*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU + CRIMINAL REVISION CASE NO.1219 OF 2010 % 27-07-2010 # Y. Ranganadh Goud ….Petitioner Vs. $ State rep. By the Public Prosecutor, High Court of AP., Hyderabad . …. Respondent !Counsel for the Petitioner : Sri C. Mastan Naidu Counsel for the Respondent: Public Prosecutor <Gist : >Head Note: ? Cases referred: 1. 1981 CRI.L.J.927 2. 2001(1) CCC 453 3. 213 SCt 330:49 SE 2nd 289 4. 1962 (3) SCR 10 HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE NO.1219 OF 2010 DATE:27.07.2010 Between: Y. Ranganadh Goud …… Petitioner. And: The State of A.P., rep. by PP., High Court of A.P. …..Respondent. HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE NO.1219 OF 2010 ORDER: 1. The revision petitioner/A-1 is accused of offences punishable under Sections 417, 420, 376 and 506 IPC in Crime No.122 of 2009 of Ponnur Town Police Station. The Sub Divisional Police Officer, Bapatla filed petition Criminal M.P.No.3250 of 2010 before the Additional Judicial Magistrate of the First Class, Ponnur under Section 173 Cr.P.C requesting the court to record original voice of the petitioner/A-1 and the victim before the court for forwarding the same to Andhra Pradesh Forensic Science Laboratory, Hyderabad for comparison with a Compact Disc (CD) allegedly containing voices/conversations of A-1 and the victim recorded by cell phone. This petition was opposed by A-1. The lower court by the impugned order dated 24.06.2010 allowed the petition permitting to record original voices of A-1 and the victim in open court and fixed a date. As against the said order, A-1 filed the present revision petition. 2. Main contention put forward by the petitioner’s counsel in this revision petition is that directing A-1 to give sample voice for the purpose of comparison of the same with his alleged voice contained in a C.D, offends A-1’s fundamental right under Article 20(3) of the Constitution of India and that therefore, the lower court should not have passed the impugned order. The petitioner’s counsel placed reliance on Vinod Kumar v. The State[1] of the Delhi High Court and H. Chandrashekhar v. Shafiq Ali Khan[2] of the Karnataka High Court in this regard. In the former decision, the Delhi High Court held that there is nothing in the Evidence Act which even remotely suggests that the court has power to call upon a prosecution witness to get his sample voice recorded for comparison with his disputed tape recorded voices and that neither Section 73 of the Evidence Act provides for recording of sample voice for comparison nor under Section 45 of the said Act, evidence of an expert on comparison of sample voice with disputed one has been made admissible. The Delhi High Court further held that even the High Court in exercise of inherent power under Section 482 Cr.P.C cannot direct the trial court to do so. In the latter decision, the Karnataka High Court held that no person can be compelled to give his voice to be tested in comparison of voice already recorded, following the view taken by the Delhi High Court. 3. The petitioner’s counsel also placed reliance on State v. Taylor[3] wherein it was held that to compel a suspect while in custody and prior to his trial, to speak the very words a witness heard the offender speaking at the time of the offence, so as to enable the witness to compare the voice of the suspect with that of the offender and thereby, if possible, to identify the suspect, as being the offender, and to admit in evidence at his trial on identification, is violative of his privilege against of ‘self-incrimination’. 4. On the other hand, it is contended by the Additional Public Prosecutor that in case, the petitioner/A-1 is not willing to give his sample voice for the purpose of comparison with voice contained in the C.D, then he may be permitted to do so subject to the lower court drawing adverse inference on his refusal to give his sample voice. The petitioner’s counsel contended that such drawing of adverse inference in criminal law is not permissible. The Additional Public Prosecutor further contended that recording sample voice of the accused in court, does not violate Article 20(3) of the Constitution of India. 5. State of Bombay v. Kathi Kalu Oghad[4] rendered by a Bench consisting of 11 Judges of the Supreme Court has been the leading case on Article 20(3) of the Constitution of India. While upholding obtaining of specimen finger impressions and specimen handwritings from the accused person vis-à-vis Article 20(3) of the Constitution of India, the Supreme Court observed therein: “It is well established that cl. (3) of Art. 20 is directed against self-incrimination by an accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge. For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression. The production of such a document, with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony. 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 ay 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. ' In order that a testimony by an accused person may be said to have been self-incriminatory, the compulsion of which comes within the prohibition of the constitutional provision, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused person at least probable, considered by itself. A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of 'testimony. '” 6. In Selvi v. State of Karnataka[5] the Supreme Court made a distinction between such materials which are likely to lead to incrimination by themselves and those materials which furnish a link in the chain of evidence which could lead into the same result; and held that reliance on contents of compelled testimony comes within the prohibition of Article 20(3) of the Constitution of India but it is not barred for the purpose of identification or corroboration with the facts already noted by the investigators. The Supreme Court observed: “136. Since the majority decision in Kathi Kalu Oghad (4 supra) is the controlling precedent, it will be useful to re-state the two main premises for understanding the scope of ‘testimonial compulsion’. The first is that ordinarily it is the oral or written statements which convey the personal knowledge of a person in respect of relevant facts that amount to ‘personal testimony’ thereby coming within the prohibition contemplated by Article 20(3). In most cases, such ‘personal testimony’ can be readily distinguished from material evidence such as bodily substances and other physical objects. The second premise is that in some cases, oral or written statements can be relied upon but only for the purpose of identification or comparison with facts and materials that are already in the possession of the investigators. The bar of Article 20(3) can be invoked when the statements are likely to lead to incrimination by themselves or ‘furnish a link in the chain of evidence’ needed to do so. We must emphasize that a situation where a testimonial response is used for comparison with facts already known to investigators is inherently different from a situation where a testimonial response helps the investigators to subsequently discover fresh facts or materials that could be relevant to the ongoing investigation. ------------------------------------------------------------------ - ----------------------------------------------------------------- However, the compulsory extraction of material (or physical) evidence lies outside the protective scope of Article 20(3). Furthermore, even testimony in oral or written form can be required under compulsion if it is to be used for the purpose of identification or comparison with materials and information that is already in the possession of investigators.” 7. If the facts in the present case are examined in the light of the above pronouncements of the Apex Court, it is evident that the Sub Divisional Police Officer, Bapatla is already in possession of a CD containing voices or conversation said to be between A-1 and the victim woman; and the investigating officer wanted sample voice of A-1 and the victim to be recorded in court for the purpose of making comparison of voices contained in the CD with the sample voices recorded in open court. This exercise of recording of sample voices of A-1 and the victim in open court is not going to incriminate A-1 on the basis of such sample voice, but only facilitates the investigating officer and the court to identify voice contained in the CD which is already in possession of the investigating officer. By any stretch of imagination, the exercise of recording sample voice of A-1 for the purpose of identifying the male voice already contained in CD which is collected by the investigating officer during investigation, cannot amount to testimonial compulsion which is prohibited under Article 20(3) of the Constitution of India. 8. This is not the stage to consider about relevancy or admissibility or evidentiary value of the talk contained in the CD and the expert’s opinion on comparison of that talk contained in the CD with sample voices to be recorded in the lower court. Those contentions are left open to be decided by the trial court during recording of evidence and during final disposal of the case after trial in case the police are going to file charge sheet. Since this Court found that the proposed exercise of recording sample voices of the petitioner/A-1 and the victim is not offended by Article 20(3) of the Constitution of India, the lower court is at liberty to proceed towards that exercise. 9. In the result, the criminal revision petition is dismissed. __________________________________ SAMUDRALA GOVINDARAJULU,J. Date:27.07.2010. Note: L.R. copy to be marked. //By Order// Gk. HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE NO.1219 OF 2010 Date:27.07.2010 Gk. [1] 1981 CRI.L.J.927 [2] 2001(1) CCC 453 [3] 213 SCt 330:49 SE 2nd 289 [4] 1962 (3) SCR 10 [5] 2010 AIR SCW 3011