Even illegally obtained document is admissible in evidence if it is relevant and genuine one

The complaint was initially made in respect of acquiring huge immovable properties by respondent No. 2 in his name and in the name of his wife, and the Central Government had asked the State Government to conduct an inquiry into the said allegations. The complaint may be forged or fabricated, but it is nobody’s case that the copies of sale deeds annexed alongwith the said complaint were not genuine. While issuing direction to hold inquiry/investigation as to who had fabricated the said complaint and forged the signatures of Shri M.A. Khan, M.P., the allegations of acquiring properties by the respondent No.2 have been abandoned and unattended altogether.

    Even though the complaint was bogus, however, the sale deeds annexed alongwith the same though illegally collected by someone, have not been found to be fabricated documents.[Para No.26]

    It is a settled legal proposition that even if a document is procured by improper or illegal means, there is no bar to its admissibility if it is relevant

and its genuineness is proved. If the evidence is admissible, it does not matter how it has been obtained. However, as a matter of caution, the court in exercise of its discretion may disallow certain evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. More so, the court must conclude that it is genuine and free from tampering or mutilation. This court repelled the contention that obtaining evidence illegally by using tape recordings or photographs offend Articles 20(3) and 21 of the Constitution of India as acquiring the evidence by such methods was not the procedure established by law. (Vide: Yusufalli Esmail Nagree v. The State of Maharashtra, AIR 1968 SC 147; Magraj Patodia v. R.K. Birla & Ors., 1970 (2) SCC 888; R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157; Pooran Mal v. Director of Inspection, Income-Tax, New Delhi & Ors., AIR 1974 SC 348; and State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600).[Para No.27]

Provisions of RTI Act are not meant to allow the parties to collect evidence from Public Authorities to sub­serve their private interest

As we have said above only the larger public interest duly established with relevant material which can override this confidentiality of the information and documents available with the Income Tax Department, but we fail to see even an iota of the public interest in this case. The tall claims made in the application about the alleged effort of the private Respondents to evade income tax under the garb of the claim of a status of their being agriculturists, particularly by a person who is admittedly in litigation over the same land in question with these Respondents, which is said to have been sold by them to the Petitioner as well as private Respondents. Therefore, the only interest of the Petitioner who has been fighting against these private Respondents at all possible forums including the RTI Act and criminal complaints appears to be the only private interest and the name of a public interest is just a ruse or excuse given to the public authorities calling upon them to disclose such 'information' to the Petitioner - Applicant. The provisions of the RTI Act

are not meant to allow the parties to collect evidence from such Departments or Public Authorities to sub­serve their private interest.[Para No.14]

Absence of proof of motive creates a doubt regarding the mens rea entitling the accused for an acquittal

Mens rea of the accused has much relevance in a case when the benefit under Section 84 IPC has been pleaded by an accused. So when the prosecution in this case failed to prove any motive behind the incident it would also raise a reasonable doubt of mens rea in doing the act. So as per the proposition of law laid down above, it would be a fact which creates a reasonable doubt entitling the accused to get the benefit of the exception.

In other words absence of proof of motive from the side of the prosecution creates a doubt in the mind of the court regarding the mens rea entitling the accused for an acquittal.[Para No.44]

    Though the contention of the learned counsel for the accused that medical evidence adduced from the side of the prosecution would not prove the unsoundness of mind at the time of the commission of the offence even if accepted the attending circumstances brought out during the oral evidence of the witnesses coupled with the medical evidence would create a reasonable suspicion about the soundness of the mind of the accused at the time of commission of the act. That also would enable the accused for benefit of doubt entitling for an acquittal on the ground that the general burden of proof resting on the prosecution is not discharged.[Para No.45]

...............

There is no limitation of period for invoking High Court's inherent powers u/s.482 Cr.P.C.

If evidence is relevant, it is admissible irrespective of how it is obtained

The Investigating Agency has no power to appreciate the evidence

    Regarding limitation, although delay is duly explained in the petition, however, there is no applicability of Limitation Act on Section 482 Cr.P.C. being the inherent powers of this Court. The said section is starting itself with a non-obstante clause (Notwithstanding) therefore, this Court has power to exercise inherent powers where there is miscarriage of justice and abuse of process of law. Non-applicability of Limitation Act and non- providing of limitation period in Cr.P.C. with regard to Section 482 Cr.P.C., the intention of the legislature was not to restrict this Court to use these powers in appropriate cases. Thus, raising the issue of limitation period about Section 482 Cr.P.C. is itself contrary to the intention of legislature and the very section itself. In this regard, judgments relied upon by the respondent no.2 (complainant) are not applicable, as facts and circumstances of those cases are different from the case in hand.[Para No.49

    As far as the issue of source of document is concerned, the Hon'ble Supreme Court and various High Courts including the case of Pushpadevi M. Jatia vs. M.L. Wadhavan & Ors.: (1987) 3 SCC 367 relied upon by respondent no.2 (complainant) held that the source of the evidence is not material, as long as it is admissible under the law, the same may be considered. If evidence is relevant, it is admissible irrespective of how it is obtained.[Para No.50]

.......

Oral evidence can be given about any fact which would invalidate or contradict the proved or registered document

In respect of registered document (Exh.35), learned Counsel for the appellant has submitted that it is a registered document and therefore, contents therein cannot be contradicted. Sections 91 and 92 of the Indian Evidence Act are material sections in respect of oral evidence of the documents reduced into writing. If the document is proved as per Section 91, then oral evidence as per Section 92 is not permitted to contradict the document but proviso (1) of Section 92 permits to contradict the document. It reads as under :

 92.Exclusion of evidence of oral agreement.-When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms: 

     Proviso  (1). - Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, [want or failure] of consideration, or mistake in fact or law.[Para No.16]

    As per Section 92 Proviso (1), evidence can be adduced to contradict the document. Learned Counsel for the respondents has pointed out the decision in the case of Vithal Saidu Lokhande (cited supra). This Court has held that oral evidence as per the provisions of Section 92 Proviso (1) is applicable and the defendants can adduce the oral evidence to contradict the document. This Court in the case of Vithal Saidu Lokhande (cited supra) has held that "Plea to invalidate any document proved in accordance with section 91 is available where a case is made out of fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. It is further held that "proviso (1) of Section 92 permits leading of parol evidence of any fact which would invalidate any document, at the instance of any party to such document of their representatives in interest. Proviso (4) does not deal with the question of invalidating any document but it relates to the existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property. It makes the parol evidence admissible to show that the prior written contract has been waived or replaced by subsequent oral agreement with a rider that, if a matter has been reduced into writing because the law requires it to be in writing for its validity, no oral evidence can be given of any subsequent agreement, rescinding or modifying it. It can only be waived, rescinded, modified or altered by another written agreement of equally solemn character. The rule applies to all registered instruments, whether or not, registration is compulsory under the law. "[Para No.17]

Investigating Officer cannot withheld relevant evidence that would favour the accused and in such cases adverse inference can be drawn against prosecution

If it appears impossible to convict accused inspite of witnesses are presumed to be true without any cross examination, the accused deserves to be discharge

    The Hon'ble Supreme Court in the case of Manjeet Singh Khera Vs. State of Maharashtra: 2013 (9) SCC 276 held as under:

"........8. The Court also noticed that seizure of large number of documents in the course of investigation of a criminal case is a common feature. After completion of the process of investigation and before submission of the report to the Court under Section 173 Cr.P.C, a fair amount of application of mind on the part of the investigating agency is inbuilt in the process. These documents would fall in two categories: one, which supports the prosecution case and other which supports the accused. At this stage, duty is cast on the investigating officer to evaluate the two sets of documents and materials collected and, if required, to exonerate the accused at that stage itself. However, many times it so happens that the investigating officer ignores the part of seized documents which favour the accused and forwards to the Court only those documents which supports the prosecution. If such a situation is pointed out by the accused and those documents which were supporting the accused and have not been forwarded and are not on the record of the Court, whether the prosecution would have to supply those documents when the accused person demands them? The Court did not answer this question specifically stating that the said question did not arise in the said case. In that case, the documents were forwarded to the Court under Section 173(5) Cr.P.C. but were not relied upon by the prosecution and the accused wanted copies/inspection of those documents. This Court held that it was incumbent upon the trial court to supply the copies of these documents to the accused as that entitlement was a facet of just, fair and transparent investigation/trial and constituted an inalienable attribute of the process of a fair trial which Article 21 of the Constitution guarantees to every accused. We would like to reproduce the following portion of the said judgment discussing this aspect:

"21.The issue that has emerged before us is, therefore, somewhat larger than what has been projected by the State and what has been dealt with by the High Court. The question arising would no longer be one of compliance or non- compliance with the provisions of Section 207 Cr.P.C. and would travel beyond the confines of the strict language of the provisions of Cr.P.C. and touch upon the larger doctrine of a free and fair trial that has been painstakingly built up by the courts on a purposive interpretation of Article 21 of the Constitution. It is not the stage of making of the request; the efflux of time that has occurred or the prior conduct of the accused that is material. What is of significance is if in a given situation the accused comes to the court contending that some papers forwarded to the court by the investigating agency have not been exhibited by the prosecution as the same favours the accused the court must concede a right to the accused to have an access to the said documents, if so claimed. This, according to us, is the core issue in the case which must be answered affirmatively. In this regard, we would like to be specific in saying that we find it difficult to agree with the view taken by the High Court that the accused must be made to await the conclusion of the trial to test the plea of prejudice that he may have raised. Such a plea must be answered at the earliest and certainly before the conclusion of the trial, even though it may be raised by the accused belatedly. This is how the scales of justice in our criminal jurisprudence have to be balanced."[Para No.63]

Mere proof of handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document

Incidentally it was urged by Mr. Majumdar that even if the court proceeds on the assumption that the letter and the cable were received, it is not open to this Court to look into the contents of the letter and the cable because the contents are not proved as the Managing Director of the appellant company who is supposed to have signed the letter and the cable has neither entered the witness box nor filed his affidavit proving the contents thereof. Reliance was placed on Judah v. Isolyne Bose. In that case a letter and two telegrams were tendered in evidence and it was observed that the contents of the letter and the telegram were not the evidence of the facts stated therein. The question in that case was whether the testatrix was so seriously ill as would result in impairment of her testamentary capacity. To substantiate the degree of illness, a letter and two telegrams written by a nurse were tendered in evidence. The question was whether in the absence of any independent evidence about the testamentary capacity of the testatrix the contents of the letter could be utilised to prove want of testamentary capacity.

Obviously, in these circumstances the Privy Council observed that the fact that a letter and two telegrams were sent by itself would not prove the truth of the contents of the letter and, therefore, the contents of the letter bearing on the question of lack of testamentary capacity would not be substantive evidence. Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouch safe for the truth of the facts in issue. But in this case Bhikhubhai Gourishankar Joshi who filed an affidavit on behalf of the appellant has referred to the averments in the letter and the cable. He is a principal officer and constituted attorney of the appellant company. Once the receipt of the letter and the cable are admitted or proved coupled with the fact that even after the dispute arose and before the suit was filed, in the correspondence that ensued between the parties, the respondent did not make any overt or covert reference to the arbitration agreement and utter failure of the respondent to reply to the letter and the cable controverting the averments made therein would unmistakably establish the truth of the averments made in the letter. What is the effect of averments is a different question altogether but the averments contained in the letter and the cable are satisfactorily proved.[Para No.16]

Testimony of police official as a witnesses cannot be rejected on the ground of non­ corroboration by independent witness

Having gone through the entire evidence on record and the findings recorded by the courts below, we are of the opinion that in the present case the prosecution has been successful in proving the case against the accused by examining the witnesses PW3, PW4, PW5, PW7 and PW8. It is true that all the aforesaid witnesses are police officials and two independent witnesses who were panchnama witnesses had turned hostile. However, all the aforesaid police witnesses are found to be reliable and trustworthy. All of them have been thoroughly cross­examined by the defence. There is no allegation of any enmity between the police witnesses and the accused. No such defence has been taken in the statement under Section 313, Cr.P.C. There is no law that the evidence of police officials, unless supported by independent evidence, is to be discarded and/or unworthy of acceptance.

    It is settled law that the testimony of the official witnesses cannot be rejected on the ground of non­corroboration by independent witness. As observed and held by this Court in catena of decisions, examination of independent witnesses is not an indispensable requirement and such non­examination is not necessarily fatal to the prosecution case, [see Pardeep Kumar (supra)].

    In the recent decision in the case of Surinder Kumar v. State of Punjab, (2020) 2 SCC 563, while considering somewhat similar submission of non­examination of independent witnesses, while dealing with the offence under the NDPS Act, in paragraphs 15 and 16, this Court observed and held as under:

“15. The judgment in Jarnail Singh v. State of Punjab (2011) 3 SCC 521, relied on by the counsel for the respondent State also supports the case of the prosecution. In the aforesaid judgment, this Court has held that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that the accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status. 

16. In State (NCT of Delhi) v. Sunil, (2011) 1 SCC 652, it was held as under: (SCC p. 655) “It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy.
  As a proposition of law, the presumption should be the other way round. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature.”

Evidence of child witness without oath can be relied upon if child witness is able to understand the questions and able to give rational answers thereof

Master Krishna Akhade (PW-4), son of deceased Sangita and the appellant -accused, was 4 year old tender aged child. It is abundantly clear from the evidence of Mr Mangesh Sonawane (PW-2) and Mr Mahesh Pagare (PW-3) that, Krishna Akhade (PW-4) was present in the house when the incident took place. As already referred to in foregoing paragraphs, master Krishna Akhade (PW-4) had not seen entire incident. Material portion of his testimony is as under:

"I am taking education in Balwadi. My mother's name is Sangita. The name of my father is Bhatu. The name of my sister is Divya. There was quarrel on that day in between my mother and father. My father beat to my mother by means of wooden log. I had seen the said incident. There was smoke in the house. Door was opened by Sonu uncle and Golu Uncle."[Para No.22]

    Record reveals that, before recording the evidence learned Additional Sessions Judge, Dhule ascertained as to whether master Krishna Akhade is a competent witness and whether oath can be administered to him by putting certain preliminary questions. Record further reveals that, considering very tender age of master Krishna Akhade, learned Additional Sessions Judge, Dhule decided not to administer oath to him. During cross-examination master Krishna Akhade clearly stated that, he had been awakened from sleep hearing shouting, which clearly establishes that, he had seen the incident not fully, but partly. Nothing is brought on record through his cross-examination, on the basis of which, his evidence can be discarded branding it to be tutored. No doubt, cross-examination of master Krishna Akhade (PW-4) reveals that, 1½ months prior to recording of his evidence maternal uncle Mangesh Sonawane (PW-2) had taken him to his house from the house of parental grandfather and grandmother. Merely for the reason that, master Krishna Akhade (PW-4) was in the custody of Mangesh Sonawane (PW-2) prior to his entering into the witness box, inference cannot be drawn that, Mr Mangesh Sonawane (PW-2) had tutored him before coming to the court for giving evidence. It is pertinent to note that, on very next day of the incident, statement of master Krishna Akhade under Section 161 of CrPC was recorded. Testimony of master Krishna Akhade is free from any omission or contradiction. Since the statement of master Krishna Akhade (PW-4) under Section 161 of CrPC was recorded on very next day of the incident when he was in the custody of parents of the appellant, question of his tutoring at that time by his maternal uncle Mr Mangesh Sonawane (PW-2) does not arise.[Para No.23]

    In the matter of Dattu Ramrao Sakhare Vs. State of Maharashtra, 1997 (3) Mh.L.J. 452, the Hon'ble Supreme Court while dealing with the aspect of competency and credibility of child witness under Section 115 of the Indian Evidence Act, 1872, in paragraph no.5 of the Judgment, held as under :

"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored."[Para no.24]

U/s. 62 of The Indian Evidence Act, carbon copies can be taken into consideration as primary evidence

Briefly stated case of the prosecution is that the respondent was running a medical shop viz., M/s. Sri Balaji Medicals. On the directions issued by the Assistant Director of Drugs Control, Salem Zone, the Drugs Inspectors had inspected the respondent's medical shop on 17.12.2008. In the course of inspection, it was found that certain drugs were stored without a valid drug licence and the same were seized. A memo dated 22.12.2008 had been issued to the respondent-accused alleging contravention of section 18(c) of the Drugs and Cosmetics Act, 1940. The respondent had caused reply (Ex.-P4) to the said memo without furnishing details of purchase. The Drug Inspector has fled a charge sheet against the respondent informing commission of offence punishable under Sections 27(b) (ii) and 28 of the Drugs and Cosmetics Act, 1940. Upon consideration of evidence, the trial court after referring to Ex.-P4 held that the respondent has admitted that he has no licence to the premises for sale of drugs. The trial court further held that Exs.P-4 to P-7 though were carbon copies, as per section 62 of the Indian Evidence Act, they can also be considered as primary evidence. On those findings to, the trial court convicted the respondent and sentenced him to undergo rigorous imprisonment for one year and imposed fne of Rs. 5000/- under Section 27(b)(ii) of the Drugs and Cosmetics Act and fne of Rs. 500/- under section 28 of the Drugs and Cosmetics Act. Aggrieved by the verdict of conviction and the sentence of imprisonment, respondent-accused preferred an appeal in Criminal Appeal No.18 of 2013 before the appellate court-Principal Sessions Judge, Krishnagiri which was dismissed vide order dated 29.08.2013.[Para No.3]

    Per contra, the learned counsel for the respondent has submitted that the prosecution has failed to prove that the respondent is the owner of M/s Sri Balaji Medicals and the non-examination of Kamalakannan and Jayanthi was fatal to the prosecution case. Learned counsel further submitted that the alleged statement of the respondent in Exs.P-4, P-7 and P-10 relied upon by the prosecution were only carbon copies and the courts below could not have based the conviction upon Exs.P-4, P-7 and P-10 and that the High Court has rightly reversed the same.[Para No.6]

    Learned counsel for the respondent has submitted that Exs.P-4 and P-7, that is, the statements of respondent were only carbon copies and that admission of such carbon copies raises serious doubt about the prosecution case. As pointed out by the trial court as well as by the first appellate court, under section 62 of the Indian Evidence Act, carbon copies can be taken into consideration primary evidence and we find no infirmity in admitting carbon copies of those documents.[Para No.14]

In absence of the depositions or the evidence of the victim; conviction u/s. 4 & 5 of the Immoral Trafic (Prevention) Act can not be sustained

PW-4, P.I., Madan Manohar Ballal of Crime Branch, Thane, claimed that at the relevant time, he was attached to A.H.T.C. and the investigation of the present Crime No. I-475 of 2013 of Manpada Police Station was handed over to him and he has received the relevant documents viz. complaint, panchanama, Pre-raid panchanama, raid panchanama, spot panchanama, muddemal and Police statements of witnesses. He claimed that he has obtained the documents of registration of the said flat, which is the place of offence, so also R.C. book of motorcycle. He claimed that he has requested the learned Judicial Magistrate, First Class, Kalyan on 7 th December, 2013 and 13th January, 2014 so as to record the statements of victims under Section 164 of Cr.P.C. vide Exhibit 38 and 39. According to him, he has also sent a letter to Rescue Foundation to produce the victim girls vide Exhibits 40 to 45 for recording the statements of the victim girls under Section 164 of Cr.PC. However, according to him, the victims were sent to Bangladesh through Rescue Foundation, whereas victim no.6, Pinki Mandol was sent to West Bengal.[Para No.20]

    As such from the aforesaid testimony of the investigating officer, what can be gathered is the statement of the victim girls could not be recorded under Section 164 Cr.P.C. though efforts were made as the five victims were sent back to Bangladesh by the Rescue Foundation, whereas victim Pinki to West Bengal. No efforts were made by the prosecution to record the statement of victim girls under Section 164 Cr.P.C. by video conferencing or their oral evidence during the course of trial.[Para No.22]

    Similarly as observed hereinabove the conviction under the provisions of Immoral Traffic (Prevention) Act, 1956 is also not sustainable as it is not established that the accused were either the owner or licensee or as a tenant of the flat in question, which is the place of offence and they were in actual possession of the premises particularly in absence of testimony of the flat owner. Similarly, it is also not established that the vehicle i.e. two wheeler was seized from the custody of or ownership of the accused. That being so, the conviction of the appellants for an offence punishable under Section 3 of Immoral Traffic (Prevention) Act, 1956 is not sustainable. In absence of the depositions or the evidence of the victims, it is difficult to even sustain the conviction of an offences punishable under Section 4 of the Act particularly in absence of testimony of the victim girls, so also the conviction under Section 5 as there is no material to demonstrate that the victim girls were procured or by inducing or forcing them for the sake of prostitution.[Para No.30]

Sale-deed is not a public document but the entry in the register book is a public document

Let us see whether section 31(2) makes any difference to this position in law. According to the judgment in Aliens Developers (supra), the moment a registered instrument is cancelled, the effect being to remove it from a public register, the adjudicatory effect of the Court would make it a judgment in rem. Further, only a competent court is empowered to send the cancellation decree to the officer concerned, to effect such cancellation and “note on the copy of the instrument contained in his books the fact of its cancellation”. Both reasons are incorrect. An action that is started under section 31(1) cannot be said to be in personam when an unregistered instrument is cancelled and in rem when a registered instrument is cancelled. The suit that is filed for cancellation cannot be in personam only for unregistered instruments by virtue of the fact that the decree for cancellation does not involve its being sent to the registration office – a ministerial action which is subsequent to the decree being passed. In fact, in Gopal Das v. Sri Thakurji, AIR 1943 PC 83, a certified copy of a registered instrument, being a receipt dated 29.03.1881 signed by the owner, was held not to be a public record of a private document under section 74(2) of the Indian Evidence Act, 1872 for the reason that the original has to be returned to the party under section 61(2) of the Registration Act, 1908 (see p. 87). This judgment has been followed in Rekha v. Ratnashree, (2006) 1 MP LJ 103 by a Division Bench of the Madhya Pradesh High Court, in which it was held:

“8. A deed of sale is a conveyance. A deed of conveyance or other document executed by any person is not an act nor record of an act of any sovereign authority or of any official body or tribunal, or of any public officer, legislative, judicial and executive. Nor is it a public record kept in a State of any private documents. A sale-deed (or any other deed of conveyance) when presented for registration under the Registration Act, is not retained or kept in any public office of a State after registration, but is returned to the person who presented such document for registration, on completion of the process of registration. An original registered document is not therefore a public record kept by a State of a private document. Consequently, a deed of sale or other registered document will not fall under either of the two classes of documents described in section 74, as ‘public documents’. Any document which is not a public document is a private document.

    We therefore have no hesitation in holding that a registered sale-deed (or any other registered document) is not a public document but a private document.

Extra judicial confession of absconded co-accused cannot be used to record conviction

The prosecution is also relying on evidence of PW No.9 Tapan Mandal to establish that the other accused Kishor Shelar had made extra-judicial confession to him about killing of women by both accused. His evidence is also relied to establish that motorcycle brought by Kishor Shelar was produced by him. The other accused was apparently juvenile in conflict with law. The Judgment of trial Court mentions that, the other accused Kishor Shelar is Juvenile in conflict with law against whom the proceeding is going on before juvenile justice Board. The outcome of the proceedings is not known. Thus, the said accused was not before Trial Court in this proceeding. PW No.9 is silent about words 'Hari Om' being written on number plate of motorcycle. PW No.9 has stated that accused No.2 is absconding, although the investigating officer is silent in that regard. According to him he was working on Vadapav stall of father of accused No.2. The motorcycle belongs to relative of accused. The said accused went to Pune and confessed to him. The accused was arrested and PW No.9 was told to deposit motorcycle. The recovery is not at the instance of accused. It is difficult to accept that the accused would go to Pune and make confession to PW No.9. The witness have not stated as to why accused visited him and whether he stayed with him and what was the nature of relationship between them to confess about crime. In any case it is a extra-judicial confession of accused who is not tried in this proceeding. The owner of motorcycle was not examined. Appellant cannot be convicted on the basis of such extra-judicial confession.[Para No.30]

    The extra-judicial confession is weak piece of evidence. The extra judicial confession is questionable in the present case. The witness did not allude the information to anyone about the confession made by the appellant. In the case of Sahadevan V/s State of Tamilnadu, (2012), 6 SCC 403 referring to the aspect of evidentiary value of extra judicial confession it was observed :-

"14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspired confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities an does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstance, the court would be fully justified in ruling such evidence out of consideration".[Para No.31]

Call details marked with objection can not be considered in evidence if its issuing authority is not examined

Though the call details Ex.P.36 marked with objection, the admissibility of the said document cannot be questioned at the belated stage, but the authority, who issued the said document, has not been examined. Therefore, the same cannot be considered in the absence of any material produced to prove that there were conversations between P.W.8 and P.W.1 and P.W.8 and the deceased in view of the dictum of the Hon'ble Supreme Court in the case of Malay Kumar Ganguly v. Dr. Sukumar Mukherjee reported in AIR 2010 SC 1162 wherein at paragraphs 48 and 49 it has been held as under:

"48. It is true that ordinarily if a party to an action does not object to a document being taken on record and the same is marked as an exhibit, he is estopped and precluded from questioning the admissibility thereof at a later stage. It is, however, trite that a document becomes inadmissible in evidence unless the author thereof is examined; the contents thereof cannot be held to have been proved unless he is examined and subjected to cross- examination in a court of law.
49. The document which is otherwise inadmissible cannot be taken in evidence only because no objection to the admissibility thereof was taken. In a criminal case, subject of course, to the shifting of burden depending upon the statutes and/or the decisions of the superiors courts, the right of an accused is protected in terms of Article 21 of the Constitution of India. The procedure laid in that behalf, therefore, must be strictly complied with. Exts. 4, 5 and 6, in our opinion, are not admissible in evidence in the criminal trial." [Para No.87]

In matrimonial dispute, secret recording is admissible in evidence if found to be relevant

Electronic Evidence obtained illegally - Petition for divorce u/s. 13(1)(ia) of The Hindu Marriage Act - CCTV footage recorded without knowledge of wife - In recording wife was found to be talking on phone with her lady friend in a manner derogatory and defamatory to the husband - Husband produced CD of this recording as the evidence in divorce proceeding - Wife in her written statements opposed that CD to be tampered with and inadmissible as it is procured in breach of her right of privacy - After this objection husband made an application to family court to get the genuineness of CD examined from Forensic Lab - Family allowed that application and the same challenged by wife before High Court

Can CCTV audio-video secretly recorded by a spouse be permitted to be used against other spouse in a matrimonial dispute?

Held: In matrimonial dispute, secret recording is admissible in evidence if found to be relevant to the facts-in-issue; and the other party can initiate legal action action the party for adopting illegal means; but such action would not render the illegally obtained evidence inadmissible if it is otherwise relevant for the  purpose of deciding the matrimonial dispute between the parties.

   The sequitur to the aforesaid constitutional and legal landscape is that :

(a) The settled rule, purely from the standpoint of the law of evidence, is that evidence is admissible so long as it is relevant, regardless of how it is collected. Digressing from this settled position would have wide ramifications and consequences; and would be a serious hindrance to judicial proceedings across the board, in several foreseeable and unforeseeable ways. On the other hand, the possible misuse of this rule of evidence, particularly in the context of the right to privacy, can be addressed by prudent exercise of judicial discretion by a court not at the time of receiving evidence but at the time of using evidence at the stage of adjudication ;

Objection to admissibility of electronic evidence without compliance of sec.65B can be raised in appeal even if not raised in the trial

Whats is the difference between objection to admissibility of document and objection to mode of proof?

What are its consequences?

If electronic evidence is admitted and exhibited in evidence then its admissibility can be raised in appeal even if it is not objected in the trial.

Discharge of accussed: if no grave suspicion exist

• When discharge of accused can be granted ?

• What has to be considered while deciding framing of charge against accessed?

   It is a settled principle of law that at the stage of framing of charge, Magistrate can sift the evidence for limited purpose. Detailed scrutiny is not to be done. Prosecution story need not be accepted as gospel truth. If the charge is found to be groundless, then the Magistrate on consideration of the police report and the documents and making such examination as deemed appropriate, may discharge the accused, but if there is ground to presume that accused has committed an offence, the charge can be framed. The basic concept is that the Court has to see the prima facie nature of the case at the time of framing of charge. Broad probability of the case can be considered. Following principles are to be kept in mind at the time of framing of charge:-

When secondary evidence can be permitted to be adduced

In what situation secondary evidence can be permitted to be adduced? Does such permission amounts to proof of that document?

   Sec.65 and 66 of Evidence Act - Proof by leading secondary evidence - Original will deposited to revenue officers for registration - notice issued to revenue officers for production of original will - they failed - court rejected permission to allow secondary evidence observing that the pre-requisite condition of existence of Will is not proved, hence Will cannot be permitted to be proved by allowing the secondary evidence - Witness deposed “I have seen the Will dated 24.01.1989 which bears my signature as scribe and as well as witness.”

How to prove plea of Private Defence in criminal trial?

Two young men quarrelled suddenly and threw stones at each other. The stone pelted by the deceased missed; while the stone pelted by the appellant accidentally hit the head of the deceased. The deceased being the aggressor, the accused unintentionally assaulted him to defend himself. He threw a single stone. Weight, shape or size of which is not clear from the record. Neither the appellant acted in cruel manner nor had he taken any undue advantage of the situation. He simply ran away from the scene. It does not appear that the appellant had exceeded his Right of private defence. Therefore, he is entitled to acquittal as no action can be considered as offence, if it is done in exercise of right of private defence.[Para.25]

   At the time of the incident, the deceased was 18 year old and the appellant was 22 year old. There is no evidence of any previous enmity between both of them. There is also no evidence of "motive", "preparation", "premeditation" or "intention" of causing death or more harm than necessary for the purpose of defending himself. It was a sudden fight in the heat of passion upon a sudden quarrel and without taking any undue advantage or acting in any cruel or unusual manner, as a natural reflex, the appellant also picked a stone lying there and threw it towards the deceased. His action was a reflex action to save himself from the attack by the deceased. It was not the case of the prosecution itself that the accused targeted any particular body part or more precisely the head of the deceased and evidence also does not show any such intention of the appellant. There is no evidence to show the weight, size or shape of the stone used by the appellant to assess the intention or impact of blow to arrive at a conclusion favourable to the prosecution. There is also no evidence to show that the stone was unusual in size or shape or whether it was sufficient to cause death in the normal course. The injury found on the head of the deceased cannot be said that it was of an unusually severe nature or that it was intended to be so.[Para No.20]

Recall of witness u/s.311 of CrPC is permissible If evidence which is sought to be brought on record is essential for the just decision of the case

   It is, thus, seen that object of this section is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or by leaving ambiguity in the statement of witnesses examined by the parties. This section is intended to bring finality to the litigation. The learned trial court is required to focus its attention on the aspect as to whether evidence which is sought to be brought on record is essential for the just decision of the case. If this criteria is fulfilled, then application for recall of witness moved by taking resort to the provisions of Section 311 of the Code of Criminal Procedure needs to be allowed by the learned trial court. [Para no.5]