Wednesday, 16 December 2015

Accused can produce taped phone conversation as defence

The bench of Justices Dipak Misra and P C Pant said the CD qualified to be treated as a document under the Evidence Act. "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," .

The SC held that the accused, Shamsher Singh Verma, had claimed during his examination that he had been implicated in the case due to a property dispute.


Though the SC refused to delve into the authenticity of the conversations, 
 "We are of the view that the courts below have erred in law in not allowing the application of the defence to play the compact disc relating to conversation between father of the victim and son and wife of the appellant (accused) regarding alleged property dispute.

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                        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.


      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.

We have heard learned counsel for the parties  and  perused  the  papers  on
record.

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.”


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.
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.

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.


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.

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.


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.


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.”


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.”


In R.M. Malkani vs. State of Maharashtra[1], 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.

In Ziyauddin Barhanuddin Bukhari vs. Brijmohan Ramdass Mehra and  others[2],
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.”

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.

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.

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.

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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[1]    (1973) 1 SCC 471 : 1973 (2) SCR 417
[2]    (1976) 2 SCC 17 : 1975 (Supp) SCR 281



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