The refusal to allow confrontation of a prosecution witness with tape recorded evidence was justified, as the CD was not part of the case diary or recorded during the investigation, and the conversation on the CD was still to be proved.

Om Prakash-VII,J.

Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

2. This application u/s 482 Cr.P.C. has been filed by the applicant with the prayer to quash the impugned order dated 13.4.2016 passed on the application dated 9.3.2016 by the Additional Sessions Judge, Fast Track Court, Room No. 21, Allahabad in Sessions Trial No. 1264 of 2014 (State Vs. Dinesh Singh and others) under Sections 376-D, 323, 504, 506 IPC, Police Station Shankargarh, District Allahabad whereby prayer to confront the prosecution witness with the tape recorded evidence was refused.

3. Submission of the learned counsel for the applicant is that application moved by the applicant before the court below was rejected on insufficient ground. Questions can be put from the witnesses referring to the C.D. Clip. At this stage, learned counsel for the applicant relying upon the law laid down in the case of Shamsher Singh Verma Vs. State of Haryana reported in 2016(1) JIC 399 (Supreme Court) as well as N. Sri Rama Reddy and others Vs. V.V. Giri reported in AIR 1971 Supreme Court 1162 argued that electronic devices can be used as evidence. Thus order passed by the court below is illegal. If the order dated 13.4.2016 is not set aside the applicant would suffer an irreparable loss.

4. Per contra, learned A.G.A. argued that there is no dispute that electronic devices can be admitted in evidence but the court concerned dealing with the matter may accept the evidence sought to be adduced by the applicant at the stage of defence evidence, if it fulfills the requirement of the law. It was next contended that applicant's application was rightly rejected by the court below observing that applicant has opportunity to prove the C.D. clip at the appropriate stage. Since the C.D. disk was not part of the investigation and the witness concerned has clearly denied the conversation said to have been recorded in C.D. concerned, therefore, the prayer made by the applicant is not acceptable.

5. I have considered the rival submissions and have gone through the entire record including the case laws relied upon by the learned counsel for the applicant thoroughly.

6. Admittedly in the present matter at the stage of prosecution evidence during the course of cross-examination, application was moved by the applicant (accused) producing the C.D. in question before the court concerned seeking permission to put questions from the witness relating to the conversation made in the C.D. Objection filed on behalf of the prosecution clearly indicates that witness concerned has denied any such conversation. Trial court rejected the application observing that tape recorded conversation is still to be proved, hence permission could not be granted at this stage, specially when the witness has denied of such conversation. Other grounds in rejecting the application was that C.D. in question was not the part of the case diary nor recorded during investigation hence it could not be used at this stage taking recourse of the provision of Section 145 of the Evidence Act as it is not a previous statement.

7. If the ratio laid down in the cases of Shamsher Singh Verma (supra) and N. Sri Rama Reddy (supra) is taken into consideration in consonance with the stage of the trial, this Court is of the view that no illegality or infirmity is found in the impugned order. C.D. in question was produced before the court below by the applicant (accused) at the time of cross-examination of prosecution witness. Whether it is true version or not is still to be proved. Concerned witness has denied the existence of such conversation said to have been recorded in the C.D. concerned. Apart to this applicant has an opportunity to prove the C.D. at appropriate stage in defence evidence as is clear from chapter XVIII of the Code of Criminal Procedure, under Section 233 Cr.P.C. Thus, finding no illegality or infirmity in the impugned order, no interference is required by this Court.

App