Bombay HC: What precautions Session Judge should take while putting question U/S 313 of CRPC to accused?

 I have perused the 313 Cr. P.C. statements of the appellants recorded by the learned Judge. While recording the 313 Cr. P.C. statements of the appellants, the learned Judge did not frame proper questions. The material part of the incriminating evidence adduced by the prosecution was not put to the appellants. In this context, it is necessary to see some of the questions framed by the learned Judge. As stated above, the proof of the identity of the appellants, being the perpetrators of the crime, was the fact in issue. The learned Judge was required to frame proper questions on the basis of the available evidence of the witnesses with regard to their identification. As stated above, the identification of the appellants was established by pointing out their photographs to the prosecutrix. It was not put to the appellants that they were identified by the victim before the Court in a particular manner. The incriminating part of her evidence with regard to the identification of the appellants in the Test Identification Parade was not specifically put to the appellants. It is further seen that the CA reports and the DNA report, being the important pieces of evidence, ought to have been put to them specifically in their 313 statements. Question No. 35 is common for both the appellants. It needs to be extracted. It is as follows:

“Q. No. 35. It has come in the evidence of PW-10 Satish K. Farkade (Ex.97) during investigation he prepared spot panchanama, seizure panchanama. He seized motor cycle, sickle, chapple, godahdi, clothes on the person of victim and muddemal sent for C.A. and obtain C.A. report. What do you have to state about it ?”{Para 29}

30. Perusal of this question would show that the incriminating material in the form of CA reports was put to the appellants in this manner. Perusal of 313 Cr. P.C. statements of the appellants would show that the DNA report was not at all put to them. Even if the appellants had admitted the DNA report, the learned Judge was required to put the same to the appellants in their 313 Cr. P.C. statements. It needs to be stated that, in this case, the appellants have not admitted the DNA report. It is pertinent to mention that, time and again, it has been observed that proper care is not taken while framing the questions in the 313 Cr. P.C. statement of the accused on the basis of the incriminating material. Sometimes, the composite questions are framed. The answer to the part of the question may be in the affirmative and the answer to the part of the question may be in the negative. Such a composite question needs to be avoided. The appellants are the rustic villagers. Similarly, the victim is also a rustic villager. The incriminating circumstances related to the CA and DNA reports had not been put to them. Failure of the learned Judge to follow the provisions of law has caused miscarriage of justice. It has prejudiced not only the appellants but also the victim.

31. In this case, the DNA report has not been put to the appellants. The Hon'ble Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116 : AIR 1984 SC 1622] has held that incriminating piece of evidence, if not put to the accused in his 313 Cr. P.C. statement, cannot be made the basis of the conviction of the accused. It has to be excluded from consideration. It is to be noted that, while recording the evidence, the learned Prosecutor and the learned Judge adopted a very casual and careless approach. The DNA Expert and the Chemical Analyzer have not been examined. The learned Judge, while examining the accused under Section 313 of the Cr. P.C., did not even care to frame a proper question and put the DNA report to the accused so as to enable them to explain it. This has caused prejudice to the appellants. Similarly, it has proved prejudicial to the prosecutrix, who had suffered the ordeal of a horrible incident. She was not at fault. This has resulted into miscarriage of justice.

In the High Court of Bombay

(Before G.A. Sanap, J.)

Criminal Appeal No. 155 of 2022

Puranlal Sakaru Dhurve. Vs State of Maharashtra, 

Criminal Appeal No. 155 of 2022 and Criminal Appeal No. 352 of 2022

Decided on September 30, 2024

Citation: 2024 SCC OnLine Bom 3437.

Read full Judgment here: Click here.

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Bombay HC: What precautions Session Judge should take while admitting the CA reports and the DNA report?

  The Prosecutor has not examined the carrier, who had deposited the samples with R.F.S.L., Amravati. The Investigating Officer did not produce on record the extract of the Malkhana register. Malkhana in-charge was not examined. It is to be noted that the samples had been collected on or before 6th April, 2016. The samples had been forwarded to the R.F.S.L., Amravati, vide Exh.106 on 11th April, 2016. The prosecution has failed to place on record the evidence with regard to the custody of the samples and the care taken to preserve the samples during this period. If the carrier had been examined, then he would have highlighted the relevant aspects. The CA reports, in this case, are very important. The CA reports had been tendered in the evidence at the time of the examination of the Investigating Officer (PW-10). The learned Judge did not pass a specific order under Section 293 of the Cr. P.C. and admitted these reports in evidence. The CA reports are very important. On the basis of the CA reports, a case is sought to be made out that the blood sample and the semen samples matched with the blood samples of the appellants. {Para 24}

26. The Prosecutor failed to examine the Chemical Analyzer, Amravati, to prove the contents of the CA reports. Similarly, he has failed to examine the DNA Expert from R.F.S.L., Nagpur. It is to be noted that DNA evidence is a scientific opinion. It has to be proved like any other document. The prosecution has to establish the link by adducing cogent and concrete evidence from the time of the collection of the samples till the samples are finally analysed by the F.S.L. In this case, the carrier has not been examined. The Chemical Analyzer has not been examined. Similarly, the DNA Expert has not been examined. 

27. In this case, the important witnesses have not been examined. There is no evidence with regard to the packaging, storage, handling, and preservation of the samples to rule out possibility of tampering or contamination. Perusal of the record would show that there is no reason for non-examination of these witnesses. The learned Judge has placed implicit reliance on the CA reports and the DNA report. The complete DNA report is not part of the record. Therefore, the finding recorded by the learned Judge that the DNA report fully corroborates the testimony of the prosecutrix is without application of mind. It is to be noted that it was the duty of the learned Judge at least to question the Prosecutor with regard to the evidence to prove the contents of these reports. The record shows that the learned Judge, while recording the examination-in-chief of the Investigating Officer, exhibited the CA reports and the DNA report. I fail to understand as to how the Investigating Officer could be the author of the CA reports and the DNA report. The evidence of the Investigating Officer could not be said to be legally admissible evidence to prove the contents of the CA reports and the DNA report. The evidence of the Investigating Officer could be relevant to the extent of the procedural part with regard to forwarding of the samples, preservation of the samples, and the receipt of the DNA report. In such a case, the learned Judge was required to pass a separate order under Section 293 of the Cr. P.C. and admit such scientific evidence in the case. It is to be noted that the helpless prosecutrix had no control over this. The acceptance of the submissions advanced by the learned advocates for the appellants, highlighting the drawbacks and lacunas, would cause miscarriage of justice. The helpless prosecutrix would be deprived of her right to get justice. In my view, this is a very serious matter.

28. Before parting with this subject, I must mention that while admitting the CA reports and the DNA report, without examining the Chemical Analyzer and the DNA Expert, the Court has to pass an appropriate order. First and foremost, the learned Presiding Officer shall insist for the examination of the Chemical Analyzer and the DNA Expert to prove the contents of the reports. The examination of the Chemical Analyzer and the DNA expert, in such a case, can take care of the custody, preservation, and handling of the samples from the time of the receipt till the final analysis of the samples. In my view, this is a very vital flaw in the case of the prosecution, which has been crept in on account of the casual and careless approach of the Prosecutor and the learned Presiding Officer.

In the High Court of Bombay

(Before G.A. Sanap, J.)

Criminal Appeal No. 155 of 2022

Puranlal Sakaru Dhurve. Vs State of Maharashtra, 

Criminal Appeal No. 155 of 2022 and Criminal Appeal No. 352 of 2022

Decided on September 30, 2024

Citation: 2024 SCC OnLine Bom 3437.

Read full Judgment here: Click here.

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Whether Session Judge can permit prosecution to show photo of accused to victim for his identification?

Learned advocate Mr. R.R. Vyas took me through the entire record and pointed out the material flaws in the case. Learned advocate submitted that, on the date of the evidence of the informant, the appellants were not produced before the Court. It is submitted that the evidence recorded in the absence of the accused was contrary to the mandate of Section 273 of the Criminal Procedure Code, 1973 (for short, “Cr.PC”). Learned advocate submitted that the learned Judge, without insisting for the production of the appellants while recording the evidence of such a star witness, showed some photographs of the appellants from the record to the informant to establish their identification. Learned advocate further submitted that the trial conducted against the appellants was not a fair trial. {Para 8}

 The identification of the accused in the Court has to be strictly proved in such cases. The learned second Judge, who recorded the evidence of PW-4, did not even bother to secure the presence of the appellants. The learned Judge adopted a shortcut method. The learned Judge, instead of securing the presence of the appellants, showed some photographs from the record to the informant. On going through the record, I am shocked that the full-size photographs of the appellants are not on record. The learned Judge has not made a note as to which photographs had been shown to the appellants. It is further seen that those photographs have not even been marked as articles or exhibits.

In the High Court of Bombay

(Before G.A. Sanap, J.)

Criminal Appeal No. 155 of 2022

Puranlal Sakaru Dhurve. Vs State of Maharashtra, 

Criminal Appeal No. 155 of 2022 and Criminal Appeal No. 352 of 2022

Decided on September 30, 2024

Citation: 2024 SCC OnLine Bom 3437.

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Whether court should appoint commissioner at initial stage of proceeding?

In Mahendranath Parida (supra), this

Court held that when the controversy is as to

identification, location or measurement of the 

land or premise or object, local investigation

should be done at an early stage so that the

parties can be aware of the report of the

Commissioner and can go to trial prepared.

In Ramakant Naik and others vs. Bhanja

Dalabehera, 2015 AIR CC 1724 (ORI), this

Court held that issuance of a Commission for

local investigation is the discretion of the

Court. While considering the prayer for

appointment of Commission, the Court must

apply its mind to the facts and circumstances

of the case and pass order. No straight jacket

formula can be laid down. Before issuance of

Commission, the Court must be satisfied that

there is prima facie case in favour of the

applicant.

On a reading of Order 26 Rule 9 C.P.C.,

it is manifest that the stage of appointment of

Survey Knowing Commissioner has not been

prescribed. When the legislature in its wisdom

has not prescribed the stage of appointment of

Survey Knowing Commissioner, the power of

the Court to appoint the Survey Knowing

Commissioner can not be cabined, cribbed or

confined.”

9. In view of the authoritative pronouncement of this Court in

the case of Bhabesh Kumar Das (supra), the order dated 2.9.2016

passed by the learned Addl. Civil Judge (Junior Division), Narasinghpur

in I.A No.06 of 2016 arsing out of C.S. No.20 of 2016 is quashed. 

HIGH COURT OF ORISSA: CUTTACK

CMP No.1403 of 2016

Nayana Manjari Sahoo V  Rajakishore Sahoo & another

PRESENT:

 DR. JUSTICE A.K.RATH

Citation: AIR 2017 Orissa

Date of judgment: 15.02.2017

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Whether case can be remanded for proper identification of self acquired and ancestral property?

But, in respect of other points raised before me, suffice it to say that the appellate Court, even though, found that some of the properties were individual and self-acquired properties of Palayam, nevertheless decreed the suit in its entirety without excluding such of those properties. The decree thus granted cannot be sustained. The correctness or otherwise of the legality of the claim of the defendants to include the properties of Pattammal, should also be examined. With the result, the appeal requires to be remanded to the appellate Court for rendering proper decision on all aspects including proper identification of the self-acquired properties of Palayam and the ancestral properties and all other points arising for consideration.

Madras High Court

Chinnammal And 8 Others vs Elumalai And 4 Others on 14 January, 2000

Equivalent citations: 2000 (2) CTC 214, II (2000) DMC 278

Bench: K Sivasubramaniam

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