DR.

SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERISTY

LUCKNOW

CASE DIARY ON

A CIVIL AND CRIMINAL CASE

(UNDER THE SUPERVISION OF Dr. GULAB RAI)

CASE DIARY ON ONE CIVIL AND CRIMINAL CASE

SUBMITTED TO: : SUBMITTED BY

Dr. GULAB RAI ADITYA SINGH

FACULTY OF LAW R. NO. 143070007

D.S.M.N.R.U B.COM.LLB (H)

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Vinod Kumar @ Vinod Kumar Handa vs State Govt. Of N.C.T. Of Delhi on 5 July, 2012

IN THE HIGH COURT OF DELHI AT NEW DELHI

Crl. Rev. P. 577/2009 & Crl. M.A. No. 12520/2009(Stay)

Reserved on: 19th April, 2012

Decided on: 5th July, 2012

VINOD KUMAR @ VINOD KUMAR HANDA ..... Petitioner

Through: Mr. Ram Lal, Advocate

versus

STATE GOVT. OF N.C.T. OF DELHI ..... Respondents

Through: Mr. Mukesh Gupta, APP for the State with SI Sunil Kumar, PS Tulghlak Road, Delhi.

Mr. Jaiveer Chaudhary, Advocate for Respondent No. 2.

Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA

1. As the relief was sought against the prosecutrix who had not been impleaded as a party initially,
this Court vide order dated 30 th September, 2011 directed the Petitioner to implead the prosecutrix
as a party. Accordingly she was impleaded as Respondent No.2.

2. The Petitioner is facing trial for offence under Sections 313/493/495/306/376/494/120B IPC in
case FIR No. 251/2001 registered at P.S. Tughlak Road. The allegations as set out by the
prosecutrix who has been examined in the Court are that she got married to the Petitioner at
Ambala whereafter he made relations with her. The Petitioner under the influence of liquor had
sexual intercourse with the prosecutrix and he represented that he had divorced his earlier wife
which fact was later found to be incorrect.

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3. The defence of the Petitioner is that the prosecutrix of her free will was having a live-in-
relationship with him. To prove his defence, the Petitioner during the cross-examination of the
prosecutrix on 25th February, 2008 produced tape-recorded conversation of the prosecutrix
wherein she had conceded her love affair with the Petitioner knowing fully well of his earlier
marriage. The prosecutrix denied the voice recorded in the tape-recorded conversation to be her
voice during cross-examination on 25th February, 2008. Thus, on 21st April, 2009 when the
prosecution evidence was still going on, the Petitioner moved an application under Section 45 of
the Evidence Act before the learned Trial Court seeking directions to record voice sample of the
prosecutrix and to send the same to CFSL for identification of the voice. In the application, the
Petitioner alleged that he was falsely implicated in this case and during the pendency of the trial,
the prosecutrix used to make telephone calls and she also called the Petitioner to meet her at
Gurudwara Bangla Sahib, Delhi on 31st July, 2004. During the conversation, she admitted having
an affair with co-accused Vinod Kumar. He, thus, sought directions to record the voice sample of
prosecutrix and to send the same for scientific identification. This application was kept pending
and only on conclusion of the defence evidence on 1st October, 2009 it was noted that this
application was pending. The learned Trial Court, after hearing the arguments, dismissed the
application primarily on the ground that the prosecutrix has been cross- examined at length on
different counts and no single question has been asked about the conversation. The learned Trial
Court also observed that the application was filed only to delay the trial.

4. Aggrieved by the impugned order, the Petitioner filed the present petition seeking directions as
prayed before the learned Trial Court. The contention of the Petitioner is that by denying the voice
sample, fair trial as enshrined by the Constitution is denied to him. The tape-recorded conversation
is a primary evidence duly admissible in law. It is like any previous statement which can be used
to contradict the evidence given before the Court as well as to test the veracity of the evidence and
to impeach the credibility of the witness.

5. Reliance is placed on the decision of the Constitution Bench in N. Sri Rama Reddy & Ors. Vs.
The Attorney-General of India, AIR 1971 SC 1162 relying upon Yusufalli Esmail Nagree vs. State
of Mahrashtra, AIR 1968 SC

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It is contended that the conversation between the accused and the Complainant which is tape-
recorded, is a contemporaneous evidence and is relevant under Section 8 Evidence Act. Further
like a photograph of a relevant incident, a contemporaneous tape recording of a relevant
conversation is a relevant fact under Section 7 of the Evidence Act. Relying on Dial Singh Narain
Singh vs. Rajpal, AIR 1969 Punjab and Haryana 350 it is contended that for use of an earlier tape-
recorded statement, the identification of the taped voice is crucial and indeed such proper
identification of the voices is the sine qua non for the use of the said tape- recorded evidence.
Where the voice is denied by the alleged maker thereof, a comparison of the same becomes
inevitable and the proper identification of voices must be proved by a competent witness.

6. Learned APP for the State relying upon Rakesh Bisht vs. CBI, MANU/DE/0338/2007 contended
that though there is no provision under the Indian Evidence Act, 1972 to deal with taking of voice
sample, however, the investigating agency is permitted to take the same for the purpose of
identification though an accused cannot be compelled to give the sample in case the conversation
is incriminatory in nature. Thus, the learned Trial Court has rightly rejected the application of the
Petitioner. The petition has no merit and is liable to be dismissed.

7. Learned counsel for Respondent No. 2, the prosecutrix contends that the application submitted
by the petitioner for taking the voice samples of the prosecutrix contained no such telephone
numbers with which the petitioner and the prosecutrix had conversations. It is further stated that
during her cross-examination also no question in regard as to what conversation was made or in
what manner it was made has been put to the prosecutrix. Thus the present petition has no merit
and is liable to be dismissed.

8. I have heard learned counsel for parties. The main issue raised by the learned counsel for
Petitioner is that the learned Trial Court has denied a fair trial to him by dismissing the application
for recording the voice samples of the Prosecutrix. The Trial Court while dismissing the
application has observed that the Prosecutrix was cross-examined at length and nothing as regard
to the tape-recorded conversation was put to her and the application was nothing more than a
method to delay the proceeding. This observation of the learned Trial Court is contrary to the
record.

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9. Before proceeding further, it would be relevant to note the law laid down in regard to the
admissibility of recorded conversation and allowing the application for taking voice samples of
the parties. As early as 1956, in Rup Chand vs. Mahabir Prasad AIR 1956 Punj. 173 it has been
categorically held that a tape recorded version of a former statement of a witness is admissible in
Evidence to shake the credit of the witness. Hon'ble Supreme Court in S. Pratap Singh vs. State of
Punjab, AIR 1964 SC 72 held that the tape recorded version of a conversation was admissible in
evidence to corroborate the evidence of witness who had stated that such a conversation had taken
place.

In RM Malkani vs. State of Maharashtra, AIR 1973 SC 157 their Lordships observed:

Tape recorded conversation is admissible provided first the conversation is relevant to the matters
in issue; secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded
conversation is proved by eliminating the possibility of erasing the tape-record. A
contemporaneous tape- record of a relevant conversation is a relevant fact and is admissible
under Section 8 of the Evidence Act. It is res gestae.

It was said that the admissibility of the tape recorded evidence offended Arts. 20(3) and 21 of the
Constitution. The submission was that the manner of acquiring the tape recorded conversation was
not procedure established by law and the appellant was incriminated. The appellant's conversation
was voluntary. There was no compulsion. The attaching of the tape recording instrument was
unknown to the appellant. That fact does not render the evidence of conversation inadmissible.
The appellant's conversation was not extracted under duress or compulsion. If the conversation
was recorded on the tape it was a mechanical contrivance to play the role of an eavesdropper. In
R.V.Leatham, (1861) 8 Cox C.C. 198 it was said "It matters not how you get it if you steal it even,
it would be admissible in evidence" as long as it is not tainted by an inadmissible confession of
guilt: evidence even if it is illegally obtained is admissible."

Thus, in view of the above discussion it is clear that if an accurate tape-

recorded version of the statement is produced in evidence, the same is relevant and admissible in
evidence in case the recording is not tempered with and the voice is properly identified.

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10. As the tape-recorded conversation is admissible under the law of evidence, the question before
this Court is whether the Court can compel a person to give his/her voice samples for identification.
Reliance on Rakesh Bisht (Supra) by the learned APP for State is misconceived, as in that case the
application for taking voice samples for identification was allowed by the learned Trial Judge at
the stage of investigation which is not the case in the present petition. The Petitioner's application
was dismissed after recording of Prosecution evidence.

11. The Hon'ble Supreme Court in Vikas Kumar Roorkewal vs. State of Uttarakhand, 2011 (2)
SCC 178 has held:

The necessity of fair trial hardly needs emphasis. The State has a definite role to play in protecting
the witnesses, to start with at least in sensitive cases. The learned Judge has failed to take
participatory role in the trial. He was not expected to act like a mere tape recorder to record
whatever has been stated by the witnesses. Section 311 of the Code and Section 165 of the
Evidence Act confers vast and wide powers on Court to elicit all necessary materials by playing
an active role in the evidence collecting process. However, the record does not indicate that the
learned Judge presiding the trial had exercised powers under Section 165 of the Evidence Act
which is in a way complimentary to his other powers."

12. Section 165 of the Evidence Act reads as under:

"165. Judge's power to put questions or order production.- The Judge may, in order to discover or
to obtain proper proof of relevant facts, ask any question he pleases, in any form at any time, of
any witness, or of the parties about any fact relevant or irrelevant; and may order the production
of any document or thing; and neither the parties nor their agents shall be entitled to make any
objection to any such question or order, nor, without the leave of the Court, The Orient Tavern
cross-examine any witness upon any answer given in reply to any such question.

Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly
proved.

Provided also that this Section shall not authorize an Judge to compel any witness to answer any
question or produce any document which such witness would be entitled to refuse to answer or
produce under Sections 121 to 131, both inclusive, if the questions were asked or the documents

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were called for by the adverse party; nor shall the Judge ask any question which it would be
improper for any other person to ask under Section 148 or 149; nor shall he dispense with primary
evidence of any document, except in the cases herein before excepted."

13. This section is intended to arm the Judge with the most extensive power for the purpose of
getting at the truth. The effect of this section is that in order to go to the root of the matter before
it, the court has to look at and enquire into every fact before it. The exceptions to this wide power
of judge are that the witness cannot be compelled to answer any question or produce any document
contrary to Section 121 to 131 Evidence Act or any question contrary to Sections 148 or
149 Evidence Act and the Judge shall not dispense with primary evidence of any document except
as provided before.

14. The Hon'ble Supreme Court in Zahira Habibulla H. Sheikh and another vs. State of Gujarat
and others, 2004 (4) SCC 158 observed:

The Courts have to take a participatory role in a trial. They are not expected to be tape recorders
to record whatever is being stated by the witnesses. Section 311 of the Code andSection 165 of the
Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary
materials by playing an active role in the evidence collecting process. They have to monitor the
proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily
brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings
effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary the Court
has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite
manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious
to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor
who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial
system, and Courts could not also play into the hands of such prosecuting agency showing
indifference or adopting an attitude of total aloofness.

The power of the Court under Section 165 of the Evidence Act is in a way complementary to its
power under Section 311 of the Code. The section consists of two parts i.e.

(i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory
portion which compels the Courts to examine a witness if his evidence appears to be essential to

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the just decision of the Court. Though the discretion given to the Court is very wide, the very width
requires a corresponding caution. In Mohan Lal v. Union of Indiathis Court has observed, while
considering the scope and ambit of Section 311, that the very usage of the word such as, "any
Court" "at any stage", or "any enquiry or trial or other proceedings" "any person" and "any such
person" clearly spells out that the Section has expressed in the widest possible terms and do not
limit the discretion of the Court in any way. However, as noted above, the very width requires a
corresponding caution that the discretionary powers should be invoked as the exigencies of justice
require and exercised judicially with circumspection and consistently with the provisions of the
Code. The second part of the section does not allow any discretion but obligates and binds the
Court to take necessary steps if the fresh evidence to be obtained is essential to the just decision
of the case - 'essential', to an active and alert mind and not to one which is bent to abandon or
abdicate. Object of the Section is to enable the court to arrive at the truth irrespective of the fact
that the prosecution or the defence has failed to produce some evidence which is necessary for a
just and proper disposal of the case. The power is exercised and the evidence is examined neither
to help the prosecution nor the defence, if the Court feels that there is necessity to act in terms
of Section 311 but only to subserve the cause of justice and public interest. It is done with an object
of getting the evidence in aid of a just decision and to upheld the truth.

It is not that in every case where the witness who had given evidence before Court wants to change
his mind and is prepared to speak differently, that the Court concerned should readily accede to
such request by lending its assistance. If the witness who deposed one way earlier comes before
the appellate Court with a prayer that he is prepared to give evidence which is materially different
from what he has given earlier at the trial with the reasons for the earlier lapse, the Court can
consider the genuineness of the prayer in the context as to whether the party concerned had a fair
opportunity to speak the truth earlier and in an appropriate case accept it. It is not that the power
is to be exercised in a routine manner, but being an exception to the ordinary rule of disposal of
appeal on the basis of records received in exceptional cases or extraordinary situation the Court
can neither feel powerless nor abdicate its duty to arrive at the truth and satisfy the ends of justice.
The Court can certainly be guided by the metaphor, separate the grain from the chaff, and in a case
which has telltale imprint of reasonableness and genuineness in the prayer, the same has to be
accepted, at least to consider the worth, credibility and the acceptability of the same on merits of
the material sought to be brought in."

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15. An accused has an indefeasible right to a fair trial and equal opportunity to prove his innocence.
It is settled law that the right of accused to adduce defence evidence is not a mere formality but an
essential part of a criminal trial where every opportunity must be given to the accused to adduce
his defence.

16. Hon'ble Supreme Court in Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.), (2007) 2 SCC
258 has held as under:-

The appellant cannot be convicted without an opportunity being given to her to present her
evidence and if it is denied to her, there is no fair trial. "Fair trial" includes fair and proper
opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence
is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of
procedure designed to ensure justice should be scrupulously followed, and the courts should be
jealous in seeing that there is no breach of them...."

17. In the case in hand the defence of the petitioner is that he has been falsely implicated in this
case and the Prosecutrix has accepted having an affair with co-accused Vinod in the tape recorded
conversation. He has placed the transcripts of the conversation which took place between him and
the Prosecutrix along with the present petition. Prosecutrix when cross- examined on the point of
conversation has denied the fact that the voice recorded in the tape recorder was her voice. A
perusal of the transcripts shows that it has statements exculpatory to the Petitioner.

18. In my opinion it would be just and fair to grant an opportunity to the Petitioner to prove his
innocence. In view of the discussion above the present petition is allowed. The Trial Court will
direct the prosecutrix to give her voice samples, the same be sent for scientific analysis and
appropriate action thereafter be taken in accordance with law.

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Equivalent Citation: (1997)11 SCC 312

Petitioner: M.C. Mehta

Vs.

Respondent: Union of India and Ors.

Bench:Kuldip Singh, J., and S. Saghir Ahmad, J.

Date of Judgment: 10/12/1996

Background

Groundwater is the water that seeps through rocks and soil and is stored below the ground. The
rocks in which groundwater is stored are called aquifers. Aquifers are typically made up of gravel,
sand, sandstone or limestone.This writ petition was filed by advocate M.C. Mehta keeping in view
the depleting levels of groundwater in the country.

Proceedings and discussion

M.C. Mehta filed this writ petition on the basis of a news report published in the Indian Express
captioned “Falling Groundwater Level Threatens City,” On the basis of this report the
Supreme Court issued a notice to the Central Groundwater Board, the Delhi Pollution Control
Committee, the Municipal Corporation of Delhi and the Delhi Waterworks and Sewerage Disposal
Undertaking.

In reply to this notice, the Director of the Central Groundwater Board filed an affidavit. He stated
in his affidavit that from 1962 onwards, the water levels in India are declining at a fast rate. From
1971 to 1983, the fall in water level was from 4m to 8m in the National Capital Territory. There
was a further fall of water level from 4m to more than 8m during the period 1983 to 1985. One of

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the reasons stated in the affidavit for the decline of water level was the enhanced extraction of
groundwater. The Supreme Court also issued a notice to the Secretary of Ministry of Water
Resources and to the Government of NCT, Delhi. Various authorities filed affidavits indicating
the factual position regarding the fall of water levels in the country.

The Supreme Court ordered the Director of National Environmental Engineering Research
Institute(NEERI), to examine the matter at the Institute level by a team of experts in the field and
file a report. NEERI filed a report indicating an overall picture of the declining water levels in
India and also the various schemes and activities undertaken by various Departments of
Government of India to monitor groundwater levels.The report outlined the need for regulation of
extraction of groundwater and emphasized on integrated water resources management.

The Supreme Court on 21st November, 1996 passed the following order –

“One of the suggestions under consideration is to accept the NEERI recommendation and
constitute an Authority under Section 3(3) of the Environment (Protection) Act, 1986. The purpose
can only be achieved if it can be done on all-India basis.”

NEERI in Para 6 and Para 7 of its report gave a logical approach to Water Resources Management
and recommended that a Central Water Resource Management Authority with an objective to
coordinate and implement all activities of planning, development, allocation, implementation,
research and monitoring of all water resources need to be established to promote intra and
intergenerational equity.

The mandate of the authority was recommended to include the following:

1. To deploy river basins as the basis for regional planning for sustainable water resource
management (along with commensurate land use).
2. To prepare medium and long-term national land use plans inter alia including
agricultural practices, human settlement patterns and industrial typology in consultation

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 with Ministries/Departments concerned based on the regional water supportive
capacity.
3. To assess the present irrigation practices and cropping patterns, with respect to high
water consuming crops and lay down National Agricultural Water Use Policy to
encourage judicious use of water resources.
4. To keep under review groundwater levels and quality, and surface water quantity and
quality to devise and implement pragmatic strategies at plan and program levels *
5. To ensure maintenance of minimum flows in the rivers so as to fulfill the riparian rights,
to protect the flood plains, to as also to protect the vital ecological functions of the
rivers.
6. To ensure techno-economic feasibility and to implement programs on reuse of
appropriately treated sewage for agriculture, reuse of industrial wastewaters as
industrial process water, use of treated sewage in social forestry and public parks in
municipal areas and reuse of treated wastewater in new housing complexes for non-
consumptive usages.
7. To protect, conserve and augment traditional water retaining structures.
8. To protect, conserve and augment natural and manmade wetlands in the country.
9. To promote rain water harvesting in human settlement practices, particularly in cities
with more than 10 lakh population in arid/semiarid regions.
10. To promote and implement modern and traditional water harvesting technologies to
ensure minimal expenditure in groundwater harnessing.
11. To design and implement programs to arrest alarming rates of decline in snowline in
the country.
12. To ensure catchment area treatment, including construction of check dams, contour
bonding, and control of river bank erosion and plantation of endemic fast-growing tree
species to arrest soil and water loss in all river basins.
13. To ensure implementation of afforestation programs for achieving a minimum of 33%
forest cover as per the National Forest Policy, 1988.
14. To prepare and implement guidelines on water rate structure for various water usages
commensurate with the production and scarcity value of the resource.

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 15. To ensure community participation with a view to harnessing traditional knowledge at
all stages in the holological approach to water resource management.

Mr. Mehta placed an organizational chart which recommended the establishment of offices of
Central Groundwater Board all over the country. The recommendation stated that the Central
Government may consider issuing a notification constituting the Board itself as an Authority under
Section 3(3) of the Act. With the notification designating the Board as and authority under the Act,
it would have all the statutory powers under the Act and it would be in a position to have effective
control all over India.

Additional Secretary of Ministry of Water Resources also filed affidavit which stated that the
organizational presence of the Board in the country is efficient to undertake the responsibilities
desired by this Court.

Mr. M.C. Mehta contended that keeping in view the declining level of underground water all over
the country, it is necessary to regulate withdrawal of the underground water. He stated that there
were legislations in 6 States to regulate the water resources development but the underground
water is being exploited all over the country without any regulations. It was therefore rightly
suggested by NEERI in its Report that an Authority under the Act should be constituted with the
powers necessary to deal with the situation created by the depletion of the groundwater levels

Final Order

The Ministry of Environment and Forest was ordered to constitute the Central Groundwater Board
as an Authority under Section 3(3) of the Act. The Authority so constituted shall exercise all the
powers under the Act necessary for the purpose of regulation and control of groundwater
management and development. The Central Government shall confer on the Authority the power
to give directions under Section 5 of the Act and also powers to take such measures or pass any
orders in respect of all the matters referred to in sub-section (2) of Section 3 of the Act.

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