H CHANDRASHEKAR Vs. SHAFIQ ALI KHAN

JUDGEMENT

(1.) THE defendant has preferred the above civil revision petition aggrieved by the order of dismissal of his application to appoint a Commissioner of Forensic Science Laboratory to test the voice recorded in the cassettes marked as Exs. D-24 and D-25 and to determine as. to whether the said voice is that of P. W. 2-Smt. Naaz Parveen, in the interests of justice and equity.

(2.) THE case of the defendant is that, during the talk over the telephone the said voice is recorded and in the said conversation of P. W. 2-Smt. Naaz Parveen has promised him that she would handover the possession of the suit schedule property on two occasions. But when she was confronted in the cross-examination during the course of her evidence, she denied the voice contained in the two cassettes as that of hers. It is learnt that the Forensic Science Laboratory will undertake the job of voice testing and determine as to whose voice is contained in the two cassettes. The application is opposed by the plaintiff saying that the suit is for recovery of possession on the ground that the defendant has dispossessed him wrongly. It is the case Of the defendant that he got the suit schedule property under the lease but admittedly there is no lease deed and also he has not put the defendant in possession. It is further submitted that the defendant claims that it is the wife of the plaintiff who is examined as P. W. 2 who handed over the keys of the suit schedule property. The defendant also claimed that he has been put in possession of the suit property on 21-11-1992. The contents of the cassette Ex. D-24 was recorded on 18-11-1992 and Ex. D-25 was recorded earlier. Exs. D-24 and D-25 are in no way relevant for the purpose of deciding the controversy between the parties. The contents of the said cassette do not speak as to the mode of possession taken by the defendant. The oral evidence before the Court discloses that during the telephonic conversation, question of delivery of possession of the suit property was not spoken. It was only referring the fixing up of a date for meeting. If the Commissioner is appointed, it amounts to nothing but forcing a person to submit himself for the test and it is against the constitutional rights, therefore, it should be proved by any other mode than voice testing. The Trial Court found that the Court will not be in a position to ascertain as to whether the voice recorded in the cassette is that of P. W. 2, P. W. 2 is only the witness before the Court and not the party to the suit. It is the well-recognised principle of law that the Court is not bound to call upon the witness to come and get the voice tested before the Court if he is not willing to do so either before the Court or before the Commissioner. If at all two voices alleged to be of the same person is available before the Court for comparison, then it can be proper for the Court to send them for test and to ascertain as to whether the two voices are of the same person or not. D. W. 1 has not stated that p. W. 2 spoke to him over telephone that she was handing over the key of the suit schedule property to him. D. W. 1 has stated that P. W. 2 called him to discuss about the place to handover the possession of the keys of the suit schedule property, but it does not mean that the contents of exs. D-24 and D-25 relates to P. W. 2's acceptance to handover the keys. It may amount to a step towards the meeting between the parties and so far as this aspect is concerned there is evidence in the record.

(3.) TO decide the question at issue, it is not necessary to send the cassette for examination. The Trial Court also relied upon the dictum of this Court in Smt. Ningamma and Another v Chikkaiah and Another, wherein it is held that "no party can be compelled against his volition to undergo such a test under Section 151 of the Civil Procedure Code nor any adverse inference can be drawn against the party refusing to undergo such test. Compelling the party to undergo medinal test against his wish and consent would amount interference with the fundamental right of life and personal liberty enshrined and conferred under Article 21 of the Constitution".