We find from the record that, amongst other circumstances, the
Sessions Court, in the present case, did rely upon the CA reports at
exhibit-166 (collectively) to hold against the appellants i.e. the accused persons. This is evident from paragraph 143 onwards of the impugned judgement and order of the Sessions Court. We find that the Sessions Court committed a grave error while observing in paragraph 142 of the impugned judgement and order that since the accused did not move any requisition for examining the chemical analysers for any specific cause, the reports of the chemical analysers at exhibit-166 (collectively) were being directly admitted in evidence without examining the chemical analysers. Such a course of action was clearly not open for the Sessions Court, for the reason that the Supreme Court has laid down that such witnesses ought to be court witnesses even if the prosecution fails in its duty to summon such crucial witnesses, if at all the CA reports / DNA reports are to be relied by the prosecution. We are of the opinion that the impugned judgement and order to that extent is vitiated and the trial itself stood vitiated to that extent. {Para 20}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CONFIRMATION CASE NO.3 OF 2024
State of Maharashtra Vs. Tejas @ Dada Mahipati Dalvi,
CORAM : MANISH PITALE &
SHREERAM V. SHIRSAT, JJ.
DATE : MARCH 10, 2026
Citation: 2026:BHC-AS:11660-DB
Interim Application No.4190 of 2025
. The accused No.1 has filed this application invoking Sections 408
and 432 read with Section 329 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 (BNSS) for a direction that the chemical analysers of the
concerned laboratory be summoned for cross-examination as chemical
analyst’s reports (CA reports), being as many as 12 in number, were
directly produced during the recording of evidence of the investigating
officer (P.W.29). Reliance is placed on judgements of the Supreme Court
and this Court to contend that in the absence of summoning of the
chemical analysers by the Court and depriving the accused from crossexamining
them has vitiated the trial. On this ground, it is contended that
the impugned judgment and order deserves to be set aside and the matter
ought to be remanded to the Sessions Court.
2. It is additionally contended that in the event the application is
allowed and the matter is remanded to the Sessions Court, a direction
ought to be issued for statement under Section 313 of the Cr.P.C. (now
Section 351 of BNSS) to be recorded in the context of the further
evidence that would come on record. In fact, it is brought to our notice
that recording of the statement under Section 313 of the Cr.P.C., in the
present case, was also vitiated because questions were put to both the
accused persons jointly for eliciting their responses. In that light, it is
submitted that the entire statement under Section 313 of the Cr.P.C.
ought to be recorded afresh.
3. The present confirmation case and the two appeals arise from
judgement and order dated 22.03.2024 passed by the Court of Additional
Sessions Judge, Pune (hereinafter referred to as the ‘Sessions Court’) in
Special Sessions Case No.176 of 2023. By the said judgement and order,
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the applicant (accused No.1) has been convicted for offences under
Sections 363, 302, 376(2), 376A, 376AB and 201 of the Indian Penal
Code, 1860 (IPC) and Sections 4 and 6 of the Protection of Children
from Sexual Offences Act, 2012 (POCSO Act). He has been sentenced
to death for offences under Sections 376A and 376AB of the IPC as also
Section 6 of the POCSO Act. For the other offences, he has been
sentenced for imprisonment for various durations. Accused No.2, the
mother of accused No.1, has been convicted under Section 201 of the
IPC and Section 21 of the POCSO Act. She has been sentenced to
undergo seven years of imprisonment for offence under Section 201 of
the IPC and for a period of six months under Section 21 of the POCSO
Act.
4. Since this Court is dealing with the said application bearing
Interim Application No.4190 of 2025, a detailed reference to the manner
in which the investigation proceeded and the prosecution case, is not
necessary and a very brief reference to the same would give the context
in which the present application is being considered.
5. The accused No.1 i.e. the applicant herein is alleged to have
brutally assaulted the victim, who was a girl aged about 6 years and 10
months. She was a minor girl living in the neighbourhood. She suffered
aggravated penetrative sexual assault of extreme brutality and she had
deep cut wounds on her throat due to which she died. Accused No.2 is
the mother of accused No.1 and it is alleged that she assisted the accused
No.1 in concealing the dead body of the victim. The case of the
prosecution is based on circumstantial evidence, including last seen
theory.
6. Upon charge-sheet being filed and charges for the aforesaid
offences being framed, the prosecution led evidence to prove its case. By
the said impugned judgement and order, the Sessions Court accepted the
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case of the prosecution and convicted and sentenced the accused in the
aforesaid manner.
7. A perusal of the instant application shows that the following
prayers have been made:-
“A. Direct the Ld. Additional Sessions Judge, Pune, to summon
and allow cross-examination by counsel for the Applicant
of K.V. Sontakke, Assistant Chemical analyzer, RFSL,
Pune involved in preparation of the report ML Case No.
Bp-4906/22 (Page 342), ML Case No. 5079 (Exh. 166,
Page 343), ML Case No. 4950 (Page 344), ML Case No.
4905 (Page 345), Bp-5147/22 (Page 347).
B. Call for complete laboratory documentation of the
Regional Forensic Science Laboratory, Pune, in respect of
Chemical Analysis Report in ML Case No. Bp-4906/22
(Page 342), ML Case No. 5079 (Exh. 166, Page 343), ML
Case No. 4950 (Page 344), ML Case No. 4905 (Page 345),
Bp-5147/22 (Page 347), and supply copies to the
Applicant, including but not limited to copies of the
following:
a. All laboratory documentation including case
acceptance form, internal registers, movement
registers, receiving registers, blood grouping sheet,
proforma for forwarding samples to other division,
bench notes, worksheets, chain of custody form, M.O
articles sheet, photographs, details of control samples
used;
b. Details of tests conducted and techniques used for
examination of the samples received as well as the
results of these tests;
c. Working procedure manuals including of biology
and/or serology division used in examination of the
exhibits;
d. Details of seals and sample seals of all exhibits
received.
C. Direct the Ld. Additional Sessions Judge, Pune, to summon
and allow cross-examination by counsel for the Applicant
of S.S.Mane, Assistant Chemical analyzer, RSFL Pune
involved in preparation of DNA Report in ML Case No.
DNAp-872/2022 (Page 333), ML Case No. DNAp-
817/2022 (Page 335-336), ML Case No. DNAp-797/22
(Page 337, 339), and ML Case No. DNAp-871/2022 (Page
339-341).
D. Call for complete laboratory documentation of Regional
Forensic Science Laboratory, Pune in respect of DNA
Report in ML Case No. DNAp-872/2022 (Page 333), ML
Case No. DNAp-817/2022 (Page 335-336), ML Case No.
DNAp-797/22 (Page 337, 339), and ML Case No. DNAp-
871/2022 (Page 339-341) and supply these copies to the
Applicant, including but not limited to copies of the
following:
a. All laboratory documentation including
worksheets/datasheets, bench notes related to tests
conducted and methods used for DNA extraction,
quantitation, amplification, electrophoresis and
interpretation for all the samples received, and control
samples used during these steps;
b. All documentation including the case acceptance
form, case opening sheet, documentation relating to
receipt and dispatch of articles, relevant extracts from
registers, chain of custody form, proforma for
forwarding samples to other division, forwarding
letters, or any other documentation with respect to the
packaging seals on the articles received, storage of the
articles, and their movement within the laboratory;
c. Logbooks for equipment used at each stage of the
DNA profiling process including extraction,
quantitation, amplification, electrophoresis, and
interpretation; and calibration records for those
equipment for the relevant period.
d. Colour copies of the electropherograms for all
evidence and references samples received, allelic
ladders, internal size standard, and control samples
used;
e. Electronic raw data (in .fsa or hid format) for all the
samples received in this case and the control samples
used;
f. Working procedure manuals including DNA manual
and any other manual which was followed during the
examination in this case;
g. Details of kits and softwares used for DNA extraction,
quantification, amplification, electrophoresis and
interpretation in this case along with manuals of such
kits and softwares;
h. Details of any internal validation studies conducted
within the laboratory for setting standards followed
during different stages of the DNA profiling process;
i. All documentation regarding the quality control tests
for DNA examination passed by the DNA division
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and the quality control manual followed within the
laboratory, if any;
j. All correspondence with the police officials regarding
the DNA report; and
k. Details of seals and sample seals of all exhibits
received.
E. Direct that after the recording of additional evidence, the
Applicant be examined under s. 313 CrPC in respect of
such additional evidence and permit the Applicant to lead
defence evidence, if any.
F. Set aside the judgment and order dated 22.03.24 passed by
the Ld. Additional Sessions Judge, Pune, in Sessions Case
No. 176 of 2023, convicting the Applicant and direct the
Ld. Additional Sessions Judge, Pune to rehear arguments
based on the additional evidence and pass a judgment
afresh as per law.
G. Pass such further and other orders as this Hon'ble Court
may deem fit and proper, in the interest of justice.”
8. Ms. Rebecca Gonsalvez, learned counsel is appearing on behalf of
the applicant (accused No.1), who is the respondent in Confirmation
Case No.3 of 2024 and the appellant in Criminal Appeal No.367 of
2024. She also appears for accused No.2, who is the appellant in
Criminal Appeal No.1262 of 2024. It is to be noted that since the
advocate appearing for the appellant in Criminal Appeal No.1262 of
2024 was not appearing in this Court, by order dated 18.02.2026, we
discharged the said advocate and appointed Ms. Gonsalvez to appear on
behalf of the appellant (accused No.2) in Criminal Appeal No.1262 of
2024.
9. Ms. Rebecca Gonsalvez submitted that a perusal of the impugned
judgement and order of the Sessions Court would show that in paragraph
143 onwards, the Sessions Court specifically relied upon the CA reports,
which included serology reports and reports pertaining to DNA profiles,
to hold against the appellants. In this context, attention of this Court is
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invited to the evidence of the investigating officer (P.W.29) and it is
highlighted that during the recording of examination-in-chief of the said
witness, for the first time, as many as 12 CA reports were brought on
record and directly marked as exhibit-166 (collectively). Attention of
this Court was invited to the Rojnama dated 18.10.2023, when the said
CA reports were brought on record during the recording of examinationin-
chief of the investigating officer (P.W.9). It was highlighted that the
said CA reports were simply taken on record and there is nothing on
record to show that the copies of the same were made available to the
accused or their counsel. Neither the prosecution nor the Sessions Court
called the authors of the said reports i.e. the Assistant Chemical
Analysers of the concerned laboratory for examination. Hence, there was
no occasion for cross-examining such crucial witnesses. Yet, the said CA
reports were heavily relied upon by the Sessions Court in holding
against the appellants.
10. It was further submitted that in the statement of the accused
persons recorded under Section 313 of the Cr.P.C., only the fact of the 12
CA reports marked as exhibit-166 (collectively) having been received
from the concerned department, was put as an incriminating
circumstance to the accused persons. None of the details of the said
reports were put to the accused persons, thereby further showing the
error committed by the Sessions Court.
11. On this basis, it was submitted that the trial was vitiated on that
count. It was submitted that in similar circumstances, the Supreme Court
and this Court set aside the judgements and orders of the trial Courts and
remanded the matters back for consideration afresh on the said aspect of
the matter. Reliance was placed on judgement of the Supreme Court in
the case of Irfan alias Bhayu Mevati Vs. State of Madhya Pradesh, 2025
SCC OnLine SC 359. It was submitted that the said position of law was
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followed by a Division Bench of this Court in the case of State of
Maharashtra Vs. Sanjay Baban Katkar (judgement and order dated
23.07.2025 passed in Criminal Confirmation Case No.3 of 2022 with
Criminal Appeal No.1313 of 2023) and in the case of Sanjay Deopuri
Puri Vs. State of Maharashtra [judgement and order dated 27.11.2025
passed in Criminal Application (APPA) No.842 of 2025 in Criminal
Appeal No.329 of 2024 with Criminal Confirmation Case No.3 of
2024].
12. It was submitted that the same course of action may be adopted in
the instant case. The impugned judgement and order may be set aside on
the said ground and the matter can be remanded to the Sessions Court
for summoning the said Assistant Chemical Analysers, so that the
appellants also get an opportunity to cross-examine the said witnesses.
13. It was further submitted that the entire statement under Section
313 of the Cr.P.C., in the present case, was vitiated because questions
were put jointly to both the appellants i.e. the accused persons. In that
light, it was submitted that this Court may consider directing the
Sessions Court to record the statement under Section 313 of the Cr.P.C.
afresh after the evidence of the said witnesses i.e. the Assistant Chemical
Analysers is recorded.
14. It was further submitted that in the meanwhile, the accused No.2
i.e. appellant in Criminal Appeal No.1262 of 2024, being a woman, may
be released on bail. It was highlighted that the accused No.2 was
convicted for offences under Section 201 of the IPC and Section 21 of
the POCSO Act, both being bailable offences. It was further brought to
the notice of this Court that she was arrested on 04.08.2022 and she has
already suffered incarceration for 3 years and 7 months, while the
maximum period of sentence imposed upon her is 7 years. It was
submitted that the said appellant would abide by the conditions that this
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Court may impose.
15. Mr. Shrikant Gavand, learned APP appearing for the appellant-
State in the confirmation case as well as for the respondents-State in the
two appeals submitted that the record indeed demonstrated that the
Assistant Chemical Analysers were not summoned. It was submitted that
the appellants i.e. the accused persons also never raised this issue before
the Sessions Court. The said issue is being raised for the first time before
this Court. The learned APP fairly submitted that there could be no
denial about the course of action adopted by this Court in similar
circumstances, following the position of law clarified by the Supreme
Court in various judgements, including the judgement in the case of
Irfan alias Bhayu Mevati Vs. State of Madhya Pradesh (supra). On
this basis, it was submitted that this Court may pass appropriate orders.
On the aspect of the Sessions Court having recorded the statement under
Section 313 of the Cr.P.C. of the accused persons jointly, it was
submitted that the record indeed demonstrated the same. On the question
of granting bail to the appellant in criminal Appeal No.1262 of 2024 i.e.
accused No.2, it was submitted that if this Court is inclined to remand
the matter to the Sessions Court, stringent conditions may be imposed
considering the brutal and ghastly nature of the offence.
16. We have considered the rival submissions. Before dealing with
the present case, it would be appropriate to refer to the approach adopted
by the Supreme Court and this Court in such cases. In the case of Irfan
alias Bhayu Mevati Vs. State of Madhya Pradesh (supra), the
Supreme Court was concerned with a similar situation where the
accused had been sentenced to death and the conviction was based on
CA reports, including DNA analyst’s reports, along with other evidence
and material on record. Upon finding that the scientific experts,
concerning such reports, were not summoned by the trial Court, the
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Supreme Court thought it fit to set aside the judgements of the trial
Court and the High Court. The Supreme Court proceeded to remand the
matter to the trial Court for examination of the scientific experts
connected with the DNA reports and in that context, to record the
statement of the accused persons under Section 313 of the Cr.P.C. The
relevant portion of the said judgement reads as follows:-
“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 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.
32. That the discussion made above is confined to the issue of
the right of the accused to seek examination of the scientific
experts connected with the DNA report and the same shall not
be taken to be a reflection on the merits of the matter, which
shall be considered and gone into, uninfluenced by any
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observations made by us in this order.
33. Consequently, the judgment dated 21st August, 2018,
passed by the trial Court and the judgment dated 9th
September, 2021, passed by the High Court are quashed and set
aside.
34. The appeals are allowed accordingly.”
17. In a similar situation, concerning confirmation of death sentence,
in the case of State of Maharashtra Vs. Sanjay Baban Katkar
(supra), a Division Bench of this Court in its order dated 23.07.2025
followed the aforesaid dictum laid down by the Supreme Court in the
case of Irfan alias Bhayu Mevati Vs. State of Madhya Pradesh
(supra) and set aside the impugned judgement and order of the trial
Court remanding the matter for examination of the concerned expert
witnesses, with ancillary directions. It was held that the failure of the
trial Court in summoning the scientific experts had led to failure of
justice, thereby vitiating the trial. It is important to note that while
following the aforesaid position of law laid down by the Supreme Court
and remanding the matter to the trial Court, the Division Bench of this
Court in the case of State of Maharashtra Vs. Sanjay Baban Katkar
(supra) observed as follows:-
“25. The Hon’ble Supreme Court in Irfan alias Bhayu
Mevati’s case had directed the trial Court to re-hear the
arguments and decide the case afresh as per law after the
scientific experts were examined and after the accused was
asked questions under Section 313 of Cr.P.C. The Hon’ble
Supreme Court had not directed the trial Court to conduct the
trial de novo by wiping out the evidence which is already
recorded.”
18. Thus, it is evident that even when the Court found it fit to set
aside the judgement of the trial Court and to remand the matter back to
the trial Court, the trial was not directed to be conducted de novo by
wiping out the evidence that was already on record; instead, the matter
was remanded only to the limited extent of examining such witnesses,
concerning the CA reports / DNA reports with further ancillary
directions.
19. In the case of Sanjay Deopuri Puri Vs. State of Maharashtra
(supra), another Division Bench of this Court at the Nagpur Bench
followed the same course of action and consequently, set aside the
judgement and order of the trial Court, remanding the matter back for
the aforesaid purpose.
20. We find from the record that, amongst other circumstances, the
Sessions Court, in the present case, did rely upon the CA reports at
exhibit-166 (collectively) to hold against the appellants i.e. the accused persons. This is evident from paragraph 143 onwards of the impugned judgement and order of the Sessions Court. We find that the Sessions Court committed a grave error while observing in paragraph 142 of the impugned judgement and order that since the accused did not move any requisition for examining the chemical analysers for any specific cause, the reports of the chemical analysers at exhibit-166 (collectively) were being directly admitted in evidence without examining the chemical analysers. Such a course of action was clearly not open for the Sessions Court, for the reason that the Supreme Court has laid down that such witnesses ought to be court witnesses even if the prosecution fails in its duty to summon such crucial witnesses, if at all the CA reports / DNA reports are to be relied by the prosecution. We are of the opinion that the impugned judgement and order to that extent is vitiated and the trial itself stood vitiated to that extent.
21. There can be no doubt that the whole purpose of the trial is to
ascertain the truth of the matter and all steps in the direction of
unearthing the truth ought to be taken by the Court, even if the
prosecution is remiss in its duty and the accused at the relevant point in
time have not shown awareness. As a matter of fact, from the stage of
investigation, the duty of all persons in authority is to ensure that the
every bit of material is brought on record, which would assist the Court
in ascertaining the truth of the matter. Anything short of that would
vitiate the entire process. We find that the applicant (accused No.1) has
been able to make out a case for allowing the present application.
22. We also find that since we are allowing the instant application, it
is necessary to give ancillary directions for recording of statement under
Section 313 of the Cr.P.C. In fact, we find substance in the contention
raised on behalf of the appellants that the entire statement under Section
313 of the Cr.P.C. ought to be recorded afresh, for the reason that the
Sessions Court, while doing so, had put questions and circumstances to
the accused persons jointly, which could not have been done.
23. As regards releasing the appellant (accused No.2) in Criminal
Appeal No.1262 of 2024, we find that she has already suffered
incarceration for a period of 3 years and 7 months, while she has been
sentenced to suffer imprisonment for 7 years. This indicates that she has
already undergone substantial period of the sentence. The matter being
remanded to the Sessions Court would obviously consume some time
and if she continues to remain in custody, she will have to suffer further
incarceration. We also find that she was convicted for the offences that
were bailable. Hence, we are inclined to release her on bail while
allowing the instant application, setting aside the impugned judgment
and order of the Sessions Court and remanding the matter for the
aforesaid limited purpose to the Sessions Court.
24. In view of the order that we propose to pass in Interim
Application No.4190 of 2025, we find that the confirmation case as well
as both the appeals of the accused persons and all pending applications
will stand disposed of.
25. Hence, all the aforesaid proceedings stand disposed of as per the
following order:-
(i) Interim Application No.4190 of 2025 is allowed in terms of
prayer clauses (A) to (F), quoted hereinabove;
(ii) Consequently, the impugned judgement and order dated
23.03.2024 passed by the Sessions Court in Special
Sessions Case No.176 of 2023 is quashed and set aside.
The case is remanded to the said Sessions Court for the
purpose of summoning witnesses in terms of prayer clauses
(A) and (C) in the application and for carrying out the
ancillary directions granted in terms of prayer clauses (B)
and (D). It is made clear that the remand is only for the
aforesaid limited purpose and the remaining evidence, that
came on record, shall remain as it is;
(iii) The appellants shall be given sufficient opportunity to
cross-examine the said witnesses that shall be summoned in
terms of the directions given hereinabove. The entire
statement under Section 313 of the Cr.P.C. shall be
recorded afresh with separate statements being recorded for
the two appellants (accused Nos.1 and 2). This will
obviously include the further material that will come on
record in the light of the directions given hereinabove.
(iv) Considering the aforesaid discussion, the appellant in
Criminal Appeal No.1262 of 2024 i.e. accused No.2 shall
be released on bail on the following conditions:
(a) The said appellant (accused No.2) shall furnish P.R.
Bond of Rs.25,000/- and one or two sureties in the like
amount to the satisfaction of the Sessions Court;
(b) The said appellant (accused No.2) shall remain present
before the Sessions Court on each and every date of the
proceedings;
(c) Upon being released on bail, she shall communicate the
details of her contact numbers and residential address
to the Sessions Court, immediately; and
(d) The appellant (accused No.2) shall co-operate with
further proceedings before the Sessions Court so that
the proceedings are completed expeditiously.
(v) Respondent in Confirmation Case No.3 of 2024, who is the
appellant in Criminal Appeal No.367 of 2024 (accused
No.1) shall be produced before the Sessions Court on
07.04.2026. The appellant in Criminal Appeal No.1262 of
2024 (accused No.2) shall also remain present before the
Sessions Court on the said date;
(vi) The record and proceedings shall be sent back to the
Sessions Court urgently, and in any case, within three
weeks from today through special messenger;
(vii) The Sessions Court shall proceed in the matter in
accordance with law and pass final judgement and order
expeditiously, and preferably within four months from
07.04.2026;
(viii) The Sessions Court shall proceed in the matter without
being influenced by any observations made in the present
order.
26. The Criminal Confirmation Case No.3 of 2024 and Criminal
Appeal Nos.367 of 2024 and 1262 of 2024 along with all pending
applications stand disposed of in above terms.
(SHREERAM V. SHIRSAT, J.) (MANISH PITALE, J.)
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