Dinesh vs State of Haryana

M.M. Singh Bedi, J.

CRM-6167-2015

CRM is allowed.

Date of hearing in the main case is preponed to today.

CRM-M-5533-2015

Petitioner is facing trial for having been indicted for the murder of Neeraj alleged to have died on account of a knife injury. The prosecution agency has relied upon ocular version and the medical evidence in an attempt to substantiate the charge.

Vide impugned order Annexure P5, the application filed by the petitioner for sending the T-shirt EX.MO/3 to the Director, Forensic Science Laboratory, Madhuban, to demolish the case of the prosecution that the deceased had not died of the injury with knife but the holes on the T-shirt were suggestive of deceased having received firearm pallet injuries has been dismissed by observing as follows:-

5.Thereafter, it has been observed that from the testimony of PW.11 Dr.Surender Seroha, Medical Officer, it comes out that T-shirt was already sent to FSL, Madhuban along with other articles and report was called. During the cross-examination this witness categorically has stated that T-shirt EX.MO/3 having different size of holes around the bigger hole on the front side of it and there is no one external injury on the person of the decease. Also it comes out from his deposition that this witness has categorically stated that the holes in the T-shirt cannot have resulted due to shell marks on account of fire arms injury and the weapon used in this case was pointed one.

6.Further, it is pointed out here that certainly the accused has also got right to lead defence evidence, however, in view of the aforesaid facts discussed above and especially while the ld. Defence counsel have not put any specific suggestion to the aforesaid witness (PW.11) during his cross-examination in respect of the aforesaid points in respect of which present application has been moved and moreso, the trial of this case has already been concluded.

7.That being so, taking into account all the peculiar facts and circumstances of this case, this Court is of the considered view that no ground is made out to allow the present application. Resultantly, with the reasons recorded above the application in hand is hereby dismissed. Paper be tagged with the main file.

Counsel for the petitioner has vehemently contended that as per the provisions of Section 233 Cr.P.C., the application for the petitioner accused could have been refused for examining expert of Forensic Science Laboratory, Madhuban only on the ground if the application had been filed for vexatious purpose or delay or for defeating the interests of justice.

I have heard counsel for the petitioner. He has placed reliance on judgments T.N. Janardhanan Pillai Vs. State, and Nandlal and others Vs. State of Maharashtra, 2007 (1) RCR (Crl.), 951, in support of his contention that request of accused to summon expert of their choice cannot be declined except for the grounds mentioned in Section 233 Cr.P.C.

I have considered the said contention of the counsel for the petitioner in context to the provisions of law and the various documents which form part of the record of the trial Court in order to determine whether any serious prejudice could be said to have been caused by dismissing the application or the petitioner has been denied an opportunity to produce his defence evidence to impeach the credibility of the prosecution witnesses. The prosecution agency appears to have made an attempt to produce ocular as well as medical evidence besides the evidence of investigation officer to establish the story of deceased having died of a stab wound with a knife. In this context, I have gone through the testimony of Dr.Surender Saroha PW.11 who has proved the post mortem report and had been shown T-shirt Ex.MO/3 having different size holes around the bigger hole on front side of the T-shirt. He has also in cross-examination stated that the depth of the injury was 7cm and it was in oblique direction inward between 5th and 6th ribs. He was specifically asked if he found any blackening or tattooing of T-shirt EX.MO/3 on the wound which he has denied. In his cross- examination he has stated that the weapon used in the case was pointed one. The details of the pointed weapon which could have been used has also been given by the doctor. Intentionally the other factors have not been highlighted in this order. The investigating officer who had conducted the investigation and taken into possession the knife and the T-shirt of the deceased has also been cross-examined. The post mortem report has been proved by the investigating agency. The inquest report pertaining to the injuries to corroborate the injuries and to establish the prosecution case as put forth in the ocular version has been produced. No doubt, right to impeach the credibility of the prosecution witnesses with an objective to ultimately seek advantage of benefit of doubt generally is available to accused facing trial. It is also not disputed that the petitioner has got a right to apply for issuance of process for compelling the attendance of any witness but at the same time, it is the duty of the Court to ensure that if the evidence sought to be produced is essential for the just decision of the case it should be permitted to be produced.

In the present case, the petitioner has put forth a defence to create a doubt regarding the story of the prosecution that holes on the T-shirt of the deceased EX.MO/3 contained firearm damages. The defence sought to be established is generally put to the prosecution witnesses during the course of cross examination and same is generally stated in statement under Section 313 Cr.P.C. The petitioner has, in order to create a doubt regarding the cause of death and the manner in which the deceased died has cross examined the doctor as mentioned hereinabove. It will not be appropriate for this Court to form an opinion whether the petitioner has been able to demolish the story of the prosecution lest it should prejudice the rights of the prosecution or the petitioner during the course of trial but it is sufficient to observe that in statement under Section 313 Cr.P.C., the "defence plea" has not been specifically stated pertaining to the weapon or other injuries. The defence that the deceased could have died on account of firearm injury has not been suggested to the doctor or the investigating officer. The post mortem report would indicate, whether it suggests, a firearm injury or injury with a sharp edged weapon. Inquest report sent by him is also not commented upon at this stage pertaining to the apparent injuries. The judgments cited by counsel for the petitioner submitted in context to the provisions of Section 233 Cr.P.C. are, so far as, the proposition of law regarding alleged right of accused to produce defence are concerned, not disputed but at the same time a reference to said provisions along with Section 313 Cr.P.C., make it mandatory for the Court to examine whether evidence sought to be produced or the witness sought to be summoned would be necessary for the just decision of the case. The said discretion vested in the trial Court enables the trial Court to avoid vexatious material to be produced on the record which could delay the proceedings or would defeat the ends of justice. The petitioner on the basis of the cross-examination of the witnesses has already made an attempt to impeach the credibility of the witnesses and made an attempt to establish that the story of the prosecution could be improbable. The fishing enquiry by sending the T-shirt of the deceased to the Director, Forensic Science Laboratory, Madhuban, at the stage, when the trial has reached final stage, will not be expeditious in the interest of justice. Prima facie, the said action is not warranted in the interest of fair trial.

No ground is made out to interfere in the order passed by the trial Court.

The petition is dismissed.

Nothing mentioned in this order will, in any manner, prejudice the rights of the petitioner to raise the plea of defence and seek benefit of doubt in accordance with law at appropriate time.