Saturday, 27 February 2016

Whether witness can be cross examined with reference to his previous statement in CD?


Now a previous statement recorded on tape is admissible in evidence, I do not understand as to how a compact disc, (CD), which is capable of containing not only the audio signal but also the video signal can be held to be inadmissible in evidence by mere reference to Section 145 of the Indian Evidence Act, 1872. It does not require an expert opinion to find that a CD records not only the statement made by a person or the conversation between the persons but also the live picture frames of the person making a statement or the persons engaged in conversation. In other words, a CD can contain record of not only the statement or conversation but also of the person or the actors who can be heard and seen as making statements. Thus, by all means, a CD can be said to be containing previous statements of the persons appearing therein and, therefore, by the application of the principle of law laid down in the Constitution Bench Judgment of the Hon'ble Apex Court in the case of N. Sri Rama Reddi and others (supra), the previous statements recorded in the CD would also be admissible in evidence. Therefore, I am of the view that the learned Additional Sessions has committed a serious error of law in not considering these aspects of the matter and refusing to apply the law laid down by the Hon'ble Apex Court in the case of N. Sri Rama Reddi and others 
Equivalent Citation: 2015(2)BomCR(Cri)428
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Criminal Application (APL) No. 124 of 2015
Decided On: 09.03.2015
Appellants: Munaf and Ors.
Vs.
Respondent: State of Maharashtra
Hon'ble Judges/Coram:S.B. Shukre, J.



4. By this application, the applicants are seeking indulgence of this Court in allowing the application filed by the accused on 9.10.2014 in Sessions Trial No. 144/2012, seeking permission of the Court to file on record C.D. of the interview given by the witness, PW 3-Mohd. Ijaz, to a local News Channel. Learned Additional Sessions Judge rejected the application on the ground that oral statement of which a video C.D. had been prepared by the News Channel did not fall within the scope and ambit of Section 145 of the Indian Evidence Act, 1872 which permits cross-examination of the witness with reference to the previous written statement and not the oral statement. Learned Additional Sessions Judge, while recording such a finding, it is seen from the impugned order, appears to have interpreted the principle of law stated in the case of Havovi Kersi vs Kersi Gustad, reported in MANU/MH/0066/2011 : 2011 (3) Mh.L.J. 564 in such a way as not found applicable to prayer of applicants when she said that the said case did not deal with the provision of Section 145 of the Indian Evidence Act, 1872 and pertained to the evidentiary value of previous statement recorded on tape.
5. According to the learned counsel for the applicant, the order so passed by the learned Additional Sessions Judge is perverse as it does not take into account the law settled by the Hon'ble Apex Court in the case of N. Sri Rama Reddy and others vs. The Attorney-General for India and others, reported in MANU/SC/0333/1970 : AIR 1971 SC 1162, which has been followed in the case of Havovi Kersi (supra) wherein it has been held by Hon'ble Apex Court that previous statement of the witness which is recorded on tape can be used not only to corroborate the evidence given by the witness in Court, but also to contradict the evidence of the witness given before the Court.
6. Learned Additional Public Prosecutor for the respondent/State assisted by Mr. R.J. Mirza, learned counsel for the complainant while opposing the application submitted that the application for production of C.D. on record has been filed only with a view to protract the case and that no prejudice is going to be caused to the applicants as the applicants would be getting opportunity to adduce evidence in their defence.
7. So far as concerned the objection regarding attempt of the applicants to protract the trial of the case, I must say that the argument is devoid of any merit. The application for grant of permission to produce on record the C.D. in question was filed on 9th October, 2014 and on the same day say of the prosecution was called for by the trial Court. The trial proceeded thereafter and evidence of witnesses was recorded on further dates and it was only on 28th January, 2015 when it was insisted by the learned counsel for the applicants that their application be decided, that the trial Court gave an ultimatum to the prosecution to file its say and it was accordingly filed on 28th January, 2015. The impugned order has been passed thereafter on 29th January, 2015. These facts, which are not in dispute, would be sufficient to hold that the applicants cannot be blamed for causing delay in disposal of the criminal case and it were only the prosecution, which by not filing its say well in time, contributed towards delay in disposal of the case.
8. Learned Additional Public Prosecutor for the respondent/State has also submitted that earlier one C.D. had been filed on record by these applicants and it was filed when, at the time of arguing their bail application, the applicants had sought permission to file the C.D. by moving an application (Exh.-90) which application was granted by the Court dealing with the bail application and, therefore, now there is no need to allow the present application.
9. However, it appears from the record of the case and about which there is no dispute raised by the learned Additional Public Prosecutor that this C.D. was filed without following the elaborate procedure prescribed under the Rules framed by this Court under Article 227 of the Constitution of India which are published on Page 19 in 1978 Mh.L.J. Therefore, filing of the C.D., earlier although it is not certain at this stage if the said C.D. has the same contents as the C.D. in respect of which permission is now being sought for its production on record, would be of no use as it has not been filed on record by following the procedure prescribed under the Rules. Learned counsel for the applicants submits that the C.D. filed in pursuance of the application vide Exh.-90 had also been damaged as it has been attached to the record of the sessions trial by piercing a hole in it and running a thread through the hole, for tying and securely fastening it to the record of the case. If this is the case, the C.D. filed earlier would be, for this additional reason, of no use and cannot be relied upon in any manner either for corroborating the prosecution witnesses or contradicting them.
10. Now, the question is as to whether or not the video C.D. containing a recorded interview of PW 3 could be used for the purpose of contradicting the prosecution witnesses or for the purpose of testing veracity of their evidence or impeaching their credit.
11. The Constitution Bench comprising Five Hon'ble Judges Bench of the Supreme Court as far back in the year 1971 has settled the law on the issue raised by the above question. The Hon'ble Apex Court, by considering the provisions contained in Sections 146, 153, 155 and 157 of the Indian Evidence Act, 1872 has held that a previous statement made by a witness and recorded on tape can be used not only to corroborate the evidence given by the witness in Court, but also to contradict the evidence of such a witness or to test the veracity of the evidence of such witness or to impeach the credit of such a witness. Accordingly, Hon'ble Apex Court has held that previous statement of a witness which has been recorded on tape is admissible. This law has also been followed by the learned Single Judge of this Court in the case of Havovi Kersi (supra).
12. Now a previous statement recorded on tape is admissible in evidence, I do not understand as to how a compact disc, (CD), which is capable of containing not only the audio signal but also the video signal can be held to be inadmissible in evidence by mere reference to Section 145 of the Indian Evidence Act, 1872. It does not require an expert opinion to find that a CD records not only the statement made by a person or the conversation between the persons but also the live picture frames of the person making a statement or the persons engaged in conversation. In other words, a CD can contain record of not only the statement or conversation but also of the person or the actors who can be heard and seen as making statements. Thus, by all means, a CD can be said to be containing previous statements of the persons appearing therein and, therefore, by the application of the principle of law laid down in the Constitution Bench Judgment of the Hon'ble Apex Court in the case of N. Sri Rama Reddi and others (supra), the previous statements recorded in the CD would also be admissible in evidence. Therefore, I am of the view that the learned Additional Sessions has committed a serious error of law in not considering these aspects of the matter and refusing to apply the law laid down by the Hon'ble Apex Court in the case of N. Sri Rama Reddi and others (supra).
13. In the result, I find that this is a fit case for making interference with the impugned order.
14. The application stands allowed.
15. The application Exh.-101 filed by the applicant is hereby allowed.
16. The CD containing the interview admittedly given by PW 3-Mohd. Ijaz be taken on record and if necessary, consequential orders shall be taken on record and if necessary, consequential order shall be passed by the trial Court, in consonance with the rules for the production, use and recording of the tape recorded evidence in Court framed by this Court and also provisions of Sections 146, 153, 155 and 157 of the Indian Evidence Act, 1872.
17. The applicants, at the time of production of the CD on record shall comply with the provisions of the Rules framed by the High Court.
18. The C.D. shall be produced on record on 23rd March, 2015.

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