ORDER

This petition under Section 482 of Cr.P.C. has been filed seeking quashment of order dated 16.09.2022 (Annexure-1) passed by Special Judge, POCSO Act, Panna in Special Case No.78/2021 (State of M.P., through P.S. Pawai, District Panna Vs. Devendra Pathak) for commission of offence under Section 376(2)(n) and 376(3) of IPC and Section 5J/6 and 5L/6 of POCSO Act and under Section 325 of SC/ST (POA) Act, whereby application under Section 311 of Cr.P.C. filed on behalf of the accused to summon Dr. Pradeep

Singh Porte, who had prepared DNA report has been dismissed.

In this case, petitioner is facing sessions trial for commission of aforesaid offences. Applicant/ accused challenged the correctness and genuineness of DNA report and for that purpose, he wanted to cross-examine Scientific Officer Dr. Pradeep Singh Porte who has prepared DNA report. Divisional Bench of this Court in Criminal Reference No.1/14 and Criminal Appeal No.3538/14, 1075/15, 3512/14 and 3598/14 In reference Vs. Ashok and Others have held that to safeguard the interest of culprit the persons who have collected crime related DNA samples and the DNA analyzed are required to be cross-examined effectively by their Advocates. It is only possible when they know the areas where DNA samples Collectors may make irregularity in collecting them for the DNA report analyst may make mistake, at the time of matching of the DNA

profiles.

Nowadays, investigating agencies are much depending on the DNA

analysis, therefore, to safeguard the interest of the accused where prosecution relies on the expert evidence to prove the charges mere production of the report in the Court is not sufficient, if prosecution relies on the report of the expert not only the report is to be produced but the author of the report is also to be examined before the Court on oath and an opportunity should be given to the accused to cross-examine the said expert on the correctness or otherwise of the said report. In the case in hand admittedly the expert has not been examined by the prosecution and prayer to summon him for evidence is declined by trial

Court.

Parappa and others Vs. Bhimappa and Another reported in ILR 2008 KAR 1840

"20. This Provision should not be confused with the general law governing the admissibility of an expert's evidence. In a criminal case when the prosecution relies on the expert's evidence to prove the charges against the accused mere production of the said expert's report into Court is not sufficient. It does not become a part of the Court record on mere production. If the prosecution relies on a report of the expert, not only the report is to be produced, the author of the report is also to be examined in the Court on oath and an opportunity should be given to the accused to cross-examine the said expert on the correctness of the report. It is only then the said evidence becomes admissible and not otherwise. In such a criminal prosecution, the Court has not appointed the expert. It is the prosecution, to prove its case, needs report and they have to examine such an expert to prove their case. In a criminal trial, expert is a witness for the prosecution. He is not a

Commissioner appointed by the Court in the proceedings."

Nagappa Vs. State of Karnataka reported in 2020(3)

KCCR 1704

"14. No doubt Article 20(3) on the Constitution of India, if it is contended that the accused is not bound to give the blood test, however, in order to have an investigation, the Investigating Officer or the Court can direct him to give the blood for DNA sample. Merely because he has given the consent for taking the blood, then under such circumstances, the report which has been given cannot be accepted as a gospel truth. When there is ample chance of tampering, then under such circumstances it is going to be highly prejudice the accused person. The science may be infallible, but human action, which controls the result of the scientific forensic examination, is always fallible and there is probability of m