Sultan Mir vs State of J&K

Mr. Mohammad Yaqoob Mir, J. - Application of the accused, ""for taking on record the memory cards, CD and for permitting the Laptop to be

played in the Court, with a further prayer to permit the petitioners to confront PW 2 with his earlier statement, as given by him to the press and

media, video recording of which in CD has been presented before the trial court along with Laptop chips and certificate from the person under

whose management said instruments were and have been from the time of its recording with a further prayer for directing the ETV Urdu to

produce the recording of the same for cross examination of the said witness in accordance with law"" has been rejected by the trial court (4th

Additional sessions Judge, Srinagar) vide order dated 08.04.2015. Same is to sought to be quashed.

In connection with murder of one Mst. Saja, case has been registered as FIR No.24 of 2013 P/S Safa Kadal for commission of offence

punishable under Sections 302, 148, 147, 447, 120-B RPC. Investigation of the case culminated in presenting challan (charge sheet). Trial court

has framed charge against the accused for commission of aforesaid offences and trial of the case as such is in progress.

PW 2, Tariq Ahmad, son of the deceased, before the trial court has deposed in the examination-in-chief that at the time of occurrence he was

present on spot whereas during cross examination on the question of the counsel for the defence stated that it is incorrect that he was not present at

the time of occurrence. Then has further stated that he did not pay heed as to whether his statement was recorded by ETV and telecasted or not.

He further stated that he could not pay heed as to whose statement was recorded by press and media. At such stage learned defence counsel

wanted to show video clippings but the statement, in view of the order recorded, has been deferred, as a result whereof defence counsel filed an

application praying therein that the trial court may be pleased to take on record the memory cards, CD and permit Laptop to be played in the

Court in order to demonstrate the importance and relevance of the earlier statement of PW Tariq Ahmad Khanday, son of the deceased, which he

had given on spot to the press/media with a further prayer that the defence shall be allowed to contradict the witness and to impeach his credit so

as to bring truth on the record with a further prayer that in case said witness still denies the same after having put the same to him, the memory

cards and CD shall be sent for FSL examination or call for the recorders of the same to identify its veracity as required under law.

Trial court after noticing position of the case as well as law on the subject has concluded that the application at such stage could not be granted

being premature, as such, dismissed the application with an observation that the order shall not preclude the applicants from availing the remedy at

the appropriate stage when they will be required to enter upon their defence in terms of Section 274 Cr.P. C.

While considering the submissions as have been made by learned counsel for the parties and on careful scrutiny of the records what emerges is

that trial court has ventured to look into the admissibility of the evidence and also the procedure governing the sessions trial. In the opinion of the

trial court, the memory cards and CD being electronic evidence can be permitted to be produced by the defence at the time they will be asked to

enter upon the defence.

Section 65-B of the J&K Evidence Act, Svt. 1977 envisage that any information contained in electronic record which is printed on a paper,

stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed

to be also a document, subject to the conditions enshrined therein the Section, shall be admissible in any proceedings. The memory cards and CD,

no doubt, is a document in terms of Section 65-B but same has to satisfy the conditions enshrined which essentially can be better looked into at the

time defence is asked to enter upon his defence.

Trial court when confronted with said position was required to take the memory cards and CD and also to mark as exhibit tentatively so as to

avoid hampering of progress of the trial. Hon'ble Supreme Court in the judgment rendered in the case of Bipin Shantilal Panchal v. State of

Gujarat & Anr, 2001 (2) Supreme 65, has ruled that whenever an objection is raised during evidence taking stage regarding 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. It

shall be advantageous to quote Para 13 to 16 of the said judgment:

It is an archaic practise that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in

evidence the court does not proceed further without passing order on such objection. But the fall out of the above practise is this: Suppose the trial

court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and

disposes of the case finally. If the appellate or revisional court, when the same question is re-canvassed, could take a different view on the

admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record

by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to

dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when

realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-

moulded to give way for better substitutes which would help acceleration of trial proceedings.

When so recast, the practise which can be a better substitute is this: Whenever an objection is raised during 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. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded

from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency

of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested

above can be followed.)

(Emphasis supplied)

The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence taking stage, would not be

wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if

not days. Second is that the superior court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final

judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the

case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation

and would not add to their misery or expenses.

We, therefore, make the above as a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of

any material or any item of oral evidence.

(Emphasis added)

The trial court should have allowed to play the Laptop so as to contradict the witness with his earlier statement in order to enable him to admit

or deny the same. It along with exhibit would remain tentative.

At the stage of cross examination for contradicting PW (2), the defence should have been allowed to play the Laptop and even prayer for

placing on record the memory cards and CD should have been granted which would remain subject to objection and a necessary note to that

extent should have been recorded, as is permissible in view of the law laid down by the Hon'ble Supreme Court in Bipin Shantilal Panchal's case,

as referred above.

Basically, the defence wanted to play the Laptop and to place on record the memory cards and CD because same was necessitated in view of

the statement of certain witnesses and in view of the statement of PW (2) as well, who, while deposing in the Court, has stated that he was present

on spot at the time of occurrence, means he saw the occurrence whereas defence was in possession of videos depicting that PW(2) had reached

the spot after the occurrence, means he has not seen the occurrence, which fact, according to the defence, was corroborated by the statement of

PW(2) recorded by the press on spot and it is that statement which has been video graphed, memory card and CD has been prepared and same

has been put on Laptop, therefore, it was a material question to be put to the witness and then it was choice of the witness to say yes or no to the

same.

It is equally true that the other prayer of the defence to the effect that in case PW (2) denies the position as would appear from the memory

cards, CD and Laptop, then the same should be sent to FSL for examination or to call recorders of the same to identify its veracity under law,

could not be granted because it is only after completion of prosecution evidence and recording statement under Section 342 Cr.P.C and hearing

the matter under Section 273 Cr. P. C, if the accused would be asked to enter upon defence under Section 274 Cr.P.C, then at that stage they

could seek assistance of the court but not at this stage when the prosecution witnesses are being examined. For that defence has to wait.

The cross examination of the witness, in fact, is aimed at eliciting truth and in the process defence has every right to contradict the witness. If

same is denied, then the very object of cross examination will get defeated. The defence has a right to make every endeavour to impeach the credit

of the witnesses, as is permissible, for truth to prevail.

The Hon'ble Apex Court while noticing that during evidence collecting stage when objection is raised regarding admissibility of any material in

evidence, Court does not proceed without passing order on such objection. Such practise through the course of long period was realized to be

hindrance which impedes steady and swift progress of trial proceedings and it is in the same background, Hon'ble Apex Court has held in Bipin

Shantilal Panchal's judgment that ""whenever an objection is raised during evidence taking stage regarding 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 objection to be decided at the final stage of the trial. If the trial Court finds at the final stage that

the objection so raised is sustainable, he can keep such evidence excluded from consideration"". So in view of the clear cut position of law as laid

down by the Hon'ble Apex Court, as quoted in Para 7 above, the trial Courts have to follow the same.

In view of the stated facts, reasons and the law laid down by the Hon'ble Supreme Court, trial court is directed to take on record the memory

cards and CD, being a document in terms of Section 65-B of the Evidence Act, However, same will remain subject to objections and will also

remain subject to proof to be produced by the defence when asked to enter upon defence in terms of Section 274 Cr. P.C. The trial court shall

allow playing of Laptop so as to put the same to PW (2) and then it is for the PW (2) to reply. The trial court shall record the question and answer

and finally keep the same subject to objections to be decided at the last stage of the trial because if such course is not adopted, there will be

miscarriage of justice and abuse of process of the Court and, in particular, shall be in deviation to what has been directed to be followed by

Hon'ble Apex Court, as quoted in Para 7 above.

Petition succeeds as above. The trial court shall proceed in the matter as directed.

Copy of the order be sent to the trial court for information.