Allahabad High Court
Rishi Talwar vs State Of U.P. on 1 March, 2023
Author: Anjani Kumar Mishra
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 05.09.2022 Delivered on 01.03.2023 Court No. - 46 Case :- CRIMINAL APPEAL No. - 258 of 2018 Appellant :- Rishi Talwar Respondent :- State of U.P. Counsel for Appellant :- Vijit Saxena,Ataullah Mubarak Ahmad,G.S. Chauhan,Kuldeep Saxena,Rajiv Lochan Shukla,Ranjeet Singh,Shashwat Kishore Chaturvedi,Somesh Khare,Vimlendu Tripathi Counsel for Respondent :- G.A.,Amit Kumar Srivastava Hon'ble Anjani Kumar Mishra,J.
Hon'ble Umesh Chandra Sharma,J.
(Per : Hon'ble Umesh Chandra Sharma,J.)
1. This appeal has been preferred by the convicted accused Rishi Talwar against the conviction and sentencing order dated 11.10.2017 in ST No.238 of 2014 (State of UP Vs. Rishi Talwar), under Section 302 IPC, Crime No.211 of 2014 and ST No.239 of 2014 (State of UP Vs. Rishi Talwar), under Section 25/27-A Arms Act, Crime No.212 of 2014 by which the appellant was convicted and sentenced under Section 302 IPC for life imprisonment and a fine of Rs.50,000/- and in case of non-payment of fine to undergo three months' additional imprisonment and also conviction and sentence under Section 27 of the Arms Act, 1959 for five years rigorous imprisonment and a fine of Rs.10,000/- and in case of non-payment of fine to undergo one month's additional imprisonment. It was also directed that both the sentences shall run concurrently.
2. In brief, facts of the case are that informant Manohar Lal Suri resident of Narula Navi Mumbai, father of the deceased, Shweta and father-in-law of the accused, lodged an FIR on 30.04.2014 stating that the marriage of his daughter Shweta was solemnized as per social rituals and customs on 27.11.2003 with the accused Rishi Talwar son of Deepak Talwar resident of Mission Compound Sarva Nagar, Jhansi. After a few days of the marriage, Rishi Talwar started beating the informant's daughter. His daughter used to convey to the informant about beating and abuses by the accused over the phone. After the marriage the accused neither allowed the informant's daughter to meet the informant nor was she allowed to go anywhere in her kinship. He used to threaten her for divorce and used to demand money and said that she should take divorce otherwise he would kill her.
3. On 28.04.2014 at about 08:00 O'clock his daughter informed him over the telephone that Rishi had beaten her that day and had been doing so for 3-4 days. Again at about 11-12 O'clock she made a call where she said that Rishi was still beating her and she said that papa take away her and her children from here otherwise Rishi would kill them. On this, he told his daughter that he would come in the morning.
4. On 29.04.2014 at around 04:45 a.m. the accused's mother Smt. Asha Talwar made a missed call on the informant's mobile no.9821154419. When the informant called back, the phone was switched off. After that at around 11 O'clock, Smt. Charu Suri, daughter-in-law of the informant, also (who is accused's sister) called and informed that Rishi Talwar had shot and killed Shweta. The informant immediately informed Jhansi Police and his relative Kamal Raj at around 01:00 O'clock and requested that no action should be taken till he and his family reached Jhansi. He himself would take legal action after seeing the condition of his daughter. Accused's mother Smt. Asha and sister Charu Suri are also involved in the murder.
5. On the night of 30.04.2014 at about 01:00 a.m. the informant with his wife Smt. Shakti Suri, son-in-law Umesh Vishnu Shirke and daughter Monika Umesh Shirke reached the house of the daughter Shweta and saw that her dead body lying in the bathroom, whom Rishi Talwar had killed by a gun shot. The informant requested to take legal recourse.
6. On the basis of above tahrir a case at Crime No.211 of 2014, under Sections 302, 120-B IPC was registered on 30.04.2014 at 02:00 p.m. at Police Station Sipri Bazar, District Jhansi against Rishi Talwar, Asha Talwar (mother of the accused) and Charu Suri (sister of the accused).
7. The Investigating Officer started investigation and copied tahrir and chik FIR and recorded statements of the writer, informant and other witnesses and went in search of the accused. On the pointing of informant's wife he reached at the house of the accused where he was arrested at 07:30 a.m. while he was locking the gate of his house. Upon being asked he identified himself as Rishi Talwar. In personal search a pistol on which MADE IN USA No.405 with OMEY ARMY SUPPLY printed on its barrel, was recovered with two live cartridges of 32 bore from the left side of his pant. He confessed killing his wife, Shweta Talwar with the recovered pistol on the night of 29.04.2014. The accused was taken into custody and the recovered case property was sealed on the spot and its specimen seal was also prepared. None came forward to be witness of the recovery except Kamal Raj and Azhar Khan. A recovery memo was prepared on the spot and its copy was provided to the accused. In this respect a case at Crime No.212 of 2014, under Section 25/27 Arms Act was registered on 01.05.2014 at 09:45 a.m. at Police Station Sipri Bazar against the accused.
8. In Crime No.211 of 2014, under Section 302 IPC charge-sheet was submitted against the accused-appellant, Rishi Talwar alone (exonerating his mother and sister). In Crime No.212 of 2014, under Section 25/27-A Arms Act after investigation charge-sheet was submitted against the accused under Section 25/27 Arms Act.
9. After taking cognizance Chief Judicial Magistrate, Jhansi submitted both the cases to the Court of Sessions on 23.07.2014 which were numbered as ST No.238 of 2014 and ST No.239 of 2014, respectively. On 17.04.2015 charges under Section 302 IPC and Section 25/27 Arms Act were framed, which the accused denied and sought trial.
10. Following witnesses have been examined by the prosecution:-
(i) PW-1, Manohar Lal Suri, informant, father of the deceased and father-in-law of the accused; (ii) PW-2, Kamal Raj, witness of recovery of the empty cartridges 32 bore, blood stained and plain floor and recovery memo of pistol and cartridges; (iii) PW-3, Azhar Khan, witness of recovery of pistol and cartridges and arrest; (iv) PW-4, Kumari Anchita, daughter of the deceased and accused; (v) PW-5, Monika Umesh Shirke, daughter of the informant; (vi) PW-6, Head Constable, writer, Satish Kumar Dwivedi who prepared chik FIR, kaymi GD (registration of the case GD); (vii) PW-7, Dr. Sushil Kumar Gupta, the doctor who prepared and proved the post mortem report Ex.Ka-8 and material Ex.1-5; (viii) PW-8, Umesh Vishnu Shirke, scribe of Ex.Ka-1 and witness of inquest Ex.Ka-2; (ix) PW-9, Smt. Shakti Suri, mother of the deceased; (x) PW-10, Ram Bhajan, Investigating Officer; (xi) PW-11, Sudhir Suri, brother of the deceased; (xii) PW-12, Ravindra Sharma, friend of the deceased's brother, Sudhir Suri; (xiii) PW-13, Smt. Charu Suri, sister-in-law (bhabhi/nanad) of the deceased; (xiv) PW-14 Lalaram Verma, notary advocate who proved Ex.Ka-18 and Ex.Ka-19, FSL Report, Paper No.86-A/3 and 89-A.
11. The oral evidence in ST No.239 of 2014 in Crime No.212 of 2014, under Section 25/27 Arms Act are;
(i) SI Dinesh Singh, Investigating Officer who proved map Ex.Ka-6, charge-sheet Ex.Ka-7 and chik FIR, Ex.Ka-8 by his secondary evidence; (ii) Photocopy GD 6-A, 7-A and prosecution sanction paper 9-A.
12. Statement of the accused has been recorded in which the accused has denied the allegations and stated that he himself reached police station at 04:30 a.m. after getting information from Anchita. He denied any conversation with Charu Suri. He stated that he remained at his house on 28.04.2014 upto 09:00 p.m. Thereafter, he had proceeded for Delhi. He further stated that one Ravi had killed his wife in his house but for blackmailing him, her father had lodged this case falsely. He stated that Charu Suri is living in Jhansi and admitted that she was not living with her husband, Sudhir Suri. He expressed ignorance about any friendship or animosity with advocate Sri Janardan Vyas and notary advocate Sri Lalaram Verma.
13. According to the accused-appellant, prosecution sanction is forged and wrong and had been made for extorting money and blackmailing him. According to him he had not killed his wife. At the time of incident he was not at home but had left his house for going to Delhi.
14. Accused-appellant has examined following witnesses in defence:-
(i) DW-1, Mahendra Dubey; (ii) DW-2, Anil Kumar Singh.
15. Following documentary evidences have been produced by the prosecution in ST No.238 of 2014, under Section 302 IPC:-
(i) Ex.Ka-1, tehrir; (ii) Ex.Ka-2, inquest; (iii) Ex.Ka-3, recovery memo regarding two empty cartridges 32 bore; (iv) Ex.Ka-4, recovery memo regarding taking sample of pieces of blood stained and plain floor; (v) Ex.Ka-5, recovery memo regarding recovery of pistol and cartridges from the accused; (vi) Ex.Ka-6, chik FIR; (vii) Ex.Ka-7, carbon copy of kaymi GD (lodging of FIR); (viii) Ex.Ka-8, post mortem report; (ix) Ex.ka-9, photonash; (x) Ex.Ka-10, police form-13; (xi) Ex.Ka-11, letter to CMO; (xii) Ex.Ka-12, specimen seal; (xiii) Ex.Ka-13, map of place of occurrence; (xiv) Ex.Ka-14, map regarding recovery of pistol and cartridges; (xv) Ex.Ka-15, charge-sheet under Section 302 IPC; (xvi) Ex.Ka-16, CD of conversation between Charu Suri and the accused, Rishi Talawr; (xvii) Ex.Ka-17, application no.114-B; (xix) Ex.Ka-18, signature and seal of advocate Janardan Vyas, swearer, Charu Suri and signature of her advocate; (xx) Ex.Ka-19, photocopy of register of notary; (i) FSL report 86-A/3 regarding country-made pistol with magazine, two empty and two live cartridges 32 bore, two pieces of metal of used bullet; (ii) 89-A FSL report regarding clothes of deceased, blood stained and plain pieces of floor etc.
16. Material Exhibits:-
(i) Material Exs.1 to 3, two metal pieces and bullet recovered from the dead body; (ii) Material Ex.4, match box; (iii) Truss (bundle); (iv) Material Exs.6 and 7, pieces of blood stained and plain floor; (v) Material Ex.8, pistol; (vi) Material Exs.9 and 10, two live cartridges of 32 bore; (vii) Material Exs.11 and 12, two empty cartridges of 32 bore; and (viii) Material Exs.13 and 14, two trusses.
17. In S.T. No.239 of 2014, Crime No.212 of 2014, under Section 25/27 Arms Act the evidence consists of Ex.Ka-6, map of the recovery, Ex.Ka-7, charge-sheet, Ex.Ka-8, chik FIR, 6-A and 7-A return of lodging of FIR GD, paper no.9-A prosecution sanction.
18. In brief, evidence of witnesses is reproduced herein below:-
(I) PW-1, Manohar Lal Suri, father of the deceased and father-in-law of the accused deposed that on 27.11 2003 his daughter Shweta Talwar was married with Rishi Talwar resident of Jhansi as per social rituals. His daughter used to inform him by phone that Rishi Talwar frequently beats her and quarrelled over minor issues hurling abuses and stating that if she did not give him money, he would divorce her. Two daughters were born to his daughter Shweta. Rishi used to tell Shweta that she had some affair with Ravi who used to visit his house in his absence. On 29.04.2014, Rishi Talwar's mother made a call which got disconnected. When he called back, the phone was switched off. At 11:00 a.m. he received a call from his son's wife, Charu Suri, sister of Rishi Talwar informing that Shweta has been shot. He called Jhansi Police and relatives and instructed that no action be taken till he reached Jhansi. He further deposed that at 08:00 O'clock, on the night of 28.04.2014 Shweta made a call and said that Rishi was beating her for last 3-4 days. He told her to go to upper portion of the house and to not talk. Then at 11:30 p.m. she called again and said that Rishi was beating her due to which she was bleeding from her nose. Further, she asked him to come and take her away with her children or else Rishi would kill her. He consoled that he would come and taken them away in the morning. He came to Jhansi on the night of 29.04.2014. He stayed at Rishabh Hotel. He had dictated an application to his son-in-law, Umesh Shirke and after signing it went to the police station Sipri Bazar and filed the application.
(II) PW-2, Kamal Raj deposed that on 29.04.2014 informant had informed him over phone about the death of his daughter. On the night of 29/30.04.2014 at 01:00 - 01:30 a.m. informant and his family reached his hotel i.e. Rishabh Hotel and had gone to police station Sipri Bazar at 02:00 - 02:30 a.m. At 03:00 a.m. he was rung up and informed that informant and Nisar Khan went to the house of Rishi Talwar where they saw the dead body of Shweta lying in the bathroom. Investigating Officer sent the dead body for post mortem after the inquest which was signed by him and Nisar Khan. The witness identified his signature on inquest Ex.Ka-2, fard Ex.Ka-3 and Ex.Ka-4. On 01.05.2014 at about 09:00 a.m. Investigating Officer had called him to the house of Rishi Talwar, wherefrom, he with Rishi Talwar and Azhar came to police station Sipri Bazar where he and Azhar signed some documents. The witness identified his signature on paper no.15A, Ex.Ka-5. This witness denied that accused Rishi Talwar had confessed of the crime before him or that Investigating Officer had recovered one country made pistol and two live cartridges from Rishi Talwar.
(III) The witness was declared hostile and was cross-examined by ADGC (Criminal). He denied his statement recorded under Section 161 CrPC and also preparation of panchayatnama and recovery of empty cartridges 32 bore and signing Ex.Ka-4 on the spot. After reading he also denied arrest of the accused on 01.05.2014 at about 07:30 a.m. before him and recovery of country-made pistol and two live cartridges from his possession and preparation of recovery memo and the accused's confession of crime. In cross-examination by the accused he deposed that police had not arrested Rishi Talwar in his presence. When he reached on receiving a call from the police, Rishi Talwar was already in the custody at the police station.
(IV) PW-3, Azhar Khan has also deposed against the prosecution and was declared hostile. He deposed that on 01.05.2015 Rishi Talwar was not arrested from his door in his presence. He had reached with his employer Kamal Raj at 09:00 a.m. and found Rishi Talwar already in police custody. Some papers were signed at the police station. No pistol or cartridges were recovered before him. Rishi Talwar had not confessed killing his wife, Shweta. The witness identified his signature on Ex.A-5. The witness was declared hostile. During cross-examination by ADGC (Criminal) the witness disowned his statement recorded under Section 161 CrPC and stated that he could not explain why investigating officer recorded the same. This witness also denied the recovery and arrest of the accused, Rishi Talwar from his door at 07:30 a.m. on 01.05.2014. He also denied that the accused had confessed his guilt before him. This witness has simply identified his signature but had said that it is wrong to say that police had prepared the recovery memo before him and the case property was sealed before him. In cross-examination by accused's counsel this witness has deposed that Investigating Officer got his signature on plain paper and nothing was written on it. Kamal had also signed it along with him. He denied seeing any pistol or cartridge anywhere.
(V) PW-4, is Kumari Anchita Talwar aged about 11 years, is daughter of the deceased and the accused. She was tested under Section 118 of Indian Evidence Act, 1872 and after concluding that the witness understood the nature and importance of the questions and could properly answer and knew the meaning of oath, her evidence was recorded. During her deposition, this witness recognised her father and said that her mother was Shweta Talwar. They are two sisters and one brother. Her younger sister is Jaanvi Talwar and her younger brother is Rudranksh Suri who is her aunt's (buwa) son. According to her, the incident occurred on 29.04.2014 at about 09:00 O'clock. She along with her younger sister was with her parents and after sometime her father went to Delhi by train. Half an hour later, Ravi uncle had come and had rung the bell. Her mother opened the door, he sat in the drawing room. She was watching TV inside the house. They both were talking and after sometime she heard that they were quarrelling then she lowered the volume of TV and heard what they were saying. Ravi said to her mother to go with him. Her mother refused to go with him because her husband was not in the house and her children were alone there. Ravi started to force; her mother said to get out from the house then he took a small gun from his pocket. Her mother got scared and started running towards bathroom to save her life and started closing the door of the bathroom but before that Ravi opened fire and her mother fell down. When she started crying and shouting loudly, he threatened and said not to say anything about him being there. After going to the upper portion of the house got up to her sister and told that Ravi uncle has killed their mother. When she went out with her only Anil Singh and Sanjeev Pandey uncle had come there and she had narrated all the facts to them. They said that they were calling the police. When she was nervous to stay alone at her house, she stayed for sometime in the house of Anil Singh and for sometime at Sanjeev Pandey's house. Next day when her maternal grandfather came, she told him about this. He said to go to police station. On 01.05.2014 at 04:00 a.m. when her father arrived, she narrated everything about her mother. Her father stated that he was going to the police station but he did not return.
(VI) This witness was declared hostile and was cross-examined by ADGC (Criminal) but she did not support the prosecution version and disowned the evidence recorded under Section 161 CrPC. She deposed that at present she was living with her grandmother, aunt (bua), brother and sister. She had come that day with her aunt (bua), Smt. Charu Suri. This witness has said that her parents had good relations. They never fought or quarrelled.
(VII) PW-5, Monika Umesh Sirke wife of Umesh Vishnu Sirke, sister of the deceased deposed that her younger sister Shweta had been married to Rishi Talwar on 27.11.2003. Whenever Shweta came to Bombay, she used to tell that her husband Rishi Talwar used to beat and abuse her, and always demanded money. On 28.04.2014 in the evening Shweta Talwar called her mother on her mobile and informed that Rishi Talwar was beating and quarrelling with her and that even 4-5 days ago Rishi Talwar had beaten her. At that time she (the witness) was at her mother's house and she took the phone/mobile from her mother and talked to Shweta and asked her to keep calm and informed Shweta that mummy and papa have talked with each other and will go to get her.
(VIII) On 29.04.2014 Charu Suri called on the mobile of her mother, Smt. Shanti Manohar Lal Suri, whose mobile number she could not recollect; informing that Rishi Talwar shot Shweta and asked that they should all leave for Jhansi. It was 11:30 a.m. or 12:00 O'clock in the day. She was going to school. Her husband came to take her to go to Jhansi then they left Mumbai and travelled to Jhansi. They came to Rishabh Hotel and stayed there and called the police from there and went to Shweta's house. There in the bathroom the dead body of her sister was lying in pool of blood. After this her mother started crying. Charu who was her sister-in-law (bhabhi) had a recording system in her mobile in which all the calls were recorded from which she came to know that Rishi had called Charu Suri after the shooting and confessed his crime and said that he had shot two bullets at Shweta. The dead body is lying in the bathroom. She had got prepared a CD of the recordings of that mobile and the same CD got installed in the Court. She had submitted that CD on which basis bail application of Rishi Talwar was rejected from the Court of District Judge and the Hon'ble High Court. In cross-examination this witness admitted that accused did not shoot in her presence as she was in Mumbai at that time. The Investigating Officer had recorded her statement on 02.05.2014. Except the fact regarding recording in CD rest of the things narrated by her in court had also been conveyed to the Investigating Officer. She admitted that the date and time of giving information by the deceased about the beating and abusing by the accused is neither in her remembrance nor had been reported in police station at Mumbai as its proceedings could be drawn only in Jhansi. She and her father had neither reported the matter through mobile nor informed the police. She herself said that Charu Suri, sister-in-law (bhabhi) used to settle the matter and used to explain and make conciliation pointing out the girls.
(IX) She deposed that this marriage took place in her relation. Rishi Talwar's mother Smt. Asha Talwar was their real aunt (mausi) who is her mother's real elder sister. Shweta used to go back to her in-law's house for the sake of their elder's apology. She further deposed that they came to know about the facts that recording of conversation was done one week after the last rites. Funeral took place in the evening at 04:30 p.m. on 30.04.2014. She does not remember the exact date she came to know about the recording. She admitted that she had not informed the Investigating Officer about the call recording on CD as due to litigation she had gone to Mumbai after the last rites. She did not think that it was necessary to tell this to the Investigating Officer, even by mobile. She refused the suggestion that there is no such recording of Charu's mobile. Her aunt (mausi) used to get reconciliation by apologizing over the phone. She could not remember phone number of her aunt but had deposed that she used to apologize over the mobile phone to her parents but could not remember the phone numbers of her parents' mobile either. She herself stated that it was not known that how the situation could come to murder. She used to live in her marital house and she came to know about the incident after talking to her parents. Charu bhabhi also used to tell her, she had no personal information. She had told the Investigating Officer that accused always made demands for money, if the same is not written in her statement, she cannot tell the reason. She told the Investigating Officer that she was at the house of her mother that day. She had talked to Shweta on her mother's phone and had told her to keep calm, she and her father will come to Jhansi to get her. If it was not written by the Investigating Officer, she cannot tell the reason. She stated that because she lived near her parental house, therefore, she had come there several times in the year of 2013 and 2014 although she cannot tell the exact number of times. She deposed that when Shweta used to go to Mumbai, she used to inform the matter, she cannot tell the day, date, month or the year when the deceased had said so before her. She could not tell the day, date and month when Charu had reconciled the matter. She could not remember the day, date and month when Asha Talwar had apologized. She further deposed that on 29.04.2014 at about 11:30 to 12:00 O'clock Charu had rung her mother but she does not remember the mobile number of Charu or her mother (of the witness). She admitted that this conversation was not recorded, only mobile statement is available but the same is not on record. She admitted that on 29.04.2014 she had reached Jhansi with her parents and husband at about 11:30 to 12:00 O'clock and had gone to Rishabh Hotel via Atarkesh. After reaching there her father had rung the police and using the vehicle of Kamal Raj, they reached the house of Rishi Talwar between 12:30 to 01:00 a.m. where police had also reached and a hawaldar was already there. Since her mother was not well, they came back to Rishabh Hotel where they stayed for the next four days. She deposed that the fact that Charu asked them over phone to go to Jhansi, was conveyed by her to the Investigating Officer, if the same was not recorded by him, she cannot tell the reason.
(X) This witness admitted that she knew Ravi. Her husband Umesh had gone to the house of the accused for further police action. She, her parents and her husband had gone to police station together. She denied that on 29.04.2014 at about 11:30 - 12:00 O'clock Charu had not rung up her mother to inform that Rishi Talwar had shot Shweta.
(XI) PW-6, Satish Kumar Dwivedi, HCP, had deposed that on 30.04.2014 on the basis of tahrir of the informant, Manohar Lal Suri, he had prepared chik no.120 of 2014 at 02:00 a.m. and had lodged an FIR at Crime No.211 of 2014, under Sections 302, 120-B IPC against the accused Rishi Talwar and others. This witness had proved the chik FIR Ex.Ka-6. This witness had also proved carbon copy GD Ex.Ka-7 regarding institution of the case. In cross-examination this witness had answered that Umesh Vishnu Sirke had also come with the informant. He deposed that the date of sending the chik FIR from the police station was not noted in the concerned column but rather it was marked in the outgoing column ''through post office'. The date is not mentioned below the signature of C.O. He also admits that there was no signature of the CJM on it. This witness denied that the chik report and GD were prepared anti-timed.
(XII) PW-7, Dr. Sushil Kumar Gupta who performed the post mortem, deposed that on 30.04.2014 at about 12:30 p.m. he had conducted the post mortem of the dead body of the deceased. In external examinations he found rigour mortis in the whole body of the deceased. This witness found following injuries on the body of the deceased:-
"(i) Gunshot punctured wound on the left parietal bone, 1 x 1 cm size scorching present in inverted wound 3 cm above left pinna, wound goes deep puncturing pellet recovered 2 cm behind the eye-wall, no exit wound. Side of left parietal and frontal bone were broken.
(ii) Gunshot punctured wound 1 x 1 cm size, 5 cm above navel scorching present, inverted wound and gun powder was present in wound, no exit wound present in X-Ray. Pellets seen deep in left side 3 cm lateral to sacrum whose possible effect could not be found out."
(XIII) In internal examination, brain was found congested. A metal cap was recovered from the molar tooth. Oesophagus was reddish. Right and left lungs were of 380 g.m. and 320 g.m, respectively. Heart was empty. There was 50 g.m. of semi-digested food in the stomach. In small intestine and appendix there were chyme and gases present. In large intestine and mesentery vessels there were faecal matters and gases. Spleen was congested and it weighed 150 g.m. Kidney were congested, both were of 200 g.m. Urinary bladder was empty. Genital organs and uterus were non-gravid.
(XIV) According to this witness, the deceased died due to shock and haemorrhage on account of ante mortem gunshot injuries. This witness has proved post mortem report Ex.Ka-8 and has also proved recovery of one bullet of yellow metal and two pieces of metal. This witness has proved bullet as material Ex.-1. Piece of metal material Ex.-2 and piece of recovered two molar tooth cap material Ex.-3, matchbox material Ex.-4 and truss of the match material Ex.-5. In cross-examination, this witness has opined that there could be variation of 06 hours in the timing of death. There is possibility of death having occurred in the night at about 10:00 - 11:00 p.m. (XV) PW-8, Umesh Vishnu Sirke, brother-in-law (bahnoi/jija), deposed that the deceased was married with the accused 10-11 years ago. When deceased went to Mumbai, he knew that she was beaten in Jhansi. He could not know the reason. On 29.04.2014 at about 12:00 noon his mother-in-law Smt. Shakti Devi Suri rang him and asked him to come to her house as Charu Suri had informed her over the phone that Rishi Talwar had shot Shweta. Manohar Lal Suri informed SSP, Jhansi, Smt. Aparna Ganguli and his relative Kamal Raj that no action should be taken till their arrival at Jhansi. On 29.04.2014 at about 11:45 to 12:00 O'clock they reached Rishabh Hotel, Jhansi from where they reached the police station with Kamal Raj. Therefrom they went to the house of Rishi Talwar where a policeman was stationed. After a while a police car with 2-3 policemen reached there and went inside and showed the bathroom where Shweta's dead body was lying. Seeing the dead body, Smt. Shakti Devi Suri, Manohar Lal Suri and Smt. Monika Sirke started weeping loudly. Due to the deteriorating health of Smt. Shakti Devi Suri, they took her back to Rishabh Hotel and then proceeded to police station at the behest of Manohar Lal Suri. He had written a tahrir Ex.Ka-1, inquest Ex.Ka-2 was prepared on the spot. This witness identified his signature on both the papers.
(XVI) This witness further deposed that at his house in Mumbai he heard about mar-peet with Shweta by her in-laws. He admits the writing of written complaint at police station in presence of police and the SHO. The SHO did not help in writing the report. Manohar Lal went on speaking and he was writing the complaint. He has a little remembrance of the writing. He signed inquest at Shweta's house. He further deposed that in inquest he has noted where the dead body was found and blood sample was taken. The position of the clothes and the corpse was also written. Recovery of an empty cartridge from the bathroom is also written in it. Investigating Officer had asked him about the incident. He signed the inquest between 04:00 to 04:30 O'clock. He said that he had given statement to the Investigating Officer that they went to the police station at about 12:00 O'clock leaving Nisha Sirke. He denied the suggestion that on 29.04.2014 his mother-in-law had not rung him and had not said that Charu Suri informed through phone that Rishi Talwar had killed Shweta. This witness denied all the suggestions of the defence.
(XVII) PW-9, Shakti Suri, mother of the deceased deposed that her daughter Shweta Talwar was married to the accused Rishi Talwar about 11-12 years ago. After few days, accused started beating and abusing her daughter which she used to inform by phone. Two daughters were born to her daughter. Accused, Rishi Talwar always used to send her daughter after beating her. On 28.04.2014 her daughter Shweta rang at 08:00 p.m. that the accused was seriously beating her. She asked to take her and her daughters from there and then she consoled that next morning she was coming to take her. In the night at 11:00 O'Clock she got a call of her daughter on her husband's phone stating that Rishi was abusing a lot and threatening that he would kill her. Her husband said that he with her mother were coming. At around 05:00 O'clock a missed call came on her husband's phone. She called back but no one picked up the call. Thereafter on 29.04.2014 at 11:00 a.m. her daughter-in-law Charu Suri made a call on her husband's phone and said that they all have not left yet, there Rishi Talwar shot Shweta then she took the phone from her husband and talked to her. She also told her the same thing then her husband rang Kamal Raj, owner of Rishabh Hotel, and asked to get information about the matter. He rang SP, Jhansi and informed about the incident and also told him not to take any action till they reach there. On 30.04.2014 at 01:00 a.m. they reached Jhansi and went to Rishi Talwar's house where Shweta's dead body was lying in the bathroom. Incident was reported by her husband.
(XVIII) In cross-examination this witness deposed that her daughter used to tell about the beatings on the phone, she cannot tell the date. She could not tell that how many times in 10 years the accused had beaten her daughter. Whenever her daughter came to her house after marpeet, she did not get her medically examined but there were marks of injuries in her hands, feet and nose too. On 28.04.2014 at about 08:00 O'clock a call came on her phone. She could not remember mobile number of her deceased daughter. When she got a call on her husband's phone at 11:00 p.m, it was not recorded. On 29.04.2014 at 05:00 a.m. at her husband's phone from which number missed call was made, she did not know but it was saved in the name of Asha Talwar whose phone number is 8454840444. She had told this number to the Inspector. She took the phone from her husband's hand then her daughter-in-law had also said that Rishi Talwar had shot Shweta, if it was not recorded by the Investigating Officer, she cannot tell the reason. She reached Jhansi by train at about 12:00 to 12:15 O'clock in the night of 30.04.2014. They all four directly reached the house of Rishi Talwar and saw the dead body of Shweta lying in the bathroom. Her husband went to report the matter to the police station. When she saw her daughter's dead body, she became nervous and very angry. Even today she feels that the corpse is in front of her eyes. When she reached Rishi Talwar was not there. She became unconscious and regained consciousness after one hour upon sprinkling and taking water. The dead body was upside down in the bathroom in red printed kurta and white payjama. She was prevented, therefore, she could not weep clinging with her daughter's corpse. Thereafter she returned to Mumbai on 03.05.2014. This witness denied all the suggestions of the defence and denied that while being angry, sentimental in a fit of rage she was giving evidence against the accused.
(XIX) PW-10, Ram Bhajan Singh, Investigating Officer deposed that on 30.04.2014 he was posted as SHO, Police Staton Sipari Bazar, Jhansi. On that day a case at Crime No.211 of 2014, under Sections 302, 120-B IPC against Rishi Talwar was lodged which was investigated by him. He prepared paper no.1 of the CD, copied written complaint and chik FIR and recorded the statement of HCP, Satish Chandra Dwivedi and informant Manohar Lal Suri and reached on the spot, conducted the inquest, prepared inquest report in the writing of SI Ahmad Rajab and got prepared papers i.e. photonash, challannash, letter to CMO and RI, specimen seals and had sent them. This witness proved the inquest report Ex.Ka-2, photonash Ex.Ka-9, challannash Ex.Ka-10, letter to CMO Ex.Ka-11 and specimen seal Ex.Ka-12. He inspected the place of occurrence on the pointing out of the informant and prepared map Ex.Ka-13 and proved it. He recovered two empty cartridges of 32 bore from the place of occurrence, prepared recovery memo Ex.Ka-3, prepared specimen seal, took blood stained and plain pieces of floor, prepared recovery memo of it, sealed it and proved it as Ex.Ka-4. On 01.05.2014 when he was in search of the accused, on the pointing of the informer the accused was arrested while locking the gate of his house. In his personal search a pistol of 32 bore and two live cartridges were recovered. He arrested the accused at 07:30 a.m. The witness has proved the arrest memo, recovery of weapons and cartridges as Ex.Ka-5. He sealed the recovered pistol and cartridges on the spot and prepared specimen seal and after coming to the police station lodged the FIR. On 02.05.2014 he recorded the contents of post mortem in case diary, recorded the statement of Smt. Monika Sirke, Umesh Vishnu Sirke, Smt. Shakti Suri and the informant Manohar Lal Suri. He recorded the statement of Dr. Sushil Kumar who did the autopsy and copied the inquest on 17.05.2014. He recorded the statement of Constable, Mohammad Ahmad, Lady Constable Smt. Geeta Devi and SI, Ahmad Khan in CD. He mentioned the contents of the affidavit of Smt. Charu Suri on 23.05.2014 in case diary, recorded the statement of Kamal Raj, supplementary statement of the informant - Manohar Lal Suri and the witness Azhar. On 25.05.2014 he prepared Ex.Ka-14 map of the place of recovery of weapon used in commission of crime and recorded the statement of Smt. Asha Talwar, Smt. Charu Suri, Kumari Anita, Kumari Janhvi and Constable Jitendra Singh. On 05.06.2014 he recorded the statement of Irshad and Nisar, witnesses of inquest and omitted Section 120-B IPC. After finding sufficient evidence he submitted the charge-sheet No.168 of 2014 (Ex.Ka-15), under Section 302 IPC against the accused. Before the witnesses blood stained and plain pieces of floor were produced which he proved as material Exs.6 and 7. He proved the recovery memo with regard to the country-made pistol material Ex.8 and two live cartridges of 32 bore as material Ex.9 and 10, empty cartridges as material Ex.11 and 12 and the truss as material Ex.13.
(XX) In cross-examination this witness had admitted that on the truss of the pistol neither signature of witnesses of recovery from accused are visible nor there is any sheet of paper pasted on the truss. Date is also not mentioned. Seal are not legible. Boxes in which pieces of the floor were kept were not present before the witness but pieces were present. In recovery memo no sign of identification was mentioned. In recovery memo of empty cartridges no time is mentioned. He admitted that after taking the pistol into possession, it was neither kept in cotton nor finger prints of the accused were taken because sufficient evidence was already available. He had gone to the Magistrate to take remand of the accused. This fact is mentioned only in the GD. He had submitted the pistol before the remand Magistrate and produced copy and case diary to make the entry. After minutely observing, the witness said that on the case diary and the truss, signature of the CJM, Jhansi dated 01.05.2014 is visible.
(XXI) He admitted that he had not written that the informant directly came to Rishabh Hotel and got a written complaint prepared and thereafter lodged the FIR. From there he went to the house of the accused and for the first time saw the dead body of his daughter. He admits that it is not written that after receiving the phone of his daughter informant consoled her and said to go to the upper portion of the house. He said that small details are not written, only beating is mentioned. It is not written that there was bleeding from the nose of the deceased. He said that it is noted in the case diary that the accused used to demand money and used to beat and ask for divorce. This witness admits that though giving divorce was not written but it was written that the accused used to say that take divorce otherwise he would kill her. He admits that informant - Manohar Suri had deposed that after the murder of Shweta, his daughter-in-law, Charu Suri had not returned back to Mumbai with his son.
(XXII) PW-11, Sudhir Suri son of the informant Manohar Lal Suri has been testified by the court even though he was not mentioned as a witness in the charge-sheet. In the open court this witness played the CD on a laptop and deposed that he has downloaded contents from google account in which the call recordings of his wife Charu Suri and her SMSs are saved. In April, 2012 he had purchased admin software. He also filed purchase bill Ex.Ka-16 and proved it. According to him, using this software, all conversations of his wife Charu Suri were recorded and saved in a google account which are still saved in his E-mail account. There was an admin control in his phone and whenever he wanted to hear the recording, he used to download it from google account. He also deposed that he had not done any tampering with this CD. The conversation which he played in the court is the same as in his google account. This witness deposed and produced description of recordings which are as under:
"(i) In the first recording there is a conversation between Charu Suri and her brother Rishi Talwar about murder of Shweta Talwar. In this conversation Rishi Talwar is confessing to his sister that he had killed his wife Shweta Talwar and her dead body was at the house. He told her to not convey this fact to others as he wanted time to hide the dead body. Hearing this, Charu Suri, in the state of weeping, cried as to why he killed her and why he felt no pity. Now everything is ruined. She also asked where are the children, in response he said that they were in the upper portion of the house.
(ii) The second recording is the conversation between his wife Charu Suri and Neeru Sahay, his sister-in-law and Asha Talwar, his mother-in-law in which his wife calls and tells Neeru that our brother Rishi Talwar has shot and killed Shweta Talwar. He also told that this information should not be spread as brother needs a few hours time. Either he would leave the house or would surrender with gun. Apart from this, Asha Talwar has also confirmed the same thing again with Neeru that Rishi had shot and killed Shweta. He informed the court that the mobile number of his wife was 8454840444. He also deposed that this mobile number was in the name of his father Manohar Lal Suri whose bill he used to pay. On this number he has also installed admin control software. He pays the bill amount. Because of doubts about his wife, he had installed the software. On 28.04.2014 he had gone to meet his mother-in-law at about 05:00 to 06:00 p.m. with his wife and son but due to bad situation in the house at night, he went to the nearest hotel and stayed there for the night. On the second day at around 04:00 a.m. on 29.04.2014 he again came back to his in-law's house and called his wife many times but his wife, mother-in-law and son were not there. Then as he wanted to know the facts, he rang his wife but she did not provide him any information. On this, he downloaded it in his google account, and after listening the recording, he came to know that at 05:45 a.m. Rishi Talwar had contacted his sister on phone and had informed this fact. After hearing the recording he asked his wife as to why she did not tell him all these things. From Dharmshala he came to Delhi by taxi. Second recording was done on his sister-in-law, Neeru Sahay's mobile no.9915702175. He recognises all voices of this recording very well and confirmed that these voices were of Rishi Talwar, Charu, Neeru Sahay and Asha Talwar."
(XXIII) In cross-examination he admitted that he had no degree or diploma to recognise the voices nor does he do the work of recognising voices but he and Neeru Sahay, his sister-in-law both have been talking with each other for 10-12 years, therefore, he recognises their voice. Similarly, he cannot say as to when and on which date he talked with Rishi Talwar but for 10-12 years he is also in conversation with him. He admitted that apart from the recording played in court, he has also all the recordings in which his wife has talked with Rishi Talwar. The witness was not sure as to whether such recording was available or not. He deposed that he had not recorded the conversation between him and Asha Talwar separately. After 01/02.05.2014 the mobile phone of Charu Suri was not in use. He cannot say what his wife did with that phone. He got this phone number switch off after about one month. His wife Charu Suri had refused to come to him. He did not turn off this phone immediately because he was expecting his wife to come to him. After one month he had filed divorce petition.
(XXIV) He had provided this CD to the Investigating Officer during the investigation. His father had submitted this CD but he cannot say what was the result of that. He has admitted that he never met the Investigating Officer and the fact deposed in the court had not been informed to the court and the police. Neither the police called him nor did he go automatically. He admitted that the CD has not been signed by him or by his father or by the court but himself said that his advocate Arun Kumar Dixit, engaged by his father, has signed the CD. It is true that there is no date on it. He deposed that the first recording of the CD had become available at 6:00 a.m. on 29.04.2014. The second recording is about a half an hour later. At this juncture advocate Arun Kumar Dixit identified his signature on the CD in question and informed the court that this CD was given by his client on 12.08.2014. The witness denied the suggestions of the defence counsel.
(XXV) PW-12, Ravinder Sharma deposed that he knows Manohar Lal Suri and his family members and also his daughter Shweta who has died; there are family terms between both the families. He used to visit the house of the informant's family. He knows that Shweta Suri deceased was married in Jhansi with Rishi Talwar. He had never visited Jhansi. On the information of the court he came to Jhansi for evidence.
(XXVI) In cross-examination this witness deposed that he had not been questioned by the police regarding this case. He has not come with the informant Manohar Lal Suri but has come separately. The court's summon was forwarded to him. Upon being questioned by the court this witness answered that he had met Shweta Suri in Mumbai. He never met her husband. He knows him only by name. He has no personal information regarding this case. Sudhir Suri told him over phone that his sister has been murdered. He has no hand in Shweta Suri's Murder. If any witness has named him, he has done so wrongly. He has seen photo of the accused, therefore, he recognises him. He never had any conversation with him on the phone or face to face. His relationship with Shweta Suri was because of her being sister of his friend and there were family terms.
(XXVII) PW-13, Charu Suri, sister-in-law of the deceased deposed that the accused is her younger brother and the deceased was her sister-in-law (bhabhi), informant Manohar Lal Suri is her father-in-law. Her brother accused Rishi Talwar was married to Shweta daughter of his father-in-law Manohar Lal Suri. From this wedlock two daughters Ankita Talwar aged about 12 years and Janhvi Talwar aged about 08 years were born. After the marriage neither any quarrel took place between her brother and sister-in-law Swetha before her nor it is in her knowledge. After marriage she used to live with her husband,father-in-law and mother-in-law in Narula, Mumbai. On 28.04.2014 she was at the house of his mother Asha Talwar in Dharmshala, Himachal with her husband, Sudhir Suri and children. She could not remember the mobile number used by her but refused that it was 8454840444. On 28.04.2014 and 29.04.2014 neither her brother Rishi nor her sister-in-law Swetha had called her. She could not remember mobile number of her mother.
(XXVIII) According to this witness mobile number 9805489464 was not with her mother. At 05:00 to 06:00 p.m. on 29.04.2014 her brother Rishi had not called her and had not said that he had shot her wife Shweta. After marriage Shweta remained with Rishi Talwar in Jhansi. Her brother Rishi never harassed her. It is wrong to say that her brother wanted to get rid of Shweta in any way. She expressed ignorance about the petition of divorce by his brother against Shweta, if it was so, her sister-in-law used to live with her brother even after divorce and remained till death with her children. It is true that Shweta was killed in the house of Rishi Talwar and her dead body was found there. It is also true that her father-in-law Manohar Lal Suri had lodged an FIR against her brother Rishi, mother Asha and against her for committing murder of Shweta. She denied that in this respect she had moved an application and affidavit to SSP, Jhansi on 05.05.2014.
(XXIX) This witness was declared hostile and prosecution has cross-examined her in which she deposed that at the time of incident she used to live with her husband but after the incident she was not living with him. There is no divorce between them but an order has been passed under Section 125 CrPC and proceedings of Section 128 CrPC were going on. In the month of June, 2014 she had moved an application saying that application paper no.15-A/4 and affidavit 15-A/12/224 were not signed by her. She was aware that after 05.05.2014 she and her mother were exonerated from the case. This witness disowned the statement recorded by Investigating Officer and also expressed ignorance about advocate Janardan Vyas and notary advocate Lala Ram Verma. This witness recognised the signature on application no.114-B Ex.Ka-17 prepared by her advocate Ramesh Chandra Agrawal and also admitted that she has come to the court from his chamber. She admitted that even after knowing that on application and affidavit 15-A her signatures are verified by advocate Janardan Vyas and certified by notary advocate Lala Ram Verma, she had not made any complaint.
(XXX) On the request of public prosecutor and with the consent of accused counsel Ex.Ka.-7 was compared with paper no.15-A-1/14 and court observed that both the documents were bearing the signature of Charu Suri. The signatures were mostly similar but this witness refused that on 05.05.2014 she prepared the application and affidavit and after signing the same produced before the SSP, Jhansi. The witness also denied the suggestions of the prosecution counsel.
(XXXI) In cross-examination by the accused, the witness deposed that in Ex.Ka-17 the advocate had written the facts which she had narrated. In the night of 29.04.2014 between 11:00 to 12:00 p.m. someone informed that one Ravi had shot Shweta when Rishi was in Delhi but this fact was not told by her to any court or any officer. She deposed that she had informed the officer orally. She deposed that on the day of occurrence when she was in Himachal, all the conversations were made from her husband's phone. After this incident her relations with her husband became sour. She had no idea that her husband was tapping her phone. Her father-in-law does not like her and her husband's relation was bad (with her).
(XXXII) PW-14, Lala Ram Verma, notary advocate, Civil Court, Jhansi deposed that he was a notary advocate. This witness recognised paper no.11-A2 to 11-A4 and deposed that Charu Suri had come to him with the papers on which her signature was identified by advocate Janardan Vyas. The affidavit was read out to Charu Suri. He put his seal and signature; the witness certified his signature and seal on the affidavit. In notary register the said affidavit was entered at serial no.2866 on 05.05.2014 which is signed by Smt. Charu Suri. The witness also filed photocopy of that page of the register attested by him and proved it as Ex.Ka-19.
(XXXIII) In cross-examination this witness admitted that it is true that there was no photograph on the affidavit. There is neither any photo on the affidavit nor the age of Charu Suri was mentioned. He also admitted that the "word verified to be correct" was not written in his seal. According to this witness, he did not know the deponent personally. The affidavit had come to him already prepared. It was neither typed nor signed by Charu Suri before him. Charu Suri and the advocate had come with this affidavit. It is true that seal of Janardan Vyas advocate and date of his registration was not written on it. The witness denied the suggestions.
19. After closure of the prosecution evidence, statement of the accused has been recorded under Section 313 CrPC in which he denied all the questions saying it to be wrong. In addition to it he, with regard to arrest and recovery of firearm pistol, magazine and live cartridges, stated that he had already reached the police station by 04.30 a.m. after getting information from Anchita - his daughter. On the day of occurrence he had not talked to Charu Suri and also said that Charu Suri had not condemned him. He further answered that the deceased remained at the house upto 09:00 p.m. on 29.04.2014. Thereafter he had gone to Delhi. Ravi had killed the deceased but the father of the deceased has lodged false complaint to blackmail him. He admitted that Charu Suri is living in a separate house in Jhansi. The prosecution sanction, is forged and wrong and he had not killed his wife. At the time of the occurrence he was not present at the house but had gone out of the house to Delhi. He has been falsely implicated.
20. In defence three witnesses have been examined which are as under:-
(I) DW-1, Mahendra Dubey deposed that his shop, Prakash Traders is in Sadar Bazar, Jhansi. He is an A-Class Government Contractor and General Order Supplier. He knows the accused Rishi Talwar who is also an A-Class Government Contractor and Army Supplier. Motor parts are sold by him. He purchases articles from Kashmiri Gate, Delhi. Rishi Talwar also used to purchase articles from Delhi. On 29.04.2014 he had gone to Delhi and had left the house at 08:30 p.m. He reached Jhansi Railway Station where Rishi Talwar was in the queue and asked him to purchase a ticket for Delhi and for that he had also provided money. He purchased two window tickets. Thereafter he waited for the train. He had gone to Delhi by Southern Express which departs from Jhansi in the night at 09:30 p.m. They reached Nizamuddin Railway Station at 05:00-05:30 a.m. Thereafter he sat in the waiting room and had breakfast. At 09:30 a.m. they went to Kashmiri Gate and purchased motor parts. Rishi Talwar said to take his articles also from the dealers and for that he provided receipt and said that there is a meeting, so book his articles. He booked the articles on 01.05.2014 and returned to Jhansi on 02.05.2014.
(II) When he went to provide the bill, accused's shop was closed and a staff was standing out side the shop to whom he handed over the receipt. The staff informed that Rishi Talwar had been sent to jail in connection of the murder of his wife.
(III) In cross-examination he deposed that his shop is 40-50 meters away from that of Rishi Talwar. It is wrong to say that he looks after the business of Rishi Talwar. He recognised Charu Talwar present in the court and admitted that he had not received any summons for testifying. He had come for deposing upon being asked by Charu. He has had good business relations with Rishi Talwar and Charu Talwar for about 25 years. It is wrong to say that he comes to the court to pursue the case. This witness admitted that he had moved adjournment application paper no.138-B and 137-B1 in his signature written by Sri Ramesh Agrawal, advocate for the accused Rishi. He had not given information in writing to any police officer that on the day of occurrence he and Rishi Talwar were in Delhi. The witness himself said that he had told the SO, Ram Bhajan Singh. He had not provided this information in writing to any of the police officers. He had not complained to any higher officer that the fact informed by him was not considered by SO, Ram Bhajan Singh. He further deposed that once he had gone to SSP, Jhansi, however he was not present. He neither submitted this information in writing there nor did he send through post.
(IV) On being asked by the court, the witness deposed that it is true that he used to pursue the case and used to come to the court due to business contact with the accused Rishi Talwar as there is no senior family member to pursue his case. In Delhi on 30.04.2014 at about 11:00 - 12:00 O'clock both were separated, till then they had not received information about the incident. He further deposed that certainly this fact is surprising that husband was not informed even on mobile phone about murder of his wife but he cannot tell the reason.
(V) DW-2, Anil Kumar Singh deposed that Rishi Talwar is his neighbour and lives in front of his house with his wife and two daughters, Ankita and Janhvi. He never saw them fighting with each other besides they were living peacefully. Rishi Talwar has a business of motor parts and used to go to Delhi for purchasing. On 29.04.2014 he was at his house. At about 10:30 p.m. he heard scream of a girl, he came out of the house and found Ankita and Janhvi there and asked the reason for screaming then they informed that Ravi uncle had shot her mother Shweta and her father had gone to Delhi. When he entered in the house, he found dead body of Shweta there, then he rang Rishi Talwar. Several other persons also gathered there who informed the police. The police reached after half an hour, he informed the police about the incident.
(VI) In cross-examination the witness deposed that he did not go to Rishi Talwar's house daily. He cannot say that there used to be quarrel between the wife and husband inside the house. He used to contract in PWD/RES. Their houses are opposite to each other. He neither went to inform any police officer and also did not give it in writing to any police officer on the spot nor did he go to tell any senior officer. Today for the first time he was telling the court. He had not even given an affidavit to any court or anywhere. It is true that on the next day of the incident accused had left the house saying that he was going to the police station. Next day Rishi Talwar was sent to jail. He had rung Rishi Talwar from his mobile no.8853202916. Daughters had given his number. It was informed to him that on the day of incident at about 08:00-09:00 p.m. he had gone to Delhi. Both the daughters had knocked the door of his house. Police came after half an hour till then he remained standing out of the house. Leaving a constable there, the police returned. After 01:00 a.m. he also went to sleep. Police had said that as per need they will call him. The dead body was near a water tap. Shweta was in salwar-suit. He could not say the colour. He had not rung the police. Neighbourers - Sanjiv Pandey, Manish Agrawal, Bablu Agrawal and Saxena Ji had come. He informed the police that daughters had informed him that Ravi uncle had shot their mother. He did not ask about Ravi uncle. Rishi Talwar had informed him at about 07:00-08:00 a.m. to go to police station. After knowing that Rishi Talwar has been sent to jail for the charge of murder of his wife, he did not inform the fact to any police officer. After getting summon from the constable he had come to testify himself. The witness denied that being neighbourer he was giving false evidence.
(VII) Upon being asked by the court the witness answered that he had not heard the sound of firing as the TV was on. He had come out when the daughters came screaming out of the house.
21. Grounds of Appeal:-
(I) The appellant has taken the ground that informant, PW-1 is not an eye-witness and his evidence is wholly unreliable. The only eye-witness is PW-4, Kumari Anchita. The trial court had failed to appreciate her evidence. She had stated that Ravi is the real culprit and the appellant was out of city. Non-prosecution of Ravi is no ground to fasten the guilt upon the appellant and to punish him. The time of occurrence has not been established. The post mortem was conducted after 32 hours but no rigor mortis was found. No credible evidence has been brought on record about a strained relationship to the extent to cause murder. There was no motive on the part of the appellant. The trial court was not justified in relying upon the CD containing the conversation between the appellant and Smt. Charu Suri, PW-13.
(II) The evidence in the form of CD is hit by Section 65-B of the Indian Evidence Act. No licence of the software was produced in the trial. The trial court had simply relied on the CD on the ground that PW-13 has not claimed the voice test. It is established law in criminal justice that prosecution has to prove its case on its own evidence and not on the weakness of the investigation or the defence. The affidavit sworn on 05.05.2014 was executed after one week of the occurrence and PW-13 was also a named accused but she was not charge-sheeted. This affidavit was disowned by PW-13 but in any case there is a possibility that it might have been obtained under coercion.
(III) Recovery has been shown from the appellant by PW-10 on 01.05.2014 at 07:30 a.m. while according to the prosecution, the FIR was lodged on 30.04.2014 according to which occurrence took place on 29.04.2014 at 04:45 p.m. It is beyond contemplation that in such circumstances the appellant would carry the weapon with him. The trial court has wrongly shifted the burden of proof upon the accused as to who has committed the murder while there is sufficient evidence that the appellant on 29.04.2014 in the night left his residence for Delhi by Southern Express at 09:30 p.m. The trial court has completely failed to consider this aspect. The impugned judgment and order is bad in law and wholly unwarranted. The prosecution has utterly failed to prove its case beyond the shadow of reasonable doubt. It is based on misleading evidence. The sentence and fine imposed by the trial court are wholly illegal, excessive and unwarranted. Conviction and sentence is against the weight of evidence on record. Hence, the appeal be allowed and the impugned judgment and order passed by the trial court be set aside.
22. Heard learned counsel for the parties and perused the record.
23. The appeal is decided as under:-
(I) In this case, according to the informant and other witnesses before being killed, the deceased informed her parents about the maltreatment by the accused via telephone at 08:00 p.m. on 28.04.2014 and she also informed that the accused was beating her since last 3-4 days. The deceased again rang at 11:00 - 12:00 p.m. that accused was still beating her. She requested her father to take her away with her children otherwise the accused Rishi would kill her. The informant assured her that he would come in the morning. PW-1, informant again deposed that on 29.04.2014 at 04:55 a.m. Smt. Asha Talwar, mother of the accused made a missed call at his mobile no.9821154419 and when he called back, her phone was switched off. At about 11:00 a.m. his daughter-in-law, Charu Suri, rang and informed that Rishi Talwar has killed Shweta by shooting her. Thereafter the informant after informing SSP, Jhansi and his relative, Kamalraj departed from Mumbai and in the night of 29/30.04.2014 at about 01:00 a.m. he with his wife, son-in-law and daughter reached Jhansi and found that the dead body of his daughter Shweta Talwar was lying in bathroom whom Rishi Talwar had killed by shooting.
(II) The FIR was lodged by the informant at 02:00 a.m. on 30.04.2014 just an hour after reaching the place of occurrence. Why the delay was caused is properly explained by the informant PW-1. PW-5, Monika, elder sister of the deceased and the remaining witnesses have also admitted that informant reached Jhansi in the night of 29/30.04.2014. Thus, there is no delay in lodging the FIR. In the written complaint all necessary facts have been mentioned. FIR is not an encyclopedia. It is not necessary to mention all the facts relating to the commission of the crime.
24. In Rohtash Vs. State of Rajasthan, AIR 2007 SCW 44 it was held that FIR is not an encyclopedia of entire case and need not contain all details.
25. It is a case based on circumstantial evidence. The informant and other witnesses of fact were not present on the spot. Only PW-4, Kumari Anchita is said to be present who has not supported the prosecution version.
26. In Motilal and others Vs. State of UP, AIR 2010 SC 281 it was held that FIR need not contain every minute details about the occurrence. It is not necessary that the name of every individual present at the scene of occurrence must be stated in the FIR.
27. In Harbans Kaur and another Vs. State of Haryana, AIR 2005 SC 2989 it was held that even a long delay in lodging the FIR can be ignored if witnesses have no motive of implicating accused and have given plausible reason for delay.
28. In Ravinder Kumar and another Vs. State of Punjab, AIR 2001 SC 3570 it was held that when there is a criticism on ground that FIR in a case was delayed, court has to look at reason why there was such a delay. Instances causing delay have to be looked into. If causes are not attributable to any fault to concoct a version made, delay cannot be a ground to treat the FIR vitiated.
29. In C. Magesh Vs. State of Karnataka, AIR 2010 SCW 3194 it was held that the FIR is not substantive evidence it can only be used to corroborate its maker.
30. In this case death of informant's daughter by his son-in-law has been caused. There is no proof that the informant had any enmity or immediate or remote cause of false implication. From the evidence it is established that the family life of the accused and deceased was not good and either divorce petition was going on or a decree of divorce had been passed between them. Even then for the sake of minor daughters, the deceased was living in the house of the accused husband. Thus, the defence argument that the FIR are ante-dated or ante-timed is not proved and the argument advanced in this respect is rejected.
Motive
31. As per the written complaint, the motive behind the commission of crime is that accused used to beat the deceased soon after the marriage. The deceased used to inform her family members and parents about beating and abuses hurled by the accused. He often threatened for divorce, demanded money and threatened to kill her if the deceased did not get divorce. These facts have been proved by the informant PW-1, Manohar Lal Suri.
32. PW-4, Kumari Anchita, daughter of the deceased, has deposed in cross-examination by the accused that relations between his parents were good and no quarrel ever took place. But this evidence of PW-4 is not corroborated by the other evidence on record.
33. PW-5, Monika Umesh Sirke, elder sister of the deceased, deposed in favour of the prosecution and has proved the facts regarding maltreatment by the accused alleged in the written compliant. According to this witness, Smt. Asha Talwar, mother of the accused Rishi Talwar is her real aunt (mausi) and elder sister of her mother. She used to make excuses about her son's conduct, therefore, considering her apologies, Shweta used to go back to her husband's house. She again deposed that Charu Suri her sister-in-law (bhabhi) used to make reconciliation by giving them reference of the girls then Shweta used to go back in her husband's house.
34. PW-8, Umesh Vishnu Sirke, brother-in-law of the deceased has also deposed in favour of the prosecution. PW-9, Smt. Shakti Suri, mother of the deceased has deposed in support of the prosecution that the accused would frequently beat and abuse the deceased and even before the killing, she was physically and mentally tortured.
35. PW-11, Sudhir Suri, brother of the deceased has also deposed in favour of the prosecution and has produced and proved the call recording of the accused, his sister, Charu Suri and his mother regarding his confession.
36. PW-13, Charu Suri, sister-in-law (bhabhi/nanad) of the deceased has not supported the prosecution version and has been declared hostile, although earlier an application with affidavit on 05.05.2014 was given to SSP, Jhansi by her through his advocate, Janardan Vyas notarised by PW-14, notary advocate, Lala Ram Verma. Though the witness tried to deny the execution of the aforesaid application and affidavit but she could not succeed in it.
37. It has also come in evidence that the marriage between the accused and the deceased had broken down and a Divorce Petition No.740 of 2013, under Section 13-B of Hindu Marriage Act, 1955 was registered on 17.12.2013 in which address of the deceased is shown as Nerula, Navi Mumbai with the contention that both were living separately since 18th September, 2011 but the deceased was continuing to live in the same house with her children till the date of incident as six months statutory period prescribed under Section 13-B of Hindu Marriage Act had not elapsed.
38. The deceased has met with an unnatural death in the house of the accused, therefore, if alibi of the accused is not proved then the burden under Section 106 of the Indian Evidence Act would be upon the accused to explain the circumstances leading to the unnatural death of the deceased.
39. In this case inquest was conducted after lodging the FIR by the Investigating Officer on 30.04.2014 from 02:00 to 02:25 a.m. in which the witnesses have opined that the deceased has died due to gunshot injury. There were blood stained injury above the left ear and three fingers above the navel. In the inquest crime number and sections are mentioned. The witnesses opined that the deceased had died due to gunshot which is also corroborated from the post mortem report. Inquest is not a substantive piece of evidence. The purpose of inquest is to ascertain prima facie, immediate cause of death. There is no need to mention the name of the accused or weapon used in commission of crime or name of the witnesses etc. Thus in this case it is found that the inquest has been done in accordance with rules.
40. On 30.04.2014 at 12:30 p.m. the post mortem commenced. In the evidence of PW-7 the description of the post mortem report has been mentioned. It is found that inquest report, post mortem report and the oral evidence corroborate each other. Hence, there is no need to discuss the post mortem report any further.
Witnesses
41. In this case PW-1, informant - Manohar Lal Suri is the father; PW-5, Monika Umesh Sirke is the elder sister; PW-8, Umesh Vishnu Sirke is brother-in-law; PW-9, Smt. Shakti Suri is the mother and PW-11, Sudhir Suri is brother of the deceased. Thus, they are the family members and relative of the deceased and informant. They all have supported the prosecution version and have adduced evidence regarding the maltreatment of the accused upon the deceased and killing by the accused using firearm. Except for the children of the deceased and accused, none else was present in the house. If the witnesses are the family members or relatives of the informant or the deceased and their evidence is cogent, truthful, reliable and free from any bias it can be relied upon after a careful and cautious scrutiny.
42. Apart from the above witnesses, PW-4, Kumari Anchita, daughter of the deceased and the accused and PW-13, Smt. Charu Suri, sister-in-law (bhabhi/nanad) of the deceased have also been examined. Evidence of these witnesses also has to be scrutinised as they are related to the accused and the deceased. It is admitted by both the parties that PW-4, Kumari Anchita, daughter of the deceased and accused was present in the house at the time of commission of crime. First of all, she was tested under Section 118 of the Indian Evidence Act and was declared to be competent witness and thereafter she was testified on oath. According to this witness the occurrence took place at 09:00 p.m. on 29.04.2014, half an hour after her father left for Delhi, Ravi uncle came and rang the bell; his mother opened the door; he sat in the drawing room; she was watching TV inside the house. They were talking and after sometime she heard that they were quarrelling. She turned down the volume of TV and heard Ravi uncle pressurising her mother to go with him. Her mother refused on the pretext that her husband was not in the house and children were alone. Thereafter, Ravi uncle started to use force. When her mother asked him to leave, he took out a small gun; frightened her mother started running towards bathroom and tried to close the door but before she could succeed, Ravi uncle fired at her and she fell down. She started weeping and crying. He threatened her not to inform anyone regarding his coming there. She went to the upper portion of the house and informed his younger sister that Ravi uncle had killed their mother. She went out of the house where Anil Singh and Sanjeev Pandey uncle met with her, she had informed all the things to them. They said that they were calling to the police station. As she was getting nervous by herself in the house, she remained sometime at the house of Anil Singh and Sanjeev Pandey. Next day when her maternal grandfather came, she told him the facts when he said that he was going to the police station. On 01.05.2014 at 04:00 a.m. her father came and she told all these things about her mother. Her father said that he was going to the police station but did not return.
43. The witness was declared hostile and was cross-examined by the prosecution but she remained intact and did not support the prosecution version. The lower court has not found this witness credible and has not accepted her evidence. This witness has admitted that she had come to court with her aunt (bua), Smt. Charu Suri, PW-13 and was living with her and her cousin brother, Rudransh. Thus, it is proved that she was under the pressure and command of Charu Suri who has also deposed against the prosecution and in support of her accused brother. It appears that this witness was persuaded that her mother had died and her father was alive but in jail, so if she did not give hostile statement, her life would be ruined and his father would be punished and there would be no one to look after and maintain her.
44. PW-13, Charu Suri, elder sister of the accused, has not supported the prosecution version. This witness has not accepted that accused used to torture and harass the deceased and would have wanted to get rid of her. She expressed ignorance that her brother had filed a petition for divorce. Further, she admitted that if it was so, even then her sister-in-law (bhabhi) used to live with her brother and children till the last moment. It is prosecution case that this witness had moved paper no.15-A/1 dated 05.05.2014 and affidavit of the same date before the SSP, Jhansi which are paper no.15-A/2 to 15-A/4. This witness had denied her signature on the application and the affidavit. This witness has been declared hostile and has been cross-examined by the prosecution. The aforesaid application and affidavit were prepared and signed by advocate, Janardan Vyas who has also identified this witness. The affidavit was notarised by advocate, Lala Ram Verma. This witness admits that there was no enmity or animosity with these two advocates. This witness admitted her signature on the application no.114-B Ex.Ka-17. This witness also accepted that she had come from the chamber of advocate, Ramesh Chandra Agrawal, the advocate of her brother (accused). Thus, it is proved that this witness has been supported by the counsel for the accused. This witness also admitted that some adjournment applications moved on her behalf were prepared and moved by the same advocate, Ramesh Chandra Agrawal. This witness admits that she had not made any complaint against the advocates regarding preparation of forged affidavit but she further deposed that only an application was moved in the court though no such application has been filed by this witness.
45. Under Section 73 of Indian Evidence Act the court has power to compare the signature, writing or seal with other admitted or proved signatures, writing or seal. The trial court compared the signatures available on paper no.15-A/4 with Ex.Ka-17 and observed that both the signatures have maximum similarity.
46. Thus, the lower court has concluded that paper nos.15-A/1 to 15-A/4 were prepared, signed and moved by this witness in which she admits that her brother had committed the offence.
47. In Bhagwan Jagannath Markad Vs. State of Maharashtra (2016) 10 SCC 537, Charanpal Vs. State of UP (2006) 6 SCC 662, State of Maharashtra Vs. Tulsi Ram Bhanu Das Kambla AIR 2007 SC 3042, Sucha Singh Vs. State of Punjab (2003) 7 SCC 643 and in so many other cases it is held that the testimony of a witness in a criminal case cannot be discarded merely because the witness is a relative or family member of the victim of the offence. In such cases the court has to adopt a careful and cautious approach in scrutinising the evidence of such witness and if the testimony of related witness is otherwise found credible, accused can be convicted on the basis of testimony of such related witness. Therefore, the evidence of father, mother, sister and brother of the deceased cannot be discarded on account of them being relatives of the deceased.
48. In Sucha Singh (supra) and Pooja Pal Vs. Union of India (2016) 3 SCC 135, Shyama Ghos Vs. State of West Bengal AIR 2012 SC 3539, G. Parshwanath Vs. State of Karnataka, AIR 2010 SC 2914 and in several other cases it is held that evidence of a hostile witness cannot be rejected outrightly. Both the parties are entitled to rely on such parts of his evidence which assists their cases. In this case, PW-4, Kumari Anchita, daughter of the deceased and the accused and PW-13, Smt. Charu Suri, sister of the accused have become hostile and have not supported the prosecution version. This witness has deposed at page-2 that on 29.04.2014 at 09:00 p.m. at the time of incident her father, mother, sister - Janhvi and she herself were present though after sometime her father went to Delhi by train. According to her, after half an hour Ravi uncle came and killed the deceased but no other person had seen Ravi before or after the incident, entering or exiting in the house of the accused. Those days CCTV cameras were often installed by several persons but no such video clip has been produced to establish the presence of Ravi before or after or at the time of incident at the relevant places. It is admitted fact that Ravi lives in Mumbai. Brother of the deceased namely Sudhir Suri and Ravi both are friends. Accused has not produced copy of the divorce petition to show that due to illicit relation of the deceased with Ravi, he had moved the petition for divorce. No submission of such ground nullifies the defence. Hence the ground taken by the accused and the hostile witnesses i.e. Kumari Anchita and Charu Suri. Statement in this regard under Section 313 CrPC is also not reliable. An independent police agency has investigated the case and has not found arrival of Ravi at Jhansi from Mumbai at the relevant date and time of the incidence.
49. At the time of deposition, PW-4, Kumari Anchita Talwar was living with her aunt (bua) - PW-13, Charu Suri, therefore, she had deposed in such manner. Being a child of tender age she could easily be convinced to give evidence in favour of her accused father. The conclusion is that the evidence of this witness cannot be read in favour of the defence but from the evidence of this witness it is established that the deceased was killed by gun shot at the alleged date and time and at the alleged place of occurrence, in the house of the accused.
50. PW-13, Charu Suri was not present on the place of occurrence and has denied that the accused rang her and informed her about killing of the deceased upon which she scolded him and informed her in-laws. From the evidence of her husband, PW-11, Sudhir Suri and from the recording produced in court it is established that the accused made a confessional statement on mobile to her and she had also conveyed this confessional statement of the accused to her in-laws. This witness had also moved an application paper no.15-A/2, 15-A/4 before the SSP, Jhansi in which she has admitted that the accused had killed the deceased. Later on she tried to retract but from the evidence of PW-14, Lala Ram Verma, notary advocate it is established that the alleged affidavit was executed by her with the help of advocate Sri Janardan Vyas and after signing the affidavit Ex.A-18/A19 produced before him by deponent Smt. Charu Suri she had sworn before him which was duly certified by him.
51. This witness has not produced the evidence independently but she was in contact of Sri Ramesh Chandra Agrawal, advocate for the accused. She used to visit his chamber and had come to court to adduce evidence from his chamber. Counsel for the accused had moved adjournment applications on different dates for her. Thus deposition against the prosecution and in favour of the accused is quite natural. More so, she left her husband and started living separately in Jhansi. In the changed circumstances this witness has not deposed in favour of the prosecution. Hence, her statement is not reliable, admissible and acceptable in favour of the defence.
52. In this case the deceased was the wife of the accused who was living in his house with her children. The incident had taken place inside the house. Therefore, Section 106 of Evidence Act is applicable. For ready reference Section 106 is reproduced as under:-
"106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."
53. This section is an exception to the burden of proving the fact by the prosecution.
54. In Sandeep Vs. State of UP, (2012) 6 SCC 107, Prithipal Singh Vs. State of Punjab, 2012 (76) ACC 680 (SC), Jagdish Vs. State of UP, 2009 (67) ACC 295 (SC) and State of Punjab Vs. Karnail Singh, 2003 (47) ACC 654 (SC) it was held that the law casts a duty on prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on prosecution is to lead such evidence which is capable of leading having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be comparatively of a lighter character. In view of Section 106 of Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its lies entirely upon the prosecution to offer any explanation.
55. In Joshinder Yadav Vs. State of Bihar, (2014) 4 SCC 42 it is held that where cruelty and harassment by husband or his relative eventually led to murder of bride by poisoning, circumstantial evidence established murder by poisoning even though viscera report from FSL was not brought on record but corroborative evidence of father and brother of deceased was found credible, it has been held by the Hon'ble Supreme Court that the attending circumstances led to irresistible conclusion of guilt of the accused persons as to how the body of the deceased was found in the river was within their special and personal knowledge but burden under Section 106 of the Evidence Act was not discharged by the accused persons and false explanation was given by them under Section 313 CrPC drawing adverse inference, the Hon'ble Supreme Court confirmed the conviction of the accused persons for the offences under Sections 302/149, 498-A, 201 IPC.
56. All the above judicial precedents and findings would be of no avail if accused succeeds in proving his alibi that he was not present on the spot at the alleged date and time of the occurrence. This fact is decided separately as under:-
(I) The accused has taken plea of alibi that on 29.04.2014 he had gone to Delhi for purchase of articles for his shop. The accused has examined two witnesses to prove his plea of alibi.
(II) DW-1, Mahendra Dubey has deposed that he has a shop in the name and style of Prakash Traders in Sadar Bazar, Jhansi. He is an A-Class Government Contractor and General Order Supplier. According to him, the accused is also an A-Class Government Contractor and Army Supplier. He sells motor parts in his shop. According to him on 29.04.2014 he had gone to Delhi and had left his house at 08:30 p.m. When he reached railway station and stood in the queue, Rishi Talwar came and provided money to purchase a ticket for Delhi. Hence, he purchased two tickets for Delhi. They both reached Nizamuddin Railway Station, Delhi by Southern Express and had breakfast in the waiting room, thereafter they left for Kashmiri Gate at around 09:30 a.m. There they both bought motor parts. Thereafter Rishi Talwar provided receipt and said that he had a meeting and requested to book his goods as well. Then he booked the articles on 01.05.2014 and returned Jhansi on 02.05.2014 where he came to know that Rishi Talwar has been sent to jail with regard to the murder of his wife. This witness has denied that he also looks after the business of the accused, but admitted that in the court room Charu Talwar was standing behind. He did not get any summon. He had come to testify at the behest of Charu. This witness admitted that he has had good business relations with Rishi and Charu for about 25 years. This witness had moved two adjournment applications written by Sri Ramesh Agrawal, advocate for the accused Rishi. Therefore, the prosecution argued that this witness was not deposing independently but was testifying in favour of the accused at the behest of the accused and his sister, Charu Suri with the help of his advocate. This witness admits that on 02.05.2014 he came to know that Rishi Talwar is in jail for the murder of his wife, Shweta. Even then he did not inform any police officer in writing that at the time of incident Rishi Talwar was with him in Delhi. After such deposition this witness himself said that he had told the S.O. Ram Bhajan Singh. This witness further deposed that after that, till date, he had not given in writing to any police officer that Rishi Talwar was with him that day. He had also not complained to higher authorities about the S.O. not taking cognizance. He had not given this information in writing or by post or personally to SSP, Jhansi.
(IV) The trial court has also cross-examined the witness in which he admitted that it is true that he used to come to the advocate for the accused due to business relation with the accused. On 30.04.2014 between 11:00 to 12:00 O'clock he and Rishi Talwar separated from each other till then neither of them had received information about the incident over phone. But this witness has further deposed that it seems strange that the husband was not even informed on the phone about the wife's murder but he cannot tell the reason for it. The accused had the opportunity to produce the shopkeeper from whose shop he had bought the goods but it was not done.
(V) DW-2, Anil Kumar Singh is the neighbour of the accused who has given evidence of good behaviour of the accused and that the accused and the deceased were living peacefully and they had not been seen fighting and quarrelling.
(VI) According to Section 53 of the Evidence Act in criminal proceedings, the fact that the accused is of a good character is relevant but if evidence of his good character is adduced then according to Section 54 of the Evidence Act, the evidence regarding bad character becomes relevant. From the evidence of prosecution witnesses it is proved that their matrimonial life was not good. Even on the day of occurrence the deceased was badly beaten several times by the accused, whereupon she had sought help from her parents. According to this witness on 29.04.2014 at about 10:30 p.m. he heard the scream of a girl. When he came out of his house Anchita and Janhvi met him and informed that Ravi uncle had shot their mother and also informed that their father had gone to Delhi. When he entered the house, the dead body of Shweta was lying there. Thereafter he rang Rishi Talwar.
(VII) If for the sake of argument the evidence of this witness is accepted, the accused was informed about the murder of his wife at about 10:30 p.m. Though in the cross-examination this witness tried to handle his point and said that he did not succeed in contacting the accused on mobile, if it was so, why it was not deposed in the examination-in-chief, is relevant. If accused was out of station and such incident had been caused by another person, this witness and the daughters were competent enough to inform the accused by telephone, mobile or from the telephone booth. It appears that in this regard evidence in cross-examination of the witness is not true. According to him, after half an hour police had reached on the spot. If the children had provided mobile number of the accused to this witness, the police was also competent enough to take the mobile phone from the children and would have talked with the accused. It means the children were also aware that the accused is the real culprit, hence there was no reason for them to inform him.
(VIII) This witness has also not seen Ravi at or nearby the place of occurrence. This witness also admits that one Sanjiv Pandey had also rung up the accused. Sanjiv Pandey has not been examined. Thus, if for the sake of argument it is accepted that on the date and time of occurrence the accused was on the way to Delhi then after coming to know such fact any husband would return to home immediately and would not go for business purposes. This all show that the evidence of this witness is also a bundle of lies. Thus, this Court is of the opinion that from the evidence of these two witnesses it is not established that at the time of occurrence the accused was out of station and was not in the house.
(IX) Both the defence witnesses are either worker in same trade or neighbours of the accused but their evidence did not succeed in passing the prescribed criteria of litmus test.
57. The learned trial court had pointed out the fact of the bail application in which the accused has confessed that in the night of 29.04.2014 he was at the house. In the night some unknown person entered his house and killed his wife. Thus, the accused has accepted his presence at the time of the incident. In paragraph 10 of the bail application he has mentioned that he was at his house at the time of incident and after lodging the FIR on 30.04.2014, he was arrested showing false arrest on 01.05.2014, fake revolver and cartridges were shown to be recovered from his possession. The accused has also tried to falsely implicate Ravi in commission of murder of the deceased. If really he would have gone to Delhi, the plea of alibi would have been mentioned in the bail application.
58. Thus, from the averments of the bail application it is crystal clear that later on after taking legal assistance, the accused created a concocted story that before the murder of the deceased he had left Jhansi and had gone to Delhi. In this regard, his unnatural and unexpectable behaviour has already been discussed and it has been concluded that he had not gone to Delhi. From such written confession it is also established that PW-4 Kumari Anchita Talwar, PW-13, Smt. Charu Suri and DW-1 and DW-2 have given a false statement knowing it to be false and tried their best to misguide the court for which they should have been tried for giving false evidence under Chapter X and XI of the IPC.
59. Under Section 11 of the Evidence Act the plea of alibi is enumerated. Section 11 reads as under:-
"11. When facts not otherwise relevant become relevant.--Facts not otherwise relevant are relevant--(1) if they are inconsistent with any fact in issue or relevant fact;
(2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.
Illustrations
(a) The question is, whether A committed a crime at Calcutta on a certain day. The fact that, on that day, A was at Lahore is relevant. The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant.
(b) The question is, whether A committed a crime. The circumstances are such that the crime must have been committed either by A, B, C or D, every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D, is relevant."
60. In Binay Kumar Singh Vs. State of Bihar, AIR 1997 SC 322 it was held that when the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the Court would be slow to believe any counter evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. In such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi.
61. The question arises as to whether the statement of the deceased to her parents on phone/mobile is admissible under Sections 6 and 32(i) of the Evidence Act or not. For ready reference Section 6 reads as under:-
"6. Relevancy of facts forming part of same transaction.--Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
Illustrations
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact."
62. In State of UP Vs. Bashisht Rai and others, 2006 (5) ALJ (NOC) 902 (All) it was held that for application of Section 6, it is necessary that fact must not be too remote but a part of single transaction. Whatever is stated by eye-witness to murder immediately after incident as to participation of accused would be res gastae evidence, same would be admissible in evidence under Section 6.
63. In Gentela Vijayavardhan Rao and another Vs State Of Andhra Pradesh, AIR 1996 SC 2791 it was held that the essence of the doctrine of res gestae is that the fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible under Section 6 is on account of the spontaneity and immediacy of such statement or fact in relation to fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication of the statement is not a part of res gestae.
64. In Mukesh Vs. State of NCT of Delhi and others, AIR 2017 SC 2161 (Three Judge Bench) and Sandeep Vs. State of UP, (2012) 6 SCC 107 it was held that the burden of proving the plea of alibi lies upon the accused. If the accused has not adequately discharged the burden, the prosecution version which was otherwise plausible as, therefore, is to be believed.
65. In Om Prakash Vs. State of Rajasthan and another (2012) 5 SCC 201 it was held that plea of alibi has to be raised at the first instance and is subject to strict proof of evidence and cannot be allowed lightly, in spite of lack of evidence merely with the aid of principle that an innocent man may not have to suffer injustice by recording conviction in accordance of his plea of alibi. On similar facts in Adalat Pandit Vs. State of Bihar, (2010) 6 SCC 469 it was held that where in a murder trial, the place of alibi not being far, witnesses being colleagues and there being no proper documentary evidence regarding alleged levy work during time of commission of crime, it has been held that the plea of alibi was rightly rejected.
66. Earlier the prosecution witnesses, PW-1, informant father of the deceased, PW-5, Monika, PW-8, Umesh, PW-9, Smt. Shakti Suri and PW-11, Sudhir Suri have successfully proved that before the incident, the deceased was badly beaten by the accused therefore she contacted her parents through mobile/telephone on which they assured to come and get her with her children.
67. According to this Court, such statement was part of the same transaction, therefore, the conversation made by the deceased before the incident and conversation made by PW-13, Charu Suri after the murder of the deceased are relevant and admissible in evidence.
68. According to this Court, the conversation of the deceased with the aforesaid witnesses is also relevant under Section 32(1) of the Evidence Act. Section 32(1) reads as under:-
"32 Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.--Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:--
1. when it relates to cause of death.--When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements 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.
x x x x x Illustrations
(a) The question is, whether A was murdered by B; or A dies of injuries received in a transaction in the course of which she was ravished. The question is, whether she was ravished by B; or The question is, whether A was killed by B under such circumstances that a suit would lie against B by A's widow. Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape, and the actionable wrong under consideration, are relevant facts."
69. In Madan Vs. State of Maharashtra, AIR 2018 SC 2007 it was held that dying declaration is an exception to rule against admissibility of hearsay evidence.
70. Though hearsay evidence is not admissible in evidence but in the event the victim dies, his previous statements to any living person become relevant and admissible in evidence under Section 32(1) of The Indian Evidence Act if it relates to the cause of his death. If he had made any statement in this regard the same can be taken into consideration. The statement would be relevant in every case or proceeding in which the cause of death of that person is in issue. In Indian Law it is not necessary that the person who made any declaration was actually expecting an assault which would kill him. It is, therefore, unlike the English Law (see Sharad Birdichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622). In Bhagirath Vs. State of Haryana (1977) 1 SCC 481, Supreme Court held that if the declarant has in fact died and the statement explains the circumstances surrounding his death, the statement will be relevant even if no cause of death was stated at the time of the making of the statement.
71. In Pakla Narayan Swami Vs. Emperor AIR 1939 Privy Council 47, the accused appealed to the Privy Council on the ground that the statement of the deceased to his wife that ''he was going to the accused' was wrongly admitted under Section 32(1) and that the statement of the accused to the police that the deceased arrived at his place was admittedly in violation of Section 162 CrPC. Lord Etkin and other Lordships were of the opinion that the natural meaning of the word ''used' do not convey any of these limitations. The statement may be made before the cause of death had arisen or before the deceased had any reason to anticipate his murder. The circumstances must be circumstances of the same transaction; general expression including fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death would not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or any such statement which might give reasons for so proceeding, would be "circumstances" in the same transaction and would be so whether the person was known or was unknown to the accused. "Circumstances of the same transaction" is a phrase which no doubt conveys some limitation. It cannot be analogous to the term "circumstantial evidence", which includes evidence of all relevant facts. It is on the other hand narrower than "res gestae." Circumstances must have proximate relations to the actual occurrence.
72. If we compare the fact of the case in hand with the facts of the case of Pakla Naraya Swami (supra) we find many number of similarities. In this case it is proved from the evidence of PW-1, PW-5, PW-8, PW-9 and PW-11 that on 28.04.2014 at about 08:00 p.m. deceased informed on the telephone that Rishi had beaten her badly and it was continuing for 3-4 days. Again at about 11-12 p.m. she made a call and told that Rishi was still beating her and she said that "papa take her away and her children from there otherwise Rishi would kill them". On this, he told the deceased to come in the morning. In this case such statement of the deceased in the aforementioned circumstances are also admissible under Section 32(1) of the Indian Evidence Act and on this score also the accused is liable to be convicted and sentenced.
73. Burden of proof always lies on the prosecution: The concept of proof beyond the shadow of doubt is to be applied in criminal trials. Doubts would be called reasonable if they are free from zest for abstract speculation or free from an over-emotional response. Doubts must be actual and substantial as to the guilt of the accused persons arsing from the evidence from the lack of it as opposed to mere vague apprehension. A reasonable doubt is not an imaginary, trivial or a mere possible doubt, but a fair doubt based on reason and common sense. It must grow out of the evidence (vide State of M.P. Vs. Dharkole, AIR 2005 SC 44.)
74. In criminal cases burden of proof lies on the prosecution to prove that the accused is guilty of the crime with which he is charged. The prosecution asserts the affirmative of the issue and, therefore, has to prove its case. The Court starts with the presumption that the accused is innocent. The innocence of the accused means nothing more than this that burden lies on the prosecution to prove the case beyond reasonable doubt, it is not the accused who has to satisfy the Court that he is innocent. If there is reasonable doubt as to whether the accused killed the deceased the prosecution has not made out the case, the accused is entitled to an acquittal. More serious the crime more strict proof is required. (Refer: Paramjeet Singh Vs. State of Uttrakhand, AIR 2011 SC 200).
75. In Narain Singh Vs. State of Haryana (2004) 13 SCC 264, Babulal Vs. State of MP (2003) 12 SCC 490 and Sharda Vs. State of Rajasthan 2010 (68) ACC 274 (SC) it was held that a dying declaration made by a person on the verge of his death has a special sanctity as at that solemn moment a person is most unlikely to make any untrue statement. The shadow of impending death is by itself guarantee of the truth of the statement of the deceased regarding the circumstances leading to his death. But at the same time the dying declaration like any other evidence has to be tested on the touchstone of credibility to be acceptable. It is more so, as the accused does not get an opportunity of questioning veracity of the statement by cross-examination. The dying declaration, if found reliable can form the base of conviction. A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. The mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death of not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is "a man will not meet his Maker with a lie in his mount" (nemo moriturus praesumitur mentire). Matthew Arnold said, "truth sits on the lips of a dying man". The general principle on whch the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and mind induced by the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.
76. Though in this case there is no formal dying declaration as no dying declaration of the deceased has been recorded by any of the persons or the authorities but when she was beaten badly by the accused and was seriously injured and when she rang to her parents who advised her to go to the upper portion of the house to save her life and they would come tomorrow and will take her back, such conversation which was made by the deceased in fear of her life can be very well treated as dying declaration to her parents. This finding finds support from the principle laid down by the Supreme Court in Mukesh Vs. State (NCT) of Delhi and others, AIR 2017 SC 2161 (Three Judge Bench) in which it was held that dying declaration by gestures and writing is admissible. Such dying declaration is not only admissible but possesses evidentiary value. Further, in Laxman Vs. State of Maharashtra (2002) 6 SCC 710 (Five Judge Bench) and in Balvir Singh Vs. State of Punjab AIR 2006 SC 3221 it was held that recording of dying declaration by Magistrate is not mandatory and the same can be recorded by any of the persons. In Laxman Vs. State of Maharashtra (supra) it was held that no statutory form for recording dying declaration is necessary. A dying declaration can be made verbally or in writing and by any method of communication like signs, words or otherwise provided, indication is positive and definite. A dying declaration can be made by the declarant even verbally. Reducing the dying declaration to writing is not mandatory.
77. In Narendra Kumar Vs. State (NCT) of Delhi, AIR 2016 SC 150 it was held that where dying declaration recorded under Section 32 of the Evidence Act did not contain signature or thumb impression of the deceased and alleged to be in violation of the guidelines issued by the Delhi High Court, it has been held that defect in following guidelines is of trivial in nature. Whole of dying declaration otherwise proved by ample evidence cannot be rejected.
78. Thus, the information given by the deceased before her death about the offensive conduct of the accused would be treated as dying declaration as just after delivery of such information she was killed by the accused.
79. According to prosecution, after commission of crime the accused informed his sister PW-13, Charu Suri and narrated the whole story as to how he killed the deceased. It was conveyed by PW-13, Charu Suri to her in-laws and they were insisted to go to Jhansi and in this regard following evidences are again discussed:-
(I) In written complaint it is mentioned that on 29.04.2014 at 04:45 a.m. Smt. Asha Talwar, mother of the accused made a missed call on his mobile and after sometime when he called back, her phone was switched off. At 11:00 a.m. his daughter-in-law, Charu Suri (PW-13), sister of the accused rang and informed that Rishi Talwar has killed Shweta by shooting her. Though PW-13, Charu Suri has refused and accused Rishi Talwar has also refused to have made such extra judicial confession to Charu Suri but from the electronic evidence and from the evidence of PW-11, Sudhir Suri it is proved that in first recording Rishi Talwar told his sister, Charu Suri that he had killed his wife, Shweta Talwar by shooting her and her dead body was in the house. Second recording proves that Charu Suri and her sister, Neeru Sahai and mother-in-law of the witness Asha Talwar had a conversation about the murder of the deceased in which Charu Suri informs Neeru that their brother Rishi Talwar had shot Shweta Talwar dead. In this conversation Asha Talwar had also confirmed this fact to Neeru. The extra judicial confession made by the accused to her sister and mother is being confirmed by the electronic evidence. The defence was free to get the electronic evidence and device tested by any of the recognized institute if they had doubts about concoction of the false evidence by PW-11, Sudhir Suri but it has not been done and the court has accepted the evidence under Section 65-B of the Evidence Act. Electronic evidence and the oral evidence produced by PW-11, Sudhir Suri is admissible in evidence and it has also been established that the accused has made an extra judicial confession of his guilt to her sisters and mother.
(II) In this case there is no variation in ocular and medical evidence though there is no eye-witness of the evidence. PW-4, Kumari Anchita Talwar who is said to have been present on the place of occurrence has not supported the prosecution but the electronic evidence produced by PW-11, circumstantial evidence and confessional statement made by the accused establishes that the deceased was killed by gun-shot which has also been confirmed in post mortem report and the inquest as well. Therefore, there is no contradiction or variation between the medical evidence and the other evidence. Even the defence also admits that the deceased was killed by gun-shot.
(III) According to learned counsel for the appellant no true recovery of the alleged weapon has been made from the accused and his arrest is false. When he went to the police station to lodge the FIR, he was arrested and was shown to be arrested while locking the gate.
(IV) As per Ex.Ka-5, chik FIR Ex.Ka-8 and statement of the I.O, on 01.05.2014 the accused was arrested when he was locking the gate of the house at about 07:30 a.m. and a country-made pistol of 32 bore upon which "MADE IN USA No.405" and on the barrel "OMEY ARMY SUPPLY" was written, alongwith two live cartridges were recovered. On being asked by the I.O. the accused admitted that he had killed his wife on the night of 29.04.2014 from this pistol. It was sealed on spot. The recovery memo was properly prepared and signed by the witnesses.
(V) Ex.Ka-3, recovery memo of two empty cartridges of 32 bore were also recovered from the spot. In this regard FSL Report 86-A/3 is admissible in evidence under Section 293 CrPC from which it is established that the two empty cartridges recovered from the place of occurrence were executed by the country-made pistol recovered from the possession of the accused. In this regard witnesses PW-2, Kamal Raj and PW-3, Azhar Khan have been declared hostile but in this regard the trial court has relied on the case in Govindaraju @ Govinda Vs. State through Srirampuram P.S. and another, AIR 2012 SC 1292 in which it was held that any recovery by the police personnel would not be taken as doubtful in absence of gross infirmity in the evidence of such police personnel.
(VI) The Investigating Officer, PW-10, Ram Bhajan Singh has proved the recovery. He had no enmity with the accused and the FSL Report has also proved that the empty cartridges found on the place of occurrence were shot from the country-made pistol recovered from the possession of the accused. Defence witnesses have admitted that the accused was an A-class army material supplier hence such a fire-arm could be easily available to him. Thus, there is no doubt that the fire arm and live cartridges were not recovered from the possession of the accused or it would have been planted with the accused to falsely implicate him.
(VII) On the basis of the above discussion it is concluded that the relations between the accused and the deceased were not cordial but the deceased was living with the accused for the sake of the future of her children. The deceased was always subjected to cruelty by the accused about which she used to inform her parents. Before this fateful incident she was badly beaten by the accused and was advised by her parents to go to the upper portion of the house to save her life but she could not succeed in it and was killed by the accused. If the deceased would have been killed by another person then the accused could have also received some injuries in the course of firing or saving the life of the deceased as it has been established that he was not out of the house on the date and time of the incident. Further, the empty cartridges fallen on the floor also matched with the fire-arm recovered from the possession of the accused. If the police would have falsely implicated him, certainly there would have been some variation in matching of the cartridges with the recovered fire-arm. Further the accused made an extra judicial confession to his sister Charu Suri and his mother which was recorded with the assistance of electronic device by PW-11, Sudhir Suri. Not making any hue and cry, not lodging any FIR, not informing the in-laws about the murder of the deceased by the accused are also some important points which indicate that none else except the accused had committed the offence and he was thinking to disappear and hide the dead body of the deceased and other incriminating materials from the spot in which he could not succeed.
(VIII) When it is proved that testimony of PW-4, Kumari Anchita Talwar is not correct and she had not supported the prosecution, therefore, this case remains a case based on the circumstantial evidence.
80. It is a case based on circumstantial evidence. None else has seen the commission of crime but the witnesses are not inimical to the accused persons.
81. In cases Nathiya Vs. State (2016) 10 SCC 298, Bhim Singh Vs. State of Uttarakhand (2015) 4 SCC 281 (para 23), Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 (paras 120 and 121), State of West Bengal Vs. Dipak Halder, (2009) 7 SCC (Three Judge Bench) the Supreme Court has laid down the following principles regarding cases based on circumstantial evidence:
(i) The circumstance from which the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established;
(ii) 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;
(iii) the circumstances should conclusive in nature and tendency;
(iv) they should exclude every possible hypothesis except the one to be proved; and
(v) 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 be so that in all human probability the act must have been done by the accused.
82. In Bhim Singh (supra) it was held that when the conclusion is to be based on circumstantial evidence solely, then there should not be any snap in the chain of circumstances.
83. In State of Goa Vs. Pandurang Mohite, AIR 2009 SC 1066 and in State of U.P. Vs. Satish, (2005) 3 SCC 114 the Supreme Court held that circumstances of "last seen together" do not by themselves and necessarily lead to the inference that it was accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. The time gap between last seen alive and the recovery of dead body must be so small that the possibility of any person other than the accused being the author of the crime becomes impossible.
84. In Rohtash Kumar Vs. State of Haryana, 2013 (82) ACC 401 (SC) (para 25) and in Prithipal Singh Vs. State of Punjab, (2012) 1 SCC 10 the Supreme Court held that if it is established that victim and the accused were lastly seen together then the burden of proof shifts on the accused requiring him to explain how the incident had occurred. Failure on the part of the accused to furnish any explanation in this regard would give rise to a very strong presumption against him.
85. In Ashok Vs. State of Maharashtra, (2015) 4 SCC 393 the Supreme Court held that initial burden of proof is on the prosecution to adduce sufficient evidence pointing towards the guilt of the accused. However, in case it is established that accused was last seen together with the deceased, prosecution is exempted to prove exactly as to what happened in the incident as the accused himself would have special knowledge of the incident and would have the burden of proof on himself as per Section 106 of the Evidence Act. But last seen together itself is not a conclusive proof. Along with other circumstances surrounding the incident like relations between accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from accused etc, non-explanation of death of deceased, etc. may lead to a presumption of guilt of the accused.
86. Learned counsel for the appellant has relied upon the following judicial precedents:-
(I) In Jai Prakash Tiwari Vs. State of Madhya Pradesh, 2017 SCC Online MP 2329 there was no firearm injury caused to the victim. Her mother was not found to be eye-witness of the incident. There was no ballistic report to clearly connect the seized weapon in the alleged incident. The complaint had already been registered in another criminal case against the accused appellant in which he had already been acquitted. The defence was dealt with by the trial court in cursory manner. Hence the order of conviction and sentence was set aside. Facts of above noted case are quite different from the facts of the case in hand. Hence the principle laid down by the learned counsel for the appellant does not apply in favour of the appellant.
(II) In Shivaji Chintappa Patil Vs. State of Maharashtra, 2008 SCC Online Bom 1859 it was held that the cause of death was cardiac respiratory arrest due to asphyxia as a result of hanging. The post mortem report was signed with inordinate delay by almost three months. Motive was not proved and the chain of events was not found intact. Facts of the cited case and evidence adduced by the prosecution are totally different from the case in hand. Hence the principle laid down in the aforesaid case cannot be applied in favour of the appellant.
(III) In Pramila Vs. The State of Uttar Pradesh, Criminal Appeal No.700 of 2021, decided on 28.07.2021 it was held that the PW-2 child witness was relied on and the conviction was held but in this case PW-4, Anchita Talwar has not supported the prosecution version. The Supreme Court here had referred the case of State of MP Vs. Ramesh, (2011) 4 SCC 786 in which it was held that the evidence of a child witness must be evaluated more carefully with the greater circumspection because he is susceptible to tutoring. In the case at hand it is proved that the child witness PW-4, Anchita Talwar was living with her aunt (bua) who had also left the house of the husband and was living in her maika at Jhansi with the children of the accused, therefore, there was a high possibility that the PW-4 would have been tutored and in that case the court can reject such statement partly or fully. In the cited case the appellant was not directly connected with the deceased as she was the wife of another brother of the husband of the deceased. It is not a case in which facts like stuffed cloth would have to be in the mouth of the deceased but it was a murder caused by two gun-shots. The post mortem report was not found in consonance with the prosecution case and story. Hence giving benefit of doubt the appellant was acquitted. Comparing from the facts and evidences adduced in both the cases it is concluded that due to several variation on account of facts and evidences in both the cases the principle laid down in the aforesaid case cannot be applied in the instant case.
(IV) In Ravinder Singh @ Kuku Vs. State of Punjab, 2022 Live Law (SC) 461 it was held that the certificate under Section 65-B(4) is a mandatory requirement for production of electronic evidence. It was also held that oral evidence in place of such certificate cannot be possibly suffixed. It was also held that in cases based on circumstantial evidence from the circumstances and inference as to the guilt of the accused have to be proved beyond reasonable doubt and have to be shown to be closely related with the principal facts sought to be inferred from those circumstances. In the present case a CD was kept in safe custody of the court which was played by the witness PW-11, Sudhir Suri in laptop about which he deposed that he had uploaded the CD from google account in which phone and SMS of his wife Charu Suri are recorded and saved. He also provided the bill of purchase of admin software. It is true that no such certificate has been obtained. More so, if the electronic evidence produced by PW-11 is thrown away even then the sufficient material is available on the record to prove the chain of the circumstantial evidence against the accused appellant beyond all reasonable doubts. Section 65-B(4) of the Indian Evidence Act is as under:-
"65B. Admissibility of electronic records.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,--
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it."
87. In this regard the trial court has concluded that PW-11, Sudhir Suri purchased the software in April, 2012. A copy of the bill regarding purchase of said software has been filed by this witness as Ex.Ka-16 from which it is clear that the software was licenced. Thereafter all the conversations made in the phone of Smt. Charu Suri were saved in google account as call recording, which according to this witness are still saved in his Email ID. The witness has clarified that he had made CD by downloading it from the google account and the CD was played in the court. The conversation that took place is the same conversation which he had heard on his google account.
88. Raising a question mark on the admissibility of this electronic evidence, it has been argued that in compliance of Section 65-B of the Act, no certificate has been obtained from the producer of the CD regarding the process of its making and its genuineness. This aspect has been noticed by the court. The conversation saved in the CD automatically available in the form of recording in google account under the effect of an admin software by the witness PW-11, Sudhir Suri may be treated as primary evidence and in that case the requirement of certificate under Section 65-B of the Act does not remain.
89. The trial court has relied on Vikram Singh @ Vicky Walia and another Vs. State of Punjab and another, AIR 2017 SC 3227 in which while interpreting Section 65-B in a case related to kidnapping and extortion, the Apex Court had determined that tape recorded conversation is not a secondary evidence and for that the desired certificate is not required under Section 65-B and there is no need to comply with Section 65-B when an electronic evidence is produced in the court as primary evidence. Further, the trial court was also of the opinion that since the CD pertains to such a conversation which has been downloaded through a licenced software, there is not even an iota of doubt about the genuineness of the conversation present in this CD.
90. It is also noteworthy that Smt. Charu Suri, sister of the accused examined as PW-13, has admitted in her evidence that on the day when the statement of her husband i.e. Sudhir Suri, PW-11 was recorded, she had also come to the court and she has no doubt that her husband used to tape her phone. Thus, it is evident that the genuineness of the above CD played in the Court in presence of Smt. Charu Suri was not denied at any stage either in her evidence or by giving any application. No demand of voice test to match her voice was made either by her or by the accused in the defence. Thus, the conversation present in the said CD is admissible in evidence.
91. The trial court further concluded that considering the relevance of this first recording in evidence, the position is clear before the court that this conversation can be considered as extra judicial confession of the accused, the alleged confession of the accused has taken place before Charu Suri, would have formally proved it in the court by her own evidence. But the court is of the opinion that since the conversation between the accused and his sister after the incident in question has happened in the form of natural expression of the incident, this conversation would certainly be considered relevant in evidence under Section 6 of the Indian Evidence Act. In this respect the learned trial court has relied on State of Maharashtra Vs. Kamal Ahmad Mohammad Vakil Ansari and others, 2013 CrLJ 2069.
92. The trial court has referred the citation State (NCT) of Delhi Vs. Navjot Sandhu @ Afsan Guru (2005) SCC (Crl) 1715 (known as parliament attack case) which has been overruled by the judgment in Anvar P.V. Vs. P.K. Basheer, (2014) 10 SCC 473 (three-Judge Bench) in which it has been ruled that under Section 65B(4) certificate is necessary for admissibility of the secondary evidence. In this case PW-13 has accepted that she had no doubt that her husband was taping her phone. This statement confirms that her statement was recorded by her husband, Sudhir Suri, PW-11.
93. At this stage it is necessary to describe the relevant law in relation to the electronic records. Section 65B(4) of the Evidence Act is as under:-
"(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,--(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it."
94. In State of UP Vs. Ajai Kumar Sharma, 2016 (92) ACC 981 (SC) (para 14) it is laid down that a "Compact Disk" is a "document" on which admission and denial may be made by both the parties or their advocates.
95. In Mukesh Vs. State (NCT) of Delhi and others, AIR 2017 SC 2161 (three-Judge Bench) Computer Cell Expert revealed no tampering or editing of the CCTV footage. It was held to be admissible under Section 65B of the Evidence Act.
96. Under Section 3(2) of the Evidence Act electronic records are the documents and they are relevant and admissible under Sections 17, 22A, 34, 35, 39, 45A, 47-A, 59, 65-A, 65-B, 67-A, 73-A, 81-A, 85-A, 85-B, 85-C, 88, 88-A, 90-A and 131 of the Evidence Act.
97. In R.M. Malkani Vs. State of Maharashtra, AIR 1973 SC 157 and in Ram Singh and others Vs. Col. Ram Singh, 1985 (Supp) SCC 616 and the State (NCT) of Delhi (supra) it is held that the relevant conversation recorded in the tape recorder is admissible in evidence.
98. In Anvar (supra) and Harpal Singh Vs. State of Punjab, (2017) 1 SCC 734 the Apex Court held that proof of electronic record is a special proviso introduced under the Evidence Act. The very caption of Section 65A of the Evidence Act, read with Sections 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete Code in itself. Being a special law, the general law on secondary evidence under Sections 63 and 65 has to yield. An electronic record by way of secondary evidence therefore shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc. the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which the secondary evidence pertaining to that electronic record, is inadmissible.
99. In Vikram Singh Vs. State of Punjab, (2017) 8 SCC 518, the original tape recorded conversation of ransom calls was handed over to the police, it has been held that the original tape record was primary evidence, therefore certificate under Section 65B of the Evidence Act was not required for its admissibility. Such certificate is mandatory only for secondary evidence and not for the primary evidence.
100. In State by Karnataka Lokayukt P.S. Bengaluru Vs. M.R. Hiremath, 2019 0 Supreme 590 (SC) it is held that the certificate under Section 65B is sought to be produced in evidence at the trial, not at the stage of framing of charge.
101. In Arjun Panditrao Kholkar Vs. Kailash Kushanrao Gorantyal and others, AIR 2020 SC 4908 (three-Judge Bench) it has been held that certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record. Oral evidence in the place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law. Section 65B(4) clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose. The requisite certificate in sub-section (4) of Sections 65B is unncessary 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' 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).
102. In Mohammad Arif @ Ashfaq Vs. State (NCT) of Delhi, 2022 0 Supreme (SC) 1113 (three-Judge Bench) the Apex Court discussed the judgment of Navjot Sandhu (supra) and Anvar (supra) and other pronouncements and held that ''it must now be taken to have been settled that the decision of this Court in Anvar P.V. (supra) as clarified in Arjun Panditrao (supra) is the law declared on Section 65B of the Evidence Act. In para 22, the reference of the judgment of Arjun Panditrao (supra) has been given which is as under:-
"73. The reference is thus answered by stating that:
73.1. Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, as clarified by us hereinabove, is the law declared by this Court on Section 65-B of the Evidence Act. The judgment in Tomaso Bruno v. State of U.P., (2015) 7 SCC 178, being per incuriam, does not lay down the law correctly. Also, the judgment in Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801 and the judgment dated 3-4-2018 reported as Shafhi Mohd. v. State of H.P., (2018) 5 SCC 311s, do not lay down the law correctly and are therefore overruled.
73.2. The clarification referred to above is that the required certificate under Section 65-B(4) is unnecessary if the original document itself is produced. 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. In cases 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). The last sentence in para 24 in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 which reads as "... if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act ..." is thus clarified; it is to be read without the words "under Section 62 of the Evidence Act,...". With this clarification, the law stated in para 24 of Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 does not need to be revisited.
73.3. The general directions issued in para 64 (supra) shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage. These directions shall apply in all proceedings, till rules and directions under Section 67-C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers."
103. On the basis of above whether it cannot be said that the evidence produced by PW-11, Sudhir Suri is the original and primary document for which no certificate under Section 65B(4) was necessary.
104. Reaching of deceased's parents, brother, sister and brother-in-law immediately after the incident from the different parts of India proves that the deceased had given all the alleged information over the phone to her parents before her death. Neither it is the case of the prosecution nor of the defence that someone else had given this information to the parents of the deceased. Thus the information given by the deceased to her parents soon before her death would be deemed to have been admitted under Section 6 and Section 32(1) of the Evidence Act. Therefore, even if the statement recorded by PW-11, Sudhir Suri is not considered, the information given by the deceased would be considered to be sufficient evidence to convict the accused.
105. In Kalloo @ Kalyan Singh Vs. State of UP, Criminal Appeal No.1459 of 2009 (AHC, DB) decided on 11.07.2022 it was held that where the accused husband had gone to see Ramleela along with his two children when he came back he found his wife dead. In the cited case PW-1, PW-2, PW-6, PW-7, PW-8, PW-9 and PW-13 were declared hostile. The chain of the circumstantial evidence was not found intact and unbroken but in the case in hand it is not so. Hence, the principle laid down is not applicable in the present case.
106. In this case all the chains of the circumstantial evidence are attached with each other. Motive that there was no cordial relation between the wife and the husband and the accused wanted to get a decree of divorce, presence of the accused admitted by him in his bail application, proof that accused was present in the house where deceased was killed, that the deceased had communicated the torture, beating and ill-treatment soon before her death to her parents, extra judicial confession made by the accused to his sisters and mother, recovery of weapon which has matched with the empty cartridges found on the spot, presence of the accused and the deceased together in the house, failure of the accused to prove the plea of alibi are the chains of the circumstances which are intact and unbroken. Thus, the evidence adduced in this case also meets the criteria propounded in the cases based on circumstantial evidence.
107. On the basis of above discussion, this Court is also of the opinion that the impugned judgment and order of conviction and sentence passed by the ASJ/FTC, Court No.2 Jhansi dated 11.10.2017 is factually and legally correct and lawful and is not liable to be interfered.
108. The appeal has no force and is liable to be dismissed. Accordingly, the appeal is dismissed.
109. Let the record of the lower court be sent back to the court concerned along with a copy of this judgment.
Order Date :- 01.03.2023 Shahroz (Umesh Chandra Sharma,J.) (Anjani Kumar Mishra,J.)