Brief of the case
In the case of Shamsher singh verma vs. State of Haryana, the Apex court on the point of admissibility of evidence held that the ‘compact disc’ is also a document within the meaning of Section 3 of Indian Evidence Act, 1872. It is not necessary for the court to obtain admission or denial on a document under sub-section (1) to Section 294 Code of Criminal Procedure1973, personally from the accused or complainant or the witness.
Fact of the Case
A FIR was lodged against the appellant (accused) in respect of alleged offence of molestation of a girl child punishable under section 354 of the Indian Penal Code (IPC) and one relating to Protection of Children from Sexual Offences Act, 2015 (POCSO) by the complainant Mr. Munish Verma (Uncle of the victim). In the application filed by the accused in his defence before the trial court, it was alleged that there is recording of conversation between the father of the victim and the son and wife of the accused and therefore it was 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 Forensic Science Laboratory (in short F.S.L) for establishing their authenticity. It was further prayed that the voice of Sandeep Verma (father of victim) may kindly be ordered to be taken by the experts at FSL to be further got matched with the recorded voice above mentioned.” The above said prayer was rejected by the trial court and on an appeal such rejection was also affirmed by the Hon’ble Punjab and Haryana High court.
Contention of the Respondent
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 the accused/appellant is trying to linger the trial.
Contention of the Appellant
Learned counsel for the appellant argued 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. Since the accused/appellant is in jail, as such, there is no question on his part to protract the trial. It was 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.
Held by the Supreme Court
After hearing both the side, the Hon’ble Apex Court held that the only point of relevance was whether the accused has been denied right of defence or not. The Court relied upon its own decision in case of R.M. Malkani vs. State of Maharashtra wherein it was held that the 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. Further, In Ziyauddin Barhanuddin Bukhari vs. Brijmohan Ramdass Mehra and others 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.”
The Court further observed that since at this time the court was 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, the court was 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. The appellant was 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, the appeal was allowed, and the orders passed by the courts below were set aside.