Rajasthan High Court - Jodhpur
State vs Jasveer Singh on 16 November, 2017
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 679 / 2017
State of Rajasthan
----Petitioner
Versus
Jasveersingh S/o Umaram, B/c Jat, R/o Village Nuwan, P.S.
Molasar, Distt. Nagaur At Present Judicial Custody, Sub Jail
Didwana, Distt. Nagaur.
----Respondent
_____________________________________________________
For Petitioner(s) : Mr. O.P. Rathi, PP.
For complainant : Mr. Sunil Mehta.
For Respondent(s) : Mr. Rajendra Choudhary.
_____________________________________________________
HON'BLE MR. JUSTICE SANDEEP MEHTA
Judgment Date of Judgment: 16/11/2017 Reportable By way of this revision, the State of Rajasthan has approached this Court for assailing the order dated 06.03.2017 passed by the learned Additional Sessions Judge, Didwana (wrongly mentioned as Parbatsar in the cause title of the revision), District Nagaur in Sessions Case no.24/2012 whereby, the learned trial court accepted the application submitted on behalf of the undertrial accused Jasveer Singh the respondent herein under Section 54 of the Cr.P.C. and directed that the accused be subjected to varous scientific tests viz. Narco Analysis, Brain Mapping and Polygraph, etc. so that the truth of the matter can be brought forth before the Court. Considering the typographical error in the cause title, name of the trial court shall be hereinafter referred to as the Additional Sessions Judge, (2 of 6) [CRLR-679/2017] Didwana.
The trial of the respondent accused Jasveer Singh and some other accused is underway in the Court of the Additional Sessions Judge, Didwana for the offences under Sections 147, 149, 363, 366, 376(g) and 201 IPC. As per the prosecution allegations, the accused persons enticed Sushri 'S' sister of Vijay Puri the first informant and made her to elope with them. Thereafter, she was subjected to gang rape and was later on murdered. The prosecution case is totally based on circumstantial evidence viz. recoveries allegedly effected at the instance of the accused after recording their informations under Section 27 of the Evidence Act, etc. During trial, The respondent Jasveer Singh contested the genuineness and trustworthiness of the informations recorded by the I.O. at his instance claiming that the same were recorded under threat and duress and if he was subjected to Narco Analysis, Brain Mapping and Polygraph Tests in context to his informations recorded by the I.O., the true picture would come to fore. An application to this effect was submitted by Jasveer Singh at the stage of defence evidence. The prosecution opposed the said application tooth and nail and resisted the same on the ground that the accused did not make a prompt prayer for getting the tests carried out during investigation and the belated application should be rejected as it was just intended to delay the trial.
The trial court accepted the application submitted by the accused by the impugned order dated 06.03.2017 holding that in view of the ratio of the Supreme Court judgment in the case of (3 of 6) [CRLR-679/2017] Smt. Selvi & Ors. vs. State of Karnataka, AIR 2010 SC 1974, the narco analysis and other similar invasive scientific tests could be carried out upon the accused with his consent and the results thereof would be admissible in evidence and would help the court in reaching to the truth and for the just decision of the case. The trial court further held that allowing the tests to be conducted was essential for providing a fair chance of defence to the accused who was facing trial for the offences involving capital punishment. The State of Rajasthan has now approached this Court by way of this revision for challenging the order dated 06.03.2017 by which the application filed by the accused was allowed.
Learned Public Prosecutor and Shri Sunil Mehta, learned counsel representing the complainant vehemently urged that the impugned order is bad in the eye of law and should be quashed and set aside. They contended that if at all the accused was genuinely intending of assisting the court in arriving at the truth, the prayer for getting the relevant tests conducted should have been made right at the inception of the case i.e. during the course of investigation. By now, a period of more than 5 years has lapsed from the date of occurrence and thus, getting the tests conducted at this belated stage would be nothing short of an exercise in futility. They further submitted that Section 54 Cr.P.C. only permits medical examination of the accused at the stage of investigation and even if by stretching the import of the provision, the tests craved for by the accused are included therein then also, this tedious exercise should not have been permitted at the fag end of the trial. They thus implored the Court to set aside the impugned (4 of 6) [CRLR-679/2017] order as being grossly illegal.
Per contra, Shri Rajendra Choudhary learned counsel representing the respondent accused urged that the controversy is no longer res-integra in view of the ratio laid down by the three Judges Bench of Supreme Court in the case of Smt. Selvi (supra) wherein, it has clearly been expounded that the accused or the suspect can be subjected to these kinds of invasive scientific tests only with his consent. He further urged that a similar situation arose before this Court in the case of Moti Ram vs. State of Rajasthan reported in 201(2) Cr.L.R. (Raj.) 1045 and this Court after considering the various case laws allowed the prayer of the accused therein to be subjected to these very scientific tests so as to ensure that he is provided a fair opportunity of defence. Reliance was also placed on the judgment rendered by the Gujarat High Court in the case of Dr. Purshottam Swaroopchand Soni vs. The Stage of Gujarat reported in (2007) 2 GLR 2088 wherein, the endeavour of prosecution in opposing the prayer of the accused to be subjected to similar tests was considered as creating doubt on its bonafides. The court further went on to hold that it could not be presumed that result of the tests would prove to be favourable to the accused and as a matter of fact, a guilty accused would be loathesome in subjecting himself to such tests because voluntary submission thereto would make him liable to grave consequences in case the results went against him as the same would be admissible in evidence.
I have heard and appreciated the arguments advanced by (5 of 6) [CRLR-679/2017] the learned counsel for the parties and have gone through the material available on record.
The solitary objection raised by Shri Sunil Mehta learned counsel representing the complainant and the learned Public Prosecutor for opposing the prayer of the accused to get himself subjected to the invasive scientific test was that the application was belated and that if at all, the same could have been filed during the course of investigation as per the plain language of Section 54 Cr.P.C.. However, the said objection is not of any significance because in the entire purview of Cr.P.C., the only stage where the accused is allowed to speak out before the court is the stage of defence i.e. under Section 313 Cr.P.C. Before that, the accused has to simply go by the commands of the prosecution and the court. Otherwise also, Section 165 of the Evidence Act empowers the trial court with wide powers to discover or obtain facts. As per Section 315 Cr.P.C., the accused has a right to appear as a witness in defence. The learned Trial Judge, whilst allowing the application of the accused has clearly observed that the endeavour of the accused to get himself subjected to the invasive technical tests would as a matter of fact be of assistance in arriving to the truth and also appears to be essential for providing fair opportunity of defence to the under-trial accused.
In this background, I find no illegality, irregularity or perversity in the impugned order dated 06.03.2017 passed by the learned Additional Sessions Judge, Didwana, District Nagaur warranting interference there against in exercise of the revisional jurisdiction of this Court.
(6 of 6) [CRLR-679/2017] Consequently, the instant revision is dismissed as being devoid of merit. Record be returned to the trial court.
(SANDEEP MEHTA),J.
tikam daiya/