Uttarakhand High Court
Through: Shri R.P. Nautiyal And Shri ... vs State Of Uttarakhand on 30 August, 2022
Author: Sanjaya Kumar Mishra
Bench: Sanjaya Kumar Mishra, Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Reference No. 2 of 2022
Kuldeep and others. ................Appellants.
Through: Shri R.P. Nautiyal and Shri Arvind
Vashisht, learned Sr. Advocate - Amici Curiae,
assisted by Ms. Garima Thapa and Shri Ajay
Joshi, learned counsel for the appellant.
-Versus-
State of Uttarakhand. .........Respondent.
Through: Shri J.S. Virk, learned Deputy
Advocate General with Shri Rakesh Joshi,
learned Brief Holder for the State.
With
Criminal Appeal No. 189 of 2022
Rahul. ................Appellant.
Through: Smt. Pushpa Joshi, learned Sr.
Advocate assisted by Ms. Chetna Latwal,
learned counsel for the appellant.
-Versus-
State of Uttarakhand. .........Respondent.
Through: Shri J.S. Virk, learned Deputy
Advocate General with Shri Rakesh Joshi,
learned Brief Holder for the State.
With
Criminal Appeal No. 196 of 2022
Arun. ................Appellant.
Through: Shri Arvind Vashisht, learned Sr.
Advocate assisted by Shri Ajay Joshi, learned
counsel for the appellant.
-Versus-
State of Uttarakhand. .........Respondent.
Through: Shri J.S. Virk, learned Deputy
Advocate General with Shri Rakesh Joshi,
learned Brief Holder for the State.
2
And
Criminal Appeal No. 229 of 2022
Kuldeep. ................Appellant.
Through: Shri Arvind Vashisht, learned Sr.
Advocate assisted by Shri Ajay Joshi, learned
counsel for the appellant.
-Versus-
State of Uttarakhand. .........Respondent.
Through: Shri J.S. Virk, learned Deputy
Advocate General with Shri Rakesh Joshi,
learned Brief Holder for the State.
Date of Hearing and Order : 30.08.2022
Coram:
Shri Sanjaya Kumar Mishra, J.
Shri Alok Kumar Verma, J Upon hearing learned counsel for the parties, this Court passes the following orders - Shri Sanjaya Kumar Mishra, J. (Oral)
1. This order arises out of a preliminary issue on the contention raised by Shri Arvind Vashisht, learned Sr. Counsel/ Amicus Curiae for the condemned prisoners - appellants. It is submitted on behalf of the appellants - condemned prisoners that chemical and serological examination report containing the DNA profiling has not been marked as exhibit in this case but the learned trial Judge has considered the same while determining the guilt of the appellants. In other words, he has taken into consideration the result of DNA profiling but had not exhibited the same. It is submitted by learned Sr. Counsel for the condemned prisoners that result of the chemical and serological examination report containing the DNA profiling has not been put to the condemned prisoners - appellants in their examination under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Code" for brevity), which has caused serious prejudice to the condemned prisoners - appellants.
32. Learned Sr. Counsel for the appellants has placed reliance on the recent judgment of Hon'ble Supreme Court, on this question, in the case of Nasib Singh Vs. State of Punjab and another, (2022) 2 SCC 89. He, therefore, would argue that the matter should be remanded back to the trial court for de novo trial.
3. On the other hand, learned Deputy Advocate General for the State - Shri J.S. Virk would submit that in the case of Nar Singh Vs. State of Haryana, (2015) 1 SCC 496, the Hon'ble Supreme Court has also dwelt upon the consequences of not putting all the relevant questions to the accused, at the stage of examination under Section 313 of the Code. Learned Deputy Advocate General would further submit that the Appellate Court itself is competent enough to secure the presence of the condemned prisoners - appellants and put the questions to them omitted by the learned trial Judge while recording their statement under Section 313 of the Code. He would also submit that irregularity of not marking the chemical and serological examination report containing the DNA profiling as exhibit is an error of form and not of substance. He would further submit that appellants were aware of all the materials that were available on record. In the sense that defence counsel appearing for the appellants were aware of such documents and the learned trial judge has considered the same at the stage of hearing and passing of the final judgment. Therefore, he would submit that as per Section 293 of the Code, a formal proof of the chemical and serological examination report containing DNA profiling by the scientific officer is not necessary. No error is appearing in the trial court proceedings and if there is any omission that can be rectified by this Appellate Court by summoning the condemned prisoners and putting additional questions by way of additional / supplementary examination under Section 313 of the Code.
44. No doubt, there is an error on the part of the learned trial Judge in not exhibiting the chemical and serological report including DNA profiling report and relying upon the same while deciding the case. It is also noted that in the course of trial, the trial judge has considered this material and both the learned counsel for the prosecution and defence were aware of such documents and arguments were advanced in that light. The trial Judge took into consideration the conclusions arrived at by the Scientific Officer, conducting the chemical and serological examination and DNA profiling.
5. Neither the Code nor the Indian Evidence Act, 1872 prescribe a particular procedure of exhibiting the documents. It is provided by relevant Rules of the High Court. So this Court is of the opinion that if a document is taken on record, considered and acted upon, even if the same is not exhibited but having the signature of the Presiding Officer, then also it is a curable defect and on that basis, a case should not be remanded back to the trial court for de novo trial. Moreover, Section 293 of the Code provides for reports of the Government Scientific Experts. It reads as follows:
"293. Reports of certain Government scientific experts.
(1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code. (2) The Court may, if it thinks fit, summon and examine any such expert as to the subject- matter of his report.5
(3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf. (4) This section applies to the following Government scientific experts, namely:-
(a) any Chemical Examiner or Assistant Chemical Examiner to Government;
(b) the Chief Controller of Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director, (Deputy Director or Assistant
Director) of a Central Forensic Science
Laboratory or a State Forensic Science
Laboratory;
(f) the Serologist to the Government.
(g) any other Government Scientific expert
specified, by notification, by the Central for this purpose."
6. Thus, if a report prepared by the Government Scientific Expert is taken into consideration in evidence and if the Court thinks fit, it may summon and examine such expert of the subject matter. Thus, it is not always necessary to examine the Expert in the Court. In fact, sub-section 3 provides for a situation where if on summons of the court, the expert is unable to attend the Court, he may deputy any responsible officer working with him and conversant with the facts, to attend the Court, who can satisfactorily depose in the court on his behalf.
67. Thus, this Court is of the opinion that non examination of the Scientific Officer of the State Forensic Science Laboratory, Dehradun and not exhibiting the forensic report but acting upon the same, has not caused prejudice to the condemned prisoners but this Court is not inclined to set aside the judgment and remand the entire case for de novo trial on this account. This Court is also of the opinion that remand of the case to the trial court for de novo trial is required in rarest of rare case and not in all cases. There is a procedural mistake in admitting the evidence by the trial Judge and in the opinion of this Court, this is not the rarest of rare case where the trial court's judgment should be set aside and de novo trial should be ordered.
8. Now, coming to the second contention raised by Shri Arvind Vashisht, learned Sr. Counsel. It is observed by this Court that there cannot be a dispute regarding the importance of examination of the accused under Section 313 of the Code. The said examination is not an empty formality. It is in fact an integral and substantive part of the trial and if it is shown that the condemned prisoner is prejudiced by not putting proper questions in such examination, then the Appellate Court has two options; it may either remand the case for de novo trial or it may examine the accused by summoning him to the court. In fact, in the case of Nasib Singh (supra) wherein the Hon'ble Supreme Court has held that the Appellate Court can direct for re-trial, if all the relevant questions are not put the accused by the trial court, as required under Section 313 of the Code. The Court has further held that the Appellate Court may direct retrial, if prejudice is caused to the accused. The Supreme Court has further held that the Appellate Court may direct for retrial of the case only in exceptional circumstances only to avert the miscarriage of justice. In the case of Nar Singh (supra), which has 7 been quoted in the case of Nasib Singh (supra), the Hon'ble Supreme Court has held that whenever a plea of non compliance of Section 313 of the Code is raised, then the Appellate Court has powers to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for deciding the matter. The Hon'ble Supreme Court has further held that if the accused is unable to offer the Appellate Court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer. The Hon'ble Supreme Court has further held that if the appellate court comes to the conclusion that no prejudice was caused or no failure of justice was occasioned, the appellate court will hear and decide the matter upon merits.
9. Similar question arose before the Division Bench of Orissa High Court on 23.12.2020 in Death Reference No. 2 of 2019 (State of Orrisa Vs. Ohan @ Jaminikant Mohanta), in which one of us - Shri S.K. Mishra, J., was a party. The High Court of Orissa took into consideration the precedent in the case of Janak Yadav and others Vs. State of Bihar (1999) 9 SCC 125 and N. Dev Dass Singha Vs. State ILR (2013) VI Delhi 436 (2013) SCC online Del. 3782 and has held that the Court should summon the condemned prisoner and put additional / supplementary questions to him under Section 313 of the Code. For proper appreciation, relevant portion of the order passed by the Division Bench is quoted as under:
"We are therefore, of the opinion that since the condemned prisoner appellant was not asked certain questions regarding the result of the chemical examination and DNA profiling by the learned trial Judge, it would not be expedient, and in the interest of justice, to reverse the 8 findings and to record the judgment of acquittal. In our considered view, those questions which have not been put to the condemned prisoner - appellant during the course of trial in the course of examination under Section 313 of the Cr.P.C. can be put to the condemned prisoner - appellant in this court. Otherwise, it will lead to miscarriage of justice and would damage the social defence."
10. Thus, keeping in view the totality of the facts and circumstances of the case, we consider it proper to summon the condemned prisoners - appellants for further examination under Section 313 of the Code on next date fixed.
11. List this case on 13.09.2022 for further examination of accused - appellants under Section 313 of the Code. The registry is directed to secure their presence by informing the police authorities for providing escort party. Let a free certified copy of this order be order be supplied to the learned counsel for the parties for compliance.
(Alok Kumar Verma, J.) (Sanjaya Kumar Mishra, J.) SKS