Bombay High Court
Baburao Ukandu Sangerao @ Baburao ... vs The State Of Maharashtra And Others on 22 November, 2021
Author: V. K. Jadhav
Bench: V. K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
71 CRIMINAL APPLICATION NO. 2380 OF 2021
IN CRIMINAL APPEAL NO. 280 OF 2021 AND CRIMINAL
CONFIRMATION CASE NO. 1 OF 2021
BABURAO UKANDU SANGERAO @ BABURAO MALEGAONKAR
Vs.
THE STATE OF MAHARASHTRA AND OTHERS
WITH
CRIMINAL APPLICATION NO. 1590 OF 2021
IN CRIMINAL APPEAL NO. 280 OF 2021 AND CRIMINAL
CONFIRMATION CASE NO. 1 OF 2021
BABURAO UKANDU SANGERAO @ BABURAO MALEGAONKAR
Vs.
THE STATE OF MAHARASHTRA AND OTHERS
...
APP for Petitioner: Mr. R. V. Dasalkar
Advocate for Respondents : Mr. Joydeep Chattarji h/f
Mr. A. A. Yadkikar
...
CORAM : V. K. JADHAV AND
SANDIPKUMAR C. MORE, JJ.
DATED : 22nd NOVEMBER, 2021.
. ..
PER COURT :
1. Heard both sides.
2. In Confrration Case No. 1 of 2021 and Cririnal Appeal
No.280 of 2021, this Cririnal Application 2380 of 2021 is fled by
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the applicant/accused under Section 367 read with Section 391 of
Cr.P.C. for recording additional evidence.
3. Cririnal Application no.1590 of 2021 is fled by the applicant /
accused seeking direction to supply hir certain docurents in
advance pertaining to the DNA reports which are necessary for
cross-exarination of the witness/witnesses if his Cririnal
Application No. 2380 of 2021 is allowed.
4. The learned counsel for the applicant / accused subrits that
the trial court, while convicting the applicant / accused has relied
upon the DNA reports Exhs. 79 to 91 prepared by the Regional
Forensic Science Laboratory, Aurangabad which bears the signature
of one Mr. S. G. Palaskar, (Assistant Cherical Analyser, RFSL,
Aurangabad). The learned counsel subrits that the DNA reports
have gone unchallenged and it has a bearing upon the guilt or
innocence of the applicant / accused. The learned counsel subrits
that in the interest of justice, the additional evidence ray be
recorded either before this court or the trial court ray be directed
to record the additional evidence in terrs of the provisions of
Section 367 read with 391 of Cr.P.C.
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5. The learned APP has strongly resisted both the applications on
the ground that in terrs of provisions of Section 293 of Cr.P.C. any
docurent purporting to be a report under the hand of a
Governrent scientifc expert to whor this section applies, upon
any ratter or thing duly subritted to hir for exarination or
analysis and report in the course of any proceeding under this
Code, ray be used as evidence in any inquiry, trial or other
proceedings under this Code. Learned APP subrits that in view of
the sare, there is no need to record additional evidence, as such.
Learned APP subrits that the applicant / accused has not
subritted any such application before the trial court during the
course of trial for exarination of the said the expert as to the
subject ratter of his report.
6. Learned APP in the alternate subrits that so far as the
application bearing Cririnal Application No.2380 of 2021 is
concerned, if the court is inclined to direct the trial court to record
the additional evidence, then prayer clause 'a' of para 15 of the
application is only relevant and the exarination of the other expert
witnesses as stated in prayer clause 'b, c, d and e' ray not be
necessary.
7. Learned counsel for the applicant / accused, at this stage
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subrits that considering the DNA report prepared and issued under
the signature of Assistant Cherical Analyser Mr. S. G. Palaskar, the
applicant / accused restricts his prayer to the extent of para 15
clause 'a' only.
8. Learned APP subrits that so far as the application bearing
Application No. 1590 of 2021 is concerned under the specifc
instructions fror the expert who was present on the last date
before the court, the docurents as per the prayer clause 13 (a)(i),
13(a)(iii) and copy of electropherogrars for the DNA profle in
terrs of prayer clause 13(a)(ii) is available and those can be
provided to the defence.
9. Learned counsel appearing for applicant / accused at this
stage subrits that the applicant / accused restricts his prayer for
supply of copy of the docurents to the extent as adritted by the
learned APP under specifc instructions fror the expert.
10. So far as Cririnal Application No. 2380 of 2021 is concerned,
we fnd that the trial court has relied upon the DNA reports Exhs-79
to 91 i.e. 13 reports prepared by the Regional Forensic Science
Laboratory (RFSL), Aurangabad and bears the signature of Mr. S. G.
Palaskar (RFSL), Aurangabad.
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11. Chapter XXVIII of the Cr.P.C,. speaks about the subrission of
the death sentence for confrration. Section 367 of Chaper XXVIII
provides the power to direct further inquiry to be rade or
additional evidence to be taken. Section 367 of Cr.P.C. reads as
under :
"367. Power to direct further inquiry to be made or
additional evidence to be taken.
(1) If, when such proceedings are subritted, the High Court thinks
that a further inquiry should be rade into or additional evidence
taken upon, any point bearing upon the guilt or innocence of the
convicted person, it ray rake such inquiry or take such evidence
its elf, or direct it to be rade or taken by the Court of Session.
(2) Unless the High Court otherwise directs, the presence of the
convicted person ray be dispensed with when such inquiry is
rade or such evidence is taken.
(3) When the inquiry or evidence (if any) is not rade or taken by
the High Court, the result of such inquiry or evidence shall be
certifed to such Court".
12. It is a confrration case and considering the DNA reports
which are 13 in nurbers, in the interest of justice, we fnd it
appropriate to direct the trial court to record the additional
evidence by exarining Mr. S. G. Palaskar, Assistant Cherical
Analyser (RFSL), Aurangabad.
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13. So far as Cririnal Application No. 1590 of 2021 is concerned,
since we have allowed the application bearing No. 2380 of 2021
we are also inclined to partly allow the Cririnal Application
No.1590 of 2021. The learned APP subrits that so far as the
prayer clause 13(a)(iii) is concerned, the link to procure the copy of
DNA working procedure ranual used in the exarination of all the
exhibits has already been provided to the counsel appearing for the
applicant / accused.
The learned counsel representing the applicant / accused
subrits that the applicant / accused can procure the said DNA
working procedure ranual by using the link.
14. The learned APP subrits that the above docurents are
available in his fle and those can be provided to the accused
forthwith. Hence, we proceed to pass the following order.
ORDER
I) Cririnal Application No. 2380 of 2021 is hereby partly allowed to the extent of prayer clause "15 (a)" with the following directions:
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(B) WE also direct the trial court to grant an opportunity to the applicant / accused to cross- exarine the said expert witness.
(C) We also direct the trial court to exarine the applicant/accused under Section 313 of Cr.P.C. in respect of such additional evidence by virtual rode.
(D) The presence of the applicant / accused shall be dispensed with when such evidence is taken. However, the said evidence is to be taken in presence of the counsel representing the accused / applicant before the trial court. (E) We also direct the trial court to corplete this entire exercise of recording of evidence of the expert within two ronths fror the date of this order i.e. till 23 January, 2022 and subrit the sare before this court on or before 23/01/2022 by corplying with the provisions of Section 367 (3) of Cr.P.C.
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8 71 cri. confirmation case 01-21.odt II) Cririnal Application No. 1590 of 2021 is hereby partly allowed in terrs of prayer prayer clause "13(a)(i), 13(a)(iii) and so far as clause (ii) of 13(a) is concerned, the sare shall be restricted to supply with copy of electropherogrars of DNA profle.
III) We direct that the docurents as above, shall be provided to the counsel representing accused / applicant forthwith.
IV) Record and proceedings be sent to the trial court forthwith for recording of the additional evidence and sare shall be returned to this court after corpletion of recording of the additional evidence. V) We direct the Registrar (Judicial) of this court to corrunicate this order to the trial court forthwith. VI) Both the cririnal applications are accordingly disposed of.
Parties to act on an authenticated copy of this order. (SANDIPKUMAR C. MORE, J.) (V. K. JADHAV, J.) vsr/-
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