In Reference (Received from Special Judge, POCSO Act, Khandwa, District Khandwa (Madhya Pradesh) vs Anokhilal

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(MP) 369

IN THE HIGH COURT OF MADHYA PRADESH
Ravi Malimath, CJ, and Vishal Mishra, J.
In Reference (Received from Special Judge, POCSO Act, Khandwa, District Khandwa (Madhya Pradesh) v. Anokhilal
Criminal Reference No. 6 of 2022 and Criminal Appeal No. 439 of 2023 (Jabalpur): against the judgment dated 29.8.2022 and sentence dated 30.8.2022 passed by the Special Judge, POCSO Act, Khandwa, District Khandwa in Sessions Case No. 100053/2013; Decided on 11.9.2023

Advocates:
S. S. Chauhan, Public Prosecutor for appellant/State; Anil Khare, Amicus Curiae with Ms. Shreya Rastogi, Yagyavalk Shukla and Ms. Sakshi Jain for respondent.

Headnote:
(1) Criminal P. C., 1973 -- Ss. 367 and 391 -- application seeking examination of expert witness with regard to DNA report -- no opportunity given to accused to examine expert witness since his evidence was not recorded -- merely marking of document not sufficient -- same has to be proved through evidence of witness -- it is imperative that not only report is produced, but expert witness is also examined on oath and sufficient opportunity is given to accused to cross-examine him on correctness of report -- defence has every right to cross-examine expert with regard to DNA report and other documents -- in absence of expert evidence, reports with regard to DNA profiling become vulnerable, affecting case of prosecution -- evidence of expert requires to be recorded by trial Court and if necessary, relevant questions may also be framed u/s. 313 of CrPC. 2020 (1) JLJ 175 (SC) referred to. (2009) 9 SCC 709, (2022) 12 SCC 657, (2019) 4 SCC 771, (2023) 1 SCC 83 and (2011) 4 SCC 402 followed. ILR 2008 Kar. 1840 relied on. [Paras 13 (a), (e), (f), 14 (d) & 19
(2) Practice (Criminal) -- DNA profile -- proving -- merely marking of document not sufficient -- same has to be proved through evidence of witness -- imperative that not only report is produced, but expert witness is also examined on oath and sufficient opportunity is given to accused to cross-examine him on correctness of report. [Paras 13 (e)
(3) Criminal P. C., 1973 -- S. 293 -- expert failed to receive summons and was repeatedly absent -- by placing reliance on S. 293, trial Court shifted burden on defence to show why expert should be summoned -- this is erroneous -- cancellation of summons issued to witness wholly uncalled for -- not only has it led to gross miscarriage of justice, but is also in violation of d irections issued in case of Anokhilal [2020 (1) JLJ 175 (SC)] -- this error is fatal. (2004) 4 SCC 158 followed. 2020 (1) JLJ 175 (SC) referred to. [Paras 14 (a) & (c)
(4) Criminal P. C., 1973 -- S. 313 -- statement of accused -- all incriminating circumstances appearing against accused in evidence produced by prosecution shall be put to him in his statement u/s. 313 so that he may have opportunity to explain such circumstances. 1951 SCC 903 and 2023 SCC Online SC 609 followed. 2020 (1) JLJ 175 (SC) referred to. [Para 17 (a)
¼1½ naM çfØ;k lafgrk- 1973 & /kkjk 367 rFkk 391 & Mh,u, çfrosnu ls lacaf/kr fo'ks"kK lk{kh dh ijh{kk dh bZIlk dk vkosnu & vfHk;qä dks fo'ks"kK lk{kh dh ijh{kk djus dk volj ugha fn;k x;k D;ksafd mldk lk{; vfHkfyf[kr ugha & nLrkost dsoy fpfUgr djuk i;kZIr ugha & mls lk{kh ds lk{; }kjk lkfcr fd;k tkuk gksrk gS & ;g vfuok;Z fd çfrosnu is'k gh ugha fd;k tk,] vfirq fo'ks"kK lk{kh dh 'kiFk ij ijh{kk Hkh dh tk, rFkk vfHk;qä dks çfrosnu dh 'kq)rk ds ckjs esa mldh çfrijh{kk djus dk i;kZIr volj fn;k tk, & çfrj{kk i{k dks Mh,u, çfrosnu vkSj vU; nLrkostksa ds ckjs esa fo'ks"kK dh çfrijh{kk djus dk iw.kZ vf/kdkj gS & fo'ks"kK lk{; ds vHkko esa- Mh,u, çksQkby ls lacaf/kr çfrosnu vkykspuh; gks tkrs gSa- ftlls vfHk;kstu i{kdFku çHkkfor gksrk gS & fo'ks"kK dk lk{; fopkj.k U;k;ky; }kjk vfHkfyf[kr fd;k tkuk visf{kr rFkk vko';d gks rks naM izfØ;k lafgrk dh /kkjk 313 ds v/khu lqlaxr ç'u Hkh fojfpr fd, tk,¡A 2020 ¼1½ ts ,y ts 175 ¼mPpre U;k;ky;½ fufnZ"VA ¼2009½ 9 ,l lh lh 709] ¼2022½ 12 ,l lh lh 657] ¼2019½ 4 ,l lh lh 771] ¼2023½ 1 ,l lh lh 83 rFkk ¼2011½ 4 ,l lh lh 402 vuqlfjrA vkb ,y vkj 2008 dukZVd 1840 voyafcrA ¼iSjk 13 ¼,½] ¼b½] ¼,Q½] 14 ¼Mh½ ,oa 19½
¼2½ çFkk ¼nkafMd½ & Mh,u, çksQkby & lkfcr djuk & vfuok;Z fd çfrosnu is'k gh ugha fd;k tk,] vfirq fo'ks"kK lk{kh dh 'kiFk ij ijh{kk Hkh dh tk, rFkk vfHk;qä dks çfrosnu dh 'kq)rk ds ckjs esa mldh çfrijh{kk djus dk i;kZIr volj fn;k tk,A ¼iSjk 13&b½
¼3½ naM çfØ;k lafgrk] 1973 & /kkjk 293 & fo'ks"kK us leu çkIr ugha fd, rFkk fujarj vuqilatkr jgk & /kkjk 293 dk voyac ysdj fopkj.k U;k;ky; us ;g nf'kZr djus dk Hkkj çfrj{kki{k ij varfjr dj fn;k fd fo'ks"kK dks D;ksa cqykuk pkfg, & ;g xyr gS & lk{kh dks tkjh leu dk jídj.k iw.kZr% vokaNuh; & blls u dsoy ?kksj U;k;gkfu gqbZ- cfYd ;g vuks[khyky] 2020 ¼1½ ts ,y ts 175 ¼mPpre U;k;ky;½] ds çdj.k esa tkjh funs'kksa dk vfrØe.k Hkh gS & ;g xyrh ?kkrdA ¼2004½ 4 ,l lh lh 158 vuqlfjrA 2020 ¼1½ ts ,y ts 175 ¼mPpre U;k;ky;½ fufnZ"VA ¼iSjk 14&, vkSj lh½
¼4½ naM çfØ;k lafgrk] 1973 & /kkjk 313 & vfHk;qä dFku & vfHk;kstui{k }kjk is'k fd, x, lk{; esa vfHk;qä ds fo:) çrhr gksus okyh leLr ifjfLFkfr;ksa ds ckjs esa /kkjk 313 ds v/khu mlds dFku esa mlls iwNk tk,xk rkfd mls mu ifjfLFkfr;ksa dks Li"Vh—r djus dk volj çkIr gksA 1951 ,l lh lh 903 rFkk 2023 ,l lh lh v‚uykbu ,l lh 609 vuqlfjrA 2020 ¼1½ ts ,y ts 175 ¼mPpre U;k;ky;½ fufnZ"VA ¼iSjk 17&,½

ORDER

Malimath, C.J. --1. This criminal reference as well as the criminal appeal arise out of the impugned judgment of conviction dated 29.8.2022 and order of sentence dated 30.8.2022 passed by the learned Special Judge, POCSO Act, Khandwa, District Khandwa (M.P.) in Sessions Case No.100053 of 2013.

2. The case of the prosecution is that on 30.1.2013 a missing report was lodged by one Ramlal stating that his daughter, aged about 9 years, went missing from about 6 p.m. on that day. That the accused, who is the neighbour, had sent the victim to get a ‘bidi’ from a shop but the victim never returned. Thereafter, an FIR in Crime No. 38 of 2013 was registered on the next day i.e. on 31.1.2013 with the Police Station Chhaigaon Makhan, District Khandwa for the offences punishable under sections 363 and 366 of the Indian Penal Code, 1860 (for short “the IPC”). During the course of investigation, the body of the victim was found in an open field on 1.2.2013. The accused was arrested on 4.2.2013. On investigation being completed, a charge-sheet was filed on 13.2.2013. Charges were framed against the accused for the offences punishable under sections 302, 363, 366, 376(2)(f) and 377 of the IPC as well as under sections 3, 4, 5 and 6 of the Protection of Children from Sexual Offences Act, 2012 (for short “the POCSO Act”). Thereafter, vide judgment of conviction and order of sentence dated 4.3.2013 passed by the Sessions Judge & Special Judge (POCSO), Khandwa in Sessions Case No.53 of 2013, the accused was convicted and sentenced as follows :

Sr. No.	Offence	Sentence	Fine (in ‘Rs.)	Sentence in default of fine
1.	302 IPC	Death sentence
2.	363 IPC	7 years’ RI	1,000/-	1 month’s additional RI
3.	366 IPC	7 years’ RI	1,000/-	1 month’s additional RI
4.	377 IPC	7 years’ RI	1,000/-	1 month’s additional RI
5.	376(2)(f) IPC	Life Imprisonment	1,000/-	1 month’s additional RI

(all sentences to run concurrently)

3. Thereafter, the case was referred to the High Court under section 366 of the Code of Criminal Procedure, 1973 (for short “the CrPC”) and Criminal Reference No.4 of 2013 was registered before the High Court. The accused also filed Criminal Appeal No.748 of 2013. By the judgment and order dated 27.6.2013 passed by a Division Bench of this Court, the appeal filed by the accused was dismissed and the reference was accepted thereby affirming the sentence passed by the trial Court. Questioning the same, the accused filed Criminal Appeal Nos.62-63 of 2014 (Anokhilal v. State of Madhya Pradesh) before the Hon’ble Supreme Court of India. By the order dated 18.12.2019, it was held in para 20 to 24, as follows :--

“20. We, therefore, have no hesitation in setting aside the judgments of conviction and orders of sentence passed by the trial Court and the High Court against the appellant and directing de novo consideration. It shall be open to the learned counsel representing the appellant in the trial Court to make any submissions touching upon the issues (i) whether the charges framed by the trial Court are required to be amended or not; (ii) whether any of the prosecution witnesses need to be recalled for further cross-examination; and (iii) whether any expert evidence is required to be led in response to the FSL report and DNA report. The matter shall, thereafter, be considered on the basis of available material on record in accordance with law.

21. It must be stated that the discussion by this Court was purely confined to the issue whether, while granting free Legal Aid, the appellant was extended real and meaningful assistance or not. The discussion in the matter shall not be taken to be a reflection on the merits of the matter, which shall be considered and gone into, uninfluenced by a