SANJU @ SANJA MALI Vs. STATE OF M.P.

JUDGEMENT

(1.) This petition has been filed by the petitioner under section 482 Cr.P.C seeking quashment of the order dated 26.02.2018 passed by IInd Additional Sessions Judge, Mhow in S.T.No.632/16 allowing the application filed under section 65-B of the Evidence Act. By the impugned order, learned trial Court has allowed the tape recorded conversation to be admitted as evidence even though the application was not accompanied with a contemporaneous certificate.

(2.) As per the prosecution case on 29.03.2016 at about 13.00 hrs., accused driving a dumper No.MP-09-GE-3412 rammed into a Verna car bearing registration No.MP-09-CN- 3767 on Mhow-Indore Road. After hitting the Verna car, the dumper struck two motorcycles which were behind the Verna car resulting in instantaneous death of one of the motorcycle rider viz. Sunil along with injuries caused to other motorcycle borne persons as well as car borne persons. A case under sections 279, 337 & 304-A IPC was registered by Police Station Kishanganj. However, during investigation, a telephonically recorded conversation implicating accused along with other co-conspirators was obtained by the Investigating Officer, as per which there was a conspiracy to eliminate an Advocate viz. Jaisingh, who was traveling in the Verna car and the collision of Verna car with the dumper was pre-planned in order to give effect to the said conspiracy. Thus, there was no rash and negligent act on the part of the driver but a well thought out strategic planning on the part of the driver, who, at the behest of other conspirators, collided his dumper against the Verna car. However, the conspiracy could not succeed as Jaisingh escaped only with injuries but in the process a motorcycle rider lost his life. A charge sheet under sections 301, 302, 307, 120-B, 467 and 468 of the IPC was filed before the committal Court on 20.08.2016. The case was subsequently committed to the Court of Sessions from where it was made over to IInd A.S.J, Mhow. Accordingly, charges were framed under the provisions of the IPC as shown in the charge sheet. On 19.02.2018 during the examination of witness Banesingh, the prosecution sought to exhibit a compact disk (CD) and a pen drive carrying the alleged telephonic conversation between the two persons i.e Heerasingh and Umabai in which Umabai had purportedly unraveled the conspiracy theory to Heerasingh. Witness Banesingh stated that the conversation was recorded in the mobile phone of Heerasingh and Banesingh transferred the conversation in a pen drive as also in a CD and gave the same to the S.P (Rural), Mhow along with a complaint. The Police investigated the matter on the basis of the complaint and filed the charge sheet enhancing the provisions of IPC from that under section 304-A to section 302 IPC along with other provisions of the IPC. An application under section 65-B of the Evidence Act was subsequently filed by the prosecution during recording of evidence of Banesingh seeking to admit the secondary electronic evidence stored in the CD and pen drive accompanied with a certificate, prepared subsequently in order to ensure compliance of directions contained under section 65-B of the Evidence Act. This application was protested against by the accused and the main objection was that the certificate, prepared subsequently, being not contemporaneous in nature, was being presented in contravention of mandatory provisions and on the basis of such certificate the secondary evidence was not liable to be brought on record. However, learned trial Judge by the impugned order set aside the objections and allowed the secondary evidence.

(3.) The petitioner in this petition filed under section 482 Cr.P.C, has challenged the impugned order submitting that the order is in gross violation of the mandatory legal provisions and the learned trial Court has also over looked the guidelines propounded by the M.P. High Court in the case of Shardendu Tiwari vs. Ajay Arjun & others in Election Petiton No.01/2014 dated 17.01.2017 in which it has been specifically laid down that the secondary electronic evidence can be admitted in evidence only if it is accompanied with contemporaneous certificate submitted by a person who had copied the same from primary evidence and prepared the CDs etc. It is, therefore, prayed that the impugned order be set aside under the plenary provisions of section 482 of the Cr.P.C and the so called secondary evidence be not allowed to be brought on record.