A CD containing voice recordings is admissible evidene : Supreme Court – 23 Nov 2015

a man (falsely ? ) accused of raping (IPC 376), mollesting (IPC 354) a nine year old kid (his own brother in law’s daughter), seeks to establish his innocence. He claims that the whole case was born out of a property dispute and he claims to have voice conversations. However the opposite party oppose it and lower courts deny him the right to use it as an evidence. Appellant reaches Apex court who permit using the CD as evidence !!


Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1525 OF 2015

(Arising out of S.L.P. (Crl.) No. 9151 of 2015)

Shamsher Singh Verma… Appellant

Versus

State of Haryana…Respondent

J U D G M E N T

Prafulla C. Pant, J.

  1. This appeal is directed against order dated 25.8.2015, passed by the High Court of Punjab and Haryana at Chandigarh, whereby said Court has affirmed the order dated 21.2.2015, passed by the Special Judge, Kaithal, in Sessions Case No. 33 of 2014, and rejected the application of the accused for getting exhibited the compact disc, filed in defence and to get the same proved from Forensic Science Laboratory.,http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  2. We have heard learned counsel for the parties and perused the papers on record.
  3. Briefly stated, a report was lodged against the appellant (accused) on 25.10.2013 at Police Station, Civil Lines, Kaithal, registered as FIR No. 232 in respect of offence punishable under Section 354 of the Indian Penal Code (IPC) and one relating to Protection of Children from Sexual Offences Act, 2015 (POCSO) in which complainant Munish Verma alleged that his minor niece was molested by the appellant. It appears that after investigation, a charge sheet is filed against the appellant, on the basis of which Sessions Case No. 33 of 2014 was registered. Special Judge, Kaithal, after hearing the parties, on 28.3.2014 framed charge in respect of offences punishable under Sections 354A and 376 IPC and also in respect of offence punishable under Sections 4/12 of POCSO. Admittedly prosecution witnesses have been examined in said case, whereafter statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, 1973 (for short “CrPC”). In defence the accused has examined four witnesses, and an application purported to have been moved under Section 294 CrPC filed before the trial court with following prayer: – “In view of the submissions made above it is therefore prayed that the said gadgets may be got operated initially in the court for preserving a copy of the text contained therein for further communication to F.S.L. for establishing their authenticity. It is further prayed that the voice of Sandeep Verma may kindly be ordered to be taken by the experts at FSL to be further got matched with the recorded voice above mentioned.”
  4. In said application dated 19.2.2015, it is alleged that there is recording of conversation between Sandeep Verma (father of the victim) and Saurabh (son of the accused) and Meena Kumari (wife of the accused). The application appears to have been opposed by the prosecution. Consequently, the trial court rejected the same vide order dated 21.2.2015 and the same was affirmed, vide impugned order passed by the High Court
  5. Learned counsel for the appellant argued before us that the accused has a right to adduce the evidence in defence and the courts below have erred in law in denying the right of defence.
  6. On the other hand, learned counsel for the complainant and learned counsel for the State contended that it is a case of sexual abuse of a female child aged nine years by his uncle, and the accused/appellant is trying to linger the trial.
  7. In reply to this, learned counsel for the appellant pointed out that since the accused/appellant is in jail, as such, there is no question on his part to protract the trial. It is further submitted on behalf of the appellant that the appellant was initially detained on 24.10.2013 illegally by the police at the instance of the complainant, to settle the property dispute with the complainant and his brother. On this Writ Petition (Criminal) No. 1888 of 2013 was filed before the High Court for issuance of writ of habeas corpus. It is further pointed out that the High Court, vide its order dated 25.10.2013, appointed Warrant Officer, and the appellant was released on 25.10.2013 at 10.25 p.m. Immediately thereafter FIR No. 232 dated 25.10.2013 was registered at 10.35 p.m. regarding alleged molestation on the basis of which Sessions Case is proceeding. On behalf of the appellant it is also submitted that appellant’s wife Meena is sister of Munish Verma (complainant) and Sandeep Verma (father of the victim), and there is property dispute between the parties due to which the appellant has been falsely implicated.
  8. Mrs. Mahalakshmi Pawani, learned senior counsel for the complainant vehemently argued that the alleged conversation among the father of the victim and son and wife of the appellant is subsequent to the incident of molestation and rape with a nine year old child, as such the trial court has rightly rejected the application dated 19.2.2015.
  9. However, at this stage we are not inclined to express any opinion as to the merits of the prosecution case or defence version. The only point of relevance at present is whether the accused has been denied right of defence or not.
  10. Section 294 CrPC reads as under: – “ 294. No formal proof of certain documents. – (1)Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document. (2) The list of documents shall be in such form as may be prescribed by the State Government. (3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed: Provided that the Court may, in its discretion, require such signature to be proved.”
  11. 11. The object of Section 294 CrPC is to accelerate pace of trial by avoiding the time being wasted by the parties in recording the unnecessary evidence. Where genuineness of any document is admitted, or its formal proof is dispensed with, the same may be read in evidence. Word “document” is defined in Section 3 of the Indian Evidence Act, 1872, as under:
    • ‘Document’ means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

      • Illustration
      • A writing is a document;
      • Words printed, lithographed or photographed are documents;
      • A map or plan is a document;
      • An inscription on a metal plate or stone is a document;
      • A caricature is a document.”
  12. In R.M. Malkani vs. State of Maharashtra (1973) 1 SCC 471 : 1973 (2) SCR 417)
    this Court has observed that tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record.
  13. In Ziyauddin Barhanuddin Bukhari vs. Brijmohan Ramdass Mehra and others (1976) 2 SCC 17 : 1975 (Supp) SCR 281, it was held by this Court that tape-records of speeches were “documents”, as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions:  “ ( a ) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it. ( b ) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record. ( c ) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act.”
  14. In view of the definition of ‘document’ in Evidence Act, and the law laid down by this Court, as discussed above, we hold that the compact disc is also a document. It is not necessary for the court to obtain admission or denial on a document under sub-section (1) to Section 294 CrPC personally from the accused or complainant or the witness. The endorsement of admission or denial made by the counsel for defence, on the document filed by the prosecution or on the application/report with which same is filed, is sufficient compliance of Section 294 CrPC. Similarly on a document filed by the defence, endorsement of admission or denial by the public prosecutor is sufficient and defence will have to prove the document if not admitted by the prosecution. In case it is admitted, it need not be formally proved, and can be read in evidence. In a complaint case such an endorsement can be made by the counsel for the complainant in respect of document filed by the defence. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  15. On going through the order dated 21.2.2015, passed by the trial court, we find that all the prosecution witnesses, including the child victim, her mother Harjinder Kaur, maternal grandmother Parajit Kaur and Munish Verma have been examined. Sandeep Verma (father of the victim) appears to have been discharged by the prosecution, and the evidence was closed. From the copy of the statement of accused Shamsher Singh Verma recorded under Section 313 CrPC (annexed as Annexure P-11 to the petition), it is evident that in reply to second last question, the accused has alleged that he has been implicated due to property dispute. It is also stated that some conversation is in possession of his son. From the record it also reflects that Dhir Singh, Registration Clerk, Vipin Taneja, Document Writer, Praveen Kumar, Clerk-cum-Cashier, State Bank of Patiala, and Saurabh Verma, son of the appellant have been examined as defence witnesses and evidence in defence is in progress.
  16. We are not inclined to go into the truthfulness of the conversation sought to be proved by the defence but, in the facts and circumstances of the case, as discussed above, we are of the view that the courts below have erred in law in not allowing the application of the defence to get played the compact disc relating to conversation between father of the victim and son and wife of the appellant regarding alleged property dispute. In our opinion, the courts below have erred in law in rejecting the application to play the compact disc in question to enable the public prosecutor to admit or deny, and to get it sent to the Forensic Science Laboratory, by the defence. The appellant is in jail and there appears to be no intention on his part to unnecessarily linger the trial, particularly when the prosecution witnesses have been examined.
  17. Therefore, without expressing any opinion as to the final merits of the case, this appeal is allowed, and the orders passed by the courts below are set aside. The application dated 19.2.2015 shall stand allowed. However, in the facts and circumstances of the case, it is observed that the accused/appellant shall not be entitled to seek bail on the ground of delay of trial.

J. [Dipak Misra]

J. [Prafulla C. Pant]

New Delhi;

November 24, 2015.

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