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2000 DIGILAW 180 (KAR)

H. CHANDRASHEKAR v. SHAFIQ ALI KHAN

2000-02-29

T.N.VALLINAYAGAM

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T. N. VALLINAYAGAM, J. ( 1 ) THE defendant has preferred the above civil revision petition aggrieved by the order of dismissal of his application to appoint a commissioner of Forensic Science Laboratory to test the voice recorded in the cassettes marked as Exs. D-24 and D-25 and to determine as. to whether the said voice is that of P. W. 2-Smt. Naaz Parveen, in the interests of justice and equity. ( 2 ) THE case of the defendant is that, during the talk over the telephone the said voice is recorded and in the said conversation of P. W. 2-Smt. Naaz Parveen has promised him that she would handover the possession of the suit schedule property on two occasions. But when she was confronted in the cross-examination during the course of her evidence, she denied the voice contained in the two cassettes as that of hers. It is learnt that the Forensic Science Laboratory will undertake the job of voice testing and determine as to whose voice is contained in the two cassettes. The application is opposed by the plaintiff saying that the suit is for recovery of possession on the ground that the defendant has dispossessed him wrongly. It is the case Of the defendant that he got the suit schedule property under the lease but admittedly there is no lease deed and also he has not put the defendant in possession. It is further submitted that the defendant claims that it is the wife of the plaintiff who is examined as P. W. 2 who handed over the keys of the suit schedule property. The defendant also claimed that he has been put in possession of the suit property on 21-11-1992. The contents of the cassette Ex. D-24 was recorded on 18-11-1992 and Ex. D-25 was recorded earlier. Exs. D-24 and D-25 are in no way relevant for the purpose of deciding the controversy between the parties. The contents of the said cassette do not speak as to the mode of possession taken by the defendant. The oral evidence before the Court discloses that during the telephonic conversation, question of delivery of possession of the suit property was not spoken. It was only referring the fixing up of a date for meeting. The contents of the said cassette do not speak as to the mode of possession taken by the defendant. The oral evidence before the Court discloses that during the telephonic conversation, question of delivery of possession of the suit property was not spoken. It was only referring the fixing up of a date for meeting. If the Commissioner is appointed, it amounts to nothing but forcing a person to submit himself for the test and it is against the constitutional rights, therefore, it should be proved by any other mode than voice testing. The Trial Court found that the Court will not be in a position to ascertain as to whether the voice recorded in the cassette is that of P. W. 2, P. W. 2 is only the witness before the Court and not the party to the suit. It is the well-recognised principle of law that the Court is not bound to call upon the witness to come and get the voice tested before the Court if he is not willing to do so either before the Court or before the Commissioner. If at all two voices alleged to be of the same person is available before the Court for comparison, then it can be proper for the Court to send them for test and to ascertain as to whether the two voices are of the same person or not. D. W. 1 has not stated that p. W. 2 spoke to him over telephone that she was handing over the key of the suit schedule property to him. D. W. 1 has stated that P. W. 2 called him to discuss about the place to handover the possession of the keys of the suit schedule property, but it does not mean that the contents of exs. D-24 and D-25 relates to P. W. 2's acceptance to handover the keys. It may amount to a step towards the meeting between the parties and so far as this aspect is concerned there is evidence in the record. ( 3 ) TO decide the question at issue, it is not necessary to send the cassette for examination. D-24 and D-25 relates to P. W. 2's acceptance to handover the keys. It may amount to a step towards the meeting between the parties and so far as this aspect is concerned there is evidence in the record. ( 3 ) TO decide the question at issue, it is not necessary to send the cassette for examination. The Trial Court also relied upon the dictum of this Court in Smt. Ningamma and Another v Chikkaiah and Another, wherein it is held that "no party can be compelled against his volition to undergo such a test under Section 151 of the Civil Procedure Code nor any adverse inference can be drawn against the party refusing to undergo such test. Compelling the party to undergo medinal test against his wish and consent would amount interference with the fundamental right of life and personal liberty enshrined and conferred under Article 21 of the Constitution". ( 4 ) IN fact, this above ruling is following the dictum of the Apex Court in Maj. S. S. Khanna v Brig. F. J. Dillon, and Cotton Corporation of india Limited v United Industrial Bank Limited and Others, and consequently the petition was dismissed. ( 5 ) THE petitioner relied upon the dictum of the Apex Court in dwarika Prasad Satpathy v Bidyut Pray a Dixit and Another, to the effect that in a case arising out of Criminal Procedure Code when the father refuses to undergo DNA test, questioning the paternity of the child, the presumption can be drawn that such a person is not entitled to dispute the paternity of the child. But this cannot apply to the facts of this case. The question raised before Supreme Court was whether the parties to a petition under Section 125 of the Criminal Procedure Code can resort to paternity test. In that case, limiting the question to be decided prima facie, and leaving the finality of the issue to be decided in a Civil Court, the Supreme Court has disposed of the case. ( 6 ) THE respondents relied upon the following dicta: (i) Goutam Kundu v State of West Bengal and Another, where the Supreme Court has held:"no one can be compelled to give sample of blood for analysis". (ii) Polavarapu Venkateswarlu v Polavarapu Subbayya, to the following effect:"section 151 has been introduced into the Code to give effect to the inherent powers of Courts. (ii) Polavarapu Venkateswarlu v Polavarapu Subbayya, to the following effect:"section 151 has been introduced into the Code to give effect to the inherent powers of Courts. Such powers can only be exercised ex debito justitiae and not on the mere invocation of the parties or on the mere volition of Courts. Thus, where the defendant applies for the direction from the Court to the plaintiff a minor child, and his mother, his next friend, to appear in person before the Court in order to enable a medical expert to take sample of their blood and the plaintiff and his mother are unwilling to offer their blood for the test to recognise the paternity of the child there is no procedure either in the Civil Procedure Code or the Evidence Act which empowers the Court to force them to do so". (iii) R. M. P. M. Ranganathan Chettiar v Chinna Lakshmi Achi, to the following effect:"the Court might draw any adverse inference against a party who refuses to examine himself or herself, but the court has no power to compel a party to be examined by a doctor against his or her consent. To pass such an order is tantamount to treating a human being as a material object, which no Court should do under its inherent power". (iv) Smt. Ningamma's case, which is already referred to above, (v) Vinod Kumar and Others v State, to the following effect:"there is nothing in the Evidence Act which even remotely suggests that the Court has power to call upon a prosecution witness to get his sample voice recorded for comparison with his disputed tape recorded voice. Neither Section 73 provides for recording of sample voice for comparison nor under section 45, evidence of an expert on comparison of sample voice with disputed one has been made admissible. Further, Section 146 deals with the scope of the questions which can be put in cross-examination. It does not deal with any directions which can be given by a Court to the witnesses and hence does not empower the Court to call upon a witness to give his sample voice so as to test his veracity by comparison". Further, Section 146 deals with the scope of the questions which can be put in cross-examination. It does not deal with any directions which can be given by a Court to the witnesses and hence does not empower the Court to call upon a witness to give his sample voice so as to test his veracity by comparison". ( 7 ) IN the light of the above discussion and in particular the dictum of the Delhi High Court which is directly on the point, I hold that the order passed by the Trial Court is valid and no person can be compelled to give his voice to be tested in comparison to a voice already recorded. One can understand as rightly pointed out by the Trial Court that if two cas- settes containing two voices are available, then the Court can find out whether both the voices are of the same person or of a different person. This is the analogy applicable to comparison of disputed signatures in the documents with the signature already available or admittedly available at the relevant point of time. It should also be noted that a man's voice may change due to various reasons at various points. As correctly considered by the Court below, even if a man manages to change his voice, it will be totally a vexatious exercise. No two songs sung by the same songester can be considered to be exactly equal to one and another. There will be difference in decimal, frequency and velocity with which the words come out from the mouth. ( 8 ) IN this view, holding that there is no merit, this civil revision petition is dismissed. --- *** --- .