Section 165 of Evidence Act: Judge’s power to put questions or order production

Sec 165. Judge’s power to put questions or order production— The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:

Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved:

Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.

Raja Vs. State by the Inspector of Police-10/12/2019

IDENTIFICATION OF ACCUSED: It has been accepted by this Court that what is substantive piece of evidence of identification of an accused, is the evidence given during the trial. However, by the time the witnesses normally step into the box to depose, there would be substantial time gap between the date of the incident and the actual examination of the witnesses. If the accused or the suspects were known to the witnesses from before and their identity was never in doubt, the lapse of time may not qualitatively affect the evidence about identification of such accused, but the difficulty may arise if the accused were unknown.

SUPREME COURT OF INDIA

Raja Vs. State by the Inspector of Police

P. Gopalkrishnan @ Dileep Versus State of Kerala and Anr. – 29/11/2019

P. Gopalkrishnan @ Dileep  Versus State of Kerala and Anr. – 29/11/2019

Whether the contents of the memory card/pen­drive submitted to the Court alongwith the police report can be treated as “document” as such. Indubitably, if the contents of the memory card/pen­drive are not to be treated as “document”, the question of furnishing the same to the accused by virtue of Section 207 read with Section 173 of the 1973 Code would not arise. We say so because it is nobody’s case before us that the contents of the memory card/pen­drive be treated as a “statement” ascribable to Section 173(5)(b) of the 1973 Code.

We hold that the contents of the memory card/pen drive being electronic record must be regarded as a document.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1794 OF 2019 (Arising out of SLP(Crl.) No. 10189/2018)

P. Gopalkrishnan @ Dileep ..…Appellant(s)
Versus
State of Kerala and Anr. ….Respondent(s)

Date: 29/11/2019

JUDGMENT

A.M. Khanwilkar, J.

1. Leave granted.

2. The conundrum in this appeal is: whether the contents of a memory card/pen­drive being electronic record as predicated in Section 2(1)(t) of the Information and Technology Act, 2000 (for short, ‘the 2000 Act’) would, thereby qualify as a “document” within the meaning of Section 3 of the Indian Evidence Act, 1872 (forby short, ‘the 1872 Act’) and Section 29 of the Indian Penal Code, 1860 (for short, ‘the 1860 Code’)?

If so, whether it is obligatory to furnish a cloned copy of the contents of such memory card/pen­drive to the accused facing prosecution for an alleged offence of rape and related offences since the same is appended to the police report submitted to the Magistrate and the prosecution proposes to rely upon it against the accused, in terms of Section 207 of the Code of Criminal Procedure, 1973 (for short, ‘the 1973 Code’)? The next question is: whether it is open to the Court to decline the request of the accused to furnish a cloned copy of the contents of the subject memory card/pen­ drive in the form of video footage/clipping concerning the alleged incident/occurrence of rape on the ground that it would impinge upon the privacy, dignity and identity of the victim involved in the stated offence(s) and moreso because of the possibility of misuse of such cloned copy by the accused (which may attract other independent offences under the 2000 Act and the 1860 Code)?

3. The appellant has been arrayed as accused No. 8 in connection with offence registered as First Information Report (FIR)/Crime Case No. 297/2017 dated 18.2.2017 punishable under Sections 342, 366, 376, 506(1), 120B and 34 of the 1860 Code and Sections 66E and 67A of the 2000 Act, concerning the alleged incident/occurrence at around 2030 hrs. to 2300 hrs. on 17.2.2017, as reported by the victim.

4. For considering the questions arising in this appeal, suffice it to observe that the investigating officer attached to the Nedumbassery Police Station, Ernakulam, Kerala, after recording statements of the concerned witnesses and collecting the relevant evidence, filed police reports under Section 173 of the 1973 Code before the Judicial First Class Magistrate, Angamaly. First police report, on 17.4.2017 and the second, on 22.11.2017. When the appellant was supplied a copy of the second police report on 15.12.2017, all documents noted in the said report, on which the prosecution proposed to rely, were not supplied to the appellant, namely, (i) electronic record (contents of memory card); (ii) Forensic Science Laboratory (for short, ‘the FSL’) reports and the findings attached thereto in C.D./D.V.D.; (iii) medical reports; C.C.T.V. footages and (iv) Call data records of accused and various witnesses etc.

5. It is noted by the concerned Magistrate that the visuals copied and documented by the forensic experts during the forensic examination of the memory card were allowed to be perused by the appellant’s counsel in the presence of the regular cadre Assistant Public Prosecutor of the Court, in the Court itself. After watching the said visuals, some doubts cropped up, which propelled the appellant to file a formal application before the Judicial First Class Magistrate, Angamaly for a direction to the prosecution to furnish a cloned copy of the contents of memory card containing the video and audio footage/clipping, in the same format as obtained in the memory card, alongwith the transcript of the human voices, both male and female recorded in it. In the said application, the appellant inter alia asserted as follows:­

“7. It may be noted that the electronic record in the form of copy of the alleged video footage of the offending act committed by accused No.1 on the body and person of the defacto complainant is a crucial and material record relied by the prosecution in this case. It is the definite contention of prosecution that the above electronic record is both the evidence of commission of crime as well as the object of commission of crime and hence indisputably the most material piece of evidence in this case. When the injustice, in not serving such a vital piece of evidence relied on by the prosecution in the case, was immediately brought to the notice of this Hon’ble Court, without prejudice to the right of petitioner to obtain copies of the same, the defence side was allowed to watch the alleged video footages by playing the contents of a pen drive in the lap top made available before this Hon’ble Court. Head phones were also provided to the counsel and also to the learned APP who also was throughout present during this proceedings.

8. It is most respectfully submitted that by watching the video footage, although in a restricted environment and with limited facilities in the presence of the Ld. APP and the Presiding Officer, it is shockingly realised that the visuals and audio bytes contained in the video are of such a nature which would completely falsify the prosecution case in the form presently alleged by the prosecution. As a matter of fact the video footage is not at all an evidence of commission of crime as falsely contended by the prosecution but it is rather a clear case of fabricating false evidence with intent to foist a false case. It is submitted that it is after deliberately concealing or withholding the alleged primary evidence viz. the mobile phone stated to have been used by accused No.1, by the prosecution in active connivance with accused No.1, that the prosecution has produced a memory card which evidently contains only selected audio and video recording.

9. xxx xxx xxx

10. ……The further Verification and close scrutiny of the images and audio with scientific aid will in all probability provide more significant materials necessary to find out the truth behind the recorded images and the extent of tampering and the same could only be unearthed if the mirror copy of the memory card is furnished to the petitioner which he is entitled to get without any further delay. As the prosecution is fully aware that the tampering could be detected and further female voice could be retrieved by the defense, the prosecution is trying to prevent the supply of the copy of the memory card in any form to the defense. It is illegal and the same will clearly amount to denial of a just and fair trial.

11. xxx xxx xxx

12. A close scrutiny of the contents of mahazar dated 8.3.2017 would show that on 18.2.2017 accused No.1 had entrusted a 8 GB memory card to Adv. E.G. Poulose, who had in turn produced the same before the Court of JFCM Aluva. The investigating agency thereafter obtained custody of the above electronic record and later the 8 GB memory card was sent to FSL, where, upon examination, Dr. Sunil

S.P., Assistant director (documents), FSL, Thiruvananthapuram has allegedly prepared a report in that regard. The copy of the report has not been furnished to the petitioner. The mahazar further shows that the contents of Memory card was transferred to a pen drive for the investigation purpose. The above mahazar further categorically states that the pen drive contained the data transferred from memory card and the same relates to the video footage of 17.2.2017 from 22:30:55 to 22:48:40 hrs and it is in order to check and verify whether the voice contained therein belongs to Suni that the voice sample was allegedly taken. The description in the mahazar proceeds as if there is only male voice in the video footage totally screening the fact that the video footage contains many vital and material utterances in female voice. Those utterances were revealed to the petitioner and his counsel only on 15.12.2017. Everybody present had the benefit of hearing the said clear female voice. As mentioned earlier the Ld. APP was also present. But the investigation agency which should have definitely seen and heard the same has for obvious reason screened the said material aspects from the records. The investigation, it appears did not venture to take steps to compare the female voice in the video footage with the voice of the female involved in this case, for obvious reasons. On viewing and hearing, it is revealed that clear attempt have been made by somebody to delete major portions from the video footage and from the audio recording.

13. It is respectfully submitted that utterances made by the parties involved and seen in the video footage determines the nature of act recorded in the video footage and a transcript of the utterances and human voices in the video footage is highly just and necessary especially in view of the shocking revelation, found when the video footage was played on 15.12.2017.

14. Yet another aspect which is to be pointed out is the mysterious disappearance of the mobile phone allegedly used for recording the video footage. The strong feeling of the petitioner is that the investigating agency has not so far stated the truth regarding the mobile phone allegedly used to shot the video footage. The prosecution records itself would strongly indicate that the mobile phone used to record the occurrence (which now turns out to be a drama) was with the Police or with the persons who are behind the fabrication of the video footage as evidence to launch the criminal prosecution and false implication of the petitioner. It is revolting to common sense to assume that even after conducting investigation for nearly one year by a team headed by a very Senior Police officer like the Addl. DGP of the Stage, during which accused No.1 was in the custody of the investigating team for 14 days at a stretch and thereafter for different spells of time on different occasions the original mobile instrument used for recording the video footage could not be unearthed. It appears that the investigating team was a willing agent to suffer the wrath of such a disgrace in order to suppress the withholding of the mobile instrument.

15. It is interesting to note that even in the second final report dated 22.11.2017 the Police has stated that the investigation to obtain the original mobile phone is even now continuing. It is nothing but an attempt to be fool everybody including the Court.

16. It is most respectfully submitted that in view of the startling revelation in the video footage, the petitioner intends to make request to conduct proper, just and meaningful investigation into the matter so as to ensure that the real truth is revealed and the real culprits in this case are brought to justice. For enabling the petitioner to take steps in that regard. It is highly just and essential that the cloned copy of the contents of memory card containing the video and audio content in the same format as obtained in the Memory card and the transcript of the human voices recorded in it are produced before Court and copy of the same furnished forthwith to the petitioner.

17. As mentioned herein before, the prosecution has chosen to furnish only a small portion of the prosecution records on 15.12.2017. The petitioner is approaching this Hon’ble Court with a detailed petition stating the details of relevant documents which do not form part of the records already produced before this Hon’ble Court and the details of the other documents which are not furnished to petitioner.

18. It is submitted that the petitioner as an accused is legally entitled to get the copies of all documents including the CDs, Video footage etc., and the prosecution is bound to furnish the same to the petitioner.

19. In the above premises it is respectfully prayed that this Hon’ble Court may be pleased to direct the prosecution to furnish a cloned copy of the contents of Memory Card containing the video and audio content in the same format as obtained in the memory card and the transcript of human voices, both male and female recorded in it, and furnish the said cloned copy of the memory card and the transcript to the petitioner.”

6. The Magistrate vide order dated 7.2.2018, rejected the said application, essentially on the ground that acceding to the request of the appellant would be impinging upon the esteem, decency, chastity, dignity and reputation of the victim and also against public interest.

The relevant portion of the order dated 7.2.2018 reads thus:­

“Heard both sides in detail.

The petitioner has also filed reply statement to the objection and counter statement filed by Special Public Prosecutor in the case. The allegation against the petitioner is that he engaged the first accused to sexually assault the victim and videograph the same. On receipt of summons the petitioner entered appearance and was served with the copies of prosecution records. The learned Senior Counsel appearing for the petitioner requested for the copies of the contents of memory card. The same could not be allowed & the investigation official has already a petition filed objecting the same, with a prayer to permit them to view the same in the court. Hence they were permitted to view the video footage and subsequent to the same they had filed this petition seeking a direction to the prosecution to furnish the copies of alleged audio and video footage and its transcript. The prosecution strongly opposed the same stating that the same will add insult to the victim who had suffered a lot at the hands of not only the accused but also the media. Hence they submitted that the petitioner may be permitted to view the contents of the video during trial.

Here the offence alleged tantamounts to a serious blow to the supreme honour of a woman. So as to uphold the esteem, decency, chastity, dignity and reputation of the victim, and also in the public interest, I am declining the prayer. But so as to ensure fairness in the proceedings and for just determination of the truth, the petitioner is permitted to inspect the contents of the video footage at the convenience of court.”

7. Aggrieved by the above decision, the appellant carried the matter to the High Court of Kerala at Ernakulam (for short, ‘the High Court’) by way of Crl.M.C. No. 1663/2018. The learned single Judge of the High Court dismissed the said petition and confirmed the order of the Magistrate rejecting the stated application filed by the appellant. The High Court, however, after analyzing the decisions and the relevant provisions cited before it, eventually concluded that the seized memory card was only the medium on which the alleged incident was recorded and hence that itself is the product of the crime. Further, it being a material object and not documentary evidence, is excluded from the purview of Section 207 of the 1973 Code. The relevant discussion can be discerned from paragraph 41 onwards,

“41. This leads to the crucial question that is to be answered in this case. Evidently, the crux of the prosecution allegation is that, offence was committed for the purpose of recording it on a medium. Memory card is the medium on which it was recorded. Hence, memory card seized by the police itself is the product of the crime. It is not the contents of the memory card that is proposed to be established by the production of the memory card. The acts of sexual abuse is to be established by the oral testimony of the victim and witnesses. It is also not the information derived from the memory card that is sought to be established by the prosecution. Prosecution is trying to establish that the alleged sexual abuse was committed and it was recorded. Though, in the course of evidence, contents of it may be sought to be established to prove that, it was the memory card created by the accused, contemporaneously recorded on the mobile, along with the commission of offence, that does not by itself displace the status of the memory card as a document. Memory card itself is the end product of the crime. It is hence a material object and not a documentary evidence. Hence, it stands out of the ambit of section 207 Cr.P.C.

42. The evaluation of the above legal propositions clearly spells out that, the memory card produced in this case is not a document as contemplated under section 307 IPC [sic 207 Cr.P.C.]. In fact, it is in the nature of a material object. Hence, copy of it cannot be issued to the petitioner herein.

43. Prosecution has a case that, though accused is entitled for his rights, it is not absolute and even outside section 207 Cr.P.C., there can be restrictions regarding the right under section 207 Cr.P.C. It was contended that, if the above statutory provision infringes the right of privacy of the victim involved, fundamental right will supersede the statutory right of the accused. Definitely, in case of Justice K.S. Puttaswamy (Retd.) and Another v. Union of India and Ors. (2017) 10 SCC 1 (at page 1), the Constitutional Bench of the Supreme Court had held that the fundamental rights emanate from basic notions of liberty and dignity and the enumeration of some facets of liberty as distinctly protected rights under Art. 19 does not denude Art.21 of its expansive ambit. It was held that, validity of a law which infringes the fundamental rights has to be tested not with reference to the object of state action, but on the basis of its effect on the guarantees of freedom. In Sherin V. John’s case (supra), this Court had held that, when there is a conflict between Fundamental Rights of a person and statutory rights of another person, Fundamental Rights will prevail. The possibility of such contention may also arise. Since that question does not arise in this case in the light of finding under section 207 Cr.P.C. I do not venture to enter into that issue.

44. Having considered the entire issue, I am inclined to sustain the order of the court below in Crl.M.P. No.49 of 2018 in C.P. No.16 of 2017 dismissing the application, though on different grounds. However, this will not preclude the Court from permitting the accused to watch the memory card only in Court, subject to restrictions, to prepare defence.”

(emphasis supplied)

8. The appellant being dissatisfied, has assailed the reasons which found favour with the trial Court, as well as the High Court. The appellant broadly contends that the prosecution case is founded on the forensic report which suggests that eight video recordings were retrieved from the memory card and that the video files were found to be recorded on 17.2.2017 between 22:30:55 hrs. and 22:48:40 hrs. The same were transferred to the stated memory card on 18.2.2017 between 09:18 hrs. and 09:20 hrs. Be it noted that the original video recording was allegedly done by accused No. 1 on his personal mobile phone, which has not been produced by the investigating agency. However, the memory card on which the offending video recording was copied on 18.2.2017 was allegedly handed over by an Advocate claiming that the accused No. 1 had given it to him. He had presented the memory card before the Court on 20.2.2017, which was sent for forensic examination at State FSL, Thiruvananthapuram. After forensic examination, the same was returned alongwith FSL report DD No. 91/2017 dated 3.3.2017 and DD No. 115/2017 dated 7.4.2017. A pen­drive containing the data/visuals retrieved from the memory card, was also enclosed with the report sent by the State FSL.

9. Be that as it may, the prosecution was obviously relying on the contents of the memory card which have been copied on the pen­drive by the State FSL during the analysis thereof and has been so adverted to in the police report. The contents of the memory card, which are replicated in the pen­drive created by the State FSL would be nothing but a “document” within the meaning of the 1973 Code and the provisions of the 1872 Act. And since the prosecution was relying on the same and proposes to use it against the accused/appellant, it was incumbent to furnish a cloned copy of the contents thereof to the accused/appellant, not only in terms of Section 207 read with Section 173(5) of the 1973 Code, but also to uphold the right of the accused to a fair trial guaranteed under Article 21 of the Constitution of India. The trial Court rejected the request of the appellant on the ground that it would affect the privacy and dignity of the victim, whereas, the High Court proceeded on the basis that the memory card is a material object and not a “document”. It is well known that a cloned copy is not a photocopy, but is a mirror image of the original, and the accused has the right to have the same to present his defence effectively. In the alternative, it is submitted, that the Court could have imposed appropriate conditions while issuing direction to the prosecution to furnish a cloned copy of the contents of memory card to the accused/appellant.

10. Per contra, the respondent­State and the intervenor (the victim) have vehementaly opposed the present appeal on the argument that the appellant before this Court is none other than the master­mind of the conspiracy. Although he was not personally present on the spot, but the entire incident has occurred at his behest. It is urged that the appeal deserves to be dismissed as the appellant has disclosed the identity of the victim in the memo of the special leave petition from which the present appeal has arisen. Further, the appellant has falsely asserted that he had himself perused the contents of the pen­ drive and even for this reason, the appeal should be dismissed at the threshold. As a matter of fact, the contents of the pen­drive were allowed to be viewed by the appellant’s counsel and the regular cadre Assistant Public Prosecutor of the Court. The asservation of the appellant that after viewing the contents of the pen­drive, he gathered an impression that the contents of the memory card must have been tampered with, is the figment of imagination of the appellant and contrary to forensic report(s) by the State FSL. The definite case of the respondent is that the memory card seized in this case containing the visuals of sexual violence upon the victim is a material object and the pen­drive into which the contents of memory card were documented through the process of copying by the State FSL and sent to the Court for the purpose of aiding the trial Court to know the contents of the memory card and the contents of the said pen­ drive is both material object as well as “document”. It is also urged that the visual contents of the pen­drive would be physical evidence of the commission of crime and not “document” per se to be furnished to the accused alongwith the police report. The contents of the memory card or the pen­drive cannot be parted to the accused and doing so itself would be an independent offence. Moreover, if a cloned copy of the contents of the memory card is made available to the accused/appellant, there is reason to believe that it would be misused by the accused/appellant to execute the conspiracy of undermining the privacy and dignity of the victim. It is urged that the appellant has relied on certain decisions to contend that the contents of the memory card must be regarded as “electronic record” and, therefore, a “document”. The exposition in those decisions are general observations and would be of no avail to the appellant. The appellant is facing prosecution for an offence of rape, and the trial thereof would be an in­camera trial before the Special Court. To maintain the sanctity and for upholding the privacy, dignity and identity of the victim, it is urged that the accused/appellant in such cases can seek limited relief before the trial Court to permit him and his lawyer or an expert to view the contents of the pen­drive in Court or at best to permit him to take a second opinion of expert to reassure himself in respect of the doubts entertained by him. Such indulgence would obviate the possibility of misuse of the cloned copy of the video/audio footage/clipping and the same would be in the nature of a preventive measure while giving a fair opportunity to the accused to defend himself. The respondent and the intervenor would urge that the appeal be dismissed being devoid of merits.

11. As aforesaid, both sides have relied on reported decisions of this Court, as well as the High Courts and on the provisions of the relevant enactments to buttress the submissions. We shall refer thereto as may be required.

12. We have heard Mr. Mukul Rohatgi, learned senior counsel for the appellant, Mr. Ranjit Kumar, learned senior counsel for the respondent­State and Mr. R. Basant, learned senior counsel for the intervenor.

13. The central issue is about the obligation of the investigating officer flowing from Section 173 of the 1973 Code and that of the Magistrate while dealing with the police report under Section 207 of the 1973 Code. Section 173 of the 1973 Code ordains that the investigation under Chapter XII of the said Code should be completed without unnecessary delay and as regards the investigation in relation to offences under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of the 1860 Code, the same is required to be completed within two months from the date on which the information was recorded by the officer in charge of the police station. The investigating officer after completing the investigation, is obliged to forward a copy of the police report to a Magistrate empowered to take cognizance of the offence on such police report. Alongwith the police report, the investigating officer is also duty bound to forward to the Magistrate “all documents” or relevant extracts thereof, on which prosecution proposes to rely other than those sent to the Magistrate during investigation. Similarly, the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses, are required to be forwarded to the Magistrate alongwith the police report. Indeed, it is open to the police officer, if in his opinion, any part of the “statement” is not relevant to the subject matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in public interest, to indicate that part of the “statement” and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. That discretion, however, is not given to him in respect of the “documents” or the relevant extracts thereof on which the prosecution proposes to rely against the accused concerned. As regards the documents, sub­Section (7) enables the investigating officer, if in his opinion it is convenient so to do, to furnish copies of all or any of the documents referred to in sub­Section (5) to the accused. Section 173, as amended and applicable to the case at hand, reads thus:­

‘‘173. Report of police officer on completion of investigation.—(1) Every investigation under this Chapter shall be completed without unnecessary delay.

(1A) The investigation in relation to an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of the Indian Penal Code (45 of 1860) shall be completed within two months from the date on which the information was recorded by the officer in charge of the police station.

(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating—

(a) the names of the parties;

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, whether with or without sureties;

(g) whether he has been forwarded in custody under section 170;

(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or section 376E of the Indian Penal Code (45 of 1860).

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.

(3) Where a superior officer of police has been appointed under section 158, the report, shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.

(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report—

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject­matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.

(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub­ section (5).

(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub­section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub­sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub­ section (2).’’

(emphasis supplied)

14. Concededly, as regards the “documents” on which the prosecution proposes to rely, the investigating officer has no option but to forward “all documents” to the Magistrate alongwith the police report. There is no provision (unlike in the case of “statements”) enabling the investigating officer to append a note requesting the Magistrate, to exclude any part thereof (“document”) from the copies to be granted to the accused. Sub­ Section (7), however, gives limited discretion to the investigating officer to forward copies of all or some of the documents, which he finds it convenient to be given to the accused. That does not permit him to withhold the remaining documents, on which the prosecution proposes to rely against the accused, from being submitted to the Magistrate alongwith the police report. On the other hand, the expression used in Section 173(5)(a) of the 1973 Code makes it amply clear that the investigating officer is obliged to forward “all” documents or relevant extracts on which the prosecution proposes to rely against the accused concerned alongwith the police report to the Magistrate.

15. On receipt of the police report and the accompanying statements and documents by virtue of Section 207 of the 1973 Code, the Magistrate is then obliged to furnish copies of each of the statements and documents to the accused. Section 207 reads thus:­

‘‘ 207. Supply to the accused of copy of police report and other documents.—In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:—

(i) the police report;

(ii) the first information report recorded under section 154;

(iii) the statements recorded under sub­section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub­section (6) of section 173;

(iv) the confessions and statements, if any, recorded under section 164;

(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub­section (5) of section 173:

Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:

Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.’’

As regards the statements, the first proviso enables the Magistrate to withhold any part thereof referred to in clause (iii), from the accused on being satisfied with the note and the reasons specified by the investigating officer as predicated in sub­Section (6) of Section 173. However, when it comes to furnishing of documents submitted by the investigating officer alongwith police report, the Magistrate can withhold only such document referred to in clause (v), which in his opinion, is “voluminous”. In that case, the accused can be permitted to take inspection of the concerned document either personally or through his pleader in Court. In other words, Section 207 of the 1973 Code does not empower the Magistrate to withhold any “document” submitted by the investigating officer alongwith the police report except when it is voluminous. A fortiori, it necessarily follows that even if the investigating officer appends his note in respect of any particular document, that will be of no avail as his power is limited to do so only in respect of ‘statements’ referred to in sub­Section (6) of Section 173 of the 1973 Code.

16. Be that as it may, the Magistrate’s duty under Section 207 at this stage is in the nature of administrative work, whereby he is required to ensure full compliance of the Section. We may usefully advert to the dictum in Hardeep Singh v. State of

Punjab1 wherein it was held that:­

“47. Since after the filing of the charge­sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power under Section 319(1) CrPC can be exercised at any time after the charge­sheet is filed and before the pronouncement of judgment, except during the stage of Sections 207/208 CrPC, committal, etc. which is only a pre­trial stage, intended to put the process into motion. This stage cannot be said to be a judicial step in the true sense for it only requires an application of mind rather than a judicial application of mind. At this pre­trial stage, the Magistrate is required to perform acts in the nature of administrative work rather than judicial such as ensuring compliance with Sections 207 and 208 CrPC, and committing the matter if it is exclusively triable by the Sessions Court … … …”

(emphasis supplied)

In yet another case of Tarun Tyagi vs. CBI2, this Court

considered the purport of Section 207 of the 1973 Code and

observed as follows:­

“8. Section 207 puts an obligation on the prosecution to furnish to the accused, free of cost, copies of the documents mentioned therein, without any delay. It includes, documents or the relevant extracts thereof which are forwarded by the police to the Magistrate with its report under Section 173(5) of the Code. Such a compliance has to be made on the first date when the accused appears or is brought before the Magistrate at the commencement of the trial inasmuch as Section 238 of the Code warrants the Magistrate to satisfy himself that provisions of Section 207 have been complied with. Proviso to Section 207 states that if documents are voluminous, instead of furnishing the accused with the copy thereof, the Magistrate can allow the accused to inspect it either personally or through pleader in the Court.”

1 (2014) 3 SCC 92

2 (2017) 4 SCC 490

17. It is well established position that when statute is unambiguous, the Court must adopt plain and natural meaning irrespective of the consequences as expounded in Nelson Motis v. Union of India3. On a bare reading of Section 207 of the 1973 Code, no other interpretation is possible.

18. Be that as it may, furnishing of documents to the accused under Section 207 of the 1973 Code is a facet of right of the accused to a fair trial enshrined in Article 21 of the Constitution. In Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi)4, this Court expounded thus:­

“218. The liberty of an accused cannot be interfered with except under due process of law. The expression “due process of law” shall deem to include fairness in trial. The court (sic Code) gives a right to the accused to receive all documents and statements as well as to move an application for production of any record or witness in support of his case. This constitutional mandate and statutory rights given to the accused place an implied obligation upon the prosecution (prosecution and the Prosecutor) to make fair disclosure. The concept of fair disclosure would take in its ambit furnishing of a document which the prosecution relies upon whether filed in court or not. That document should essentially be furnished to the accused and even in the cases where during investigation a document is bona fide obtained by the investigating agency and in the opinion of the Prosecutor is relevant and would help in arriving at the truth, that document should also be disclosed to the accused.

3 (1992) 4 SCC 711

4 (2010) 6 SCC 1

219. The role and obligation of the Prosecutor particularly in relation to disclosure cannot be equated under our law to that prevalent under the English system as aforereferred to. But at the same time, the demand for a fair trial cannot be ignored. It may be of different consequences where a document which has been obtained suspiciously, fraudulently or by causing undue advantage to the accused during investigation such document could be denied in the discretion of the Prosecutor to the accused whether the prosecution relies or not upon such documents, however in other cases the obligation to disclose would be more certain. As already noticed the provisions of Section 207 have a material bearing on this subject and make an interesting reading. This provision not only require or mandate that the court without delay and free of cost should furnish to the accused copies of the police report, first information report, statements, confessional statements of the persons recorded under Section 161 whom the prosecution wishes to examine as witnesses, of course, excluding any part of a statement or document as contemplated under Section 173(6) of the Code, any other document or relevant extract thereof which has been submitted to the Magistrate by the police under sub­section (5) of Section 173. In contradistinction to the provisions of Section 173, where the legislature has used the expression “documents on which the prosecution relies” are not used under Section 207 of the Code. Therefore, the provisions of Section 207 of the Code will have to be given liberal and relevant meaning so as to achieve its object. Not only this, the documents submitted to the Magistrate along with the report under Section 173(5) would deem to include the documents which have to be sent to the Magistrate during the course of investigation as per the requirement of Section 170(2) of the Code.

220. The right of the accused with regard to disclosure of documents is a limited right but is codified and is the very foundation of a fair investigation and trial. On such matters, the accused cannot claim an indefeasible legal right to claim every document of the police file or even the portions which are permitted to be excluded from the documents annexed to the report under Section 173(2) as per orders of the court. But certain rights of the accused flow both from the codified law as well as from equitable concepts of the constitutional jurisdiction, as substantial variation to such procedure would frustrate the very basis of a fair trial. To claim documents within the purview of scope of Sections 207, 243 read with the provisions of Section 173 in its entirety and power of the court under Section 91 of the Code to summon documents signifies and provides precepts which will govern the right of the accused to claim copies of the statement and documents which the prosecution has collected during investigation and upon which they rely.

221. It will be difficult for the Court to say that the accused has no right to claim copies of the documents or request the Court for production of a document which is part of the general diary subject to satisfying the basic ingredients of law stated therein. A document which has been obtained bona fide and has bearing on the case of the prosecution and in the opinion of the Public Prosecutor, the same should be disclosed to the accused in the interest of justice and fair investigation and trial should be furnished to the accused. Then that document should be disclosed to the accused giving him chance of fair defence, particularly when non­production or disclosure of such a document would affect administration of criminal justice and the defence of the accused prejudicially.”

(emphasis supplied)

19. Similarly, in V.K. Sasikala v. State5, this Court held as under:­

“21. The issue that has emerged before us is, therefore, somewhat larger than what has been projected by the State and what has been dealt with by the High Court. The

5 (2012) 9 SCC 771

question arising would no longer be one of compliance or non­compliance with the provisions of Section 207 CrPC and would travel beyond the confines of the strict language of the provisions of Cr.PC and touch upon the larger doctrine of a free and fair trial that has been painstakingly built up by the courts on a purposive interpretation of Article 21 of the Constitution. It is not the stage of making of the request; the efflux of time that has occurred or the prior conduct of the accused that is material. What is of significance is if in a given situation the accused comes to the court contending that some papers forwarded to the court by the investigating agency have not been exhibited by the prosecution as the same favours the accused the court must concede a right to the accused to have an access to the said documents, if so claimed. This, according to us, is the core issue in the case which must be answered affirmatively. In this regard, we would like to be specific in saying that we find it difficult to agree with the view taken by the High Court that the accused must be made to await the conclusion of the trial to test the plea of prejudice that he may have raised. Such a plea must be answered at the earliest and certainly before the conclusion of the trial, even though it may be raised by the accused belatedly. This is how the scales of justice in our criminal jurisprudence have to be balanced.”

(emphasis supplied)

20. The next seminal question is: whether the contents of the memory card/pen­drive submitted to the Court alongwith the police report can be treated as “document” as such. Indubitably, if the contents of the memory card/pen­drive are not to be treated as “document”, the question of furnishing the same to the accused by virtue of Section 207 read with Section 173 of the 1973 Code would not arise. We say so because it is nobody’s case before us that the contents of the memory card/pen­drive be treated as a “statement” ascribable to Section 173(5)(b) of the 1973 Code. Notably, the command under Section 207 is to furnish “statements” or “documents”, as the case may be, to the accused as submitted by the investigating officer alongwith the police report, where the prosecution proposes to rely upon the same against the accused.

21. The High Court adverted to certain judgments before concluding that the memory card would be a material object. For arriving at the said conclusion, the High Court relied on the decision of the King’s Bench of United Kingdom in The King v.

Daye6, wherein Darling J., adding to the majority opinion, had held thus:­

“…But I should myself say that any written thing capable of being evidence is properly described as a document and that it is immaterial on what the writing may be inscribed. It might be inscribed on paper, as is the common case now; but the common case once was that it was not on paper, but on parchment; and long before that it was on stone, marble, or clay, and it might be, and often was, on metal. So I should desire to guard myself against being supposed to assent to the argument that a thing is not a document unless it be a paper writing. I should say it is a document no matter upon what material it be, provided it is writing or printing and capable of being evidence.”

(emphasis supplied)

6 [1908] 2 K.B. 333

The High Court also relied on the decision of the Chancery Court in Grant and Another v. Southwester and County Properties Ltd. and Another7, wherein it was observed as follows:­

“There are a number of cases in which the meaning of the word “document” has been discussed in varying circumstances. Before briefly referring to such cases, it will, I think, be convenient to bear in mind that the derivation of the word is from the Latin “documentum”: it is something which instructs or provides information. Indeed, according to Bullokar’s English Expositor (1621), it meant a lesson. The Shorter Oxford English Dictionary has as the fourth meaning for the word the following: “Something written, inscribed, etc., which furnishes evidence or information upon any subject, as a manuscript, title­deed, coin, etc.,” and it produces as the relevant quotation: ­ “These frescoes… have become invaluable as documents,” the writer being Mrs. Anna Brownell Jameson who lived from 1794 to 1860.

I think that all the authorities to which I am about to refer have consistently stressed the furnishing of information ­ impliedly otherwise than as to the document itself ­ as being one of the main functions of a document. Indeed, in In Re Alderton and Barry’s Application (1941) 59 R.P.C. 56, Morton J. expressly doubted whether blank workmen’s time sheets could be classified as documents within section 11(1)(b) of the Patent and Design Acts 1907­ 1939 expressly because in their original state they conveyed no information of any kind to anybody…”

It can be safely deduced from the aforementioned expositions that the basis of classifying article as a “document” depends upon the information which is inscribed and not on where it is inscribed. It may be useful to advert to the exposition of this

7 [1975] Ch. 185

Court holding that tape records of speeches8 and audio/video cassettes9 including compact disc10 were “documents” under Section 3 of the 1872 Act, which stand on no different footing than photographs and are held admissible in evidence. It is by now well established that the electronic record produced for the inspection of the Court is documentary evidence under Section 3 of the 1872 Act 11.

22. It is apposite to recall the exposition of this Court in State

of Maharashtra vs. Dr. Praful B. Desai12, wherein this Court observed that the Criminal Procedure Code is an ongoing statute. In case of an ongoing statute, it is presumed that the Parliament intended the Court to apply a construction that continuously updates its wordings to allow for changes and is compatible with the contemporary situation. In paragraph 14 of the said decision, the Court observed thus:­

“14. It must also be remembered that the Criminal Procedure Code is an ongoing statute. The principles of interpreting an ongoing statute have been very succinctly

8 Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329

9 Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra & Ors., (1976) 2 SCC 17 10 Shamsher Singh Verma vs. State of Haryana, (2016) 15 SCC 485

11 Anwar P.V. vs. P.K. Basheer, (2014) 10 SCC 473

12 (2003) 4 SCC 601

set out by the leading jurist Francis Bennion in his commentaries titled Statutory Interpretation, 2nd Edn., p. 617:

“It is presumed Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wordings to allow for changes since the Act was initially framed. While it remains law, it has to be treated as always speaking. This means that in its application on any day, the language of the Act though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as a current law.

***

In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the original intention. Accordingly, the interpreter is to make allowances for any relevant changes that have occurred since the Act’s passing, in law, in social conditions, technology, the meaning of words and other matters…. That today’s construction involves the

supposition that Parliament was catering long ago for a state of affairs that did not then exist is no argument against that construction. Parliament, in the wording of an enactment, is expected to anticipate temporal developments. The drafter will foresee the future and allow for it in the wording.

***

An enactment of former days is thus to be read today, in the light of dynamic processing received over the years, with such modification of the current meaning of its language as will now give effect to the original legislative intention. The reality and effect of dynamic processing provides the gradual adjustment. It is constituted by judicial interpretation, year in and year out. It also comprises processing by executive officials.””

(emphasis supplied)

23. As aforesaid, the respondents and intervenor would contend that the memory card is a material object and not a “document”

as such. If the prosecution was to rely only on recovery of memory card and not upon its contents, there would be no difficulty in acceding to the argument of the respondent/intervenor that the memory card/pen­drive is a

material object. In this regard, we may refer to Phipson on

Evidence13, and particularly, the following paragraph(s):­

“The purpose for which it is produced determines

whether a document is to be regarded as documentary

evidence. When adduced to prove its physical

condition, for example, an alteration, presence of a

signature, bloodstain or fingerprint, it is real evidence.

So too, if its relevance lies in the simple fact that it

exists or did once exist or its disposition or nature. In

all these cases the content of the document, if relevant

at all, is only indirectly relevant, for example to

establish that the document in question is a lease.

When the relevance of a document depends on the

meaning of its contents, it is considered documentary

evidence.”

… … …”

(emphasis supplied)

Again at page 5 of the same book, the definition of “real

evidence14” is given as under:­

“Material objects other than documents, produced for inspection of the court, are commonly called real evidence. This, when available, is probably the most satisfactory kind of all, since, save for identification or explanation, neither testimony nor inference is relied upon. Unless its

13 Hodge M. Malek, Phipson on Evidence, 19th Edn, 2018, pg. 1450

14 Hodge M. Malek, Phipson on Evidence, 19th Edn, 2018, pg. 5

genuineness is in dispute [See Belt v Lawes, The Times, 17 November 1882.], the thing speaks for itself.

Unfortunately, however, the term “real evidence” is itself both indefinite and ambiguous, having been used in three divergent senses:

(1) … … …

(2) Material objects produced for the inspection of the court. This is the second and most widely accepted meaning of “real evidence”. It must be borne in mind that there is a distinction between a document used as a record of a transaction, such as a conveyance, and a document as a thing. It depends on the circumstances in which classification it falls. On a charge of stealing a document, for example, the document is a thing.

(3) ………”

A priori, we must hold that the video footage/clipping contained in such memory card/pen­drive being an electronic record as envisaged by Section 2(1)(t) of the 2000 Act, is a “document” and cannot be regarded as a material object. Section 2(1)(t) of the 2000 Act reads thus:­

‘‘2(1)(t) “electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer­generated micro fiche;’’

24. As the above definition refers to data or data generated, image or sound stored, received or sent in an electronic form, it

would be apposite to advert to the definition of “data” as

predicated in Section 2(1)(o) of the same Act. It reads thus:­

“2(1)(o) “data” means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer;’’

On conjoint reading of the relevant provisions, it would be amply clear that an electronic record is not confined to “data” alone, but it also means the record or data generated, received or sent in electronic form. The expression “data” includes a representation of information, knowledge and facts, which is either intended to be processed, is being processed or has been processed in a computer system or computer network or stored internally in the memory of the computer.

25. Having noticed the above definitions, we may now turn to definitions of expressions “document” and “evidence” in Section 3 of the 1872 Act being the interpretation clause. The same reads thus:­

“3. Interpretation clause.­

Document.­ “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.

Illustrations

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.

Evidence.­ “Evidence” means and includes—

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;

(2) all documents including electronic records produced for the inspection of the Court,

such documents are called documentary evidence.”

On a bare reading of the definition of “evidence”, it clearly takes within its fold documentary evidence to mean and include all documents including electronic records produced for the inspection of the Court. Although, we need not dilate on the question of admissibility of the contents of the memory card/pen­drive, the same will have to be answered on the basis of Section 65B of the 1872 Act. The same reads thus:­

“65B. Admissibility of electronic records.­(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub­section (1) in respect of a computer output shall be the following, namely:­

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.”

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in

clause (a) of sub­section (2) was regularly performed by computers, whether—

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub­section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub­section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,—

(a) infomation shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation.—For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.”

This provision is reiteration of the legal position that any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a “document” and shall be admissible in evidence subject to satisfying other requirements of the said provision.

26. It may be useful to also advert to Section 95(2)(b) of the 1973 Code, which refers to “document” to include any painting,

drawing or photograph, or other visible representation. And again, the expression “document” has been defined in Section 29 of the 1860 Code, which reads thus:­

‘‘29. “Document”.—The word “document” denotes 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, as evidence of that matter.

Explanation 1.—It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in, a Court of Justice, or not.

Illustrations

A writing expressing the terms of a contract, which may be used as evidence of the contract, is a document.

A cheque upon a banker is a document.

A power­of­attorney is a document.

A map or plan which is intended to be used or which may be used as evidence, is a document.

A writing containing directions or instructions is a document.

Explanation 2.—Whatever is expressed by means of letters, figures or marks as explained by mercantile or other usage, shall be deemed to be expressed by such letters, figures or marks within the meaning of this section, although the same may not be actually expressed.

Illustration

A writes his name on the back of a bill of exchange payable to his order. The meaning of the endorsement, as explained by mercantile usage, is that the bill is to be paid to the holder. The endorsement is a document, and must be construed in the same manner as if the words “pay to the holder” or words to that effect had been written over the signature.’’

27. Additionally, it may be apposite to also advert to the definition of “communication devices” given in Section 2(1)(ha) of the 2000 Act. The said provision reads thus:­

‘‘2(1)(ha) ‘‘communication device’’ means cell phones, personal digital assistance or combination of both or any other device used to communicate, send or transmit any text, video, audio or image’’

28. We may also advert to the definition of “information” as provided in Section 2(1)(v) of the 2000 Act. The same reads thus:­

‘‘2(1)(v) ‘‘information’’ includes data, message, text, images sound, voice, codes, computer programmes, software and data bases or micro film or computer generated micro fiche’’

29. Even the definition of “document” given in the General Clauses Act would reinforce the position that electronic records ought to be treated as “document”. The definition of “document” in Section 3(18) of the General Clauses Act reads thus:­

‘‘3(18) ‘‘document’’ shall include any matter written, expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used, for the purpose of recording that matter”

30. It may be apposite to refer to the exposition in Halsbury’s laws of England15 dealing with Chapter – “Documentary and Real Evidence” containing the meaning of documentary evidence and the relevancy and admissibility thereof including about the audio

and video recordings. The relevant exposition reads thus:­

“(12) DOCUMENTARY AND REAL EVIDENCE

1462. Meaning of documentary evidence. The term ‘document’ bears different meanings in different contexts. At common law, it has been held that any written thing capable of being evidence is properly described as a document16, and this clearly includes printed text, diagrams, maps and plans17. Photographs are also regarded as documents at common law18.

Varying definitions have been adopted in legislation19. A document may be relied on as real evidence (where its existence, identity or appearance, rather than its content, is in issue20), or as documentary evidence. Documentary

15 Fourth Edition, 2006 reissue, Vol. 11(3) Criminal Law, Evidence and Procedure

16 R v. Daye [1908] 2 KB 333 at 340, DC, per Darling J.

17 A tombstone bearing an inscription is in this sense a document (see Mortimer v. M’Callan (1840) 6 M & W 58), as is a coffin­plate bearing an inscription (see R v. Edge (1842) Wills, Circumstantial Evidence (6th Edn.) 309).

18 See also Lyell v. Kennedy (No. 3) (1884) 27 ChD 1, 50 LT 730, Senior v. Holdsworth, ex p. Independent Television News Ltd. [1976] QB 23, [1975] 2 All ER 1009, Victor Chandler International Ltd. v. Customs and Excise Comrs. [2000] 1 All ER 160, [1999] 1 WLR 2160, ChD.

19 For the purposes of the Police and Criminal Evidence Act 1984, ‘document’ means anything in which information of any description is recorded: s. 118 (amended by the Civil Evidence Act 1995 S. 15(1), Sch 1 para 9(3)). For the purposes of the Criminal Justice Act 2003 Pt. 11 (ss. 98­141) (as amended) (evidence), the definition is the same (see s. 134(1)), save that for the purposes of Pt. 11 Ch. 3 (ss 137­141) (which includes the provision relating to refreshing memory (see s. 139; and para 1438 ante)) it excludes any recording of sounds or moving images (see s. 140).

20 See eg R. v. Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR; Boyle v. Wiseman (1855)

11 Exch 360. Documents produced by purely mechanical means may constitute real evidence even where reliance is placed on the content: The Statute of Liberty, Sapporo Maru (Owners) vs. Statue of Liberty (Owners) [1968] 2 All ER 195, [1968] 1 WLR 739 (film evidence denotes reliance on a document as proof of its terms or contents21. The question of the authenticity of a document is to be decided by the jury22.

1463. The primary evidence rule. Under the ‘primary evidence rule’ at common law23, it was once thought necessary for the contents of any private document to be proved by production of the original document24. A copy of an original document, or oral evidence as to the contents of that document, was considered admissible only in specified circumstances, namely: (1) where another party to the proceedings failed to comply with a notice to produce the original which was in his possession (or where the need to produce it was so clear that no such notice was required)25; (2) where production of the original was shown to be impossible26; (3) where the original appeared to have been lost or destroyed27; and (4) where a third party in possession of the original lawfully declined to produce it28….

xxx xxx xxx

of radar echoes); R. v. Wood (1982) 76 Cr.App. Rep. 23, CA (computer used as calculator); Castel v. Cross [1985] 1 All ER 87, [1984] 1 WLR 1372, DC (printout of evidential breath­ testing device). See also Garner v. DPP (1989) Crim. LR 583, DC; R. v. Skinner [2005] EWCA Crim. 1439, [2006] Crim. LR 56, [2005] ALL ER (D) 324 (May). As to real evidence generally see para 1466 post.

21 R. v. Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR.

22 R. vs. Wayte (1982) 76 Cr.App. Rep. 110 at 118, CA. The admissibility of a document is, following the general rule, a question for the judge: See para 1360 ante. A document which the law requires to be stamped, but which is unstamped, is admissible in criminal proceedings: Stamp Act 1891 s. 14(4) (amended by the Finance Act 1999 s. 109(3), Sch 12 para 3(1), (5)).

23 As to the related ‘best evidence rule’ see para 1367 ante.

24 As to the admissibility of examined or certified copies of public documents at common law see EVIDENCE vol. 17(1) (Reissue) para 821 et. seq.

25 A­G v. Le Merchant (1788) 2 2 Term Rep 201n; R. v. Hunter (1829) 4 C & P 128; R v. Elworthy (1867) LR 1 CCR 103, 32 JP 54, CCR.

26 Owner v. Be Hive Spinning Co. Ltd. [1914] 1 KB 105, 12 LGR 421; Alivon v. Furnival (1834) 1 Cr.M. & R 277.

27 R. v. Haworth (1830) 4 C & P 254

28 R. v. Nowaz (1976) 63 Cr.App. Rep 178, CA. A further possibility was that contents of a document might be proved by an admission or confession: Slatterie v. Pooley (1840) 6 M & W 664

1466. Real evidence. Material objects or things (other than the contents of documents) which are produced as exhibits for inspection by a court or jury are classed as real evidence29. The court or jury may need to hear oral testimony explaining the background and alleged significance of any such exhibit, and may be assisted by expert evidence in drawing inferences or conclusions from the condition of that exhibit30.

Where a jury wishes to take an exhibit, such as a weapon, into the jury room, this is something which the judge has a discretion to permit31. Jurors must not however conduct unsupervised experiments32, or be allowed to inspect a thing which has not been produced in evidence33.

Failure to produce an object which might otherwise have been admissible as real evidence does not preclude the admission of oral evidence concerning the existence or condition of that object, although such evidence may carry far less weight34.

xxx xxx xxx

1471. Audio and video recordings. An audio recording is admissible in evidence provided that the accuracy of the recording

29 This include animals, such as dogs, which may be inspected to see if they are ferocious (Line v. Taylor (1862) 3 F & F 731) or whether they appear to have been ill­treated, etc. Note however that statements (such as statements of origin) printed on objects may give rise to issues of hearsay if it is sought to rely on them as true: Comptroller of Customs v. Western Lectric Co. Ltd. [1966] AC 367, [1965] 3 All ER 599, PC.

30 Expert evidence may often be essential if the court or jury is to draw any kind of informed conclusions from their examination of the exhibit. It would be dangerous, for example, for a court or jury to draw its own unaided conclusions concerning the identity of fingerprints or the age and origin of bloodstains: Anderson v. R. [1972] AC 100, [1971] 3 All ER 768, PC.

31 R. v. Wright [1993] Crim. LR 607, CA; R. v. Devichand [1991] Crim. LR 446, CA.

32 R. v. Maggs (1990) 91 Cr. App. Rep 243, CA, per Lord Lane CJ at 247; R. v. Crees [1996] Crim. LR 830, CA; R. v. Stewart (1989) 89 Cr. App. Rep. 273, [1989] Crim. LR 653, CA.

33 R. v. Lawrence [1968] 1 All ER 579, 52 CR. App. Rep. 163, CCA.

34 R. v. Francis (1874) LR 2 CCR 128, 43 LJMC 97, CCR; Hocking v. Ahlquist Bros. [1944] KB 120, [1943] 1 All ER 722, DC. See also R. v. Uxbridge Justices, ex. P. Sofaer (1987) 85 Cr.App. Rep. 367, DC. If the object in question is in the possession of the prosecutor or of a third person, its production may generally be compelled by issue of a witness order under the Criminal Procedure (Attendance of Witnesses) Act, 1965 s. 2 (as substituted and amended) or under the Magistrates’ Court Act, 1980 s. 97 (as substituted and amended) (see para 1409 ante). The defendant cannot, however, be served with such an order, lest he be forced to incriminate himself: Trust Houses Ltd. v. Postlethwaite (1944) 109 JP 12.

can be proved, the recorded voices can be properly identified, and the evidence is relevant and otherwise admissible35. However, that evidence should always be regarded with caution and assessed in the light of all the circumstances36.

A video recording of an incident which is in issue is admissible37. There is no difference in terms of admissibility between a direct view of an incident and a view of it on a visual display unit of a camera or on a recording of what the camera has filmed. A witness who sees an incident on a display or a recording may give evidence of what he saw in the same way as a witness who had a direct view38.”

(emphasis supplied)

31. In order to examine the purport of the term “matter” as found in Section 3 of the 1872 Act, Section 29 of the 1860 Code and Section 3(18) of the General Clauses Act, and to ascertain

35 R. v. Maqsud Ali, R v. Ashiq Hussain [1966] 1 QB 688, 49 Cr.App. Rep 230, CCA. For the considerations relevant to the determination of admissibility see R. v. Stevenson, R. v. Hulse, R. v. Whitney [1971] 1 All ER 678, 55 Cr.App. Rep 171; R. v. Robson, R. v. Harris [1972] 2 All ER 699, 56 Cr.App. Rep 450. See also R. v. Senat, R. v. Sin (1968) 52 Cr. App. Rep 282, CA; R. v. Bailey [1993] 3 All ER 513, 97 Cr.App. Rep 365, CA. Where a video recording of an incident becomes available after the witness has made a statement, the witness may view the video and, if necessary, amend his statement so long as the procedure adopted is fair and the witness does not rehearse his evidence: R. v. Roberts (Michael), R. v. Roberts (Jason) [1998] Crim. LR 682, 162 JP 691, CA.

36 R. v. Maqsud Ali, R. v. Ashiq Hussain [1966] 1 QB 688, 49 Cr.App. Rep 230, CCA. As to the use of tape recordings and transcripts see R. v. Rampling [1987] Crim. LR 823, CA; and see also Buteria v. DPP (1986) 76 ALR 45, Aust. HC. As to the tape recording of police interviews see para 971 et seq ante; and as to the exclusion of a tape recording under the Police and Criminal Evidence Act, 1984 s. 78 (as amended) (see para 1365 ante) as unfair evidence see R. v. H [1987] Crim. LR 47, Cf R. v. Jelen, R. v. Karz (1989) 90 Cr. App. Rep 456, CA (tape recording admitted despite element of entrapment).

37 Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191, DC.

38 Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191, DC. As to the admissibility of video recordings as evidence identifying the defendant see also R. v. Fowden and White [1982] Crim. LR 588, CA; R. v. Grimer [1982] Crim. LR 674, CA; R. v. Blenkinsop [1995] 1 Cr.App. Rep 7, CA. A recording showing a road on which an incident had occurred was admitted in R. v. Thomas [1986] Crim. LR 682. As to the identification of the defendant by still photographs taken by an automatic security camera see R. v. Dodson, R. v. Williams [1984] 1 WLR 971, 79 Cr.App. Rep 220, CA; as to identification generally see para 1455 ante; and as to the admissibility of a copy of a video recording of an incident see Kajala v. Noble (1982) 75 Cr.App. Rep 149, CA.

whether the contents of the memory card can be regarded as “document”, we deem it appropriate to refer to two Reports of the Law Commission of India. In the 42nd Law Commission Report39, the Commission opined on the amendments to the 1860 Code. Dealing with Section 29 of the 1860 Code, the Commission opined as under:­

“2.56. The main idea in all the three Acts is the same and the emphasis is on the “matter” which is recorded, and not on the substance on which the matter is recorded. We feel, on the whole, that the Penal Code should contain a definition of “document” for its own purpose, and that section 29 should be retained.”

The said observation is restated in the 156th Report40, wherein the Commission opined thus:­

“11.08 Therefore, the term ‘document’ as defined in Section 29, IPC may be enlarged so as to specifically include therein any disc, tape, sound track or other device on or in which any matter is recorded or stored by mechanical, electronic or other means … … … The aforesaid proposed amendment in section 29 would also necessitate consequential amendment of the term “document” under section 3 of the Indian Evidence Act, 1872 on the lines indicated above.”

Considering the aforementioned Reports, it can be concluded

that the contents of the memory card would be a “matter” and

39 Forty­Second Report, Law Commission India, Indian Penal Code, June, 1971, 32­35

40 One Hundred Fifty­Sixth Report on the Indian Penal Code (Volume I), August, 1997, Law Commission of India, Chapter­XI

the memory card itself would be a “substance” and hence, the contents of the memory card would be a “document”.

32. It is crystal clear that all documents including “electronic record” produced for the inspection of the Court alongwith the police report and which prosecution proposes to use against the accused must be furnished to the accused as per the mandate of Section 207 of the 1973 Code. The concomitant is that the contents of the memory card/pen­drive must be furnished to the accused, which can be done in the form of cloned copy of the memory card/pen­drive. It is cardinal that a person tried for such a serious offence should be furnished with all the material and evidence in advance, on which the prosecution proposes to rely against him during the trial. Any other view would not only impinge upon the statutory mandate contained in the 1973 Code, but also the right of an accused to a fair trial enshrined in Article 21 of the Constitution of India.

33. We do not wish to dilate further nor should we be understood to have examined the question of relevancy of the

contents of the memory card/pen­drive or for that matter the proof and admissibility thereof. The only question that we have examined in this appeal is: whether the contents of the memory card/pen­drive referred to in the chargesheet or the police report submitted to Magistrate under Section 173 of the 1973 Code, need to be furnished to the accused if the prosecution intends to rely on the same by virtue of Section 207 of the 1973 Code?

34. Reverting to the preliminary objection taken by the respondent for dismissing the appeal at the threshold because of the disclosure of identity of the victim in the memo of the special leave petition forming the subject matter of the present appeal, we find that the explanation offered by the appellant is plausible inasmuch as the prosecution itself had done so by naming the victim in the First Information Report/Crime Case, the statement of the victim under Section 161, as well as under Section 164 of the 1973 Code, and in the chargesheet/police report filed before the Magistrate. Even the objection regarding incorrect factual narration about the appellant having himself viewed the contents of the memory card/pen­drive does not take the matter any

further, once we recognize the right of the accused to get the cloned copies of the contents of the memory card/pen­drive as being mandated by Section 207 of the 1973 Code and more so, because of the right of the accused to a fair trial enshrined in Article 21 of the Constitution of India.

35. The next crucial question is: whether parting of the cloned copy of the contents of the memory card/pen­drive and handing it over to the accused may be safe or is likely to be misused by the accused or any other person with or without the permission of the accused concerned? In the present case, there are eight named accused as of now. Once relief is granted to the appellant who is accused No. 8, the other accused would follow the same suit. In that event, the cloned copies of the contents of the memory card/pen­drive would be freely available to all the accused.

36. Considering the principles laid down by this Court in

Tarun Tyagi (supra), we are of the opinion that certain conditions need to be imposed in the fact situation of the present

case. However, the safeguards/conditions suggested by the appellant such as to take help of experts, to impose watermarks on the respective cloned copies etc., may not be sufficient measure to completely rule out the possibility of misuse thereof. In that, with the advancement of technology, it may be possible to breach even the security seals incorporated in the concerned cloned copy. Besides, it will be well­nigh impossible to keep track of the misuse of the cloned copy and its safe and secured custody.

37. Resultantly, instead of allowing the prayer sought by the appellant in toto, it may be desirable to mould the relief by permitting the appellant to seek second expert opinion from an independent agency such as the Central Forensic Science Laboratory (CFSL), on all matters which the appellant may be advised. In that, the appellant can formulate queries with the help of an expert of his choice, for being posed to the stated agency. That shall be confidential and not allowed to be accessed by any other agency or person not associated with the CFSL. Similarly, the forensic report prepared by the CFSL, after

analyzing the cloned copy of the subject memory card/pen­drive, shall be kept confidential and shall not be allowed to be accessed by any other agency or person except the concerned accused or his authorized representative until the conclusion of the trial. We are inclined to say so because the State FSL has already submitted its forensic report in relation to the same memory card at the instance of the investigating agency.

38. Needless to mention that the appellant before us or the other accused cannot and are not claiming any expertise, much less, capability of undertaking forensic analysis of the cloned copy of the contents of the memory card/pen­drive. They may have to eventually depend on some expert agency. In our opinion, the accused, who are interested in reassuring themselves about the genuineness and credibility of the contents of the memory card in question or that of the pen­drive produced before the trial Court by the prosecution on which the prosecution would rely during the trial, are free to take opinion of an independent expert agency, such as the CFSL on such matters as they may be advised, which information can be used

by them to confront the prosecution witnesses including the forensic report of the State FSL relied upon by the prosecution forming part of the police report.

39. Considering that this is a peculiar case of intra­conflict of fundamental rights flowing from Article 21, that is right to a fair trial of the accused and right to privacy of the victim, it is imperative to adopt an approach which would balance both the rights. This principle has been enunciated in the case of Asha Ranjan v. State of Bihar41 wherein this Court held thus:­

“57. The aforesaid decision is an authority for the proposition that there can be a conflict between two individuals qua their right under Article 21 of the Constitution and in such a situation, to weigh the balance the test that is required to be applied is the test of larger public interest and further that would, in certain circumstances, advance public morality of the day. To put it differently, the “greater community interest” or “interest of the collective or social order” would be the principle to recognise and accept the right of one which has to be protected.

xxx xxx xxx

61. Be it stated, circumstances may emerge that may necessitate for balancing between intra­fundamental rights. It has been distinctly understood that the test that has to be applied while balancing the two fundamental rights or inter fundamental rights, the principles applied may be different than the principle to be applied in intra­ conflict between the same fundamental right … … … Thus, there can be two individuals both having legitimacy to

41 (2017) 4 SCC 397

claim or assert the right. The factum of legitimacy is a primary consideration. It has to be remembered that no fundamental right is absolute and it can have limitations in certain circumstances … … … Therefore, if the collective interest or the public interest that serves the public cause and further has the legitimacy to claim or assert a fundamental right, then only it can put forth that their right should be protected. There can be no denial of the fact that the rights of the victims for a fair trial is an inseparable aspect of Article 21 of the Constitution and when they assert that right by themselves as well as the part of the collective, the conception of public interest gets galvanised. The accentuated public interest in such circumstances has to be given primacy, for it furthers and promotes “Rule of Law”. It may be clarified at once that the test of primacy which is based on legitimacy and the public interest has to be adjudged on the facts of each case and cannot be stated in abstract terms. It will require studied scanning of facts, the competing interests and the ultimate perception of the balancing that would subserve the larger public interest and serve the majesty of rule of law. … … …

xxx xxx xxx

86.1. The right to fair trial is not singularly absolute, as is perceived, from the perspective of the accused. It takes in its ambit and sweep the right of the victim(s) and the society at large. These factors would collectively allude and constitute the Rule of Law i.e. free and fair trial.

86.2. The fair trial which is constitutionally protected as a substantial right under Article 21 and also the statutory protection, does invite for consideration a sense of conflict with the interest of the victim(s) or the collective/interest of the society. When there is an intra­conflict in respect of the same fundamental right from the true perceptions, it is the obligation of the constitutional courts to weigh the balance in certain circumstances, the interest of the society as a whole, when it would promote and instil Rule of Law. A fair trial is not what the accused wants in the name of fair trial. Fair trial must soothe the ultimate justice which is sought individually, but is subservient and would not prevail when fair trial requires transfer of the criminal proceedings.”

(emphasis supplied)

40. This Court in Mazdoor Kisan Shakti Sangathan v. Union of India42 has restated the legal position in the following terms:­

“61. Undoubtedly, right of people to hold peaceful protests and demonstrations, etc. is a fundamental right guaranteed under Articles 19(1)(a) and 19(1)(b) of the Constitution. The question is as to whether disturbances, etc. caused by it to the residents, as mentioned in detail by the NGT, is a larger public interest which outweighs the rights of protestors to hold demonstrations at Jantar Mantar Road and, therefore, amounts to reasonable restriction in curbing such demonstrations. Here, we agree with the detailed reasoning given by the NGT that holding of demonstrations in the way it has been happening is causing serious discomfort and harassment to the residents. At the same time, it is also to be kept in mind that for quite some time Jantar Mantar has been chosen as a place for holding demonstrations and was earmarked by the authorities as well. Going by the dicta in Asha

Ranjan [Asha Ranjan v. State of Bihar, (2017) 4 SCC 397 : (2017) 2 SCC (Cri) 376] , principle of primacy cannot be given to one right whereby the right of the other gets totally extinguished. Total extinction is not balancing. Balancing would mean curtailing one right of one class to some extent so that the right of the other class is also protected.”

(emphasis supplied)

41. We are conscious of the fact that Section 207 of the 1973 Code permits withholding of document(s) by the Magistrate only if it is voluminous and for no other reason. If it is an “electronic record”, certainly the ground predicated in the second proviso in

42 (2018) 17 SCC 324

Section 207, of being voluminous, ordinarily, cannot be invoked and will be unavailable. We are also conscious of the dictum in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Satyen Bhowmick & Ors.43, wherein this Court has restated the cardinal principle that accused is entitled to have copies of the statements and documents accompanying the police report, which the prosecution may use against him during the trial.

42. Nevertheless, the Court cannot be oblivious to the nature of offence and the principle underlying the amendment to Section

327 of the 1973 Code, in particular sub­Section (2) thereof and insertion of Section 228A of the 1860 Code, for securing the privacy of the victim and her identity. Thus understood, the Court is obliged to evolve a mechanism to enable the accused to reassure himself about the genuineness and credibility of the contents of the memory card/pen­drive from an independent agency referred to above, so as to effectively defend himself during the trial. Thus, balancing the rights of both parties is imperative, as has been held in Asha Ranjan (supra) and

43 (1981) 2 SCC 109

Mazdoor Kisan Shakti Sangathan (supra). The Court is duty bound to issue suitable directions. Even the High Court, in exercise of inherent power under Section 482 of the 1973 Code, is competent to issue suitable directions to meet the ends of justice.

43. If the accused or his lawyer himself, additionally, intends to inspect the contents of the memory card/pen­drive in question, he can request the Magistrate to provide him inspection in Court, if necessary, even for more than once alongwith his lawyer and I.T. expert to enable him to effectively defend himself during the trial. If such an application is filed, the Magistrate must consider the same appropriately and exercise judicious discretion with objectivity while ensuring that it is not an attempt by the accused to protract the trial. While allowing the accused and his lawyer or authorized I.T. expert, all care must be taken that they do not carry any devices much less electronic devices, including mobile phone which may have the capability of copying or transferring the electronic record thereof or mutating the contents of the memory card/pen­drive in any manner. Such multipronged approach may subserve the ends of justice and also effectuate the right of accused to a fair trial guaranteed under Article 21 of the Constitution.

44. In conclusion, we hold that the contents of the memory card/pen drive being electronic record must be regarded as a document. If the prosecution is relying on the same, ordinarily, the accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial. However, in cases involving issues such as of privacy of the complainant/witness or his/her identity, the Court may be justified in providing only inspection thereof to the accused and his/her lawyer or expert for presenting effective defence during the trial. The court may issue suitable directions to balance the interests of both sides.

45. In view of the above, this appeal partly succeeds. The impugned judgment and order passed by the trial Court and the High Court respectively stand modified by giving option to the appellant/accused to the extent indicated hitherto, in particular paragraphs 37, 38 and 43.

46. Resultantly, the application filed by the appellant before the trial Court being Crl.M.P. No. 49/2018 in C.P. No. 16/2017 is partly allowed in the aforementioned terms.

47. We direct the trial Court to ensure that the trial in C.P. No. 16/2017 is concluded expeditiously, preferably within six months from the date of this judgment.

J (A.M. Khanwilkar)

J (Dinesh Maheshwari)

New Delhi;

November 29, 2019.

Proof, what is

What is Proof

In mathematics, a proof is a demonstration that, assuming certain axioms, some statement is necessarily true. A proof is a logical argument, not an empirical one. That is, one must demonstrate that a proposition is true in all cases before it is considered a theorem of mathematics. An unproven proposition for which there is some sort of empirical evidence is known as a conjecture.

Proofs employ logic but usually include some amount of natural language which usually admits some ambiguity. In fact, the vast majority of proofs in written mathematics can be considered as applications of informal logic. Purely formal proofs are considered in proof theory. The distinction between formal and informal proofs has led to much examination of current and historical mathematical practice, quasi-empiricism in mathematics, and so-called folk mathematics (in both senses of that term).

Methods of proof

Direct proof

In direct proof, the conclusion is established by logically combining the axioms, definitions, and earlier theorems. For example, direct proof can be used to establish that the sum of two even integers is always even:

Consider two even integers x and y. Since they are even, they can be written as x = 2a and y = 2b respectively for integers a and b. Then the sum x + y = 2a + 2b = 2(a + b). From this it is clear that 2 is a factor of x + y, so the sum of two even integers is always even.
This proof uses definition of even integers, as well as distribution law.

Proof by induction

In proof by induction, first a “base case” is proved, and then an “induction rule” is used to prove a (often infinite) series of other cases. Since the base case is true, the infinity of other cases must also be true, even if all of them cannot be proved directly because of their infinite number. A subset of induction is Infinite descent. Infinite descent can be used to prove the irrationality of the square root of two.

The principle of mathematical induction states that: Let N { 1, 2, 3, 4, … } be the set of natural numbers and P(n) be a mathematical statement involving the natural number n belonging to N such that (i) P(1) is true, ie, P(n) is true for n=1 (ii) P(m+1) is true whenever P(m) is true, ie, P(m) is true implies that P(m+1) is true. Then P(n) is true for the set of natural numbers N.

Proof by transposition

Proof by Transposition establishes the conclusion “if p then q” by proving the equivalent contrapositive statement “if not q then not p”.

In proof by contradiction (also known as reductio ad absurdum, Latin for “reduction into the absurd”), it is shown that if some statement were false, a logical contradiction occurs, hence the statement must be true. This method is perhaps the most prevalent of mathematical proofs. A famous example of a proof by contradiction shows that \sqrt{2} is irrational:

Suppose that \sqrt{2} is rational, so \sqrt{2} = {a\over b} where a and b are non-zero integers with no common factor (definition of rational number). Thus, b\sqrt{2} = a. Squaring both sides yields 2b2 = a2. Since 2 divides the left hand side, 2 must also divide the right hand side (as they are equal and both integers). So a2 is even, which implies that a must also be even. So we can write a = 2c, where c is also an integer. Substitution into the original equation yields 2b2 = (2c)2 = 4c2. Dividing both sides by 2 yields b2 = 2c2. But then, by the same argument as before, 2 divides b2, so b must be even. However, if a and b are both even, they share a factor, namely 2. This contradicts our assumption, so we are forced to conclude that \sqrt{2} is irrational.

Proof by construction

Proof by construction, or proof by example, is the construction of a concrete example with a property to show that something having that property exists. For example, in certain geometrical problems and proofs, usually the kind found in engineering and mechanical problems with given lengths and angles, instead of actually attempting a direct and formal proof, we can just substitute the given values to obtain a required proof. For example, let us take a triangle ABC, of which AD is a particular median. Let G be the centroid of the triangle. BG extended meets AC at X. By enlarging or diminishing the ratios of certain triangles and taking all possible cases (isosceles, equilateral, right, acute scalene, and obtuse scalene), we can obtain a direct comparision of AX to CX as 1:5. Solving the same problem by application of geometry would take a considerably longer time.

Proof by exhaustion

In Proof by exhaustion, the conclusion is established by dividing it into a finite number of cases and proving each one separately. The number of cases sometimes can become very large. For example, the first proof of the four colour theorem was a proof by exhaustion with 1,936 cases. This proof was controversial because the majority of the cases were checked by a computer program, not by hand. The shortest known proof of the four colour theorem today still has over 600 cases.

Probabilistic proof

A probabilistic proof is one in which an example is shown to exist by methods of probability theory – not an argument that a theorem is ‘probably’ true. The latter type of reasoning can be called a ‘plausibility argument’; in the case of the Collatz conjecture it is clear how far that is from a genuine proof. Probabilistic proof, like proof by construction, is one of many ways to show existence theorems.

Combinatorial proof

A combinatorial proof establishes the equivalence of different expressions by showing that they count the same object in different ways. Usually a bijection is used to show that the two interpretations give the same result.

Nonconstructive proof

An nonconstructive proof establishes that a certain mathematical object must exist (e.g. “Some X satisfies f(X)”), without explaining how such an object can be found. Often, this takes the form of a proof by contradiction in which the nonexistence of the object is proven to be impossible. In contrast, a constructive proof establishes that a particular object exists by providing a method of finding it.

Proof nor disproof

There is a class of mathematical formulae for which neither a proof nor disproof exists, using only the standard ZFC axioms. This result is known as Gödel’s (first) incompleteness theorem and examples include the continuum hypothesis. Whether a particular unproven proposition can be proved using a standard set of axioms is not always obvious, and can be extremely technical to determine.

Elementary proof

An elementary proof is (usually) a proof which does not use complex analysis. For some time it was thought that certain theorems, like the prime number theorem, could only be proved using “higher” mathematics. However, over time, many of these results have been reproved using only elementary techniques.

Mathematical proof

 Mathematical proof Computer-aided proof Proof by example The Proof of the Man Proof net Direct proof Poussin proof Damp-proof course Offer of proof The Naked Proof Proof discography Turing’s proof Proof test Proof Through the Night Proof of Life Proof coinage Proof theory Interactive proof Proof (alcohol) Crash Proof Proof of Purchase Negative proof Proof that 22 over 7 exceeds π Natural proof Proof complexity Living Proof Social proof Livin’ Proof Proof (play) Zero-knowledge proof Proof-of-payment Bijective proof Proof of Stein’s example Nonconstructive proof Galley proof Combinatorial proof Proof of concept Elementary proof Proof of insurance Conditional proof Burden of proof Constructive proof Proof stress Consistency proof Proof that e is irrational Proof checking Proof by assertion Invalid proof

Provisions of Section 65 of the Act 1872 provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence.

Thus, secondary evidence relating to the contents of a document is inadmissible, until the non production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law.

The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide: The Roman Catholilc Mission and Anr. v. The State of Madras and Anr., AIR 1966 SC 1457; State of Rajasthan and Ors. v. Khemraj and Ors. AIR 2000 SC 1759; Life Insurance Corporation of India and Anr. v. Ram Pal Singh Bisen, (2010) 4 SCC 491; and M. Chandra v. M. Thangamuthu and Anr. (2010) 9 SCC 712.

Evidence Act, 1872—Section 3—Witness—Withholding of—Allegation of bribe—The person playing prominent part in respect of payment not examined as witness—Conviction, set aside.

AIR 1981 SC 1735 : (1981) CriLJ SC 1285 : (1979) 3 SCC 767

(SUPREME COURT OF INDIA)

(Before : Jaswant Singh And O. Chinnappa Reddy, JJ.)

Criminal Appeal No. 121 of 1972 ,

Decided on : 24-11-1978.

Penal Code, 1860—Section 214—Misappropriation of Government money—Allegation of false preparation of documents not supported by evidence—The allegation that documents not prepared according to instructions also unsupported by evidence—Accused entitled to acquittal.

Counsel for the Parties:

M/s. A. N. Mulla, Sr. Advocate (M/s. A. K. Srivastava and B. P. Singh, Advocates with him), for Appellant

M/s. J. M. Khanna and S. K. Gambhir, Advocates, for Respondent.

Judgement

Chinnappa Reddy, J—The sole appellant in this appeal by Special leave was convicted by the learned Special Judge, Tikamgarh, Madhya Pradesh under Section 214 Indian Penal Code and sentenced to suffer rigorous imprisonment for a period of. one year. He was acquitted of a charge under Section 165A Indian Penal Code. The conviction and sentence under Section 214 Indian Penal Code were confirmed by the High Court of Madhya Pradesh.

2. The brief facts of the prosecution case are as follows:

Dalip Yadav, P. W. 5. learnt that the accused who was an Overseer in charge of Feeder Channel of Extension and Improvement, Mohangarh Tank Project, was misappropriating Government money by preparing false muster rolls. The accused used to send instructions to the Mistry P. W. 7 regarding the manner in which the false muster rolls were to be prepared. Two such letters came into the hands of P, W. 5, P. W. 5 wanted that action should be taken against the accused. Therefore, he sent a petition, Exhibit 20 to the Collector. The accused, somehow, came to know about the petition sent by P. W. 5 to the Collector. He contacted P. W. 5 and wanted him desist from taking further action in the matter. There were some preliminary negotiations and the matter was to be finally settled in the house of one Ram Kishan Misra a Vakil of the place. A meeting was held on the morning of 31st October. 1966. Thakurdas with whom P. W. 5 used to generally stay whenever he went to Mohangarh, was present:Sita Ram. P. W. 1, Bindraban. P. W. 4 and Ram Ratan, P. W. 6 were also present. It was settled that Dalip Yadav should be paid a sum of  500/- by the accused and that Dalip Yadav should hand over the two letters and a written compromise to the accused. The accused left the place stating that he wanted to arrange for the money. Dalip Yadav who was not really interested in obtaining any money for himself, decided to report the matter to the Police. He got a petition Exhibit 16 prepared by P. W. 6 addressed to the Superintendent of Police. He also got prepared another application Exhibit P. 2 addressed to the Collector. He first went to the Superintendent of Police and, on his instructions, went to P. W. 9 the Deputy Superintendent of Police. P. W. 9 prepared a Panchnama, Exhibit P. 1, referring to Exhibit P. 2 and then returned P. 2 to P. W. 5 with instructions to go to Mishra’s house a little ahead of him and to receive the money from the accused. P. W. 5 was instructed to give a signal on seeing which P. W. 9 would also enter the house of Ram Kishan Mishra. Accordingly, P. W. 5 went ahead followed by P. W. 9. When he entered the drawing room of Ram Kishan Mishra’s house, he found the accused, Thakurdas, Ram Rattan P. W. 6. Sita Ram P. W. 1. and Brindavan P. W. 4 sitting there, waiting for him. The accused gave the money to P. W. 5 and asked for return of the letters and the application. P. W. 5 handed over Exhibit P. 2 to the accused. He also signed Exhibit P. 4. a compromise letter. He told the accused that the two letters P. 17 and P. 18 were in his village and that he would give them to him afterwards. He gave a signal on seeing which P. W. 9 came to the room. P. W. 9 introduced himself as Deputy Superintendent of Police. He seized Exhibits P. 2 and P. 4 from the accused. He recovered  500/- from P. W. 5. He then arrested the accused. On the next day. P. W. 5 produced Exhibits P. 17 and P. 18 before P. W. 9. After completing the investigation, P. W. 9 laid a charge-sheet against the accused for offences under Section 214 Indian Penal Code. Section 165 Indian Penal Code and Section 5 (2) of the Prevention of Corruption Act. He was tried by the learned Special Judge. Tikamgarh for offences under Section 165A Indian Penal Code and Section 214 Indian Penal Code. In regard to the offence under Section 214 Indian Penal Code with which alone we are concerned in view of the acquittal of the accused under Section 165A, the charge against the accused was that he gave gratification of  500/ to Dalip Yadav in consideration of the said Dalip Yadav “screening him from legal punishment for the offence of criminal breach of trust and not proceeding against him for the purpose of bringing him to legal punishment.”

3. In support of the prosecution case, the principal witness examined was P.W. 5. P.Ws. 1, 4 and 6 were examined to prove the negotiations that took place in the house of Ram Krishan Mishra in the morning and the passing of the money later in the day. P. W. 7. was examined to prove Exhibits P. 17 and P. 18, the two letters said to have been written by the accused conveying his instructions to P. W. 7 regarding the manner in which the false muster rolls were to be prepared.

4. The defence of the accused was one of denial. He denied that Exhibits P. 17 and P. 18 were in his handwriting. He denied that he ever prepared false muster rolls or that he misappropriated Government money. He denied that he offered or paid a bribe to P. W. 5. He stated that he had made certain complaints against Dalip Yadav and Brindavan, and, therefore, the case was foisted against him. at their instance.

6. P. W. 5, was, as already mentioned the principal witness for the prosecution. We have perused his evidence carefully and we find it difficult to accept his evidence. He admitted in cross-examination that there was a quarrel between Habib and Brij Mohan (P.W. 7), that aslam was siding Habib and that Brij Mohan and the witness suspected that aslam might have gone to the Police Station to make a report. We have already referred to the circumstance that though P. W. 5 claimed that he had sent the report Ex. P. 20 to the Collector earlier. there is nothing in the evidence to indicate that the alleged report was ever received in the office of the Collector. What is curious is that Ex. P. 2, the report which he claims to have got written on 31st October, 1966 is a verbatim reproduction of Ex. P. 20. It is not explained how this could be so since P. W. 5 did not have P. 2 with him on 31st October, 1966. This is explainable only if both P. 2 and P. 20 were prepared at the same time, that is, on 31st October, 1966. We have also referred to the circumstance that though P. W. 5 claimed that he had shown the letters Exs. P. 17 and P. 18 to the Collector and the Sub-Divisional Officer and that they had also put their signatures on the documents, we do not find the signature of either the Collector or the Sub-Divisional Officer on P. 17 and P. 18. According to his evidence, the arrangement arrived at in the house of Ram Krishan Mishra was that the accused should pay him a sum of  500/- and that he should hand over Exs. P. 17 and P. 18 to the accused. He however, admitted in his evidence that he did not have Exhibits P. 17 and P. 18 with him that day. He claimed that after the money was received by him, he told the accused and the others that the letters would be given later as they were in his village. It is difficult to accept his evidence that if the arrangement was that he should part with the letters and that he should be paid a sum of  500/-, the accused would have paid him the money without receiving the letters. According to the witness a deed of compromise was prepared and he signed the same. Exhibit P. 4 is stated to be the deed of compromise. P. 4 is as follows:

“It is submitted that we people had made a complaint against Shri aslam Overseer, Irrigation Department, Mohangarh for preparing false muster rolls. In that four persons have satisfied us that in future he will not do so.

He has assured in this manner. Therefore, we people shall not take any further action in this connection.”

It is a document which clearly incriminates rather than exonerates the accused. We do not think the accused would have accepted such a document from P. W. 5. P. W. 5 further stated that the accused gave him the money after counting the same. He stated that the money was not handed over to Thakurdas and thereafter to himself. There are any number of versions with regard to the manner in which the money passed into the hands of P. W. 5. P. W. 1 stated that the money was not paid in his presence by the accused to P. W. 5. According to him Thakurdas took out the amount from his pocket and gave it to P. W. 5. P. W. 4 stated that the accused took out the sum of  500/- and handed over the same to Thakur Das. At that time P. W. 5 was not there. After P. W. 5 came there, Thakurdas took out the money and put it on the table. P. W. 5 took the money from the table. P. W. 6 stated that the accused himself paid the sum of Rupees 500/- to P. W. 5. These are the several conflicting versions about how the money passed from the accused to P. W. 5. From the evidence of the various prosecution witnesses, it is clear that Thakurdas played a very prominent part in bringing about the alleged settlement and the payment. Thakurdas has not been examined as a witness by the prosecution and no explanation has been offered for the same. We also notice that Ram Krishna Mishra has also not been examined. We have already noticed that none of the labourers whose names were allegedly, falsely entered in the muster rolls was examined. We have also noticed that the messenger who was supposed to have taken the letters Exhibits P. 17 and P. 18 to P. W. 7 has also not been examined.

7. In view of these several grave infirmities we do not think that the Lower Courts were justified in convicting the accused. The conviction and sentence are, therefore, set aside and the bail bonds will be cancelled. The appeal is allowed.

Md. Sarfaraz @ Bonu & Anr. Vs- The Union of India- 09/08/2019[CHC]

Affidavit of a witness with regard to the facts in issue cannot be treated as a statement of the deponent before the Court. Hence, such affidavit cannot be treated as ‘evidence’ under section 3 of the Evidence Act unless the law otherwise permits it.

Act: 20(b)(ii)(c) read with section 29 of the NDPS Act

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

Present:

The Hon’ble Justice Joymalya Bagchi

And

The Hon’ble Justice Manojit Mandal

C.R.A. 667 of 2017

Md. Sarfaraz @ Bonu & Anr. …..Appellants
-Vs-
The Union of India ….Respondent

With

C.R.A. 384 of 2017

Amirul Rahaman …..Appellants
-Vs-
The Union of India ….Respondent

For the Appellant : Mr. Sandip Chakraborty, Adv.
[in C.R.A. 667 of 2017] Mr. Diptendu Banerjee, Adv.
Amicus Curiae : Ms. Meenal Sinha, Adv.
[in C.R.A. 384 of 2017]
For the State : Mr. Sanjoy Bardhan, Adv.
For the Union of India : Ms. Hasi Saha, Adv.
For the DRI : Mr. Kaushik Dey, Adv.

Heard on : 26.02.2019, 06.03.2019, 26.03.2019, 03.04.2019,17.04.2019, 08.07.2019, 11.07.2019, 15.07.2019,29.07.2019

Judgment on : 09.08.2019

Joymalya Bagchi, J. :-

Appeals are directed against the judgment and order dated 30.03.2017 and 01.04.2017 passed by the learned Judge, Special Court, NDPS Act, Siliguri in C.R. (NDPS) Case No. 2 of 2012 convicting the appellants for commission of offence punishable under Sections 20(b)(ii)(c) read with section 29 of the NDPS Act and sentencing them to suffer rigorous imprisonment for 10 years and to pay fine of Rs.1,00,000/- in default, to suffer further rigorous imprisonment for six months each.

The prosecution case as alleged against the appellants is as follows:-Pursuant to secret information received by DRI, Deputy Director DRI, Siliguri Regional Unit, that five persons will be carrying narcotic drug (Hashish) coach no. S-7, berth no. 23, 31 and 39 of Kanchankanya Express officers of DRI of Siliguri Regional Unit went to New Jalpaiguri Railway Station on 28.01.2012 around 08:00 p.m. to work out the said information. Kanchankanya Express which was scheduled to arrive at NJP station at 20:15 hours was late by half an hour on that day. At 20:50 hours the train arrived at platform no. 3 of the said railway station. Thereupon, DRI officers boarded sleeper coach no. S-7. One Md. Islam was found occupying berth no. 23 while berth no. 31 was occupied by Nasim Akhter and Amirul Rahaman and berth no. 39 was occupied by Kamaluddin and Md. Sarfaraz. They stated that they were travelling together and had boarded the train to proceed to Kolkata. They produced their e-ticket bearing PNR No. 6106317529 of 13150 Kanchankanya Express. Out of the five names printed on the ticket four names tallied with the aforesaid persons whereas the name mentioned in serial no.4 of the ticket was Md. Nadim but actually Kamaluddin was found to be travelling in the said seat. On query the aforesaid persons clarified that the said name had been mistakenly given at the time of booking and Kamaluddin was travelling in the name of Md. Nadim. The said persons were directed to produce their luggage. Upon noticing suspicious circumstances and on preliminary checking of the luggage, the said appellants were directed to accompany the officers to the DRI office at Pradhan Nagar along with their luggage. The officers checked the luggage at the DRI office in presence of independent witnesses. From a trolly luggage bag marked ‘Corallite’, 24 packets wrapped in plastic tapes was recovered. From another luggage bag marked ‘Cloudragon’, 8 identical packets and 2 packets of cylindrical shape wrapped with adhesive tapes were recovered. On unwrapping the packets, 48 cakes of blackish material suspected to be Hashish were recovered from the trolly bag while 12 cakes of similar material suspected to be Hashish were recovered from the eight packets in other bags. 60 and 59 capsules respectively containing contraband suspected to be Hashish were recovered from the two cylindrical packets. Upon weightment, 60 cakes of black sticky material suspected to be Hashish were found to be 30.440 kgs. Weights of 60 and 59 pieces of capsules were noted as 580 gms. and 590 gms. Respectively. Contraband suspected to be Hashish was found from the 119 capsules as per the accused persons. The contraband articles were seized under a seizure list. In total 100 grams of representatives samples were drawn from the seized contrabands and sent for chemical examination. The remaining seized material were kept in an envelope in the godown of the Siliguri Customs and was subsequently disposed of under the supervision of the Magistrate under section 52A Cr.P.C. Statements of the appellants were recorded under section 67 of the NDPS Act where they admitted their guilt and claimed that they had received Hashish from Kathmandu and were taking it to Kolkata. Upon receiving of chemical examiner’s report disclosing that the contraband contained Hashish, complaint was filed against the appellants.

In conclusion of investigation, charges were framed against the appellants under Section 20 (b)(ii)(c) read with Section 29 of the NDPS Act.

In the course of trial prosecution examined 12 witnesses and exhibited a number of documents.

Defence of the appellants was one of innocence and false implication in the instant case.

In conclusion of trial, the trial Judge by the impugned judgment and order dated 30.03.2017 and 01.04.2017 convicted and sentenced the appellant, as aforesaid.

Mr. Sandip Chakraborty, learned Counsel appearing for the appellants in CRA No. 667 of 2017 argued that the prosecution case has not been proved beyond doubt. Evidence of the officers of DRI have not been corroborated by contemporaneous documentary evidence like platform ticket, etc. to show that they had gone to the railway platform and the appellants boarded with their luggage at coach no.7 of Kanchankanya Express. The e-ticket has not been exhibited in the instant case. Name of Kalamuddin does not appear in the e-ticket which was produced in Court. Fokra Alam, official e-ticket seller, who sold the e-ticket has not been examined. Rough seizure list has not been exhibited and P.W. 2 admitted that Ext. 24 cannot be treated as a seizure list with regard to seizure of contraband. Appellants were in the custody of DRI officers at the time when they made statements under section 67 NDPS Act. Such statements are involuntary and inadmissible in law. Independent witnesses (P.W.s 9 and 10) did not support the prosecution case that they were present along with the DRI officials at the railway station. They also admitted that they had been witness in earlier cases. No permission was taken from the Court to send seized materials for FSL examination and there is variation in the weight of the materials sent and the articles which were examined in the instant case. Original contraband was not produced in Court. Finally, it was argued that the examination-in-chief of P.W.s 3 to 8, 11 and 12 – DRI officers and their associates were adduced by filing affidavits and were inadmissible in law as their evidence did not fall within the ambit of section 295/296 Cr.P.C. and therefore could not have been adduced by filing affidavits.

Nobody appeared for appellant in CRA No. 384 of 2017. Ms. Meenal, learned Advocate, was requested to assist the Court as amicus curiae. She made elaborate arguments supporting the submission of Mr. Chakraborty. They submitted written submission in support of their oral arguments.

On the other hand, Mr. Dey, learned Counsel appearing for the DRI submitted that the affidavit evidence of the prosecution witnesses were initiated in terms of the directions of the Apex Court in Thana Singh Vs. Central Bureau of Narcotics, (2013) 2 SCC 590. No objection was raised on behalf of the defence in the course of trial. Hence, the appellants cannot raise objection at the appellate stage in that regard. Evidence of the official witnesses have established the prosecution case beyond reasonable doubt. Independent witnesses have also proved their signature on the seizure list and other documents and were present at the time of recovery of the articles from the luggage belonging to the appellants at DRI office. E-ticket handed over to P.W. 1 was produced in Court. Non-examination of railway officials or local passengers do not affect the unfolding of the prosecution case and the said case cannot be disbelieved on such score. They submitted written arguments to bolster their written submission. Mr. Bardhan for the State supported the submissions of Union of India.

An interesting issue has cropped up in the course of hearing of these appellants. During trial, examination-in-chief of P.W.s 3 to 8, 11 and 12 were adduced by way of affidavit statutory evidence. Learned Counsel for the appellants as well as amicus curiae strongly contended that examination-in-chief of prosecution witnesses cannot be adduced by submitting affidavit evidence. Such procedure is not envisaged in Code and the directions in Thana Singh (supra) cannot be interpreted to permit such a course of action. On the contrary, learned Counsel for the Union of India submitted that the evidence of P.W.s 3 to 8, 11 and 12 fall within the species of ‘official evidence’ referred to in paragraph 12 of the report and since no objection had been taken during trial, the appellants cannot be permitted to raise objection in this regard at the appellate stage.

In a criminal trial, fact must be proved in accordance with procedure established by law.

The Evidence Act and the Code of Criminal Procedure lay down the procedure in which evidence is to be led in a criminal trial, subject, however, to any provision to the contrary in the special law e.g. NDPS Act applicable which is in the present case.

Section 3 of the Evidence Act defines evidence as follows:-

“Evidence”. – “Evidence” means and includes –

(1) all statements which the Court permits or requires to be made before it by such statements are called oral evidence;

(2) all documents [including electronic records] produced for the inspection of the court;
such documents are called documentary evidence.

The aforesaid provision creates two categories of evidence, that is, (i) oral evidence – statement of witnesses made before the Court; and (ii) documentary evidence including electronic records produced before the Court for its inspection. Affidavit of a witness with regard to the facts in issue cannot be treated as a statement of the deponent before the Court. Hence, such affidavit cannot be treated as ‘evidence’ under section 3 of the Evidence Act unless the law otherwise permits it. In criminal trials affidavit evidence may be given in terms of section 295 and 296 thereof which read as follows:-

“295. Affidavit in proof of conduct of public servants. – When any application is made to any Court in the course of any inquiry, trial or other proceeding under this Code, and allegations are made therein respecting any public servants, the applicant may give evidence of the facts alleged in the application by affidavit, and the Court mnay, if it thinks fit, order that evidence relating to such facts be s given.

296. Evidence of formal character on affidavit. – (1) The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code.

(2) The Court may, if it thinks fit, and shall, on the applications of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit.”

Analysis of the aforesaid sections would show that they operate in completely different fact situation than the present one. P.W.s 3 to 8, 11 and 12 are officers of DRI who were members of the raiding party and had deposed by filing affidavit evidence with regard to the facts they saw and did in the course of the raid. Such evidence is neither in response to any application containing allegations against a public servant nor is it of a formal character, e.g. witness producing official records. There is no provision in the NDPS Act also permitting recording of evidence of members of the raiding party by way of affidavit evidence unlike section 145 of the Negotiable Instrument Act wherein a complainant may adduce evidence on behalf of himself and his witnesses by filing affidavits. Directions in Thana Singh (supra) is to be read in the backdrop of the aforesaid statutory scheme skill relating to criminal trials. In order to ensure enforcement of fundamental rights particularly the cluster of rights incorporated in Article 21 which stood frequently violated due to delay and laches in conducting trials under NDPS Act, the Apex Court in the said report issued various directions and guidelines under Article 141 read with Article 32 of the Constitution of India. With regard to examination of witnesses in trials in NDPS case, the Apex Court directed as follows:-

“11. It would be prudent to return to the erstwhile method of holding “sessions trials” i.e. conducting examination and cross-examination of a witness on consecutive days over a block period of three to four days. This permits a witness to take the stand after making one-time arrangements for travel and accommodation, after which, he is liberated from his civil duties qua a particular case. Therefore, this Court directs the courts concerned to adopt the method of “sessions trials” and assign block dates for examination of witnesses.”

In view of the difficulty faced by various agencies in procuring attendance of officers who have been transferred from their parent organizations to different places, the Apex Court further directed as follows:-

“12. The Narcotics Control Board also pointed out that since operations for prevention of crimes related to narcotic drugs and substances demands coordination of several different agencies viz. Central Bureau of Narcotics (CBN), Narcotics Control Bureau (NCB), Department of Revenue Intelligence (DRI), Department of Customs and Central Excise, Stat Law Enforcement Agency, State Excise Agency to name a few, procuring attendance of different officers of these agencies becomes difficult. On the completion of investigation for instance, investigating officers return to their parent organizations and are thus, often unavailable as prosecution witnesses. In the light of the recording of such official evidence, we direct the courts concernd to make most of section 293 of the Code of Criminal Procedure, 1973 and save time by taking evidence from official witnesses in the form of affidavits.”

It has been argued in terms of the aforesaid direction evidence of official witnesses were recorded in the form of affidavits. On the other hand, it is argued that the expressions “official evidence” and “official witnesses” in the aforesaid direction must be restricted to government scientific expert under section 293 Cr.P.C. It is settled law that direction of the Apex Court under Article 141 of the Constitution is in the nature of an imprimatur and is binding on all courts of the country. Whether such declaration of law was made without considering statutory provisions, e.g. section 295/296 Cr.P.C. or not as argued on behalf of the appellants cannot be a matter of adjudication before this Court. It is settled law that a decision of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court. (see Director of Settlement, A.P. Vs. M.R. Apparao, (2002) 4 SCC 638.)

In Suganthi Suresh Kumar Vs. Jagdeeshan, (2002) 2 SCC 420, the Court held as follows:-

“9. It is impermissible for the High Court to overrule the decision of the Apex Court on the ground that the Supreme Court laid down the legal position without considering any other point. It is not only a matter of discipline for the High Courts in India, it is the mandate of the Constitution as provided in Article 141 that the law declared by the Supreme Court shall be binding on all courts within the territory of India. It was pointed out by this Court in Anil Kumar Neotia v. Union of India that the High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme Court.”

Furthermore, in this case the objection with regard to admissibility of affidavit evidence has been raised at the appellate stage and not in the course of trial. As the contents of the affidavits are not inherently inadmissible but their mode and manner of leading evidence is in question, I am of the opinion that the objection thereto must have been raised at the earliest and not at the appellate stage. In this regard, reference may be made to the ratio of the Apex Court relating to objection vis-à-vis proof of electronic evidence sans certification under section 65B of the Evidence Act. The Apex Court in Sonu v. State of Haryana, (2017) 8 SCC 570 held as follows:-

“32. …Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies.”

Hence, I am of the opinion that the objection raised with regard to the examination-in-chief of P.W.s 3 to 8, 11 and 12 recorded by way of affidavit cannot be permitted to be raised at the appellate stage. However, in future cases the aforesaid direction given by the Apex Court in Thana Singh (supra) may be considered in the light of advancement in technology particularly availability of video conferencing facilities for recording evidence in criminal cases. Concern expressed in Thana Singh (supra) with regard to delay in examination of official witnesses, due to transfer from parent organization to different places may be effectively addressed if the said witnesses are permitted to record their evidence via electronic/video linkage available in the district court complex nearest to his present place of posting. In State of Maharashtra Vs. Dr Praful B. Desai, (2003) 4 SCC 601 and Sujoy Mitra Vs. State of W.B., (2015) 16 SCC 615, the Apex Court held that examination of a witness via video conference is permissible in law. In Sujoy Mitra (supra), the Apex Court permitted examination of a foreign national via video conference by adopting the following procedure:-

“3.1. The State of West Bengal shall make provision for recording the testimony of PW 5 in the trial court by seeking the services of the National Informatics Centre (NIC) for installing the appropriate equipment for video conferencing, by using “VC Solution” software, to facilitate video conferencing in the case. This provision shall be made by the State of West Bengal in a room to be identified by the Sessions Judge concerned, within four weeks from today. The NIC will ensure, that the equipment installed in the premises of the trial court, is compatible with the video conferencing facilities at the Indian Embassy in Ireland at Dublin.

3.2. Before recording the statement of the prosecutrix, PW 5, the Embassy shall nominate a responsible officer, in whose presence the statement is to be recorded. The said officer shall remain present at all times from the beginning to the end of each session, of the recording of the said testimony.

3.3. The officer deputed to have the statement recorded shall also ensure that there is no other person besides the witness concerned, in the room, in which the testimony of PW 5 is to be recorded. In case, the witness is in possession of any material or documents, the same shall be taken over by the officer concerned in his personal custody.

3.4. The statement of witness will then be recorded. The witness shall be permitted to rely upon the material and documents in the custody of the officer concerned, or to tender the same in evidence, only with the express permission of the trial court.

3.5. The officer concerned will affirm to the trial court, before the commencement of the recording of the statement, the fact, that no other person is present in the room where evidence is recorded, and further, that all material and documents in possession of the prosecutrix, PW 5 (if any) were taken by him in his custody before the statement was recorded. He shall further affirm to the trial court, at the culmination of the testimony, that no other person had entered the room, during the course of recording of the statement of the witness, till the conclusion thereof. The learned counsel for the accused shall assist the trial court, to ensure, that the above procedure is adopted, by placing reliance on the instant order.

3.6. The statement of the witness shall be recorded by the trial court, in consonance with the provisions of Section 278 of the Code of Criminal Procedure. At the culmination of the recording of the statement, the same shall be read out to the witness in the presence of the accused (if in attendance, or to his pleader). If the witness denies the correctness of any part of the evidence, when the same is read over to her, the trial court may make the necessary correction, or alternatively, may record a memorandum thereon, to the objection made to the recorded statement by the witness, and in addition thereto, record his own remarks, if necessary.

3.7. The transcript of the statement of the witness recorded through video conferencing (as corrected, if necessary), in consonance with the provisions of Section 278 of the Code of Criminal Procedure, shall be scanned and dispatched through email to the embassy. At the embassy, the witness will authenticate the same in consonance with law. The aforesaid authenticated statement shall be endorsed by the officer deputed by the embassy. It shall be scanned and returned to the trial court through email. The statement signed by the witness at the embassy, shall be retained in its custody in a sealed cover.

3.8. The statement received by the trial court through email shall be re-endorsed by the trial Judge. The instant statement endorsed by the trial Judge, shall constitute the testimony of the prosecutrix, PW 5, for all intents and purposes.”

Although the aforesaid case related to a witness in a foreign country, the procedure laid down in the aforesaid decision may be utilized while examining official witnesses in narcotic cases subject to the modification that the official witness may depose via video conferencing facility from the district court complex nearest to his place of posting under the supervision of a responsible officer (e.g. Registrar of the said court) so authorized in that regard by the concerned District Judge. Procedure of recording evidence of witness in far off places via video conference in Sujoy Mitra (supra) were laid down by the Apex Court subsequent to Thana Singh (supra) and the ratio contained therein may be gainfully utilized for recording evidence of official witnesses who have been transferred to a distant place and their physical attendance in court cannot be promptly procured. In fact, examination of official witnesses via video conference has two-fold advantages over affidavit evidence. Firstly, when examination-in-chief of a witness is recorded by filing affidavit evidence the witness is not absolved from being physically present in Court as he has to prove the affidavit and offer himself for cross-examination and the wholesome object of saving time by avoiding travel of official witnesses from their place of posting to the trial Court is defeated. On the other hand, if evidence of the said witness is recorded via electronic/video linkage, he need not be physically present in the court premises and thereby the purpose of quick trial would be better served. Secondly, recording of evidence of witnesses via video linkage is better suited to the concept of fair trial than affidavit evidence. If a witness is examined via electronic/video linkage, his demeanour may be watched by the Court enabling it to form an opinion with regard to his creditworthiness. Similarly, it helps the accused to formulate his defence and pose appropriate questions in cross to test the veracity of his deposition. Demeanour of a witness cannot be assessed if his chief is recorded through affidavit evidence. One cannot lose sight of the fact that criminal cases, unlike civil cases, are primarily based on oral evidence of witnesses of fact where demeanour and conduct of the witness during his examination-in-chief play a very vital role in assessing his truthfulness.

Technological progress in recording evidence via electronic/video linkage is a boon and ought to effectively utilized to improve the quality of dispensation of justice by reducing the time taken for conducting trials in narcotic cases involving official witnesses who are posted at far off places and whose attendance in Court cannot be promptly ensured. Special courts conducting such trial (particularly where under trials are in jail) are directed to avail of electronic/video linkage facilities and examine official witnesses whose attendance cannot be procured without delay, undue expenses and/or other inconveniences so that the fundamental right of speedy and fair trial is effectively enforced and does not become a dead letter of law.

Coming to the evidence on record, I note P.W.s 1, 2, 5, 11 and 12 are members of the raiding party. All of them deposed P.W. 11 had received prior information that five persons would board Kanchankanya Express with Hashish at New Jalpaiguri Railway Station on 28.01.2012. Pursuant to such intelligence, under the leadership of P.W. 11, they went to the railway station. On arrival of the train they boarded coach no. S-7 and identified occupants of berth no. 23, 31 and 39, that is, the appellants herein. The appellants identified their luggage. On preliminary examination of their luggage, it was suspected that they were carrying contraband. The appellants were directed to accompany the members of the raiding party with their luggage to their office. At the office, their bags were opened and contraband articles were recovered. Articles were seized and representatives samples were taken therefrom. Statements of the appellants were recorded under section 67 of the NDPS Act and thereafter they were arrested. Samples were sent for chemical examination and the chemical examiner’s report confirmed that the contraband contained Hashish.

P.W.s 6 and 7 were drivers of the vehicles in which the raiding party went to the railway station.

P.W. 8 was one of an associate of the drivers.

P.W.s 9 and 10 are independent witnesses to seizure of narcotics from the luggage of the appellants at DRI office.

The evidence of the official witnesses have been criticised on the ground that contemporaneous document like platform tickets have not been exhibited. Neither railway official nor any passenger of the said train was examined to support the evidence of the prosecution case. Even P.W. 9 and 10 did not admit their presence at the railway station wherefrom the appellants along with their luggage was brought to DRI office. E-ticket produced by the appellants has also not been proved in accordance with law. Fokra Alam, e-ticket seller has also not been examined.

I have given anxious consideration to the aforesaid submission on behalf of the defence. It is a trite law if official witnesses are clear and convincing, mere lack of corroboration from independent witnesses cannot be a ground to reject their evidence. [Ref. Sumit Tomar Vs. State of Punjab, (2013) 1 SCC 395,

Kulwinder Singh Vs. State of Pubjab, (2015) 6 SCC 674, Baldev Singh Vs. State of Haryana, (2015) 17 SCC 554, Varinder Kumar Vs. State of Himachal Pradesh, 2019 SAR (Criminal) 245]

It is the quality and not quantity of evidence which is relevant to prove a fact. Narration of the incident as coming from the mouths of the members of the raiding party particularly P.W. 1 and 2 establish beyond doubt that the DRI officials on the fateful day went to the railway station and upon boarding the train had identified the appellants with their luggage. Upon preliminary examination it appeared the appellants were carrying contraband. Thereupon they were asked to accompany the officials to their office. Evidence has also come record that the appellants handed over an e-ticket, on which name of Kamaluddin was incorrectly stated as Md. Nadim, which was subsequently seized. These facts have remained unshaken in cross-examination and the fact that the appellants upon being confronted by the DRI officials in their version had accompanied them with the luggage to their office is established beyond doubt. When the evidence of the official witnesses appear to be clear and convincing, non-production of the platform ticket or non-examination of RPF officials including the ticket seller, in my considered opinion, does not render the prosecution case improbable.

It has also been argued that the independent witnesses P.W. 9 and 10 have not supported the prosecution case. In this regard reliance has been placed on Naresh Kumar Vs. State of H.P., (2017) 15 SCC 684 and Gorakh Nath Prasad Vs. State of Bihar, (2018) 2 SCC 305. It has also been submitted that P.W. 9 had deposed earlier in DRI cases. I have examined the evidence of P.W. 9 and 10 from that perspective. Although P.W. 1 and 2 deposed the said witnesses had accompanied them to the platform where the appellants were identified with their luggage and requested to accompany the DRI officials to their office. P.W. 9 and 10 claimed that they came to the DRI office and found appellants present there along with their luggage. P.W. 9 stated DRI officials had told him that there were capsules in the luggage belonging to the appellants. He, thereafter, signed on inventory-cum-seizure list (Ext. 24) and Panchnama (Ext. 25). He also recorded the statements of appellant Nasim Akhtar and Kamaluddin marked as exhibit 5 and 9 respectively. Similarly, P.W. 10 came to the DRI office and found that there were packets on the table which he heard were Hashish. Although he could not identify the accused persons by face, he stated five persons were arrested and admitted his signature on the inventory-cum-seizure list, Panchnama and other documents.

From the evidence of the aforesaid witnesses it appears that they have not wholly disowned the prosecution case. Although they did not support the evidence of official statement with regard to their presence at the platform but one of them, that is, P.W. 9 claimed that the appellants were present along with their luggage when he arrived at the DRI office and the officials informed him that there was Hashish in their luggage. Accordingly, he put his signature on the inventory-cum-seizure list and Panchnama. He also recorded the statements of two of the appellants in Hindi. P.W. 10 claimed when he arrived at the DRI office there were packets on the table and the officials said they contained Hashish. Four persons were arrested and he admitted his signature on the seizure list. The evidence of the aforesaid witnesses taken as a whole do not render the prosecution case improbable. On the other hand, evidence of P.W.9, independent witness lends credence to the presence of the appellants along with their luggage at the DRI office and recovery of articles which was said to be Hashish. Soon thereafter, voluntary statements of Kalamuddin were recorded by the said witness strongly probabilising his presence at the DRI office at the time of recovery. In these circumstances, I am of the opinion the prosecution case is corroborated with regard to the recovery of narcotic substance from the luggage of the appellants in their presence at the DRI office by the independent witnesses particularly P.W.9. In this factual backdrop the authorities relied on by the defence are clearly distinguishable. In Naresh Kumar @ Nitu Vs. State of Nana Keshav Lagad Vs. Himachal Pradesh, (2017) 15 SCC 684, the independent witness P.W. 2 wholly denied the presence of the appellant at the place of occurrence and the circumstances of the case showed that presence of appellant at the spot was an impossibility. In Gorakh Nath Prasad Vs. State of Bihar, (2018) 2 SCC 305, P.W. 2 and 3 denied recovery and claimed their signatures were obtained in blank papers.

As discussed above in the present case independent witnesses, particularly P.W. 9 admitted with regard to the presence of the appellants along with their luggage at the DRI office and the officials informed him narcotic substance were recovered from such luggage. Thereupon P.W.9 signed on inventory and seizure memo and other documents. He also recorded voluntary statements of Naskar and Kalamuddin. It has been contended that P.W. 9 was a stock witness as he had deposed in other cases. However, prosecution has not been able to show P.W. 9 had any enmity with the appellants or was under any obligation to the DRI officers to support their case. On the other hand, when his evidence is read as a whole it does not appear that he deposed as per dictates of the DRI officers. Merely because a witness has deposed in other cases on behalf of the police his evidence cannot be rejected on such score alone. [see State of Maharashtra, (2013) 12 SCC 721, Para 26, Mahesh Janardhan Gonnade Vs. State of Maharashtra, 2008 Cri.L.J. 3602, Para 45].

It has been argued that the seizure list has not been exhibited in the instant case. From the evidence on record it appears that the contraband articles were recovered from the luggage of the appellants at the DRI office. At the time seizure list was prepared by P.W.2 (Ext. 24). He also prepared a panchnama (Ext.25). P.W.2 deposed initially he prepared a rough seizure list and thereafter a typed seizure list (Ext. 24) was prepared by him. Ext. 24 bears signatures of the accused persons and public witnesses and appears to have been contemporaneously prepared at the time of seizure. In the backdrop of the aforesaid fact I am of the opinion that Ext. 24, namely, the inventory-cum-seizure list is a contemporaneous record with regard to the recovery of the articles from the luggage of the appellants and the defence cannot cast doubt with regard to its authenticity on the score of non-production of rough notings of P.W.2 which he has described as rough seizure list.

It has also been argued as the appellants were in custody of DRI officials when their statements recorded under section 67 of the NDPS Act, accordingly such statements are involuntary and inadmissible in Court. Reference has been made to Noor Aga Vs. State of Punjab, (2008) 16 SCC 417 and Union of India Vs. Bal Mukund, (2009) 12 SCC 161. It is further argued that in Tofan Singh Vs. State of T.N., (2013) 16 SCC 31, the issue whether statement recorded under section 67 NDPS is substantive evidence and can be the sole basis of conviction has been referred to a larger bench. It appears from the evidence of the official witnesses that the appellants had not been arrested prior to the recording of their statements under section 67 of NDPS. In fact, statements of two of the appellants, namely Naism Akhtar & Kamaluddin were recorded by an independent witness (P.W.9) in Hindi. The appellants have not retracted their statements under section 67 of the NDPS Act at any point of time. Hence, the facts of the instant case are distinguishable from Noor Aga (supra) and Bal where the confessional statements had been retracted.

Furthermore, there is direct evidence with regard to recovery of narcotic substance from the luggage of the appellants. Under such circumstances, the voluntary statements of the appellants recorded under section 67 of NDPS Act can be used as corroborative evidence to bolster the prosecution case. Reference in this regard may be made to Daulat Ram Vs. Crime Branch (Narcotics) Mandsaur, (2011) 15 SCC 176,wherein evidence of official witnesses relating recovery of narcotics corroborated by the statement of accused under section 67 of NDPS was the basis of conviction.

Chain of custody of the seized contraband and the representative samples taken therefrom for chemical examination have been proved. P.W.11 sent the representative samples for chemical examination under cover of letter (Ext. 16/16/1). Chemical examiner’s report showing that the samples contain Charas was exhibited as Ext. 17. Variation in weight of the representative samples in the test report and as noted in panchnama are minor and of little relevance as signatures and seals on the envelopes containing the samples were found intact. Remainder of the contraband was kept in Siliguri Customs Godown and destroyed with permission of the Court in terms of section 52 NDPS Act. Hence, non-production of seized contraband in court cannot be a ground to reject the prosecution case.

Accordingly, I uphold the conviction and sentence recorded against the appellants.

The appeals are, accordingly, dismissed.

The period of detention suffered by appellants during investigation, inquiry or trial shall be set off under Section 428 of the Code of Criminal Procedure.

I record my appreciation for the able assistance rendered to this Court by Ms. Meenal Sinha as amicus curiae for disposing the appeal.

Copy of the judgment along with L.C.R. be sent down to the trial court at once.

Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.

I agree.

(Joymalya Bagchi, J.)

(Manojit Mandal, J.)

09.08.2019
PA

Ramesh Dasu Chauhan and Another Vs. State of Maharashtra-04/07/19

Evidence Act-There is no gainsaying that confession made to a police officer cannot be proved as against a person accused of any offence and no confession made by a person while in police custody except made in the immediate presence of a Magistrate, can be proved against him in view of embargo created by Sections 25 and 26 of the Evidence Act. Section 27 of the Act nevertheless carves out an exception as it provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence while he is in police custody, “so much of such information”, regardless of it being a confession or not, may be proved, if it relates distinctly to the fact thereby discovered.

FROM: Division Bench of the High Court of Judicature at Bombay, Nagpur Bench

ACT: Sections 302 and 392 read with Section 34 of the I.P.C.

SUPREME COURT OF INDIA

Ramesh Dasu Chauhan and Another Vs. State of Maharashtra

[Criminal Appeal No. 1682 of 2012]

SURYA KANT, J.

1. The Sessions Judge, Nagpur vide judgment and order dated 26th February, 2003 convicted the appellants under Section 302 read with Section 34 of the Indian Penal Code (for brevity, “the I.P.C.”) and sentenced to undergo life imprisonment besides a fine of Rs.1,500/- each and in default thereof they were directed to undergo Rigorous Imprisonment for six months. They were further convicted under Section 392 read with Section 34, I.P.C. and sentenced to undergo Rigorous Imprisonment for three years and to pay a fine of Rs.1,000/- each and in default thereof they were directed to undergo Rigorous Imprisonment for three months.

2. The appellants’ conviction and sentence was upheld by a Division Bench of the High Court of Judicature at Bombay, Nagpur Bench in Criminal Appeal No. 272/2003, decided on 11.04.2008. Both these judgments are under challenge in this 2nd Appeal.

BRIEF FACTS:

3. Deceased Kamlesh Kumari Trivedi, aged about 79 years used to reside along with her daughter Rani Trivedi and granddaughter Purnima Trivedi in Rajnigandha Apartments, Ambazari, Nagpur. Rani Trivedi was a school teacher and used to leave home for her work around 7.20 a.m. and return back in the evening. Purnima Trivedi was studying in M.A. in a college and she too used to leave for her classes at about 10.00 a.m. and return by afternoon. Deceased Kamlesh Kumari Trivedi, thus, would remain alone in the house during the afore stated period.

4. On the fateful day, i.e., 28th August, 2001, both Rani Trivedi and Purnima Trivedi left for their respective destinations while Kamlesh Kumari Trivedi was all by herself in the house. When Purnima Trivedi returned from College around 1.30 p.m., she found her grandmother (Kamlesh Kumari Trivedi) lying dead in the drawing room with visible signs of strangulation. The Onida T.V. set kept in the drawing room was found missing. Purnima Trivedi immediately rushed to her neighbours Raisaheb Chourasiya and Baliram Fulari and informed them about the incident. Both of them accompanied Purnima to the apartment. Baliram Fulari, on the request of Chourasiya, informed the police control room about the incident.

5. Raisaheb Chourasiya, noticed on the date of occurrence that two young boys had come on a red coloured motorcycle; stopped it in front of Rajnigandha Apartments; entered the apartment building and after some time vanished from the spot. Mr. Sevakram Thaokar, Inspector of Crime Branch, Nagpur rushed to the spot and on the basis of the information divulged by the neighbours, he carried out search operations and apprehended the appellants from near the Gupta Hotel in village Hingna. On personal search of one of the suspect, some cash amount and a silver coin was recovered; their motor cycle was seized and Onida T.V. was also then got recovered at the instance of first appellant (Ramesh). Crime No. 246/2001 under Section 302, 392/34 was registered. On consideration of the chargesheet, charges under Sections 302, 392/34, I.P.C. were framed to which the appellants pleaded not guilty and claimed trial.

6. The prosecution, in all, examined eleven witnesses to establish the charge, but none by the defence. The appellants in their statement under Section 313, Cr.PC, as well as in the cross-examination of prosecution witnesses, pleaded absolute denial and claimed to have been made a scapegoat by the police in order to cool the public rage down against the heinous crime.

7. Three points fell for consideration of the Learned Sessions Judge, namely,

(i) Whether deceased Kamlesh Kumari Trivedi died homicidal death?

(ii) Whether the prosecution was able to prove that accused Nos. 1 and 2 in furtherance of their common intention committed murder of Kamlesh Kumari Trivedi?

(iii) Whether the prosecution had further succeeded in proving that accused Nos. 1 and 2, in furtherance of their common intention, committed robbery of taking away Onida T.V., silver coin and cash amount of Rs.200/- from the custody of deceased Kamlesh Kumari Trivedi?

8. The Trial Court was alive to the situation that in order to prove a criminal charge by means of circumstantial evidence, it was imperative on the prosecution to establish beyond any doubt that –

(i) the circumstances from which the conclusion of guilt is to be drawn must be fully established;

(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused;

(iii) the circumstances should be of conclusive nature and they should exclude any possible hypothesis except the one to be proved; and

(iv) the chain of evidence should be complete leaving no reasonable ground for the conclusion consistent with the innocence of the accused.

9. The Trial Court thereafter scrutinised the entire evidence within the framework of cited parameters and after an elaborate confabulation, it came to the conclusion that Kamlesh Kumari Trivedi died a homicidal death; the appellants were duly seen entering Rajnigandha Apartments at the most relevant time by Raisaheb Chourasiya (P.W.9), the recovery of Onida T.V., silver coin and a part of currency from the appellants was also a strong circumstance to nail them, who were consequently held guilty of the offence(s) under Sections 302 and 392 read with Section 34 of the I.P.C. and sentenced accordingly.

10. The High Court re-evaluated the prosecution evidence in its entirety and banking upon the statement of the star witness, Raisaheb Chourasiya (P.W.9) coupled with the deposition made by Sevakram Thaokar, Police Inspector, Crime Branch (P.W.11), it concurred with the Trial Court and dimissed the appeal.

11. We have heard Mr. Ekansh Bansal, Learned Counsel for the appellants and Mr. Nishant R. Katneshwarkar, Learned Counsel on behalf of the State and gone through the record with their assistance.

12. It was vehemently urged on behalf of the appellants that no Identification Test Parade was conducted before the Court to establish the presence of appellants at the place of crime, even though the star prosecution witness, Raisaheb Chourasiya (P.W.9) has acknowleged that the two young persons who came on the red coloured motorcycle had covered their faces with mufflers. The version of Raisaheb Chourasiya (P.W.9) was sought to be discredited on the plea that the appellants being in the age group of 30s, could not be roped in as young boys of 20-25 who were allegedly noticed entering Rajnigandha Apartments around the time when the occurrence took place.

Learned Counsel further argued that the appellants were never confronted with the alleged stolen items for identification, more so when the panch witnesses of alleged recovery have resiled and declared hostile. He thus, urged that crucial links in the formation of chain of circumstantial evidence are conspicuously missing so as to link the appellants with the offence. The prosecution has, therefore, failed to establish its case beyond reasonable doubt. Counsel for the State contrarily, maintained that its a proven case against the appellants and this Court need not reappraise the concurrent findings returned by the two Courts.

13. We find that the question which falls for consideration of this Court is whether the circumstantial evidence led in the instant case is so unimpeachable that it establishes the guilt of the appellants beyond the shadow of doubt.

14. The expression circumstantial evidence’ has been the subject matter of consideration in a catena of decisions wherein it has been precisely defined as a combination of such facts that there is no escape for the accused because the facts taken as a whole do not admit to any inference but of his guilt. It has also been coined as a Complete Chain Link Theory, putting onus on the prosecution to prove beyond reasonable doubt, the chain of events which lead to only one conclusion, namely, the culpability of the accused.

15. This Court in Sharad Birdhi Chand Sharda v. The State of Maharashtra1 elaborately considered the standard of proof necessitated for recording a conviction on the basis of circumstantial evidence and laid down the five golden principles of standard of proof required to be established in such a case, which are paraphrased as follows:-

i) The circumstances from which the conclusion of guilt is to be drawn should be fully established;

ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, these should not be explainable on any other hypothesis except that the accused is guilty;

iii) The circumstances should be conclusive in nature and tendency;

iv) They should exclude every possible hypothesis except the one to be proved; and

v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the acts must have been committed by the accused.

16. These precepts have been unvaryingly reiterated by this Court from time to time including recently in Manoj Kumar v. State of Uttarakhand2.

17. Let us now examine whether the prosecution has successfully established these well-known parameters in the case in hand?

18. The prosecution case foremostly hinges upon the version of Raisaheb Chourasiya (P.W.9). He earlier made a statement under Section 164, Cr.PC on 16.10.2001 and consistent with thereto he has unequivocally deposed that on 28.08.2001 at around 11.45 a.m., he was drying his hair in his apartment when two boys came on a red coloured motorcycle of Hero Honda make, which they parked in front of his neighbour Nag Devi’s apartment. The two boys went in the direction of Plot No. 94-95 and he thought that they might have come to see the house which was under construction.

He, however, noticed that the two boys opened the front gate of Rajnigandha Apartments and went inside. Meanwhile, Raisaheb Chourasiya got a call on phone and after attending to it for about 20 minutes, when he again looked for the Hero Honda Motorcycle, it was not there. Both the boys were in plain apparels and had put mufflers on their faces. He thereafter went to see one of the neighbours and sat in the verandah of the later’s house. After some time, Purnima Trivedi came crying and informed that her grandmother was not speaking and she was lying in a pool of blood. She also informed that someone had stolen their T.V. set. P.W.9 along with Purnima and one Baliram Fulari went inside the apartment and found that the grandmother of Purnima was lying dead and blood was oozing out of her nose.

He asked Purnima not to touch anything and let the police come and make the enquiry. He then asked his neighbour, Baliram Fulari to inform the police about the incident. On the same day at about 5.30 p.m., the police brought the two boys with the motorcycle to his house and he identified them as well as the motorcycle, for there were five stickers of sindoor’ on the mudguard of the motorcycle and he also remembered its Registration Number.

Raisaheb Chourasiya (P.W.9) identified both the boys in Court-room also, namely, the appellants. Pertinently, there is not even a suggestion to the witness in his cross-examination that he was not present in his apartment or that he did not see the appellants entering the Rajnigandha Apartments. The only question put to the witness was apparently to remind him that he could not recognize the boys as they had covered their faces with mufflers, which he has categorically denied. The witness very emphatically says in his cross-examination that, “Incorrect to state that I have idedntified the accused except they are before the Court”. The defence has indeed miserably failed to cause any dent in the veracity or the capability of the witness to identify the two boys who came on the motorcycle and entered the front gate of Rajnigandha Apartments or his assertion that those two boys were none else than the appellants.

19. Baliram Fulari (P.W.3) has testified that on 28th August, 2001 around 1.30 p.m. one of his neighbours Raisaheb Chourasiya (P.W.9) came to his house and informed about the murder of the mother of Rani Trivedi (P.W.1) and the theft of some articles. Purnima Trivedi 10 (P.W.4) was also accompanying Raisaheb Chourasiya. He informed the police about the incident on the request made by Raisaheb Chourasiya and also gave registered number of the red coloured motorcycle to the police. Baliram Fulari (P.W.3) has specifically deposed that he informed Shri Kangle, D.C.P. of Crime Branch about the incident.

The only suggestion given in the cross-examination to Baliram Fulari, (P.W.3) is that no information was passed on to him either by Raisaheb Chourasiya or Purnima Trivedi. As against it, the witness has further clarified in his cross-examination that on the same day at about 5.30 p.m., the police brought the suspects to the place of incident. He thus fully corroborates the testimony of Raisaheb Chourasiya (P.W.9) and Purnima Trivedi (P.W.4) to the extent that the police brought two boys at the place of occurrence and both of them were seen by P.W.1, P.W.3, P.W.4 and P.W.9.

20. According to Rani Trivedi (P.W.1), she got an emergency phone call from her daughter around 2.30 p.m. about her mother having been assaulted and the incident of theft in their house. She immediately left for home and saw the bloodstains on the floor; that her mother was throttled and strangulated with her own sari and the police was present on the scene. She found that the cupboards in the room of their apartment were broken and the items were scattered. A silver coin of Goddess Lakshmi’ along with cash amount of Rs.200/- besides Onida T.V. were missing. The thieves, however, could not break open the Godrej almirah in which valuables were kept. She has indubitably deposed that the police brought two persons in the evening to their flat and she identified them who were present in Court as accused Nos. 1 and 2. Her statement too is totally unruffled in the cross-examination. Rather, she has well-explained that Raisaheb Chourasiya (P.W.9) lives in the third house in row from her house.

21. Purnima Trivedi (P.W.4), grand daughter of the deceased chronically narrated the events which she saw after returning from college at about 1.15 p.m. She has deposed that on reaching the flat, she kept ringing the bell but got no response, therefore, she tried to open the main door and pushed it due to which the pelmet fell down. She found on entering the flat that her grandmother was lying in a pool of blood in the drawing room. She sprinkled water on her face thinking she might be alive. While she was looking around she found that Onida T.V. was missing. She found that cash amount of Rs.200/- and a silver coin were also missing from the cubboard. She immediately ran to inform her neighbours and rushed to the house of Raisaheb Chourasiya (P.W.9), who stayed two houses away from their apartment. She told him about the incident. No meaningful question was asked to her in the cross-examination to indicate any overcolouring in her version.

22. We may now turn to the statement of Sevakram Thaokar (P.W.11), the Investigating Officer-cum-Inspector of Crime Branch. He along with the staff immediately reached at the spot i.e. Rajnigandha Apartments on receipt of the wireless message and learnt through Raisaheb Chourasiya (P.W.9) about two persons coming on a red coloured motorcycle. He started searching for the suspects without any loss of time and reached upto village Hingna where he found a red coloured motorcycle in front of Gupta Hotel. There were two persons with the motorcycle, who were brought to Gupta Hotel and he called two Panchas so as to interrogate the suspects in their presence. The two suspects, namely, the appellants were eventually arrested and a sum of Rs.231/- and one HMT wrist watch was seized from appellant No. 1 (Ramesh). Another sum of Rs. 142/- with silver coin and one goggle was recovered from appellant No. 2 (Kamlesh). Their Hero Honda Motorcycle was seized vide Ext. P-27. Appellant No. 1 also got recovered Onida T.V. from his residence at Wana Dongri vide recovery Ext. P-25.

23. As per the post mortem report of Kamlesh Kumari Trivedi, the medical officer found following four ante-mortem wounds given in 13 Column 17 of the medical legal report Ext. P-17:-

“1. Ligature mark present over front of neck, below thyroid cartilage, transversely placed. Completely encircling the neck except over nape of neck at the site of plait, on both side of neck ligature marked 6 cms below tip of both mastoid processes, length of ligature mark 30 Cms, breadth, 2.5 cm. slightly grooved, dry hard.

2. Contused abrasion present over posterior aspect of right forearms 2 cm x 2 cm. reddish brown,

3. Contused abrasion present over left side of neck, 2 cm below left angle of mandible 4 cm away from middle, obliquely placed 2 cm. x 1 cm. Reddish Brown.

4. Contused abrasion present over left side of neck, 2 cm. Lateral to injury No. 3 size 1 cm x 1 cm reddish brown.”

24. The medical officer unambiguously opined that injury No. 1 of Column 17 along with internal damage was sufficient to cause death of the victim in the ordinary course of nature. The cause of death was Asphyxia’ i.e. due to ligature strangulation.

25. From the nature of ante-mortem injuries suffered by the deceased as described in the inquest panchnama Ext. P-12 read with the post mortem report, it can be safely believed that the death was homicidal’ within the meaning of Section 299 I.P.C. The medical evidence in this regard is fully corroborated by the statement of Rani Trivedi (P.W.1), Baliram Fulari (P.W.3), Purnima Trivedi (P.W.4) and Raisaheb Chourasiya (P.W.9) and thus there is no room for doubt that the deceased Kamlesh Kumari Trivedi died a homicidal death.

26. There is clinching evidence on record to establish that the appellants were seen around 11.45 a.m. entering the front gate of Rajnigandha Apartments where the deceased was residing. They left the place after 20 minutes or so. As per the eye-witness’s account the appellants were lastly seen nearest to the place of occurrence before they disappeared.

27. There is no gainsaying that confession made to a police officer cannot be proved as against a person accused of any offence and no confession made by a person while in police custody except made in the immediate presence of a Magistrate, can be proved against him in view of embargo created by Sections 25 and 26 of the Evidence Act. Section 27 of the Act nevertheless carves out an exception as it provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence while he is in police custody, “so much of such information”, regardless of it being a confession or not, may be proved, if it relates distinctly to the fact thereby discovered.

Section 27 of the Evidence Act thus enables the cliched use of a custodian statement made in the ordinary course of events. The statement made by an accused while in police custody can be split in two parts and to the extent of it being a disclosure statement which is the immediate cause of discovering new 15 facts, would be legally admissible in evidence though the remainder of such statement may be liable to be discarded. The Investigating Officer, Sevakram Thaokar (P.W.11) has very emphatically deposed that out of the stolen items, Onida T.V. set was got recovered at the instance of the first appellant from his house. Similarly, the silver coin and a part of the stolen currency was recovered from the second appellant. This is not the appellants’ case that they were forced to make the incriminating statements under any threat.

They have chosen to defend themselves only on the basis of denial. The revelation made by the Investigating Officer to the limited extent of recovery of the stolen items pursuant to the disclosure statements made by the appellants, therefore, falls within the four-corners of Section 27 of the Evidence Act and has been rightly relied upon by the Courts below.

28. True it is that the statement of a police officer has to be scrupulously scrutinised and the Court would cautiously and suspiciously read the same for evaluating the cumulative effect of the entire evidence on record. If the statement of PW-11 is scanned in its entirety, it stands out that no sooner Raisaheb Chourasiya (P.W.9) gave the description of two young persons who came on a red coloured motorcycle or their entry into Rajnigandha Apartments, the police inspector swung into action and apprehended them within no loss of 16 time. The two persons, namely, the appellants were brought back to Rajnigandha Apartments and they were duly identified by Raisaheb Chourasiya (P.W.9). Baliram Fulari (P.W.3) and Rani Trivedi (P.W.1) also saw and later on identified them in their depositions. Since the appellants have not disputed their identity in the cross-examination of Raisaheb Chourasiya (P.W.9) or of Rani Trivedi (P.W.1), it is too late for them to allege that no Test Identification Parade was conducted.

29. It is no longer debatable that the Identification Parade of the accused before the Court is not the main substantive piece of evidence, rather it is corroborative in nature.

(i) Rafikul Alam v. State of West Bengal (2007) SCC Online Cal. 728 or (2008) 1 CHN 685;

(ii) Navaneethakrishnan v. State by Inspector of Police (2018) 16 SCC 161].

30. There are more than one reasons to trust P.W.9 (Raisaheb Chourasyia).

Firstly, there is no suggestion or even a whisper of any animosity between Raisaheb Chourasyia and the appellants. He had no motive to falsely implicate the appellants.

Secondly, the presence of the appellants coming on red coloured motorcycle and their entry to Rajnigandha Apartments, as seen by the witness, has not been expressly denied in his cross-examination.

Thirdly, P.W.9 being resident of the same Complex, is a natural and not a chance’ witness.

Fourthly, Raisaheb Chourasiya’s version has been fully corroborated by the other prosecution witnesses like Rani Trivedi (P.W.1), Baliram Fulari (P.W.3) and Purnima Trivedi (P.W.4).

Fifthly, he is consistent throughout, be it may his statement under Section 164, Cr.PC and/or deposition on oath.

Sixthly, the attempt made on the character assassination of the witness has miserably failed. We thus find no ground to suspect P.W.9 for non-existent reasons.

31. The appellants, in all probabilities, were present in Rajnigandha Apartments at the time of occurrence. They have failed to explain any other reason of their presence. They have also not questioned their identity by Raisaheb Chourasiya (P.W.9) and Rani Trivedi (P.W.1). They have not doubted or condemned the police officer (P.W.11) of falsely planting any recovery on them. Further, all the stolen items recovered at the instance of the appellants have been duly identified by Rani Trivedi (P.W.1) and Purnima Trivedi (P.W.4) as their belongings and thus the link between the crime and the recovered items has been conclusively established. The appellants having been lastly seen near the scene of crime, their complete silence and/or evasive statement under Section 313, Cr.PC, does not inspire confidence to discard the prosecution case.

32. Both the Courts below have weighed the evidence to reach a definite conclusion that the appellants and the appellants alone entered the apartment of Kamlesh Kumari Trivedi and committed her murder by strangulation with a motive to commit robbery in the house. There is no factual or legal infirmity in the findings returned by the Courts below, which may call for any interference by this Court. The Appeal is accordingly dismissed.

J. (DEEPAK GUPTA)

J. (SURYA KANT)

NEW DELHI

04.07.2019

1(1984) 4 SCC 116

2(2019) 5 SCC 663

To be a witness – means

7. After careful perusal of the evidence and material on record, we are of the considered opinion that the following question would play a crucial role in helping us reaching an upright decision:

Whether compelling an accused to provide his fingerprints or footprints etc. would come within the purview of Article 20(3) of the Constitution of India i.e. compelling an accused of an offence to be a “witness” against himself?

It would be relevant to quote Article 20(3) of the Constitution of India which reads as follows:

“Article 20: Protection in respect of conviction for offences.

(1) … … …

(2) … … …

(3) No person accused of any offence shall be compelled to be a witness against himself.”

8. The answer to the question above-mentioned lies in judicial pronouncements made by this Court commencing with celebrated case of State of Bombay v. Kathi Kalu Oghad & Ors., (1962) 3 SCR 10, wherein it was held:

“To be a witness’ may be equivalent to furnishing evidence’ in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body. Furnishing evidence’ in the latter sense could not have been within the contemplation of the Constitution-makers for the simple reason that – thought they may have intended to protect an accused person from the hazards of self incrimination, in the light of the English Law on the subject – they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions or parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice.”

9. We may quote another relevant observation made by this Court in the case of Kathi Kalu Oghad, (supra).

“When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a personal testimony’. The giving of a personal testimony’ must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression to be a witness.”

STATE OF UTTAR PRADESH  Vs. SUNIL [SC]

What is the meaning of ‘proof beyond reasonable doubt’

The expression ‘proof beyond reasonable doubt’ in criminal law requires the prosecution to establish guilt and secure conviction of the accused by proving the charge ‘beyond reasonable doubt’. In Ramakant Rai Vs. Madan Rai & Ors. (2003) 12 SCC 395 referring to the expression ‘reasonable doubt’ in criminal law it was held as under:

“24. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than the truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the
case.”