Rajasthan High Court - Jodhpur
Dinesh @ Diniya @ Lala Ram vs State Of Rajasthan on 2 August, 2022
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR
S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
No. 371/2022
Dinesh @ Diniya @ Lala Ram
----Petitioner
Versus
State Of Rajasthan
----Respondent
For Petitioner(s) : Mr. Dhirendra Singh, Sr. Adv. assisted
by Mr. B.L. Dudy and Ms. Priyanka
Borana
For Respondent(s) : Mr. Mahipal Bishnoi, PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
02/08/2022
Mr. Dhirendra Singh, learned Senior Counsel assisted by
Mr.B.L. Dudy and Ms. Priyanka Borana appearing on behalf of the
accused-appellant submits that the matter pertains to NDPS
contraband and the FSL in the matter was one of the critical
pieces of evidence, that could have been relied upon by the
prosecution to establish its case.
Learned Senior Counsel further submits that the grave
lacuna has arisen in the present case as the FSL has been put in
second part of the record and has not been exhibited by the
prosecution for the purpose of establishing the conclusion of the
same, as to type of the contraband.
Learned Senior Counsel also submits that it is a scientific
evidence, and once it was there in Part-II and a question
regarding the same has not been posed to the appellant, while his
statement under Section 313 Cr.P.C. was recorded, then the
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learned trial court has committed a grave flaw in law, and thus, if
such flaw is seen with a strict view, it is sufficient to exonerate the
present appellant.
Learned Senior Counsel has shown the precedent laws laid
down by the Hon'ble Apex Court in Nagesh VS. State of
Karnataka reported in 2012(6) SCC 477; Sukhjeet Singh Vs.
State of Punjab reported in 2014(10) SCC 270; and Satbeer
Singh & Another Vs. State of Haryana (Criminal Appeal
Nos.1735-1736 of 2010) dated 28.05.2021, in which, the
gravity of Section 313 Cr.P.C. has been reiterated for the purpose
of maintaining the sanctity of the chance or opportunity given to
the accused to defend himself; after perusing the said judgments,
it is clear that the Hon'ble Apex Court has viewed it very seriously
so as to make it a mandatory for the trial courts to give full effect
to Section 313 Cr.P.C. so that the accused concerned has complete
opportunity to defend himself.
On the other hand, learned Public Prosecutor, while opposing
the submissions made on behalf of the appellant, submits that
Section 313 Cr.P.C. has a wider ambit and though the questions
should have been asked and the FSL should have been taken as
an exhibit at the instance of the prosecution, but in case, such
flaw has entered into the arena of adjudication, then it would be in
the fitness of the things that this Court invokes its powers under
Section 391 Cr.P.C. and the send the matter back to the concerned
trial court for putting the FSL available in the Part-II as into Part-I
and also permit examination of the present appellant in relation to
the FSL on record, and after framing the question of Section 313
Cr.P.C., he may be given an opportunity to defend himself, strictly
in accordance with law.
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After hearing learned counsel for the parties as well as
perusing the record of the case, this Court finds that the
precedent laws cited by learned Senior Counsel applies to the
present case, and thus, this Court is bound to uphold the sanctity
of opportunity to be given to the accused under Section 313
Cr.P.C.
It is, therefore, directed that the learned trial court shall
consider the FSL from the record, as if in Part-I, and give one
opportunity to the appellant to render his statement under Section
313 Cr.P.C. to the limited extent of the FSL only, strictly in
accordance with law.
For the aforesaid purpose, it is directed that the FSL even
though is considered as a document in Part-II, the same shall be
treated as an exhibit to be marked by the learned trial court and
be considered as a document in Part-I. The record be immediately
send back to the learned trial court so that it can complete the
aforesaid exercise of conducting the statement of the appellant
under Section 313 Cr.P.C. for the limited purpose of FSL report by
marking it as an exhibit and keeping it in Part-I of the record.
Such exercise shall be completed by the learned trial court
expeditiously preferably within a period of two months from today,
strictly in accordance with law.
List the present suspension of sentence application as well as
the appeal before this Court, after the said exercise is completed
by the learned trial court.
(DR.PUSHPENDRA SINGH BHATI), J.
185-Zeeshan
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