Delhi High Court
Om Prakash vs State on 14 December, 2022
Neutral Citation Number 2022/DHC/005567
$~25 & 26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 2242/2019, CRL.M.A. 8959/2019
OM PRAKASH ..... Petitioner
Through: Mr.Dinesh Garg, Advocate
versus
STATE ..... Respondent
Through: Mr.Raghvinder Verma, APP for the
State with Insp.Manjusha,
PS R.K.Puram.
26
+ CRL.M.C. 5010/2019 & CRL.M.A. 37336/2019
SMT. PINKY ..... Petitioner
Through: Mr.Shantanu Bhardwaj, advocate
versus
STATE ..... Respondent
Through: Mr.Raghvinder Verma, APP for the
State with Insp.Manjusha,
PS R.K.Puram.
% Date of Decision: 14.12.2022
CORAM:
HON'BLE MR. JUSTICE DINESH KUMAR SHARMA
JUDGMENT
DINESH KUMAR SHARMA, J. (Oral)
1. Present petitions have been filed challenging the order dated
18.03.2019 by the learned trial court whereby the learned trial court
inter alia directed that the CD Ex.PW-12/Article-1 and the Pen Drive
Signature Not Verified
Digitally Signed
By:PALLAVI VERMA
Signing Date:15.12.2022
15:50:10
Neutral Citation Number 2022/DHC/005567
Kingston 8GB Ex.PW8/Article-1 be sent to the FSL Rohini (1) for
comparison of the face of the complainant as well as for the face
recognition of the accused (2) to compare the voice of the complainant
with the questioned voice in CD Ex.PW-12/Article-1 as well as in Pen
Drive Ex.PW-8/Article-1 (3) to compare the voice of the accused with
the question voice in CD Ex.PW-12/Article-1 as well as in Pen Drive
Ex.PW-8/Article-1.
2. Learned trial court further directed that the accused shall not be made
to read any inculpatory statement or transcript of the conversation in
question but shall be made to read out words and sentences which are
not inculpatory and are not the exact reproduction of the transcript.
3. Learned counsel for the petitioner submits as far as these directions are
concerned, he does not wish to challenge. Learned counsel submits
that his grievance is that learned trial court directed SHO, PS
R.K.Puram to appoint an officer, not below the rank of Inspector for
compliance of the above order and to take steps to ensure the presence
of the accused as well as complainant Ms.Pinki before the Director,
FSL, Rohini for recording of their sample voice as well as for taking of
their photographs for face recognition/comparison.
4. Learned counsel for the petitioner submits that the petitioner cannot be
taken forcibly by a police official to the FSL for giving the sample
voice as well as for giving his photographs for face
recognition/comparison. Learned counsel submits that in case the
petitioner does not comply with the directions of the court, an adverse
inference, at the best, may be drawn.
Signature Not Verified
Digitally Signed
By:PALLAVI VERMA
Signing Date:15.12.2022
15:50:10
Neutral Citation Number 2022/DHC/005567
5. Learned APP for the State has submitted that learned trial court has
passed the reasoned order and there is no reason to interfere in the
same.
6. In Ashok Kumar vs. Raj Gupta & Ors., Civil Appeal No.6153/2021
vide order dated 01.10.2021 the Supreme Court has inter alia held as
under:
"15. Having answered these questions, additional issue to be
resolved is whether refusal to undergo DNA Testing amounts to
'other evidence' or in other words, can an adverse inference be
drawn in such situation.
In Sharda vs. Dharmpal a three judges bench in the opinion written
by Justice S.B. Sinha rightly observed in paragraph 79 that "if
despite an order passed by the court, a person refuses to submit
himself to such medical examination, a strong case for drawing an
adverse inference" can be made out against the person within the
ambit of Section 114 of the Evidence Act. The plaintiff here has
adduced his documentary evidence and is disinclined to produce
further evidence. He is conscious of the adverse consequences of
his refusal but is standing firm in refusing to undergo the DNA Test.
His suit eventually will be decided on the nature and quality of the
evidence adduced. The issue of drawing adverse inference may also
arise based on the refusal. The Court is to weigh both side's
evidence with all attendant circumstances and then reach a verdict
in the Suit and this is not the kind of case Where a DNA test of the
plaintiff is without exception."
7. I consider that the petitioner cannot be compelled or be taken forcibly
to the Director, FSL for giving voice sample or for giving his
photographs. It goes without saying that if petitioner fails to give his
voice sample or his photograph for comparison or the order dated
18.03.2019, certainly an adverse inference can be drawn against him.
Signature Not Verified
Digitally Signed
By:PALLAVI VERMA
Signing Date:15.12.2022
15:50:10
Neutral Citation Number 2022/DHC/005567
The petitioner may choose not to comply with the order subject to
having the risk of suffering an adverse inference.
8. The learned trial court may accordingly appreciate the evidence with all
attendant circumstances in accordance with the law at the time of final
adjudication of the matter in dispute.
9. The impugned order is modified to the extent that the police officer
shall not forcibly take the petitioners to the FSL. However, the
petitioners may on their own go to the Director, FSL in compliance of
the order dated 18.03.2019 on or before 30.12.2022.
10. With the above observations both the petitions along with the pending
applications stand disposed of.
DINESH KUMAR SHARMA, J
DECEMBER 14, 2022
rb..
Signature Not Verified
Digitally Signed
By:PALLAVI VERMA
Signing Date:15.12.2022
15:50:10
