Saurabh Dobhal vs State Of Uttarakhand And Another

Sharad Kumar Sharma, J

The issue, which crops up for consideration in the present Criminal Revision is as to what would be the impact of an application paper No. 22(kha/1), 22(kha/2) and 22(kha/3), being filed by the accused/revisionist under trial for the commission of offence under Section 376 of IPC, when it was resorted to by the revisionist on 9th January 2019, and that too after closure of cross examination of PW1 on 9th January 2019. The revisionist moved three applications i.e. application paper number 22(kha/1), 22(kha/2) and 22(kha/3). All the three applications are shown to have been filed on 9th January 2019 by the revisionist, praying for:-

(i)         That nine telephonic conversations between him and the prosecutrix, which he has converted into nine CDs may be taken on record;

(ii)        He desired that his conversations with the prosecutrix, based on the transcriptions and voice samples to be taken on record and sent to FSL for testing;

(iii)       Based on FSL report, he has prayed for that he may be permitted to cross examine the prosecutrix, whose cross examination, otherwise, has been closed on 9th January 2019.

He further submits that by way of an application paper number 22(kha/2) that the aforesaid nine conversations which have been reduced into nine CDs and produced by way of an application paper number 22(kha/1) he had prayed that the said applications of taking voice samples of the prosecutrix may be taken on record and it may also be allowed in the interest of justice to be tested with the telephonic conversation which he intends to place on record by way of paper number 22(kha/1). In the third application, which he has filed before the trial Court i.e. application paper number 22(kha/3) he has prayed for that apart from taking the said conversations on record, for taking voice samples of the prosecutrix it may further be directed to be compared with the transcription, by the third application he has also prayed for the aforesaid CDs and telephonic conversations, which he has prayed for to be taken on record, the same may be sent to the forensic laboratory for its testing along with the voice samples of the prosecutrix as sought for to be taken by way of paper number 22kha/1 so as to enable him to establish his innocence in the commission of offence under Section 376 IPC, which has been complained of against him by the complainant (prosecutrix).

The precise circumstances as pleaded by the revisionist, under which the entire controversy has emanated for consideration is that on account of the some intimate relationship between the prosecutrix (complainant) and revisionist, and on account of certain acts and actions of the revisionist, the prosecutrix is said to have registered the FIR being FIR number 185 of 2017 at Police Station Rudrapur, District Udham Singh Nagar, raising certain set of allegations pertaining to the commission of the offence of physical relationships without there being a consent extended by the prosecutrix and it was alleged that it was a forceful physical relationship, which was complained of by the prosecutrix (complainant) without the consent being extended by her.

As per the facts, which are on record, it shows that the said Case Crime No. 185 of 2017 was investigated upon by the Investigating Officer and consequently on culmination of investigation, a chargesheet was submitted against the revisionist showing his apparent indulgement in the commission of offence, as on 4th March 2018. Based on the submission of the chargesheet before the Magistrate concerned, the cognizance was taken by the Magistrate concerned, on the same and thereafter the summoning order was issued to the revisionist and the trial commenced by way of registration of Sessions Trial No. 153 of 2018, State v. Saurabh Dobhal. At the commencement of the trial, the proceedings as contemplated under Section 209 of the Cr.PC of providing with all the relevant documents to be utilised by the prosecution, the chargesheet, FIR and other documents those were supplied to the revisionist, which is a fact, admitted by the revisionist in the proceedings before the Court below.

The trial stood initiated and is pending consideration and admittedly as per the documents on record and the pleadings raised by the revisionist, it is to the effect that the prosecution was to produce as many as 9 witnesses during the trial and out of which only one of the witnesses i.e. the prosecutrix herself as PW1 who was the prime witness for the purposes of establishment of the offence complained of in the FIR registered against the revisionist had been examined and her evidence has closed. What is procedurally revealed is that the prosecutrix has recorded her statement and completed the same on 18th December 2018, and lastly she concluded her recording of statement on 9th January 2019. This is an aspect, which is not disputed by any of the parties to the proceedings. It was only after the closure of the recording of the statement of the prosecutrix, that on the same day i.e. 9th January 2019, the revisionist is said to have filed the aforesaid three applications i.e. paper numbers 22(kha/1), 22(kha/2) and 22(kha/3), for the relief(s) as already been detailed above.

The said application was opposed by the prosecutrix by filing an objection paper No. 24(ga) to the effect that at the stage at which the application was filed by the revisionist for taking of transcriptions of 9 conversations on record and for taking sample conversations of the prosecutrix and for sending both the conversations for its forensic laboratory test examination cannot be legally permitted after closure of her evidence. As per the objection, it was contended that it could not have been taken on record on the application filed by the revisionist because as per the total prosecution witnesses which were to be produced, only an examination of PW1 has been completed but as far as the rest of the witnesses are concerned, their statements are yet to be examined before the Sessions Court.

Based on the aforesaid premise, the case of the prosecutrix was that since eight prosecution witness were yet to be examined, it was not an appropriate stage where such an application, as preferred by the revisionist which could have been permitted for bringing transcriptions on record and all consequential action thereof as prayed because if it is permitted, it would effect the trial and recording of statement by other prosecution witnesses. In order to substantiate the application, revisionist has also submitted that in case if the applications are permitted and the transcriptions are taken on record and are permitted to be sent for forensic laboratory examination, it will not be causing any prejudice to the prosecutrix rather it would only substantiate and enable the revisionist to establish his innocence and discovery of fact in order to show that there was an admitted affinity of the revisionist with the prosecutrix for considerable long period. But in the objection thus filed by the prosecutrix, it was submitted that the application, as such, which has been filed by the revisionist on 9th January 2019, would not be tenable for the following reasons:-

(a)        There is no such provision contemplated under the Code of Criminal Procedure, governing the proceedings of the trial under which the application as preferred by the revisionist could be filed and entertained by the Sessions Court.

(b)        She submits that the basic foundation for filing the aforesaid applications by the revisionist is on the ground that in the cross examination, as made by the prosecutrix, she had made reference to the so-called conversations between the prosecutrix and the revisionist. She submits that such allegations or the foundation of the application is untenable, because if her statement as recorded and closed on 9th January 2019 is taken into consideration, nowhere in the statement of the prosecutrix she has ever recorded at any stage or point of time she has ever made a statement pertaining to disclosure of fact of the telephonic conversations between her and the revisionist.

(c)        She submits in opposition that if the application of the revisionist is taken into consideration, it relates to the conversations which pertain to the year 2016 and since they happen to be a pre-existing conversations at the time when the FIR itself was lodged or the cognizance was taken in pursuance of the chargesheet there is no logical reason which has been assigned by the revisionist to express his inability as to why he has not referred to such type of conversations at any stage of the investigation or the proceedings till the statement of the prosecutrix was recorded on 9th January 2019, particularly when it pertains to 2016.

(d)        She submits that the filing of an application by the revisionist was uncalled for, for the reason that there is no genuineness which could be assigned to the pleadings raised as to why the same was not filed earlier and furthermore if the same was not placed on record earlier, it could not have been considered and that too at the stage after the disclosure of the statement by the prosecutrix, hence she submits that on this ground itself, the same would not be maintainable.

(e)        The prosecutrix has further expressed an apprehension about the genuineness of the transcription, that since the revisionist himself being an IT Engineer, there is a possibility of he playing fraud with the transcription by manipulating it, which has been converted into nine CDs to be considered at the time of dealing with the trial and no genuineness and fairness of the said transcription could be attached to it.

(f)        She submits that the said document which has been sought to be placed on record by virtue of the applications, cannot be relied with for the reason that earlier too the revisionist since being a technical expert being an IT Engineer has also hacked the WhatsApp connection of the prosecutrix, as well as Facebook account of the prosecutrix.

(g)        She submits that until and unless the statement of the accused revisionist is registered under Section 313 of the CrPC, no such transcription or alleged nine conversations of the CDs and that too of 2016, could be taken into consideration by virtue of the applications submitted by the revisionist. She further submits that the said transcription if at all it would be relevant for consideration it could be done on the closure of the statement to be recorded by the revisionist under Section 313 Cr.PC. She further opposed the application on the ground that since the stages of the proceedings, which has closed before the trial Court, it was upto the proceedings contemplated under Section 225 to 229 of Cr.PC and the proceedings as of now which is to be carried is under Section 230 of the CrPC, hence the revisionist after recording his statement under Section 313 could always still avail an opportunity to the place the said transcriptions if required and if at all relevant for consideration by invoking the provisions contained under Section 233 CrPC, which is quoted hereunder:-

"233. Entering upon defence.

(1) Where the accused is not acquitted under section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.

(2) If the accused puts in any written statement, the Judge shall file it with the record.

(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice."

Because according to the prosecution case in opposition to the application is that even after the culmination of 313 Cr.PC proceedings, it is not that the scope of filing those transcriptions on record is not available to the revisionist it could still be done by the revisionist by invoking provisions under Section 233 of Cr.PC.

In response to it, the case of the revisionist in reply to the objection filed by the prosecutrix, by way of filing of a replication paper number 25(kha), he has submitted that the objection of the prosecutrix is not tenable for the reasons that the application as preferred by the revisionist for the aforesaid reliefs as mentioned, the same could always be invoked under the provisions contained under Section 45 and Section 155 (3) of the Evidence Act and furthermore for the purposes of supporting the application paper number 22kha/2 and 22kha/3, the revisionist submits that the said application would fall to be within the purview of Section 45 of the Evidence Act and hence it ought to have been taken into consideration. Section 155(3) of the Evidence Act reads as under:-

"(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted."

The issue is that at what stage it could be invoked, without effecting or prejudicing the trial. Based upon the aforesaid circumstances, the learned counsel for the parties have placed their rival contentions. This Court after hearing the counsels at length and after having gone through the records as placed before this Court, the learned counsel for the revisionist has heavily placed reliance on record on the cross examination and the statements recorded by the prosecutrix dated 18th December 2018 and 9th January 2019. In order to extract from the cross examination of the prosecutrix from the viewpoint that it did made reference to the telephonic conversations between the revisionist and the prosecutrix, which was the foundation of the application of the revisionist dated 9th January 2019, in order to substantiate the statement recorded by the prosecutrix about the alleged conversations between them.

The learned counsel for the revisionist during the course of argument had made certain references of the extract of the statement and the cross examination of the prosecutrix recorded before the trial Court prior to its closer on 9th January 2019, but after having given a thoughtful consideration to the statement of the prosecutrix as recorded before the Sessions Court, which was sought to be relied by the revisionist for maintaining his application, the Court does not find any plausible reason to accept the argument of the learned counsel for the revisionist, for the reason after perusal of statement of the revisionist as recorded during trial that there is no such specific averment or statement recorded by the prosecutrix in relation to the telephonic conversations between them which were held between the prosecutrix and the revisionist to show that they were in a cordial relationship at a certain point of time. Even after having gone through the statement, the prosecutrix at no point of time had ever made any reference to the conversation, which has been derived by the revisionist to be reason to file the applications aforesaid.

The argument of the learned counsel for the revisionist is that since these conversations which were existing since 2016, they can always be taken into consideration by invoking the provisions contained under Section 45 to be read with Section 155(3) of the Evidence Act. Section 45 of the Evidence Act reads as under:

"45. Opinions of experts.-When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting] [or finger impressions] are relevant facts. Such persons are called experts."

As per the provisions of the Evidence Act, 1872 is concerned, the argument as raised by the learned counsel for the revisionist to support his case is not tenable for the reason that the purpose and intention of the legislature as contemplated under Section 45 of the Evidence Act, 1872 for getting an opinion of an expert upon a point of adducing of evidence by identifying the handwriting experts or by any scientific mode of it's examination of evidence its an exclusive mode which could be resorted to by the trial Court itself at an appropriate stage and not at any stage of the trial and that too on the whims and fancies of the accused personal facing trial according to his perception. The interpretation given to Section 45 of the Evidence Act with regards to extracting the opinion of the experts what has been provided therein is that it is the Courts' opinion which will be playing a predominant role for sending an article of evidence on record for its examination for getting an expert opinion about the sustainability of the said evidence in order to provide it an extra scientific authenticity so as to be read in evidence by the trial Court.

Section 45 of the Evidence Act cannot be used by the accused person facing trial, to be used, as if it is a mandate which provides him/her to have a recourse of forcing the prosecution to accept a document which have been sought to be produced by the accused person to be relied with and that too based upon the cross examination or the statement recorded by the prosecutrix during the course of trial. Even if the propriety of the order impugned, which is under challenge is taken into consideration, the Court has while considering the rival contentions has recorded a finding that the process of the trial is contemplated under Chapter 18 of the Code of Criminal Procedure, as per the facts which is on record, it admittedly shows that the procedure and stage of trial has reached upto Sections 225 to Section 229 has been exhausted of Chapter XVII of Cr.PC.

Even Sessions Court on considering the prosecution case had held that prima facie offence under Section 376 IPC is made out against the revisionist and had framed the charge as against the revisionist under Section 228 of Cr.PC on 12.11.2018. Not even this at the stage of trial of cross examination of the prosecutrix the counsel of the revisionist and completely cross examined her, thus cross examination of prosecutrix was left to be conducted. Thereafter the stage of trial is at Section 231 Cr.PC, hence the application of the revisionist at the stage of adducing of the prosecution witness which cannot be permitted 8 witnesses of the prosecutrix are yet to be examined, and opportunity to adduce evidence by the accused revisionist under trial is protected under Section 233 Cr.PC.

During the intervening period and prior to recording statement of the accused under Section 313 Cr.PC, there is no such process contemplated under law where such type of an application like the one which was under consideration before the Sessions Court, hearing could be entertained prior to recording the statement of the accused before initiation of the proceedings under Section 313 Cr.PC and that is why the procedure of Chapter 18 of Cr.PC itself provides with a provision contained under Section 233 Cr.PC, which protects the rights of an accused person that he could always after recording of the statement of the other prosecution witnesses, he can avail the remedy of placing the said transcriptions or the telephonic conversations on record by having a resort to the process contemplated under Section 233 Cr.PC and that is why the Court, by virtue of the impugned order has held that the revisionist still has an opportunity to cross examine the prosecutrix which is available to the revisionist under Section 233(1) of Cr.PC and since still other remaining witnesses are yet to be examined, the said application filed by the revisionist would not be tenable and consequently the same has been rejected.

The logic of filing of an application by the revisionist at this stage of the proceedings after closure of statement of PW1 i.e. the prosecutrix, is not acceptable even by this Court even for the reason that the foundation of an application filed by the revisionist cannot be on the basis of the recording of statement of the prosecutrix which stood closed on 9th January 2019, because it would amount to be an attempt to overcome the veracity of statement recorded by the prosecutrix against the revisionist, if such an application is permitted to be allowed for placing the transcription on record and for sending it for forensic laboratory examination and taking the samples voice of the prosecutrix, it will definitely prejudice the fair trial of the offence against the revisionist.

The contention of the learned counsel for the revisionist in support of the applications as filed, first of all the application in itself in the pleading does not disclose any reason or much plausible reason to entertain the application and to permit the said transcriptions being taken on record and more particularly, when he himself admittedly happens to be a technical expert and an IT Engineer in the field, he ought to have had knowledge about its probable impact on the trial and he ought to have resorted to an appropriate proceedings, at the appropriate stage when the trial itself was commencing by placing on record the conversations that too which was of 2016, which was an existence evidence available even much prior to commencement of the trial.

During the course of the argument and if the entire argument of the learned counsel for the revisionist is summed up, his precise submission could be summarized in the following manner:-

(1)        The application filed by the revisionist for taking the transcriptions on record and to permit him to cross-examine the prosecutrix, on these transcriptions was well within the time because on the date of closer of the evidence of the prosecutrix i.e. on 9th January 2019, it was on that day itself he has filed his aforesaid application.

(2)        He submits that so far as the placing on record the transcription of the conversations between the prosecutrix and the revisionist it would be relevant for the purposes of considering the offence which was tried for the reason that tape-recorded conversation having a discussion about the interse talks between them would have only helped to show their affinity to one another and thus the allegations of sexual assault or an incident, which the prosecutrix has sought to bring it under Section 376 of the IPC may not be established because of their close relationship and proximity to one another which could be established only by the transcriptions. The said conversation was also sought to be placed on record in order to show that the allegation of Section 376 of IPC may not be having that sensitivity of commission of an offence, because the interpretation of the conversation itself would show that there was a love affair prevailing between the accused and the prosecutrix even before their settlement of marriage, which was scheduled to be held in the month of July 2016. The reason for bringing the aforesaid transcriptions on record as assigned by the revisionist was to show the existence of unacceptable and irrational behaviour of the prosecutrix with the revisionist and his parents account of the fact that the marriage, which was scheduled to be held in the month of July, 2016 was postponed, to be held at a later stage on 24th September 2016, it was on account of the death of the grandfather of the accused person, which had ultimately resulted into cancellation of the marriage which was the sole foundation for accusing the revisionist by registration of the offence as against the revisionist under Section 376 of Cr.PC. He further submitted that placing on record of the oral testimony of the prosecutrix was necessary for its consideration in order to show that the statement recorded by the prosecutrix before the Court below which had culminated on 9th January 2019 was altogether projecting a different aspect than what it was, and that could have been established only by the conversations which was made amongst themselves.

(3)        He wanted to bring the transcriptions on record in order to confront the prosecutrix about the conversations by bringing the tape-recorded conversations on record so as to establish the effect of the provisions contained under Section 145 and Section 155(3) of the Indian Evidence Act to show his innocence in the commission of offence.

(4)        The application filed on the same day i.e. on 9th January 2018, by the revisionist was with a request that the aforesaid transcription which has been sought to be brought on record may be sent for its FSL examination in order to show that there was a relationship, and further in order to show that the statement recorded by way of an evidence before the Court below was just contrary to the actual relationship which the prosecutrix had with the revisionist prior to registration of the offence under Section 376 of Cr.PC against the revisionist.

(5)        He submits that in view of Section 7 of the Indian Evidence Act, the electronic evidence are also admissible to be taken into evidence was under Section 65(b) of the Indian Evidence Act only with a certain restrictions of the same being proved to be genuine to be read in evidence. Since he has supported the transcriptions and has prayed for the same being sent to FSL, it was only for the purpose to authenticate the contents of the transcription to be used during the conduct of trial.

(6)        Lastly, he submitted that bringing the transcription on record, cross-examination of the prosecutrix after closure of her evidence and for sending it to the FSL examination was only as a measure which was necessary in order to enable the revisionist to have a fair trial to establish his innocence and to show that the entire registration of the complaint against him was with a malicious intention on account of the suspension of the scheduled date of the marriage of the prosecutrix with the revisionist on account of certain family contingencies.

In support thereto, the learned counsel for the revisionist has submitted that if the judgement as reported in AIR 2016 (15) SCC 485, Shamsher Singh Verma v. State of Haryana is taken into consideration, he has submitted that the CD transcriptions of conversation will fall to be a document under Section 3 of the Evidence Act and once it is included in the definition of document, in that eventuality, it could be read into evidence as per the ratio propounded in paras 15 to 17 of the said judgement which is quoted hereunder:-

"15.     On going through the order dated 21.2.2015, passed by the trial court, we find that all the prosecution witnesses, including the child victim, her mother Harjinder Kaur, maternal grandmother Parajit Kaur and Munish Verma have been examined. Sandeep Verma (father of the victim) appears to have been discharged by the prosecution, and the evidence was closed. From the copy of the statement of accused Shamsher Singh Verma recorded under Section 313 CrPC (annexed as Annexure P-11 to the petition), it is evident that in reply to second last question, the accused has alleged that he has been implicated due to property dispute. It is also stated that some conversation is in possession of his son. From the record it also reflects that Dhir Singh, Registration Clerk, Vipin Taneja, Document Writer, Praveen Kumar, Clerk-cum-Cashier, State Bank of Patiala, and Saurabh Verma, son of the appellant have been examined as defence witnesses and evidence in defence is in progress.

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.

Therefore, without expressing any opinion as to the final merits of the case, this appeal is allowed, and the orders passed by the courts below are set aside. The application dated 19.2.2015 shall stand allowed. However, in the facts and circumstances of the case, it is observed that the accused/appellant shall not be entitled to seek bail on the ground of delay of trial."

But after having considered the aforesaid backdrop under which the said controversy has arisen though it related to commission of offence under Section 354 of IPC itself and one relating to the POCSO Act. On perusal of the ratio as dealt with by the Hon'ble Apex Court in para 16 of the said judgement, it was the case which was dealing with a situation where the CD, which has been held to be a document under Section 3 of the Evidence Act, was not permitted to be played before the Court, which in fact was the conversation between the father of the victim, the son and the wife with regards to the alleged property in dispute. Meaning thereby, in the said case, the said document i.e. CD was already taken on record and was taken to be read in evidence. It was rather not a document which was being for the first time sought to be introduced by virtue of an application as it is in the instant case where after the closure of the evidence of the prosecutrix as PW1, in relation to the offence in question. In the said case, relied by the revisionist, the Court has held that once the document has been taken on record, in that eventuality, it ought to have been permitted to be read by the trial Court by its playing, during the course of the trial in order to scrutinise its contents. The present case was not a case where a document has already been included under Section 3 of the Act, rather it was sought to be introduced for the first time to be read in evidence. Hence the facts and circumstances of the said case which has been relied entirely different than that which is involved in the instant case, whereof for the first time the said transcription of conversation that too of 2016, which was in relation to an incident of even much prior to the registration of the complaint in the instant case has rightly been not permitted to be taken on record and hence the judgement as reported in 2016 will not be of any relevance to be considered in the instant case.

The learned counsel for the revisionist has further placed reliance on a judgement report in 2014 (15) SCC 661, State (NCT of Delhi) v. Mukesh and he has particularly made reference to provisions contained under Section 145 and Section 146 of the Indian Evidence Act. Section 145 of the Indian Evidence Act which deals with the cross examination in relation to a previous statement which has been made by the prosecution in the proceedings before the Court below. In the case at hand, the cross examination sought for by the revisionist of PW1 was after the closer of an opportunity to the revisionist to cross-examine the prosecutrix by an order dated 9th January 2019. Section 145 and its ambit cannot be widened presently in order to enable cross examine the witness after his or her closer of evidence and that too by introducing a new evidence by way of an application, as in the instant case and that too in relation to a cross examination which has been sought was in relation to the document which was attempted to be brought on record and which was not taken as an exhibit earlier prior to the stage of cross examination of the prosecutrix. In the case on which the reliance has been placed in said case, the Court was dealing with the interpretation of Section 145 for cross examining of the victim in relation to a previous statements which has already been made by the witness before the police or the Investigating Officer and not thereafter. The previous statements herein for the purposes of invoking Section 145 of Evidence Act, was in relation to the statement which was previously made before the Investigating Officer and not a statement which has been recorded before the Court which was closed on 9th January 2019. A reference may be had to para 9 and 10 of the said judgement which was relied, which is quoted hereunder:

"9.       The learned counsel has laid stress on Paragraphs (12) and (13) of the judgment in Bipin shantilal Panchal (2001) 3 SCC 1, wherein it has been observed that, in the said case, on different occasions, the Trial Judge had chosen to decide questions of admissibility of documents or other items of evidence, as and when objections thereto were raised, and then detailed orders were passed either upholding or overruling such objections. Their Lordships also observed that the worst part was that after passing the orders, the trial court waited for days and weeks for the parties concerned to go before the higher Courts for the purpose of challenging such interlocutory orders. It is in such context that their Lordships held that it was an archaic practice that during the evidence-collecting stage, whenever any objection was raised regarding admissibility of any material in evidence, the Court did not proceed further without passing orders on such objections. Accordingly, their Lordships suggested a practice which, according to them, would be a better substitute and, that is, whenever an objection is raised at the evidence-taking stage regarding the admissibility of any material or item of oral evidence, the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence), subject to such objections to be decided at the last stage in the final judgment. Learned Counsel, accordingly, submitted that, in the interest of justice and having regard to the provisions of Section 146 of the Evidence Act, it was incumbent upon the Trial Court to allow the defence to cross-examine P.W. 1 on the statements made by him during the television interview given by him after the filing of the charge-sheet and which interview had not been relied upon by the prosecution.

Having carefully considered the submissions made on behalf of the respective parties, we are inclined to hold that, from the scheme of the Code of Criminal Procedure and the Evidence Act, it appears that the investigation and the materials collected by the prosecution prior to the filing of the charge-sheet under Section 161 of the Code, are material for the purposes of Section 145 of the Evidence Act, 1872. The expression "previous statements made" used in Section 145 of the Evidence Act, cannot, in our view, be extended to include statements made by a witness, after the filing of the charge-sheet. In our view, Section 146 of the Evidence Act also does not contemplate such a situation and the intention behind the provisions of Section 146 appears to be to confront a witness with other questions, which are of general nature, which could shake his credibility and also be used to test his veracity. The aforesaid expression must, therefore, be confined to statements made by a witness before the police during investigation and not thereafter."

Another judgement on which the learned counsel for the revisionist has made reference is that as rendered by the Hon'ble Apex Court in the matters of Jasdeep Kaur Chadha v. State (NCT of Delhi). This authority too would not apply because, it was a case where during the course of examining of a witness during course of trial where the public prosecutor wanted to confront the witness with his or her previous statement, the said previous statement was recorded subsequent to the filing of chargesheet. The public prosecutor in the said case was not permitted to confront the witness with the previous statement which was sought to be examined subsequent to filing of the chargesheet.

The argument which was being dealt with in the said case was in respect to a post chargesheet statement which was required to be brought within the ambit of Section 145 of the Indian Evidence Act. It was held that a witness can be confronted with such statement as relied upon in the judgement based on the ratio propounded in Tara Singh's case as reported in AIR 1951 SC 441, Tara Singh v. The State. In the said case, particularly having reference to paras 5, 6 and 7 which are quoted hereunder:-

"5.       As we intend to order a retrial, it will not be desira- ble to say anything about the merits of the case. The case for the prosecution is that two persons, Milkha Singh and Hakam Singh, were murdered in the early hours of the morning of Friday, the 30th of September, 1949. The former is the appellant's uncle. He died on the spot. The latter is the appellant's father. He was removed to the hospital and died there on Friday, the 7th of October, 1949.

The murders are said to have been committed about three in the morning. The appellant's brother Narindar Singh reported the occurrence at the Police Station, about 7 miles distant, at 8.45 the same morning. According to this report, Narindar was present and he named the appellant as the assailant.

The prosecution alleges that there were three eyewit- nesses to the assault on the father Hakam Singh, namely the appellant's brother Narindar Singh, his mother Bibi Santi and his sister Bibi Jito, aged 14. They are said to have arrived on the scene while the appellant was still attacking the father with a kripan. The prosecution version is that these three persons saw the uncle Milkha Singh lying dead on the scene of the occurrence with injuries on his person, and it is said that the appellant admitted to them that he had killed the uncle."

It was rather an investigation of material, collected by the prosecution on which the reliance was sought to be plead which was collected prior to filing of the chargesheet under Section 161 of the Code of Criminal Procedure for the purpose of its examination under Section 145 of the Indian Evidence Act. In the said judgement, the Court held that the previous statement for the purpose of Section 145 of the Evidence Act, it cannot be extended to include statement made by the witnesses after filing of the chargesheet hence in view of Section 146 of the Evidence Act, it was not contemplating such a situation and intention to confront the person who has already been examined with a new material or new evidence relied with by the defence after the closer of the statement of the prosecutrix. The said judgement laid down that the previous statement for the purpose of Section 145, which does not put any limitation, but it would relate back only to a statement which has been recorded during the course of investigation. It was held that the previous statement must be taken as to be the statement which is made during the investigation and not a statement thereafter during a trial, the investigation in the instant case, the conversation or telephonic talks was that of 2016 which was sought to be brought on record for the purposes to permit the cross examination of the prosecutrix and that too after the closer of her examination was absolutely contrary, to the case at hand on which the reliance has been placed by the learned counsel for the revisionist. The reference made by the learned counsel for the revisionist to the judgement of the Delhi High Court as rendered in the case of Vinod Kumar v. State Govt. of NCT of Delhi in Criminal Revision P. 577/2009 & Crl. M.A No. 12520/2009 (Stay), the defence of the accused person it was in relation to establish a fact that the prosecutrix was having live in relationship with the accused person and in order to show a female in continuing with the relationship and in order to prove his defence. In the said case it was where during the course of cross examination of the prosecutrix and prior to its closer, the tape recorded conversation of the prosecutrix was being sought to be placed on record in order to concede and establish her love affaire with the petitioner of the said case. That is not the case at hand because here by the application filed by the revisionist, the transcription in relation to a conversation of 2016 was an event which was existing even prior to the initiation of the criminal proceedings and placing the same on its record after closer of the statement of prosecutrix was not a situation which was contemplated in the aforesaid judgement of the Delhi High Court.

Even this Court is of the view that after closer of the examination of prosecutrix PW1 and that too in a situation where other witnesses of the prosecution which were yet to be examined, the application of the nature sought to be pressed by the revisionist cannot be permitted particularly, when it has come on record that during the course of cross examination an ample of opportunity was given to the revisionist and his counsel and they had virtually cross examined the prosecutrix and the proceedings under Section 225 to 299 of Cr.PC were closed and thus the application of the revisionist at the stage couldn't have been permitted as it would be contrary to the procedural law hence it was rightly rejected by the learned trial Court.

Hence, the reasons which have been assigned by the Court that since the stage of trial being at the stage of Section 231 of Cr.PC, and this is not the stage at which the proceedings of trial could be snapped by permitting the application to take the documents on record because the legislature itself has protected and provided an opportunity of cross examination to the accused person under Section 233 Cr.PC by placing any evidence which the accused under trial may have in his defence.

Thus this Court does not find any plausible reason to interfere in the impugned order dated 26th April 2019, resulting into the rejection of the applications of the revisionist as paper number 22(kha/1), 22(kha/2) and 22(kha/3). Consequently, this Court holds that the revision lacks merit and hence it is dismissed. However, the dismissal of the revision will not prejudice the rights of the revisionist as protected by Section 233 Cr.PC which could be availed by the revisionist at an appropriate stage of the proceedings.