Indian Kanoon - Search engine for Indian Law

15. The evidence of PW - 2 [Chandraprakash Jalindar Pawar], who was the brother of PW - 1 [Shashank Jalindar Pawar], shows that, when he was telephonically informed by the brother-in-law of the Deceased on 25/01/2018 that, the Deceased suffered heart attack and asked them to reach, he contacted PW - 1 [Shashank Jalindar Pawar] on the phone and he along with PW - 1 [Shashank Jalindar Pawar], PW - 3 [Vrundawani Shashank Pawar] and others proceeded towards Yermala. His evidence nowhere shows that, PW - 1 [Shashank Jalindar Pawar] informed him about the Oral Dying Declaration made by the Deceased. His evidence shows that, when they reached the Suvidha Hospital at Barshi, the persons residing in the neighbourhood of the Deceased told him that, the Appellant fred bullet on the Deceased. The said evidence in respect of the neighbourers informing him that the Appellant fred bullet on the Deceased was an omission in his previous statement and also hearsay evidence. His cross-examination shows that, during the Inquest, the Police from Barshi asked him whether he had any complaint in respect of death of his niece. His evidence is of no assistance to the Prosecution to prove the circumstance of Oral Dying Declaration and nowhere corroborates the testimony of PW - 1 [Shashank Jalindar Pawar].

19. In view of the above discussion, the circumstance of the Oral Dying Declaration is not conclusively proved by the Prosecution.

17 Criappeal-698-2023.odt [iii] Use of frearm from the close range

20. It is submitted by the learned Advocate for the Appellant that, the Prosecution relied on the evidence of Ballistic Expert to show that, the bullet was fred from the close range. The evidence of Ballistic Expert, who is examined as PW - 7 [Urvi Pramod Mhasilkar], shows that, for the frst time, she deposed before the Court that, the weapon was fred from the close range and there is no explanation to support the said fndings. The manual, which the said Ballistic Expert relied, was not brought on record by the Prosecution. Some of the questions referred by the Investigating Offcer to the Ballistic Expert in respect of the use of frearm were not replied by the Ballistic Expert and deposed that, the answers to the said questions were in the form of CA reports. As the Investigating Offcer also sent the questionnaires to the Medical Offcer in respect of distance, from which, the bullet was fred, putting questions by the defence to the Medical Offcer in respect of distance of use of frearm cannot be said to be unwarranted. There is nothing to show that, the Ballistic Expert was having suffcient experience as she was young by age. The Ballistic Expert agrees with the principle of Dr. Reddy's Medical Jurisprudence in respect of the distance which comes within the close range. The evidence of Ballistic Expert is insuffcient to prove that, the bullet was fred from the short distance.

21. On the other hand, it is submitted by the learned Addl. P. P. for Respondent No.1 - State and learned Advocate for Respondent No.2 that, the evidence of Ballistic Expert corroborated by the CA reports and the cause of death clearly established that, the bullet was fred from the close range. Though the Medical Offcer, who performed the Postmortem, in 19 Criappeal-698-2023.odt the cross-examination, deposed that, the injuries mentioned in the Postmortem were possible if the frearm was used from the point-blank range, it would not affect the evidence of Ballistic Expert. Nothing has come in the evidence of Ballistic Expert that, the bullet was fred from the point-blank range. The Medical Offcer declined that, it was the case of suicide and his evidence that, it was Homicidal Death remained unshaken.

43. If we see the Charge for the offence punishable under Section 201 of IPC, it was in respect of causing disappearance of bullet fred from the service revolver and not for any other acts. It was not for deletion of calls from the mobile. As seen from the evidence available on record, the landlord and landlady went to the house of the Appellant soon after they heard the sound and cry of the Appellant and after they knocked the door and went inside, they noticed that, the Appellant was standing. Not fnding of the fred bullet on the spot of incident will not itself lead to the inference that, the Appellant caused disappearance of the fred bullet. In absence of clear evidence to attract the essential ingredients for the offence punishable under Section 201 of IPC, we are of the view that, the conviction for the offence punishable under Section 201 of IPC would be unsustainable.