Criminal Appeal No. 698 of 2023 · Bombaybench High Court · 2025
Case Details
2025:BHC-AUG:722-DB 1 Criappeal-698-2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.698 OF 2023WITHCRIMINAL APPLICATION NO.651 OF 2024Vinod Bapurao ChavanAge: 36 years, Occu: ServiceR/o: Chausala, Taluka and District Beed.… AppellantVersus1. The State of Maharashtra2. Shashank s/o Jalindar PawarAge: 53 years, Occu: ServiceR/o: Mahatmaphule Nagar,Beed.… Respondents_____________________________________________________________Appearance :-Mr. Nilesh S. Ghanekar, Advocate for the AppellantDr. Kalpalata Patil Bharaswadkar, Addl. PP for Respondent No.1- StateMiss. Preeti R. Wankhade h/f Mr. D. M. Hange, Advocate forRespondent No.2CORAM : R. G. AVACHAT & NEERAJ P. DHOTE, JJ.Reserved On : 20/12/2024Pronounced On : 10/01/2025JUDGMENT : [PER NEERAJ P. DHOTE, J.]1.By the present Appeal preferred under Section 374[2] ofthe Criminal Procedure Code, 1973 [hereinafter referred to as‘Cr.P.C.’], the Appellant has challenged his conviction andsentence awarded by the learned Sessions Judge, Osmanabad,vide Judgment and Order dated 08/05/2023, in Sessions CaseNo.44/2018 for the offence punishable under Sections 302 and201 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 Reportis as under : -[I]The Appellant got married to Monali [hereinafter referredto as ‘the Deceased’], the daughter of Informant - ShashankJalindar Pawar, in November – 2014. The Appellant was inPolice Services. At the time of incident, the Appellant andDeceased 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, theDeceased was subjected to harassment. On 24/01/2018, theAppellant had gone to Aurangabad to attend the workshop. Hereturned home in between 23.30 to 24.00 hours. He gave call tothe Deceased to open the door. The Deceased opened the doorand the Appellant went inside the house. The Appellantdoubted that, some person had come to his house and when theAppellant returned home, an electric bulb of neighbourer wasburning and it was switched off. Quarrel took place between theAppellant and the Deceased. On 25/01/2018 around 08.58 hours, theDeceased gave a phone call to her mother and narrated aboutthe quarrel by the Appellant with her in the previous night.The Deceased asked her mother to inform her father to giveunderstanding to the Appellant. The conversation between the 3 Criappeal-698-2023.odtDeceased and mother lasted for ten [10] minutes and someseconds. Thereafter around 09.17 hours, the Deceased’smother gave phone call to the mobile of the Deceased and sheheard the noise as ‘ ’मममेवमममेव. Immediately, the parents of theDeceased, who were residing at Beed, proceeded towardsYermala. When they reached the Hospital at Barshi, theynoticed the dead body of their daughter. The Deceased sufferedfrearm injury at her residence and she was moved to theHospital where she succumbed to the injuries. On the basis ofMLC, ADR No.0/18 came to be registered with Barshi PoliceStation. After the Inquest, the body was referred forPostmortem. Her last rites were performed. The father ofDeceased lodged the Report with Yermala Police Station againstthe Appellant and his parents that, his daughter was treatedwith cruelty and murdered, as Rs.5,00,000/- remained to begiven as dowry. Crime No.07/2018 came to be registeredagainst the Appellant and his parents for the offence punishableunder 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 andSpot Panchnama were already done during the inquiry in theADR. On Postmortem, the cause of death was revealed as‘haemorrhagic shock due to frearm injury to abdomen’. Thefrearm and articles collected during the course of investigationwere referred to the Chemical Analysis. The InvestigatingOffcer sought opinion of Chemical Analyeer on certain aspects.The mobile phones of the Deceased and the Appellant came tobe seieed. On completion of investigation, the Appellant and hisparents came to be Charge-sheeted.
Facts
4 Criappeal-698-2023.odt[III] The learned Trial Court framed the Charge against theAppellant and his parents for the offence punishable underSections 302, 201 and 498-A of IPC vide Exhibit – 67, to which,the Appellant and his parents pleaded not guilty and claimed tobe tried. To prove the Charge, the Prosecution examined in allfourteen [14] witnesses and brought on record the relevantdocuments. After the Prosecution closed their evidence, thestatement of the Appellant and his parents came to be recordedby the learned Trial Court under Section 313[1][b] of Cr.P.C. Itwas the defence of Appellant that, his wife committed suicide byusing his service revolver, as she was unhappy for not gettingpregnant and false Crime was registered against them. Onappreciating the evidence available on record, the learned TrialCourt passed the impugned Judgment and Order, by which, theparents of the Appellant came to be acquitted of all the Charges.The Appellant came to be acquitted for the Charge of the offenceunder Section 498-A of I.P.C. and recorded the convictionagainst the Appellant as mentioned in Paragraph No.1 above. 3.Heard the learned Advocate for the Appellant, learnedAddl. P.P. for Respondent No.1 – State and the learned Advocatefor Respondent No.2 – Informant. Scrutinieed the evidence onrecord.4.The Prosecution’s case is based on circumstantialevidence. The learned Advocate for the Appellant has aptlyrelied on the Judgment in Sharad Biridhichand Sarda Vs. Stateof Maharashtra; 1984 [4] SCC 116, wherein, the principles inrespect of the cases based on circumstantial evidence arereiterated, 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 thesubmissions advanced by both the sides across the bar,following are the circumstances relied upon by the Prosecutionto 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 injuryis concerned, it is not in dispute. It is submitted by the learnedAdvocate for the Appellant that, there is no quarrel on theaspect that, the Appellant’s wife died of injury caused by thebullet fred from the frearm. On this circumstance, the crucial 6 Criappeal-698-2023.odtevidence is that of PW – 8 [Dr. Santosh Baburao Bhoi], who wasAssociate Professor in the Department of Forensic Medicine inthe Government Medical College, Solapur since 2010. Hereceived the dead body of Appellant’s wife from Barshi Shahar,Solapur Police Station on 26/01/2018 at 01.50 p.m. Heperformed the autopsy from 02.00 p.m till 03.30 p.m. He wasassisted by other two Medical Offcers. On externalexamination, 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. Thewound is 16 cm. infero medial to left nipple, 18 cm. infero medial toright nipple, 13 cm. from the umbilicus and 25 cm. from the sternalnotch. The abrasion collar and greuse collar are present. The marginof wound are inverted. The wound is surrounded by burning,blackening and singeining of hairs in encircling area around entrywound of diameter 05 cm. suggestive of firearm entry wound.ii) Penetrating lacerated wound of seize 0.5 x 0.5 cm present on leftside 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 onleft 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 lateralfrom injury No.4 redish blue in colour.v) Track of the firearm injury is skin at the region of firearm entrywound- underlined fescia underlined muscles then going to posteriorlacerated below the stomach to greater omentum- underlined musclescorresponding injury No.2, 3- underlined fascia corresponding injuryNo.2 & 3, skin corresponding injury No.2 & 3. with infiltration andextra vessation of blood within the track.”6.1 His evidence shows that, Injury Nos.1 to 3 werepossible by frearm and were fresh in nature. Injury No.4 waspossible by hard and blunt object and all the injuries were ante-mortem in nature.6.2They 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.”6.3They opined the cause of death as “haemorrhagicshock due to frearm injury to abdomen”. The PostmortemReport at Exhibit – 133 is brought on record in his evidence.His evidence shows that, the Postmortem Report corroborateshis testimony. There is no challenge to the above evidence inthe cross-examination. The cause of death is also not disputedin the cross-examination. With this evidence available onrecord, the Prosecution has successfully established that, theAppellant’s wife died of frearm injury to the abdomen.7.As regards the spot where the Appellant’s wife sufferedthe frearm injury, there is no dispute that, it was theresidential home of the Appellant and Deceased. The SpotPanchnama at Exhibit – 109 is admitted by the defence beforethe learned Trial Court. Even the evidence of PW – 9 [Dr. NitinNarayan Katekar], who investigated the Crime, shows that, heprepared the Spot Panchnama at Exhibit – 109.8.From the above evidence on record, thecircumstance that, the Appellant’s wife died of frearm injury inher abdomen at her residence is conclusively established.[ii] Oral Dying Declaration 9.It is submitted by the learned Advocate for theAppellant that, the evidence of informant that, he heardthe utterance of the Deceased that, her husband fredbullet on her is liable to be discarded, being the
Legal Reasoning
10 Criappeal-698-2023.odt12.Further, the evidence of PW – 1 [Shashank JalindarPawar] shows that, in the morning of 25/01/2018 around 8.58a.m., the Deceased called his wife PW – 3 [VrundawaniShashank Pawar] on her mobile and narrated the incident ofquarrel raised by the Appellant with her in the previous nightand requested PW – 3 [Vrundawani Shashank Pawar] to giveunderstanding to the Appellant. The said call lasted for ten [10]minutes and thirty seven [37] seconds. Thereafter around09.17 minutes, when PW – 3 [Vrundawani Shashank Pawar]gave phone call to the Deceased, she heard the cry of Deceasedand she was able to hear the conversation, which was going onat the other end of the call, wherein, the Deceased told thewomen, who accompanied the Deceased towards the Hospital,that ‘my husband shot me’. This witness i.e. PW – 1 was able tohear the said conversation. Immediately, he along with PW – 3[Vrundawani Shashank Pawar] proceeded towards Yermalaand on the way, they informed their relatives.13.His cross-examination shows that, he did not narrate inhis report lodged with the Police that, the Deceased uttered that‘my husband shot me’. He further admitted that, he did notstate in his report that, he informed his relatives about theincident. This clearly shows that, the said evidence of PW – 1[Shashank Jalindar Pawar] that, he heard Deceased sayingthat, her husband shot her, was an improvement from hisreport. We agree with the submission of the learned Advocatefor the Appellant that, it was the material omission. In cross,he admits that, the said utterance by the Deceased that, herhusband shot her, was the serious matter. However, he did notinform the Police Station where he was posted. His testimonyshows that, the Police Station where he was working was 100 11 Criappeal-698-2023.odtmeters away from his residence. He admits that, on that day,he did not give any written report to the Police Station inrespect of the incident. This witness volunteered that, he hadorally informed about the same to his Superior Mr. Kaei, P.S.I.,however, there is no corroboration to the same. His evidenceshows that, from Suvidha Hospital, the dead body was taken toBarshi Rural Hospital, wherein, he had gone with his brotherPW – 2 [Chandraprakash Jalindar Pawar] where the Policewere present. He admits that, in the said Rural Hospital, thePolice asked him whether he had any complaint in respect ofdeath of his daughter and at that time, he did not give anywritten report in respect of his daughter’s death. It is reallystrange that, a person, who was in the Police Department andclaims to have heard his daughter saying that, her husbandshot her, doesn't report to the Police.14.PW – 3 [Vrundawani Shashank Pawar], who was themother of Deceased, though corroborates the evidence of PW – 1[Shashank Jalindar Pawar] in respect of receiving the phonecall from the Deceased, on 25/01/2018 at 8.58 a.m. narratingthe previous night incident between the Appellant andDeceased and further making a phone call by her to theDeceased, her evidence nowhere shows that, the Deceased washeard saying “her husband shot me”. Her evidence do notcorroborate the testimony of PW – 1 [Shashank JalindarPawar] in respect of Oral Dying Declaration by the Deceased.On the contrary, she deposed that, during the phone call in themorning, the Deceased asked her to come along with her fatherto give understanding to the Appellant and thereafter, she andPW – 1 [Shashank Jalindar Pawar] left for Yermala. At thattime, she made phone call on the mobile of the Deceased and 12 Criappeal-698-2023.odtshe heard noise as ‘ ’ मममेवमममेवand ‘काकू काकू’. While on the waytowards Yermala, her husband i.e. PW – 1 [Shashank JalindarPawar] received a phone call that, their daughter died. Theevidence of PW – 3 [Vrundawani Shashank Pawar] falsifes theevidence of PW – 1 [Shashank Jalindar Pawar] in respect ofOral Dying Declaration.15. The evidence of PW – 2 [Chandraprakash JalindarPawar], who was the brother of PW – 1 [Shashank JalindarPawar], shows that, when he was telephonically informed bythe brother-in-law of the Deceased on 25/01/2018 that, theDeceased suffered heart attack and asked them to reach, hecontacted PW – 1 [Shashank Jalindar Pawar] on the phone andhe along with PW – 1 [Shashank Jalindar Pawar], PW – 3[Vrundawani Shashank Pawar] and others proceeded towardsYermala. His evidence nowhere shows that, PW – 1 [ShashankJalindar Pawar] informed him about the Oral Dying Declarationmade by the Deceased. His evidence shows that, when theyreached the Suvidha Hospital at Barshi, the persons residing inthe neighbourhood of the Deceased told him that, the Appellantfred bullet on the Deceased. The said evidence in respect of theneighbourers informing him that the Appellant fred bullet onthe Deceased was an omission in his previous statement andalso hearsay evidence. His cross-examination shows that,during the Inquest, the Police from Barshi asked him whetherhe had any complaint in respect of death of his niece. Hisevidence is of no assistance to the Prosecution to prove thecircumstance of Oral Dying Declaration and nowherecorroborates the testimony of PW – 1 [Shashank JalindarPawar]. 13 Criappeal-698-2023.odt16.The evidence of PW – 9 [Dr. Nitin Narayan Katekar], whowas the Investigating Offcer, shows that, the Samsung GalaxyJ-7 android mobile phone of the Deceased was seieed from theInformant under the Panchnama at Exhibit – 147. The evidenceon record nowhere shows that, the recorded conversation in themobile of the Deceased was played at the time of recording theevidence of PW – 1 [Shashank Jalindar Pawar] and PW – 3[Vrundawani Shashank Pawar]. It was necessary to play thesame before the said witnesses for the purposes of identifcationof the voice. There can be no other view, as held in the abovereferred Judgments relied upon by the learned Advocate for theAppellant, on the point that, the recording of call was thedocument as defned by Section 3 of the Indian Evidence Act,1872 [hereinafter referred to as ‘the Evidence Act’] and theywere admissible in evidence on satisfying the condition that, thevoice of the person alleged to be speaking, must be dulyidentifed by the maker of the record or by others who knew it.No doubt, the call recording in the said mobile phone of theDeceased was the primary evidence, however, mere exhibitingthe same, sans no objection by the defence during the trial, willnot be of any assistance to the Prosecution unless the same wasplayed as observed above, for the purposes of identifcation ofvoices.16.1 In the above referred Judgment cited by the learnedAdvocate for Respondent No.2, one of the contention of learnedSenior Advocate appearing therein for the State was that, theCDRs were adduced in evidence without any objection from thedefence and the Accused cannot be permitted to raise the pointof admissibility of the CDRs at the appellate stage. It was thecontention from the other side that, the objection, which 14 Criappeal-698-2023.odtwas raised by him pertains to inadmissibility of the documentand not the mode of proof. By considering the variousJudgments of the Hon’ble Apex Court, it is observed that, theadmissibility of document which is inherently inadmissible isan issue which can be taken up at the appellate stage because itwas a fundamental issue and further observed that, the modeor method of proof is procedural and objections, if not taken atthe trial, cannot be permitted at the appellate stage.17. The learned Advocate for the Appellant relied on theJudgment in Arjun Panditrao Khotkar Vs. Kailash KushanraoGorantyal and Ors. ; MANU/SC/0521/2020, delivered by three[3] Judge Bench of the Hon’ble Apex Court, wherein, the aspectof admissibility of electronic evidence was thoroughlyconsidered. In Paragraph Nos. 30, 31 and 32 of the saidJudgment, 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 anon-obstante clause, and then goes on to mention informationcontained in an electronic record produced by a computer, which is,by a deeming fiction, then made a "document". This deeming fictiononly takes effect if the further conditions mentioned in the Sectionare satisfied in relation to both the information and the computer inquestion; and if such conditions are met, the "document" shall thenbe admissible in any proceedings. The words "...without furtherproof or production of the original..." make it clear that once thedeeming fiction is given effect by the fulfilment of the conditionsmentioned in the Section, the "deemed document" now becomesadmissible in evidence without further proof or production of theoriginal as evidence of any contents of the original, or of any factstated therein of which direct evidence would be admissible.31.The non-obstante Clause in Sub-section (1) makes it clearthat 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 beingirrelevant for this purpose. However, Section 65B(1) clearlydifferentiates between the "original" document-which would be theoriginal "electronic record" contained in the "computer" in which theoriginal information is first stored-and the computer output 15 Criappeal-698-2023.odtcontaining such information, which then may be treated as evidenceof the contents of the "original" document. All this necessarilyshows that Section 65B differentiates between the originalinformation contained in the "computer" itself and copies madetherefrom - the former being primary evidence, and the latter beingsecondary evidence.32. Quite obviously, the requisite certificate in Sub-section (4) isunnecessary if the original document itself is produced. This can bedone by the owner of a laptop computer, a computer tablet or evena mobile phone, by stepping into the witness box and proving thatthe concerned device, on which the original information is firststored, is owned and/or operated by him. In cases where "thecomputer", as defined, happens to be a part of a "computer system"or "computer network" (as defined in the Information TechnologyAct, 2000) and it becomes impossible to physically bring suchnetwork or system to the Court, then the only means of provinginformation contained in such electronic record can be inaccordance with Section 65B(1), together with the requisitecertificate Under Section 65B(4). This being the case, it is necessaryto clarify what is contained in the last sentence in paragraph 24 ofAnvar P.V. (supra) which reads as "...if an electronic record as such isused as primary evidence Under Section 62 of the Evidence Act...".This may more appropriately be read without the words "UnderSection 62 of the Evidence Act,...". With this minor clarification, thelaw stated in paragraph 24 of Anvar P. V. (supra) does not need tobe revisited.”17.1It is also observed in the above Judgment that,Section 65-B of the Evidence Act does not speak of the stage atwhich the certifcate must be furnished to the Court. It isfurther observed that, the Judgment in Anvar P. V. Vs. P. K.Basheer and Ors.; [2014] 10 SCC 473, as clarifed in theJudgment [Arjun Panditrao Khotkar Vs. Kailash KushanraoGorantyal and Ors. (Supra)] was the law declared by theHon’ble Apex Court on Section 65-B of the Evidence Act.18.As regards the electronic evidence in the nature of DVDsis concerned, which are exhibited, admittedly, they were notaccompanied by the certifcate as mandated by Section 65-B ofthe Evidence Act. Even the Prosecution did not produce the saidcertifcate at any later point of time. Therefore, though they
Arguments
8 Criappeal-698-2023.odtimprovement from his report and no corroboration from theother Prosecution’s witnesses. He submitted that, though thecell phone of the Deceased containing the call recordings wasseieed and produced before the Court, the call recordings werenot played during the evidence of the relevant witnesses foridentifcation of the voice and therefore, it will not be of anyassistance to the Prosecution.9.1On this point, the learned Advocate for the Appellantrelied 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 RespondentNo.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 andmother, respectively of the Deceased, shows that, on25/01/2018 around 08.58 a.m., before the incident, theDeceased made phone call to PW – 3 [Vrundawani ShashankPawar] and narrated the incident of quarrel picked up by theAppellant with her in the late night and raised doubt on hercharacter. The evidence of parents further shows that, after 9 Criappeal-698-2023.odtthe said phone call, which ended with an assurance from PW – 3[Vrundawani Shashank Pawar] that, they would giveunderstanding to the Appellant and the Deceased was awaitingthe call of her mother. PW – 3 [Vrundawani Shashank Pawar]called the Deceased on her mobile phone at 9.17 a.m., when theDeceased was being taken to the Hospital and Deceased statedthat, the Appellant had shot her. They submitted that, the callrecordings between the Deceased and PW – 3 [VrundawaniShashank Pawar] were copied and sent to the ForensicLaboratory and were extracted in DVD in PDF format and alsosupplied to the defence. They further submitted that, the samewere duly executed at Exhibit – 229, which were part andparcel of Exhibit – 183 and no objection was raised by thedefence to exhibit the same.10.1The learned Advocate for Respondent No.2 cited theJudgment in Sonu @ Amar Vs. State of Haryana, in CriminalAppeal No.1418/2013, of the Hon’ble Supreme Court of Indiadated July 18, 2017, in support of the said contention that,objection to the exhibiting of documents cannot be raised atappellate stage.11.Initial part of the evidence of PW – 1 [Shashank JalindarPawar] 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 remainingdowry amount was not given, transfer of the Appellant andother incident. The Appellant is acquitted for the offencepunishable under Section 498-A of IPC and there is no Appealby the Prosecution against the acquittal.
Decision
16 Criappeal-698-2023.odtwere exhibited, the same would not be admissible for want ofmandatory certifcate under Section 65-B of the Evidence Act.Therefore, the secondary electronic evidence unaccompaniedby the certifcate under Section 65-B of the Evidence Act isnecessarily to be kept out of consideration. As observed above,at the cost of repetition, though the mobile phone of theDeceased was available in the nature of primary evidence, forwant of identifcation of voices in the recording stored therein,is of no aid to the Prosecution.18.1The Prosecution examined PW – 4 [Manik KeshavAaglave] and PW – 5 [Anusaya Manikrao Aaglave], the landlordand landlady respectively, of the house, where the Appellantand Deceased were residing and also PW – 6 [Avinash DhanpalKhillare], one of the tenant in the same premises, where theincident had taken place and who reached the spot of incidentafter hearing the sound. Their evidence nowhere shows that,the Deceased was in a position to talk and she made anydisclosure to them in respect of the cause of her death. Theevidence of PW – 4 [Manik Keshav Aaglave] and PW – 6[Avinash Dhanpal Khillare] shows that, they transported theDeceased in a four [4] wheeler to the Hospital from the spot ofincident. However, their evidence nowhere shows that, theDeceased was in a position to talk and made any utterance inrespect of the cause of her death.19.In view of the above discussion, the circumstance ofthe Oral Dying Declaration is not conclusively proved by theProsecution. 17 Criappeal-698-2023.odt[iii]Use of frearm from the close range20.It is submitted by the learned Advocate for the Appellantthat, the Prosecution relied on the evidence of Ballistic Expertto show that, the bullet was fred from the close range. Theevidence of Ballistic Expert, who is examined as PW – 7 [UrviPramod Mhasilkar], shows that, for the frst time, she deposedbefore the Court that, the weapon was fred from the close rangeand there is no explanation to support the said fndings. Themanual, which the said Ballistic Expert relied, was not broughton record by the Prosecution. Some of the questions referred bythe Investigating Offcer to the Ballistic Expert in respect of theuse of frearm were not replied by the Ballistic Expert anddeposed that, the answers to the said questions were in theform of CA reports. As the Investigating Offcer also sent thequestionnaires to the Medical Offcer in respect of distance,from which, the bullet was fred, putting questions by thedefence to the Medical Offcer in respect of distance of use offrearm cannot be said to be unwarranted. There is nothing toshow that, the Ballistic Expert was having suffcient experienceas she was young by age. The Ballistic Expert agrees with theprinciple of Dr. Reddy’s Medical Jurisprudence in respect ofthe distance which comes within the close range. The evidenceof Ballistic Expert is insuffcient to prove that, the bullet wasfred from the short distance.20.1In support of his submission, he relied on theJudgment in Pankaj Vs. State of Rajasthan, in Criminal AppealNo.2135/2009 dated September 9, 2016 passed by the Hon’bleSupreme Court, wherein, there was variance in the evidence ofPW – 8 and PW – 6 therein, with regard to the distance betweenthe Deceased and the Appellant – Accused and in that fact 18 Criappeal-698-2023.odtsituation, the Phenomena observed in Firearm Injuries or ShortHoles 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 saidJudgment that, in a case where death due to injuries or woundscaused by a lethal weapon, it is always the duty of theProsecution to prove by expert evidence that, it was likely or atleast possible for the injuries to have been caused with theweapon with which and in the manner in which they are allegedto have been caused. In that case, it was observed that, thecontradiction i.e. the distance of fre, is material and it was heldthat, it would not be appropriate to convict the Appellant –Accused by ignoring such an important aspect.20.2He also relied on the Judgment in Archana TulsiyaniVs. Ajay Prakash Mishra, in Criminal Appeal No[s]. 2019-2021/2012, passed by the Hon’ble Apex Court, which was one ofthe Appeals from the order of acquittal. In that case, there wasno evidence of any strained relations between the Appellantand the Deceased. It was observed that, merely on the basis ofthe blackening around the wound to presume that the fring wasdone at a close range and therefore it was a case of suicide wasunsustainable. The treating doctor expressed no opinion of theinjury 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 forRespondent No.2 that, the evidence of Ballistic Expertcorroborated by the CA reports and the cause of death clearlyestablished that, the bullet was fred from the close range.Though the Medical Offcer, who performed the Postmortem, in 19 Criappeal-698-2023.odtthe cross-examination, deposed that, the injuries mentioned inthe Postmortem were possible if the frearm was used from thepoint-blank range, it would not affect the evidence of BallisticExpert. Nothing has come in the evidence of Ballistic Expertthat, the bullet was fred from the point-blank range. TheMedical Offcer declined that, it was the case of suicide and hisevidence that, it was Homicidal Death remained unshaken.22.The Ballistic Expert is examined as PW – 7 [Urvi PramodMhasilkar]. We are not impressed by the arguments of thelearned Advocate for the Appellant that, looking to the age ofBallistic Expert, which was shown as 27 years at the time ofevidence and might be 23 years old in 2018 when she did thechemical examination of the frearm, her evidence cannot betaken seriously. Her evidence shows that, she was holding theMaster Decree in Forensic Science and working as the AssistantChemical Analyser in Directorate of Science ForensicLaboratory Kalina, Mumbai. She did the chemical examinationof 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 inworking condition. Residue of fred ammunition-nitritewas detected in barrel washing of the said pistolshowing that, it was used for fring prior to its receipt inthe laboratory. The empty magaeine which was Exhibit– 2 easily sat in the magaeine cavity of 9 mm caliberpistol and having capacity to accommodate about 9 mmpistol cartridge. Randomly selected one 9 mm pistolcartridge from Exhibit – 3 was successfully test fredthrough 9 mm caliber pistol. The empty in Exhibit – 4was fred from 9 mm caliber pistol. He identifed the CAreport at Exhibit – 120 as the same, which was result ofanalysis done by her on the said frearm.” 20 Criappeal-698-2023.odt23.Her evidence further shows that, she examined thearticles referred vide letter dated 26/01/2018, which wereExhibit – 1 – Skin piece at the site of entry wound, Exhibit – 2 –Skin piece at the site of exit wound and Exhibit – 3 – Controlskin piece and recorded her fndings in CA report at Exhibit –122. Her evidence shows that, on examination, there wasdetection of metallic lead and copper in presence of blackeningand powder residues around the shot hole on skin piece inExhibit – 1 and detection of metallic lead and copper in absenceof blackening and powder residues around the shot hole on skinpiece in Exhibit - 2 was consistent with wipe and passage ofcopper jacketed bullet having been fred from the close range ofthe weapon. On chemical analysis of Exhibit – 1 – Skin piece,she found metallic lead and copper in presence of blackeningand powder residue around the shot hole in Exhibit – 1, whichmeant that, it was consistent with wipe and passage of copperjacketed bullet having been fred from close range of weapon.The distance between the target and mueele end of the weaponin close range was about one [1] ft. to two [2] ft. Her evidencefurther shows that, she followed the procedure given in the SOPmanual or working procedure manual issued by the CentralForensic Science Laboratory, Central Government. Notbringing on record the copy of the said SOP manual or workingprocedure is of no consequence. Neither the said witness wascalled upon by the defence to get the copy of the same. Thoughshe admits that, for the frst time in the Court, she deposed that,the distance between the target and mueele end of the weaponwas in close range about one [1] to two [2] ft, the CA report atExhibit – 122 prepared by her clearly records the result ofanalysis, which reads as under :- 21 Criappeal-698-2023.odt“Detection of metallic lead and copper in presence of blackeningand powder residues around the shot hole on skin piece in Exhibit 1and detection of metallic lead and copper in absence of blackeningand powder residues around the shot hole on skin piece in Exhibit 2 isconsistent with wipe and passage of copper jacketed bullet havingbeen 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-examinationthat, the Investigating Offcer [PW – 9] had put specifcquestions 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 thesuggestion that, the CA reports at Exhibit – 120 to 123 andExhibits – 125 to 127 were the answers to the said queriesmade by the Investigating Offcer vide Exhibit – 119. We do notsee any infrmity on the said point. The said CA reports arethe documents, which are admissible in evidence pursuant tothe provisions of Section 293 of Cr.P.C. Her evidence showsthat, she agreed with the principle of Dr. Reddy’s MedicalJurisprudence that, the close range means within 5 to 8centimeters. She further agreed that, there is long rangecategory, which means more than three [3] ft and long rangfring always happens in Homicidal Death. She denied thesuggestion that, the opinion given by her that close rangemeans one [1] ft. to two [2] ft. distance, is a wrong opinion. Hercross-examination shows that, she followed the workingprocedure manual issued by the Central Government and heropinion regarding close range distance was based on the saidmanual. Her evidence is consistent that, her fnding of analysisin respect of the distance of frearm in the case on hand was inclose range. The cross-examination could not create any dentin her evidence, which was corroborated by the CA reports. 22 Criappeal-698-2023.odt25.The admission by PW – 8 [Dr. Santosh Baburao Bhoi], theMedical Offcer that, the injuries mentioned in Column No.17 ofthe Postmortem of the Deceased were possible if the frearmwas used at the point-blank range, will not affect the testimonyof PW – 7 [Urvi Pramod Mhasilkar] in respect of her fndingsand opinion and also in respect of frearm and the articles sentto her for the examination. PW – 8 [Dr. Santosh Baburao Bhoi],in his cross-examination, admits that, fnding gunpowderresidues on the clothes of the Deceased was one of thecircumstance showing the close range shot. On the point ofdistance, from which, the frearm was used, in our consideredview, the evidence of Ballistic Expert, who is the Expert on thesubject of Ballistic, would have more value or weightage ascompared to the evidence of Medical Offcer, who performed thePostmortem. The aforesaid authorities relied upon by thelearned Advocate for the Appellant will not be of any assistanceto discard the testimony of the Ballistic Expert. There is onemore 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 forchemical analysis. The CA report at Exhibit – 181 shows that,no blood was detected on the pistol. When human blood wasdetected on the clothes i.e. maxi, knicker and one clothe piece ofthe Deceased in CA report at Exhibit – 182, it is highly unlikelythat, no blood would come on the frearm if it is fred from thepoint -blank range. Absence of blood on the frearm makes thetestimony of Ballistic Expert more concrete and rules out thepossibility that, it was fred from point-blank range. 23 Criappeal-698-2023.odt26.In view of the above discussion, the Prosecutionconclusively proved that, the pistol / frearm was fred from theclose range and not from the point-blank range.[iv] Absence of gunpowder on the hands of Deceased27.It is submitted by the learned Advocate for the Appellantthat, the circumstance of absence of gunpowder on the hands ofDeceased would not be of any assistance to the Prosecution, asthe evidence of the Prosecution witnesses, who reached the spotof incident on hearing the sound shows that, the ladies rubbedthe hands of the Deceased and there was movement of the deadbody from the spot to the Hospital. Because of those factors, nogunpowder was detected on the hands of Deceased. Theevidence of PW – 8 [Dr. Santosh Baburao Bhoi] shows that,when the dead body was received, the hands of Deceased werenot protected by any paper bag or by any means. He submittedthat, this circumstance will not lead to the conclusion that, theDeceased had not used the frearm.28.It is submitted by the learned Addl. P.P. for RespondentNo.1 – State and learned Advocate for Respondent No.2 that,had the Deceased fred on herself by using the frearm, thegunpowder would certainly be detected on her hands. Theevidence of Ballistic Expert denied the suggestion that, due torubbing of the hands of Deceased, the gunpowder would vanish.It is submitted that, non fnding of the gunpowder on the handsof Deceased proved that, the frearm was not used by her.29.The evidence of PW – 7 [Urvi Pramod Mhasilkar], theBallistic Expert, shows that, by communication dated26/01/2018, her offce received two exhibits containing twosealed plastic container having one Exhibit – 1 – Gauee piece in 24 Criappeal-698-2023.odtliquid put in a plastic container labelled content - hand wash ofright hand marked Exh. No.C-3 and Exhibit – 2 – Gauee piece inliquid put in a plastic container labelled content - hand wash ofleft hand marked Exh. No.C-4. Both exhibits were havinglabells by name Mona @ Monali Vinod Chavan. She started theanalysis on 13/03/2018 and completed it on the same day andher result was that, nothing of note in relevance to the fredgunshot 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 istrue that, it has come in the evidence of PW – 5 [AnusayaManikrao Aaglave], who was the landlady of the premiseswhere the incident had taken place, that when she went on thespot of incident after hearing the sound, Deceased was lying onthe foor and fve [5] to six [6] women came to the spot andrubbed the legs and head of the Deceased. Her evidence do notshow that, the said women rubbed the hands of Deceased.30.In the evidence of PW – 7 [Urvi Pramod Mhasilkar], theCA report at Exhibit - 123 is brought on record. It is in respectof nail clippings of both the hands of Deceased and the result ofanalysis was that ‘nothing of note in relevance to the fredgunshot residues were detected on the fnger nail clippings inExhibit – 1.’ Even if the contention of the learned Advocate forthe Appellant that, due to rubbing of hands, the gunpowderresidues will vanish is accepted for the sake of argument, it isunlikely that, the gunpowder residues on the fnger nail woulddisappear or vanish. The evidence on record clearlyestablished that, no gunpowder residues were found on thehands and nails of the Deceased. 25 Criappeal-698-2023.odt[v]Body part where the frearm injury was caused31.It is submitted by the learned Advocate for the Appellantthat, it is not that, because the frearm injury was on the part ofabdomen or just below the chest, it was not the case of suicide.The Medical Offcer admitted in cross-examination that, itdepends on the person who choose the part of body to committhe suicide. According to the Medical Offcer, generally insuicidal cases, the frearm injury is seen on the head and chest.In the case on hand, the injury is just below the chest andtherefore, the circumstance of the body part will not be of anyrelevance.32.It is the contention of the learned Addl. PP for RespondentNo.1 – State and learned Advocate for Respondent No.2 that,the evidence of Medical Offcer shows that, generally thefrearm 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 theSuicidal Death.33.Undisputedly, the Medical evidence has established that,the frearm injury on the Deceased was on anterior aspect ofabdomen. The wound was 16 cm. infero medial to left nipple, 18cm. infero medial to right nipple, 13 cm. from the umbilicus and25 cm. from the sternal notch. The frearm injury suffered bythe Deceased was neither on the head nor on the chest, whichaccording to the Medical Offcer was the general pattern insuicidal cases.[vi]Blood on the towel of the Appellant 34. The evidence of PW – 5 [Anusaya Manikrao Aaglave], thelandlady 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.odtthe noise, she noticed that, the Appellant had wrapped thetowel and was having soap foam on his body and head. Thisaspect that, the Appellant had wrapped the towel at the time ofincident is not in dispute as seen from the cross-examination ofPW – 4 [Manik Keshav Aaglave], the landlord of the place ofincident, as the suggestion was given to him that, the Appellantwas standing in the house with towel and foam on his face andhead. The evidence of PW – 9 [Dr. Nitin Narayan Katekar], theInvestigating Offcer, shows that, he seieed one white turkishtowel, when he seieed the frearm, one bullet shell and bloodstains found on the foor from the spot of incident. The seieedarticles were separately seieed with lables and signatures of thepanchas. He deposed of blood stains on the towel, which wasArticle No.3. The evidence of PW – 7 [Urvi Pramod Mhasilkar],Ballistic Expert, shows that, the articles, which were receivedfor examination vide Exhibit – 199 from PW – 9 [Dr. NitinNarayan Katekar], Investigating Offcer was having one towelExhibit – 5 and CA report in that respect was at Exhibit – 120showed no residue of gunshot. However, the CA report atExhibit – 181 brought on record in the evidence of PW – 9 [Dr.Nitin Narayan Katekar] shows that, human blood was detectedon 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 Appellantthat, though there is no dispute in respect of the evidence of theparents of Deceased that, the Deceased narrated the incident ofprevious night when the Appellant came home and hesuspected someone in his house and the quarrel took placebetween the Appellant and the Deceased and the Appellant 27 Criappeal-698-2023.odtcalled his Lawyer in respect of divorce, cannot be said to be theMotive to commit the Murder. He further submitted that, theevidence on record goes to show that, the Deceased was notgetting pregnant for which she was unhappy and therefore theDeceased had the reason to commit the suicide.36.It is submitted by the learned Addl. P.P. for RespondentNo.1 – State and the learned Advocate for Respondent No.2that, the evidence of parents of the Deceased clearly establishedthat, the Appellant was suspecting the character of Deceasedand 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 Deceasedmade a phone call to her in the morning on the day of incidentand narrated about the quarrel raised by the Appellant with heron the point as to how the light in the house situated oppositeside to their residence was burning and it got switched off whenhe reached home. The said evidence was not challenged. Thephone call between the Deceased and the mother around 08.58hours on the day of incident is not disputed by the defence.True it is that, the said evidence of PW – 3 [ VrundawaniShashank Pawar] was hearsay in nature. However, by virtue ofSecond Part of Section 32[1] of the Evidence Act, it becomesrelevant. The said part reads as under:“32. Cases in which statement of relevant fact by person who is deador cannot be found, etc., is relevant - … … … … …. …. …. …. …..(1) when it relates to cause of death - … …. …. …. …. …. …. …. ... Such statement are relevant whether the person who madethem was or was not, at the time when they were made, underexpectation of death, and whatever may be the nature of theproceeding in which the cause of his death comes into question. (2) …. …. ….. …. …. (3) …. ….. ….. ….. …..(4) …. ….. …. …. …. 28 Criappeal-698-2023.odt(5) …. …. …. …. ….(6) …. …. …. …. ….(7) …. …. …. …. ….(8) …. …. …. …. …. ”37.1Useful reference can also be made on this point tothe observations in Sharad Birdhichand Sarda Vs. State ofMaharashtra [Supra], which is further referred in severalJudgments. In Amar Singh Vs. State of Rajasthan; [2010] 9SCC 64, the said pronouncement is considered and held asunder in Paragraph Nos.19 and 20.“19. In Pakala Narayana Swami v. King Emperor [AIR 1939 PC47] Lord Atkin held that circumstances of the transaction whichresulted in the death of the declarant will be admissible if suchcircumstances have some proximate relation to the actualoccurrence. The test laid down by Lord Atkin has been quotedin the judgment of Fazal Ali, J. in Sharad Birdhichand Sarda v.State of Maharashtra (supra) and His Lordship has held thatSection 32 of the Indian Evidence Act is an exception to the ruleof hearsay evidence and in view of the peculiar conditions inthe Indian Society has widen the sphere to avoid injustice. HisLordship has held that where the main evidence consists ofstatements and letters written by the deceased which aredirectly connected with or related to her death and whichreveal a tell-tale story, the said statements would clearly fallwithin the four corners of Section 32 and, therefore, admissibleand the distance of time alone in such cases would not makethe statements irrelevant. 20. The difference in the English Law and the Indian Law hasbeen reiterated in Rattan Singh v. State of H. P. (supra) and ithas been held therein that even if the deceased was nowherenear expectation of death, still her statement would becomeadmissible under Section 32 (1) of the Indian Evidence Act,though not as a dying declaration as such, provided it satisfiesone of the two conditions set forth in this sub-section. Theargument of Mr. Sharma, therefore, that the evidence of PW-4and PW-5 regarding the statements made by the deceasedbefore them are hearsay and are not admissible ismisconceived.”38.The above evidence clearly established that, the Appellantsuspected the chastity of his wife and had Motive to do awaywith her. 29 Criappeal-698-2023.odtFurther Discussion :-39.The Prosecution on the basis of the evidence available onrecord conclusively established that, the Deceased died due tofrearm injury. There is no dispute on the aspect that, thefrearm, from which the bullet was fred and which caused thedeath of the Appellant’s wife, was the service revolver of theAppellant, who was in the services of the Police Department.Though in his written 313 statement at Exhibit – 199, it isstated that, the father of Deceased was in the PoliceDepartment and had undergone the training to handle thefrearm, the father of Deceased had given the training to theDeceased, there is no iota of evidence or material on record toeven remotely suggest that, the Deceased was havingknowledge of operating the frearm. Merely because theDeceased was the daughter and wife of the Policemen, it cannotbe inferred that, she knew how to operate the frearm. Thefrearm is not such a weapon which can be used for fringwithout having knowledge of its operation. In the case at hand,undisputedly it was the pistol. 40.As seen from the evidence of Ballistic Expert corroboratedwith the CA reports, no residues of fred gunshot were found onthe hands and nail clippings of the Deceased. The BallisticExpert evidence has conclusively established that, the bulletwas fred from the close range and not from the point-blankrange as discussed above. The CA report do not show bloodstains on the pistol. As seen from 313 statement recorded bythe learned Trial Court, the CA reports were referred and theAppellant replied it to be false. The human blood stains werefound on the towel, which was seieed from the spot of incidentas discussed above and there is no dispute that, the Appellant at 30 Criappeal-698-2023.odtthe time of incident had wrapped the towel. Neither there isevidence nor it is case of either side that, the Appellant hadtaken the Deceased near him to see what happened while hewas in towel. Under such circumstances, human blood stains onthe towel becomes a strong circumstances against theAppellant. The body part, where the frearm injury is caused isnot consistent with the suicidal pattern as seen from theevidence discussed above. If the defence of suicide is to beappreciated, the Deceased would have to take frst the pistol inhand, bend the hand from the elbow, take it towards thestomach, bend the writs and thereafter fre, by holding thefrearm either by one hand or both the hands. It would be avery strenuous task to use the frearm in such a manner tocommit suicide. If a person wants to commit suicide, he or shewould go by the easiest manner. True it is that, no residues offre gunshot were found on the hands of the Appellant.Admittedly, the Appellant was seen with the foam of soap on hisperson when the witnesses reached on the spot after hearingthe voice and the possibility of vanishing the residues of fregunshot due to the soap cannot be ruled out.41.The proved circumstances, completely rule out thepossibility of self inficted gunshot or suicidal fring. Admittedly,except the Appellant and Deceased, no one was present in thehouse when the incident had taken place. The evidence onrecord goes to show that, the chance prints were taken from thepistol and result of analysis as per Exhibit - 180 was that, theywere unft for comparison and any practical utility. This reportwill not undermine the above referred proved circumstances.The proved circumstances as discussed above are inconsistentwith the defence of the Appellant that his wife committed 31 Criappeal-698-2023.odtsuicide. The prove circumstances i.e. use of service pistol,death due to frearm injury, no residues of fre gunshot on thehands and nail clippings of the Deceased, no blood stains on thefrearm, blood stains on the towel and body part where theDeceased suffered the frearm injury are consistent with thehypothesis that, it is only the Appellant, who fred the pistol andcaused the death of his wife. The proved circumstancesunerringly established that, the chain which unerringly showsthat, the death of Appellant’s wife was Homicidal. The Chargefor the offence punishable under Section 302 of IPC is clearlyestablished from these proved circumstances. There can be nodispute in respect of settled legal position that the circumstancenot put to the Accused in his examination under Section 313 ofCr.P.C. cannot be used against him as observed in Sujit BiswasVs. State of Assam; 2013 [4] Supreme 509, cited by the learnedAdvocate of the Appellant. We have not considered the callrecordings, which were heavily relied upon by the learned TrialCourt in its Judgment without putting to the Appellant in thestatement under Section 313 of Cr.P.C.42.To base the conviction for the offence punishable underSection 201 of IPC, the learned Trial Court has observed asunder :-“123. The evidence of crime i.e.Pistol and bullet shell were removedfrom the spot of incident immediately by the accused. He washed hishands, face and hair with soap removing the Gun shot residuessignificant in determining as to who was holding firearm. He alsodeleted the calls dated 25-01-2018 from his Mobile phone therebytried to delete the conversation with one Advocate making inquiry ofdivorce proceeding to be filed and also his conversation with thedeceased in the night on 24-01-2018. But it is recovered by theDigital Experts in Forensic Science Laboratory in Exh.229. TheMobile phone of deceased was used by PW-6 after the incidentoccurred while it was kept in the hands of deceased when informantarrived. 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.odtchest of the deceased without disclosing Gun shot fired and deletingphone calls from Mobile phone, is with a view of eliminating theevidence of crime. He was very well knowing that, offence has beencommitted, but with an intention of screening himself from legalpunishment, he caused disappearance of evidence.The accused is a Police Officer Assistant PoliceInspector incharge of Police Station, Yermala. He was within theknowledge of evidence of firearm, gun powder residues and itssignificance. He is not a layman not knowing the procedure afterGun shot was fired.124.Section 201 of I.P.C. comprises two aspects which aredisappearance of evidence and giving false information with theintention of screening the offender from legal consequences. It wasthe case of murder and inspite of knowledge that the deceased hadGun shot injury, allowed others to press her chest. He also avoidedthe immediate medical aid which would have extended her life tillarrival of her relatives. He also raised shouts when the deceased wastrying to speak about the cause of death. This was disappearance ofevidence by the accused No.1 Vinod Chavan with the purpose ofscreening himself from lawful punishment. Hence, the prosecutionproved 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 underSection 201 of IPC, it was in respect of causing disappearance ofbullet fred from the service revolver and not for any other acts.It was not for deletion of calls from the mobile. As seen from theevidence available on record, the landlord and landlady went tothe house of the Appellant soon after they heard the sound andcry of the Appellant and after they knocked the door and wentinside, they noticed that, the Appellant was standing. Notfnding of the fred bullet on the spot of incident will not itselflead to the inference that, the Appellant caused disappearanceof the fred bullet. In absence of clear evidence to attract theessential ingredients for the offence punishable under Section201 of IPC, we are of the view that, the conviction for theoffence punishable under Section 201 of IPC would beunsustainable. 33 Criappeal-698-2023.odt44.In view of the above discussion, the conviction andsentence for the offence punishable under Section 302 of I.P.C.is maintained and the conviction and sentence for the offencepunishable under Section 201 of IPC needs to be quashed andset aside. Hence, the following order :-ORDER [I]Criminal Appeal is partly allowed. [II] The conviction and sentence awarded by the learned TrialCourt to the Appellant for the offence punishable underSection 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