By: Sweety Kumari
In the Supreme Court of India
|NAME OF THE CASE||Shamsher Singh Verma vs State of Haryana|
|CITATION||Criminal Appeal No. 1525 OF 2015 (Arising out of S.L.P. (Crl.) No. 9151 of 2015)|
|DATE OF THE CASE||November 24, 2015|
|APPELANT||Shamsher Singh Verma|
|RESPONDENT||State of Haryana|
|BENCH/JUDGE||PRAFULLA C. PANT|
|STATUTES/CONSTITUTION INVOLVED||The Code of Criminal Procedure, 1973 The Indian Evidence Act, 1872 The Indian Penal Code, 1872|
|IMPORTANT SECTIONS/ARTICLES||The Code of Criminal Procedure, 1973 — Section 294, 313 The Indian Evidence Act, 1872 — Section 3 The Indian Penal Code, 1872 — Section 354A, 376|
In the present case a FIR was filed against the accused for offences relating to section 354 IPC and for Protection of Children from Sexual Offences Act, 2015 for molesting a minor girl. The Special Judge, Kaithal framed charges against him under section 354A and 376 IPC and sections 4/12 of POSCO act. The accused made an application under section 294 CrPc before the trial court with the prayer thar a recording of the conversation between the father of the victim girl, the wife and son of the accused be preserved by the Court to send it further for Forensic Laboratory for checking its authenticity. But the application was rejected by the Trial Court and the same was upheld by the High Court. So, the accused filed an appeal to the Supreme Court regarding his right of defence and to adduce the evidence in his defence.
In the present case the accused was charged for offences under section 354 IPC and POSCO act for molesting a minor girl. In this case the Supreme Court was entrusted with the question whether Compact Disc comes under “Document” and whether it could be admitted as evidence in the Court.
In the case of R.M. Malkani v. State of Maharashtra it was held by the court that conversation that are recorded in the tape can be admitted as evidence in the court provided that the conversation recorded is relevant in the case and the voice recorded is identified.
In the case of Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra the court held that the tape-recorded conversations are documents under section 3 of the Evidence Act provided that the voice of the person must be identified and the accuracy of what is being recorded must be proved by the maker of the record and satisfactory evidence must be there so that there is no possibility of tampering with the evidence. Also, the subject matter which is recorded in the tape should be proved to be relevant according to the rules of relevancy that is contained in the Indian Evidence Act.
FACTS OF THE CASE
In this case a FIR was lodged on 25th October, 2013 against the appellant (the accused) in regard to the offense under section 354 IPC and under POSCO Act for molesting a minor girl by the complainant Munish Verma, a relative of the minor girl. After the completion of the investigation a charge sheet was filed against him. After hearing both the parties, Special Judge, Kaithal framed charges against the appellant under Section 354A, 376 IPC and section 4/12 of the POSCO Act. In the case the prosecution witness was examined and then under section 313 of CrPc the accused’s statement was recorded. Then the accused in his defence examined the witnesses and made an application under section 294 CrPc before the trial court with the prayer thar a recording of the conversation between the father of the victim girl, the wife and son of the accused be preserved by the Court to send it further for Forensic Laboratory for checking its authenticity. He also prayed that the victim’s father’s voice should be taken to get it matched with the voice recorded. But his application was rejected by the trial court and also by the High Court.
ISSUES RAISED BEFORE THE COURT
- Whether compact disc (CD) will come under Section 3 of the Indian Evidence Act, 1872?
- Does the appellant is empowered with the right to defend himself or not? Do the lower courts have erred the law by not giving him the right to defend himself?
ARGUMENTS FROM THE APPELANT SIDE
- Learned counsel for the appellant argued that accused has the right to cite any evidence in his defence and the lower courts have wrongfully refused in denying this right of defence.
- He also argued that since the appellant (the accused) was in jail so he has no opportunity to protract the trial.
- It was also submitted that the appellant at the instance of the complainant was wrongfully detained by the police for settling the dispute between the complainant and his brother (the father of the victim minor girl) who were the brother of the appellant’s wife. Writ of habeas corpus was filed in the High Court and the High Court appointed a Warrant Officer and the appellant was released. Soon then FIR was filed against him alleging that he molested the girl. He argued that the appellant has been falsely implicated because of the dispute regarding the property between the parties.
ARGUMENTS FROM THE RESPONDENT SIDE
- Learned counsel for the respondent argued that the sexual abuse in question was done with a minor female girl aged nine years by her uncle and the appellant is attempting to prolong the trial.
- The learned counsel also argued that the conversation recorded was of after the incident of molestation and rape and so the court has rightfully rejected the application of the accused/appellant.
Code of Criminal Procedure, 1973
Section 294- No formal proof of certain documents.
- 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.
- 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.
Section 313- Power to examine the accused.
(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-
(a)may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: Provided that in a summons- case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b)
(2) No oath shall be administered to the accused when he is examined under sub- section (1).
(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
Indian Penal Code, 1860
Section 354A – Assault or criminal force to woman with intent to outrage her modesty.
Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 376 – Punishment for rape-
(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
Indian Evidence Act, 1872
Section 3 – Document.
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. Illustrations A writing 5 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. 
The Supreme court held that compact disk comes under the definition of document as per the Indian Evidence Act. And it is not essential for the courts to obtain the admission or denial of a document from the complainant, accused or the witnesses under sub section (1) of section 294 CrPc.
The Court held that for the compliance of section 294 CrPc the endorsement of admission or denial by the defendant party on the document filed by the prosecution party or on the application/ report with which the same is filed is sufficient. Likewise on the document filed by the defendant, endorsement of admission or denial by the public prosecutor is sufficient and if the prosecution does not admit the document, then the defendants are required to prove the same. If it is admitted then it can be used as evidence and there is no requirement to prove it formally.
In this case all the prosecution witnesses have been examined like the child, her mother and maternal grandmother and Munish Verma. It appears that father of the victim minor girl, Sandeep Verma has been discharged by the prosecution and the evidence was brought to closure. The defence witnesses have also been examined and the evidence in defence is in progress.
The court held that the lower courts have erred in law by not allowing the application of the appellant to play the compact disc that had the conversation of the father of the victim and the wife and son of the appellant recorded regarding the alleged property dispute and to sent it to the Forensic Science Laboratory to check its authenticity.
The accused is in jail and there seems to be no intention on his part to prolong the trial when the prosecution witnesses have been examined. Therefore, the orders passed by the lower courts were set aside and this appeal was allowed by the Apex court. However, the accused is not entitled to get bail on the basis of delay in trial.
In this case the Court ruled out that Compact Disk are also documents as is defined under the Indian Evidence Act, 1872. And it is not essential for the Courts to take personally from the accused or complainant or witness admission or denial on a document under the provisions of Section 294 CrPc sub section 1. Also, the judgement stated that Compact Disk (CD) can be called document and it can be admitted as evidence in the courts.
 1973 AIR 157, 1973 SCR (2) 417
 1975 AIR 1778, 1975 SCR 453
 The Code of Criminal Procedure, 1973, Section 294(1)
 The Code of Criminal Procedure, 1973, Section 294(2)
 The Code of Criminal Procedure, 1973, Section 294(3)
 The Code of Criminal Procedure, 1973, Section 313(1)
 The Code of Criminal Procedure, 1973, Section 313(2)
 The Code of Criminal Procedure, 1973, Section 313(3)
 The Code of Criminal Procedure, 1973, Section 313(4)
 The Indian Penal Code,1860, Section 354A
 The Indian Penal Code,1860, Section 376
 Indian Evidence Act, 1872, Section 3