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Showing contexts for: section 315 in Jaga Arjan Dangar vs State Of Gujarat on 9 August, 2018Matching Fragments
7. On thus having considered the submissions of both the sides, firstly the law on the subject deserves consideration. Chapter 24 of the Code of Criminal Procedure contains general provisions as to inquiries and trials. Section 315 of the said chapter provides that R/SCR.A/6403/2018 ORDER any person accused of offence before the criminal Court shall be a competent witness for the defence and he may also give evidence on oath in disproof of the charges made against him. It would be profitable to reproduce this provisions of section 315 of the Code of Criminal Procedure at this stage as under: "315.Accused person to be competent witness. (1) Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial: Provided that
14. This Court in the case of Dr.Purshottam Swaroopchand Soni vs. State of Gujarat reported in 2007(3) GLR 2088, was considering R/SCR.A/6403/2018 ORDER the case of a petitioner who was an accused who requested for brain mapping test/brain finger printing test to prove his innocence. It was his case that he had been falsely involved in the matter to save a sitting minister and her relative. The Court held that the right of the accused to give evidence to prove his innocence not only flows from the principles of natural justice, which is now a part of Articles 14 and 21 of the Constitution of India, but also, is provided under section 315 of the Code of Criminal Procedure. Giving of evidence cannot be restricted only to giving of oral testimony in Court. When the accused stated that he was falsely involved, he should be permitted to give evidence whether it be in the form of oral deposition in the Court or in the form of scientific evidence in the nature like braining finger printing test. To deprive the accused of such a right would tantamount to violation of fundamental right.
15. In the case of State of Gujarat vs. Inayat Ismail Vohra and other (supra), this Court was considering the question as to whether brain mapping or brain finger printing test of the accused can be carried out at his instance so as to allow the test result to be produced by way of evidence. It was at the stage when the complainant was in the witness box and his evidence had not been concluded and the cross examination was being prolonged for more than a year. The Court relying on the decision of Dr.Purshottam Swaroopchand Soni vs. State of Gujarat (supra) permitted the petitioner to undergo brain mapping test as requested by him. The Court while so allowing has held thus: "14. In the opinion of this court, while it is true that the Supreme Court in the context of the matter before it has held that even when the subject has given consent to undergo any of the said tests, the test results by themselves would not be admissible as evidence because the subject does not exercise conscious control over the responses during R/SCR.A/6403/2018 ORDER the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with section 27 of the Evidence Act, 1872. As noticed earlier, this is a converse case where the accused desire to undergo brainmapping/brainfingerprinting tests in support of their defence. As to what would be the evidentiary value of such test results cannot be gone into at this stage and the accused have a right to rely upon any available evidence to prove their innocence. Besides, if the respondentsaccused undergo such tests, no prejudice would be caused to the prosecution. In the opinion of this court, the binding decision of a coordinate bench of this court in the case of Dr. Purshottam Swaroopchand Soni v. State of Gujarat (supra) would be squarely applicable to the facts of the present case. Though the facts of the said case are slightly different from the facts of the present case, inasmuch as, the said case was based upon circumstantial evidence whereas the present case is one of direct evidence; in the said case, the accused right from the beginning had requested that he be subjected to narcoanalysis test whereas in the present case, such request has come at a much later stage on the ground that the accused seek to rely upon such evidence in their defence under section 315 of the Code. Nevertheless, the principles laid down in the said decision would be applicable to the facts of the present case, where the accused are alleging false implication and want to rely upon such test results in their defence. As to what would the evidentiary value of such test results, is for the trial court to consider at the time of trial, however, at this stage, in the light of the above decision of this court, the accused cannot be denied the right to undergo such tests.
accused that they had made such application while the prosecution witnesses were being examined with a view to ensure that when the stage of section 315 comes, the results of such tests are available. Besides, pending the present petitions, it appears that the prosecution evidence has already been closed and the stage of section 313 and 315 of the Code has already been reached. It appears that in those proceedings the accused have filed another application under section 313 and 315 of the Code for undergoing Brain Mapping/Brain Finger Printing and narcoanalysis tests. Thus, the contention that the application was made at a premature stage and ought not to have been allowed also no longer survives, inasmuch as, in view of the passage of time, the stage of section 313 and 315 of the Code has already reached. Insofar as the question of applicability of the principles of res judicata on the application made by the petitioners is concerned, it is an admitted position that on an earlier occasion, one of the accused persons had made an application seeking further investigation and narcoanalysis test of witnesses as well the accused for the purpose of bringing out the truth. The said application came to be partly allowed by the learned Judicial Magistrate by directing further investigation under section 173(8) of the Code; however, the request for narcoanalysis test of the witnesses came to be rejected. It has also been submitted that the said order has become final as the same has not been carried any further before the higher forum and hence, qua the respondent No.5 the application is barred by res judicata. In this regard, as noted hereinabove, the learned Judge has not directed further investigation under section 173(8) of the Code, but has directed the accused persons to undergo Brain Mapping/Brain Finger Printing tests for the purpose of using such evidence in their R/SCR.A/6403/2018 ORDER defence. Thus, the earlier application filed by one of the accused who was pleading alibi and wanted to undergo narcoanalysis test and also wanted the witnesses to be subjected to such test for the purpose of proving his plea of alibi, whereas by the present application, all the accused seek to undergo brainmapping and brainfingerprinting tests for the purpose of using the results of such tests as evidence in their defence. Therefore, strictly speaking, the principles of res judicata will not be applicable to the application made by the respondentsaccused.