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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 2809/2010
th
% Judgment delivered on: 5 March, 2012
STATE(GOVT. OF NCT OF DELHI) ..... Petitioner
Through: Mr. S.K. Saxena, Spl. PP
Versus
SANDEEP TYAGI & ANR. ..... Respondents
Through : Mr. K.K. Manan, Mr. Nipun Bhardwaj
and Mr. Vishal Sangwan, Advs.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. The instant petition is being filed while assailing the order dated
24.05.2010, whereby the learned Trial Judge dismissed the application
of the State filed under Section 138 of the Evidence Act for re-
examination of the two witnesses.
2. Ld. Spl. Public Prosecutor appearing on behalf of the
petitioner/State submits that after the dismissal of the aforesaid
application, a petition under Section 408 of the Cr.PC was filed before
the District Judge, Tis Hazari Courts, Delhi for transferring the trial of
the case from the Court of A.S.J., Dwarka, New Delhi to any other
Sessions Court, and the same was allowed.
3. Vide the aforesaid application filed by the State under Section
138 of the Evidence Act, it is stated that PW-14 has produced the mini
digital video cassettes and two CDs before the IO, who after preparing
Crl.M.C.No2809/2010 Page 1 of 4
the transcripts, seized the same. The fact regarding the handing over of
the two copies of the CDs is also required to be asked from him.
4. It is further stated that PW-15 Sushil Kumar recorded the
conversations between the kidnapers and the family members of the
deceased in a mobile phone. The said instrument along with the
memory card and charger were seized by the police on 24.10.2008.
The witness during the course of examinations in the Court stated that
he can identify the voice of the kidnaper and the family members of the
deceased, if the memory card is allowed to be played. The memory
card through the instrument in question could not be played, as
according to this witness the lock has become loose and could be
played by putting a chip/sim-card in the same.
5. I note vide order dated 30.03.2010, the ld. Trial Court has
recorded that the prosecution has relied upon a memory card but copy
of the same has not been supplied to the accused persons. Eeven
ld.Special PP submitted that it may be that the transcript filed is not a
complete transcript. As such the said memory card is opened in the
court sealed with the seal of CFSL and IO was directed that a CD of
the same be prepared and handed over to the counsels for accused
persons.
6. By the impugned order it is also recorded that no such
application in respect of Sonu was moved on the date, the witness was
cross-examined. Therefore, learned Judge was of the opinion that the
application in respect of PW-14 Sonu, not maintainable.
7. Even otherwise so far as Sonu is concerned, he stated that he had
seen the face of accused Sandeep Tyagi only after recording and he has
Crl.M.C.No2809/2010 Page 2 of 4
not deposed about the contents of the CD. Also has specifically stated
that he can tell about the contents only after the video is played.
8. It is also recorded by the ld. Trial Court that so far as PW-15 is
concerned, entire examination in chief of his identification of voice etc.
and the recordings have been confronted from his statement
Ex. PW15/DA, where it is simply stated that he had recorded the
voices without reference to the kidnappers or the nature of voice or to
the contents stated that the mobile and the charger were handed over to
the Police.
9. It is further recorded that nothing beyond has been stated by him
in his statement under Section 161 Cr.PC. It is thus clear that the
statement of others is being tried to be put through this witness after
the witness is tutored on those aspects and the re-examination is sought
to play the same, is basically a review in the shape of re-examination,
as the witness after wasting about one hour of the court was not been
able to play the mobile or the memory card, at all, which was seized by
the police.
10. As submitted by ld. Special Public Prosecutor that if those CDs
be allowed to be played, he can identify the voice of the kidnappers as
well as of the family members.
11. I am of the opinion that by hearing the recorded voice it cannot
exactly be established whether this voice pertains to a certain person.
For this purpose a scientific test is required for matching the voice of
that person otherwise there is no such system by which recorded voice
can be identified specifically by any person, who admittedly seen the
face of accused Sandeep Tyagi, only after recording.
Crl.M.C.No2809/2010 Page 3 of 4
12. I also note that the report of the expert on the voice has not been
filed by the petitioner. Moreso, in para 6 of the petition it is mentioned
that the specimen voice of accused-Sandeep Tyagi S/o Sh. Chand
Singh was got recorded by the PW-14 Sonu through a videography on
26.10.2008 in PS Chhawla, New Delhi. The said PW Sonu later on
converted the voice contained into the video in two CDs and handed
over the same to the police on 11.12.2008. The specimen voice of
accused-Sandeep Tyagi and the voice of the kidnapper contained in the
memory card recorded by the PW-15 Sushil Kumar were sent for
comparison to the expert. The expert after examination confirmed that
both the voice are of the same person.
13. I find no discrepancy in the impugned order dated 24.05.2010
passed by the learned ASJ, Dwarka. Accordingly, the Crl.
M.C.2809/2010 is dismissed.
14. No order as to costs.
15. At this stage, ld. Spl. Public Prosecutor for the State submits that
he could have liberty to adduce evidence to prove the specimen voice
and the record before the Trial Court.
16. I make it here clear that this liberty is always available with the
petitioner, which fact is not disputed by the ld. Counsel for the
respondent.
17. Crl. M.C. No.2809/2010 stands disposed of in above terms.
SURESH KAIT, J
MARCH 5, 2012
RS
Crl.M.C.No2809/2010 Page 4 of 4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 2809/2010
th
% Judgment delivered on: 5 March, 2012
STATE(GOVT. OF NCT OF DELHI) ..... Petitioner
Through: Mr. S.K. Saxena, Spl. PP
Versus
SANDEEP TYAGI & ANR. ..... Respondents
Through : Mr. K.K. Manan, Mr. Nipun Bhardwaj
and Mr. Vishal Sangwan, Advs.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. The instant petition is being filed while assailing the order dated
24.05.2010, whereby the learned Trial Judge dismissed the application
of the State filed under Section 138 of the Evidence Act for re-
examination of the two witnesses.
2. Ld. Spl. Public Prosecutor appearing on behalf of the
petitioner/State submits that after the dismissal of the aforesaid
application, a petition under Section 408 of the Cr.PC was filed before
the District Judge, Tis Hazari Courts, Delhi for transferring the trial of
the case from the Court of A.S.J., Dwarka, New Delhi to any other
Sessions Court, and the same was allowed.
3. Vide the aforesaid application filed by the State under Section
138 of the Evidence Act, it is stated that PW-14 has produced the mini
digital video cassettes and two CDs before the IO, who after preparing
Crl.M.C.No2809/2010 Page 1 of 4
the transcripts, seized the same. The fact regarding the handing over of
the two copies of the CDs is also required to be asked from him.
4. It is further stated that PW-15 Sushil Kumar recorded the
conversations between the kidnapers and the family members of the
deceased in a mobile phone. The said instrument along with the
memory card and charger were seized by the police on 24.10.2008.
The witness during the course of examinations in the Court stated that
he can identify the voice of the kidnaper and the family members of the
deceased, if the memory card is allowed to be played. The memory
card through the instrument in question could not be played, as
according to this witness the lock has become loose and could be
played by putting a chip/sim-card in the same.
5. I note vide order dated 30.03.2010, the ld. Trial Court has
recorded that the prosecution has relied upon a memory card but copy
of the same has not been supplied to the accused persons. Eeven
ld.Special PP submitted that it may be that the transcript filed is not a
complete transcript. As such the said memory card is opened in the
court sealed with the seal of CFSL and IO was directed that a CD of
the same be prepared and handed over to the counsels for accused
persons.
6. By the impugned order it is also recorded that no such
application in respect of Sonu was moved on the date, the witness was
cross-examined. Therefore, learned Judge was of the opinion that the
application in respect of PW-14 Sonu, not maintainable.
7. Even otherwise so far as Sonu is concerned, he stated that he had
seen the face of accused Sandeep Tyagi only after recording and he has
Crl.M.C.No2809/2010 Page 2 of 4
not deposed about the contents of the CD. Also has specifically stated
that he can tell about the contents only after the video is played.
8. It is also recorded by the ld. Trial Court that so far as PW-15 is
concerned, entire examination in chief of his identification of voice etc.
and the recordings have been confronted from his statement
Ex. PW15/DA, where it is simply stated that he had recorded the
voices without reference to the kidnappers or the nature of voice or to
the contents stated that the mobile and the charger were handed over to
the Police.
9. It is further recorded that nothing beyond has been stated by him
in his statement under Section 161 Cr.PC. It is thus clear that the
statement of others is being tried to be put through this witness after
the witness is tutored on those aspects and the re-examination is sought
to play the same, is basically a review in the shape of re-examination,
as the witness after wasting about one hour of the court was not been
able to play the mobile or the memory card, at all, which was seized by
the police.
10. As submitted by ld. Special Public Prosecutor that if those CDs
be allowed to be played, he can identify the voice of the kidnappers as
well as of the family members.
11. I am of the opinion that by hearing the recorded voice it cannot
exactly be established whether this voice pertains to a certain person.
For this purpose a scientific test is required for matching the voice of
that person otherwise there is no such system by which recorded voice
can be identified specifically by any person, who admittedly seen the
face of accused Sandeep Tyagi, only after recording.
Crl.M.C.No2809/2010 Page 3 of 4
12. I also note that the report of the expert on the voice has not been
filed by the petitioner. Moreso, in para 6 of the petition it is mentioned
that the specimen voice of accused-Sandeep Tyagi S/o Sh. Chand
Singh was got recorded by the PW-14 Sonu through a videography on
26.10.2008 in PS Chhawla, New Delhi. The said PW Sonu later on
converted the voice contained into the video in two CDs and handed
over the same to the police on 11.12.2008. The specimen voice of
accused-Sandeep Tyagi and the voice of the kidnapper contained in the
memory card recorded by the PW-15 Sushil Kumar were sent for
comparison to the expert. The expert after examination confirmed that
both the voice are of the same person.
13. I find no discrepancy in the impugned order dated 24.05.2010
passed by the learned ASJ, Dwarka. Accordingly, the Crl.
M.C.2809/2010 is dismissed.
14. No order as to costs.
15. At this stage, ld. Spl. Public Prosecutor for the State submits that
he could have liberty to adduce evidence to prove the specimen voice
and the record before the Trial Court.
16. I make it here clear that this liberty is always available with the
petitioner, which fact is not disputed by the ld. Counsel for the
respondent.
17. Crl. M.C. No.2809/2010 stands disposed of in above terms.
SURESH KAIT, J
MARCH 5, 2012
RS
Crl.M.C.No2809/2010 Page 4 of 4