Ilakedar vs State of U.P. and Shri Darshan Singh

Poonam Srivastava, J.—Heard Shri S.P.S. Raghav and Sri K.K. Dwivedi, Counsel for the revisionist, Shri Ravindra Sharma Counsel for the opposite party No. 2 and learned A.G.A. for the State.

This revision has been filed against the order dated 2.9.2005 passed by the Special Judge (D.A.A.) Firozabad in Sessions Trial No. 95 of 2002 (Case Crime No. 170 of 2002) State v. Ilakedar and Ors., under Sections 302, 307, 504 I.P.C., Police Station Jasrana district Firozabad.

At the very outset, the Counsel for the revisionist has placed paragraph 10 of the affidavit filed in support of stay application bringing to the notice of this Court that a Criminal Misc. Application No. 13630 of 2005 u/s 482 Cr.P.C. earlier filed, was dismissed as not pressed on 23.9.2005. Thereafter, this revision has been filed challenging the same order.

The proceeding in Sessions Trial No. 95 of 2002 (Case Crime No. 170 of 2002) State v. Ilakedar and Ors., under Sections 302, 307, 504 I.P.C., Police Station Jasrana district Firozabad, are continuing. An application was moved on 2.7.2005 u/s 311 Cr.P.C. for recalling P.W. 6 Dr. Rajesh and P.W. 7 Dr. S.C. Gupta stating that specific question was required to be put to the two witnesses in the cross examination, After the two witnesses were examined, it transpires that the questions put to them were not answered and two doctors clearly stated that they were not in a position to give proper answer and express any opinion regarding the nature of injury caused by the fire arm. Dr. Rajesh stated that he has not read Modi''s Jurisprudence and Dr. S.C. Gupta was unable to answer as to whether injuries could be caused from a distance of 25 paces. On the contrary, he stated that this answer can be given by the Ballistic Expert. In these circumstances, an application was moved to summon the report of Ballistic Expert. The application was rejected on the ground that the defence was allowed almost one year and previously application u/s 311 Cr.P.C. was allowed and two doctors were recalled. While rejecting the application, the learned Sessions Judge made observation that the defence is not required to clarify the infirmities of the prosecution case and whatever is required regarding injuries and evidence as also whether it could be caused by weapon alleged, can be procured by consulting Modi''s Jurisprudence. So far as the opinion of Ballistic expert, it appears to be shortcoming of the investigating officer and accused is not required to fill up the lacuna.

On perusal of the aforesaid finding, it is evident that the learned Sessions Judge has completely erred in law in recording a finding that the defence is not required to produce the evidence, which is lacking on the part of the investigating officer. In the event, certain evidence has not been produced by the prosecution, the apprehension of the accused is fully justified. Shri S.P.S. Raghav has specifically argued that we do not know as to whether the evidence was withheld by the prosecution for obvious reason or not?

No doubt, considerable delay has been caused in the Session Trial which is pending since the year 2002, still the Apex Court has continuously held in number decisions that the defence should be allowed proper opportunity to lead evidence, In the case of Zahira Habibulla H. Sheikh and Another Vs. State of Gujarat and Others, . It was ruled that the administration of justice viz.-a-viz. a fair trial has to be maintained by the Presiding Officer. The Court should endeavor to elicit all required relevant material necessary for reaching a correct conclusion and to find out the truth. In circumstances, I feel that the evidence of Ballistic expert becomes all the more necessary in the light of statements given by two doctors who were recalled u/s 311 Cr.P.C.

In the facts and circumstances of the case, the impugned order dated 2.9,2005 is quashed and the learned Session Judge, concerned, is directed to obtain a report of Ballistic expert within reasonable time and fix a date for recording evidence. It should be made clear to the parties that the case will not be adjourned on the date the expert evidence is adduced. The trial which is pending since the year 2002, shall be completed in accordance with law within a period of four months from the date of filing of a certified copy of this order. The revision is allowed.