach, he
contacted PW - 1 [Shashank Jalindar Pawar] on the phone and
he along with PW - 1 [Shashank Jalindar Pawar], PW - 3
[Vrundawani Shashank Pawar] and others proceeded towards
Yermala. His evidence nowhere shows that, PW - 1 [Shashank
Jalindar Pawar] informed him about the Oral Dying Declaration
made by the Deceased. His evidence shows that, when they
reached the Suvidha Hospital at Barshi, the persons residing in
the neighbourhood of the Deceased told him that, the Appellant
fred bullet on the Deceased. The said evidence in respect of the
neighbourers informing him that the Appellant fred bullet on
the Deceased was an omission in his previous statement and
also hearsay evidence. His cross-examination shows that,
during the Inquest, the Police from Barshi asked him whether
he had any complaint in respect of death of his niece. His
evidence is of no assistance to the Prosecution to prove the
circumstance of Oral Dying Declaration and nowhere
corroborates the testimony of PW - 1 [Shashank Jalindar
Pawar].
13 Criappeal-698-2023.odt
16. The evidence of PW - 9 [Dr. Nitin Narayan Katekar], who
was the Investigating Offcer, shows that, the Samsung Galaxy
J-7 android mobile phone of the Deceased was seieed from the
Informant under the Panchnama at Exhibit - 147. The evidence
on record nowhere shows that, the recorded conversation in the
mobile of the Deceased was played at the time of recording the
evidence of PW - 1 [Shashank Jalindar Pawar] and PW - 3
[Vrundawani Shashank Pawar]. It was necessary to play the
same before the said witnesses for the purposes of identifcation
of the voice. There can be no other view, as held in the above
referred Judgments relied upon by the learned Advocate for the
Appellant, on the point that, the recording of call was the
document as defned by Section 3 of the Indian Evidence Act,
1872 [hereinafter referred to as 'the Evidence Act'] and they
were admissible in evidence on satisfying the condition that, the
voice of the person alleged to be speaking, must be duly
identifed by the maker of the record or by others who knew it.
No doubt, the call recording in the said mobile phone of the
Deceased was the primary evidence, however, mere exhibiting
the same, sans no objection by the defence during the trial, will
not be of any assistance to the Prosecution unless the same was
played as observed above, for the purposes of identifcation of
voices.
16.1 In the above referred Judgment cited by the learned
Advocate for Respondent No.2, one of the contention of learned
Senior Advocate appearing therein for the State was that, the
CDRs were adduced in evidence without any objection from the
defence and the Accused cannot be permitted to raise the point
of admissibility of the CDRs at the appellate stage. It was the
contention from the other side that, the objection, which
14 Criappeal-698-2023.odt
was raised by him pertains to inadmissibility of the document
and not the mode of proof. By considering the various
Judgments of the Hon'ble Apex Court, it is observed that, the
admissibility of document which is inherently inadmissible is
an issue which can be taken up at the appellate stage because it
was a fundamental issue and further observed that, the mode
or method of proof is procedural and objections, if not taken at
the trial, cannot be permitted at the appellate stage.
17. The learned Advocate for the Appellant relied on the
Judgment in Arjun Panditrao Khotkar Vs. Kailash Kushanrao
Gorantyal and Ors. ; MANU/SC/0521/2020, delivered by three
[3] Judge Bench of the Hon'ble Apex Court, wherein, the aspect
of admissibility of electronic evidence was thoroughly
considered. In Paragraph Nos. 30, 31 and 32 of the said
Judgment, the following observations are made :-
30. Coming back to Section 65B of the Indian Evidence Act, Sub-
section (1) needs to be analysed. The Sub-section begins with a
non-obstante clause, and then goes on to mention information
contained in an electronic record produced by a computer, which is,
by a deeming fiction, then made a "document". This deeming fiction
only takes effect if the further conditions mentioned in the Section
are satisfied in relation to both the information and the computer in
question; and if such conditions are met, the "document" shall then
be admissible in any proceedings. The words "...without further
proof or production of the original..." make it clear that once the
deeming fiction is given effect by the fulfilment of the conditions
mentioned in the Section, the "deemed document" now becomes
admissible in evidence without further proof or production of the
original as evidence of any contents of the original, or of any fact
stated therein of which direct evidence would be admissible.
31. The non-obstante Clause in Sub-section (1) makes it clear
that when it comes to information contained in an electronic record,
admissibility and proof thereof must follow the drill of Section 65B,
which is a special provision in this behalf - Sections 62 to 65 being
irrelevant for this purpose. However, Section 65B(1) clearly
differentiates between the "original" document-which would be the
original "electronic record" contained in the "computer" in which the
original information is first stored-and the computer output
15 Criappeal-698-2023.odt
containing such information, which then may be treated as evidence
of the contents of the "original" document. All this necessarily
shows that Section 65B differentiates between the original
information contained in the "computer" itself and copies made
therefrom - the former being primary evidence, and the latter being
secondary evidence.
32. Quite obviously, the requisite certificate in Sub-section (4) is
unnecessary if the original document itself is produced. This can be
done by the owner of a laptop computer, a computer tablet or even
a mobile phone, by stepping into the witness box and proving that
the concerned device, on which the original information is first
stored, is owned and/or operated by him. In cases where "the
computer", as defined, happens to be a part of a "computer system"
or "computer network" (as defined in the Information Technology
Act, 2000) and it becomes impossible to physically bring such
network or system to the Court, then the only means of proving
information contained in such electronic record can be in
accordance with Section 65B(1), together with the requisite
certificate Under Section 65B(4). This being the case, it is necessary
to clarify what is contained in the last sentence in paragraph 24 of
Anvar P.V. (supra) which reads as "...if an electronic record as such is
used as primary evidence Under Section 62 of the Evidence Act...".
This may more appropriately be read without the words "Under
Section 62 of the Evidence Act,...". With this minor clarification, the
law stated in paragraph 24 of Anvar P. V. (supra) does not need to
be revisited."
17.1 It is also observed in the above Judgment that,
Section 65-B of the Evidence Act does not speak of the stage at
which the certifcate must be furnished to the Court. It is
further observed that, the Judgment in Anvar P. V. Vs. P. K.
Basheer and Ors.; [2014] 10 SCC 473, as clarifed in the
Judgment [Arjun Panditrao Khotkar Vs. Kailash Kushanrao
Gorantyal and Ors. (Supra)] was the law declared by the
Hon'ble Apex Court on Section 65-B of the Evidence Act.
18. As regards the electronic evidence in the nature of DVDs
is concerned, which are exhibited, admittedly, they were not
accompanied by the certifcate as mandated by Section 65-B of
the Evidence Act. Even the Prosecution did not produce the said
certifcate at any later point of time. Therefore, though they
16 Criappeal-698-2023.odt
were exhibited, the same would not be admissible for want of
mandatory certifcate under Section 65-B of the Evidence Act.
Therefore, the secondary electronic evidence unaccompanied
by the certifcate under Section 65-B of the Evidence Act is
necessarily to be kept out of consideration. As observed above,
at the cost of repetition, though the mobile phone of the
Deceased was available in the nature of primary evidence, for
want of identifcation of voices in the recording stored therein,
is of no aid to the Prosecution.
18.1 The Prosecution examined PW - 4 [Manik Keshav
Aaglave] and PW - 5 [Anusaya Manikrao Aaglave], the landlord
and landlady respectively, of the house, where the Appellant
and Deceased were residing and also PW - 6 [Avinash Dhanpal
Khillare], one of the tenant in the same premises, where the
incident had taken place and who reached the spot of incident
after hearing the sound. Their evidence nowhere shows that,
the Deceased was in a position to talk and she made any
disclosure to them in respect of the cause of her death. The
evidence of PW - 4 [Manik Keshav Aaglave] and PW - 6
[Avinash Dhanpal Khillare] shows that, they transported the
Deceased in a four [4] wheeler to the Hospital from the spot of
incident. However, their evidence nowhere shows that, the
Deceased was in a position to talk and made any utterance in
respect of the cause of her death.
19. In view of the above discussion, the circumstance of
the Oral Dying Declaration is not conclusively proved by the
Prosecution.
17 Criappeal-698-2023.odt
[iii] Use of frearm from the close range
20. It is submitted by the learned Advocate for the Appellant
that, the Prosecution relied on the evidence of Ballistic Expert
to show that, the bullet was fred from the close range. The
evidence of Ballistic Expert, who is examined as PW - 7 [Urvi
Pramod Mhasilkar], shows that, for the frst time, she deposed
before the Court that, the weapon was fred from the close range
and there is no explanation to support the said fndings. The
manual, which the said Ballistic Expert relied, was not brought
on record by the Prosecution. Some of the questions referred by
the Investigating Offcer to the Ballistic Expert in respect of the
use of frearm were not replied by the Ballistic Expert and
deposed that, the answers to the said questions were in the
form of CA reports. As the Investigating Offcer also sent the
questionnaires to the Medical Offcer in respect of distance,
from which, the bullet was fred, putting questions by the
defence to the Medical Offcer in respect of distance of use of
frearm cannot be said to be unwarranted. There is nothing to
show that, the Ballistic Expert was having suffcient experience
as she was young by age. The Ballistic Expert agrees with the
principle of Dr. Reddy's Medical Jurisprudence in respect of
the distance which comes within the close range. The evidence
of Ballistic Expert is insuffcient to prove that, the bullet was
fred from the short distance.
20.1 In support of his submission, he relied on the
Judgment in Pankaj Vs. State of Rajasthan, in Criminal Appeal
No.2135/2009 dated September 9, 2016 passed by the Hon'ble
Supreme Court, wherein, there was variance in the evidence of
PW - 8 and PW - 6 therein, with regard to the distance between
the Deceased and the Appellant - Accused and in that fact
18 Criappeal-698-2023.odt
situation, the Phenomena observed in Firearm Injuries or Short
Holes on Clothing, from Modi's Jurisprudence was referred,
wherein, range in respect of revolver / pistols, wherein, fame /
burning / scorching / singeing shown was within about 5 - 8 cm.
generally is mentioned. It is further observed in the said
Judgment that, in a case where death due to injuries or wounds
caused by a lethal weapon, it is always the duty of the
Prosecution to prove by expert evidence that, it was likely or at
least possible for the injuries to have been caused with the
weapon with which and in the manner in which they are alleged
to have been caused. In that case, it was observed that, the
contradiction i.e. the distance of fre, is material and it was held
that, it would not be appropriate to convict the Appellant -
Accused by ignoring such an important aspect.
20.2 He also relied on the Judgment in Archana Tulsiyani
Vs. Ajay Prakash Mishra, in Criminal Appeal No[s]. 2019-
2021/2012, passed by the Hon'ble Apex Court, which was one of
the Appeals from the order of acquittal. In that case, there was
no evidence of any strained relations between the Appellant
and the Deceased. It was observed that, merely on the basis of
the blackening around the wound to presume that the fring was
done at a close range and therefore it was a case of suicide was
unsustainable. The treating doctor expressed no opinion of the
injury being suggestive of suicide.
21. On the other hand, it is submitted by the learned Addl. P.
P. for Respondent No.1 - State and learned Advocate for
Respondent No.2 that, the evidence of Ballistic Expert
corroborated by the CA reports and the cause of death clearly
established that, the bullet was fred from the close range.
Though the Medical Offcer, who performed the Postmortem, in
19 Criappeal-698-2023.odt
the cross-examination, deposed that, the injuries mentioned in
the Postmortem were possible if the frearm was used from the
point-blank range, it would not affect the evidence of Ballistic
Expert. Nothing has come in the evidence of Ballistic Expert
that, the bullet was fred from the point-blank range. The
Medical Offcer declined that, it was the case of suicide and his
evidence that, it was Homicidal Death remained unshaken.
22. The Ballistic Expert is examined as PW - 7 [Urvi Pramod
Mhasilkar]. We are not impressed by the arguments of the
learned Advocate for the Appellant that, looking to the age of
Ballistic Expert, which was shown as 27 years at the time of
evidence and might be 23 years old in 2018 when she did the
chemical examination of the frearm, her evidence cannot be
taken seriously. Her evidence shows that, she was holding the
Master Decree in Forensic Science and working as the Assistant
Chemical Analyser in Directorate of Science Forensic
Laboratory Kalina, Mumbai. She did the chemical examination
of the Muddemal articles referred to her by PW - 9,
Investigating Offcer [Dr. Nitin Narayan Katekar] vide Exhibit -
119. The results of examination, reads as under :-
"The Exhibit - 1, which was 9 mm caliber pistol, was in
working condition. Residue of fred ammunition-nitrite
was detected in barrel washing of the said pistol
showing that, it was used for fring prior to its receipt in
the laboratory. The empty magaeine which was Exhibit
- 2 easily sat in the magaeine cavity of 9 mm caliber
pistol and having capacity to accommodate about 9 mm
pistol cartridge. Randomly selected one 9 mm pistol
cartridge from Exhibit - 3 was successfully test fred
through 9 mm caliber pistol. The empty in Exhibit - 4
was fred from 9 mm caliber pistol. He identifed the CA
report at Exhibit - 120 as the same, which was result of
analysis done by her on the said frearm."
20 Criappeal-698-2023.odt
23. Her evidence further shows that, she examined the
articles referred vide letter dated 26/01/2018, which were
Exhibit - 1 - Skin piece at the site of entry wound, Exhibit - 2 -
Skin piece at the site of exit wound and Exhibit - 3 - Control
skin piece and recorded her fndings in CA report at Exhibit -
122. Her evidence shows that, on examination, there was
detection of metallic lead and copper in presence of blackening
and powder residues around the shot hole on skin piece in
Exhibit - 1 and detection of metallic lead and copper in absence
of blackening and powder residues around the shot hole on skin
piece in Exhibit - 2 was consistent with wipe and passage of
copper jacketed bullet having been fred from the close range of
the weapon. On chemical analysis of Exhibit - 1 - Skin piece,
she found metallic lead and copper in presence of blackening
and powder residue around the shot hole in Exhibit - 1, which
meant that, it was consistent with wipe and passage of copper
jacketed bullet having been fred from close range of weapon.
The distance between the target and mueele end of the weapon
in close range was about one [1] ft. to two [2] ft. Her evidence
further shows that, she followed the procedure given in the SOP
manual or working procedure manual issued by the Central
Forensic Science Laboratory, Central Government. Not
bringing on record the copy of the said SOP manual or working
procedure is of no consequence. Neither the said witness was
called upon by the defence to get the copy of the same. Though
she admits that, for the frst time in the Court, she deposed that,
the distance between the target and mueele end of the weapon
was in close range about one [1] to two [2] ft, the CA report at
Exhibit - 122 prepared by her clearly records the result of
analysis, which reads as under :-
21 Criappeal-698-2023.odt
" Detection of metallic lead and copper in presence of blackening
and powder residues around the shot hole on skin piece in Exhibit 1
and detection of metallic lead and copper in absence of blackening
and powder residues around the shot hole on skin piece in Exhibit 2 is
consistent with wipe and passage of copper jacketed bullet having
been fired from the close range of the weapon.
The skin piece in Exhibit 3 used as control sample."
24. This witness fairly admitted in the cross-examination
that, the Investigating Offcer [PW - 9] had put specifc
questions in the communication dated 28/01/2018 at Exhibit -
199 and she did not give answers to each and every questions,
particularly, Question Nos.13 and 15 and positively replied the
suggestion that, the CA reports at Exhibit - 120 to 123 and
Exhibits - 125 to 127 were the answers to the said queries
made by the Investigating Offcer vide Exhibit - 119. We do not
see any infrmity on the said point. The said CA reports are
the documents, which are admissible in evidence pursuant to
the provisions of Section 293 of Cr.P.C. Her evidence shows
that, she agreed with the principle of Dr. Reddy's Medical
Jurisprudence that, the close range means within 5 to 8
centimeters. She further agreed that, there is long range
category, which means more than three [3] ft and long rang
fring always happens in Homicidal Death. She denied the
suggestion that, the opinion given by her that close range
means one [1] ft. to two [2] ft. distance, is a wrong opinion. Her
cross-examination shows that, she followed the working
procedure manual issued by the Central Government and her
opinion regarding close range distance was based on the said
manual. Her evidence is consistent that, her fnding of analysis
in respect of the distance of frearm in the case on hand was in
close range. The cross-examination could not create any dent
in her evidence, which was corroborated by the CA reports.
22 Criappeal-698-2023.odt
25. The admission by PW - 8 [Dr. Santosh Baburao Bhoi], the
Medical Offcer that, the injuries mentioned in Column No.17 of
the Postmortem of the Deceased were possible if the frearm
was used at the point-blank range, will not affect the testimony
of PW - 7 [Urvi Pramod Mhasilkar] in respect of her fndings
and opinion and also in respect of frearm and the articles sent
to her for the examination. PW - 8 [Dr. Santosh Baburao Bhoi],
in his cross-examination, admits that, fnding gunpowder
residues on the clothes of the Deceased was one of the
circumstance showing the close range shot. On the point of
distance, from which, the frearm was used, in our considered
view, the evidence of Ballistic Expert, who is the Expert on the
subject of Ballistic, would have more value or weightage as
compared to the evidence of Medical Offcer, who performed the
Postmortem. The aforesaid authorities relied upon by the
learned Advocate for the Appellant will not be of any assistance
to discard the testimony of the Ballistic Expert. There is one
more reason, which completely rules out the possibility that,
the frearm used in the case on hand was fred from the point-
blank range. Undisputedly, the frearm i.e. pistol was sent for
chemical analysis. The CA report at Exhibit - 181 shows that,
no blood was detected on the pistol. When human blood was
detected on the clothes i.e. maxi, knicker and one clothe piece of
the Deceased in CA report at Exhibit - 182, it is highly unlikely
that, no blood would come on the frearm if it is fred from the
point -blank range. Absence of blood on the frearm makes the
testimony of Ballistic Expert more concrete and rules out the
possibility that, it was fred from point-blank range.
23 Criappeal-698-2023.odt
26. In view of the above discussion, the Prosecution
conclusively proved that, the pistol / frearm was fred from the
close range and not from the point-blank range.
[iv] Absence of gunpowder on the hands of Deceased
27. It is submitted by the learned Advocate for the Appellant
that, the circumstance of absence of gunpowder on the hands of
Deceased would not be of any assistance to the Prosecution, as
the evidence of the Prosecution witnesses, who reached the spot
of incident on hearing the sound shows that, the ladies rubbed
the hands of the Deceased and there was movement of the dead
body from the spot to the Hospital. Because of those factors, no
gunpowder was detected on the hands of Deceased. The
evidence of PW - 8 [Dr. Santosh Baburao Bhoi] shows that,
when the dead body was received, the hands of Deceased were
not protected by any paper bag or by any means. He submitted
that, this circumstance will not lead to the conclusion that, the
Deceased had not used the frearm.
28. It is submitted by the learned Addl. P.P. for Respondent
No.1 - State and learned Advocate for Respondent No.2 that,
had the Deceased fred on herself by using the frearm, the
gunpowder would certainly be detected on her hands. The
evidence of Ballistic Expert denied the suggestion that, due to
rubbing of the hands of Deceased, the gunpowder would vanish.
It is submitted that, non fnding of the gunpowder on the hands
of Deceased proved that, the frearm was not used by her.
29. The evidence of PW - 7 [Urvi Pramod Mhasilkar], the
Ballistic Expert, shows that, by communication dated
26/01/2018, her offce received two exhibits containing two
sealed plastic container having one Exhibit - 1 - Gauee piece in
24 Criappeal-698-2023.odt
liquid put in a plastic container labelled content - hand wash of
right hand marked Exh. No.C-3 and Exhibit - 2 - Gauee piece in
liquid put in a plastic container labelled content - hand wash of
left hand marked Exh. No.C-4. Both exhibits were having
labells by name Mona @ Monali Vinod Chavan. She started the
analysis on 13/03/2018 and completed it on the same day and
her result was that, nothing of note in relevance to the fred
gunshot residues were detected on the cotton swab in Exhibit -
1 and Exhibit - 2. She prepared the CA report at Exhibit - 121.
She denied the suggestion given in her cross-examination that,
after fring, if a third person rubs both the hands of the person,
who used the frearm, the gunshots residues will vanish. It is
true that, it has come in the evidence of PW - 5 [Anusaya
Manikrao Aaglave], who was the landlady of the premises
where the incident had taken place, that when she went on the
spot of incident after hearing the sound, Deceased was lying on
the foor and fve [5] to six [6] women came to the spot and
rubbed the legs and head of the Deceased. Her evidence do not
show that, the said women rubbed the hands of Deceased.
30. In the evidence of PW - 7 [Urvi Pramod Mhasilkar], the
CA report at Exhibit - 123 is brought on record. It is in respect
of nail clippings of both the hands of Deceased and the result of
analysis was that 'nothing of note in relevance to the fred
gunshot residues were detected on the fnger nail clippings in
Exhibit - 1.' Even if the contention of the learned Advocate for
the Appellant that, due to rubbing of hands, the gunpowder
residues will vanish is accepted for the sake of argument, it is
unlikely that, the gunpowder residues on the fnger nail would
disappear or vanish. The evidence on record clearly
established that, no gunpowder residues were found on the
hands and nails of the Deceased.
25 Criappeal-698-2023.odt
[v] Body part where the frearm injury was caused
31. It is submitted by the learned Advocate for the Appellant
that, it is not that, because the frearm injury was on the part of
abdomen or just below the chest, it was not the case of suicide.
The Medical Offcer admitted in cross-examination that, it
depends on the person who choose the part of body to commit
the suicide. According to the Medical Offcer, generally in
suicidal cases, the frearm injury is seen on the head and chest.
In the case on hand, the injury is just below the chest and
therefore, the circumstance of the body part will not be of any
relevance.
32. It is the contention of the learned Addl. PP for Respondent
No.1 - State and learned Advocate for Respondent No.2 that,
the evidence of Medical Offcer shows that, generally the
frearm injury in the case of suicide is on the head and chest,
which is not so in the present case, and thus it rules out the
Suicidal Death.
33. Undisputedly, the Medical evidence has established that,
the frearm injury on the Deceased was on anterior aspect of
abdomen. The wound was 16 cm. infero medial to left nipple, 18
cm. infero medial to right nipple, 13 cm. from the umbilicus and
25 cm. from the sternal notch. The frearm injury suffered by
the Deceased was neither on the head nor on the chest, which
according to the Medical Offcer was the general pattern in
suicidal cases.
[vi] Blood on the towel of the Appellant
34. The evidence of PW - 5 [Anusaya Manikrao Aaglave], the
landlady of the premises where the incident had taken place,
shows that, when she went on the spot of incident after hearing
26 Criappeal-698-2023.odt
the noise, she noticed that, the Appellant had wrapped the
towel and was having soap foam on his body and head. This
aspect that, the Appellant had wrapped the towel at the time of
incident is not in dispute as seen from the cross-examination of
PW - 4 [Manik Keshav Aaglave], the landlord of the place of
incident, as the suggestion was given to him that, the Appellant
was standing in the house with towel and foam on his face and
head. The evidence of PW - 9 [Dr. Nitin Narayan Katekar], the
Investigating Offcer, shows that, he seieed one white turkish
towel, when he seieed the frearm, one bullet shell and blood
stains found on the foor from the spot of incident. The seieed
articles were separately seieed with lables and signatures of the
panchas. He deposed of blood stains on the towel, which was
Article No.3. The evidence of PW - 7 [Urvi Pramod Mhasilkar],
Ballistic Expert, shows that, the articles, which were received
for examination vide Exhibit - 199 from PW - 9 [Dr. Nitin
Narayan Katekar], Investigating Offcer was having one towel
Exhibit - 5 and CA report in that respect was at Exhibit - 120
showed no residue of gunshot. However, the CA report at
Exhibit - 181 brought on record in the evidence of PW - 9 [Dr.
Nitin Narayan Katekar] shows that, human blood was detected
on Exhibit - 5 - towel. The said aspect as seen from the cross-
examination of the witnesses is not challenged.
[vii] Motive
35. It is submitted by the learned Advocate for the Appellant
that, though there is no dispute in respect of the evidence of the
parents of Deceased that, the Deceased narrated the incident of
previous night when the Appellant came home and he
suspected someone in his house and the quarrel took place
between the Appellant and the Deceased and the Appellant
27 Criappeal-698-2023.odt
called his Lawyer in respect of divorce, cannot be said to be the
Motive to commit the Murder. He further submitted that, the
evidence on record goes to show that, the Deceased was not
getting pregnant for which she was unhappy and therefore the
Deceased had the reason to commit the suicide.
36. It is submitted by the learned Addl. P.P. for Respondent
No.1 - State and the learned Advocate for Respondent No.2
that, the evidence of parents of the Deceased clearly established
that, the Appellant was suspecting the character of Deceased
and he had the Motive to commit the Murder of his wife.
37. The evidence of PW - 3 [Vrundawani Shashank Pawar],
who was the mother of Deceased, shows that, the Deceased
made a phone call to her in the morning on the day of incident
and narrated about the quarrel raised by the Appellant with her
on the point as to how the light in the house situated opposite
side to their residence was burning and it got switched off when
he reached home. The said evidence was not challenged. The
phone call between the Deceased and the mother around 08.58
hours on the day of incident is not disputed by the defence.
True it is that, the said evidence of PW - 3 [ Vrundawani
Shashank Pawar] was hearsay in nature. However, by virtue of
Second Part of Section 32[1] of the Evidence Act, it becomes
relevant. The said part reads as under:
"32. Cases in which statement of relevant fact by person who is dead
or cannot be found, etc., is relevant - ... ... ... ... .... .... .... .... .....
(1) when it relates to cause of death - ... .... .... .... .... .... .... .... ...
Such statement are relevant whether the person who made
them was or was not, at the time when they were made, under
expectation of death, and whatever may be the nature of the
proceeding in which the cause of his death comes into question.
(2) .... .... ..... .... ....
(3) .... ..... ..... ..... .....
(4) .... ..... .... .... ....
28 Criappeal-698-2023.odt
(5) .... .... .... .... ....
(6) .... .... .... .... ....
(7) .... .... .... .... ....
(8) .... .... .... .... .... "
37.1 Useful reference can also be made on this point to
the observations in Sharad Birdhichand Sarda Vs. State of
Maharashtra [Supra], which is further referred in several
Judgments. In Amar Singh Vs. State of Rajasthan; [2010] 9
SCC 64, the said pronouncement is considered and held as
under in Paragraph Nos.19 and 20.
"19. In Pakala Narayana Swami v. King Emperor [AIR 1939 PC
47] Lord Atkin held that circumstances of the transaction which
resulted in the death of the declarant will be admissible if such
circumstances have some proximate relation to the actual
occurrence. The test laid down by Lord Atkin has been quoted
in the judgment of Fazal Ali, J. in Sharad Birdhichand Sarda v.
State of Maharashtra (supra) and His Lordship has held that
Section 32 of the Indian Evidence Act is an exception to the rule
of hearsay evidence and in view of the peculiar conditions in
the Indian Society has widen the sphere to avoid injustice. His
Lordship has held that where the main evidence consists of
statements and letters written by the deceased which are
directly connected with or related to her death and which
reveal a tell-tale story, the said statements would clearly fall
within the four corners of Section 32 and, therefore, admissible
and the distance of time alone in such cases would not make
the statements irrelevant.
20. The difference in the English Law and the Indian Law has
been reiterated in Rattan Singh v. State of H. P. (supra) and it
has been held therein that even if the deceased was nowhere
near expectation of death, still her statement would become
admissible under Section 32 (1) of the Indian Evidence Act,
though not as a dying declaration as such, provided it satisfies
one of the two conditions set forth in this sub-section. The
argument of Mr. Sharma, therefore, that the evidence of PW-4
and PW-5 regarding the statements made by the deceased
before them are hearsay and are not admissible is
misconceived."
38. The above evidence clearly established that, the Appellant
suspected the chastity of his wife and had Motive to do away
with her.
29 Criappeal-698-2023.odt
Further Discussion :-
39. The Prosecution on the basis of the evidence available on
record conclusively established that, the Deceased died due to
frearm injury. There is no dispute on the aspect that, the
frearm, from which the bullet was fred and which caused the
death of the Appellant's wife, was the service revolver of the
Appellant, who was in the services of the Police Department.
Though in his written 313 statement at Exhibit - 199, it is
stated that, the father of Deceased was in the Police
Department and had undergone the training to handle the
frearm, the father of Deceased had given the training to the
Deceased, there is no iota of evidence or material on record to
even remotely suggest that, the Deceased was having
knowledge of operating the frearm. Merely because the
Deceased was the daughter and wife of the Policemen, it cannot
be inferred that, she knew how to operate the frearm. The
frearm is not such a weapon which can be used for fring
without having knowledge of its operation. In the case at hand,
undisputedly it was the pistol.
40. As seen from the evidence of Ballistic Expert corroborated
with the CA reports, no residues of fred gunshot were found on
the hands and nail clippings of the Deceased. The Ballistic
Expert evidence has conclusively established that, the bullet
was fred from the close range and not from the point-blank
range as discussed above. The CA report do not show blood
stains on the pistol. As seen from 313 statement recorded by
the learned Trial Court, the CA reports were referred and the
Appellant replied it to be false. The human blood stains were
found on the towel, which was seieed from the spot of incident
as discussed above and there is no dispute that, the Appellant at
30 Criappeal-698-2023.odt
the time of incident had wrapped the towel. Neither there is
evidence nor it is case of either side that, the Appellant had
taken the Deceased near him to see what happened while he
was in towel. Under such circumstances, human blood stains on
the towel becomes a strong circumstances against the
Appellant. The body part, where the frearm injury is caused is
not consistent with the suicidal pattern as seen from the
evidence discussed above. If the defence of suicide is to be
appreciated, the Deceased would have to take frst the pistol in
hand, bend the hand from the elbow, take it towards the
stomach, bend the writs and thereafter fre, by holding the
frearm either by one hand or both the hands. It would be a
very strenuous task to use the frearm in such a manner to
commit suicide. If a person wants to commit suicide, he or she
would go by the easiest manner. True it is that, no residues of
fre gunshot were found on the hands of the Appellant.
Admittedly, the Appellant was seen with the foam of soap on his
person when the witnesses reached on the spot after hearing
the voice and the possibility of vanishing the residues of fre
gunshot due to the soap cannot be ruled out.
41. The proved circumstances, completely rule out the
possibility of self inficted gunshot or suicidal fring. Admittedly,
except the Appellant and Deceased, no one was present in the
house when the incident had taken place. The evidence on
record goes to show that, the chance prints were taken from the
pistol and result of analysis as per Exhibit - 180 was that, they
were unft for comparison and any practical utility. This report
will not undermine the above referred proved circumstances.
The proved circumstances as discussed above are inconsistent
with the defence of the Appellant that his wife committed
31 Criappeal-698-2023.odt
suicide. The prove circumstances i.e. use of service pistol,
death due to frearm injury, no residues of fre gunshot on the
hands and nail clippings of the Deceased, no blood stains on the
frearm, blood stains on the towel and body part where the
Deceased suffered the frearm injury are consistent with the
hypothesis that, it is only the Appellant, who fred the pistol and
caused the death of his wife. The proved circumstances
unerringly established that, the chain which unerringly shows
that, the death of Appellant's wife was Homicidal. The Charge
for the offence punishable under Section 302 of IPC is clearly
established from these proved circumstances. There can be no
dispute in respect of settled legal position that the circumstance
not put to the Accused in his examination under Section 313 of
Cr.P.C. cannot be used against him as observed in Sujit Biswas
Vs. State of Assam; 2013 [4] Supreme 509, cited by the learned
Advocate of the Appellant. We have not considered the call
recordings, which were heavily relied upon by the learned Trial
Court in its Judgment without putting to the Appellant in the
statement under Section 313 of Cr.P.C.
42. To base the conviction for the offence punishable under
Section 201 of IPC, the learned Trial Court has observed as
under :-
"123. The evidence of crime i.e.Pistol and bullet shell were removed
from the spot of incident immediately by the accused. He washed his
hands, face and hair with soap removing the Gun shot residues
significant in determining as to who was holding firearm. He also
deleted the calls dated 25-01-2018 from his Mobile phone thereby
tried to delete the conversation with one Advocate making inquiry of
divorce proceeding to be filed and also his conversation with the
deceased in the night on 24-01-2018. But it is recovered by the
Digital Experts in Forensic Science Laboratory in Exh.229. The
Mobile phone of deceased was used by PW-6 after the incident
occurred while it was kept in the hands of deceased when informant
arrived. The attempt of removal of Pistol and bullet shell from spot,
Gun powder residues from hands, allowing neibhours to press the
32 Criappeal-698-2023.odt
chest of the deceased without disclosing Gun shot fired and deleting
phone calls from Mobile phone, is with a view of eliminating the
evidence of crime. He was very well knowing that, offence has been
committed, but with an intention of screening himself from legal
punishment, he caused disappearance of evidence.
The accused is a Police Officer Assistant Police
Inspector incharge of Police Station, Yermala. He was within the
knowledge of evidence of firearm, gun powder residues and its
significance. He is not a layman not knowing the procedure after
Gun shot was fired.
124. Section 201 of I.P.C. comprises two aspects which are
disappearance of evidence and giving false information with the
intention of screening the offender from legal consequences. It was
the case of murder and inspite of knowledge that the deceased had
Gun shot injury, allowed others to press her chest. He also avoided
the immediate medical aid which would have extended her life till
arrival of her relatives. He also raised shouts when the deceased was
trying to speak about the cause of death. This was disappearance of
evidence by the accused No.1 Vinod Chavan with the purpose of
screening himself from lawful punishment. Hence, the prosecution
proved the offence punishable under Section 201 of I.P.C.. Thus,
point No.4 is answered in the affirmative."
43. If we see the Charge for the offence punishable under
Section 201 of IPC, it was in respect of causing disappearance of
bullet fred from the service revolver and not for any other acts.
It was not for deletion of calls from the mobile. As seen from the
evidence available on record, the landlord and landlady went to
the house of the Appellant soon after they heard the sound and
cry of the Appellant and after they knocked the door and went
inside, they noticed that, the Appellant was standing. Not
fnding of the fred bullet on the spot of incident will not itself
lead to the inference that, the Appellant caused disappearance
of the fred bullet. In absence of clear evidence to attract the
essential ingredients for the offence punishable under Section
201 of IPC, we are of the view that, the conviction for the
offence punishable under Section 201 of IPC would be
unsustainable.
33 Criappeal-698-2023.odt
44. In view of the above discussion, the conviction and
sentence for the offence punishable under Section 302 of I.P.C.
is maintained and the conviction and sentence for the offence
punishable under Section 201 of IPC needs to be quashed and
set aside. Hence, the following order :-
ORDER
[I] Criminal Appeal is partly allowed.
[II] The conviction and sentence awarded by the learned Trial
Court to the Appellant for the offence punishable under
Section 201 of I.P.C., is quashed and set aside.
[III] The Appellant is acquitted for the offence punishable
under Section 201 of I.P.C.
[IV] The conviction and sentence awarded by the learned Trial
Court to the Appellant for the offence punishable under
Section 302 of I.P.C. is maintained.
[V] The Record and Proceedings be sent back to the learned
Trial Court.
[VI] In view of the disposal of Appeal, Criminal Application
stands disposed of accordingly.
[NEERAJ P. DHOTE, J.] [R. G. AVACHAT, J.]
Sameer
Signed by: Md. Sameer Q.
Designation: PA To Honourable Judge
Date: 10/01/2025 20:27:06
