Allahabad High Court
Dr. Rajesh Talwar And Anr. vs Central Bureau Of Investigation And ... on 24 January, 2013
Author: Sunil Hali
Bench: Sunil Hali
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved. Court No. - 41 Case :- APPLICATION U/S 482 No. - 35303 of 2012 Petitioner :- Dr. Rajesh Talwar And Anr. Respondent :- Central Bureau Of Investigation And Anr. Petitioner Counsel :- Y.K. Sinha Respondent Counsel :- Govt. Advocate,Anurag Khanna Hon'ble Sunil Hali,J.
Applicants are facing trial in Sessions Trial No. 477 of 2012, (CBI Vs Dr. Rajesh Talwar and another), under Sections 302,34,201,203 IPC. During the course of trial an application was moved by the prosecution (CBI) seeking permission to place additional documents on record. Following documents were sought to be filed before the Court below:-
(I) Seizure memo dated 13.9.2009 of Inspector Richhpal Singh and D.D. No. 7 dated 13.9.2009 of Inspector Rijpal Dabas, Inspector/SOS, Crime Branch, sunlight Colony, New Delhi.
(ii) Letter No. CDFD/LDFS/2011/2079 dated 24.3.2011 of CDFD on the subject DNA fingerprinting examination in Hemraj-Arushi Murder Case.
(iii) Letter dated 8.9.2010 of SP Dehradun addressed to Shri Anil Sagar, Director (Scientist F) of CERT-In reply to this letter by CERT-in already filed in court.
(iv) Letter No. CCH-163/2009/3135 dated 25.9.2009 along with Annexure, copy of CD already provided.
(v) Report No. DFS-EE-2010-CF-43 dated 25.5.2010 Annexure (Page No. 1 to 291), Annexure -B (Page No. 1-208) Annexure C to J. Copy of four CD are also enclosed herewith.
(vi) CDR, CAF and forwarding letter dated 18.11.2010 of TATA Tele Services in respect of mobile No. 9213515485 (page No. 1 to 5) (D-94).
(vii) Email dated 7.7.2008 of Vodafone Essar Mobile Services Ltd. In respect of CDR of mobile Nos. 9999101094, 9899555999(Page no. 1 to 84) (D-95).
(Viii) Email dated 20.7.2010 of SP, ACB, Dehradun, Nodal Officer, Airtel. Email dated 6.8.2010/28.7.2010 of Nodal Officer, Airtel (page No. 1 to 16) (D-92).
(ix) Letter dated 8.8.2008 of Bharti Airtel Ltd along with CDRs in respect of mobile Nos. 9810520630, 9871625746, 9810037926, 9810669540 and 9810509911 (page No. 72 to 222) (D--93).
(x) Report dated 22.6.2010 on the subject scrutiny of Orkut Profile (Page No. 1 to 71).
It is further stated in the application that this issue was raised by the CBI before the Special Leave Petition filed in the Apex Court that it was typographical error in describing the exhibits by the CDFD Hyderabad. This letter also forms part of the counter affidavit filed by CBI in the Hon'ble Apex Court in the present case. This letter is now required to be exhibited in the court.
It is contended by learned counsel for the CBI that the aforesaid documents were collected during the investigation and forms part of the report under Section 173 (2) Cr.P.C.. These documents need to be exhibited in their original form.
The objection to the said application was filed by the accused. It is contended that as many as fifteen prosecution witnesses stand examined and cross examined and filing of the said documents at this stage would prejudice the accused. The said documents are intended to be filed for filling up the lacuna that exists in the prosecution story. It is further averred that these documents were never part of the report under Section 173 (2) Cr.P.C. more particularly, letter No. CDFD/LDFS/2011/2079 dated 24.3.2011. Prosecution cannot be permitted to file documents which are not part of the report under Section 173(2) Cr.P.C.
Power to collect or file documents would arise in case further investigation in the matter was on, which is not the case herein. Specific objections were taken to the filing of the clarificatory letter dated 24.3.2011.
The contention of the accused is that during investigation of the case one pillow with pillow covers were recovered from the room of deceased Hem Raj. One pillow cover was seized from the room of Krishna who was suspected accused at that time. The said exhibits were numbered and sent to the forensic laboratory at Hyderabad where they were examined and a report to that extent was also obtained. As per the report of CDFD, Hyderabad the pillow cover seized from the room of accused Krishna was found with DNA positive of deceased Hem Raj. Having realized the serious flaw in the prosecution case, pursuant to the summoning order issued against the accused persons, the Investigating Authorities in order to botch up the case and to somehow ensure at any cost that alternative hypothesis for the commission of crime are closed on the face of the accused persons, an attempt has been made by the authorities to obtain a certification from the CDFD Hyderabad to the extent that the forensic authorities based in Hyderabad committed a typographical error in this regard.
This in fact is not a clarificatory letter but an attempt to distort the actual facts by showing that the pillow cover carrying DNA positive or not recovered from the house of the Krishna. This in nutshell was the objection raised by the accused.
Trial Court after hearing the parties has allowed the application of the CBI vide his order dated 29.9.2012. Trial Court while allowing the application has held that originally all the documents must accompany the report under Section 173(2) Cr.P.C. on which the prosecution relies. However, it is not the rule of thumb that additional documents cannot be filed during pendency of the trial. Exception has been made in respect of the documents which may not be in possession of the CBI or police. Other aspect dealt by the learned Trial Cout is that the Court has sufficient powers under Section 311 Cr.P.C. to summon any person as witness, or examine any person in attendance, though not summoned as a witness or recall and re-examine any person already examined. If the Court can re-examine the witness who has already been examined there is no bar in allowing the additional documents to be filed, if the same are relevant for just and proper decision of the case. No prejudice is likely to be caused to the accused persons. Contention of the accused that the documents which the prosectuion intends to file have been manufactured is an issue which cannot be agitated during course of trial. This order is subject matter of challenge before this Court.
I have heard Mr. R. K. Jain, learned senior counsel assisted byMr. Y. K. Sinha, learned counsel for the applicants, Mr. Anurag Khanna, Advocate for the CBI and learned A.G.A.
Applicants are facing trial for having murdered their daughter and servant Hemraj. It appears from the record that after lodging of the FIR by the applicant Dr. Rajesh Talawr at P.S. Noida Sector 20 vide Case Crime No. 695 of 2008, under Section 302 IPC against unknown persons investigation was initiated. Prime suspect Hem Raj at that time was found murdered on 17.5.2008 whose body was recovered on 17.5.2008 on the terrace of the house of Dr. Rajesh Talwar and Dr. Nupur Talwar. Investigation was concluded by the CBI after investigating the matter for seemingly unending period. The CBI ultimately submitted a closure report dated 29.12.2010 before the Special Judicial Magistrate (CBI). Protest petition was filed by Dr. Rajesh Talwar on 21.1.2004 before the Court below with the prayer that the closure report submitted be rejected and further investigation be ordered. Trouble for the accused persons seems to have started from here when the Magistrate rejected the closure report of the CBI and issued process against the applicants after taking cognizance in the matter. Accused are facing trial before the Special Judge, CBI, Ghaziabad. In terms of the direction, issued by the Hon'ble Apex Court the trial has been directed to be expedited. However, in the present case, the Court is not concerned with the merits of the Trial but is called upon to examine the validity of the order passed by the Trial Court allowing the CBI to file additional documents before the Trial Court.
At the outset, it is stated that learned counsel for the applicants led emphasis only on the clarificatory letter dated 24.3.2011 which has been allowed to be brought on record. His principal contention is as follows:-
That the clarificatory letter dated 24.3.2011 is a communication addressed by the Scientist In-charge, Laboratory of DNA Fingerprinting Services to the Superintendent of Police, CBI which is said to have been forwarded to the Superintendent of Police. It is in context of the communication addressed by the CBI that the clarificatory letter has been issued.
The contention raised by the learned counsel for the applicants is that even after filing of the charge sheet some investigation in the matter was under way which was not to the knowledge either of the Court or accused persons and it is in this context that the necessary clarification letter has been obtained. Since the CBI does not admit that any further investigation in the matter was under way seeking clarification from the scientist Incharge was uncalled for.
Second contention raised by the learned counsel for the applicants is that the Court cannot entertain additional documents unless prosecution is able to show that it was due to some omission or for some reasons beyond their control that the same could not have been filed at the time of filing of the charge sheet. No such explanation has been given by the prosecution and the trial Court has failed in its duty to examine this issue in this context. More particularly, when approximately fifteen witnesses have been examined.
Third contention raised is that consequence of placing this letter will have adverse effect on the defence set up by the accused persons. What is being clarified by this letter is that the exhibit which was recovered from the house of Krishna carrying DNA positive of the Hem Raj was actually recovered from the room of Hem Raj thereby obliterating the recovery been made from room of krishna. The very nature of the clarification sought is to nullify the earlier report submitted by the chemical analyst.
Lastly it has been contended that the documents are required to be filed by the prosecution along with report under Section 173(2) Cr.P.C.
Section 173(5) Cr.P.C. contemplates that the police officer shall forward tot he Magistrate along with the report all the documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation.
Very essence of the provision makes it incumbent upon the prosecution to refer to all those documents on which it relies. It cannot be permitted to place reliance on the documents which it did not propose to rely after filing report under Section 173(2) Cr.P.C. The court while framing charges under Section 227/228 Cr.P.C. has to rely upon the report under Section 173(2) Cr.P.C. along with documents appended thereto. So while framing charges the Court has to examine the record submitted by the police to determine the complicity of the accused. At the stage of framing of charge the accused would be entitled to discharge on the basis of the documents which are before the Court. In essence the object is to put the accused to the notice regarding the incriminating materials which has come against him so as to allow him to prepare his defence in this case. By allowing this application, trial Court has prejudice the case of the applicants.
On the other hand stand of the CBI is that there is no new evidence or documents brought on record. Report of the CFDL is already part of the report under Section 173(2) Cr.P.C. What is being produced before the Court is clarificatory letter submitted by the concerned scientist that there has been some typographical error in mentioning the description of the exhibits vide its report dated 6.11.2008.
In order to clarify this issue following things have been mentioned in the objection filed by the CBI, which is quoted hereunder:
a) That one pillow with pillow cover was seized from the room of the deceased Hemraj and one Pillow cover (Purple colour) was seized from the room of Krishna.
b) That the said exhibits were sent to CFSL, New Delhi which were marked as Exhibit 21 (pillow with pillow cover) and exhibit 26 (pillow cover purple covered).
c) That as per CFSL opinion partial DNA profile was generated from exhibit 21 i.e. pillow with pillow cover belonging to Hemraj. (Report exhibit No. Ka 6 of the Trial Court).
d) That as per CFSL opinion no DNA profile could be gathered on exhibit 26 i.e Pillow Cover purple colour belonging to Krishna. (Report exhibit 10 of trial Court).
e) Thereafter both these exhibits were sent to CDFD Hyderabad. The CDFD gave their own numbers to the exhibits as under:
Description CDFD No Alias Ex. No. 1 Pillow with Pillow Cover Y204CI14 Z 20 2 Pillow cover (purple coloured) Y204CI10 Z 14
f) That due to typographical error incorrect description of the exhibits in its report dated 6.11.2008 has been made.
It is further averred that the accused accused Nupur Talwar raised this issue before this Court in her revision petition No. 1127 of 2011, the matter was clarified and this Court observed in the judgement dated 18.3.2011 as under:-
"As far as the assertion made on behalf of the revisionist that Hemraj's DNA was found on the pillow of Krishna recovered from his house and thus further investigation should have been ordered in that direction is concerned, the same is without any basis. From the perusal of record and the submissions made by Sri Jafri which have been noted herein above it is apparent that the DNA of Hemraj was not found on Krishna's pillow."
It is in the light of this that the clarification on this issue was also formally obtained from the CDFD, Hyderabad vide letter No. CDFD/LDFS/2011/2079 dated 24.3.2011, which clarified that:-
1.There are typographical errors in the description of the exhibits Z 14 and Z 20.
2.The description of Exhibit Z 14 shall be read as below:
"One pillow cover (purple coloured cloth) Y 204 CI 10" instead of pillow with pillow cover (blue and while coloured)".
3. The description of Exhibit Z 20 shall be read as below:-
"Pillow with pillow cover (blue and while coloured) Y 204 CI 14" instead of "One pillow cover (purple coloured cloth)".
In nut shell corrigendum issued by the CDFD is that there is a typographical error while describing the exhibits Z 14 and Z 20 hence the opinion is to be read by exchanging the description of exhibits in respect of Y 204 CI 10 and Y 204 CI 14 meaning thereby in nutshell that the pillow with pillow cover which contain the DNA of Hemraj was actually seized from the room of Hemraj and belongs to Hemraj only.
Lastly, it has been contended that the statement of Sri S.P.R. Prasad, Senior Technical Examiner, CDFD, Hyderabad has already been recorded by the learned Trial Court and accused have thoroughly cross-examined the witness.
Law is well settled that after conclusion of the investigation, the police shall forward to a Magistrate empowered to take cognizance of the offence a police report on a form prescribed by the State Government. When such report is filed the police officer shall forward to the Magistrate along with report all the documents and relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation. In case, if the police officer is of the opinion that any part of any such statement is not relevant to the subject matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, h e shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for such request.
Section 207 Cr.P.C. enjoins upon the Magistrate to furnish without any delay to the accused copy of the police report, FIR, statement recorded under Section 161(3) Cr.P.C., confessional statement, if any recorded under Section 164 Cr.P.C., any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub Section (5) of Section 173 Cr.P.C.
There is clear mandate that the prosecution will furnish all those documents along with report on which it intends to rely and those documents are required to be given to the accused before the Trial in the matter is initiated.
Contention of learned counsel for the applicants is that the clarificatory letter dated 24.3.2011 is additional document which could not have been filed by the prosecution after submitting its report under Section 173 (2) Cr.P.C.
Question that calls for consideration is as to whether the clarificatory letter is additional document as contended by learned counsel for the applicants or a clarification of the statement made by the witness whose report is already part of the record. Opinion of the expert based on his expertise in particular subject is stated to be a relevant document. The real function of the expert is to put before the Court all the materials, together with reasons which induce him to come to the conclusion, so that the Court, although not an expert, may form its own judgement by its own observation of those materials. Another important thing to remember is that an expert is not a witness of fact and his evidence is really of an advisory character. The duty of the expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgement by the application of these criteria. It is also important to note that without examining the expert as a witness in court no reliance can be placed on an opinion alone.
This in essence is the nature of the evidence given by an expert.
It is necessary to mention that earlier report submitted as has come in the statement of Mr. S.P.R. Prasad, Senior Technical Examiner, CDFD, Hyderabad is already part of the charge sheet.
What is being intended by the CBI is to place on record the clarificatory letter submitted by the witnesses that there has been error in decoding the exhibits. Clarification letter by in itself is not the basis of the correction effected by the witness. It is only intended to inform the Investigating Officer that there has been error committed by the witness in not properly decoding the exhibits. This letter has been issued on the basis of the record which is in the custody of the witness. Even if this clarification letter is not in existence the witness may depose before the Court that he has committed error in decoding the exhibits.
What is important to note here is that the clarificatory letter does mention as to how this error has crept in. This can be clarified only from the witness during the cross examination. Defence cannot be denied its right to cross examine the witness. Not only the witness but also the Investigating Officer on whose application this clarification is sought. Element of doubt can be raised in this case by the defence that the clarification or change of opinion by the witness was intended to tamper with the evidence which had already come on record so as to close the option of the accused to raise any defense which it intended to take on the basis of the earlier report.
Whatever possible objection, the accused can raise would not be effected by mere filing of this clarificatory letter. As a matter of fact it has taken the CBI three years to detect the error which according to them has crept in at the time the report was submitted by the witness. This does raise some suspicion but fact of the matter is that the best person to explain this is the witness and the Investigating Officer.
In my opinion filing of this document cannot be construed as additional documents but only change of version by a witness whose report has been placed by the prosecution at the time of filing of the charge sheet.
Under Section 162 Cr.P.C. if any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused and with the permission of the Court by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act 1872.
As already stated herein supra the clarificatory letter which is classified as additional document by the CBI is in essence a communication issued by the witnesses on the basis of the record, which is in his custody. Defence has every right to question this aspect during course of trial. Therefore, I am not inclined to agree with the learned counsel for the applicants that this communication could not have been allowed to be taken on record after the initiation of the trial in the case.
Even it is is assumed that clarificatory letter is additional document the Court can still entertain it. If it is shown that due to some mistake committed in not producing the relevant document at the time of submission of report. Normally documents gathered during investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate concerned but if there is some omission it would not mean that remaining documents cannot be produced subsequently.
Now what is being produced before the Court is clarificatory letter submitted by the expert that there is error in decoding the exhibits. This error has crept in due to mistake. Filing of this clarificatory letter as already stated herein supra cannot be construed to be filing of any additional documents or additional evidence. If some error has crept in by mistake the Court will always h ave the power to entertain any additional documents in this behalf. Mere filing of documents itself does not mean that the fact is exclusively proved. This mistake requires to be tested by an accused during the course of trial. Reliance in this behalf has been placed upon a judgement of Hon'ble Apex Court reported in 2002 AIR (SC) 1644; Central Bureau of Investigation Vs R. S. Pai, wherein it is observed by Hon'ble Apex Court as under:
"From the aforesaid sub-sections, it is apparent that normally, the Investigating Officer is required to produce all the relevant documents at the time of submitting the charge-sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or charge-sheet, it is always open to the Investigating Officer to produce the same with the permission of the Court. In our view, considering the preliminary stage of prosecution and the context in which Police Officer is required to forward to the Magistrate all the documents or the relevant extracts thereof on which prosecution proposes to rely, the word 'shall' used in sub-section (5) cannot be interpreted as mandatory, but as directory. Normally, the documents gathered during the investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate, but if there is some omission, it would not mean that the remaining documents cannot be produced subsequently."
Other contention raised by the learned counsel for the applicants is that this clarification has been sought by the investigating Officer from the witness when admittedly no investigation in the matter was under way. Case of the applicants is that even after filing of the report under Section 173 (2) Cr.P.C. the investigation in the matter was under way without the knowledge of the accused persons as well as the Court. If after filing of the charge sheet further investigation was under way then collection of additional evidence was within precincts of law. Intent and purpose of further investigation is to allow the Investigating Officer to obtain further evidence oral or documentary. This is not case of the prosecution that further investigation is under way. All that has been stated by the CBI is that the clarificatory letter has been sent by the witness regarding error in decoding the exhibits which has been brought to the notice of the Court. Admittedly, clarification letter is not an evidence itself but only an information sent by the witness that he has committed an error in decoding the exhibits.
Lastly it has brought to the notice of the Court that the witness has already been examined and cross examined by the accused persons. Effect of that can only be determined after the conclusion of trial. As already submitted herein above, applicants did not press there objection for placing on record other documents. No argument was addressed by them in this behalf.
In view of above, I find no force in this application. It is accordingly dismissed.
Order Date :- 24.1.2013.
RKS/