Trial vitiated if chemical/DNA reports relied upon without summoning experts for cross-examination; court must summon as witnesses, remand limited for that purpose with fresh Section 313 statements, without de novo trial.

ORDER :

Manish Pitale, J.

Interim Application No.4190 of 2025

The accused No.1 has filed this application invoking Sections 408 and 432 read with Section 329 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) for a direction that the chemical analysers of the concerned laboratory be summoned for cross-examination as chemical analyst’s reports (CA reports), being as many as 12 in number, were directly produced during the recording of evidence of the investigating officer (P.W.29). Reliance is placed on judgements of the Supreme Court and this Court to contend that in the absence of summoning of the chemical analysers by the Court and depriving the accused from cross- examining them has vitiated the trial. On this ground, it is contended that the impugned judgment and order deserves to be set aside and the matter ought to be remanded to the Sessions Court.

2. It is additionally contended that in the event the application is allowed and the matter is remanded to the Sessions Court, a direction ought to be issued for statement under Section 313 of the Cr.P.C. (now Section 351 of BNSS) to be recorded in the context of the further evidence that would come on record. In fact, it is brought to our notice that recording of the statement under Section 313 of the Cr.P.C., in the present case, was also vitiated because questions were put to both the accused persons jointly for eliciting their responses. In that light, it is submitted that the entire statement under Section 313 of the Cr.P.C. ought to be recorded afresh.

3. The present confirmation case and the two appeals arise from judgement and order dated 22.03.2024 passed by the Court of Additional Sessions Judge, Pune (hereinafter referred to as the ‘Sessions Court’) in Special Sessions Case No.176 of 2023. By the said judgement and order, the applicant (accused No.1) has been convicted for offences under Sections 363, 302, 376(2), 376A, 376AB and 201 of the Indian Penal Code, 1860 (IPC) and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). He has been sentenced to death for offences under Sections 376A and 376AB of the IPC as also Section 6 of the POCSO Act. For the other offences, he has been sentenced for imprisonment for various durations. Accused No.2, the mother of accused No.1, has been convicted under Section 201 of the IPC and Section 21 of the POCSO Act. She has been sentenced to undergo seven years of imprisonment for offence under Section 201 of the IPC and for a period of six months under Section 21 of the POCSO Act.

4. Since this Court is dealing with the said application bearing Interim Application No.4190 of 2025, a detailed reference to the manner in which the investigation proceeded and the prosecution case, is not necessary and a very brief reference to the same would give the context in which the present application is being considered.

5. The accused No.1 i.e. the applicant herein is alleged to have brutally assaulted the victim, who was a girl aged about 6 years and 10 months. She was a minor girl living in the neighbourhood. She suffered aggravated penetrative sexual assault of extreme brutality and she had deep cut wounds on her throat due to which she died. Accused No.2 is the mother of accused N