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SC: Compact disc is a document

The Times of India, Nov 25 2015

Dhananjay Mahapatra

For a decade, only prosecution enjoyed the legal privilege

Prosecution has been using electronic evidence to seek conviction of accused for a decade but for the first time, the Supreme Court on Monday permitted an accused to bring on record taped telephonic conversations to prove his innocence in a child sexual abuse case.

The ruling assumes significance as the SC reversed concurrent decisions of a trial court and the Punjab and Haryana high court which had rejected the accused's plea to produce recorded telephonic conversations between his wife and son with the girl's father to drive home that he had been framed because of a lingering property dispute with the girl's family.

The accused had moved the trial court to take on record a compact disc purportedly containing telephonic conversations between Sandeep Verma (the girl's father) and Saurabh (the accused's son) and Meena Kumari (the accused's wife). He had pleaded with the trial court to get its authenticity tested by a forensic laboratory and match it with voice samples taken from the persons featuring in the conversation.

Allowing the appeal by the accused, a bench of justices Dipak Misra and P C Pant said the CD qualified to be treated as a document under the Evidence Act. “On a document filed by the defence, endorsement of admission or denial by the public prosecutor is sufficient and defence will have to prove the docu ment if not admitted by the prosecution,“ it said.

The SC said the accused Shamsher Singh Verma, had claimed during his examin ation that he had been im plicated in the case due to a property dispute.

Though the SC refused to delve into the authenticity o the conversations, it said: “We are of the view that the courts below have erred in law in not allowing the application of the defence to play the com pact disc relating to conversa tion between father of the vic tim and son and wife of the appellant (accused) regarding alleged property dispute.

“In our opinion, the courts below have erred in law in rejecting the application to play the compact disc in question to enable the public prosecutor to admit or deny, and to get it sent to the forensic science laboratory by the defence.“

Writing the judgment for the bench, Justice Pant said, “The appellant is in jail and there appears to be no intention on his part to unnecessarily linger the trial, particularly when the prosecution witnesses have been examined.

“Therefore, without expressing any opinion as to the final merits of the case, this appeal is allowed and the orders passed by the trial court and the HC are set aside. The application (for placing on record the compact disc and getting it examined by forensic laboratory) shall stand allowed. However, it is observed that the accusedappellant shall not be entitled to seek bail on the ground of delay of trial.“

Media interview of witness, admissibility of

‘Nirbhaya accused can use TV interview’

By TIMESNEWSNETWORK, March 8, 2013

The Times of India

New Delhi: The Delhi high court on Thursday allowed the plea of Nirbhaya gangrape accused to use as evidence a CD containing TV interview of the victim’s male friend. Justice G P Mittal allowed the plea of accused Ram Singh and his brother Mukesh and set aside the trial court’s order by which they were not allowed to exhibit the CD as evidence. The trial court had said the CD was not an admissible piece of evidence.

Justice Mittal directed the trial court to “permit the accused to use the CD as evidence”. The accused had challenged the trial court’s order which did not allow them to “exhibit, place on record and to play the impugned CD” on the ground that this was not an admissible piece of evidence.

The high court had reserved its verdict in the case on March 5.

Earlier, Delhi Police had opposed the accused’ plea, saying the media interview of a witness is inadmissible evidence under the law. The police said the CD was prepared in violation of a CrPC provision that restrains media coverage of the trial and inquiry proceedings related to a rape case.

Section 112

Conflict between a conclusive proof envisaged under law and based on scientific advancement

Science beats law, leaves young girl without ‘father’

Dhananjay Mahapatra TNN

The Times of India

New Delhi: A 30-year-old scientific advancement clashed with and trumped the colonial era Indian Evidence Act which had held sway in the Indian judiciary for 142 years.

Nandlal was married to Lata in 1990. Husband claimed they were living separately since 1991. Wife claimed she had been living intermittently with the husband. Lata gave birth to a girl child in 1996 when their marriage was subsisting, even though they were estranged. Wife sought maintenance for her and daughter. The husband claimed since they were living separately since 1991, he could not have fathered the child. Lata claimed maintenance, only to be rebuffed by Nandlal, who insisted that he was not her father.

The wife moved a Maharashtra court, which ordered Nandlal to pay Rs 1400 — Rs 900 for the wife and Rs 500 for the child — on the basis of Section 112 of Evidence Act, which said any child born during the subsistence of a marriage would be presumed to be the legitimate offspring of the couple as long as the husband had access to the wife. The dispute reached the SC after the Bombay HC rejected Nandlal’s appeal.

The SC ordered a DNA test as desired by the man and after approval from the wife. The first test said the man was not the father, but the wife doubted it and requested a repeat test, which also threw up the same result.

This posed a legal dilemma for a bench comprising Justices CK Prasad and JS Khehar. But they overcame the conflict between science and law and the judgment said: “While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof.” The court was agonized but stayed firm on the side of “truth”. It said: “When there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.”

As a result of this ruling, DNA test to ascertain parenthood of children born out of subsisting marriages would now become a judicially acceptable exercise.

Document

WhatsApp post is not document or evidence: HC

Aamir Khan2|WhatsApp forward is not evidence: Court|Jul 18 2017 : The Times of India (Delhi)

Says It's Mandatory To Produce Original Document Under Law; Slams Petitioners For Not Verifying Facts Any document shared on WhatsApp does not qualify as evidence unless the original is produced, the Delhi high court said. Justice Sanjeev Sachdeva made this observation while hearing a petition, which sought directions to three states, including Arunachal Pradesh, their police and CBI for registering an FIR in connection with an alleged suicide note of former chief minister Kalikho Pul. Pul was found dead at the CM's official residence in Itanagar on August 9 last year. The court enquired with the petitioners about their source of the information.The petitioners-National Lawyers Campaign For Judicial Transparency and others-said they had obtained the information from a WhatsApp post.

The court then pointed out, “Neither the name of the sender of the alleged WhatsApp post was stated, nor was it stated as to which of the petitioners received the WhatsApp post...The petition, making very serious allegations, has been filed merely based on a post allegedly circulated on a WhatsApp group.“ The post, which the peti tion claimed to be a suicide note, is the English translation of a document written in Hindi. The petitioners also contended that the document had been sourced from a website where it was mentioned that the suicide note had been translated from Hindi to English.

However, none of the petitioners had seen or were pri vy to the original note, the court noted. “In the present case, the petitioners, very candidly admit that they are not privy to any information.What they believe to be infor mation is a post circulated on WhatsApp platform or an alleged translation on a website. The alleged information is not claimed to be true to their knowledge,“ it observed.

In court's perspective, the petition nowhere showed how the petitioners formed a “reasonable belief“ that the alleged post or the translation could be true or had any basis.

It also noted that none of the petitioners were in a position to affirm the facts of the petition except submitting that a WhatsApp post was the basis of the petition. “The writ petition has been filed making wild allegations,“ re marked the court.

For the court, the WhatsApp post did not even qualify as a document under the Evidence Act, 1872. “Over one-and-a-half hours of judicial time of this court has been spent in hearing arguments and disposal of the petition. Since the petitioners have admittedly filed the petition without verifying or affirming any fact and without formation of even a belief that what is stated in the petition has any iota of truth behind it, the writ petition is dismissed with costs of Rs 25,000 on each of the petitioners.“