YOG RAJ Vs. ROMAL SINGH

JUDGEMENT

(1.) ORDER :- Through the medium of this petition purporting to be made under the provisions of S. 435 read with S. 561-A, Cr. P.C., the reversal of the order dated 29-1-1994 passed by the learned Sub-Judge, Judicial Magistrate, 1st Class, Jammu, is sought. whereby he has refused the exhibition of the seizure memo dated 22-12-1991.

(2.) The factual matrix of the case is that in Challan No. 219/93 titled State v. Romal Singh and others, respondents 1 to 7 herein, are facing the trial for the commission of offences falling under Ss. 326/452/148/323, RPC read with Section 4/25 of the Arms Act. Yog Raj, petitioner herein, is the complaint in the case as well as a marginal witness of the seizure memo in question. The contents of the said seizure memo are that the respondent-accused Romal Singh had produced the alleged weapon of offence, namely, Toka, in the police station in the presence of the complainant Yog Raj and Kuldeep Raj. The statement of the complainant Yog Raj was being recorded on 7-12-1993 when the prosecutor sought to prove an exhibit the said seizure memo hut an objection was raised on behalf of accused-respondents 1 to 7 that weapon of offence was not recovered in consequence of the information given by the accused but it was the voluntary production by the accused himself and that could not be proved and exhibited. The learned Magistrate had relied upon the judgment of the Supreme Court of the case of Bahadul v. State of Orissa, AIR 1979 SC 1262 : (1979 Cri LJ 1075).

(3.) It is alleged in the petition that a fundamental right is available to an accused person only to the extent that he cannot he compelled to be a witness against himself and this concession can be waived voluntarily in answer to a question and the accused can produce an incriminating material himself. In case the prosecution is not allowed to prove the seizure memo in question, a vital link in the prosecution story will be broken and that will not be in the interests of justice.