THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU
CRIMINAL REVISION CASE NO.1219 OF 2010
27-07-2010
Y. Ranganadh Goud
State rep. By the Public Prosecutor, High Court of AP., Hyderabad.
Counsel for the Petitioner : Sri C. Mastan Naidu
Counsel for the Respondent: Public Prosecutor
:ORDER:
1. The revision petitioner/A-1 is accused of offences punishable under
Sections 417, 420, 376 and 506 IPC in Crime No.122 of 2009 of Ponnur Town
Police Station. The Sub Divisional Police Officer, Bapatla filed petition
Criminal M.P.No.3250 of 2010 before the Additional Judicial Magistrate of the
First Class, Ponnur under Section 173 Cr.P.C requesting the court to record
original voice of the petitioner/A-1 and the victim before the court for
forwarding the same to Andhra Pradesh Forensic Science Laboratory, Hyderabad for
comparison with a Compact Disc (CD) allegedly containing voices/conversations
of A-1 and the victim recorded by cell phone. This petition was opposed by A-1.
The lower court by the impugned order dated 24.06.2010 allowed the petition
permitting to record original voices of A-1 and the victim in open court and
fixed a date. As against the said order, A-1 filed the present revision
petition.
2. Main contention put forward by the petitioner's counsel in this revision
petition is that directing A-1 to give sample voice for the purpose of
comparison of the same with his alleged voice contained in a C.D, offends A-1's
fundamental right under Article 20(3) of the Constitution of India and that
therefore, the lower court should not have passed the impugned order. The
petitioner's counsel placed reliance on Vinod Kumar v. The State1 of the Delhi
High Court and H. Chandrashekhar v. Shafiq Ali Khan2 of the Karnataka High Court
in this regard. In the former decision, the Delhi High Court held that there
is nothing in the Evidence Act which even remotely suggests that the court has
power to call upon a prosecution witness to get his sample voice recorded for
comparison with his disputed tape recorded voices and that neither Section 73 of
the Evidence Act provides for recording of sample voice for comparison nor under
Section 45 of the said Act, evidence of an expert on comparison of sample voice
with disputed one has been made admissible. The Delhi High Court further held
that even the High Court in exercise of inherent power under Section 482 Cr.P.C
cannot direct the trial court to do so. In the latter decision, the Karnataka
High Court held that no person can be compelled to give his voice to be tested
in comparison of voice already recorded, following the view taken by the Delhi
High Court.
3. The petitioner's counsel also placed reliance on State v. Taylor3 wherein
it was held that to compel a suspect while in custody and prior to his trial,
to speak the very words a witness heard the offender speaking at the time of the
offence, so as to enable the witness to compare the voice of the suspect with
that of the offender and thereby, if possible, to identify the suspect, as being
the offender, and to admit in evidence at his trial on identification, is
violative of his privilege against of 'self-incrimination'.
4. On the other hand, it is contended by the Additional Public Prosecutor
that in case, the petitioner/A-1 is not willing to give his sample voice for the
purpose of comparison with voice contained in the C.D, then he may be permitted
to do so subject to the lower court drawing adverse inference on his refusal to
give his sample voice. The petitioner's counsel contended that such drawing
of adverse inference in criminal law is not permissible. The Additional Public
Prosecutor further contended that recording sample voice of the accused in
court, does not violate Article 20(3) of the Constitution of India.
5. State of Bombay v. Kathi Kalu Oghad4 rendered by a Bench consisting of 11
Judges of the Supreme Court has been the leading case on Article 20(3) of the
Constitution of India. While upholding obtaining of specimen finger
impressions and specimen handwritings from the accused person vis--vis Article
20(3) of the Constitution of India, the Supreme Court observed therein:
"It is well established that cl. (3) of Art. 20 is directed against self-
incrimination by an accused person. Self-incrimination must mean conveying
information based upon the personal knowledge of the person giving the
information and cannot include merely the mechanical process of producing
documents in court which may throw a light on any of the points in controversy,
but which do not contain any statement of the accused based on his personal
knowledge. For example, the accused person may be in possession of a document
which is in his writing or which contains his signature or his thumb impression.
The production of such a document, with a view to comparison of the writing or
the signature or the impression, is not the statement of an accused person,
which can be said to be of the nature of a personal testimony. When an accused
person is called upon by the Court or any other authority holding an
investigation to give his finger impression or signature or a specimen of his
handwriting, he is not giving any testimony of the nature of a 'personal
testimony. ' The giving of a 'personal testimony' must depend upon his volition.
He can make any kind of statement or ay refuse to make any statement. But his
finger impressions or his handwriting, in spite of efforts at concealing the
true nature of it by dissimulation cannot change their intrinsic character.
Thus, the giving of finger impressions or of specimen writing or of signatures
by an accused person, though it may amount to furnishing evidence in the larger
sense, is not included within the expression 'to be a witness. '
In order that a testimony by an accused person may be said to have been self-
incriminatory, the compulsion of which comes within the prohibition of the
constitutional provision, it must be of such a character that by itself it
should have the tendency of incriminating the accused, if not also of actually
doing so. In other words, it should be a statement which makes the case against
the accused person at least probable, considered by itself. A specimen
handwriting or signature or finger impressions by themselves are no testimony at
all, being wholly innocuous because they are unchangeable except in rare cases
where the ridges of the fingers or the style of writing have been tampered with.
They are only materials for comparison in order to lend assurance to the Court
that its inference based on other pieces of evidence is reliable. They are
neither oral nor documentary evidence but belong to the third category of
material evidence which is outside the limit of 'testimony. '"
6. In Selvi v. State of Karnataka5 the Supreme Court made a distinction
between such materials which are likely to lead to incrimination by themselves
and those materials which furnish a link in the chain of evidence which could
lead into the same result; and held that reliance on contents of compelled
testimony comes within the prohibition of Article 20(3) of the Constitution of
India but it is not barred for the purpose of identification or corroboration
with the facts already noted by the investigators. The Supreme Court observed:
"136. Since the majority decision in Kathi Kalu Oghad (4 supra) is the
controlling precedent, it will be useful to re-state the two main premises for
understanding the scope of 'testimonial compulsion'. The first is that
ordinarily it is the oral or written statements which convey the personal
knowledge of a person in respect of relevant facts that amount to 'personal
testimony' thereby coming within the prohibition contemplated by Article 20(3).
In most cases, such 'personal testimony' can be readily distinguished from
material evidence such as bodily substances and other physical objects. The
second premise is that in some cases, oral or written statements can be relied
upon but only for the purpose of identification or comparison with facts and
materials that are already in the possession of the investigators. The bar of
Article 20(3) can be invoked when the statements are likely to lead to
incrimination by themselves or 'furnish a link in the chain of evidence' needed
to do so. We must emphasize that a situation where a testimonial response is
used for comparison with facts already known to investigators is inherently
different from a situation where a testimonial response helps the investigators
to subsequently discover fresh facts or materials that could be relevant to the
ongoing investigation.
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However, the compulsory extraction of material (or physical) evidence lies
outside the protective scope of Article 20(3). Furthermore, even testimony in
oral or written form can be required under compulsion if it is to be used for
the purpose of identification or comparison with materials and information that
is already in the possession of investigators."
7. If the facts in the present case are examined in the light of the above
pronouncements of the Apex Court, it is evident that the Sub Divisional Police
Officer, Bapatla is already in possession of a CD containing voices or
conversation said to be between A-1 and the victim woman; and the investigating
officer wanted sample voice of A-1 and the victim to be recorded in court for
the purpose of making comparison of voices contained in the CD with the sample
voices recorded in open court. This exercise of recording of sample voices of
A-1 and the victim in open court is not going to incriminate A-1 on the basis of
such sample voice, but only facilitates the investigating officer and the court
to identify voice contained in the CD which is already in possession of the
investigating officer. By any stretch of imagination, the exercise of recording
sample voice of A-1 for the purpose of identifying the male voice already
contained in CD which is collected by the investigating officer during
investigation, cannot amount to testimonial compulsion which is prohibited under
Article 20(3) of the Constitution of India.
8. This is not the stage to consider about relevancy or admissibility or
evidentiary value of the talk contained in the CD and the expert's opinion on
comparison of that talk contained in the CD with sample voices to be recorded in
the lower court. Those contentions are left open to be decided by the trial
court during recording of evidence and during final disposal of the case after
trial in case the police are going to file charge sheet. Since this Court
found that the proposed exercise of recording sample voices of the petitioner/A-
1 and the victim is not offended by Article 20(3) of the Constitution of India,
the lower court is at liberty to proceed towards that exercise.
9. In the result, the criminal revision petition is dismissed.
?1 1981 CRI.L.J.927
2 2001(1) CCC 453
3 213 SCt 330:49 SE 2nd 289
4 1962 (3) SCR 10
5 2010 AIR SCW 3011
advocatemmmohan
- advocatemmmohan
- since 1985 practicing as advocate in both civil & criminal laws
