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2014 DIGILAW 880 (RAJ)

Asharam v. State of Rajasthan

2014-04-09

VIJAY BISHNOI

body2014
JUDGMENT 1. - The petitioner has been filed this Criminal Misc. Petition against the order dated 24.2.2014 passed by the Sessions Judge, District Jodhpur (hereinafter referred to as 'the Trial Court') in Session Case No. 152 of 2013, State v. Asha Ram & Ors. , whereby the application filed by the petitioner under Section 91 Cr.P.C. for summoning the videography CD of the complainant prepared at Police Station, Kamla Market, New Delhi on 19-20.8.2012, has been rejected. 2. The petitioner is facing trial for the offence punishable under Sections 342, 354-A, 370(4), 376(2)(f), 376(d), 506, 509, 120(b) I.P.C. read with Sections 5(f)/6, 5(g)/6 and 7/8 of Protection of Children from Sexual Offences Act, 2012 and Section 23 of Juvenile Justice Act, 2000, has filed an application under Section 91 Cr.P.C. before the Trial Court and prayed for summoning the CD prepared by Smt. Pushpalata, ASI, Police Station, Kamla Market, New Delhi on 19.8.2013, while contending that on 19.8.2013 the complainant has presented the complaint against the accused in New Delhi and at that time the said action of the complainant was videographed by Smt. Pushpalata, ASI, Police Station, Kamla Market, New Delhi, but the prosecution has not produced the said videographed CD along with charge-sheet which is a important document and, therefore, the same may be summoned. 3. The request of the accused petitioner for summoning the videographed CD prepared by Smt. Pushpalata, ASI, Police Station, Kamla Market, New Delhi on 19.8.2013 was opposed by the prosecution while arguing that the said CD is not part of the charge-sheet filed by the Police and the prosecution has also not relied upon the same, therefore, the same cannot be summoned before the Trial Court. 4. Learned Counsel for the accused petitioner has argued that the CD in which the complainant was videographed while making written complaint by the prosecutrix is a important document and is required for the purpose of cross-examining her, however, the prosecution has withheld the said document illegally and, therefore, the same may be summoned. 5. 4. Learned Counsel for the accused petitioner has argued that the CD in which the complainant was videographed while making written complaint by the prosecutrix is a important document and is required for the purpose of cross-examining her, however, the prosecution has withheld the said document illegally and, therefore, the same may be summoned. 5. Learned Counsel for the petitioner has further argued that as per the proviso of sub-section (3) of Section 161 Cr.P.C. any statement recorded by the police are required to be recorded by audio, video, electronic means and, therefore, the copies of the CD of the said statement of complainant are required to be supplied by the prosecution along with charge-sheet but the prosecution has deliberately withheld the said CD of containing the statement of the complainant which may result injustice to the accused as he will not be able to produced his defence effectively. 6. Per contra, learned Counsels for respondents have argued that the said CD is not containing the statement of the complainant and is only containing the action of the complainant of filing written complaint and, the same does not comes within the category of statement recorded under Section 161 Cr.P.C. and, therefore, the Trial Court has rightly rejected the application of the petitioner. It is also argued that the police has not relied upon the said CD in the charge-sheet, therefore, there is no question of withholding the said CD. It is also argued that pies of the statement of the prosecutrix recorded under section 161 Cr.P.C. has already been supplied to the accused petitioner, therefore, the application of him has rightly been rejected by the Trial Court and there is no legality in the impugned order. 7. Heard learned Counsel for the petitioner and perused the impugned order p well as the statement of Smt. Pushpalata, ASI, Police Station, Kamla Market, New Delhi recorded under Section 161 Cr.P.C. on 9.9.2013, copy of which is filed dong with this petition. 8. Learned Trial Court after hearing the parties has held that the CD sought a be summoned by the accused persons does not contain statement of the complainant and in the said CD, only the action of the complainant of filing written complaint is recorded. 8. Learned Trial Court after hearing the parties has held that the CD sought a be summoned by the accused persons does not contain statement of the complainant and in the said CD, only the action of the complainant of filing written complaint is recorded. The Trial Court has also observed that the action if writing written complaint by the prosecutrix cannot be termed as recording of statement of the prosecutrix under Section 161 Cr.P.C. The Trial Court has also observed that the action of filing written complaint by the prosecutrix in New Delhi does not come within the category of earlier statement of her and, therefore, there is no basis for summoning the said document while exercising powers under Section 91 Cr.P.C. 9. From the perusal of the statement of Smt. Pushpalata, ASI, Police Station, (Kamla Market, New Delhi recorded under Section 161 Cr.P.C. it is clear that the statement of the prosecutrix has not been videographed on 19.8.2013 and only the action of the prosecutrix of filing written complaint has been videographed, it cannot be said that the police has recorded the statement of the prosecutrix on 19.8.2013 and the accused can cross-examine her during the recording of her statement in the trial by confronting her with her earlier statement. The action of the prosecutrix of filing written complaint against the petitioner at Delhi on 19.8.2013 does not amount to recording of her statement under Section 161 Cr.P.C. 10. In such circumstances, I do not find any illegality in the order passed by the Trial Court and the petitioner has failed to make out a case for interference. Hence, this Criminal Misc. Petition filed by the petitioner is hereby dismissed.Stay petition also stand dismissed.Petition dismissed. *******