MOHAN SINGH Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Sri Gaurav Kakkar, learned counsel for the applicant, Sri Amit Singh, learned counsel for the opposite party no.2, Sri Rajeshwar Singh and Sri Rakesh Chandra, learned A.G.A. for the State and perused the material on record.

(2.) Brief facts of the case are that a first information report was lodged by Hardeo Singh with the averments that on Thursday i.e. 21/6/2012 due to opening of city market, his mother had gone to market to purchase some articles, on the way some quarrel was going on between Mohan Singh (applicant) and Tikki both sons of Hariya, whereupon his mother intervened in order to pacify them and had asked them to finish the quarrel, due to which, Mohan Singh accused-applicant abused and shot her, who later on died. With regard to aforesaid incident dtd. 21/6/2012, a first information report was lodged by the opposite party no.2 on 21/6/2012 in Case Crime No. 368 of 2012 under Sec. 302 I.P.C. Police Station Kosi Kalan, District Mathura. Thereafter, matter was entrusted for investigation which culminated in filing of charge sheet. Thereafter, the case was committed to the Court of Sessions, which was registered as Sessions Trial No. 573 of 2012 (State Vs. Mohan Singh) under Sec. 302 I.P.C. in which, statements of the witnesses were recorded, thereafter statement of the accused was recorded under Sec. 313 Cr.P.C. and during the pendency of the trial, the accused applicant moved an application dtd. 16/8/2021 under Sec. 233 Cr.P.C. stating therein that the prosecution may be directed to provide the blood sample of the family members of victim and be sent to Forensic Laboratory for conducting the DNA test of the blood collected from earth to ensure as to whether both are same or not, upon which objection was filed and thereafter, said application has been rejected vide order dtd. 11/10/2021, it is this order which is under challenge before this Court.

(3.) Learned counsel for the applicant submits that an application under Sec. 233 Cr.P.C. dtd. 16/1/2018 was filed by the applicant stating therein that on the day of incident the applicant had gone to Delhi with regard to payment of loan taken from S.R.E.I. Equipment Finance Private Limited whereafter, he had gone to Bijnor and purchased a mobile phone from CEC Computers. It has also been stated that the deceased had died somewhere else as such, the Investigating Officer had prepared wrong Naksha Nazari of the place of incident. The Investigating Officer did not send the samples of Blood stained earth (mud) with the blood stained clothes of deceased for DNA test before the Forensic Laboratory and thus prayer was made for DNA test of blood stained earth (mud) and the wearing clothes of the deceased, which application was partly allowed to the effect that the SREL Equipment Finance Private Limited shall be present along with record as well as owner of C.E.C. Computers, Nagina Road, Bijnor was summoned but so far as grievance of the applicant with respect to DNA test, the same has been rejected vide order dtd. 16/7/2018, which order was challenged by the applicant by way of filing Application U/s 482 No. 33291 of 2018 and the co-ordinate Bench of this Court vide order dtd. 5/10/2018 had quashed the order dtd. 16/7/2020 to the extent it denies the permission of DNA test. Pursuant to the order dtd. 5/10/2018, the learned Court below ordered for DNA test of the blood stained earth with blood stained clothes of the deceased but the same could not be done as the incident is of the year 2012 and the clothes of the deceased was not possible to be traced as the same has been misplaced from Malkhana, as such the application was disposed of vide order dtd. 20/7/2021 with further direction to initiate proceedings against the concerned erring police officials. Learned counsel further submits that thereafter another application dtd. 16/8/2021 was moved by the applicant to direct the prosecution to provide the blood sample of family members of the victim and be sent to Forensic Laboratory for conducting the DNA test of blood stained earth to ensure that the blood of the stained earth and the blood of the family members of the victim are same, to arrive at just decision of the case and to prove the innocence of the aplicant, which application has been rejected on the ground that the prosecution has not been able to provide the blood sample of the family members of the deceased as they have denied to provide the same and further directed that the applicant may adduce any documentary or oral evidence with respect to his innocence. Learned counsel for the applicant submits that since the deceased had died somewhere else and false Naksha Nazari was prepared, thus it was absolutely necesary in the interest of justice of justice to arrive a just conclusion of the trial that the blood of the earth collected from the place of incident, as alleged, and the blood of the family members of the victim are matched, which can be ascertained by way of DNA test only.