- (1.)This appeal arises out of an Order dated 19th October, 2012, passed by the High Court of Delhi whereby Criminal Miscellaneous Case No. 3536 of 2012 and Criminal Miscellaneous Application No. 17497 of 2012 have been dismissed and the order passed by the Trial Court refusing permission to the Appellant to lead evidence in defence affirmed. The Appellant is facing trial for the alleged commission of an offence punishable under Section 302 of the Indian Penal Code together with one Parmod @ Sunny. Upon conclusion of the prosecution evidence, statements of both the accused persons were recorded under Section 313 of Code of Criminal Procedure, 1973 [for short, 'Code of Criminal Procedure.'] on 30th July, 2012. In answer to one of the questions put to the Appellant in the course of that statement, viz, whether he wished to lead any evidence in defence, the Appellant appears to have answered in the negative. The other accused person, namely, Parmod @ Sunny, however, appears to have answered the question in the affirmative and was allowed to file a list of witnesses. Six days after the statement of the Appellant was recorded under Section 313 Code of Criminal Procedure., the Appellant filed a list of witnesses on 6th August, 2012, in which he proposed to examine as many as five witnesses, named in the said list and prayed for issue of summons to the said witnesses. That application was considered by the Trial Court and rejected by its Order dated 15th September, 2012, primarily on the ground that the Appellant had not opted to lead evidence in defence in his statement under Section 313 Code of Criminal Procedure. And that since no separate application had been filed seeking permission to examine any witnesses, the list-cum-application filed by him for summoning of the witnesses was not tenable.
(2.)The Appellant then appears to have filed a formal application purporting to be one under Section 311 Code of Criminal Procedure., in which he again proposed to examine five witnesses cited by him earlier. In the said application, the Appellant explained the reason why he did not opt to lead evidence in defence in the statement under Section 313 Code of Criminal Procedure. Briefly put, the explanation was that when his statement was recorded under Section 313 Code of Criminal Procedure., his counsel was not present in the Court. The proxy counsel appearing on his behalf did not understand the implication of the question put to the Appellant. The Appellant, therefore, was under a handicap and unassisted by his counsel, stated that he did not wish to lead any evidence in defence. The Trial Court dismissed even this application by its Order dated 20th September, 2012. The Trial Court held that while the accused had the right to lead evidence in defence, no explanation was given as to why he did not opt to examine any witnesses when he was asked to lead evidence in defence.
(3.)The dismissal of the application was then assailed by the Appellant before the High Court in Criminal Miscellaneous Case No. 3536 of 2012, which has been dismissed by the High Court, as noticed above. The High Court has taken the view that the Appellant having made a statement declining an opportunity to lead evidence in defence was not entitled to go back on that statement. The High Court also felt that the Appellant was trying to derail the trial in the guise of a prayer to lead evidence in defence.