Smt. Rukumani Devi vs State Of U.P. & Others
2012 Latest Caselaw 2086 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                        A.F.R. 
 
                                                                              Court No. - 52
 
CRIMINAL REVISION No. - 2265 of 2010
 

 
Smt. Rukumani Devi........................................Revisionist.
 
                                      Versus
 
The State of U.P. & others.........................Opposite parties.
 
 
 
Hon'ble Surendra Kumar,J.

Heard Sri Dharmendra Singhal, learned counsel for the revisionist, Sri Imran Ullah, learned counsel for the opposite party nos.2 and 3 and learned AGA for the State.

This criminal revision has been filed by the prosecutrix Smt. Rukumani Devi against the order dated 15.5.2010 passed by the Additional Sessions Judge, Court No.5, Aligarh, in Session Trial No.965 of 2007 State Vs. Ram Wakil and others under Sections 376, 506 IPC, Police Station Atrauli, District Aligarh whereby the application 143-Kha moved by the revisionist for discharging her to give the sample of her voice to the voice expert has been dismissed.

The relevant facts for deciding this revision are that the case of rape is going on against the opposite party nos.2 and 3 in the trial court. In the said Session Trial, evidence of the prosecutrix Smt. Rukumani Devi as PW-1 was recorded and she has been cross examined at length by the defence side. When the prosecutrix was being cross examined, the accused persons moved an application in the trial court and played the impugned C.D. in the trial court with the permission of the court and asked the prosecutrix as to whether the said C.D. had her voice or not. The prosecutrix was cross examined regarding her voice allegedly recorded in the impugned C.D. and she denied the same. It means that she clearly told in cross examination that voice recorded in the said C.D. was not her voice. The trial court at that stage allowed the application of the accused persons vide order dated 24.4.2009 and fixed the date for recording voice of the prosecutrix.

The order dated 24.4.2009 was challenged before this Court in Criminal Revision No.1778 of 2009 Smt. Rukumani Devi Vs. State of U.P. and others. This Court while deciding the aforesaid revision vide order dated 5.5.2009 observed:-

"It is altogether a different matter as to whether the lady was being compelled to record her voice or not in the present case, but it is sure that the stage at which the order for recording her voice was given was not the proper stage of trial. The prosecution evidence was going on, the prosecutrix had denied her voice in the C.D. and, therefore, the appropriate stage for controverting her was the stage of defence. Accordingly, the order for recording the voice of the witness during the continuance of the prosecution evidence cannot be said to be proper.

Accordingly, revision is allowed. Order dated 24.4.2009 is set aside. However, the accused may move for recording the voice of the prosecutrix when he enters into the defence."

Thereafter, the prosecution adduced complete evidence. After recording statements of the accused persons under Section 313 Cr.P.C., the case was fixed for defence evidence. It is at the stage of the defence evidence, the prayer to direct the prosecutrix for recording her voice for comparison of the same with voice recorded in the alleged C.D. was made by the accused. It was at the same stage, the prosecutrix moved an application dated 22.4.2010 vide Paper No.143-Kha stating therein that Session Trial is fixed for defence evidence and she has been summoned as witness on the request of the defence side whereas her evidence being prosecutrix has already been recorded as PW-1 and she has been subjected to lengthy cross examination by the defence side. She has been cross examined regarding the impugned C.D. and she has already denied her voice in the alleged C.D. The defence wants to cross examine her again relating to her voice in the said C.D. By moving the application Paper No.143-Kha, she has prayed that she may be discharged as defence witness. It is a case in which the prosecutrix has been examined in chief and cross examined and after closure of the prosecution evidence when the case entered at the defence stage, an application was moved by the defence side to summon her as defence witness to cross examine her regarding the voice in the alleged C.D. At the same time, the accused persons moved another application in the shape of objections with the prayer that they have liberty to raise the same point for recording voice of the prosecutrix at the defence stage in the light of the order of this Court dated 5.5.2009 passed in the aforesaid criminal revision. They have stated in the objection/application that if the prosecutrix does not appear for giving or recording her voice in the court before voice expert, the impugned C.D. be accepted as defence evidence.

The only question involved in this case is as to whether the prosecutrix can be summoned as defence witness at the stage of the defence evidence and can be compelled to appear in the trial court to enable the voice expert to record her voice and to compare the same with the voice recorded in the impugned C.D. If the prosecutrix does not appear for enabling the voice expert to record her voice, can the impugned C.D. be accepted as defence evidence without any proof regarding guarantee and genuineness of the voice recorded in the said C.D. and without examining the persons who prepared the impugned C.D. after recording her voice and also without giving evidence that the contents of voice of the impugned C.D. are genuine and the said voice has not been tampered with or altered at any stage. If the prosecutrix does not give her sample of voice, can adverse interference be drawn against her.

On these points, rival contentions have been made by the learned counsel for the parties including learned AGA.

It is undisputed that the impugned C.D. has been filed in the trial court by the accused persons and the said C.D. has not been proved by the defence side by way of examining or producing the person who has prepared the said C.D. after recording the contents of C.D. and there was no witness regarding the fact that there was no tampering with the contents of voice of the impugned C.D. at any stage. The impugned order makes it clear that efforts are being made just to compel the prosecutrix, who is revisionist herein, to appear in the trial court to enable the voice expert for recording her voice particularly when she has already denied her voice in the alleged C.D. and she has been cross examined at length regarding the impugned C.D.

Learned counsel for the revisionist has laid emphasis on Section 165 of the Indian Evidence Act 1872 which reads as follows:

"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 hereinabove expected."

Proviso to Section 165 of the Indian Evidence Act 1872 clearly provides 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.

In the case in hand, the prosecutrix has already refused her voice allegedly recorded in the impugned C.D. and continued to say so even during her extensive cross examination. So far as the order dated 5.5.2009 passed by this Court in the aforesaid revision is concerned, it has not allowed the request of the accused persons who were opposite parties but simply gave liberty to the accused persons to move for recording of voice of the prosecutrix when they entered into defence evidence. Thus, the accused persons were simply given liberty to move the said application at the stage of the defence evidence. But in view of the above observation, the revisionist/prosecutrix cannot be summoned as defence witness and cannot be further cross examined regarding her voice in the impugned C.D. The new procedure cannot be allowed to be adopted by any court in the cases of rape which is illegal, such procedure against the provisions of Cr.P.C. and the Indian Evidence Act, should always be discouraged by the higher Courts.

The simple prayer by way of filing the objection by the defence side is that in case of non-recording of voice of the prosecutrix, the impugned C.D. be accepted as defence evidence, the same cannot be allowed to be done by the trial court. There are certain rules which are required for proving any document prepared by Electronic Media and certain rules are provided there for the accused persons who will have to prove the impugned C.D. as observed and then only the trial court at the stage of the judgment may draw its own conclusion as the facts and circumstances of the case warrant.

According to the learned counsel for the parties, the impugned C.D. contains the conversation allegedly held between the prosecutrix and the accused which has been prepared from some mobile set.

So far as contention of the learned counsel for the revisionist regarding adverse inference against the prosecutrix in case of failure of recording of her voice due to her unwillingness is concerned, it is again open for consideration of the trial court after hearing the arguments at the stage of the judgment. The prosecution evidence has already been closed and the case is at the stage of defence evidence, the impugned order is illegal and not sustainable in law as the same is beyond the provisions of the Code of Criminal Procedure, 1973 and also the Indian Evidence Act, 1872. The impugned order dated 15.5.2010 passed by the Additional Sessions Judge, Court No.5, Aligarh, is set aside. The instant revision is allowed.

The trial court is directed to decide this case within a period of three months from the date of receipt of the certified copy of this order before it, after recording defence evidence and hearing the submissions of both the sides since Session Trial relates to the year 2007.

It is further made clear that if the accused persons would not cooperate with the trial, steps as provided under Cr.P.C. be taken without any hitch but the judgment be pronounced within the stipulated period of three months. Hon'ble Apex Court has repeatedly reminded by issuing directions to the trial courts to be sensitized and sensitive while deciding the rape cases, therefore, the directions should be complied with in letter and spirit by all the Courts of the country.

Let a copy of this order be sent to the court concerned forthwith for compliance.

Let a copy of this order be also given to the learned AGA for sending the same to the court concerned to enable the learned trial court to proceed with the matter without any further delay.

Dt. 23.5.2012.

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