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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

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

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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 said

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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.

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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. 232

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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 of

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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.

Illustration

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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 281

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“(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

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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

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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

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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.