The failure to examine scientific experts regarding DNA evidence violated the right to a fair trial, necessitating a remand for a fresh trial.

ORDER :

SANDEEP MEHTA, J.

1. These appeals take exception to the judgment dated 9th September, 2021, rendered by the Division Bench of High Court of Madhya Pradesh at Indore¹ [Hereinafter referred to as ‘High Court’] whereby the criminal appeals² [Criminal Appeal No. 7215 of 2018 was filed by Irfan @ Bhayu Mevati, and Criminal Appeal No. 7269 of 2018 was filed by Asif Mevati] filed by the appellants Irfan @ Bhayu Mevati³ [Hereinafter referred to as ‘Irfan’] and Asif Mevati⁴ [Hereinafter referred to as ‘Asif’] were dismissed, and the criminal reference⁵ [Criminal Reference No. 14 of 2018] under Section 366 of the Code of Criminal Procedure, 1973⁶ [Hereinafter, referred to as ‘Cr.P.C.’] instituted upon being forwarded by the 2nd Additional Session Judge/Special Judge, POCSO Act, Mandsaur, Madhya Pradesh⁷ [Hereinafter referred to as ‘trial Court’] was allowed and the death penalty awarded to the appellants was confirmed.

2. The appellants were tried by the trial Court in Sessions Case No. 141 of 2018 for the offences punishable under Sections 363, 366-A, 376(2)(m), 307 of the Indian Penal Code, 1860⁸ [Hereinafter referred to as ‘IPC’] Section 376(DB) of the Criminal Law (Amendment) Ordinance, 2018, and under Section 5(g), 5(j)(iii)(m) and Section 5(r) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012.⁹ [Hereinafter referred to as ‘POCSO’] The trial Court, vide judgment dated 21st August, 2018, convicted the appellants and sentenced them as below:

3. Being aggrieved by their conviction and sentence awarded, the appellants preferred separate criminal appeals¹⁰ [Refer, Note 2] before the High Court. Reference was forwarded by the trial Court to the High Court for confirmation of the capital punishment awarded to the accused under Section 366 Cr.P.C. The criminal appeals preferred by the appellants and the reference made by the trial Court were decided as above vide common judgment dated 9th September, 2021, which is the subject matter of challenge in these appeals by special leave.

4. The prosecution story, in a nutshell, is that on 26th June, 2018, Smt. Kamlabai (PW-7), lodged an FIR¹¹ [Case No. 327 of 2018] by alleging inter alia that her granddaughter¹² [Hereinafter, referred to as ‘child victim’] who was studying in the 3rd standard had gone missing from the school premises after the classes. Based on the said report, a police case for the offence punishable under Section 363 IPC was registered and the investigation was commenced. On the next day, i.e. on 27th June, 2018, the Investigating Agency received information that the child victim had been seen in an injured condition by witness Karan (PW-10). Thereupon, the police rushed to the spot and took the child victim to the Civil Hospital at Mandsaur from where, looking at her serious condition, she was further referred to M.Y. Hospital at Indore.

5. The child victim was provided treatment and was operated upon. On inquiry being made from her, she narrated the story of her plight to the police officials alleging inter-alia that on the day of the incident, after her school was over, she was waiting outside, when suddenly a person came and forcibly put a sweet(ladoo) in her mouth. Thereafter, the assailant forcibly took her to a secluded spot where he called another person. She was forcibly undressed and was subjected to forcible sexual assault by the person who gave her the sweet, while the other person caught hol