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2024 DIGILAW 794 (RAJ)

Subhash Dudi v. State of Rajasthan

2024-05-14

FARJAND ALI

body2024
ORDER : Farjand Ali, J. The petitioner has preferred the instant criminal misc. petition under Section 482 of the Cr.P.C. being aggrieved by the order dated 14.02.2023 passed by the learned Additional Sessions Judge, Jodhpur District in Sessions Case No.61/2019 (CIS No.191/2018) whereby the application under Section 233(3) of the Cr.P.C. was partly allowed and certain witnesses were summoned for defence. 2. The petitioner is an accused of a case and facing trial. After completion of the prosecution witnesses, an explanation was sought under Section 313 Cr.P.C. wherein he abjured from the allegations and claimed innocence. When it was asked whether he would lead evidence in defence; the answer was in affirmative. He moved an application for summoning of certain witnesses to bolster his defence. The said application though allowed but for production of two witnesses only. It is not reflecting that for what reason the prayer for other witnesses have been rejected. 3. Section 233 of the Cr.P.C. gives wide powers to the trial Court to allow the accused to enter into defence. He may produce the witnesses in support of his defence or if the witnesses are not within his reach or it is shown that the witnesses are not coming upon his request but they are relevant for the just decision of the case; in that situation the trial Court can issue process for summoning of those persons prayer for which is made on behalf of the defence. 4. While dealing with the identical issue this Court had passed a judgment in the case of Pushpa v. State of Rajasthan & Anr. in S.B. Criminal Revision Petition No. 460/2023 decided on 27.04.2023, in which elaborate discussion of the provision has been made. The relevant portion of aforesaid order is reproduced hereinbelow:- 4. Besides constitutional guarantee provided under Article 22 of the Constitution of India, the statutory provision contained under Sections 233 and 303 of the Cr.P.C. have given an absolute right in favour of the accused to defend himself/herself/themselves and to lead evidence in support thereof. The legal provision envisaged under the Code of Criminal Procedure makes it abundantly clear that after examination of the accused under Section 313 Cr.P.C., he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. The legal provision envisaged under the Code of Criminal Procedure makes it abundantly clear that after examination of the accused under Section 313 Cr.P.C., he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. While dealing with the identical issue, this Court in the matter of Gafur Khan v. State of Rajasthan (S.B. Criminal Revision Petition No. 1347/2022 decided on 14.12.2022) has observed as under:- The right to defend oneself provided under the statute is akin to a fundamental right guaranteed by the Constitution. The scheme of the Code of Criminal Procedure is in consonance with the spirit of the Constitution and criminal jurisprudence. In every prosecution, after commencement of trial, the prosecution is invited to produce its evidence. Upon completion of it, an explanation is being sought under Section 313 of the Cr.P.C. regarding the evidence adduced against the accused. It is also asked to him/her whether he/she wants to produce evidence in his/her defence. As envisaged under Section 315 of the Cr.P.C., the accused is also a competent witness and he/she can be examined on oath to prove his/her innocence. The legal position in this regard is very much clear and the same is stipulated under Section 233 of the Cr.P.C. which is reproduced as under:- 233. Entering upon defence. (1) Where the accused is not acquitted under section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. (2) If the accused puts in any written statement, the Judge shall file it with the record. Entering upon defence. (1) Where the accused is not acquitted under section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. (2) If the accused puts in any written statement, the Judge shall file it with the record. (3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. It is manifesting from bare perusal of Section 233 of the Cr.P.C. that if the accused is not acquitted under Section 232 of the Cr.P.C., he shall be called upon to enter in his defence and adduce any evidence he may have in support thereof. It is pertinent to mention here that in reply to the questions asked under Section 313 of the Cr.P.C., the accused has shown his intent to produce evidence in defence. It is the mandate of law that if the accused implores the Court for issuance of process or for compelling the attendance of any witness or production of any document or thing, the Judge shall issue such process. The only exception would be that if the Judge considers that the application has been moved for the purpose of delaying the trial or to vex the parties or otherwise calling or summoning of the evidence would defeat the ends of justice. It is imperative upon the trial Judge to record cogent reasons for denial of the process to compel the attendance of the witnesses or production of any document or any other evidence. It should not be an empty formality and the prayer cannot be rejected on vague, bald and hypothetical grounds. It is true that as per Section 94 of the Juvenile Justice Act, only in absence of any document or any other evidence enumerated therein to show the juvenility of a person, the other documents can be permitted to be considered for the purpose of determining the age of the victim, when a question comes for determination of age of a juvenile. In the case of Jarnail Singh v. State of Haryana reported in AIR 2013 SC 3467 Hon'ble the Supreme Court has propounded that the provisions of the Juvenile Justice Act are meant to be applied for a delinquent or a juvenile or a child in conflict and the same test can be applied on a victim also. But in the present case and at pre-culmination stage of the trial, no determination of age is to be done as the same is the task to be undertaken by the learned trial Judge after weighing, measuring and true appreciation of evidence brought before it. This Court is of the considered view that the accused cannot be denied adducing of evidence in his defence to show a different age of the victim/prosecutrix than what has been presented by the prosecution before the trial Court. Both the sides are parties to the lis, thus, both of them shall be provided an opportunity to lead evidence. What would be the effect or which part of the evidence would be relied upon is a question under the exclusive domain of the trial Judge who shall adjudicate the issue after critical appreciation of evidence brought on record on behalf of both the parties. One party cannot be denied to lead evidence on a particular point on the ground that the evidence of the other party is of impeccable quality than that of to the opposite party. The accused has a right to produce evidence in defence for the assertion of the fact that the age of the prosecutrix is not so as brought on record by the prosecution in the trial. The right to refute and counter is akin to right to defend which is an absolute right. Suffice it would be to say that the provisions of Section 233 of the Cr.P.C. are mandatory in nature except the exceptions provided therein. The accused has a right to produce evidence in his defence and for that, he may pray for issuance of process to compel the attendance of the witnesses production of which is not under his control. After production of evidence by both the parties, the trial Judge shall adjudicate the issue, after meticulous examination and appreciation of the evidence brought on record by both the parties. At this stage, it cannot be pre-empt that evidence of which party is more in weight. After production of evidence by both the parties, the trial Judge shall adjudicate the issue, after meticulous examination and appreciation of the evidence brought on record by both the parties. At this stage, it cannot be pre-empt that evidence of which party is more in weight. The appreciation of evidence shall be done by the trial judge in light of the statutory provisions, principles of law, jurisprudential spirit and ethos and the factual aspects narrated by the parties. After careful examination of the material available on record, this Court is of the considered opinion that the accused-petitioner has a right to make a prayer for summoning witnesses in defence. The probative value of the oral and documentary evidence cannot be discussed but it cannot be denied from being produced in the trial. When an accused prays for summoning of evidence in his/her/their defence, then only relevancy of the proposed evidence is to be seen at that point in time. Section 311 of the Code of Criminal Procedure empowers the court to summon any witness or examine any person at any stage of the trial if it is essential for the just decision of the case. The scheme of the Code is clear in this aspect that if any evidence is essential for the just disposal of the case then the same cannot remain un-produced or suppressed, even if the trial is at the stage of culmination. Section 391 further empowers the appellate court to seek additional evidence if necessary at the stage of appeal as well. If the Code itself envisages option of calling for evidence at any stage of trial and even at the stage of appeal in the interest that there is just disposition, then this Court fails to understand why a prayer of an accused seeking production of evidence in his defence be treated with prejudice without there being any adverse or extraordinary circumstances in play against the accused. An accused should be given equal opportunity at trial to defend himself as is given to the prosecution to present and establish a case against the accused. An accused should be given equal opportunity at trial to defend himself as is given to the prosecution to present and establish a case against the accused. It is routine for the prosecution to submit a lengthy list of prosecution witnesses according to which the projected prosecution witnesses are then summoned to court for examination and nobody bats an eye; to be more precise, there is no pre-assessment or appreciation of the importance of evidence at that stage before allowing the summoning of list of prosecution witnesses. The accused is liable to equivalent treatment of his prayer seeking summoning of evidence in his defence and the only caution to be exercised is that relevancy of the evidence alone is to be seen and not its probative value. Coming to the point of delay, this Court is of the opinion that, in some cases, the opportunity to summon defence is not availed by the accused timely and it leads to over-burdening of the dockets of the court but the accused cannot be denied of his legitimate right for the same, however, he/she/they may be penalised with an appropriate imposition of cost. 5. It is manifesting from the perusal of the constitutional and statutory provisions that there is an absolute right in favour of the accused to make a prayer for summoning of the defence witness and the same can only be denied in certain exceptional circumstances enumerated in the Section itself. What is reflecting from the order of the learned trial Court that summoning of the three police officials has been sought who conducted investigation in the matter and it was an assertion that all these three officials on different occasions had form an opinion regarding filing of negative final report. It is averred in the application that police officers Mr. Sandeep Sharma, the then SHO, Police Station Dudhwakara, Mr. Girish Kumar, the then Additional S.P. C.I.D. (C.B.) Range Bikaner and Mr. Rajesh Kumar, C.O., I.G. Bikaner earlier conducted investigation in the matter and reached on the conclusion that the alleged offence was not proved against the petitioners and had opined for a negative final report. 6. In this view of the matter, it can be said that the evidence of aforesaid persons is relevant for the justifiable disposal of the case. Rajesh Kumar, C.O., I.G. Bikaner earlier conducted investigation in the matter and reached on the conclusion that the alleged offence was not proved against the petitioners and had opined for a negative final report. 6. In this view of the matter, it can be said that the evidence of aforesaid persons is relevant for the justifiable disposal of the case. Otherwise also, the learned trial Court has allowed the petitioners to produce the aforesaid witnesses at their own accord, and denied to summon only, in this fact situation, this Court feels that since the aforementioned persons are police officers, therefore, their production would not be within the control of the petitioners. 5. In one another case of Gafur Khan v. State of Rajasthan & Anr. in S.B. Criminal Revision Petition No. 1347/2022 decided by this Court on 14.12.2022, similar view was taken. The relevant portion of the order is reproduced hereinbelow:- The right to defend oneself provided under the statute is akin to a fundamental right guaranteed by the Constitution. The scheme of the Code of Criminal Procedure is in consonance with the spirit of the Constitution and criminal jurisprudence. In every prosecution, after commencement of trial, the prosecution is invited to produce its evidence. Upon completion of it, an explanation is being sought under Section 313 of the Cr.P.C. regarding the evidence adduced against the accused. It is also asked to him/her whether he/she wants to produce evidence in his/her defence. As envisaged under Section 315 of the Cr.P.C., the accused is also a competent witness and he/she can be examined on oath to prove his/ her innocence. The legal position in this regard is very much clear and the same is stipulated under Section 233 of the Cr.P.C. which is reproduced as under:- 233. Entering upon defence. (1) Where the accused is not acquitted under section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. (2) If the accused puts in any written statement, the Judge shall file it with the record. Entering upon defence. (1) Where the accused is not acquitted under section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. (2) If the accused puts in any written statement, the Judge shall file it with the record. (3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. It is manifesting from bare perusal of Section 233 of the Cr.P.C. that if the accused is not acquitted under Section 232 of the Cr.P.C., he shall be called upon to enter in his defence and adduce any evidence he may have in support thereof. It is pertinent to mention here that in reply to the questions asked under Section 313 of the Cr.P.C., the accused has shown his intent to produce evidence in defence. It is the mandate of law that if the accused implores the Court for issuance of process or for compelling the attendance of any witness or production of any document or thing, the Judge shall issue such process. The only exception would be that if the Judge considers that the application has been moved for the purpose of delaying the trial or to vex the parties or otherwise calling or summoning of the evidence would defeat the ends of justice. It is imperative upon the trial Judge to record cogent reasons for denial of the process to compel the attendance of the witnesses or production of any document or any other evidence. It should not be an empty formality and the prayer cannot be rejected on vague, bald and hypothetical grounds. It is true that as per Section 94 of the Juvenile Justice Act, only in absence of any document or any other evidence enumerated therein to show the juvenility of a person, the other documents can be permitted to be considered for the purpose of determining the age of the victim, when a question comes for determination of age of a juvenile. In the case of Jarnail Singh v. . In the case of Jarnail Singh v. . State of Haryana reported in AIR 2013 SC 3467 Hon'ble the Supreme Court has propounded that the provisions of the Juvenile Justice Act are meant to be applied for a delinquent or a juvenile or a child in conflict and the same test can be applied on a victim also. But in the present case and at pre-culmination stage of the trial, no determination of age is to be done as the same is the task to be undertaken by the learned trial Judge after weighing, measuring and true appreciation of evidence brought before it. This Court is of the considered view that the accused cannot be denied adducing of evidence in his defence to show a different age of the victim/prosecutrix than what has been presented by the prosecution before the trial Court. Both the sides are parties to the lis, thus, both of them shall be provided an opportunity to lead evidence. What would be the effect or which part of the evidence would be relied upon is a question under the exclusive domain of the trial Judge who shall adjudicate the issue after critical appreciation of evidence brought on record on behalf of both the parties. One party cannot be denied to lead evidence on a particular point on the ground that the evidence of the other party is of impeccable quality than that of to the opposite party. The accused has a right to produce evidence in defence for the assertion of the fact that the age of the prosecutrix is not so as brought on record by the prosecution in the trial. The right to refute and counter is akin to right to defend which is an absolute right. Suffice it would be to say that the provisions of Section 233 of the Cr.P.C. are mandatory in nature except the exceptions provided therein. The accused has a right to produce evidence in his defence and for that, he may pray for issuance of process to compel the attendance of the witnesses production of which is not under his control. After production of evidence by both the parties, the trial Judge shall adjudicate the issue, after meticulous examination and appreciation of the evidence brought on record by both the parties. At this stage, it cannot be pre-empt that evidence of which party is more in weight. After production of evidence by both the parties, the trial Judge shall adjudicate the issue, after meticulous examination and appreciation of the evidence brought on record by both the parties. At this stage, it cannot be pre-empt that evidence of which party is more in weight. The appreciation of evidence shall be done by the trial judge in light of the statutory provisions, principles of law, jurisprudential spirit and ethos and the factual aspects narrated by the parties. After careful examination of the material available on record, this Court is of the considered opinion that the accused-petitioner has a right to make a prayer for summoning witnesses in defence. The probative value of the oral and documentary evidence cannot be discussed but it cannot be denied from being produced in the trial. When an accused prays for summoning of evidence in his/her/their defence, then only relevancy of the proposed evidence is to be seen at that point in time. Section 311 of the Code of Criminal Procedure empowers the court to summon any witness or examine any person at any stage of the trial if it is essential for the just decision of the case. The scheme of the Code is clear in this aspect that if any evidence is essential for the just disposal of the case then the same cannot remain un-produced or suppressed, even if the trial is at the stage of culmination. Section 391 further empowers the appellate court to seek additional evidence if necessary at the stage of appeal as well. If the Code itself envisages option of calling for evidence at any stage of trial and even at the stage of appeal in the interest that there is just disposition, then this Court fails to understand why a prayer of an accused seeking production of evidence in his defence be treated with prejudice without there being any adverse or extraordinary circumstances in play against the accused. An accused should be given equal opportunity at trial to defend himself as is given to the prosecution to present and establish a case against the accused. An accused should be given equal opportunity at trial to defend himself as is given to the prosecution to present and establish a case against the accused. It is routine for the prosecution to submit a lengthy list of prosecution witnesses according to which the projected prosecution witnesses are then summoned to court for examination and nobody bats an eye; to be more precise, there is no pre-assessment or appreciation of the importance of evidence at that stage before allowing the summoning of list of prosecution witnesses. The accused is liable to equivalent treatment of his prayer seeking summoning of evidence in his defence and the only caution to be exercised is that relevancy of the evidence alone is to be seen and not its probative value. 6. In light of the above legal position and observing that the accused has an absolute right to seek for issuance of process for production of witnesses so that they may be examined in the defence stage, it is felt apt to make interference. After going through the niceties of the matter, it is observed that the statement of the five witnesses namely Prakashram, Ghanshyam, Sahiram, Kishanlal and Gordhanram are relevant for the defence taken by the accused, and therefore, their production would be necessary for the just decision of the case. An opportunity to lead evidence in defence has to be given. The Courts are meant to impart justice and not to decide the application summarily. When the prosecution was given ample opportunity to lead the evidence in support of the charge and for that as many as 30 witnesses were summoned and period of five years was given to them then why a discriminatory approach should be taken when it comes to the case of the defence. 7. With these observations, the misc. petition is allowed. The order under assail is modified to some extent. It is deemed appropriate to direct that the five witnesses namely Prakashram, Ghanshyam, Sahiram, Kishanlal and Gordhanram description of which is mentioned in the application; be summoned for the purpose of their deposition before the Court as a witness of the defence. The trial Court would be at liberty to fix a particular date for the purpose of recording of their statement. 8. Stay petition stands disposed of.