Head Note : 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 defense, endorsement of admission or
denial by the public prosecutor is sufficient and defense 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 defense.
(Para 14)
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 defense and to get the same proved
from Forensic Science Laboratory.
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 defense 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.
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 defense, endorsement of admission or
denial by the public prosecutor is sufficient and defense 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 defense.
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 defense 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.
