Manoj And 2 Others vs State Of U.P. And Another
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Allahabad High Court

Manoj And 2 Others vs State Of U.P. And Another on 24 May, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:95008
 
Court No. - 92
 

 
Case :- APPLICATION U/S 482 No. - 12882 of 2019
 

 
Applicant :- Manoj And 2 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Kuldeep Saxena,Dr. Rajesh Kumar Srivastav,Vijit Saxena
 
Counsel for Opposite Party :- G.A.,Rajesh Mishra
 

 
Hon'ble Arun Kumar Singh Deshwal,J.
 

1. Heard Dr. Rajesh Kumar Srivastava, learned counsel for the applicants, Sri Rajesh Mishra, learned counsel for opposite party no. 2 and Sri Rajeev Kumar, learned A.G.A. for the State.

2. The instant application under Section 482 Cr.P.C. has been filed by the applicants with a prayer to permit them to use the material filed by them with the application under Section 294 Cr.P.C. in S.T. No. 131 of 2018 arising out of Case Crime No. 803 of 2017 under Sections 304-B/498A I.P.C. and Section 3/4 Dowry Prohibition Act, 1961, Police Station Loni pending in the Court of Additional Sessions Judge, Court No. 3, Ghaziabad for confrontation of the prosecution witnesses.

3. Facts giving rise to the present case is that an F.I.R. was lodged against the applicants under Sections 304-B/498-A I.P.C. and 3/4 D.P. Act by opposite party no. 2 on 17.08.2017. Thereafter, the police after investigation submitted charge-sheet on 18.11.2017 and on taking cognizance of the same, the trial court registered the case as S.T. No. 131 of 2018.

4. Learned counsel for the applicants submits that during trial at the time of defence, the applicants moved an application under Section 294 Cr.P.C. to bring on record certain documents including the mobile of accused Manoj, C.C.T.V. footage, which shows conversation between Manoj and A.S.I. Banshi Ram, between accused applicants and mother of the deceased as well as other co-accused persons but the same was illegally rejected by the court below on the ground that the applicants also prayed to confront the witnesses with these documents without including these documents in the list of documents of defence. In support of his contention, learned counsel for the applicants has relied upon the judgment of Hon'ble Apex Court in the case of Shamsher Singh Verma vs. State of Haryana in Criminal Appeal No. 1525 of 2015 as well as the judgment of Supreme Court in the case of R.M. Malkani vs. State of Maharashtra; 1973 (1) SCC 471. In both the judgments, the Supreme Court observed that electronic evidence can be part of evidence that is required for proper adjudication of the case.

5. Per contra, learned counsel appearing for opposite party no. 2 submitted that at the time of evidence, the accused persons, instead of examining the defence witnesses tried to confront the witnesses with electronic documents, which were not part of defence list, therefore, the application was rightly rejected by the trial court.

6. Learned A.G.A. has also adopted the arguments of learned counsel for opposite party no. 2.

7. However, from a perusal of application and the impugned order, it is clear that though in the application filed by the applicants under Section 294 Cr.P.C., the applicants prayed for taking electronic documents on record as defence evidence with subsequent prayer that certain C.C.T.V. footage may also be seized and accused-applicants may be permitted to confront the witnesses with these documents. This Court is of the view that so far as confronting the witnesses and seizing the C.C.T.V. footage cannot be prayed under Section 294 Cr.P.C., but the prayer for including the electronic evidence in the list of documents of defence, if same are necessary, can be made under Section 294 Cr.p.C. However, the Court below while passing the impugned order rejected the entire application only on the ground that without including the electronic evidence in the defence list or same was also not part of investigation of the police, cannot be allowed to confront the witnesses, is erroneous. Therefore, the Court should have considered the prayer of including the electronic evidence on defence list, if same is in the interest of justice but cannot arbitrarily reject the same.

7-A. Apex Court in the case of Shamsher Singh Verma vs. State of Haryana; (2016) 15 SCC 485 observed that object of Section 294 Cr.P.C. is to accelerate pace of trial by avoiding the time taken by the parties in recording the unnecessary evidence and further observed that compact disc is also document under the Evidence Act. Paragraph-s 11, 12 & 14 of Shamsher Singh Verma's case (supra) are quoted hereinbelow:-

"11. The object of Section 294 Cr.P.C. is to accelerate pace of trial by avoiding the time being wasted by the parties in recording the unnecessary evidence. Where genuineness of any document is admitted, or its formal proof is dispensed with, the same may be read in evidence. Word "document" is defined in Section 3 of the Evidence Act, 1872, as under:

"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."

14. In view of the definition of "document" in the Evidence Act, and the law laid down by this Court, as discussed above, we hold that the compact disc is also a document. It is not necessary for the court to obtain admission or denial on a document under sub-section (1) of Section 294 CrPC personally from the accused or complainant or the witness. The endorsement of admission or denial made by the counsel for defence, on the document filed by the prosecution or on the application/report with which same is filed, is sufficient compliance of Section 294 CrPC. Similarly, on a document filed by the defence, endorsement of admission or denial by the Public Prosecutor is sufficient and defence will have to prove the document if not admitted by the prosecution. In case it is admitted, it need not be formally proved, and can be read in evidence. In a complaint case such an endorsement can be made by the counsel for the complainant in respect of document filed by the defence.

16. We are not inclined to go into the truthfulness of the conversation sought to be proved by the defence but, in the facts and circumstances of the case, as discussed above, we are of the view that the courts below have erred in law in not allowing the application of the defence to get played the compact disc relating to conversation between father of the victim and son and wife of the appellant regarding alleged property dispute. In our opinion, the courts below have erred in law in rejecting the application to play the compact disc in question to enable the Public Prosecutor to admit or deny, and to get it sent to the forensic science laboratory, by the defence. The appellant is in jail and there appears to be no intention on his part to unnecessarily linger the trial, particularly when the prosecution witnesses have been examined."

8. In view of the above fact, the impugned order dated 15.02.2019 passed by Court of Session in S.T. No. 131 of 2018 is set aside and the court below is directed to pass fresh order within a period of 15 days from the date of receiving this order to the extent of permitting the electronic evidence in the list of defence, which has been mentioned in prayer nos. 1 and 2 of the application filed by the applicants under Section 294 Cr.P.C.

9. With the aforesaid observations, the present 482 Cr.P.C. application is partly allowed.

Order Date :- 24.5.2024

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