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P.W.31 Pravin Bari Girath, Assistant Scientist was posted at Forensic Science Laboratory, Mandewala, Bangalore. He in his statement stated that Dr. S. Malini was the Assistant Director of the FSL, Mandewala, Bangalore and he had worked as Assistant Scientist with her in the Laboratory. As regards the Polygraph Test, he stated that this test is conducted to ascertain falseness and truthfulness. Thereafter, Brain Mapping Test is conducted, which gives knowledge of a particular event stored in the memory of brain. Thereafter, Narcotics Test is conducted in which person is injected Sodium Pentothal to ascertain about the special event stored in the memory of a person. Polygraph, Brain Mapping and Narco test of Vijai Sen Yadav were conducted by Dr. S. Malini and he had assisted her. Dr. S. Malini conducted the test in his presence and a C.D. of Narco Test was also prepared. He verified the signature of Dr. S. Malini on the Polygraph Examination dated 7.2.2008, Brain Mapping Examination Report dated 7.2.008 and Narco Analysis Examination Report dated 16.5.2008. The report of Narco Test was prepared by Dr. S. Malini. In his cross-examination, he stated that he has not brought material exhibit Ka-7, Ka-5 and the CD which had been brought by the Pairokar of the investigation. He further stated that he has no role to play to prepare the questions which are supposed to be asked. He further stated that in interrogation-room, only Dr. S. Malini and concerned person remain and no other person is allowed. For the purposes of Videography, a separate person is authorized. The District Hospital where the medicine was administered to Vijai Sen Yadav is about 30 kms. from his centre. He would not be able to tell what quantity of the medicine had been administered to Vijai Sen Yadav and the concerned doctor only can give the definite quantity of medicine. Medicine for semi-consciousness is given for Narco Test. How long the effect of the medicine would remain can be informed by the doctor. Narco Test was not conducted at his centre; rather, it was conducted at the Operation Theater of Hospital.

In Polygraph Examination, whatever opinion Dr. Malini has expressed, it is her personal opinion. He cannot tell as to what was the basis for writing the opinion. Polygraph Test was conducted from 17.1.2008 to 19.1.2008. Brain Mapping was conducted on 17.1.2008 and on next day, Narco Test was conducted. The reports of Polygraph, Braining Mapping and Narco Test were prepared on 7.2.2008, 7.2.2008 and 16.5.2008 respectively. It is correct to say that after so many days of Polygraph Examination, Narco Test Report was prepared. After knowing the outcome of Polygraph and Brain Mapping, Narco Test is conducted. It is wrong to say that false report was prepared under the pressure of police and he had shown his presence just to prove the report. However, he admitted his presence not being mentioned in any of the reports.

All the above facts have come to light for the first time in her statement, which was recorded in the court. The essence of the submission of learned counsel is that the statements of these two prosecution witnesses, who are highly interested and partisan, go to show that they are tutored-witnesses and their evidence is of no credence to prove the guilt of the appellants to the hilt.

Assailing the judgment of the Trial Court, Counsel for the appellant contended that the Trial Court committed a grave error in law by giving too much weightage to the report of Narco Test overlooking the fact that his report is equivalent to a statement recorded under Section 161 CrPC. The Trial Court has observed that on the basis of report of Narco Test, the Alto car was recovered and such recovery will be admissible under Section 27 of the Evidence Act. Learned counsel for the appellants vehemently argued that the Santro Car was already recovered and fact relating to use of Alto Car had also come during the course of investigation, thus, by no stretch of imagination it can be held that there was discovery of a new fact. The Trial Court has fell into a grave error by placing much reliance on the report of the Narco analysis test and the statement of P.W.31 Praveen Bari Girath, Assistant Scientist of FSL, Bangalore overlooking the material fact that he was not present at the time of Narco Test and in fact, the Narco test was conducted by Dr S.Malini who was not examined by the prosecution. Moreover, this witness was not conversant with the facts. He further submitted that a fatal error was committed by conducting Narco Test without obtaining consent of the appellant Vijai Sen Yadav which is mandatory before conducting such test. Inviting our attention towards Section 293 CrPC, learned Counsel for the appellants submitted that though Section 293 CrPC deals with the report of the Scientific Expert which may be used as evidence in an inquiry, trial or other proceeding, but it does not include reports of Brain Mapping, Narco Analysis and BEP Test. His submission was that placing absolute reliance on the Narco test report by the trial Court is wholly erroneous and the findings recorded by it are perverse. Apart from above, the reports of these tests are liable to be discarded as the Expert, who conducted these tests, has not been produced by the prosecution. Moreover, it is an admitted fact as would be evident from the statement of Dr.Girath (PW31) that Dr Malini herself was removed from service on account of committing misconduct. He added that non-production of Dr.Malini deprived the defence an opportunity to cross examine her on the point as to what type of questions were framed. Even P.W.31 Dr.Girath was unable to disclose in his deposition about the nature of questions framed while conducting the tests. He further submitted that the questions were framed in English language even without knowing whether appellant Vijai Sen Yadav was conversant with the language or not.

To establish offence under Section 120-B, prosecution has given much stress on Narco test and Brain Mapping as well as mobile connectivity amongst the three accused, but Dr. S. Malini, the Director, who has conducted the Narco test of accused Vijai Sen Yadav, was not produced and she is the only person, who can answer in the Court during trial. Instead of Dr. S.Malini, prosecution has examined Parvin Bari Girath (PW31), who was working at Forensic Science Laboratory, Bangalore at the relevant time as an Assistant Scientist. It is also significant to mention that the prosecution has relied very much on the Narco Test, but even in Selvi's case (supra), it has been stated that individual should not be forcibly subjected to any of the techniques in question. There must be voluntary administration of impugned techniques. However, in the instant case, evidence is material only for recovery of the vehicle [Alto Car] used in the commission of offence consequent to the disclosure statement made by the accused during Narco Analysis and is relevant in terms of Section 27 of the Evidence Act. Moreover, Jaggannath Tiwari (PW3), Ramanuj Mishra (PW4) and S.I. Siddhnath Katiyar (PW5) have already stated on oath that on the basis of mobile calls, these two witnesses Jaggannath Tiwari (PW3) and Ramanuj Mishra (PW4) were present to extend help for pushing the car at Aamghat Bridge. Though Jagganath Tiwari (PW3) has not identified the accused Vijai Sen Yadav in the Court, but accepted the presence of one person in car at that relevant time alongwith one girl, whose face could not be seen, whereas Ramanuj Mishra (PW4) has identified the accused Vijai Sen Yadav in Court, thereby the presence and involvement of Vijai Sen Yadav is proved that he took Km. Shashi from her house on some pretext on 22.10.2007 and this fact is proved by the statement of Km. Anita (PW2) and Smt.Arpita Srivastava (PW10). Thus, the participation of accused Vijai Sen Yadav in missing of Km. Shashi is established beyond doubt by his presence which is supported by several witnesses and different statements made time to time. Moreover, kidnapping of Shashi is further established by the location of Vijai Sen Yadav through his mobile on 22.10.2007 from 9 to 11 A.M. The call details of the mobiles which were being used by Vijai Sen Yadav have been proved by the prosecution, show that in the morning location of mobile of Vijai Sen Yadav is around Ayodhya, District Faizabad, whereas on the same day, in the night, his location is at District Sultanpur. Thus, the involvement of accused Vijai Sen Yadav is established beyond doubt and supported with Narco and Brain Mapping Test.