JOY KIRITBHAI PARMAR Vs. SNEHIKA @ SNEHA NAGINDAS KHANDERKAR

JUDGEMENT

(1.) Heard learned advocate Mr. S.R.Yadav for the applicant, learned advocate Mr. M.I.Mansuri for respondent No. 1. whereas learned APP Mr. Manan Mehta for the respondent State. Perused the record.

(2.) Petitioner herein is facing charges under The Domestic Violence Act at the hands of respondent No. 1 - his wife. During the evidence before the Trial Court, the petitioner has produced certain CD with audio recording to prove that respondents No. 1 - his wife is having illicit relations with some other man. The petitioner has categorically stated in his pleadings about such evidence and when he has filed his affidavit as examination-in-Chief being Exh.25 sworn on 21.02.2015, he has categorically stated on oath in paragraph No. 7 of such affidavit that he is producing evidence regarding relationship of his wife including audio recording of CD with list of documents. Such list of documentary evidence is referred in examination-in-Chief, copy of which is produced at Annexure E, which confirms that petitioner has produced call details of the respondents, her facebook profile so also audio-clip and video-clip on CD and DVD respectively. Therefore, after cross examination of the petitioner, when respondent wife could not rebut such evidence on oath referred and produced by the petitioner and on the contrary, during her cross examination when respondent - wife has admitted that voice record on audio CD is of her relatives, petitioner has requested the Trial Court being Chief Metropolitan Magistrate, Ahmedabad to exhibit such CD. Thereby, though there is admission of the respondent - wife that voice of audio CD is of one Fulkeriyaben who is maternal aunt of respondent wife (masi i.e. sister of the mother of the wife), the Trial Court has refused to admit such audio CD in evidence on record and by order dated 12.08.2015 rejected the application of the petitioner at Exh.42. While doing so, the Trial Court has simply observed and held that since it is not confirmed that whether CD is primary or secondary and since certificate of registration of the institution is not produced to confirm its genuineness, it could not be admitted in evidence. Therefore, petitioner has no option but to challenge the order dated 12.08.2015 below Exh.42 in Criminal Misc. Application No. 276 of 2012 so also judgment and order dated 26.04.2016 in Criminal Appeal No. 490 of 2015 by the Sessions Court, when Sessions Court has also confirmed the order of the Trial Court and rejected the revision application and thereby, refused to accept the CD as evidence on record. While doing so, the Sessions Court has gone one step further by stating that witness was not asked to identify the voice.

(3.) Unfortunately, both the Courts below have failed to realize that once respondent No. 1 has admitted that voice in the audio CD is of her relatives and one of the voice is of sister of her mother (masi - maternal aunt), practically, burden of proof gets shifted from the petitioner to respondent to explain that voice in CD is not of her relatives or that it is not a genuine document but when respondent wife has failed to rebut the evidence adduced by the petitioner, the Court cannot refuse to admit it as an evidence. It is also clear that admission of evidence does not mean that every time it is to consider that its proves the certain fact in manner in which person who has adduced evidence wants to prove it. In simple words, admission of evidence is not sufficient for determination of the case since it would depend upon interpretation of such evidence with reference to the allegation and other evidence proved on record.