Madhya Pradesh High Court
Ravi Sohgora vs The State Of Madhya Pradesh on 13 November, 2017
1 M.Cr.C. No.6993/2017
(Ravi Sohgora Vs. State of M.P.)
Jabalpur : 13/11/2017
Shri Manish Dutt, Senior Advocate with Shri T.P.
Jaiswal, Counsel for the applicant.
Shri Manish Awasthy, Public Prosecutor for
respondent/State.
Heard finally.
This application under Section 482 of Cr.P.C. has been filed challenging the order dated 12-4-2017 passed by VIth A.S.J., Rewa in Criminal Revision No.285/2016 thereby affirming the order dated 27-5-2016 passed by J.M.F.C. Rewa in Criminal Case No.2271/2014, by which the application filed by the applicant for taking the compact disc containing the conversation between the applicant and the complainant on record as well as for sending the same to the F.S.L. has been rejected.
The necessary facts for the disposal of the present application in short are that the applicant and others are facing trial for offence under Sections 498-A, 34 of I.P.C. and under Section 3/4 of Dowry Prohibition Act on the allegation that the marriage of the complainant was performed with the applicant on 29-6-2012 and she was being harassed and subjected to cruelty for or in connection with demand of dowry in the form of one plot, L.C.D. TV, A.C. and Rs.8 lacs.
The examination-in-chief of the complainant was recorded on 18-1-2016, however, her cross-examination was deferred. Thereafter, the applicant filed an application for taking the Compact Disc, transcript of recorded version, 2 M.Cr.C. No.6993/2017 (Ravi Sohgora Vs. State of M.P.) Original Chip in which the mobile conversation was recorded and also filed an application under Section 294 of Cr.P.C. and prayed that the recorded conversation may be played in the Court and to listen it, record the voice of complainant, get it examined by F.S.L. and thereafter, cross examination may start.
The said applications were rejected by the Trial Court by order dated 27-5-2016 by holding that compliance of Section 65B of Evidence Act is necessary and the certificate filed along with the compact disc does not appear to be strictly in accordance with Section 65B of Evidence Act. It was further held that since the Compact Disc cannot be taken on record, therefore, the principle of law laid down by Supreme Court in the case of Shamsher Singh Verma Vs. State of Haryana reported in 2015 (III) MPWN 154 is of no assistance to the applicant.
Being aggrieved by the order of the Trial Court, the applicant filed a revision, which too has been dismissed by the Revisional Court by order dated 12-4-2017.
Challenging the orders dated 27-5-2016 and 12-4-2017 passed by the Trial Magistrate and the Revisional Court respectively, it is submitted by the Counsel for the applicant that a certificate under Section 65B of Evidence Act was also filed along with the Compact Disc making substantial compliance of Section 65B of Evidence Act. It is further submitted that the Revisional Court has also held that the Compact Disc, which has been filed by the applicant, can be 3 M.Cr.C. No.6993/2017 (Ravi Sohgora Vs. State of M.P.) produced at the stage of defence and since the case at present is fixed for recording of evidence of prosecution witnesses and further it is submitted that the Chip, which has been filed along with the application, is also an electronic document, therefore, certificate was also required under Section 65B of Evidence Act, and since the same has not been filed, therefore, the Chip cannot be taken on record. It is submitted that the observations made by the Courts below are perverse. The certificate which has been filed along with the Compact Disc contains all the conditions which are mentioned in Section 65B of Evidence Act. It is true that the case is at the stage of recording of prosecution witnesses, however, if the applicant is not allowed to cross examine the prosecution witnesses and if the recorded conversation is filed at the stage of defence, then his defence may not be considered on the ground that the prosecution witnesses were not confronted with the recorded conversation.
Per contra, it is submitted by the Counsel for the State that the Courts below have not committed any mistake in rejecting the applications filed by the applicant.
Heard the learned Counsel for the parties. A copy of the certificate given by the applicant under Section 65B of Evidence Act has been placed on record. The Revisional Court has held that since the applicant has not clarified that by which mobile, when and by which computer the contents of the Chip were transferred to a Compact Disc, therefore, the certificate given by the applicant is not in 4 M.Cr.C. No.6993/2017 (Ravi Sohgora Vs. State of M.P.) accordance with law. So far as the details of mobile are concerned, in the considered opinion of this Court, it is not necessary for the applicant to give details about the make and model as well as the company of the mobile. The details of computer are also not required to be given. The manner in which the contents were transferred to Compact Disc is also not required to be explained because it is a matter of common knowledge that the computer works on software installed in it.
So far as the Chip is concerned, it is the primary storage disc and for that no certificate under Section 65B of Evidence is required. Even otherwise, the applicant has already filed a certificate under Section 65B of Evidence Act in support of the Compact Disc.
Cross-examination is the only effective tool with the accused to prove his innocence. At the same time, it is also clear that each and every circumstance must be put to the prosecution witness in her/his cross-examination so that she/he may explain the said circumstance. If certain conversations have taken place between husband and wife and the accused/husband wants to rely on the same, then the wife also must get an opportunity to explain, so that the truth may come on record.
The Supreme Court in the case of Shamsher Singh Verma Vs. State of Haryana passed in S.L.P. (Cri) No. 9151 of 2015 has held as under :
"On going through the order dated 21.2.2015, passed by the trial court, we find that all the prosecution witnesses, including the child 5 M.Cr.C. No.6993/2017 (Ravi Sohgora Vs. State of M.P.) 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 Verma, son of the appellant have been examined as defence witnesses and evidence in defence is in progress.
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."
Considering the facts and circumstances of the case, this Court is of the view that the certificate filed by the 6 M.Cr.C. No.6993/2017 (Ravi Sohgora Vs. State of M.P.) applicant substantially complies with the requirement of Section 65B of Evidence Act.
Accordingly, the orders dated 12-4-2017 passed by VIth A.S.J., Rewa in Criminal Revision No.285/2016 thereby affirming the order dated 27-5-2016 passed by J.M.F.C., Rewa in Criminal Case No.2271/2014 are set aside. The applications filed by the applicant under Section 294 of Cr.P.C. and for taking the documents on record as well as to cross examine the complainant are allowed.
The Trial Court is directed to proceed further in accordance with law.
With aforesaid observations, the application is allowed.
(G.S. Ahluwalia) Judge Arun*