HARDAYAL SINGH Vs. RANBIR SINGH

JUDGEMENT

(1.) The petitioners have filed the present under Sec. 482 Cr.P.C. with a prayer to quash the order dtd. 21/3/2023 (Annexure P-1), passed by the Court of Chief Judicial Magistrate, Yamuna Nagar at Jagadhri, whereby the Court had allowed 'playing of audio recording/compact disc (CD) in the Court', while allowing the application filed by the complainant under Sec. 294 Cr.P.C., despite the fact that the said audio recording/CD had been played and exhibited as Ex.CW3/A and pre-charge evidence of the complainant/respondent had been closed on 15/2/2023, in the Criminal Complaint No.3 of 2016, titled "Ranbir Singh Vs. Hardayal Singh and others" under Ss. 148, 149, 201, 365, 302 and 120-B IPC and Sec. 3 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1969 (Annexure P-5).

(2.) Learned senior counsel appearing on behalf of the petitioners has vehemently argued that on 4/11/2005, Anoop Singh was murdered by respondent/complainant and others. Consequently, FIR number 127, dtd. 4/11/2005 under Ss. 302, 307, 148, 149, 216 IPC and Ss. 25 and 27 of the Arms Act, 1959, was ordered to be registered at Police Station Garhi District Jind. Ultimately, the respondent/complainant and others were convicted and sentenced by the Court of Additional Sessions Judge, Jind, vide judgement of conviction and order of sentence dtd. 5/2/2008/11/2/2008 (Annexure P-3). In order to ensure that the petitioners and family members of Anoop Singh do not pursue the case against the respondent, the respondent coined a story that Bhup Singh, who was already declared a proclaimed offender (P.O.), in FIR number 127 of 2005, had been kidnapped on 10/5/2006, from Yamuna Nagar and was murdered by petitioners and few others. Later, by exerting his influence, the respondent managed to get one FIR number 280, dtd. 14/5/2014, under Sec. 365 IPC, Police Station City Yamuna Nagar, registered against the petitioners and others. The petitioners and others were directed to undergo polygraph test, however, during the test, it was found that they had no connection or involvement with the alleged kidnapping/murder of Bhoop Singh and a detailed test report (Annexure P-5) was prepared in this regard. Ultimately, the respondent filed Criminal Complaint No.3 of 2016, title is "Ranbir Singh versus Hardyal Singh and others, under Ss. 148,149, 201, 365, 302 and 120-B IPC and Sec. 3 of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1969 (Annexure P6), before the Court of Chief Judicial Magistrate, Yamuna Nagar. Thereafter, the prosecution examined five witnesses namely Khazani Devi - CW1, Rajender - CW2, Randhir - CW3, Mange Ram - CW4 and Ranbir Singh - CW5. During the recording of preliminary evidence, CW2 Rajender stated that a Panchayat was held on 21/12/2014 between the parties to settle the dispute between them and he had recorded a conversation, which took place in the Panchayat. In the said conversation, the petitioners had allegedly admitted having committed the murder of Bhoop Singh and the recording and transcript of said conversation were exhibited as Ex.C6 and Ex.C7. Further, the petitioners and others were ordered to be summoned to face trial for commission of the offences punishable under Ss. 148, 149, 365 read with Sec. 120B IPC, vide order dtd. 12/10/2017 (Annexure P-8). Again, in pre-charge evidence, Rajender appeared as CW3 and he again sought to prove the CD of audio recording and its transcript, which were exhibited as Ex.CW3/A (objected to on the mode of proof) and Ex. CW3/B, accompanied by certificate under Sec. 65B of Evidence Act, 1872 (Ex.CW3/C). For the purpose of proving the audio recording/exhibiting the CD, it was played in the Court. Thereafter, the said witness was cross-examined, wherein he admitted that he had lost the phone along with the memory card on which the recording was originally done. He admitted that neither he had prepared the CD himself, nor the same was prepared on a device directly under his control. Rather this CD was got prepared from a typist having a computer, who sits in Court premises at Jind. Learned counsel for the petitioner further argued that in order to cover-up the shortcomings in the evidence, the respondent moved an application under Sec. 294 Cr.P.C, accompanied by CD containing recording, transcript of CD and 65B Evidence Act certificate, seeking directions to play the CD in the Court and for asking the petitioners to admit or deny the voice recording on the CD. Learned senior counsel further submitted that in the present case, even pre-charge evidence has already been closed and at this stage, there is no need to allow the application under Sec. 294 Cr.PC. Learned counsel further submits that Rajender appeared as CW2 in preliminary evidence and CW3 in pre-charge evidence and the audio recording was played in the Court and the CD containing audio recording and its transcript were exhibited before the Court. Consequently, granting permission to play the CD amounts to not only revisiting the evidence, but also amounts to reviewing the proceedings which had already taken place in the Court. Moreover, during the course of precharge evidence, the petitioners have already heard the CD and denied the voice therein to be theirs. Consequently, there was no question of putting the same material to the accused under Sec. 294 Cr.P.C. for admission and denial. Learned senior counsel further submits that the main objective of incorporating the provisions of Sec. 294 Cr.P.C., was to accelerate the pace of trial by avoiding the time being wasted by the parties in recording the unnecessary evidence. Still further, even the audio recording could not be relied upon by the respondents, as the same was not accompanied by a valid certificate under Sec. 65B of the Evidence Act.

(3.) On the other hand, learned counsel appearing on behalf of the respondent submits that the respondent had moved the present application under Sec. 294 Cr.P.C. as the accused in the conversation had admitted the commission of offence by them and the said conversation was recorded in a phone and was copied to a compact disk. Even the compact disc was accompanied by a certificate under Sec. 65B of the Evidence Act and was a material piece of evidence. Even the accused would not suffer any prejudice in case the audio contained in CD is played in the Court proceedings in the presence of the accused and their counsel for the purpose of admission and denial.