Punjab-Haryana High Court
Surjit Singh @ Kala vs State Of Punjab on 25 March, 2010
Crl. Misc. No. M-21088 of 2009(O&M) {1}
In the High Court of Punjab and Haryana at Chandigarh
Crl. Misc. No. M-21088 of 2009(O&M)
Date of Decision:March 25, 2010
Surjit Singh @ Kala
---Petitioner
versus
State of Punjab
---Respondent
Coram: HONBLE MR. JUSTICE GURDEV SINGH
***
Present: Mr.G.S.Verma, Advocate,
for the petitioner
Mr. Raghbir Chaudhary, Sr. Deputy Advocate General,
Punjab
***
GURDEV SINGH, J.
This petition under Section 482 of the Code of Criminal Procedure(hereinafter referred to as "the Code") has been filed by Surjit Singh @ Kala, petitioner-accused, for quashing the order dated 18.7.2009 passed by Additional Sessions Judge, Sangrur, vide which his application for calling upon the prosecution as well as Lakhvir Kaur -complainant, to admit or deny the recorded telephonic version, has been dismissed under the guise of the order dated 12.1.2009 passed by this Court, on the ground to conclude the trial within six months and for issuance of appropriate Crl. Misc. No. M-21088 of 2009(O&M) {2} direction to the trial court to give him one more opportunity for leading the evidence after allowing the application dated 7.11.2008(annexure P-1).
According to the petitioner, Lakhvir Kaur, prosecutrix-complainant lodged false FIR No. 70 dated 14.6.2008 against him under Section 376, 458 and 506 of the Indian Penal Code in Police Station, Moonak, District Sangrur, that he committed rape on her in her own house on 12.6.2008 at about 12.30 a.m. by putting her under fear with the help of the knife. On earlier occasion, she had sexual intercourse with him regarding which she had telephonic conversation, which was recorded in the memory card of Nokia Mobile Make 6600 and that conversation was recorded on the CD with the help of Multimedia Player Software. He produced that CD along with the transcript before the trial court for admitting or denying the same by the prosecutrix by moving an application dated 7.11.2008. The prosecutrix denied that it was her voice on the CD. In order to determine the genuineness of the CD and ambiguity created by the prosecutrix, their voice samples are required to be taken for comparison from the Government FSL. The application was dismissed recklessly in a hasty manner under the guise of the order dated 12.1.2009, which was passed by this Court in the petition filed by him for releasing him on bail. This Court had directed the trial court to conclude the trial within a period of six months and in case of its failure to do so, he was given option to approach this court again for bail. The disallowing of the application has caused miscarriage of justice. He has got details of the calls made from his mobile phone to the mobile phone of the prosecutrix-complainant. The trial court is not to conclude the trial recklessly without accepting the proper evidence.
Notice of the petition was given to the respondent.
Crl. Misc. No. M-21088 of 2009(O&M) {3} I have heard learned counsel for both the sides.
It has been submitted by learned counsel for the petitioner that there was old acquaintance between the petitioner and the prosecutrix and they used to talk to each other on the telephone, which totally negatives the story given in the FIR that the petitioner had forcible sexual intercourse with her. In order to prove that fact, the petitioner recorded the telephonic conversation between him and the prosecutrix and moved an application before the trial court calling upon the prosecutrix to admit or deny the conversation, so recorded by him. The trial court committed illegality while dismissing the application under the guise of the order, vide which the trial court was directed to conclude the prosecution evidence within six months. Such an order could not have been passed by taking refuge of that order.
On the other hand, it has been submitted by learned State counsel that the application of the petitioner was dismissed after taking into consideration the law applicable to the facts of the present case and the same was never dismissed under the guise of the said order. There is no ground for upsetting that well reasoned order.
According to the prosecutrix, on the night of occurrence, she and her brother were sleeping in the verandah and court yard, respectively, of the house and the electric bulbs were on. At about midnight, someone over powered her and gagged her mouth with his hand. She found that it was the present petitioner -accused, who was holding a knife in his other hand and put the same on her neck with the threat not to raise any alarm. Thereafter, the petitioner without her consent, put off her salwar and committed rape on her.
The application dated 7.11.2008 was moved by the petitioner Crl. Misc. No. M-21088 of 2009(O&M) {4} calling upon the complainant to admit or deny the version, so recorded by him with the help of mobile phone. That application was dismissed by the trial court by making following observations:-
"Having heard the rival contentions of the parties, I am of the view that no doubt true that recorded conversation is comparable to a photograph and is admissible under Section 7 of the Evidence Act provided the recorded conversation is relevant to the matter in issue and the accuracy of conversation is proved by eliminating the possibility of erasing the recorded conversation. Since, in the instant case, the alleged phone conversations were recorded by the accused himself on his mobile phone, meaning thereby alleged voice recording is done without the knowledge and consent of the prosecutrix and the said act of the accused is born of trickery or trapping or cunningness, as such, the alleged recording proves nothing else than an effort to create evidence. Further, the conversations were pertain to something which is not concerning the incident, as such, the conversation contained therein appears to be no well connected with the defence projected by the accused. In Crl. Revision No. 2353 of 2006 decided on January, 30, 2008, the Hon'ble Punjab and Haryana High Court has observed that "the evidence that the accused wishes to produce must have a relevant, proximate and probable nexus with the accusation and the consequent innocence which he or she wishes to establish. The Court is not obliged to delve into an embark upon a fishing enquiry and search for needless in a haystack, which the Crl. Misc. No. M-21088 of 2009(O&M) {5} accused perceives, will establish his innocence." Even otherwise also, the accused has not submitted the Memory Card in the Court before the recording of the evidence of the prosecutrix and not even at the time, when he prayed that voice sample of the prosecutrix be recorded simultaneously on some recording device. In my considered view, to show bona fide on his part the accused ought to have placed on record the Memory Card before making any request to the Court for recording the voice sample of the prosecutrix but in the present case, the voice sample of the prosecutrix was got recorded on 10.12.2008, but the accused has produced the Memory Card before the Court on 2.2.2009. Further, the accused nowhere put or explained either in the cross examination to the prosecutrix or in his statement recorded under Section 313 Cr.P.C. as to under what circumstances and in what manner alleged conversation had been recorded. The accused also failed to mention the fact about the durations or the different intervals which intervened the recording of this conversation. Although, the phone recording was transcribed and has been placed on record by the accused and I find that it is in question answer from and leave the impression as if the lady whose voice has been recorded, was being subjected to some sought of cross examination. It also shows that different parts of this conversation had been recorded at different times. Above all this, the plea of the defence is that the accused has been falsely implicated and the accused himself admitted that the Crl. Misc. No. M-21088 of 2009(O&M) {6} prosecutrix used to talk to him on phone and the accused also led into his defence evidence documentary evidence in support of his plea that the prosecutrix used to call him on phone and the effect of the said evidence will be considered at the time of final hearing and now to further corroborate the said fact the accused prayed for examination of voice of the prosecutrix and in my considered view, the prayer would not be relevant for determining the issue in the present trial, which the accused is facing, as the alleged earlier conversations of the petitioner could neither be used as an admission of hers about the matter in controversy. Otherwise also, the prosecutrix has not been confronted with the alleged conversations during the course of her cross examination as each and every part of the conversations allegedly stated by the prosecutrix were not put to her. Thus, the same is totally irrelevant and thus, no purpose would be served by sending the voice of the prosecutrix, which was recorded by the accused in his mobile phone, before the days of alleged occurrence, from a Government recognized and reputed Forensic Science Laboratory."
According to Section 294(1) of the Code, where any document is filed before any court by the prosecution or the accused, 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. Thus, it is only the prosecution, which can be called upon to admit or deny the documents and not the prosecutrix/witnesses/complainant. Therefore, the petitioner had no vested Crl. Misc. No. M-21088 of 2009(O&M) {7} right to call the prosecutrix himself to admit or deny the said conversation. The petitioner had the right to make an application for taking the voice samples of the prosecutrix for getting the same compared with the voice recorded in the mobile phone. He did make such a prayer before the trial court. As is clear from the impugned order, he has already availed 8 opportunities for leading his defence evidence. That itself shows the mala fide intention of the petitioner. The trial court might have taken into consideration the order passed by this Court on 12.1.2009, directing the prosecution to conclude the trial within a period of six months, but that was not the only ground for dismissing the application. It cannot be said that this order suffer from any illegality or it is necessary to set aside that order to secure the ends of justice.
There is no merit in this petition and the same same is hereby dismissed.
(GURDEV SINGH) JUDGE March 25, 2010 PARAMJIT