Bombay High Court
State Of Mah. Thr. Pso Ps Kalmeshwar ... vs Sanjay Deopuri Puri on 27 November, 2025
Author: Anil Laxman Pansare
Bench: Anil Laxman Pansare
2025:BHC-NAG:13148-DB
Order appa 842.2025.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
Criminal Application (APPA) No. 842 of 2025
in
Criminal Appeal No. 329 of 2024
Criminal Confirmation Case No. 3 of 2024
[Sanjay Deopuri Puri vs. State of Maharashtra at the instance
of Police Station, Kalmeshwar vide Crime No. 858/2019]
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Office Notes, Office Memoranda Court's or Judge's orders
of Coram, Appearances, Court's orders
or directions and Registrar's orders.
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Ms. Shreya Rastogi with Mr. Shivkumar Dviwedi, Advocates for
the applicant/appellant
Mr. S. S. Doifode, A.P.P. for the State/respondent
CORAM: ANIL L. PANSARE
AND RAJ D. WAKODE, JJ.
DATE : 27-11-2025.
Heard.
2. The applicant - accused has filed present
application under Sections 367 and 391 read with
Section 293(2) of the Code of Criminal Procedure, 1973
(for short 'the Code') to examine as witness, the forensic
analysts.
3. The applicant has been convicted for the
offences punishable under Sections 363, 302, 376(AB)
and 376(2)(i)(j)(m) of the Indian Penal Code, 1860
(for short 'IPC') and under Sections 4, 6 and 10 of the
Protection of Children from Sexual Offences Act, 2012
(for short 'POCSO Act'). He has been sentenced to
death under Section 302 of IPC. Separate punishment
is imposed for other offences.
Order appa 842.2025.odt
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4. We have heard Ms. Shreya Rastogi, learned
counsel for the applicant and Mr. S. S. Doifode, learned
Additional Public Prosecutor (APP) for the State.
5. Admittedly, the case of prosecution is based
on circumstantial evidence. There is further no dispute
that the trial Court has heavily relied upon Forensic
Science Laboratory (FSL) report to connect the
applicant with the crime. The findings to that effect
find place in paragraph 68 of the judgment, which reads
thus :-
"68) It is important to mention that there is no
explanation on behalf of accused how blood of the
victim girl was found on his underwear which is
recovered at his instance under the recovery
panchanama Exh-27. In view of the aforesaid facts
and findings of Chemical Analyser, the prosecution
has established beyond reasonable doubt that
blood detected on the underwear of the accused is
of the victim girl. To that extent accused as per
Section 106 of the Evidence Act failed to offer or
give any explanation how the blood of the victim
girl is found on his underwear."
Thus, the Court held, on the basis of FSL report,
that the blood detected on the underwear of the
accused was of victim girl and accordingly, expected
accused to discharge burden in terms of Section 106 of
the Evidence Act.
6. The argument is that though FSL report was
marked exhibit, the scientific expert was not examined.
Therefore, opportunity to cross-examine the witness
Order appa 842.2025.odt
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was never given to the applicant.
7. Learned counsel for the applicant further
submits that the applicant had denied the FSL report
and despite such fact, the trial Court took a view that
though the applicant denied the report, he has not filed
any application for examining scientific expert.
8. In this context, learned counsel for the
applicant submits that once the applicant had denied
the report, the trial Court should have invited
prosecution to examine the scientific expert in terms of
sub-section (2) of Section 293 of the Code, particularly
when capital punishment was imposed. Thus, it is
argued that fair opportunity was not given to the
applicant to defend himself.
9. In support, learned counsel for the applicant
relied upon the judgment of Supreme Court in the case
of Irfan alias Bhayu Mevati Vs. State of Madhya Pradesh
[2025 SCC OnLine SC 359] wherein the Court held as
under :-
"29. The instant case involves capital
punishment and thus, providing a fair opportunity
to the accused to defend himself is absolutely
imperative and non-negotiable. The trial in the
case at hand was concluded without providing
appropriate opportunity of defending to the
accused and within and within a period of less
than two months from the date of registration of
the case, which is reflective of undue haste. The
failure of the trial Court to ensure the deposition of
the scientific experts while relying upon the DNA
Order appa 842.2025.odt
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report, has definitely led to the failure of justice
thereby, vitiating the trial.
30. In the wake of the above discussion,
we allow the application filed by the appellants.
The case is remanded to the trial Court who shall
summon the scientific experts associated with the
preparation and issuance of the DNA report with
the entire supporting material. These scientific
experts shall be summoned and examined as Court
witnesses with a proper opportunity of
examination to the prosecution and the defence in
that order. In case the accused are not represented
by a counsel of their choice, a defence counsel
having substantial experience in terms of the
guidelines laid down by this Court in Anokhilal
(supra) (extracted in Para 26 of this judgment)
shall be appointed to defend the accused and in
the de novo trial.
31. Pursuant to the testimony of the
scientific experts being recorded, the accused shall
be again questioned under Section 313 CrPC in
context to the fresh evidence. They shall be
provided a fair opportunity of leading defence
evidence. Thereafter, the trial Court shall proceed
to re-hear the arguments and decide the case
afresh as per law. The entire process as directed
above, shall be completed within a period of four
months from the date of receipt of this order."
Thus, the Court held that failure of the trial Court
to ensure deposition of the scientific experts while
relying upon the DNA report, has led to failure of justice
thereby, vitiating the trial. The Court then remanded
the case to the trial Court with a direction to summon
the scientific experts for giving opportunity of
Order appa 842.2025.odt
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examination to prosecution and defence. The Court
further directed to record statement of accused under
Section 313 of the Code in context with fresh evidence
and to afford them opportunity to lead defence
evidence. The trial Court was then directed to re-hear
the arguments and decide the case afresh as per law.
10. Thus, the Supreme Court has held that failure
to examine scientific expert responsible for DNA
evidence has violated rights of accused to a fair trial
and accordingly remanded the matter back for
consideration afresh from the stage of examining
experts.
11. Learned APP has opposed the application. He
submits that the trial Court is fully justified in relying
upon the FSL report, which according to him, is
permissible in terms of Section 293 of the Code. He
submits that it was open for the applicant to challenge
the report by examining the expert, which the applicant
has not done. Thus, according to him, despite affording
opportunity, the applicant failed to avail the same and,
therefore, the judgment cannot be faulted.
12. In support, he has relied upon the judgment
of the Supreme Court in the case of Ashok Kumar Vs.
State of Haryana [(2000) 2 SCC 592] wherein the
Court found that the report of Chemical Analyzer was
clear. The appellant therein did not challenge the
report nor had he given any application for examining
the Chemical Analyzer as witness to establish that seals
Order appa 842.2025.odt
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on samples were the same as received by him.
13. Thus, the dispute before the Supreme Court
was about the sealing of the sample and in that context,
the Supreme Court held that appellant should have
challenged the report by examining him as witness.
14. We have gone through the judgments and
material placed before us. We find that the applicant
herein was represented by counsel appointed through
Legal Aid. Another important feature is that applicant
herein has been convicted and sentenced to capital
punishment. Considering the seriousness of the crime
and the effect of the punishment, we are of the
considered view that firstly, the prosecution should
have examined the Chemical Analyzer because it was
fully aware that prosecution's case is based on
circumstantial evidence and in that context, the FSL
report was a clinching evidence to complete the chain of
links, more so, when the applicant had denied the FSL
report. Secondly, the Court should have, considered the
nature of charges against the applicant and invoked
sub-section (2) of Section 293 of the Code and should
have examined chemical analyzer. Having not done so
and in the light of the judgment of Supreme Court in
Irfan's case (supra), we do not find any reason to not
follow the directions given by the Supreme Court in the
aforesaid case.
15. At this stage, learned APP has referred to two
judgments of the Supreme Court viz. (1) Mohinder
Order appa 842.2025.odt
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Singh and others Vs. State of Punjab and another [AIR
1985 SC 383] and (2) Dagdu and others Vs. State of
Maharashtra [AIR 1977 SC 1579] to submit that it is
open to the High Court to re-appreciate the evidence
once again by permitting the prosecution to lead
additional evidence, if so necessary instead of
remanding the case back to the Sessions Court.
16. We are not inclined to accept this proposition
in as much as the judgments which are relied upon do
not consider the effect of capital punishment because
the case before the Supreme Court was not in respect of
capital punishment. As such, it is well settled that first
appellate Court could offer an opportunity of leading
additional evidence to the parties, the question here is
of capital punishment which is imposed by the trial
Court after considering entire material before it. The
High Court's jurisdiction in the case of capital
punishment is to confirm the sentence. If the High
Court has to permit either party to lead additional
evidence and thereupon to form an opinion of imposing
capital punishment, the applicant will lose valuable
right of another forum re-appreciating the entire
evidence.
17. For the aforesaid reasons and in terms of
Irfan's case (supra), the applicant should get an
opportunity to test the veracity of FSL report by
examining the forensic analysts. Accordingly, we
proceed to pass following order.
Order appa 842.2025.odt
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ORDER
(i) The application is allowed.
(ii) The judgment and order dated 3-6-2024
passed by the Additional Sessions Judge-8 and Special Judge, Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, Nagpur in Special Case No. 105/2020 is quashed and set aside.
(iii) The trial Court shall summon the scientific experts associated with the DNA report and serology report. These witnesses shall be summoned and examined as Court witnesses by affording proper opportunity of examination to the prosecution and the defence in that order. Pursuant to the testimony of scientific experts, the trial Court shall record the statement of applicant under Section 313 of the Code to the extent of fresh evidence. The trial Court shall then provide opportunity to lead defence evidence, if so desired and thereafter the trial Court shall rehear the argument and decide the case afresh as per law. The entire process shall be completed as expeditiously as possible.
(iv) The record and proceedings shall be sent back to the trial Court immediately.
(v) The applicant/accused shall be produced before the trial Court on 9-12-2025. The counsel representing the applicant shall also remain present before the trial Court on that day.
Order appa 842.2025.odt
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(vi) Criminal confirmation case and criminal
appeal are disposed of in aforesaid terms.
(JUDGE) (JUDGE.)
wasnik
Signed by: Mr. A. Y. Wasnik
Designation: PS To Honourable Judge Date: 28/11/2025 15:57:22