CR.RA/228/2007 1 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 228 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= STATE OF GUJARAT - Applicant(s) Versus SHAILENDRA KAMALKISHOR PANDE & 4 - Respondent(s) ========================================================= Appearance : MR KC SHAH, APP for Applicant. MR JB PARDIWALA for the Complainant. MR YOGESH S LAKHANI for the Respondents. ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.MEHTA Date : 29/06/2007 CAV JUDGMENT CR.RA/228/2007 2 JUDGMENT 1. The applicant-State of Gujarat has filed this Criminal Revision Application under Section 397 of the Code of Criminal Procedure with a prayer that this Court may be pleased to quash and set aside the order dated 16.4.2007 passed by the learned Sessions Judge, Fast Track Court No.6, Vadodara below application Exh. 292 in Sessions Case No.172 of 2004. 2. By the impugned order, the learned Sessions Judge, Fast Track Court No.6, Vadodara, permitted the defence to produce a C.D. which contains an interview of the victim at the end of a local T.V. Channel. The learned Judge further permitted the defence to produce the C.D. and play the same on a C.D. Player before the Court so that the Court may be able to listen to the questions which were put by the local T.V. Channel. By the said application Exh. 292, the learned advocate for the accused stated that in the aforesaid matter the cross-examination of witness Ashutosh is going on. After the incident Ashutosh has given an interview in local T.V. Channel regarding the incident in question. When the attention of the witness was drawn towards it, he stated that he did CR.RA/228/2007 3 JUDGMENT not remember anything. This piece of evidence was in connection with the incident in question. In view of the same, his statement is recorded to show the said C.D. and therefore, the learned advocate for the accused has stated that they may be allowed to produce the said C.D. and the C.D. player in the Court and therefore prayed that during the cross- examination of Ashutosh, the Court may permit the recorded T.V. interview be shown in this behalf. 2.1 The learned Judge has passed order in connection with the offences punishable under Section 341 of the Indian Penal Code which provides wrongful confinement, Sec. 364-A which provides kidnapping for ransom, Sec. 506(2) which provides punishment for criminal intimidation, Sec.120-B of the IPC which provides punishment of criminal conspiracy and under Secs.25(1)(a) and 25(1)(b) of the Arms Act wherein the learned Sessions Judge was pleased to allow the application Exh.292 filed by the accused. CR.RA/228/2007 4 JUDGMENT 3. The facts giving rise to this application are as under:- 3.1 It is the case of the prosecution that the accused No.1 Shailendra Kamalkishor Pande, accused No.2 Shasanka Madanlal Goyel, accused No.3 Ruturaj Bhudeshwar Bhoda, accused No.4 Somashish Dipakkumar Adhyapak and accused No.5 Karsihma Bipinbhai Jadhav, all these accused persons kidnapped a minor child namely Ashutosh Ashokbhai Shah who was 14 years old at the time of commission of offence i.e. On 15.12.2003. It is the case of the prosecution that on 15.12.2003 the victim Ashutosh went to school by an auto rickshaw around 7.30 A.M. along with other students. While proceeding to the school, the accused No.1 to 4 came with lethal weapon like Tamancha, iron pipe, iron patti etc., in a Maruti Car and kidnapped the minor. 3.2 A police compliant was lodged by the rickshaw driver Shri Shivabhai Mahjibhai Parmar with Gorva Police Station on 15th December, 2003. The accused persons took the minor Ashutosh to CR.RA/228/2007 5 JUDGMENT Chandravila Apartment, Vadodara where they kept the minor from 15th December, 2003, to 20th December, 2003. The accused persons contacted the parents and demanded a sum of Rs.1.00 crore for releasing the minor, through telephone calls from various places. On 20th December, 2003, the police find out the location of the victim through accused No.5 and at 11.00 to 11.30 P.M., the police rescued the minor. At that time the accused No.1 was present with the minor victim and police arrested the accused No.1 and 5. Thereafter, during the course of investigation the police also arrested the accused No.2, 3 and 4. 3.3 After completion of the investigation, the police submitted the charge sheet before the learned Chief Judicial Magistrate Vadodara, who in turn committed the case before the Sessions Court at Vadodara. The learned Sessions Judge was pleased to frame the charges and necessary trial has commenced in this case. 3.4 During the course of trial, number of witnesses have been examined by the prosecution. CR.RA/228/2007 6 JUDGMENT While cross-examining the minor victim Ashutosh by the defence side, an application was submitted by the accused side Exh.292 and prayed to show the interview cassette of victim Ashutosh and his father to the minor Ashutosh, which was taken by the local news channel namely “TNN” on 21.12.2003. Some part of this interview was telecast by the TNN News (local news channel). 3.5 It appears that the defence wanted the trial Court to watch the CD and hear the entire conversation which took place between the victim and the local TV channel who were putting certain questions to the victim immediately after he was rescued by the police. The prosecution vehemently objected and opposed the application contending that it was not permissible for the accused persons to adduce any such evidence in the form of a CD and also contended that it would not be open for the trial court to watch the CD on a CD player. The prosecution also contended that the evidence of the prosecution was not yet over and if the accused persons wanted to lead any evidence they could lead CR.RA/228/2007 7 JUDGMENT only after they enter the stage of defence and that too after satisfying the court as regards the genuineness and the accuracy of the CD. It was submitted that the subject matter recorded in the CD has to be shown to be relevant according to rules and relevancy found in the Evidence Act. It was also submitted that accuracy of what was actually recorded had to be proved by the maker of the record and circumstantial evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record. Trial Court Findings: 3.6 The trial Court, after considering the submissions of the defence as well as the prosecution, came to the conclusion that any statement made by the victim after he was rescued by the police in connection with the prosecution case can be termed as his previous statement which would be a very relevant fact and the witness can be contradicted with his previous statement to impeach his credibility and the veracity of the prosecution case. The trial Court also came to the conclusion CR.RA/228/2007 8 JUDGMENT that for a just and fair trial, the Court should not shut any evidence which would have a bearing on the entire case. The trial court also recorded a finding relying upon the decision of the Hon'ble Supreme Court in the matter of Zahira Shaikh vs. State of Gujarat reported in 2004(2) GLR 1078 that if any fact relating to the truth of the prosecution case can be brought on record by any means, then the Court should not prevent the party from adducing such evidence. The trial court finally discussing Sec.145 and Sec.155 of the Evidence Act allowed the application and permitted the defence to produce the CD and play the CD on a CD player before the Court. 3.7 Being aggrieved and dissatisfied with the order passed by the learned Sessions Judge, Fast Track Court No.6, Vadodara, the revision application was filed by the State somewhere on 1.5.2007. 3.8 When the matter was placed for hearing before this Court, on 2.5.2007 this Court has passed a short but speaking order and also granted interim relief regarding stay of implementation, operation CR.RA/228/2007 9 JUDGMENT and execution of the order dated 16.4.2007 passed by the learned Sessions Judge, Fast Track Court No.6, Vadodara in application Exh.292 in Sessions Case No.172 of 2004. In the said order it was stated that the interim relief was granted only qua regarding application Exh.292 in Sessions Case No.172 of 2004 and it is open for the learned Judge to proceed further and examine other witnesses except Mr.Ashutosh Ashokbhai Shah and interim relief to continue till 7.5.2007. Thereafter this Court pleased to pass the orders on 9.5.2007, 11.5.2007 and 16.5.2007. 3.9 The matter was placed for hearing before this Court on 13.6.2007. Hence Rule. I have heard Mr.K.C. Shah, learned APP on behalf of the State of Gujarat. On behalf of accused I have heard Mr.Yogesh S.Lakhani, learned advocate and on behalf of original complainant I have heard Mr.J.B.Pardiwala, learned advocate who has tried to assist the Court as important and interesting question of law arises. With the consent of the parties, the matter is taken up for final hearing. CR.RA/228/2007 10 JUDGMENT 4. Learned APP Mr.K.C.Shah has made following submissions. 4.1 He submitted that the learned Sessions Judge ought to have seen that as per the Indian Evidence Act as well as the decisions rendered by the Hon'ble Supreme Court in various cases. The cassette submitted by the defence side cannot be acceptable, more particularly when the cross-examination is going on of the said witness. The trial court cannot grant such permission to show the video cassette and permit to ask the questions to witness, which may result into contradiction in the case. It is submitted that the minor Ashutosh has clearly stated that he does not remember about the interview given by him to any agency. 4.1A The learned APP further submitted that the learned Sessions Judge ought to have seen that if the cassette of said interview is required to be submitted before the trial court by the accused side, then it must be submitted from the proper custody of CR.RA/228/2007 11 JUDGMENT it and can pray as production witness. So the application at Exh.292 given by the defence is premature. 4.2 The learned APP stated that in the present case, the trial court ought to have appreciated the question of authenticity of the cassette but this authenticity is not examined by the trial court and the order passed by the learned trial Judge dated 16.4.2007 allowing the application Exh.292, held that the defence can shown the evidence which has been stated in Exh.292 to the witness concerned. 4.3 The learned Judge ought to have considered the fact that number of witnesses have examined in the matter and minor Ashutosh is also giving deposition after completing examination-in-chief. He has categorically stated that he does not remember whether he had given any interview to any agency or not. He has also stated that after seeing the interview he can make statement on the floor of the Court. On lap top the defence advocate wants to show something to reminder him about the interview which CR.RA/228/2007 12 JUDGMENT is not permissible under the provisions of law. Submissions of Mr.J.B.Pardiwala. 5. Mr.Jamshed B.Pardiwala, learned advocate stated that he has instructions from the complainant side. However, he stated that he do not want to address anything on the merits of the matter because the learned APP has already addressed the Court but as the revision application raises very important questions of law, he would like to assist the Court by citing some relevant judgments of the Hon'ble Supreme Court. That is how the Court permitted Mr.J.B.Pardiwala, learned advocate to appear and address in this behalf. 5.1 He has relied upon the Constitution Bench judgment of the Hon'ble Apex Court in the case of N.Sri Rama Reddy and others vs. V.V.Giri reported in AIR 1971 SC 1162 where the Hon'ble Apex Court in para 22 on page 1169 has observed like this: “Having due regard to the decisions referred CR.RA/228/2007 13 JUDGMENT to above, it is clear that a previous statement made by a person and recorded on tape, can be used not only to corroborate the evidence given by the witness in Court but also to contradict the evidence given before the Court, as well as to test the veracity of the witness and also to impeach his impartiality. Apart from being used for corroboration, the evidence is admissible in respect of the other three last-mentioned matters, under Section 146(1), Exception 2 to Section 146(1), Exception 2 to Section 153 and Section 155 (3) of the Evidence Act.” 5.1A However, in para 27 on page 1170 the Hon'ble Apex Court has observed like this: “We once again emphasize that this order relates only to the admissibility in evidence of the conversation recorded on tape and has not dealt with the weight to be attached to that evidence.” CR.RA/228/2007 14 JUDGMENT 5.2 He has also relied upon judgment of the Hon'ble Supreme Court in the case of Yusufalli Esmail Nagree vs. The State of Maharashtra reported in AIR 1968 SC 147 particularly para 6 on page 149 the Hon'ble Supreme Court has observed like this: “.... If a statement is relevant, an accurate tape record of the statement is also relevant and admissible. The time and place and accuracy of the recording must be proved by a competent witness and the voices must be properly identified. One of the features of magnetic tape recording is the ability to erase and re-use the recording medium. Because of this facility of erasure and re- use, the evidence must be received with caution. The court must be satisfied beyond reasonable doubt that the record has not been tampered with.” 5.3 He has also relied upon another judgment of Hon'ble Supreme Court in the case of Ziyauddin Burhanuddin Bukhari vs. Brijmohan Ramdass Mehra and CR.RA/228/2007 15 JUDGMENT others reported in AIR 1975 SC 1788 particularly para 1975 which reads as under: “We think that the High Court was quite right in holding that the tape records of speeches were “documents”, as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions: (a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it. (b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record. (c) The subject matter recorded had to be CR.RA/228/2007 16 JUDGMENT shown to be relevant according to rules of relevancy found in the Evidence Act. These requirements were deduced by the High Court from R. v. Maqsud Ali, (1965) 2 All ER 464.” 5.4 He has also relied upon another judgment of Hon'ble Supreme Court in the case of R.M.Malkani vs. State of Maharashtra reported in AIR 1973 SC 157 particularly para 23 on page 163, para 27 on page 163 and para 29 on page 163 & 164 which reads as under: “23. Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is provided by eliminating the possibility of erasing the tape-record. A contemporaneous tape-record of a relevant conversation is a relevant fact and is admissible under Section 8 of the Evidence CR.RA/228/2007 17 JUDGMENT Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under Section 7 of the Evidence Act. The conversation between Dr.Motwani and the appellant in the present case is relevant to the matter in issue. There is no dispute about the identification of the voices. There is no controversy about any portion of the conversation being erased or mutilated. The appellant was given full opportunity to test the genuineness of the tape recorded conversation. The tape recorded conversation is admissible in evidence.” “27. When a Court permits a tape recording to be played over it is acting on real evidence if it treats the intonation of the words to be relevant and genuine. The fact that tape recorded conversation can be altered is also borne in mind by the Court while admitting it in evidence.” CR.RA/228/2007 18 JUDGMENT “29. If the conversation was recorded on the tape it was a mechanical contrivance to play the role of an eavesdropper. In R. v. Leatham, (1861) 8 Cox C.C. 198 it was said “It matters not how you get it if you steal it even, it would be admissible in evidence” as long as it is not tainted by an inadmissible confession of guilt: evidence even if it is illegally obtained is admissible.” 5.5 What is meant by res gestae . 5.5A The res gestae as per Trayner's Latin Maxims on page 551 defines that the thing done; the whole transaction or circumstance. This phrase, which is of very frequent occurrence, signifies not only an act performed, but everything said or done at the time bearing upon or having reference to it. Thus it includes all statements made immediately before or immediately after any particular act so nearly connected with it in point of time as to be inseparable parts of the whole transaction, and CR.RA/228/2007 19 JUDGMENT incapable of omission from any narrative or testimony professing to be an account of it. Submission of Mr.Y.S.Lakhani, learned advocate for the respondents-accused. 6. On the other hand, Mr.Y.S.Lakhani, learned advocate has supported the reasonings of the learned trial Judge. He has submitted that the trial Court has committed no error in allowing the application Exh.292 and thereby permitting the defence to produce the C.D. in question and play the same on a CD Player before the trial Court. The learned advocate further submitted that the conversation between the victim and the person who interviewed the victim is admissible, provided that the conversation is relevant to the matters in issue, that there is identification of the persons in dialogue and that the accuracy of the conversation is proved by eliminating the possibility of any manipulation or fabrication. The learned advocate further submitted that all relevant conversation is a relevant fact and is admissible under Sec.8 of the Evidence Act which CR.RA/228/2007 20 JUDGMENT provides motive, preparation and previous or subsequent conduct. It was submitted that it is res gestae. 6.1 It was also submitted that it is also comparable to a photograph of the relevant incident. The conversation is therefore a relevant fact and is admissible under Sec.7 of the Evidence Act which provides facts which are the occasion, cause or effect of facts in issue. It was vehemently submitted by the defence side that by allowing the CD to be played on CD player the Court is not deciding anything finally and whether the evidence in the form of CD is relevant or not and whether it is legally admissible or not would be taken into consideration by the trial Court while appreciating the entire evidence at the final stage. It was submitted that finality can be attached to this piece of evidence and therefore the prosecution is not at loss or it cannot be said that the prosecution is prejudiced in any manner. 6.2 It was further submitted that admissibility of CR.RA/228/2007 21 JUDGMENT a document is one thing and its probative value quite another. These two aspect cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil. The learned advocate further submitted that the objection of the prosecution is with regard to the mode of proof which is sought to be adduced by the defence and ultimately if the trial court even after permitting the CD to be played and even after exhibiting the same can come to the conclusion that no importance can be attached to such a piece of evidence. It was also submitted that even if evidence is illegally obtained, it is admissible. The Court will take care in two directions in admitting such evidence. First, it will find-out that it is genuine and free from tampering or mutilation. Secondly, it may also secure scrupulous conduct and behavior on behalf of the accused persons. 7. Findings & Conclusion: 7.1 The short but interesting point of law which arises for consideration is as to whether the trial CR.RA/228/2007 22 JUDGMENT court has committed any serious error in allowing the application Exh.292 and thereby permitting the defence to put forward the CD containing interview of the victim on a local TV Channel and watch the same on the CD player. There cannot be any dispute as regards the fact that CD containing the interview of the victim on a local TV channel will follow within the ambit of “Document” as defined in Sec.3 of the Evidence Act. So far as the CD is concerned this being an electronic record, provisions of Sec.65-A and 65-B of the Evidence Act will be applicable. Sec.65-A provides special provisions as to evidence relating to electronic media and Sec.65-B provides admissibility of electronic records which reads as under: Sec.65B “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 CR.RA/228/2007 23 JUDGMENT 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.” 7.2 CD itself is primary and direct evidence admissible as to what has been said and picked-up by the recorder. A previous statement made by a witness and recorded on tape, can be used not only to corroborate the evidence given by the witness in the Court but also to contradict the evidence given before the Court as well as to test the veracity of the witness and also to impeach his impartiality. Thus, apart from being used for corroboration, the evidence is admissible in respect to other three matters i.e. Under Sec.146(1) of the Evidence Act which provides questions lawful in cross-examination. The said section provides that when a witness is cross-examined, he may, in addition to the questions CR.RA/228/2007 24 JUDGMENT hereinbefore referred to, be asked any questions which tend to test his veracity. Sec.153 provides exclusion of evidence to contradict answers to questions testing veracity. In that behalf Sec.153 is relevant and Exception 2 of said section is also relevant which provides that if a witness is asked any question tending to impeach his impartiality and answers it by denying the facts suggested, he may be contradicted. For ready purpose, Sec.153 and Exception 2 of Sec.153 which reads as under: “S.153 When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him; but, if he answers falsely, he may afterwards be charged with giving false evidence. Exception 1 – If a witness is asked whether he has been previously convicted of