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2010 DIGILAW 704 (MP)

Suresh Kumar Singh v. State of M. P.

2010-07-15

G.S.SOLANKI, RAKESH SAKSENA

body2010
ORDER Rakesh Saksena, J. 1. By this petition filed under Section 482 of the Code of Criminal Procedure, Petitioner has challenged the order dated 18-1-2010 passed by Special Judge (Lokayukt), Jabalpur in Special Case No. 8/2004, disposing of the application filed by the complainant/Respondent No. 2 under Sections 63 and 65 of the Indian Evidence Act, seeking permission to adduce secondary evidence. 2. In brief, facts of the case are that the Petitioner/accused S.K. Singh, who was posted as Inspector in Special Police Establishment (Lokayukt Office), Jabalpur laid a trap against Respondent No. 2 Hardayal Dubey, Food Inspector, Jabalpur and registered Crime No. 128/2002 under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. When S.K. Singh was investigating the said offence, he demanded Rs. 1,65,000/- from Hardayal Dubey, as bribe for showing favour to him. It is said that on 7-6-2002 and 27-6-2002, he obtained Rs. 30,000-30,000/- by abusing his position as a public servant. Hardayal Dubey made complaint against him to Lokayukt Department. Petitioner is, therefore, facing trial on the said charges. 3. According to prosecution, before making complaint to Lokayukta, Respondent/complainant Hardayal Dubey had recorded a conversation which allegedly took place between him, the Petitioner and the witness Shailesh Sharma. Complainant produced the said cassette before the Office of Special Police Establishment, Lokayukta, Bhopal. This cassette, by Bhopal Office, was then sent to Divisional Office, Lokayukta, Jabalpur, where its transcript was prepared and the cassette was sealed. After requisite investigation, charge sheet was filed. Along with the charge-sheet, though transcript and seizure memo of the cassette were produced before the Court, yet the cassette was produced in the Court in a sealed packet subsequently on 22-5-2006, on an application filed by Hardayal Dubey. On 13-10-2008, when the cassette was played in the Court, in a tape recorder, in presence of both the parties, no sound emerged from it. 4. Complainant as well as the prosecution moved applications before the Trial Court seeking permission to adduce secondary evidence in respect of the tape recording on the ground that on the instructions of Lokayukta Police, complainant had prepared a copy of the cassette and had kept with him because there was possibility of the tampering of the cassette because the complaint was against an Inspector of Lokayukta. This copy of the cassette was adduced in evidence in Special Case No. 10/2003, in which Hardayal Dubey was being prosecuted. By order dated 15- 4-2009, Trial Court dismissed the application filed by the complainant on the ground that he was not authorized to conduct the prosecution; he could only assist the public prosecutor. The application filed by the Public Prosecutor was also rejected on the ground that the application was not in accordance with the provisions of Section 65 of the Evidence Act and was not supported with any affidavit. The prosecution, however, was granted liberty to file a fresh application in accordance with the provisions of the said Act and by filing an affidavit in support of it. Prosecution, thereafter, chose not to file any application. The aforesaid order was challenged by the complainant before the High Court in Criminal Revision No. 1025/2009. The High Court by order dated 10-12-2009 permitted the complainant to move appropriate application under Sections 63 and 65 of the Evidence Act since State did not make such application. The High Court ordered as under: If the complainant files such an application, it shall be dealt with by the Trial Court according to law on its own merits. Trial Court shall be free to decide the question of admissibility of the secondary evidence after giving adequate opportunity of hearing to all the concerned parties, on the said application. 5. Complainant moved a fresh application on 14-12-2009 before the Trial Court making prayer that copy of the recorded cassette which was filed in Special Case No. 10/03 (State v. Hardayal Dubey) be called and taken on record. This prayer was opposed by the accused, however, the Trial Court by the impugned order, on 18-1-2010, allowed the said application and permitted the complainant to produce a copy of the cassette subject to condition that the admissibility and the probative value of the cassette shall depend upon the proof of requisite conditions as provided in the provisions of Sections 63 and 65 of the Evidence Act. 6. Aggrieved by the said order, Petitioner (accused) has filed this petition. 7. Learned Counsel for the Petitioner submitted that it was not established by the complainant that the original cassette had been destroyed or lost, therefore, no secondary evidence by way of producing another copy of cassette can be made. 6. Aggrieved by the said order, Petitioner (accused) has filed this petition. 7. Learned Counsel for the Petitioner submitted that it was not established by the complainant that the original cassette had been destroyed or lost, therefore, no secondary evidence by way of producing another copy of cassette can be made. Since it was not established that the cassette contained the voice of accused and the complainant, and since it was not kept intact in any proper custody, the permission to produce the same in evidence cannot be granted after about seven years of the alleged occurrence. There was nothing on record to indicate that the cassette sought to be produced by way of secondary evidence was prepared from the original cassette on the directions of Officers of Lokayukta Department. In these circumstances, the possibility that the cassette might have been tampered could not be ruled out. He placed reliance on the ratio of Ram Singh and Ors. v. Col. Ram Singh 1985 (Supp) SCC 611 and All India Anna Dravida Munnetra Kazhagam v. L.K. Tripathi and Ors. (2009) 5 SCC 417 . 8. On the other hand, learned Counsel for the Respondent No. 2 Hardayal Dubey, submitted that since the accused was an Officer of Lokayukta, there was apprehension that the original cassette which was handed over to Lokayukta might be tampered with, therefore, he had prepared a copy of the said cassette on the instructions of the Officers of Lokayukta. This cassette was adduced in defence in Special Case No. 10/2003 pending against him in the Court of Special Judge, Jabalpur. It was produced by the Defendant witness Shailesh Sharma, who was also a party in the conversation. He submitted that the original cassette was not produced by the prosecution with the charge-sheet. Later on, when it was produced and played before the Court, it had no sound, therefore, the production of the copy of the cassette was essential. The question about the admissibility and probative value of the evidence of the tape recording can be decided at appropriate stage by the Trial Court instead of debarring the production of secondary evidence in the Court. 9. In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and Ors. (1976) 2 SCC 17 , the Apex Court held: Tape-records of speeches are "documents" under Section 3 of the Evidence Act and stand on no different footing than photographs. 9. In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and Ors. (1976) 2 SCC 17 , the Apex Court held: Tape-records of speeches are "documents" under Section 3 of the Evidence Act and stand on no different footing than photographs. A contemporaneous tape-record of a relevant conversation or speech would be part of res gestae. The use of tape-records is not confined to purposes of corroboration and contradiction only, but, when duly proved by satisfactory evidence of what was found recorded and of absence of tampering, it could, subject to the provisions of the Evidence Act, be used as substantive evidence. Thus, when it was disputed or in issue whether a person's speech, on a particular occasion, contained a particular statement there could be no more direct or better evidence of it than its tape-record, assuming its authenticity to be duly established. The Apex Court observed about the admissibility of the tape-records 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 has to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, has to be there so as to rule out possibilities of tampering with the record. (c) The subject-matter recorded has to be shown to be relevant according to rules of relevancy found in the Evidence Act. (d) Court should receive such evidence with caution and it should be satisfied, beyond reasonable doubt, that the record has not been tampered with. 10. In Ram Singh and Ors. (supra), the Apex Court observed that the tape-recorded statement is admissible in evidence, subject to the following conditions: (1) The voice of the speaker must be identified by the maker of the record or other persons recognizing his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker. (2) The accuracy of the tape-recorded statement must be proved by the maker of the record by satisfactory evidence; direct or circumstantial, (3) Possibility of tampering with, or erasure of any part of, the tape-recorded statement must be totally excluded. (2) The accuracy of the tape-recorded statement must be proved by the maker of the record by satisfactory evidence; direct or circumstantial, (3) Possibility of tampering with, or erasure of any part of, the tape-recorded statement must be totally excluded. (4) The tape-recorded statement must be relevant, (5) The recorded cassette must be sealed and must be kept in safe or official custody, and (6) The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances. The same principles about the admissibility of the tape-recorded version were reiterated by the Apex Court in case of All India Anna Dravida Munnetra Kazhagam (supra). 11. It is true that the copy of cassette sought to be produced by the complainant by way secondary evidence, was not kept sealed in custody of police or any authority, but still its authenticity could be decided after it is produced in the Court and is proved by the oral and/or circumstantial evidence on record. It is on record that when original cassette was produced by the complainant before the Officers of Lokayukta, it was kept in safe custody and was sent to Office of Lokayukta, Jabalpur, where its transcription was prepared. Still when the original cassette was produced in the Court by the prosecution, it had no voice. It can be assumed that it contained recorded voice when the transcript was prepared by the Officers. In these circumstances, it can be concluded that the original cassette had been destroyed. In case of tape recording, erasure of recording or sound can be deemed to be the loss or destruction of the original, therefore, a copy of the tape recording made from the original by mechanical process subject to proof of its accuracy can be held to be the secondary evidence of the original. However, everything depends upon the proof and exclusion of the possibility of tampering with or eraser of any part of the tape recorded statement. 12. Though, the cassette sought to be produced in the present case has been produced in Special Case No. 10/2003, by witness Shailesh Sharma, it may be relevant in the case if it is proved to be a genuine and untampered piece of evidence about the conversation alleged to have taken place between the accused and the other prosecution witness. 12. Though, the cassette sought to be produced in the present case has been produced in Special Case No. 10/2003, by witness Shailesh Sharma, it may be relevant in the case if it is proved to be a genuine and untampered piece of evidence about the conversation alleged to have taken place between the accused and the other prosecution witness. The question of admissibility, reliability and the probative value of its evidence can be judged by the Trial Court subsequently at appropriate stage. Shutting out of relevant evidence would serve no purpose. In S. Pratap Singh v. State of Punjab AIR 1964 SC 72 , the Apex Court observed that: There are few documents and possibly there is no piece of evidence which could not be tampered with, but that would certainly not be a ground on which Courts could reject the evidence as inadmissible or refuse to consider it. In the ultimate analysis the factor mentioned would have a bearing only on the weight to be attached to the evidence and not its admissibility. Doubtless, if in any particular case there is a well-grounded suspicion, not even say proof, that a tape recording has been tampered with that would be a good ground for the Court to discount wholly its evidentiary value. 13. After examining the impugned order, we find that the Trial Court kept in mind all the necessary precautions and permitted the complainant to produce the copy of the cassette in evidence, therefore, in our opinion no interference is called for in the said order. 14. For the foregoing reasons, we find no substance in this petition. It is, accordingly, dismissed.