Allahabad High Court
Uday Sarup vs State Of U.P. And 2 Others on 16 October, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 65 Case :- CRIMINAL REVISION No. - 3122 of 2019 Revisionist :- Uday Sarup Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Pradeep Kumar Mishra,Vinay Saran(Senior Adv.) Counsel for Opposite Party :- G.A.,S0253,Sri Gyan Prakash(Senior Adv.) Connected with Case :- CRIMINAL REVISION No. - 1937 of 2016 Revisionist :- Uday Sarup Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Vinay Saran,Krishna Dutt Tiwari Counsel for Opposite Party :- G.A.,Amit Mishra (C.B.I.),Chandramani Shukla,Santosh Tripathi Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Vinay Saran, learned Senior Counsel assisted by Sri Pradeep Kumar Mishra, learned counsel for revisionist Sri Gyan Prakash, learned Senior Counsel assisted by Sri Sanjay Kumar Yadav, learned counsel for C.B.I. and Sri G. P. Singh, learned A.G.A. for the State.
This criminal revision bearing no. 3122 of 2019 has been filed with a prayer to set aside the order dated 03.08.2019 by which the application 210Kha of the revisionist was rejected by Additional Sessions Judge, Court No. IX, Agra in Session Trial No. 538 of 2013 (State of U.P. Vs. Uday Sarup and another), arising out of Crime No. 267 of 2013, under Section 376, 302 & 201 I.P.C., Police Station New Agra, District Agra later registered by C.B.I. as RC-07(S)/2013/CBI/SC.III. with a further prayer to stay further proceedings in the aforesaid case.
The connected criminal revision bearing no. 1937 of 2016 has been filed with a prayer to set aside the judgment and order dated 13.04.2016 by which the trial court has partly allowed the application paper No. 88-Kha of the revisionist for compliance of Section 207 Cr.P.C. and has refused to supply the documents and materials mentioned at Sr. No. 29, 30 and 31 i.e. photographs of the scene of crime, C.D. of scene of crime and C.D. of videography of the post mortem respectively, passed by Sri Anmol Pal, Additional Sessions Judge (Court No. 9), Agra in Session Trial No. 538 of 2013 (State of U.P. Vs. Uday Sarup and another), arising out of Crime No. 267 of 2013, under Section 376, 302 & 201 I.P.C., Police Station New Agra, District Agra with a further prayer to stay further proceedings in the aforesaid case.
Since both the revisions relates to the same crime number they are being decided by the common order.
Learned counsel for the revisionist argued that the order dated 03.08.2019 passed by the Additional Sessions Judge, Court No. 9, Agra is erroneous because by the said order, application 210Kha moved by the revisionist has been rejected by which it was prayed that witness S.I. R. K. Singh and Lady Constable Anju Mishra were to be examined by court on 04.07.2019. Both these witnesses were witnesses of scene of crime as well as of Panchnama. They had brought the dead body of the deceased for the purpose of post-mortem to the hospital. In the said application it was also mentioned that when the charge sheet was filed by C.B.I. an index was annexed which show at Sr. No. D-29, D-30 and D-31, the photographs of the place of occurrence taken by police, video prepared of the scene of crime and also video prepared of the post-mortem respectively. It was further mentioned in the said application that prior to the cross-examination being made of the said witnesses, these pieces of evidence were necessary to be provided to the accused revisionist and all these documents are available on file. The objection against the applicant 210 Kha was made before the trial court from the side of prosecution in which it was mentioned that Uday Sarup had moved an application earlier in which the court had passed order dated 13.04.2016 already regarding which revision bearing No. 1937 of 2016 is pending before the High Court. It was further mentioned in the objection that on the pretext of inspection of the said pieces of evidence, the accused revisionist wants to get over the earlier order of this Court and it would amount to reviewing the order by the Court which was not permissible under Section 362 Cr.P.C. Further, it was mentioned that in the objection from the side of prosecution it is mentioned that a copy of post-mortem has already been given to the accused and the CD of videography done of the scene of crime and post-mortem could be provided only by consent of the victim. It was also mentioned that the site plan of the scene of occurrence had already been provided to the accused revisionist and the photographs of the victim had already been proved by the photographer.
After having considered, the said objection as well as the application moved from the side of accused revisionist, the trial court has recorded that because the accused has already been provided copy of post-mortem report as well as site plan, hence, it would be treated that the papers related to D-30 and D-31 were already provided to the accused and hence, there was no justification to providing CD of videography of the post-mortem as well as of the scene of crime. Further it has been recorded that as far as six photographs which were taken of the place of occurrence were concerned (D-29), they had already been provided to the accused. Further it is recorded that in examination-in-chief of Anju Mishra (PW-21) and R. K. Singh (PW-22) and Ct. Avnish Kumar (PW-23) have been recorded. It is further mentioned that all the above mentioned three witnesses have given statement in their examination-in-chief not after having seen the videography of the scene of crime as well as of post mortem report rather they have given statement on the basis of their memory and therefore there is nothing which the accused could ask in cross-examination after having seen the CD of the scene of crime as well post-mortem report and accordingly prayer made by the accused revisionist was dismissed.
Learned counsel for the revisionist has assailed the said order on the ground that for fair trial it was very necessary for the accused to be provided CD of videography done in respect of the scene of crime as well as post-mortem for the purpose of fair trial and has placed reliance upon V.K. Sasikala vs State Represented by Superintendent of Police 2012 (9) SCC 771 in which the main reliance has been placed upon para 18 which is quoted below:
18. In a recent pronouncement in Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1 to which one of us (Sathasivam, J) was a party, the role of a public prosecutor and his duties of disclosure have received a wide and in-depth consideration of this Court. This Court has held that though the primary duty of a Public Prosecutor is to ensure that an accused is punished, his duties extend to ensuring fairness in the proceedings and also to ensure that all relevant facts and circumstances are brought to the notice of the Court for a just determination of the truth so that due justice prevails. The fairness of the investigative process so as to maintain the citizens' rights under Articles 19 and 21 and also the active role of the court in a criminal trial have been exhaustively dealt with by this Court. Finally, it was held that it is the responsibility of the investigating agency as well as that of the courts to ensure that every investigation is fair and does not erode the freedom of an individual except in accordance with law. It was also held that one of the established facets of a just, fair and transparent investigation is the right of an accused to ask for all such documents that he may be entitled to under the scheme contemplated by the Code of Criminal Procedure. The said scheme was duly considered by this Court in different paragraphs of the report.
Reliance has placed upon two judgments of this Court dated 07.05.2015, passed in Criminal Misc. Writ Petition No. 10699 of 2015 (Piyush Shyamdasani Vs. State of U.P. and another) and judgment and order dated 1.10.2015, passed in Application under Section 482 Cr.P.C. No. 29573 of 2015 (Smt. Veena Singh Vs. State of U.P. and 4 others), in which copy of CD which were part of the record were directed to be provided to the accused side for the purpose of fair trial.
Learned counsel for C.B.I. has filed Counter-Affidavit and has stated therein that 24 witnesses have already been examined in this case and the cross-examination of the above witnesses have been completed. Further in para 22 of the Counter-Affidavit it is stated that the trial court has judiciously rejected the said application and had cited the provisions of Section 207 Cr.P.C. and it is mentioned that in case there was any voluminous piece of evidence of the same, inspection could be allowed to the accused. Further, it is mention that the document/CD which have been asked for inspection by the revisionist i.e. CD containing videography of scene of crime and post-mortem of the deceased have not been made by the witnesses who were to be cross-examined therefore there was no necessity for providing these CDs to the revisionist.
After having heard both the side and having perused the record and having gone through the law cited above, I deem it proper that the trial court shall ensure that CDs of videography of the scene of crime as well as of post mortem i.e. D-30 and D-31 shall be got viewed to the accused if such prayer is made from the side of accused as that would be necessary for fair trial in this case. This revision is disposed of accordingly.
In light of the above, the criminal revision bearing No. 1397 of 2016 also stands disposed of.
Order Date :- 16.10.2019 VPS