Deepak Vishwakarma vs State of M.P.

G.S. Solanki, J.—This revision has been preferred by the applicant u/s 397 /401 of the Cr. P.C. being aggrieved by order dated 10.4.2013 passed by the Sessions Judge, Umariya in S.T. No. 18/2013 whereby three applications filed by the applicant have been rejected. It is not in dispute that the applicant is facing trial for an offence punishable under Sections 376, 328 of the IPC before Sessions Court, Umariya. It is also not in dispute that at present the case has reached to the stage of defence. The applicant has filed three applications on 25.3.2013. First application was filed inter-alia pleading that it has been brought in the statement of defence witness Pooran Singh (DW-1) that some constables went to search and arrest the applicant on 31.1.2013, however, the applicant has been shown to be arrested on 2.2.2013, therefore, the evidence of the persons who arrested the applicant from his home be called for explanation that the applicant was illegally detained between 31.1.2013 to 2.2.2013. The second application was also based on the discrepancies brought in cross-examination of Anusua Uike (PW-18) with respect to quantity of residue of bottle of beer and further in respect of examination of Sr. Scientist/ Assistant Chemical Examiner in defence or in alternative, he may be called as Court witness. Third application was filed for recalling of S.I. Shringesh Rajput (PW-15) and Yogendra Singh Rajput (PW-17) to explain the ambiguity in their statements in regard to videography.

The learned Sessions Judge, after providing opportunity of hearing to both the parties, dismissed all the three applications, hence this revision petition.

Learned counsel for the applicant has submitted that it is necessary for fair trial to recall the aforesaid witnesses in defence. Counsel has placed reliance on a decision of this Court in Rattiram and Others Vs. State of M.P.,

Learned Additional Advocate General appearing on behalf of the State has supported the order passed by the trial Court and submitted that the trial Court has already given full opportunity to the applicant to cross-examine Shringesh Rajput (PW-15) and Yogendra Singh Rajput (PW-17), therefore, there is no need to call or recall any witness in defence. This revision is liable to be dismissed.

I have perused the impugned order passed by the trial Court. It is on record that the accused has already examined two defence witnesses in his favour. If any discrepancies have been brought on record through cross-examination of any witness or by producing the defence witness like Pooran Singh (DW-1), all such discrepancies may be argued before the trial Court. In my opinion, all the discrepancies mentioned in the applications filed by the applicant, do not go to the root of the case because the main question for determination is not as to who made the videography Shringesh Rajput or Yogendra Singh Rajput. The main question for consideration is "the videography was made by someone". Further, it is also not significant at this stage as to when the applicant was arrested, this question also does not go to the root of the case. However, if the applicant has any grouse that he has been illegally detained by the Police, he could have raised this question before Judicial Magistrate/Chief Judicial Magistrate, who conducted the preliminary remand proceedings.

The applicant pleaded and argued before the trial Court in regard to the discrepancies in the statements with respect to quantity of residue of beer on the basis of the fact that one Sr. Scientist found a bottle containing 4-5 ml beer, which was lying in the dustbin but it has specifically come in the statement of Anusua Uike (PW-18) that she found about 10 ml of beer in the seized bottle and Sr. Scientist/Asst. Chemical Examiner mentioned in his report that bottle was consisting small quantity of liquid. After examination, she found that liquid found in the aforesaid bottle was consisting Ethyl Alcohol and Diazepam Tranquilizer.

The learned Sessions Judge after considering all the aforesaid aspects observed that the bottle which was stated to be lying in dustbin, has not been seized by I.O. Anusua Uike (PW-18). In these circumstances, if Assistant Chemical Examiner found that there was a small quantity of liquid in the seized bottle sent to him, it cannot be said to be a material discrepancy, which would prejudice the case of the applicant. After considering the aforesaid report of Sr. Scientist/Asst. Chemical Examiner, the trial Court was of the view that there is no need to call the aforesaid Officer. I am also of the view that considering the aforesaid facts and circumstances of the case, there is no material discrepancy in regard to the quantity of liquid sent to the Chemical Examiner.

In my opinion, the discretion exercised by the trial Court appears to be judicious. The trial Court has afforded full opportunity to cross-examine the prosecution witnesses as well as to examine two defence witnesses. The Apex Court in Rattiram and others Vs. State of M.P. (Supra) by referring the case of Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577 observed that the trial should not be prolonged under the camouflage of plea of failure of justice. In view of the aforesaid discussion, in my opinion, the trial Court has rightly dismissed the applications filed by the applicant. I do not find any illegality in the impugned order passed by the trial Court. The revision being devoid of merits, is hereby dismissed.