Bombay High Court
Sagar Raghunath Nimbole vs State Of Maharashtra Thr, Its Police ... on 6 October, 2025
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) NO.719/2025
(Sagar Raghunath Nimbole Vs. State of Maharashtra, through Police Station Officer, Police Station Khamgaon
City, Buldhana)
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. S.V. Sirpurkar, Advocate for the applicant.
Mr. U.R. Phasate, A.P.P. for the non-applicant/State.
CORAM: MRS.VRUSHALI V. JOSHI, J.
DATE OF RESERVING THE ODER: 1.10.2025.
DATE OF PRONOUNCING THE ODER: 6.10.2025.
The applicant has challenged the order passed by the learned
Additional Sessions Court, Khamgaon in Sessions Case No.178/2019
below Exh.49.
2. The applicant/accused has moved the application for
permission to allow him to confront electronic document i.e. screen
shot and recording between the deceased and the accused during her
lifetime recorded on his mobile phone, which is transmitted by him
on the pen-drive. This electronic record is copied by the accused to a
pen-drive. The accused has already deleted the said data from his
mobile phone which is seized by the police.
3. The learned Advocate for the applicant has stated that it is
necessary for the accused to confront the said electronic record to the
witness. If permission is not granted, it may cause great prejudice to
the accused.
The applicant has relied on the judgment of the Hon'ble Apex
Court in case of Bipin Shantilal Panchal V/s. State of Gujarat and
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another reported in (2001) 3 SCC 1 wherein the Hon'ble Apex Court
has observed as under:-
When so recast, the practice which can be a better substitute is
this:
".... Whenever an objection is raised during evidence
taking stage regarding the admissibility of any material or
item of oral evidence the trial court can make a note of
such objection and mark the objected document
tentatively as an exhibit in the case (or record the
objected part of the oral evidence) subject to such
objections to be decided at the last stage in the final
judgment. If the court finds at the final stage that the
objection so raised is sustainable the Judge or Magistrate
can keep such evidence excluded from consideration. In
our view there is no illegality in adopting such a course.
.....
The above procedure, if followed, will have two
advantages. First is that the time in the trial court, during
evidence-taking stage, would not be wasted on account of
raising such objections and the court can continue to
examine the witnesses. The witnesses need not wait for
long hours, if not days. Second is that the superior court,
when the same objection is recanvassed and considered in
appeal or revision against the final judgment of the trial
court, can determine the correctness of the view taken by
the trial court regarding that objection, without bothering
to remit the case to the trial court again for fresh disposal.
This measure would not cause any prejudice to the parties
to the litigation and would not add to their misery or
expenses."
Hence, prayed to allow the application.
4. The learned A.P.P. opposed the application stating that the
applicant wants to produce on record the electronic evidence. Before
producing the said document on record, he has to prove the
certificate under Section 65B of the Indian Evidence Act and for that
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purpose, he has to examine the witness. He has an opportunity to
examine the person who has transmitted said data from his mobile to
pen drive. It is not the primary evidence. Hence Section 65B
certificate is necessary.
5. The learned A.P.P. has relied on the judgment of the Hon'ble
Apex Court in case of Arjun Panditrao Khotkar V/s. Kailash Kushanrao
Gorantyal and others reported in (2020) 7 SCC 1 wherein the Hon'ble
Apex Court has observed that the requirement of certificate under
Section 65-B(4) is unnecessary if the original document itself is
produced and this can be done by the owner of a laptop computer,
computer tablet or even a mobile phone, by stepping into the witness
box and proving that the device concerned, on which the original
information is first stored, is owned and/or operated by him.
However, where the computer happens to be a part of a computer
system or computer network and it becomes impossible to physically
bring such system or network to the court, then the only means of
providing information contained in such electronic record can be in
accordance with Section 65-B(1), together with the requisite
certificate under Section 65-B(4).
6. Heard both sides and perused the record.
7. By putting the question during cross-examination, the applicant
wants to bring his defence on record. It is settled principle that
nobody can restrain the accused to put any relevant question in
cross-examination. The applicant has to produce an electronic record
during cross-examination. It is the whats-app conversation and video
calls recording between deceased and accused. Complainant is father
of deceased. He is not aware about the said communication between
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both of them, however, the applicant wants to put some questions and
bring an electronic evidence on record through cross-examination of
said witness. Applicant can bring it on record but the same cannot be
without authenticity. Source and authenticity are two key factors for
an electronic evidence. Without proper source there is no authenticity.
Here, the source is recording of mobile phone and accused has stated
that after transferring it in pen-drive it is deleted from mobile which
is seized during investigation. The applicant has remedy to prove it
by examining the proper witness.
8. Section 138 of the Indian Evidence Act reads as follows:-
"138. Order of examinations. - Witnesses shall be first
examined-in-chief, then (if the adverse party so desires)
cross-examined, then (if the party calling him so desires)
re-examined.
The examination and cross-examination must relate to
relevant facts, but the cross-examination need not be
confined to the facts to which the witness testified on his
examination-in-chief.
...."
9. It is important here to mention that cross-examination need not
be confined to the facts to which the witness testified in his
examination-in-chief but it must be relevant. The conversation is
between the accused and deceased. There is no relevancy that the
complainant, who is father of the deceased, is required to know it as
it is not within his knowledge. Therefore, only because in
cross-examination anything can be put, the question which is not
relevant and not within his knowledge, cannot be asked.
10. After going through the order passed by the Sessions Court, it
appears that the Sessions Court has rightly considered the
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admissibility of the electronic evidence. In this case, the accused
himself has stated that the source of recording is mobile and after
transferring said recording he has deleted it from his mobile,
therefore, primary evidence is not available. The accused is the only
person who can prove said document after stepping into witness box.
The relevancy of said electronic evidence also needs to be considered
as it is not within the knowledge of this witness. Therefore, at this
stage, said recording cannot be brought on record through
complainant. Interference in the impugned order at the hands of this
Court is not required. Hence application is rejected.
(MRS.VRUSHALI V.JOSHI, J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PS To Honourable Judge
Date: 06/10/2025 17:47:19
