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16. By referring to the order-sheet dated 9-7-2018, it is submitted 13 State of M.P. Vs. Nandu @ Nandkishore Gupta (CRRFC No.9 of 2018) & Nandu @ Nandkishore Gupta Vs. State of M.P. (Cr.A. No.6946 of 2018) that Dr. S.S. Batham (P.W. 15), Dr. Dinesh Kumar (P.W.16) and Rambihari Patsaria (P.W.17) were examined in absence of the respondent/accused.

17. Further by referring to the order-sheets of the Trial Court, it is submitted that on 2-5-2018, it was observed that cognizance is to be taken and the case was adjourned to 15-5-2018. As the respondent/accused was not produced, therefore, the case was adjourned to 16-5-2018. On 16-5-2018, charges were framed and the trial program was also filed and the case was fixed for 5-6-2018 for examination on witnesses. On 5-6-2018, Ramesh (P.W.1), Laxmi (P.W. 2) and Sanjeev Gupta (P.W.3) were examined. On 6-6-2018 Rajendra Prasad Gupta (P.W.4), Bahadur Singh (P.W.5), and Dharmendra Prajapati (P.W.6) were examined. Thereafter on 7-6- 2018 Vishal Sharma (P.W.7), Kamal Kishore (P.W.8), Dr. V.S. Khare (P.W.9) and Pradeep Kumar Narvaria (P.W.10) were examined. Thereafter on 8-6-2018 Dr. Jaibharat (P.W.11) and Ritesh Sharma (P.W.12) were examined and the case was adjourned to 19-6-2018. On 19-6-2018 Jagdish Gupta (P.W. 13) was examined. On the same day, supplementary charge sheet was also filed and the copy of the same was supplied to the Counsel for the respondent/accused. On 20- 6-2018 Brijraj Singh Tomar (P.W. 14) was examined and prosecution witness Ramniwas Gupta and Vaibhav Gupta were given up. Thereafter on 9-7-2018 Dr. S.S. Batham (P.W.15), Dr. Dinesh Kumar (P.W.16) and Rambihari Patsaria (P.W. 17) were examined and 14 State of M.P. Vs. Nandu @ Nandkishore Gupta (CRRFC No.9 of 2018) & Nandu @ Nandkishore Gupta Vs. State of M.P. (Cr.A. No.6946 of 2018) prosecution witness Sanju Parihar was given up. On 10-7-2018 Sanjeev Gaud (P.W.18) and Ajay Channa (P.W.19) were examined and on 11-7-2018 Y.S. Tomar (P.W. 20) was partially examined and the case was fixed for 13-7-2018 for further examination-in-chief and cross examination. On 13-7-2018, Y.S. Tomar (P.W.20) was examined. The Prosecution closed its case and the case was fixed for 17-7-2018. On 17-7-2018, the prosecution filed an application under Section 311 of Cr.P.C. for recalling of Sanjeev Gupta, which was orally opposed by the Counsel for the respondent/accused, however, the application filed by prosecution under Section 311 of Cr.P.C. was allowed and he was recalled on 18-7-2018. On 18-7-2018, Sanjeev Gupta (P.W. 3) was further examined and cross examined and the case was fixed for 19-7-2018 for accused statement. On 19-7-2018, the accused statement could not be recorded due to disruption of electricity supply and the case was adjourned to 20-7-2018. On 20-7- 2018, the case was adjourned on account of bereavement in the family of the Counsel of the respondent/accused and on 25-7-2018, the accused statement was recorded and the case was fixed for 2-8- 2018 for defence evidence. On 2-8-2018 one more opportunity was granted to examine defence witness and the case was adjourned to 7- 8-2018. On 7-8-2018, the respondent/accused expressed that he does not wish to examine any witness in his defence, but the Trial Court found that the DNA Test Report has not been received therefore, adjourned the case for 10-8-2018 for production of DNA report as 15 State of M.P. Vs. Nandu @ Nandkishore Gupta (CRRFC No.9 of 2018) & Nandu @ Nandkishore Gupta Vs. State of M.P. (Cr.A. No.6946 of 2018) well as for final hearing. The DNA report was received on 10-8-2018 and without giving any opportunity to raise objection to the said DNA report, the Trial Court marked the same as Ex.C/1 in the light of the provisions of Section 293 of Cr.P.C. On the very same day, the respondent/accused was further examined under Section 313 of Cr.P.C. and fixed the case for final arguments on the very same day and the final arguments were also heard and the judgment was delivered on 13-8-2018. It is submitted that although in the order sheet dated 10-8-2018, it is mentioned that the respondent/accused had not raised any effective objection against the DNA report, but it is clear that the admissibility of the DNA report was objected by the respondent/accused, but the same was rejected without dealing with the objections. It is further submitted that since, the case was fixed for 10-8-2018 for receipt of DNA report, thus, it is clear that the prosecution case was not closed for all practical purposes, but still the Trial Court acted in a haste by marking the DNA report as Ex.C/1, and thereby further examining the respondent/accused under Section 313 of Cr.P.C. as well as hearing the matter finally on the same day. It is submitted that it appears that the Trial Court was under pressure of media trial.

41. It is next contended by the Counsel for the respondent/accused that the prosecution closed its case on 13-7-2018 and on 17-7-2018, 31 State of M.P. Vs. Nandu @ Nandkishore Gupta (CRRFC No.9 of 2018) & Nandu @ Nandkishore Gupta Vs. State of M.P. (Cr.A. No.6946 of 2018) an application filed by prosecution under Section 311 of Cr.P.C. was allowed and Sanjeev Gupta (P.W.3) was further examined on 18-7- 2018, and the accused statements under Section 313 of Cr.P.C. were recorded on 25-7-2018 and the case was adjourned for examination of defence witness. The respondent/accused also expressed his unwillingness to examine any defence witness on 7-8-2018, but the Trial Court on its own found that the DNA report has not been produced, therefore, fixed the case for 10-8-2018 for filing of DNA report as well as for Final arguments. It is submitted that once, the prosecution case was not closed for all practical purposes, then the Trial Court should not have fixed the case for final arguments. Furthermore, on 10-8-2018, the DNA report was filed and after mentioning that no effective objection was raised by the respondent/accused, the DNA report was exhibited as Ex.C-1 in the light of the provisions of Section 293 of Cr.P.C. It is submitted that the Trial Court acted in a haste and on the very same day, further examination of accused under Section 313 of Cr.P.C. was done and fixed the case for final hearing on the same day and ultimately heard the matter finally. It is submitted that this undue haste shown by the Trial Court has seriously prejudiced the respondent/accused.

44. From the above mentioned order-sheets, it appears that the case for final arguments was fixed on the same day with the consent of the Counsel for the parties, but whether it can be said that any prejudice was caused to the respondent/accused or not?

45. It is submitted by the Counsel for the respondent/accused that in the seizure memo Ex. P. 13, it is not mentioned that whether any 33 State of M.P. Vs. Nandu @ Nandkishore Gupta (CRRFC No.9 of 2018) & Nandu @ Nandkishore Gupta Vs. State of M.P. (Cr.A. No.6946 of 2018) stains of any kind were found on the bed sheet recovered from the room of the co-accused Ranu @ Dilip Sahu. It is further submitted that even in the DNA report, it is merely mentioned that DNA profile was found from the source from Cloths of the deceased and the bed sheet, but the nature of source is not mentioned whereas the Scientific Officer has mentioned that DNA profile of the respondent/accused was extracted from source "blood sample". It is submitted that when the Scientific Officer was mentioning about the "blood sample" as a source for extracting DNA profile of the respondent/accused, then the omission on his part to disclose the nature of source found on the cloths of the deceased and the bed sheet recovered from the room of the co-accused Ranu @ Dilip Sahu assumes importance. It is submitted that the respondent/accused by cross examining the Scientific Officer, could have pointed out that the DNA report is not worth reliance, however, the objection raised by the respondent/accused to the DNA report was rejected merely by mentioning that no effective objection was raised. It is further submitted that the DNA report has also been considered against the respondent/accused, therefore grave prejudice has been caused to him.

57. Accordingly, the judgment of conviction and sentence dated 13-8-2018 passed by 1st A.S.J., Datia in Special Sessions Trial No.21/2018 is hereby Set aside.

58. The matter is remanded back to the Trial Court with a direction to record the evidence of Dr. S.S. Batham (P.W. 15) and Dr. Dinesh Kumar (P.W. 16) afresh in the presence of the respondent/accused. After recording the evidence of the above mentioned two witnesses, the Trial Court shall proceed further from the stage of filing of DNA report i.e., 10-8-2018. The respondent/accused shall be granted an opportunity to file written objection to the DNA report and the same shall be decided in accordance with law. If an application for cross- examination of Scientific Officer is filed, then the same shall be considered and decided in accordance with law. Thereafter, if any opportunity is sought by the accused to lead any evidence in his defence in the light of the DNA report, then the same shall be afforded to him in accordance with law. Only after following the provisions of Section 233 of Cr.P.C., the case shall be fixed for Final Arguments, thereby giving at-least one week time to prepare and argue the matter.