Partly allowed

Sunil S/O. Sitaram Dond v. the State of Maharashtra and Others

Bombay HC5 Dec 2017WP/1292/2017

Case brief

AI extract

What is this about?

The High Court partly allowed a writ petition challenging a Sessions Court order that rejected a prosecution application to examine witnesses to prove electronic evidence (CDs). The Court set aside the impugned order finding the application vague on specifics of witnesses, permitting a fresh application with requisite details.

What did the court decide?

The impugned order dated 6.9.2017 is set aside. The prosecution is permitted to prefer a fresh application within two weeks giving requisite details about the witnesses to be examined.

Sunil S/O. Sitaram Dond Vs the State of Maharashtra… — Criminal Trial and Appeal | Bombay HC (2017)

¶1

( 1 ) 901-Cri.WP 1292 of 2017

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

¶3

 CRIMINAL WRIT PETITION NO.1292 OF 2017

¶4

WITH

¶5

CRIMINAL APPLICATION NO.6332 OF 2017

¶6

. Sunil s/o Sitaram Dond Age: 40 years, Occu.: Agril. & Business, R/o.Matapur, Tq.Shrirampur, Dist.Ahmednagar. ..Petitioner

¶7

VERSUS

¶8

1) The State of Maharashtra Shrirampur City Police Station, Tq.Shrirampur, Dist.Ahmednagar,

¶9

2) Ajay s/o.Dinkar More Age: 22 years, Occu.: Nil, R/o.Prakash Nagar, Near Thatte Ground, Ward No.7, Shrirampur, Dist.Ahmednagar.

¶10

3) Parag s/o. Machhindra Pathare Age: 20 years, Occu.: Nil, R/o.Near Borawake College, Ward No.1, Shrirampur, Dist.Ahmednagar.

¶11

4) Dhiraj s/o.Shankar Shinde Age: 23 years, Occu.: Nil, R/o.Sanjay Nagar, Near New Water Tank, Shrirampur, Ahmednagar. ..Respondents

¶12

...

¶13

Advocate for the Petitioner : Mr.R.R.Karpe
Advocate for the Respondent No.1 : Mr.A.A.Jagatkar
Advocate for the Respondent Nos.2 to 4 : Mr.G.R.Sayyed

¶14

( 2 ) 901-Cri.WP 1292 of 2017

¶15

...

¶16

CORAM : PRAKASH D.NAIK, J. DATE : 5.12.2017

¶17

ORAL JUDGMENT:-

¶18

1)The petitioner has challenged the order dated
6.9.2017 passed by the Sessions Court Shrirampur below
Exh.142 in Sessions Case No.40 of 2015.

¶19

2)The petitioner is the first informant in Crime No.I-
72 of 2015 registered with Shrirampur Police Station.
The offences were registered under Sections 363, 385,
387, 302, 201, 120B, 364 and 366 read with Section 34 of
the Indian Penal Code. Charge-sheet was filed and the
case is pending before the Court of Additional Sessions
Judge, Shrirampur, which is numbered as Sessions Case
No.40 of 2015. The case relates to the murder of the
deceased Ganesh Chandgude. The petitioner is the
maternal uncle of the deceased.

¶20

3) The charge-sheet has been filed and the trial had

¶21

already proceeded. About 25 witnesses are already
examined by the prosecution in support of its case. The
respondent Nos.2 to 4 are impleaded as accused in the
case arising out of the said complaint registered as
Session Case No.40 of 2015.

¶22

4)The petitioner's contention is that the case is

¶23

heavily oriented around the electronic evidence,
particularly, the conversation recorded and gathered from

¶24

the Cell Phones, which were allegedly used while
commission of the crime along with CCTV footage. It is
contended that the charge-sheet indicates that relevance
of conversation in the mobile Cell Phones along with CCTV
footage, which has been culminated into the Compact Disc
(CD), which includes the conversations of the accused
since kidnapping of the deceased till commission of
murder on the count of non-compliance of demand of
extortion amount.

¶25

5)It is submitted that, the prosecution preferred an
application vide Exh.138 wherein permission was sought
from the Court of Additional Sessions Judge for placing
the CDS on record, which were received from Forensic
Science Laboratory, Mumbai, after due inspection. It was
requested that, these two CD's be permitted to be placed
on record in the Sessions Case. Vide order dated
19.8.2017 the Sessions Court granted the permission and
thereafter these CDS are taken on record and these CDs
are part of the Sessions Court proceeding.

¶26

6)The petitioner further contends that taking into

¶27

consideration vital importance of the CDs received from
Forensic Science Laboratory, Mumbai, after its
verification and scrutiny, the prosecution filed
application vide Exh.142 on 1.9.2017. In the said
application, it was stated that the recovered mobile cell
phone and CCTV footage were sent to Forensic Science

¶28

Laboratory, Mumbai, and after due verification and

¶29

( 5 ) 901-Cri.WP 1292 of 2017

¶30

scrutiny of the electronic device, the said Forensic
Science Laboratory, Mumbai, has prepared two CDs. It was
further stated that the Court had permitted the CDs to be

¶31

placed on record so as to read in evidence. In the

¶32

application it was further stated that the evidence with
regards to the CDs is relevant to the prosecution's case.
It was also stated that it is necessary to issue
certificate under Section 65-B of the Evidence Act. It
was also stated that it is necessary to ascertain whether
the certificate is enclosed in the sealed packet and in
the event the certificate is not available, requisite
evidence will have to be adduced. It was therefore,
prayed that the envelopes of CDs may be permitted to be
opened in the presence of the Advocates to ascertain the
existence of the certificate and in the event such
certificate is not found in the envelopes, the
prosecution may be permitted to issue summons to the
witnesses.

¶33

7)The learned Additional Session Judge on 1.9.2017
ordered that the envelopes be opened in the presence of
the Advocates. The Court observed that it would be just
and proper to open two envelopes, which contains CDs at
this stage and the application was allowed to that
extent. The said order was passed on the application
preferred by the prosecution vide Exh.142. Thereafter,
the envelopes were opened in the presence of both the
Advocates. The envelopes were marked as Exh.146 and
Exh.147. The Court thereafter, recorded in the Order
dated 1.9.2017 that in the envelop Exh.146, there is one
CD and in the envelop Exh.147 there are four photographs.
The CD and photographs were kept in respective envelopes
and they were sealed in the presence of the Advocates for
both the parties. The order further states that learned
APP sought time to make submission on the point of
certificate under Section 65-B of the Evidence Act,
hence, time was granted to the prosecution.

¶34

( 7 ) 901-Cri.WP 1292 of 2017

¶35

8)In pursuant to that the Trial Court heard the

¶36

parties on the application preferred by the prosecution
vide Exh.142. The Trial Court vide order dated 6.9.2017
rejected the said application.

¶37

9)While passing the order dated 6.9.2017, it was

¶38

observed that the application has been filed at the stage
when the case is fixed for final argument after evidence
of 25 prosecution's witnesses has been recorded. While
deciding merit of the application, the opposite party has
raised objection for issuance of summons on the ground
that the prosecution is prolonging the case. The Trial
court however, observed that merely filing application at
the belated stage, cannot be a reason to reject the
application. Further, the Trial Court has observed that
the prosecution has contended that there are two CDs, but
after opening envelopes, only one CD is found in one of
the envelopes and in other envelop there were positive

¶39

photographs. While considering the merit of the CD,

¶40

( 8 ) 901-Cri.WP 1292 of 2017

¶41

report was produced regarding its production with a
prayer that CD may be allowed to be produced on record,
which was received by the City Police Station, Shirpur,
containing mobile and CCTV footage sent for Forensic
Science Laboratory, Mumbai, for observations. The Court
thereafter observed that on perusal of report dated
15.3.2016, it appears that permission to produce DNA
report, mobile examination, and VDR examination report on
record which is in the paper form. Thus, it appears that
by way of such report Exh.138, it is produced in the form
of CD. The Court also recorded the fact that the
accused/respondents had filed a written say and submitted
that the Forensic Science Laboratory, Mumbai, has filed
its report in writing and same is exhibited document.
The finding of Forensic Science Laboratory, Mumbai, is
narrated on paper regarding mobile details. The accused
also contended that the CCTV footage claimed by the
prosecution is not an evidence. The purport of legal
provision in this regard cannot be claimed at later stage

¶42

( 9 ) 901-Cri.WP 1292 of 2017

¶43

nor it is ground for examining witness. The application

¶44

is vague on the point of issuing the summons. The Trial
Court thereafter, concluded that without discussing
merits of CD or the report as the matter is at the fag
end of final argument, there is no just and legal grounds
for examination of witness. It was further observed
that, the decisions cited by the prosecution were not
applicable in the case. Considering the contents of the
application, the prayer for issuance of witness summons
was rejected.

¶45

10)The petitioner, who is the first informant has

¶46

therefore approached this Court challenging the order
dated 6.9.2017. Although the application vide Exh.142
was preferred by the prosecution, the said order is not
challenged at the instance of the prosecution. The
learned counsel for the petitioner submits that the
accused committed serious crime of brutal murder of a
child aged about 17 years. It is submitted that the

¶47

( 10 ) 901-Cri.WP 1292 of 2017

¶48

victim was kidnapped and thereafter there was a demand of

¶49

ransom and for not fulfilling the same, the victim was
murdered. It is submitted that although the prosecution

¶50

did not choose to challenge the order dated 6.9.2017
before this Court, in the interest of justice, the order
of the Trial Court is required to be set aside. The
petitioner is the first informant and was closely related
to the victim and therefore, he has locus to prefer the
present application. It is further submitted that
prosecution's case is based on electronic evidence i.e.
data collected from the mobile phone wherein messages
have been exchanged by the accused from the mobile phone
of the deceased by using another SIM card for demanding
the extortion amount. The case is also based on the
evidence of CCTV footage collected from the concerned
hotel. It is submitted that the data collected from Cell
Phones and CCTV footage is culminated into CDs by
Forensic Science Laboratory, Mumbai. It is submitted
that in the interest of justice, the prosecution may be

¶51

( 11 ) 901-Cri.WP 1292 of 2017

¶52

permitted to examine the witness to prove the electronic
evidence.

¶53

11)The learned counsel for the petitioner placed

¶54

reliance on the Judgment of this Court in the case of Somnath Gangadhar Karale and ors. Vs. State of Maharashtra, reported in 2016(5) Bom.C.R., 185 .

¶55

12)The learned counsel for the respondents strenuously

¶56

opposed prayer sought in this petition. It is contended
that the petitioner has no locus to challenge the
impugned order. The prosecution has not filed any
application challenging the order passed by the Trial
Court. The prosecution has examined 25 witnesses and at

¶57

the fag end of the trial when case was posted for

¶58

argument, the application was preferred by the
prosecution. It is submitted that the electronic
evidence, which is sought to be relied upon by the
prosecution has no sanctity of law as it is not in

¶59

consonance with the provisions of Section 65-B of the
Evidence Act. It is submitted that the accused are in

¶60

custody for a long period of time and the prosecution may
not be allowed to be protracted on the basis of such

¶61

frivolous application. It is submitted that the
application preferred by the petitioner was vague and
therefore the Trial Court has rightly rejected the
application. The reasons assigned by the Trial Court are
sound and does not require any interference of this
Court.

¶62

13)The learned counsel for the respondent has relied on
the following decision:-

¶63

a) K.Ramajayam alias Appu V. Inspector of Police, Chennai, reported in 2016 Cri.L.J., 1542 .

¶64

b) Anvar P.V. Vs. P.K.Basheer and ors., reported in AIR

¶65

2015, Supreme Court, 180 .

¶66

14)Learned APP supported the petition. It is submitted

¶67

( 13 ) 901-Cri.WP 1292 of 2017

¶68

that the prosecution had preferred an application vide
Exh.142 before the Trial Court. In the interest of
justice and more particularly, taking into consideration
nature of crime committed by the accused and considering
the fact that the prosecution's case revolves around the
electronic evidence, the prayers made by the prosecution
before the Trial Court ought to have been allowed. It is
therefore, submitted that the reliefs sought by the
petitioner may be granted.

¶69

15)On perusal of the documents on record, it is

¶70

apparent that the case involves the murder of a young boy
for ransom and the prosecution is relying upon the
electronic evidence. The CD's were produced before the
Court. The said articles were however in the sealed
envelop, which were opened on 1.9.2017. The application
was apparently preferred after the receipt of the said
articles and on the report of the Forensic Science
Laboratory, Mumbai. The envelopes were opened in the

¶71

( 14 ) 901-Cri.WP 1292 of 2017

¶72

presence of Advocates for both the sides. The application
vide Exh.142 was however preferred on 1.9.2017 before
opening of the envelopes, which were containing the CDs
and photographs. Only after the envelopes were opened, it
could be ascertained that it does not contain the
certificate as envisaged under Section 65-B of the
Evidence Act. The application dated 1.9.2017 preferred
vide Exh.142 was preemptive and apparently it appears to
be vague as the prosecution was not sure whether the
envelopes contain the certificate or not. The

¶73

prosecution has not made it clear as to which witness
summons are required to be issued. The Trial Court
while rejecting the application has observed that the
application is vague on the point of issuance of summons.

¶74

It is pertinent to note that the Trial Court has
proceeded with the observation that merely on the ground
that the application was preferred belatedly, the same

¶75

cannot be rejected. However, in the concluding
paragraph, it appears that the Trial Court is influenced

¶76

by the fact that the application is preferred at the fag
end of trial and there appears no reason to allow summons
to witnesses. In the circumstances, the application was
rejected.

¶77

16)It is true that the accused are in custody for a
long period of time and the prosecution had examined
about 25 witnesses and the application was made in
pursuant to order dated 19.8.2017 and thereafter on
1.9.2017, the envelopes were opened and the contents of
the said envelopes were revealed to both the parties.
Considering the fact that the case of the prosecution is
primarily based on electronic evidence, the prosecution
must be given an opportunity to prove its case.

¶78

17)The learned counsel for respondents had relied upon
several decisions with regards to the evidentiary value
of the CDs and it was also argued before the Trial Court
that such evidence is not admissible in law.

¶79

( 16 ) 901-Cri.WP 1292 of 2017

¶80

18)I do not wish to make any observation about the

¶81

admissibility of said evidence. However, it appears that
the application preferred by the prosecution vide Exh.142
was vague obviously in the circumstances in which the
application was preferred and the Trial Court has
observed that there is no ground for examination of
witnesses. The application Exh.142 does not specify as
to which witnesses the prosecution intends to examine in
support of evidence of CD in the event the CD is not
accompanied by a certificate. In the circumstances, the
impugned order is required to be set aside.

¶82

19)The learned counsel for the respondent No.2 to 4
submits that he do not wish to press Criminal Application
No.6332 of 2017, however, liberty may be granted to the
respondent to prefer application for bail before the
appropriate Court.

¶83

( 17 ) 901-Cri.WP 1292 of 2017

¶84

20)In the circumstances, without expressing any opinion

¶85

on the merits or evidentiary value of the CD, it would be
appropriate to pass the following order:-

¶86

ORDER

¶87

(I)Criminal Writ Petition No.1292 of 2017 is
partly allowed.

¶88

(II)The impugned order dated 6.9.2017 passed by
the Additional Sessions Judge, Shrirampur,
District Ahmednagar, below Exh.142 in Session
Case No.40 of 2015 is set aside.

¶89

(III) The prosecution is permitted to prefer a
fresh application before the Trial Court giving
requisite details about the witnesses prosecution
wishes to examine and for what reason. Such an
application be preferred within a period of two
weeks from today.

¶90

(IV) The Trial Court shall decide the
application, if preferred by the prosecution for
issuance of summons to the witnesses etc., in
accordance with law and without being influenced

¶91

by this order or its earlier order dated
29.9.2017.

¶92

( 18 ) 901-Cri.WP 1292 of 2017

¶93

(V) Considering the fact that accused are in
custody, the application preferred by the
prosecution, if any, may be decided within two
weeks from the date of filing of the application.

¶94

(VI) Petition stands disposed of .

¶95

(VII) Criminal Application No.6332 of 2017 is
allowed to be withdrawn with liberty to the
respondents to prefer an application for bail
before the appropriate Court.

¶96

 [PRAKASH D.NAIK, J.]

¶97

SPT/901-Cri.WP 1292 of 2017

Sunil S/O. Sitaram Dond v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Sunil S/O. Sitaram Dond v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Shaikh Chand Shaikh Ahmed Vs the State of Maharashtra and Others

Sunil Namdeorao Magre Vs Shaikh Gulab Rasul Shaikh Chand

Sunil Namdeorao Magre Vs Shaikh Gulam Rasul Shaikh Chand and Another

Ajay S/O. Dinkar More and Others Vs the State of Maharashtra and Anr.

Shivaji S/O. Surendra Palajkar Vs the State of Maharashtra

Saiyyed Kaisarali S/O. Usmanali and Others Vs the State of Maharashtra and Anr.