Tuesday, 24 November 2015

Whether compact disc is a document as per 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.
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
Dated;November 24, 2015.
Citation;2015ALLMR(Cri)4923, 2016CriLJ364,2015(4)Crimes353(SC),

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 SessionsPage 2
Page 2 of 11
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.
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 saidPage 3
Page 3 of 11
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.Page 4
Page 4 of 11
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. 232Page 5
Page 5 of 11
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 ofPage 6
Page 6 of 11
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.
IllustrationPage 7
Page 7 of 11
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 Maharashtra1
, 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 others2
, 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:
1
(1973) 1 SCC 471 : 1973 (2) SCR 417
2
(1976) 2 SCC 17 : 1975 (Supp) SCR 281Page 8
Page 8 of 11
“(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.
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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