Rajasthan High Court - Jodhpur
Pappuram vs State on 27 January, 2017
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B.Criminal Misc(Pet.) No. 3230 / 2016
Pappuram S/o Late Mangilal,, Aged About 41 Years, Dudiyon Ki
Dhani, Village Guda Vishnoiyan, Police Station Kudi Bhagtasani,
Jodhpur. (at Present Lodged in Central Jail, Jodhpur)
----Petitioner
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Petitioner(s) : Mr. Rajendra Choudhary
For Respondent(s) : Mr. Vikram Singh Rajpurohit - PP
_____________________________________________________
HON'BLE MR. JUSTICE VIJAY BISHNOI
Judgment / Order 27/01/2017 This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner being aggrieved with the order dated 01.08.2016 passed by the Additional Sessions Judge (Women Atrocities Cases), Jodhpur Metropolitan (hereinafter referred to as 'the trial court') in Sessions Case No.18/2014, whereby the application preferred on behalf of the petitioner under Section 54 read with Section 173(8) Cr.P.C. and Article 21 of the Constitution of India has been dismissed. In the said application, the petitioner has prayed that the prosecution be directed to conduct Narco Analysis Test, Brain Mapping Test and Polygraph Test upon him from the Forensic Directorate, Gujarat State.
Brief facts of the case are that on 22.12.2013, on the basis of the statement of Parmeshwari Devi wife of the petitioner, the FIR No.347/2013 was registered at Police Station, Kudi (2 of 9) [CRLMP-3230/2016] Bhagtasani, District Jodhpur against the petitioner and six other persons for the offences punishable under Sections 143, 307, 498-A and 324 IPC. After registration of above mentioned FIR, the police started investigation and during the course of investigation, Parmeshwari Devi died. The police, after thorough investigation, filed charge-sheet against the petitioner for the offences punishable under Sections 324, 307, 498-A and 302 IPC, however, the investigation against other co-accused persons has been kept pending under Section 173(8) Cr.P.C.
The allegations against the petitioner is to the effect that he poured kerosene on his wife and thereafter enkindled the fire and on account of that she received severe burn injuries. Thereafter, she was got admitted to the hospitals first at Jodhpur and thereafter in a private hospital at Ahmedabad, where she died on 27.12.2013. Then the police has added commission of offence punishable under Section 302 IPC and thereafter filed charge- sheet against the petitioner for the offences punishable under Sections 324, 307, 498-A and 302 IPC.
The trial court has framed charges against the petitioner for the offences punishable under Sections 324, 307, 498-A and 302 IPC.
Before the trial court, the statements of witness PW-1 Subhash were recorded between 18.03.2015 to 19.08.2015, in which cross-examination of him has also been conducted, however, the statements in-chief of PW-2 Kailash were recorded on 15.06.2015 and on that day, counsel for the petitioner sought time to cross-examine him and the matter was adjourned.
(3 of 9) [CRLMP-3230/2016] Thereafter, the petitioner moved an application under Section 54 read with Section 173(8) Cr.P.C. and Article 21 of the Constitution of India on 23.05.2016 and prayed to get the Narco Analysis Test, Brain Mapping Test and Polygraph Test conducted on him from the Forensic Directorate, Gujarat State. The said application of the petitioner was opposed by the prosecution as well as the complainant party and the trial court, after considering the arguments advanced on behalf of the parties, has rejected the said application vide impugned order while observing that the Narco Analysis Test, Brain Mapping Test and Polygraph Test are not conclusive evidence and it has further observed that the petitioner never asked for the said scientific tests during the course of investigation or also not raised any such argument at the time of framing of charges and, therefore, the prayer of the petitioner for conducting the said tests cannot be accepted. Being aggrieved with the same, the petitioner has filed this criminal misc. petition.
Learned counsel for the petitioner has argued that the petitioner has falsely been implicated in this case by his sons and brothers-in-law. It is contended that the wife of the petitioner committed suicide but his sons, brothers-in-law and the police in connivance with each other have made a false case of murder against the petitioner. It is contended that as a matter of fact when the wife of the petitioner poured kerosene upon herself and enkindled the fire and was burning, then the petitioner tried to save her but the sons of the petitioner viz. Subhash and Kailash caught hold of him and did not allow him to rescue his wife and (4 of 9) [CRLMP-3230/2016] soon thereafter his son Subhash called his brother-in-law and informed him that work has been done. It is contended that the police has not conducted fair investigation and filed false charge- sheet against the petitioner for the commission of offence of murder of his wife.
Learned counsel for the petitioner has further argued that right of the accused to give evidence to prove his innocence not only flows from the principles of natural justice but to be a part of Article 14/21 of the Constitution of India. It is also contended that as per Section 315 Cr.P.C., giving of evidence cannot be restricted only to give of oral testimony in Court. Learned counsel for the petitioner has further argued that when the petitioner is ready to undergo the Narco Analysis Test, Brain Mapping Test and Polygraph Test voluntarily, then the prosecution has no right to object and the trial court has erred in rejecting the application of the petitioner for conducting the above mentioned scientific tests upon him.
In support of the above contentions, learned counsel for the petitioner has placed reliance on the decision of Hon'ble Supreme Court rendered in Smt. Selvi & Ors. Vs. State of Karnataka reported in AIR 2010 Supreme Court 1974, decision of this Court rendered in Moti Ram Vs. State of Rajasthan reported in 2013(2) Cr.L.R. (Raj.) 1045, decisions of Gujarat High Court rendered in Dr. Purshottam Swaroopchand Soni Vs. The State of Gujarat reported in (2007) 2 GLR 2088 and in State of Gujarat Vs. Inayat Ismail Vohra (S.B. Special Criminal Application No.1805/2012) decided on 14.10.2013. He has, (5 of 9) [CRLMP-3230/2016] therefore, prayed that the impugned order passed by the trial court may kindly be set aside and the trial court be directed to instruct the prosecution to conduct Narco Analysis Test, Brain Mapping Test and Polygraph Test upon the petitioner.
Per contra, learned Public Prosecutor has opposed the prayer of the petitioner and argued that there is no illegality in the impugned order passed by the trial court. It is further submitted that during the course of investigation or thereafter, the petitioner never requested for conducting Narco Analysis Test, Brain Mapping Test and Polygraph Test and when the statements of the eye witnesses have been recorded against him, the petitioner has filed the application for conducting the said scientific tests upon him, which is nothing but an afterthought. Learned Public Prosecutor has, therefore, prayed that there is no force in this criminal misc. petition and the same is liable to be dismissed.
Heard learned counsel for the petitioner and the learned Public Prosecutor and perused the impugned order as well as the material available on record.
As per the charge-sheet filed by the police on 22.12.2013, the petitioner poured kerosene upon his wife and thereafter enkindled the fire and on account of that she suffered severe burn injuries and ultimately died during treatment on 27.12.2013. The police has recorded statements of sons and brother-in-law (brother of the deceased) of the petitioner under Section 161 Cr.P.C., wherein they have stated that they have witnessed that the petitioner poured kerosene upon the deceased Parmeshwari Devi and thereafter enkindled the fire. All those persons were (6 of 9) [CRLMP-3230/2016] made eye witnesses by the police.
The first contention of learned counsel for the petitioner is that the deceased Parmeshwari Devi poured kerosene upon herself at the instigation of her sons and brother and herself enkindled the fire, so as to implicate him in a false case. The other contention of learned counsel for the petitioner is that on the day of incident, when Parmeshwari Devi was burning, the petitioner tried to rescue her but his sons viz. Subhash and Kailash caught hold of him and did not allow him to douse the fire. Learned counsel for the petitioner has further contended that when Parmeshwari Devi received severe burn injuries then Subhash immediately called his uncle Bhagirath and informed him that the work has been done.
It is to be noticed that during the course of investigation no such prayer was made on behalf of the petitioner to conduct Narco Analysis Test, Brain Mapping Test and Polygraph Test upon him. It is also to be noticed that at the time of framing of charges no such argument was advanced on behalf of the petitioner that there was some flaw in investigation and the Investigating Agency has deliberately not conducted above mentioned scientific tests upon the petitioner, though, he was ready for the same.
It is also to be noticed that the statements in-chief of PW-1 Subhash were recorded on 18.03.2015 and thereafter on 23.05.2015 and 19.08.2015 he was cross-examined by the counsel for the petitioner in detail. In the said cross-examination, PW-1 Subhash was not asked any question or was not put to any suggestion that when Parmeshwari Devi was burning, the (7 of 9) [CRLMP-3230/2016] petitioner tried to rescue her but Subhash and Kailash have caught hold of him and did not allow him to douse the fire and immediately thereafter PW-1 called Bhagirath and informed him that work has been done.
In the above noted facts and circumstances of the case, this Court is clearly of the opinion that when the petitioner never requested for Narco Analysis Test, Brain Mapping Test and Polygraph Test at the time of investigation, never raised any such argument before the trial court at the time of framing of charges and not even asked a single question about the fact that the petitioner tried to rescue his wife at the time when she was burning and PW-1 Subhash and PW-2 Kailash have caught hold of him and did not allow him to douse the fire, then it can safely be said that the prayer of the petitioner to get the above mentioned scientific tests conducted upon him is nothing but an afterthought.
So far as the judgment of Hon'ble Supreme Court rendered in Smt. Selvi & Ors. Vs. State of Karnataka (supra), on which the learned counsel for the petitioner has placed reliance, is concerned, it has held that a person cannot be forced to undergo this Polygraph Test or scientific tests without his consent. It is not held by the Hon'ble Supreme Court that if a person requests for such scientific tests, then the prosecution is duty bound to conduct those tests. In the above referred case the Hon'ble Supreme Court has observed as under:-
"223. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would (8 of 9) [CRLMP-3230/2016] amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test."
(emphasis supplied) In the judgment of this Court rendered in Moti Ram Vs. State of Rajasthan (supra), the accused, during the course of investigation, requested to undergo the Narco Analysis Test, Brain Mapping Test and Polygraph Test but the Investigating Agency without there being any justifiable reasons has not conducted such test upon the accused.
Similarly, in the judgment rendered in Dr. Purshottam Swaroopchand Soni Vs. The State of Gujarat (supra) and State of Gujarat Vs. Inayat Ismail Vohra (supra), the Gujarat High Court has specifically observed that since the initiation of the investigation, the accused persons were requesting to undergo scientific tests but the prosecution has failed to conduct those tests without there being any justifiable reasons.
One more circumstance in those cases was that there was no direct evidence against the accused persons and the case of the prosecution was based only on circumstantial evidence and, therefore, the Gujarat High Court thought it necessary to direct the prosecution agency to conduct those scientific tests upon the accused persons.
In the present case, the situation is very different as the (9 of 9) [CRLMP-3230/2016] police, during the course of investigation, collected direct evidence against the petitioner and there are as many as four eye witnesses in this case.
In view of the above, the judgments cited by the learned counsel for the petitioner are of no help to him.
In view of the above discussions, I don't find any merit in this criminal misc. petition and the same is hereby dismissed Stay petition also stands dismissed.
(VIJAY BISHNOI)J. Abhishek Kumar S.No.26