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2006 DIGILAW 1039 (RAJ)

Rajendra Singh v. Union of India through CBI

2006-03-31

GOPAL KRISHAN VYAS

body2006
Judgment Gopal Krishan Vyas, J.-By filing the present petition under Section 482, CrPC the petitioners have challenged the order dated 24.02.2006 whereby applications of the petitioners filed under Section 91, CrPC and Section 145 of the [Indian] Evidence Act have been rejected by the learned Addl. Sessions Judge, Parbatsar in Sessions Case No. 5/2005. 2. It is contended by learned Counsel for the petitioners that the petitioners are facing trial for offence under Section 302, IPC and other offences. The investigating agency- CBI seized three registers from the Stamp Vendors and Oath Commissioner in New Delhi which were sent for examination of the entries by the handwriting expert but the same have not been produced before the trial Court. It is submitted that there were no eye-witnesses to the alleged incident but the eye-witnesses have been cooked up by the relatives of the deceased who are in police service and Ram Narayan, Rameshwar, Durgaram and Gopiram have been posed as eye-witnesses to the incident and their statements under Section 161, CrPC were recorded under pressure, however, the said witnesses came out with truth before their friends and the conversation was recorded in the audio cassette. It is submitted that when the prosecution witness Ram Narain was produced before the Court, he was cross-examined on that tape (cassette) after playing the same before the trial Court but he refused that it was his voice, therefore, an application was filed for sending the audio cassette produced by the petitioners before the trial Court and the voice of Ramnarain for comparison and testing. The CBI filed reply to the application. The learned trial Court rejected the application by the impugned order. 2-A. It is contended by learned Counsel for the petitioners that the trial Court committed grave error in rejecting the application because the valuable right of the petitioners to defence is at stake and the petitioners are entitled to get the said relief for confrontation of statement recorded under Section 161, CrPC under the provisions of Section 145 of the Evidence Act. 3. Learned Counsel for the Union of India, Shri Panney Singh vehemently opposed the petition and submitted that the trial is going on and the application has only been filed for delaying the trial. It is also contended by him that earlier upon refusal of cross-examination a revision petition was filed before this Court. 3. Learned Counsel for the Union of India, Shri Panney Singh vehemently opposed the petition and submitted that the trial is going on and the application has only been filed for delaying the trial. It is also contended by him that earlier upon refusal of cross-examination a revision petition was filed before this Court. As per order of this Court, the application for voice examination of the cassette was already disposed of vide order dated 10.01.2006 and another application has been filed which is not maintainable. He contended that so far as production of the documents (registers) is concerned the prosecution is not relying upon those documents and therefore, there is no question of production of the said documents. 4. I have perused the impugned order and other relevant record. It is clear that the prosecution is not relying upon the said documents, registers of Stamp Vendor and Oath Commissioner of New Delhi, therefore, the trial Court has rightly rejected the said prayer. With regard to other application, it is also true that earlier for the same purpose application was moved which was decided on 10.01.2006 and there is no prayer for quashing the said order. 5. The trial Court categorically observed that if it is necessary to consider the prayer for voice examination the same will be considered at the time of final argument. I see no reason to interfere in the impugned order because at the time of confrontation when specifically a question is put up by the defence to the prosecution and the answer is in negative then it is to be proved by oral evidence adduced by the defence. If the prosecution witness does not desire then he cannot be compelled by the Court. The trial Court, therefore, rightly observed that at the time of final argument if it is found necessary then at that stage the prayer of the petitioners will be considered. In the present case, it is the contention of the petitioners that the statements of the said witnesses were recorded by the CBI under Section 161, CrPC under pressure; and, subsequently, these witnesses have come out with truth before their friends and the conversation was recorded on the audio tape. In the present case, it is the contention of the petitioners that the statements of the said witnesses were recorded by the CBI under Section 161, CrPC under pressure; and, subsequently, these witnesses have come out with truth before their friends and the conversation was recorded on the audio tape. If it is so, then in the event of giving negative answer to the question put to the witnesses with regard to the audio tape, the person who has recorded the voice can be produced in the Court and it is also the duty of the defence to explain before the Court that who has recorded the conversation and how it came to be recorded and where such recording was made. Obviously, as per the cross-examination a question was put by the defence that the conversation was with Phusaram and Rekharam and that was recorded. If it is so, then by producing Phusaram and Rekharam as defence witnesses the testimony of witness Ram Narayan was to be explained. But no question was put to witness Ram Narayan that who has recorded the conversation nor any application has been filed before the Court that Phusaram and Rekharam may be called to prove the voice and the fact that so-called conversation in between witness Ram Narayan and Phusaram and Rekharam took place. 6. However, for the present purpose, it is enough to note that order dated 10.01.2006 was already passed by the trial Court and that is not under challenge in this proceedings. That being the position, the petitioners again moved application under Section 145, Evidence Act on which the trial Court passed the impugned order dated 24.02.2006. In the facts and circumstances of the case, I do not find any ground for interference. The Court below came to the conclusion in right perspective. 7. Consequently, the petition is bereft of merit and the same is hereby dismissed