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2013 DIGILAW 910 (RAJ)

Moti Ram v. State of Rajasthan

2013-05-07

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant misc. petition has been preferred by the petitioner accused challenging the order dated 11.1.2013 passed by learned Judicial Magistrate No. 4, Jodhpur Metropolitan in relation to the FIR No. 270/2012 registered at the Police Station Basni, whereby the application filed by the petitioner for fair investigation and for having narco analysis, brain mapping and polygraph tests conducted upon the petitioner, has been rejected. 2. Succinctly stated the facts of the case are that one Ashok Gaur filed a report at the Police Station Basni on 27.2.2012 alleging interalia that his sister Gayatri went missing from the house at about 1 O'Clock in the afternoon. At that time, the tenant living in the adjoining house namely Moti Ram the petitioner herein, came out of his room. On an inquiry being made, the petitioner denied having any knowledge of Gayatri and locked the door and went away. The complainant started a search for Gayatri and ultimately, on opening the door of the tenant's room he saw that Gayatri was hanging from the fan hook in the said room. She was taken to the hospital but was declared dead. He saw that blood stains were scattered at various places in the room. Gayatri was having a large number of injuries on her body. A suspicion was expressed on the petitioner Moti Ram and his other companion tenants for having raped Gayatri and thereafter having murdered her. 3. On the basis of this information, an FIR No. 270/12 was registered at the Police Station Basni for the offences under Sections 302 and 376 I.P.C. and investigation commenced. 4. It is relevant to mention here that a suicide note scribed by the deceased was recovered during investigation in which the deceased did not level any allegations against the petitioner rather wrote that her family members were responsible for her suicide. 5. When the petitioner was arrested in the case, he raised a grievance that the father of the deceased was a Police Constable. Her brother Suresh was also a Police Constable and her uncles Amarchand and Omprakash are also employed as Policemen and thus, they conspired together to falsely foist the charges of rape and murder upon the petitioner. 6. 5. When the petitioner was arrested in the case, he raised a grievance that the father of the deceased was a Police Constable. Her brother Suresh was also a Police Constable and her uncles Amarchand and Omprakash are also employed as Policemen and thus, they conspired together to falsely foist the charges of rape and murder upon the petitioner. 6. He alleged that it was a case, wherein, being enraged by Gayatri and the petitioner's relationship, these family members, mercilessly assaulted her and as a result, Gayatri committed suicide and the family members in order to cover up their tracks laid the blame on the head of the petitioner. 7. The petitioner accordingly for proving his innocence, filed an application before the trial Court during the pendency of the investigation praying that the Investigating Officer be directed to have the narco analysis, brain mapping and polygraph tests conducted upon the petitioner so that the truth of the matter could be brought out. The petitioner conceded that he was ready to face the consequences of the reports of the aforesaid tests possibly being adverse and inculpating him for the offences. 8. The said application filed by the petitioner was rejected by the trial Court on 11.1.2013 and thus the instant misc. petition has been filed seeking a direction that the petitioner prosecuting agency be directed to subject the petitioner to the aforesaid three tests so that the truth of the matter can be brought on record. 9. Learned counsel for the petitioner placing reliance on the observations made by the Hon'ble Apex Court in the case of Smt. Selvi v. State of Karnataka reported in AIR 2010 SC 1974 contended that the Hon'ble Apex Court in the aforesaid case has held that a person cannot be compelled to undergo these tests as the techniques are violative of the right against self-incrimination. However, learned counsel argued that when the accused himself volunteers to undergo the tests, then in order to establish his innocence, the same can be permitted. He submitted that the Hon'ble Apex Court in the aforesaid case has also approved that the lie director test can be administered on the basis of the consent of the accused and an option should be given to the accused as to whether he wishes to avail such test. 10. He submitted that the Hon'ble Apex Court in the aforesaid case has also approved that the lie director test can be administered on the basis of the consent of the accused and an option should be given to the accused as to whether he wishes to avail such test. 10. Learned counsel further urged that in the present case, the prosecution agency despite repeated requests made by the accused, did not resort to such tests because it was apprehensive that the result of the tests would go adverse to its case. He contended that the accused volunteered for being subjected to the tests but despite that, the Investigating Agency deliberately did not resort to the scientific techniques of investigation in order to cover up the truth. He submitted that Sections 53 & 54 of the Cr.P.C. empower a Magistrate to direct such examination of the accused and when the accused is himself volunteering for the examination, there is no reason to deny such a prayer. He thus prayed that the misc. petition be accepted and the Investigating Agency be directed to conduct the aforesaid tests upon the accused petitioner in the presence of his lawyer so that the truth of the matter can be brought on record. 11. Learned Public Prosecutor and the learned counsel appearing for the complainant vehemently opposed the arguments advanced by the learned counsel for the petitioner. 12. Heard and considered the arguments advanced at the bar and perused the record. 13. The short question, which is posed for consideration by this Court is as to whether in view of the decision of the Hon'ble Apex Court in the case of Selvi, the accused can be permitted to be subjected to the invasive techniques of aforesaid three tests. The significant feature of the case at hand is that the accused in this case is volunteering and pressing for undergoing these tests as an extension of the right to defend himself. 14. Being aggrieved by the rejection of his prayer by the trial court, he was approached this Court by way of the instant misc. petition praying that the inherent powers of this Court under Section 482 Cr.P.C. be exercised for giving the necessary directions to subject the petitioner to these tests for enabling him to prove his innocence. 15. 14. Being aggrieved by the rejection of his prayer by the trial court, he was approached this Court by way of the instant misc. petition praying that the inherent powers of this Court under Section 482 Cr.P.C. be exercised for giving the necessary directions to subject the petitioner to these tests for enabling him to prove his innocence. 15. The restriction which has been imposed in Selvi's case is on the right of the prosecuting agency to subject the accused to undergo these tests. These tests have been held to be violative of right of self-incrimination. In the case at hand, the situation is converse, where the accused himself is insisting for the tests to be conducted upon himself in the exercise of his right to defend. Obviously in such a situation, conducting these tests upon the accused would not be an infringement of the right against self-incrimination rather it would be covered by the fundamental right of the accused to defend himself. 16. Therefore, in the opinion of this Court, there cannot be any hurdle in allowing the prayer of the accused for being subjected to the narco analysis, brain mapping and polygraph tests in relation to the circumstances prevailing during the course of the incident so that the accused can be provided with an opportunity of defending himself. 17. Accordingly, the instant misc. petition succeeds and is hereby allowed. The order dated 11.1.2013 passed by the learned Judicial Magistrate No. 4, Jodhpur Metropolitan is quashed and the Investigating Agency is directed to arrange for the aforesaid three tests to be conducted in light of the following observations made by the Hon'ble Apex Court in the case of Selvi (supra): (i) The Tests shall be administered except on the basis of consent of the accused. An option shall be given to the accused whether he wishes to avail such test. (ii) If the accused volunteers for the Test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer. (iii) The consent should be recorded before the trial court. (iv) During the hearing before the trial court, the accused be duly represented by a lawyer. (iii) The consent should be recorded before the trial court. (iv) During the hearing before the trial court, the accused be duly represented by a lawyer. (v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a 'confessional' statement to the Magistrate but will have the status of a statement made to the police. (vi) The trial court shall consider all factors relating to the detention including the length of detention and the nature of the interrogation. (vii) The actual conducting of the Tests shall be done by an independent agency (such as a hospital) and shall be conducted in the presence of a lawyer. (viii) The prosecution and the defence shall file their respective questionnaires and the trial court shall approve the questions which are to be put to the accused in the three tests. (ix) A full medical and factual narration of the manner of the information received must be taken on record. The misc. petition is allowed in the terms set out above.Petition allowed. *******