1

Reserved on : 07.06.2024
Pronounced on : 25.06.2024
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 25TH DAY OF JUNE, 2024

BEFORE

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

CRIMINAL PETITION No.12056 OF 2022

BETWEEN:

MR. ARAVINDA
S/O CHANDRASHEKAR REDDY
AGED ABOUT 26 YEARS
AURURU VILLAGE, CHIKKABALLAPURA TQ.,
CHIKKABALLAPURA
PIN – 560 101
(ACCUSED IS IN JUDICIAL CUSTODY)

... PETITIONER
(BY SRI K.B.K.SWAMY, ADVOCATE)

AND:

1 . STATE OF KARNATAKA THROUGH

GUDIBANDE POLICE STATION
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU – 560 010.

2 . SMT. MANJULAMMA
W/O A.C.RAMANJINEYA
AGED ABOUT 45 YEARS
 2

R/O AVALNAGENAHALLI VILLAGE

CHIKKABALLAPURA TALUK
PIN – 560 101.
... RESPONDENTS

(BY SRI THEJESH P., HCGP FOR R-1;

SRI S.R.SREEPRASAD, ADVOCATE FOR R-2)

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF

CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 02.12.2022 IN
SPL.S.C.NO.46/2021 PENDING ON THE FILE OF THE 1st
ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA
REGISTERED FOR THE OFFENCE P/U/S.3(1)(r), 3(1)(s), 3(1)(w),
3(2)(va) AND 3(2)(v) OF SC/ST (POA) 2015 AND SEC.143, 147,
148, 149, 447, 302, 307, 324, 114, 109, 120-B OF IPC.

THIS CRIMINAL PETITION HAVING BEEN HEARD AND

RESERVED FOR ORDERS ON 07.06.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-

ORDER

The petitioner/accused No.3 is knocking at the doors this

Court calling in question an order dated 02-12-2022 passed by the

1st Additional District and Sessions Judge, Chikkaballapur in

Spl.S.C.No.46 of 2021 arising out of crime in Crime No.43 of 2021

registered for offences punishable under Sections 114, 143, 147,

148, 149, 302, 307, 324, 447, 109 and 120B of the IPC and Section

3(1)(r), 3(1)(s), 3(1)(w), 3(2)(v), 3(2)(va) of the SC & ST

 3

(Prevention of Atrocities) Amendment Act, 2015 (‘the Act’ for

short).

2. Heard Sri K.B.K. Swamy, learned counsel for the petitioner,

Sri P. Thejesh, learned High Court Government Pleader for

respondent No.1 and Sri S.R. Sreeprasad, learned counsel

appearing for respondent No.2.

3. The facts, in brief, germane are as follows:-

A complaint comes to be registered on 22-03-2021 by the 2nd

respondent/complainant alleging that she was a grantee of 2 acres

15 guntas of land in Sy.No.280 of Avalnagenahalli Village,

Chikkaballapura Taluk and the adjoining area of 3 acres on the

eastern side is said to be reserved for a graveyard. It is the

allegation that the present petitioner has encroached upon the

portion of the said grave yard and has fenced the same which is

objected to by the husband of the complainant. In this regard a civil

suit comes to be filed by the sons of one Girgi Venkata Reddy in

O.S.No.6 of 2011 and the said suit is pending consideration. On

 4

22-03-2021 at about 5.30 p.m. there appears to be an assault by

several persons upon the husband of the complainant who

succumbed to the injuries. This forms the fulcrum of crime including

murder and attempt to murder with all other allegations, as well as

offences punishable under the Act.

4. The Police conduct investigation and file a charge against

11 persons and dropped 3 persons from the array of accused, on

the score that their presence in the scene of crime was not proved.

The trial then commenced. The prosecution examined CW-1 to CW-

7 as PW-1 to PW-7. The de-facto complainant was also examined as

PW-1 and about 15 documents were marked as Exs.P1 to P15.

PW-1 was subjected to cross-examination by the accused. During

the course of cross-examination, accused No.3, the present

petitioner places a request to the concerned Court to permit him to

confront PW-1 by playing a video footage. Accordingly a certificate

under Section 65B of the Evidence Act was also submitted to the

Court with regard to the genuinity of the video footage. It is the

case of the petitioner that the prosecution had drawn up the charge

that the injured was brought to the hospital from the scene of crime
 5

on 22-03-2021. The contention of the prosecution is that the

husband of the complainant was brought dead to the hospital. The

video footage, according to the petitioner, had something different

which would completely demolish the case of the prosecution, as he

was not brought dead. It is the further case of the petitioner that

certain statements in the presence of the Police Officers were

recorded by the media who were present there, to cover the news

of the alleged incident. The aforesaid video containing the

statement of the injured was widely circulated in various social

media platforms including whatsapp. In that background the

accused intended to confront the injured witness PW-1 by playing

the said video footage. It is, therefore, the request was placed

before the concerned Court. That having been turned down is what

has driven the petitioner to this Ccourt in the subject petition.

5. The learned counsel appearing for the petitioner

Sri K.B.K.Swamy would vehemently contend that in a criminal trial

the accused must be provided all opportunity to defend his case. It

is his case that complete set of Call Detail Records (CDR) which was

filed with the supplementary charge sheet is not provided to the

 6

accused in its entirety and the examination of the video footage in

confrontation with PW-1 would demolish the case of the prosecution

in its entirety. It is trial for murder or attempt to murder as the

case would be, and since the offence is punishable with 10 years

and beyond, the Court ought to have permitted confrontation of

video footage.

6. Per-contra, the learned counsel appearing for the 2nd

respondent/complainant would vehemently refute the submissions

to contend that some statements given by the persons around the

scene of crime to the media cannot mean that they would become

prior statements of any of the witnesses. Therefore, those

statements cannot be made use of by the accused to confront the

prosecution witness. Only those prior statements and the statement

of witnesses appended to the charge sheet or the supplementary

charge sheet would be made available to the accused. He would

seek dismissal of the petition by placing reliance upon judgment of

 7

the Apex Court in the case of STATE (NCT OF DELHI) v.

MUKESH1.

7. In reply to the said contentions, the learned counsel for the

petitioner submits that the aforesaid judgment is inapplicable to the

facts of the case. It is his case that it was not a prior statement, as

the statement had been made by a witness in a television interview

after filing of the charge sheet. In the case at hand, it is in the

scene of crime certain statements are made. He would seek to

place reliance upon judgments of the Apex Court and that of High

Court of Rajasthan in the cases of (i) SHAMSHER SINGH VERMA

v. STATE OF HARYANA2, (ii) R.M. MALKANI v. STATE OF

MAHARASHTRA3 and (iii) INDER CHAND v. STATE OF

RAJASTHAN4.

8. I have given my anxious consideration to the submissions

made by the respective learned counsel and have perused the

material on record.

1
(2014) 15 SCC 661
2
(2016) 15 SCC 485
3
(1973) 1 SCC 471
4
1994 SCC OnLine Raj 298
 8

9. The afore-narrated facts are not in dispute. The

petitioner/accused No.3 getting embroiled in the above said

proceedings is again a matter of record. What has driven the

petitioner to this Court, in the subject petition, is an order passed

by the learned Special Judge on 02-12-2022. Since the order has

generated the present lis, I deem it appropriate to notice it. It

reads as follows:-

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(Emphasis added)

The order is passed rejecting the application of the petitioner to

play the video footage on the ground that it would not amount to a

previous statement. This rejection is now claimed to be contrary to

law. What is necessary to be filed along with the electronic evidence

under Section 65B of the Evidence Act is an affidavit and that is

 11

complied with. What the petitioner is asking to be produced is a

video footage of injured arriving at the Government hospital where

both the media and Police Officers were present and certain

questions were asked and those questions that were asked were

circulated everywhere. It is that video footage that the petitioner is

asking to be played for being confronted to the witness PW-1. Since

it was involving PWs-2 to 4 who gave their statements in the

premises of Government hospital, Chikkaballapur may be to the

media, that would somewhat bordering upon a previous statement.

Therefore, if the order that is passed that it is not a previous

statement and only previous statements should be permitted, runs

counter to the spirit of criminal trial. It is trite that any trial is a

journey towards discovery of truth. Truth by all means should be

permitted to be discovered.

10. It becomes apposite to refer to the judgments relied on

by the learned counsel for the petitioner rendered by the Apex

Court and that of the High Court of Rajasthan in somewhat similar

circumstances. In SHAMSHER SINGH VERMA’s case (supra) the

Apex Court has held as follows:

 12

“…. …. ….

16. We are not inclined to go into the truthfulness of the

conversation sought to be proved by the defence but, in the
facts and circumstances of the case, as discussed above, we are
of the view that the courts below have erred in law in not
allowing the application of the defence to get played the
compact disc relating to conversation between father of the
victim and son and wife of the appellant 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. 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.”

(Emphasis supplied)

The Apex Court in the case of R.M.MALKANI (supra) has

held as follows:

“…. …. ….

22. In Presidential Election case, questions were put to a

witness Jagat Narain that he had tried to dissuade the petitioner
from filing an election petition. The witness denied those
suggestions. The election petitioner had recorded on tape the
conversation that had taken place between the witness and the
petitioner. Objection was taken to admissibility of tape recorded
conversation. The Court admitted the tape recorded
conversation. In Presidential Election case, the denial of the
witness was being controverted, challenged and confronted with
his earlier statement. Under Section 146 of the Evidence Act
questions might be put to the witness to test the veracity of the
witness. Again under Section 153 of the Evidence Act a witness
might be contradicted when he denied any question tending to
impeach his impartiality. This is because the previous
statement is furnished by the tape recorded conversation.
 13

The tape itself becomes the primary and direct evidence

of what has been said and recorded.

23. Tape recorded conversation is admissible

provided first the conversation is relevant to the matters
in issue; secondly, there is identification of the voice;
and, thirdly, the accuracy of the tape recorded
conversation is proved by eliminating the possibility of
erasing the tape record. A contemporaneous tape record
of a relevant conversation is a relevant fact and is
admissible under Section 8 of the Evidence Act. It is res
gestae. It is also comparable to a photograph of a relevant
incident. The tape recorded conversation is therefore a relevant
fact and is admissible under Section 7 of the Evidence Act. The
conversation between Dr Motwani and the appellant in the
present case is relevant to the matter in issue. There is no
dispute about the identification of the voices. There is no
controversy about any portion of the conversation being erased
or mutilated. The appellant was given full opportunity to test the
genuineness of the tape recorded conversation. The tape
recorded conversation is admissible in evidence.”

(Emphasis supplied)

The Apex Court holds that a tape recorded conversation is

admissible, provided the conversation is relevant to the matter in

issue. The learned single Judge of the High Court of Rajasthan in

the case of INDER CHAND (supra) while dealing with the same

issue following the judgment in R.M. MALKANI of the Apex Court

has held as follows:

“…. …. ….

11. In my humble opinion, a tape-record of a

relevant conversation is a relevant fact and is admissible
under Sec. 7 of the Evidence Act. The manner and mode
 14

of its proof and the use thereof in a trial is a matter of

detail and it can be used for the purpose of confronting a
witness with his earlier tape recorded statements. It may
also be legitimately used for the purpose of shaking the
credit of a witness. In the present case, when PW 5
Chhaganlal refused to hear his previous tape recorded
statement, learned Additional Sessions Judge ought to
have allowed the defence counsel to put question and in
case, he admits after hearing the tape-recorded
conversation then he ought to have allowed the defence
counsel to confront PW 5 Chhaganlal with his earlier tape
recorded conversation. In case, he refused to hear the tape-
recorded conversation then learned Additional Sessions Judge
ought to have taken the step for identification of the tape voice
of PW 5 Chhaganlal, inasmuch as, when the voice is denied by
the alleged maker i.e. PW 5 Chhaganlal, a comparison of his
voice becomes inevitable and proper identification of his voice
must be proved by a competent expert witness.”

(Emphasis supplied)

The High Court of Rajasthan holds, a tape recorded conversation is

a relevant fact and should be made admissible. The manner and its

mode of its proof is a matter of evidence in the trial. Mere

production of any electronic evidence would not amount to its proof

which has to be nonetheless proved after its production.

11. In the light of the judgments quoted supra, as also the

unequivocal fact that PW-2 to PW-4 were examined and they had

given statements which are important to the case of the petitioner,

the said electronic statement on the pretext of it not being a

 15

previous statement, in the considered view of the Court, cannot be

denied. Acceptance or otherwise, proving or otherwise is a matter

of evidence. Withholding of evidence in defence would undoubtedly

defeat the voyage towards discovery of truth in a criminal trial.

12. The learned counsel for the 2nd respondent/complainant

has placed heavy reliance upon the judgment in the case of

MUKESH (supra). The Apex Court in the said judgment has held as

follows:

“…. …. ….

10. Having carefully considered the submissions made on

behalf of the respective parties, we are inclined to hold that,
from the scheme of the Code of Criminal Procedure and the
Evidence Act, it appears that the investigation and the materials
collected by the prosecution prior to the filing of the charge-
sheet under Section 161 of the Code, are material for the
purposes of Section 145 of the Evidence Act, 1872. The
expression “previous statements made” used in Section 145 of
the Evidence Act, cannot, in our view, be extended to include
statements made by a witness, after the filing of the charge-
sheet. In our view, Section 146 of the Evidence Act also does
not contemplate such a situation and the intention behind the
provisions of Section 146 appears to be to confront a witness
with other questions, which are of general nature, which could
shake his credibility and also be used to test his veracity. The
aforesaid expression must, therefore, be confined to statements
made by a witness before the police during investigation and not
thereafter.
 16

11. Coupled with the above is the fact that the statement
made is not a statement before the police authorities, as
contemplated under Section 161 of the Code. It is not that
electronic evidence may not be admitted by way of evidence
since specific provision has been made for the same under
Section 161 of the Code, as amended, but the question is
whether the same can be used, as indicated in Section 161, for
the purposes of the investigation. If one were to read the
proviso to sub-section (3) of Section 161 of the Code, which was
inserted with effect from 31-12-2009, it will be clear that the
statements made to the police officer under Section 161 of the
Code may also be recorded by audio-video electronic means,
but the same does not indicate a statement made before any
other authority, which can be used for the purposes of Section
145 of the Evidence Act.”

In the case before the Apex Court the previous statement was one

that was projected to be a television interview by one of the

witnesses long after filing of the charge sheet. Therefore, it would

not amount to a previous statement. What the petitioner in the

case at hand is asking is not a statement made after filing of the

charge sheet or the supplementary charge sheet. What he is asking

is a statement on the day of the crime; the statement given to the

press in the presence of Police. Therefore, the said judgment is

distinguishable, on the facts obtaining in the case at hand, without

much ado.
 17

13. It is a settled principle that every criminal trial is a

journey or a voyage towards discovery of truth, as conviction alone

is not the object of criminal trial. It is to reach to the truth and it is

its object. It is an undeniable fact that a fair investigation followed

by a fair trial is the very heart and soul of Article 21 of the

Constitution of India, a right to life. It is also not the duty of the

prosecution to merely secure conviction of the accused at all costs.

Certain facts, documents or evidence may not be produced by the

prosecution and placed along with the charge sheet or a

supplementary charge sheet. But, there would be certain evidence

that would become necessary for the defence to prove its

innocence. This is one such case. Therefore, the order of the

concerned Court holding that it would not be a previous statement

and the DVD/DVR/video footage cannot be permitted to be played,

is rendered unsustainable. If it leads to discovery of truth and the

discovery of truth leads to innocence of the accused, it should be

permitted to come on record.

 18

14. For the aforesaid reasons, the following:

ORDER

(i) Criminal Petition is allowed.

(ii) The order dated 02-12-2022 passed by the 1st

Additional District and Sessions Judge at Chikkaballapur
in Spl.S.C.No.46 of 2021 is set aside.

(iii) The 1st Additional District and Sessions Judge,

Chikkaballapur is directed to permit playing of the video
footage for confrontation to the witness in accordance
with law, after all necessary parameters in law being
followed. This by no means would be a ruse to the
accused to drag on the proceedings. The examination
and cross-examination on the basis of the video footage
should be completed on a solitary day that the
concerned Court would fix.

Sd/-
JUDGE

bkp
CT:MJ