1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO.3934 OF 2009 Kiran Kacharadas Gujar : Applicant V/s. Shri Dipak Lakhmichand Parekh & Ors. : Respondents .... Mr.Ashish Sawant i/b. Mr.M.S. Mohite for the applicant. Ms Revati Mohite-Dere for respondent no.1 to 4. Mrs.A.A.Mane, Addl. Public Prosecutor for the State. ... CORAM : S.A. BOBDE, J. DATE : OCTOBER 15, 2009. P.C.: 1. The applicant has challenged the order dated 20.6.2009 by which the learned Sessions Judge has rejected the prayer of the prosecution for sending the accused for a Narco Analysis Test. It appears that the trial Court has rightly rejected the application on the ground that the trial has already been commenced. 2. In this case, the respondent nos.1 to 4 i.e. the husband and his relatives, including his aunt and father, have been charged under sections 2 498-A and 306 read with 34 of the I.P.C. in respect of the death of the deceased Sadhana in the year 1999. Earlier, pending the trial, the present applicant-complainant had filed a Writ Petition before this Court since, according to him, the investigation was not being carried out properly. This Court passed an order on 22.9.2006 and directed the police machinery to carry out the investigation under the supervision of the Superintendent of Police (Rural), Pune and record statements of all the witnesses de novo. Thereafter, another Writ Petition, being Criminal Writ Petition no.168 of 2007 was filed by the applicant-complainant alleging that the earlier oder of this Court was not properly carried out and that he and his family are being harassed. This Court again issued similar directions, as in the earlier case, on 5.2.2007. 3. Charge has been framed by the Court on 14.7.2008 and the recording of evidence has already commenced. After the evidence was commenced, the prosecution moved an application on 15.4.2009 for Brain Mapping and Narco Analysis Test. That application has been rejected by the Court which is under challenge in this application by the complainant under section 482. 4. The learned counsel for the applicant submitted that a Narco Analysis Test is necessary at this stage because the evidence suggests 3 existence of ante-mortem injuries on the body of the deceased and the fact that the accused did not make any attempt to remove the body out of the well would indicate that the accused was aware that the deceased was already dead. It is difficult to hold on the basis of this evidence which is already on record that a Narco Analysis and Brain Mapping Test is necessary in the interest of justice. According to the applicant, the case is one of murder and the accused ought to be charged under section 302 of the I.P.C. The learned counsel for the respondent nos.1 to 4 rightly points out that on the basis of evidence, if the Court is of view that a murder has been committed, this Court would be within its rights to alter and frame a charge under section 302 of the I.P.C. This situation does not necessarily establish the need for a Narco Analysis or Brain Mapping Test. In any case, the case is almost a decade old and the investigation has been completed and the charge-sheet has been filed. This Court has in a recent case in Munja Pandurang Honde v. State of Maharashtra (2009 All MR (Cri.) 2695) observed as follows:- “The trial before the Court of Sessions commences with opening of case by the Prosecutor and certainly the stage required to be followed after framing of charge is only recording of evidence. At the stage after framing of the charge, it was not 4 open for the Court of Sessions to resort to Section 173(8) of the Code of Criminal Procedure and entertain the application tendered by Investigating Officer for further investigation in the matter. The accused is entitled to know before opening of the case, as to what are the allegations he is required to face and what is the material collected by the prosecution, which can be used against him. It is not provided under the Code in respect of collection of evidence by the investigating machinery after opening of the case by the prosecution and framing of charge at the trial before the Court of Sessions. Therefore, held, trial Judge has committed an error in permitting recording of supplementary statement of the star witness in the matter after framing of charge and certainly such statement recorded after more than three years after the incident, cannot be used against the accused.” 5. Having regard to the circumstances of this case, I am of view that the order rejecting the application for a Brain Mapping and Narco 5 Analysis Test is not liable to be interfered with. This Criminal Application is, therefore, rejected. S.A. BOBDE, J.