SHAMSHER SINGH VERMA Vs. STATE OF HARYANA

Tags Evidence

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 1525 of 2015, Judgment Date: Nov 24, 2015

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.

The  only  point  of
relevance at present is  whether  the  accused  has  been  denied  right  of
defence or not.

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.

 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.

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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