The court emphasized the necessity of scientific evidence, allowing DNA testing despite procedural delays, to ensure fair adjudication in a circumstantial evidence case.

JUDGMENT :

NEENA BANSAL KRISHNA, J.

1. Petition under Section 482 of the Code of Criminal Procedure, 1973 (‘ Cr.P.C ’ hereinafter) has been filed on behalf of the Petitioner/father of the deceased to conduct the DNA test from the clothes of the deceased and of accused Hari Singh Yadav @ M.P in case FIR No.260/2013 under Section 307/302/34 of the Indian Penal Code, 1860 (‘ IPC ’ hereinafter), P.S.Vijay Nagar, Delhi.

2. It is submitted that the aforesaid FIR 260/2013 was registered on the DD No.55B dated 18.05.2013 about a person having been injured. Subsequently, on 23.05.2015 injured Vikram died and Section 302 IPC was added. The accused Hari Singh Yadav @ M.P was arrested on 19.05.2013 at the pointing out of the brother of the deceased.

3. The Charge Sheet was filed and Charges framed after which the entire Prosecution evidence has been recorded. The case is pending before the learned Sessions Judge, at the stage of final arguments.

4. At this stage of Final arguments, Application under Section 293 (4)(f) Cr.P.C read with Section 45 of the Indian Evidence Act, 1872 was filed on behalf of the Complainant (father of the deceased) for directing the IO/Prosecution to conduct DNA test of the clothes of the deceased and from the clothes of the accused, Hari Singh Yadav seized vide Memo Exh.PW- 24/B Exh.PW-21/D, respectively. The clothes, during the investigations, had been sent to Forensic Science Laboratory for examination, but the result was inconclusive as per Reports Exh.PW-22/A and 22/B. The blood stains on the clothes of the accused if found to belong to the deceased, would prove his presence on the spot at the relevant time. This exercise is essential for the proper and fair adjudication of the case and the DNA testing of stains on the clothes of deceased and the Accused, thus sought.

5. Reliance was placed on State of Gujarat vs. Kishanbhai, (2014) 5 SCC 108 wherein the Apex Court had exhorted the Investigating Agency to resort to latest scientific and forensic techniques to establish the facts.

6. This Application was opposed on behalf of the Accused wherein it was contended that the Biological and Serological Reports were obtained more than three years ago. This Application is highly belated and there was no reason for waiting for so long to move the present Application. The seizure of the clothes of Accused Hari Singh has not been proved in so much as PW-9, Vikas, the younger brother of the deceased, in his testimony had denied the shirt of the accused Hari Singh was seized by the Police on 19.05.2013 or that it was stained with blood.

7. It was, therefore contended that the Application is a desperate attempt by the Complainant to fill up the lacuna and the gaps in the case of the prosecution. In view of the statement of PW9 denying the seizure of the clothes of the accused, any exercise undertaken in this regard would not serve any fruitful purpose.

8. Learned ASJ vide impugned Order dated 15.4.2017 observed that the provisions under which the Application was moved does not provide a foothold to the parties to get a case or ascertainment of a particular fact relevant thereto, ascertained by referring to expert examination/opinion.

9. The judgment in the case of Raja Ram Prasad Yadav vs. State of Bihar decided by the Apex Court on 04.07.2013 , observed that the exercise of power cannot be dubbed as filling up lacuna. However, it was distinguishable on the ground that it was made in the context of Section 311 Cr.P.C . which was not applicable to the present case. It was concluded by Ld. ASJ that since the trial was at the fag end and IO had been substantially examined in chief, resort to Section 165 of the Evidence Act, may give an inkling of Court digging out evidence for one party, which would not be appropriate. However, the Application was dismissed with the observation that the Prosecution is not precluded from proceeding under Section 173 (8) Cr.P.C . in the matter.

10. Aggrieved by the said Order, the Complainant has challeng