Punjab-Haryana High Court
Morpal vs State Of Hy on 10 September, 2024
Bench: Sureshwar Thakur, Sudeepti Sharma
Neutral Citation No:=2024:PHHC:119601-DB
CRA-D-945-DB-2004 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D-945-DB-2004
Reserved on: 30.08.2024
Date of decision: 10.09.2024
MOR PAL
...Appellant
Versus
STATE OF HARYANA
...Respondent
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. Gaurav Vir Singh Behl, Advocate
for the appellant.
Mr. P.P. Chahar, Sr. DAG, Haryana.
****
SURESHWAR THAKUR, J.
1. The instant appeal is directed against the verdict made on 14.08.2004, upon Sessions Case No.70 of 2003, by the learned Special Judge, Panipat, wherethrough he convicted the accused for a charge drawn qua an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "the Act"). Moreover, through a separate sentencing order of 17.08.2004, he proceeded to impose upon the convict sentence of rigorous imprisonment extending upto a period of 12 years, besides imposed upon him, sentence of fine of Rs.1,25,000/-, besides in default of payment of fine amount, he sentenced the convict to undergo rigorous imprisonment extending upto a period of three years.
2. The accused-convict became aggrieved from the above drawn verdict of conviction, and, also the consequent therewith sentence(s) (supra), as 1 of 17 ::: Downloaded on - 22-09-2024 07:41:05 ::: Neutral Citation No:=2024:PHHC:119601-DB CRA-D-945-DB-2004 2 became imposed. Resultantly, he instituted thereagainst the instant appeal bearing No.CRA-D-945-DB-2004.
FACTUAL BACKGROUND
3. The genesis of the prosecution case are that, on 6.3.2000, a police party headed by PW6-Ram Niwas ASI was present at Bus Stand, Panipat in connection with patrolling, when the accused was seen coming from the side of Bus Stand carrying a Thela in his right hand. On seeing the police party, he returned back and started walking at a fast speed and which arose suspicion. He was apprehended. After enquiring about his identity, he was suspected to be carrying some contraband in the bag. So, he was given a notice Ex.PE under Section 50 of the Act for giving option to be searched in the presence of some Magistrate or gazetted officer. However, vide reply Ex.PE/1, he opted to be searched in the presence of some Magistrate. After that, PW-7 Narinder Singh Kadyan, Tehsildar, Panipat was called and in whose presence, the bag being carried by the accused was searched and which was found containing 3 Kgs of Opium wrapped in a polythene. After separating 100 gms. of opium, the residue along with the sample was taken into possession vide recovery memo Ex.PF. A rukka Ex.PG was sent to Police Station and on the basis of which formal F.I.R. Ex.PG/1 was recorded against the accused. A rough site plan of the place of recovery Ex.PH was prepared. The personal search of the accused was conducted vide memo Ex.PH/1. The accused along with the case property and the witnesses was produced before PW-5 Kasmiri Lal S.I. and who verified the investigations and put his seal on the sample parcel as well as residue and directed the investigating officer to deposit the case property with the M.H.C., P.S. City Panipat. Statements of the witnesses were recorded. After usual investigations, 2 of 17 ::: Downloaded on - 22-09-2024 07:41:05 ::: Neutral Citation No:=2024:PHHC:119601-DB CRA-D-945-DB-2004 3 the police found sufficient grounds to proceed against the accused and as such, a charge-sheet was filed against him in the trial Court to face trial. Trial Court Proceedings
4. On completion of investigations, challan was filed in the learned trial Court against the accused. On his appearance before the learned trial Court, he was charge-sheeted for the commission of an offence punishable under Section 18 of the said Act, to which he pleaded not guilty and claimed trial. Subsequently after the recordings of depositions of 7 witnesses, the learned public prosecutor closed the prosecution evidence but after tendering the report of the FSL, to which Ex.PX is assigned. After the closure of the prosecution case, the learned trial Judge drew proceedings under Section 313 Cr.P.C., whereins, the accused pleaded innocence, and, claimed false implication. However, he did not lead any witness in his defence evidence. Submissions of learned counsel for the convict-appellant
5. The learned counsel for the aggrieved convict-appellant has argued before this Court, that the impugned verdict of conviction, and, the consequent thereto order of sentence, thus require an interference. He supports the above submission on the ground, that it is based on a gross misappreciation, and, non- appreciation of evidence germane to the charge.
Submissions of the learned State counsel
6. Learned State counsel has argued that the impugned verdict of conviction, and, consequent thereto sentence (supra), as became imposed upon the convict by the learned trial Judge concerned, is meritworthy, as the same does not suffer from any taint of any gross mis-appreciation or non-appreciation 3 of 17 ::: Downloaded on - 22-09-2024 07:41:05 ::: Neutral Citation No:=2024:PHHC:119601-DB CRA-D-945-DB-2004 4 of any evidence germane to the charge. Therefore, he contends that the impugned verdict of conviction be maintained, and, affirmed by this Court. Analysis of the submissions of learned counsel for the convict-appellant and reasons for accepting the same
7. Through Ex.PF recovery of poppy straw was made from one thaila which the appellant was holding in his right hand. Therefore, thereby there was no requirement for the investigating officer concerned, to beget compliance with the mandatory statutory provisions, as embodied in Section 50 of the Act.
8. A reading of the recovery memo thus reveals that, Investigating Officer (PW-6) put his seal bearing impression 'RN' on the sample parcels, as well as, on the residue parcel, but the numbers' of seal impressions embossed on such parcels rather remains unspoken thereins. As further revealed by PW-6, the police party met the SI/SHO Kashmiri Lal on the way at Sukhdev Naga turn, where he produced the accused along with the case property, witnesses and samples before him, whereons the SHO concerned, put his seal bearing impression 'KL', but the numbers' of seal impressions embossed by SHO concerned, on such parcels rather also remains unspoken thereins.
9. However, a reading of the report of the FSL concerned, as becomes enclosed in Ex.PX, contents whereof are extracted hereinafter, though rather vividly reveals, that the one sealed cloth parcel as became forwarded there by SP Panipat, thus became received there. Though it is further expressed therein that it become sealed with 1 seal of 'RN', and 1 seal of 'KL'. However, the above made narrations in the report of the FSL concerned, do not completely tally with the speakings, as made by the prosecution witnesses concerned, thus in respect of the numbers' of the seal impressions, as became made on the apposite cloth parcels, especially when the numbers of the seal impressions, as made on the 4 of 17 ::: Downloaded on - 22-09-2024 07:41:05 ::: Neutral Citation No:=2024:PHHC:119601-DB CRA-D-945-DB-2004 5 cloth parcels concerned, remain unspoken by the prosecution witnesses concerned, nor became spoken in the recovery memo (supra). Therefore, but obviously it cannot to be concluded, that the enclosed residue in the cloth parcels, which became removed from the bulk, for examinations thereons being made, by the FSL concerned, becoming completely related or being compatible, to the numbers' of the seal impression, as purportedly made thereons, as the said apposite numbers become spoken only in the report of the FSL concerned, but remains unspoken either by the PWs concerned, nor become spoken in the recovery memo Ex.PF.
Xxx DESCRIPTION OF SEAL(S) One sealed cloth/paper parcel(s) sealed with 1 seals of R.N. and 1 seals of K.L. enclosing a plastic container containing the exhibit.
xxx
RESULTS
Qualitative Tests:- Ex-1 to Ex-39
Meconic Acid: Present Thebaine: Present
Morphine: Present Papaverine: Present
Codeine: Present Narcotine: Present
Quantitative Tests:-
Morphine Percentage: 5.920 w/w
Weight of the Sample Returned: 118. (illegible) in container OPINION: The sample was identified as OPIUM Note: After exam, the exhibit has been sealed with the seal of SSO (illegible)/FSL.
Sd/-
S.K. NAGPAL
Senior Scientific Officer (General)
cum-ex-officio Asstt. Chemical
Exminer to the Govt; of Haryana,
Forensic Science Laboratory
Madhuban (Karnal)"
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CRA-D-945-DB-2004 6
10. The underlined hereinabove expressions occurring at the top of the report of the FSL (Ex.PX), whereins, occur speakings about the numbers' of seals, as made on the cloth parcels concerned.
11. Reiteratedly the hereinabove underlined expressions, as occur at the top of the report of the FSL, but for lack of (supra) inter se synchronicity, with the incriminatory examination, as made on the stuff inside the cloth parcels, therebys does not make the accused to be inculpable and/or rather therebys there occurring snappings of apposite inter se complete connectivity inter se the descriptions made on the recovery memo with the ones, as become made in the hereinabove underlined portion of the FSL.
12. Even though no contest became raised by the learned defence counsel that the FSL report Ex.PX, thus was not made in respect of contents enclosed in the sealed cloth parcel (supra), nor though any contest became raised by the learned defence counsel, that the thereons embossed number(s) of seal impressions, besides the embossed thereons, thus English alphabets, rather not tallying either with the number(s) of the seal impressions or with the English alphabets, as became embossed thereons, and, as became depicted in the road certificate.
13. In addition, therebys though whatsoever argument is raised before this Court, by the learned counsel for the convict-appellant, that the report, as became made by the FSL concerned, on the sealed cloth parcel, thus is not related to the stuff inside them, and, as became purportedly separated from the bulk, at the crime site, but necessarily is also a pretextual argument.
14. Importantly, though the result of the apposite examinations, as becomes extracted hereinabove, makes vivid echoing that after examinations of the stuff, as was enveloped in the sealed cloth parcel, thus such examinations 6 of 17 ::: Downloaded on - 22-09-2024 07:41:05 ::: Neutral Citation No:=2024:PHHC:119601-DB CRA-D-945-DB-2004 7 unfolding, that thereins became enclosed remains of opium. Conspicuously, though the report of the FSL concerned, also recites that after examination of the stuff inside the sealed cloth parcel, the said examined stuff, became re-enclosed in sealed cloth parcels, and, thereons became affixed seals of the FSL concerned.
15. Though the said above recitals, as occur in the report of the FSL concerned, also do not become contested by the learned counsel. Though, the sequel of no contest being raised to the above recitals, though reiteratedly is that, the learned defence counsel, neither asking nor was required to be given any opportunity, thus for production of the cloth parcel enclosing therein, the stuff examined by the FSL concerned, and, in respect whereof an affirmative opinion was made.
16. Though also the effect of the above opportunity neither being asked nor being granted to the learned defence counsel, during the course of cross- examination, of the prosecution witnesses concerned, is prima facie naturally that, the above opportunity has been waived or abandoned by the learned defence counsel. In consequence, the further effect thereof, is that, the presumption of truth as attachable through attracting theretos, the mandate existing in Section 292 of the Cr.P.C., does thereby rather prima facie acquire conclusivity. Therefore, though for non-production of the parcel containing the residue, as became separated from the bulk, at the crime site, rather before the learned trial Court concerned, does not yet prima facie snap the link, inter se the residue becoming separated from the bulk, at the time of recovery of the contraband, being made at the crime site, vis-à-vis, the production of the said residue, which after its examination became re-enclosed in a cloth parcel by the FSL concerned. Arguments of the learned State counsel and the reasons for rejecting the same, therebys this Court concluding that the appeal is required to be allowed 7 of 17 ::: Downloaded on - 22-09-2024 07:41:05 ::: Neutral Citation No:=2024:PHHC:119601-DB CRA-D-945-DB-2004 8
17. Nonetheless, the learned State counsel submits that since in terms of Section 293 and 294 of the Cr.P.C., provisions whereof becomes extracted hereinafter, thus a rebuttable presumption of truth becomes assigned to the reports prepared by the Experts, as become detailed in sub Section 4 of Section 293 of the Cr.P.C. Resultantly, he submits that since therebys the Court has a discretion to summon and examine any such expert, as to the subject matter of his report. Moreover, since therebys an opportunity is assigned to the accused rather to bely the results of the examination made over the subject examined by the Expert concerned. Therefore, he submits that since the said opportunity is waived by the accused, through the learned defence counsel permitting the making of exhibition marks on the report of the FSL concerned. Resultantly the results of the incriminatory examination (supra), as made by the FSL concerned, over the subject concerned, is admissible in evidence but irrespective of the fact, that after examination of the stuff at the FSL, the same remaining unenclosed in cloth parcels, nor the seal impressions of the FSL concerned, becoming embossed thereons, besides the cloth parcels remaining unproduced in Court for the same being then shown to the prosecution witnesses concerned.
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.
(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.
8 of 17 ::: Downloaded on - 22-09-2024 07:41:05 ::: Neutral Citation No:=2024:PHHC:119601-DB CRA-D-945-DB-2004 9 (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 Government for this purpose.]
294. No formal proof of certain documents.--(1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2) The list of documents shall be in such form as be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:
Provided that the Court may, in its discretion, require such signature to be proved.
18. Be that as it may, he yet further reiteratedly submits that in terms of Section 294 of the Cr.P.C., provisions whereof becomes extracted hereinabove, since the said report became included in a list and when upon its/their production in Court, at the instance of the learned Public Prosecutor concerned, there was an opportunity vis-a-vis the accused to either admit or deny the genuineness of the said report. Therefore, reiteratedly he submits that since the said opportunity remained unavailed. Contrarily with the learned defence counsel rather permitting the making of an exhibition mark thereons, thereupon in terms of 9 of 17 ::: Downloaded on - 22-09-2024 07:41:05 ::: Neutral Citation No:=2024:PHHC:119601-DB CRA-D-945-DB-2004 10 Section 293(4) of the Cr.P.C., the report of the FSL was per se readable in evidence.
19. He further reiteratedly submits that thereby yet the link commencing from the date of preparation of recovery memo and upto the drawing of the report remains fully established, therebys the charge drawn against the accused becomes cogently proven, irrespective of existence of the above infirmity relating to the non production of the examined stuff before the Court concerned, for the same then being shown to the prosecution witness or to the expert concerned.
However, for the reasons to be assigned hereinafter the said made argument before this Court by the learned State counsel is not acceptable.
20. Firstly for the reason that though in terms of the Section 293(3) of the Cr.P.C., rather the experts concerned, when proceed to make a report in respect of the subject matter concerned, thereupon the said report is usable as evidence. However, the usability of such report rather is not conclusive proof vis-a-vis the results of the examinations as disclosed therein. The reason for making the said conclusion becomes sparked from the factum, that the coinages "may be used as evidence in any inquiry, trial or other proceeding under this Code", do garner an inference that the said report, but acquires only a presumption of truth, thus is not conclusive proof in respect of the results of the examination, as become echoed thereins.
21. In sequel, the makings of a close analyses of the provisions as embodied in Section 293(2) of the Cr.P.C., leads to the sequel that therebys the learned trial Court becoming empowered to summon and examine the expert concerned, whereupons, the said vested empowerment in the trial Judge 10 of 17 ::: Downloaded on - 22-09-2024 07:41:05 ::: Neutral Citation No:=2024:PHHC:119601-DB CRA-D-945-DB-2004 11 concerned, is to be read to be thus bestowing also a leverage vis-a-vis the defence to cross-examine the expert concerned.
22. Moreover, though in terms of Section 293(3) of the Cr.P.C., the expert concerned, may be with the leave of the Court, choose not to make his personal appearance before the learned trial Judge concerned, wherebys the learned trial Judge concerned, may permit the responsible officer concerned, so deployed by the author of the report for proving the said apposite report but who is also well conversant with the facts of the case besides can satisfactorily depose in Court on behalf of the expert, who prepared the report.
23. However, yet the recourse to Section 293(3) of the Cr.P.C., but cannot whittle down the conferment of an indefeasible right upon the accused to seek a personal cross-examination being made vis-a-vis the author of the report concerned, as thereby a full opportunity of fair trial, as envisaged under Article 21 of the Constitution of India, thus would become well preserved vis-a-vis the accused.
24. Necessarily therebys the statutory discretion (supra) as becomes conferred upon the learned trial Judge concerned, thus to summon and examine any such expert as to the subject matter of his report, rather has to be read to be not conferring an idle discretion upon the learned trial Judge concerned. Contrarily, it has to be construed to be injuncting the learned trial Judge concerned, to ensure that he summons the expert, especially when this Court after assigning the directory signification (supra), to the directory coinages "may be used as evidence in any inquiry, trial or other proceeding under this Code", as occur in Section 293 of the Cr.P.C., rather has therebys inferred that the report of an expert only enjoys a presumption of truth. If so, especially when this Court has also made the above inference, that for fully awakening the innate purpose of 11 of 17 ::: Downloaded on - 22-09-2024 07:41:05 ::: Neutral Citation No:=2024:PHHC:119601-DB CRA-D-945-DB-2004 12 Article 21 of the Constitution of India, as appertains to the fullest opportunity of fair trial becoming assigned to the accused. Therefore, for facilitating the assigning of the fullest opportunity of fair trial to the accused, therebys the personal appearance of the author of the report, after his being summoned, is but imperative, as only thereafters he can be cross-examined by the defence. Therefore too, the import of the provisions (supra), thus is to forward the mandate of fair trial as enshrined in Article 21 of the Constitution of India, therebys the summoning of the accused is imperative for his being not only examined-in-chief rather for proving the incriminatory report as become drawn by the expert concerned, but also for his being subsequently cross-examined.
25. Be that as it may, though Section 294 of the Cr.P.C., provisions whereof becoming extracted hereinabove, appear to make an injunction upon the learned trial Judge concerned, to vis-a-vis any document which is filed by the prosecution or by the accused, particulars whereof are included in the list, thus permit respectively the prosecution or the accused, either to admit or deny the genuineness of every such document. Moreover, in the event of the genuineness of any document rather remaining undisputed, thereupon the said document being permissible to be read in evidence in any enquiry, trial of other proceeding as drawn under the Code, but without proof of the signature of the person to whom it purports to be signed. The proviso appended under Section 294(3) of the Cr.P.C., also well empowers the Court to in its discretion require proof of signatures.
26. Since as stated (supra), the corner stone of Section 293 of the Cr.P.C., is that, therebys only a rebuttable presumption of truth becoming assigned to a report prepared by the experts detailed in Section 293(4) of the Cr.P.C. Therebys reiteratedly when an opportunity to the accused to lead 12 of 17 ::: Downloaded on - 22-09-2024 07:41:05 ::: Neutral Citation No:=2024:PHHC:119601-DB CRA-D-945-DB-2004 13 evidence in rebuttal to the said prepared report, through making cross- examination upon the author concerned, is in consonance with the ordainment occurring in Article 21 of the Constitution of India, thereupons irrespective of no denial being made by the defence counsel at the time of production of the report of the FSL by the Public Prosecutor concerned, but would not relieve the learned trial Judge concerned, vis-a-vis the statutory obligation as enclosed in Section 294 Cr.P.C. Importantly, when the said statutory obligation is cast in a mandatory tone, besides when the said assigning of an overload of mandatoriness to the provisions carried in Section 294 Cr.P.C., becomes well grooved in the mandatory statutory coinage "shall be called upon to admit or deny the genuineness of each such document", as exist in Section 294 Cr.P.C.
27. Though, the learned State counsel has vigorously argued that since the report of the FSL concerned, enclosed in Ex.PX, thus makes an incriminatory pronouncement vis-a-vis the accused, whereafter he has further submitted that since the said report was tendered into evidence by the learned Public Prosecutor concerned. Therefore since at the said stage, there was an opportunity to the accused to admit or deny the genuineness of the said report, whereas, the said opportunity remaining unavailed, thereupon when within the domain of Section 294(3) of the Cr.P.C., the FSL report has earlier remain undisputed, as such it was per se readable in evidence.
28. In nutshell he argues that the mere tendering into evidence vis-a-vis the report, without the stuff examined being produced in Court, rather is sufficient and clinching proof, in respect of the incriminatory results drawn against the accused, especially when after the tendering of the report by the Public Prosecutor concerned, the accused rather waived for reason (supra) or had forgone the opportunity to deny the results of the examination as made.
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29. Even the said submission (supra), is rudderless, thus on the ground that it has sprung from the learned trial Judge concerned, remaining unawakened in entirety vis-a-vis the innate nuance (supra) as become assigned to the above extracted provisions.
30. Since as stated (supra), the fine rubric ingraining the provisions comprised in Section 294 Cr.P.C., is to ensure the furtherance of fair trial as envisaged under Article 21 of the Constitution of India, in respect of the charges drawn against the accused. Moreover, if the said would yet happen only after the expert stepping into the witness box, thus for enabling the defence to cross- examine him, qua the processes' engaged by him for making examinations of the stuff enclosed in the sealed cloth parcels, therebys the mere tendering of the report by the Public Prosecution concerned, but would not ipso facto prove the charge drawn against the accused. In addition, even if at that stage the defence counsel, did not refute the makings of an exhibit mark thereon, but yet to the objective insightful mind of this Court, the said purported waiver did not thus, empower the learned trial Judge concerned, to omit to obey the statutory obligation cast upon him, thus contemplated within the domain of the significations as assigned, vis-a-vis the mandatory statutory coinages "shall be called upon to admit or deny the genuineness of each such document". The said statutory coinages do cast a peremptory diktat upon the Court to irrespective of no refutation being made vis-a-vis the apposite report rather by the defence counsel, yet to rather call upon the accused to also either admit or deny the genuineness of the documents.
31. In other words, the said was a solemn duty cast upon the Court. Moreover, the said duty could be said to be well exercised only when the accused was peremptorily called upon to admit or deny the genuineness of the 14 of 17 ::: Downloaded on - 22-09-2024 07:41:05 ::: Neutral Citation No:=2024:PHHC:119601-DB CRA-D-945-DB-2004 15 said document. Moreover, the said right is personal to the accused, and, is to be both ensured to be availed as also to be well exercised only by him, unless of course the defence counsel makes a statement that he has instructions to permit the making of an exhibition mark in the instant case.
32. Since at the time of the tendering into evidence of the report of the FSL, to which Ex.PX is assigned, the learned defence counsel, did make a statement, that he has instructions from the accused to not oppose, the making of an exhibition mark upon the report of the FSL concerned, therebys the learned trial Judge concerned, appears to have derogated from the mandatory statutory obligation cast upon him rather to ensure qua the accused appearing before him, thus for admitting or denying the genuineness of apposite report. The said avoidance of performance of duty by the learned trial Judge concerned, has resulted in the accused becoming denied the fullest opportunity to admit or deny the report, and, to also subsequently ask that the expert concerned, be summoned, so that he can then cross-examine him, about the correctness of the report or vis-a-vis the correctness of the processes engaged into by him for his making an examination of the stuff inside the sealed cloth parcel.
33. Moreover, Section 294(3) of the Cr.P.C., declares that when the genuineness of any document is not disputed, thereupon the said document being readable in evidence but without proof of the signatures of the person to whom it purports to be signed, but with a proviso that the Court may, in its discretion, require such signature to be proved.
34. In aftermath, the statutory right of admission or denial as bestowed in Section 294 of the Cr.P.C., though prima facie relates only to the apposite admission/denial covering the genuineness of the signatures of the author of the document concerned, which may be even a report made in terms of Section 15 of 17 ::: Downloaded on - 22-09-2024 07:41:05 ::: Neutral Citation No:=2024:PHHC:119601-DB CRA-D-945-DB-2004 16 Section 293(4) of the Cr.P.C., but it does not yet relieve the learned trial Judge concerned, to yet in terms of Section 293(2) of the Cr.P.C., though the coinages therein, are in a directory language, but further ensure the conducting of a fair trial vis-a-vis the accused. The said would occur only if the expert concerned, becoming summoned, as therebys the accused would be permitted to cross- examine the expert concerned, wherebys the right of fair trial would become fully preserved vis-a-vis the accused, the same being a Constitutional right.
35. Emphatically also there is no evidence on record which forthrightly speaks that the said examined contents enclosed in the apposite cloth parcels became returned to the FSL concerned, nor obviously qua the said examined sealed cloth parcels became deposited in the police malkhana concerned. Moreover, the apposite sealed cloth parcels never became produced in Court, for theirs becoming shown to the prosecution witnesses concerned, thus for ensuring the makings of speakings by them, vis-a-vis, the apposite sealed cloth parcels becoming received in the police malkhana and subsequently in Court, thus in an untampered and unspoiled condition. Since the above did not happen therebys, it appears that the prosecution has withheld a vital incriminatory link comprised in the production in Court of the apposite cloth parcels in respect of whose contents, an incriminatory report comprised, thus in Ex.PX, thus was made. The suppression or withholding of the above vital link, thus snaps the link inter se the recovery being made at the crime site, vis-a-vis the apposite incriminatory opinion being made thereons by the FSL concerned.
36. If so, it appears that the apposite sealed cloth parcels did disappear, wherefrom an inference arises that the incriminatory report made on the stuff inside the cloth parcels concerned, may not be related to the stuff which as a matter of fact, became examined at the FSL concerned, irrespective of the 16 of 17 ::: Downloaded on - 22-09-2024 07:41:05 ::: Neutral Citation No:=2024:PHHC:119601-DB CRA-D-945-DB-2004 17 factum, that the residue enclosed in sealed cloth parcels may have travelled in an unspoiled or untampered condition to the FSL concerned. Conspicuously, when the apposite returns of the apposite cloth parcel rather in an unspoiled or untampered condition but was imperative. Consequently, if grave skepticism makes it enrodes vis-a-vis the prosecution case, therebys the vital incriminatory link (supra) becomes snapped. Therefore, benefit of doubt is to be given to the accused.
Final Order
37. The result of the above discussion, is that, this Court finds merit in the appeal, and, is constrained to allow it. Consequently, the appeal is allowed. The impugned judgment convicting, and, sentencing the appellant, and, as become recorded by the learned trial Judge concerned, is quashed, and, set aside. The appellant is acquitted of the charge framed against him. The fine amount, if any, deposited by him, be, in accordance with law, refunded to him. The personal, and, surety bonds of the accused shall stand forthwith cancelled, and, discharged. The case property be dealt with, in accordance with law, but after the expiry of the period of limitation for the filing of an appeal. The appellant, if in custody, and, if not required in any other case, be forthwith set at liberty. Release warrants be prepared accordingly.
38. Case property, if any, be dealt with in accordance with law, but only after the expiry of the period of limitation for the filing of an appeal.
39. Records be sent down forthwith.
(SURESHWAR THAKUR)
JUDGE
10.09.2024 (SUDEEPTI SHARMA)
Ithlesh JUDGE
Whether speaking/reasoned:- Yes/No
Whether reportable: Yes/No
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