IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.2628 of 2008 AQUEEL AKHTAR @ BHOLU Versus THE STATE OF BIHAR ----------- 6 10.07.2008 Heard learned counsel for the petitioner and the counsel appearing on behalf of opposite party. The petitioner has challenged the order dated 22.12.2007 by which an application filed on behalf of the defence to examine the Director, Forensic Laboratory Sri Aditya Paswan has been rejected on the ground that he cannot be examined as a defence witness. Learned counsel appearing on behalf of the opposite party while relying on the counter affidavit filed on behalf of the petitioner submits that the Investigating Officer who was examined as prosecution witness in Sessions Trial No. 12 of 2007 has stated at paragraph 15 that the entire forensic report has not been brought on record and further states that the report contains three pages whereas only two pages have been brought on record and marked as exhibit on admission. I may point out that this trial arising out of Civil Lines P.S. Case No. 114 of 2005 has been bifurcated into two trials, i.e. Sessions Trial No. 11 of 2007 and Sessions Trial No. 12 of 2007. The case before me is relating to Sessions Trial No. 12 of 2007. It has also been brought to the notice of the Court that the Director, Forensic Laboratory was examined as a prosecution witness in Sessions Trial No. 11 of 2007. Learned counsel appearing on behalf of the petitioner has submitted that since the entire report of the Forensic Laboratory has 2 not been brought on record, the petitioners will be highly prejudiced by this fact. I agree with the learned counsel appearing on behalf of the petitioner and in fact the counsel appearing on behalf of the opposite party has also agreed that the entire report should be filed by the defence and marked as exhibit without objection. The report is annexed as annexure-3 to this application before me. Learned counsels appearing on behalf of the opposite party has also agreed that the evidence of Sri Aditya Paswan who was examined as a prosecution witness in Sessions Trial No. 11 of 2007 may be marked as exhibit in Sessions Trial No. 12 of 2007 without any objection on behalf of the prosecution i.e. opposite party no. 2 in this case. Learned counsel for the petitioner submits that under Sub Clause 3 of Section 233 of the Code of Criminal Procedure the petitioners are entitled to enter into defence and examine any witnesses. This Court has no quarrel with the submission made by the learned counsel appearing on behalf of the petitioner, every accused has a right to enter into defence and for that purpose examine witnesses. As far as the examination of the present witnesses is concerned, the petitioner has not disclosed the reasons that he wishes to examine this witnesses, especially in view of the fact that the witness has already been examined by other co-accused persons in Sessions Trial No. 11 of 2007. The petitioner has also not stated as to how he could not get an opportunity of examining Sri Aditya Paswan. The Supreme Court in the case of Upendra Singh reported in (1988) 3 S.C.C 513 has observed as follows: 3 “In our opinion, these observations cannot be taken as a rigid statement of law. No hard and fast rule can be laid down as regards the value to be attached to the report of the chemical examiner. Section 293 of the Code of Criminal Procedure provides that the report of scientific experts may be used as evidence in any inquiry, trial or other proceedings of the court. The chemical examiner does not, as a rule, give an opinion as to the cause of death but merely gives report of the chemical examination of the substance sent to him. The report by itself is not crucial. It is a piece of evidence. The only protection to it is that it does not require any formal proof. It is, however, open to the court if it thinks fit to call the chemical examiner and examine him as to the subject matter of the report.” In view of what has been stated aforesaid and the fact that the opposite party no. 2 has no objection if the report and the evidence of Sri Aditya Paswan is marked as exhibit, I do not see how the petitioners can suffer due to non-examination of Sri Aditya Paswan. As far as the order dated 22.12.2007 is concerned it appears mis-placed inasmuch as, the Court has stated that a technical officer cannot be examined as a defence witness. In the present case the exhibits i.e. the forensic report 4 and the evidence which will be produced by the petitioner or if they are produced by the prosecution, should be treated to be exhibits and evidence of the prosecution rather than the defence. In the facts and circumstances of this case this application is thus disposed of with the aforesaid observations. Learned counsel for opposite party no. 2 is permitted to communicate this order to the Court concerned i.e. The Additional Sessions Judge, Gaya on his own cost. Sanjay (Sheema Ali Khan, J.)