Full Judgment
R.R. Yadav, J.
1. This Criminal Revision Petition is directed against the order of the learned Additional Sessions Judge, Nohar Dist. Sri Ganganagar dated 10.12.1983 passed in Cr. case No. 32 of 1983 State v. Inderchand and Anr.
2. In the instant case, a preliminary objection was raised by the learned Public Prosecutor Mr. H.R. Panwar appearing on behalf of the State, to the effect that the impugned order is Interlocutory order, therefore, no Criminal Revision is maintainable. There is a substance in the argument of Mr. H.R. Panwar, learned Public Prosecutor.
3. During course of argument, Mr. Suresh Kumbhat, learned Counsel for the petitioner has moved an application praying therein that the instant revision petition may be converted into a proceedings Under Section 482, Cr.P.C. He further prayed that in case, the present revision petition is not converted into a proceedings Under Section 482, Cr.P.C., a grave in justice will be caused to the accused-petitioner, which will amount to abuse of process of the court. I am satisfied with the argument of Mr. Kumbhat, learned Counsel for the petitioner and allow his application converting the present Criminal Revision into a proceedings Under Section 482, Cr.P.C.
4. In my humble opinion, refusing to convert the present criminal revision Under Section 482, Cr.P.C. can result in a meritorious matter being thrown out at the very threshold defeating the cause of justice. It is held that where substantial justice is pitted against technical consideration, it is substantial justice which deserves to be preferred. It is well to remember that judiciary is respected not on account of its power to legalize injustice on technical consideration but because it is capable of removing injustice.
5. The facts necessary to be noticed for disposal of the present proceedings, are that a first information report was lodged against the petitioner on 17.7.82 alleging that accused- petitioner Inder Chand has burnt his wife Smt. Rajo on 24.6.82. It is also alleged that PW 5 Chhaganlal arrived at the scene or occurrence and he had seen the occurrence.
6. It is borned out from the record that in order to prove the aforesaid occurrence, the prosecution produced PW 5 Chhagan Lal on 10.12.83 and on that day, learned Counsel for the accused- petitioner moved an application praying therein that he may be allowed to place and to play before the court tape recorded conversation between PW 5 Chhagan Lal and Babu Lal, which is relevant in the present case. In the said application, it is further prayed that tape recorded conversation may be marked and be exhibited.
7. It is urged before me by the learned Counsel for the petitioner that the learned Additional Sessions Nohar has rejected the aforesaid application by his order dated 10.12.83, which is per se illegal, and if the impugned order is allowed to exist, a serious prejudice will be caused to the petitioner. According to the learned Counsel for the petitioner, tape- recorded evidence itself is a primary and direct evidence, which is admissible Under Section 7, 8 and 155(3) read with Section 146 of the Indian Evidence Act. According to learned Counsel for the petitioner, the statement made by PW 5 Chhaganlal recorded in the tape recorder produced before the Court, ought to have been treated as previous statement of the witness, which can be used not only to corroborate the evidence given by the witness in court but also to contracict his deposition.
8. Learned Counsel for the petitioner submitted that if tape-recorded statement of PW 5 Chhaganlal is brought on record, the petitioner can demonstrate before the court that PW 5 Chhaganlal is not impartial and a truthful witness. According to him, the tape recorded statement can be used by the court to test the veracity of the witness and also to impeach his credibility. From the order impugned, it is apparent that PW 5 Chhaganlal refused to hear his tape-recorded conversation with Babulal before the Court, merely on the basis that he has not made such statement within his knowledge, therefore, he was not prepared to listen tape-recorded conversation between him and Babulal. Instead of asking Chhaganlal to reply 'Yes' or 'No' and to verify such conversation between Babulal and Chhaganlal, learned Additional Sessions Judge has disallowed the question put by the defence counsel. It is brought to my notice that even PW 5 Chhaganlal has admitted about his conversation with Babulal, but yet he refused to hear his tape-recorded statement. It seems to me that learned Additional Sessions Judge considered himself to be helpless in such situation and disallowed the aforesaid question.
9. In support of the aforesaid argument, learned Counsel for thepetitioner has placed reliance before me on the following decisions:--(1) R.M. Malkani v. State of Maharashtra : 1973 CriLJ228 , (2) Pratap Singh v. State of Punjab : (1966)ILLJ458SC , (3) N. Sri Rama Reddy v. V.V. Giri : [1971]1SCR399 and (4) Dial Singh Narain Singh v. Rajpal Jagannath and Ors. .
10. I have heard Mr. Suresh Kumbhat, learned Counsel fr he petitioner and Mr. H.R. Panwar, learned Public Prosecutor for the State at length and carefully gone through the record of the court-below.
11. In my humble opinion, a contemporeneous tape record of a relevant conversation is a relevant fact and is admissible Under Section 7 of the Evidence Act. The manner and mode of its proof and the use thereof in a trial is a matter of detail and it can be used for the purpose of confronting a witness with his earlier tape recorded statements. It may also be legitimately used for the purpose of shaking the credit of a witness. In the present case, when PW 5 Chhaganlal refused to hear his previous tape recorded statement, learned Additional Sessions Judge ought to have allowed the defence counsel to put question and in case, he admits after hearing the tape-recorded conversation then he ought to have allowed the defence counsel to confront PW 5 Chhaganlal with his earlier tape recorded conversation. In case, he refused to hear the tape-recorded conversation then learned Additional Sessions Judge ought to have taken the step for identification of the tape voice of PW 5 Chhaganlal, inasmuch as, when the voice is denied by the alleged maker i.e. PW 5 Chhaganlal, a comparison of his voice becomes inevitable and proper identification of his voice must be proved by a competent expert witness.
12. Therefore, in my humble opinion, the learned Additional Sessions Judge, after refusal of PW 5 Chhagan Lal to hear his tape recorded conversation still the trial court ought to have allowed the counsel for the defence to play his tape recorded conversation with Babulal in order to tax his memory to recollect and to identify his voice. If after hearing the tape recorded statement from playing tape record, the witness Chhaganlal continue to deny his statement and he refused to identify his voice, then in such a situation, the learned Addl. Sessions Judge ought to have taken step for recording the voice of the witness for the purpose of comparison and identification of his earlier recorded voice by a competent witness. Mere statement of PW 5 Chhaganlal before the Court that within his knowledge, his conversation was not tape-recorded, is not sufficient, inasmuch as, if the witness is aware of the fact that his statement is being recorded by mechanical process then he would not have given such a statement. My aforesaid judgment is buttressed by the decisions given by the Apex Court in R.M. Malkarti's case (supra), Pratap Singh's case (supra) and N. Sri Rama Ready's case (supra).
13. In my humble opinion, the tape recorded conversation produced before the learned Additional Sessions Judge is by a mechanical process, which in themselves ensure the accuracy of the statement of PW 5 Chhaganlal, which cannot be permitted to be hood-winked due obstinate attitude of PW 5 Chhagan Lal.
14. In view of the aforesaid discussion, the impugned order passed by the learned Addl. Sessions Judge, Nohar dated 10.12.1983 is hereby set aside and application under Section 482, Cr.P.C. is allowed. Learned Additional Sessions Judge, Nohar is directed to re-summon PW 5 Chhaganlal along with his recorded conversation with Babulal. The aforesaid tape-recorded voice be played before PW 5 Chhaganlal in order to tax his memory to recollect his conversation with Babulal and to facilitate to give an opportunity to identify his voice and after hearing the tape- recorded conversation, if P.W. 5 Chhaganlal is capable to recollect his conversation and is able to identify, learned counsel for the accused-petitioner be afforded an opportunity to cross-examine PW 5 Chhaganlal. In case, PW 5 Chhagan Lal refused to hear his tape-recorded conversation, learned Additional Sessions Judge is directed to record the voice of PW 5 Chhaganlal in another tape-recorder, which will be made available by the accused for the purpose of comparison and identification' of the earlier recorded voice in order to prevent the abuse of process of the court. Learned Additional Sessions Judge is further directed to take on record the tape-recorded conversation and its transcript and the original cassette which is filled with the voice of PW 5 Chhaganlal and the same be exhibited.
15. After dictation of the judgment, learned Members of the Bar present in court requested to make this judgment 'Reportable'. The request is hereby allowed. The judgment is made 'Reportable'.