2025 INSC 150 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 1667 -1668 OF 2021

IRFAN ALIAS BHAYU MEVATI …APPELLANT(S)

VERSUS

STATE OF MADHYA PRADESH ….RESPONDENT(S)

WITH

CRIMINAL APPEAL NO(S). 220 OF 2022

O R D E R

Mehta, J.

1. These appeals take exception to the judgment dated 9

th

September, 2021, rendered by the Division Bench of High Court of

Madhya Pradesh at Indore,

1 whereby the criminal appeals

2 filed by

the appellants Irfan @ Bhayu Mevati

3 and Asif Mevati

4 were

dismissed, and the criminal reference

5 under Section 366 of the

1

Hereinafter referred to as ‘High Court’.

2

Criminal Appeal No. 7215 of 2018 was filed by Irfan @ Bhayu Mevati, and Criminal Appeal

No.7269 of 2018 was filed by Asif Mevati.

3

Hereinafter referred to as ‘Irfan’.

4

Hereinafter referred to as ‘Asif’.

5

Criminal Reference No. 14 of 2018.

2

Code of Criminal Procedure, 1973

6 instituted upon being

forwarded by the 2

nd Additional Session Judge/Special Judge,

POCSO Act, Mandsaur, Madhya Pradesh

7 was allowed and the

death penalty awarded to the appellants was confirmed.

2. The appellants were tried by the trial Court in Sessions Case

No. 141 of 2018 for the offences punishable under Sections 363,

366-A, 376(2)(m), 307 of the Indian Penal Code, 1860

8, Section

376(DB) of the Criminal Law(Amendment) Ordinance, 2018, and

under Section 5(g), 5(j)(iii)(m) and Section 5(r) read with Section 6

of the Protection of Children from Sexual Offences Act, 2012

9. The

trial Court, vide judgment dated 21

st August, 2018, convicted the

appellants and sentenced them as below: -

Conviction Sentence

Sections & Act Imprisonment Fine

Amount

Imprisonment

in lieu of fine

363 IPC 7 years Rs.

10,000/-

6 months

366-A IPC 7 years Rs.

10,000/-

6 months

307 IPC

(in respect of

appellant Irfan)

L.I. Rs.

10,000/-

6 months

307/34 IPC

(in respect of

appellant Asif)

L.I. Rs.

10,000/-

6 months

6

Hereinafter, referred to as ‘CrPC’.

7

Hereinafter referred to as ‘trial Court’.

8

Hereinafter referred to as ‘IPC’.

9

Hereinafter referred to as ‘POCSO’.

3

376(DB)

Criminal Law

(Amendment)

Ordinance, 2018

To be Hanged

by the neck

till death

3. Being aggrieved by their conviction and sentence awarded,

the appellants preferred separate criminal appeals

10 before the

High Court. Reference was forwarded by the trial Court to the High

Court for confirmation of the capital punishment awarded to the

accused under Section 366 CrPC. The criminal appeals preferred

by the appellants and the reference made by the trial Court were

decided as above vide common judgment dated 9

th September,

2021, which is the subject matter of challenge in these appeals by

special leave.

4. The prosecution story, in a nutshell, is that on 26

th June,

2018, Smt. Kamlabai(PW-7), lodged an FIR

11 by alleging inter alia

that her granddaughter

12, who was studying in the 3rd standard

had gone missing from the school premises after the classes. Based

on the said report, a police case for the offence punishable under

Section 363 IPC was registered and the investigation was

commenced. On the next day, i.e., on 27

th June, 2018, the

10

Refer, Note 2

11

Case No. 327 of 2018.

12

Hereinafter, referred to as ‘ child victim’.

4

Investigating Agency received information that the child victim had

been seen in an injured condition by witness Karan(PW -10).

Thereupon, the police rushed to the spot and took the child victim

to the Civil Hospital at Mandsaur from where, looking at her

serious condition, she was further referred to M.Y. Hospital at

Indore.

5. The child victim was provided treatment and was operated

upon. On inquiry being made from her, she narrated the story of

her plight to the police officials alleging inter alia that on the day

of the incident, after her school was over, she was waiting outside,

when suddenly a person came and forcibly put a sweet(ladoo) in

her mouth. Thereafter, the assailant forcibly took her to a secluded

spot where he called another person. She was forcibly undressed

and was subjected to forcible sexual assault by the person who

gave her the sweet, while the other person caught hold of her

hands. The police started searching for the alleged miscreants.

Incriminating articles such as the underwear of the child victim,

rocks, a beer bottle, a school bag, shoes, blood-stained soil, and

normal soil were collected from the spot, sealed, and sent to the

FSL

13. Enquiries were made from the nearby shop keepers and

13

Forensic Science Laboratory

5

CCTV footage from three shops adjoining the place of the incident

was collected. Upon analyzing the CCTV footage, certain

suspicious movements were noticed. The persons known to the

victim and her relatives were shown the CCTV footage and they

identified the victim and the appellants in these footages.

6. The appellants were apprehended, and a Test Identification

Parade (TIP) was carried out in the jail premises during which, PW-

10 the witnesses who had allegedly seen the victim being taken

away by the assailant(s), identified them as the miscreants. The

child victim was also shown the photo albums containing the

photographs of the accused along with photos of persons bearing

similarity in appearance and she correctly identified both the

accused (appellants herein) from the albums as the persons who

had committed the ghastly crime upon her. Various specimens

such as oral swab, vaginal slides, vulval pad, etc. were drawn from

the child victim by the Medical Officers and were handed over to

the Investigating Officer in a sealed condition, who, in turn,

dispatched these articles to the FSL for DNA analysis.

7. The appellants were interrogated, and they suffered separate

disclosure statements leading to the recovery of clothes worn by

them at the time of the incident, and the vehicle used during the

6

commission of the crime. Both the accused were subjected to

medical examination and the blood samples, semen slides, and

hair including pubic hair, nails, etc. were collected. The appellant

Irfan was found to be having marks of scratches and teeth-bite on

his body and his private organ also bore redness which was

considered to be an indicator of forcible intercourse on his part.

8. The medical examination of the victim revealed that not only

she had been subjected to sexual intercourse, but in addition

thereto, she was also subjected to serious assault leading to

injuries to her throat and private parts, and one of her eyes had

bulged out due to compression leading to compromised vision. The

perineum and anus were found to be pierced, and she had to be

surgically operated for the purpose of creating a passage in her

abdomen in order to facilitate defecation.

9. The investigation was completed and a chargesheet was filed

against the appellants. Charges were framed against them for the

offences punishable under aforesaid sections.

14 The appellants

abjured their guilt and claimed to be innocent. 37 witnesses were

examined, and various documents were exhibited by the

prosecution to bring home the guilt of the appellants. The trial

14

Refer, Para 2.

7

Court questioned the appellants under Section 313 CrPC and

confronted them with the allegations appearing in the prosecution

case which they denied and claimed to be innocent. No evidence

was led in defence.

10. Learned trial Court, vide judgment dated 21st August, 2018,

convicted the appellants and sentenced them as above

15. The

appellants assailed their conviction and sentence by filing separate

appeals

16 before the High Court. Since the appellants were

awarded capital punishment, the trial Court made a reference to

the High Court for confirmation of death penalty under Section

366 CrPC.

11. Vide common judgment dated 9

th September, 2021, the High

Court dismissed the criminal appeals filed by the appellants and

the reference forwarded by the trial Court was answered in the

affirmative, confirming the capital punishment awarded to the

appellants, which is assailed in these appeals by special leave.

12. The appellants have preferred an I.A. No. 98928 of 2022

under Section 391 CrPC read with Article 142 of the Constitution

of India seeking complete laboratory documents and for

15

Refer, Para 2.

16

Refer, Note 2.

8

examination of expert witnesses. The prayer made in the

application reads: -

“A. Direct Ld. 2nd ADJ/ Special Judge POCSO, Mandsaur, to

summon and allow examination in chief, as well as allow cross-

examination by counsel for the Applicant, of Dr. Anil Kumar

Singh, Scientific Officer, and Assistant Chemical Examiner, Govt

of Madhya Pradesh, FSL Sagar who would be competent to testify

to the methodology, analysis, and conclusions of the DNA Report;

B. Direct Ld. 2nd ADJ/ Special Judge POCSO, Mandsaur, to allow

such cross-examination by counsel for the Applicant, by calling

for and with the aid of the complete laboratory documentation in

relation to the report dated 11.07.2018 of FSL Sagar, bearing no.

/DNA/1078, 1087, and 1132 /2018 filed in ST 88 of 2018 before

the Ld. 2nd ADJ/ Special Judge POCSO, Mandsaur, including but

not limited to copies of the following documents in the present

case:

i. All laboratory documentation including worksheets,

bench notes, and equipment log sheets related to the tests

conducted and methods used for extraction,

quantification, amplification, and genotyping for all the

articles received;

ii. Details and complete laboratory documentation of tests

conducted and results of the tests;

iii. Electropherograms for DNA profiles and electronic raw

data (.fsa) obtained from all articles received, allelic

ladders, and control samples used;

iv. Working procedure manuals including DNA manual

and Serology manual used in examination of all exhibits

received;

v. Details of kits used for DNA extraction, quantification,

amplification, and genotyping in the case along with

manuals of such kits; and

vi. Complete documentation of the chain of custody of all

the Articles sent for examination to FSL Sagar, with details

of the packaging seals and sample seals used.

C. Direct the trial Court to examine the Applicant under Section

313 CrPC in respect of such additional evidence.”

The grounds set out in the application are reproduced

hereinbelow for the sake of ready reference: -

9

“A. APPELLANT DID NOT HAVE AN ADEQUATE

OPPORTUNITY TO CHALLENGE THE DNA REPORT

6. As per the Order Sheet of the Ld. Trial Court, the chargesheet

in the present case was filed on 10.07.2018. On such date, an

advocate from the District Legal Services Authority was

appointed for the Appellant; however, the said lawyer was not

present in court. The chargesheet was filed while the DNA

report was still awaited. The DNA report dated 11.07.2018 was

submitted in court only on 19.07.2018. Thereafter, the 37

prosecution witnesses were examined on 8 days by 8.08.2018.

The Appellant's examination under Section 313 CrPC was done

one day later on 9.08.2018 and the matter was listed for final

arguments on 10.08.2018.

7. The DNA report, being of a scientific nature, requires careful

study and analysis. Given the above timeline, the Appellant was

not afforded adequate time during the trial process to

meaningfully understand and challenge the said report. The

Trial Court did not call for any underlying materials or for

examination of the DNA expert in order to understand the

report in accordance with Section 45 of the Indian Evidence Act,

as elaborated below. This is despite the prima facie errors in the

report mentioned in part B below. Such denial of an adequate

and meaningful opportunity to challenge the DNA report has

resulted in violation of the Appellant's right to fair trial under

Article 21 of the Constitution.

B. SUBSTANTIVE ISSUES WITH THE DNA REPORT WHICH

MAKE THE REPORT UNRELIABLE

8. A prima facie examination of the DNA evidence reveals

several discrepancies which raise doubts regarding the integrity

of the samples, and the accuracy and reliability of the DNA

examination. A brief description of these discrepancies is as

follows:

i. Discrepancy in the DNA profiles generated from vulval

pad (item R) and evidence samples prepared from the same

source: As per the DNA Report (Ex. Pl57), a Y-STR DNA profile

generated from the vulval pad (item R) is consistent with the Y-

STR profile of the Applicant. However, other genital samples of

the Prosecutrix prepared from the same and similar sources

such as the vaginal slide (item 0), smear tube (item Q), vulval

smear (item U) did not contain any male Y-STR profile, which

raises doubts regarding the integrity of the vulval pad (item R).

This is particularly important since the vaginal slide (item 0)

was the first sample collected from the Prosecutrix after she was

10

brought to Civil Hospital Mandsaur on 27.06.18. After 6 days

on 02.07.2019, the smear tube (item Q), vulval smear (item U),

and the vulval pad (item R) were collected at MY Hospital

Indore. It is also important to note that Directorate of Forensic

Science Services (DFSS) MHA guidelines for medical

practitioners note that vulval swabs should be taken before the

collection of vaginal or cervical swabs in order to avoid

contamination of vaginal samples from the DNA that may be

present on the outer parts such as labia majora. [DFSS MHA

Guidelines for Forensic Medical Examination in Sexual Assault

Cases, 2018, pg 8] Despite ignoring that settled procedure, the

presence of male DNA in the vulval pad (item R) and not the

vaginal slide (item 0) gains significance.

ii. Presence of Male DNA in the vulval pad (item R) and nails

(item T) despite extensive medical procedures and delay in

collection: The vulval pad (item R) and nails (item T) were

collected along with smear tube (item Q), vulval smear (item U)

on 02.07 .18, after the Prosecutrix had been admitted in the

hospital for 6 days (Ex Pl16, Pg. 239 Hindi TCR). During this

period, the Prosecutrix had undergone extensive medical

procedures and treatment, including on her vaginal, perineal

and rectal areas (see Ex. P78 Pg. 188, Ex. 86 Pg. 199, Ex. 97

Pg. 213, Ex. P108 Pg. 228, Ex. Pll1 Pg. 231, Ex. ll3 Pg. 234

Hindi TCR). In such a scenario, the finding of viable male Y-STR

DNA in the vulval pad collected 7 days after the sexual assault

(approximately 163 hours after the alleged time of the incident)

would be impossible. For this, reference may be made to

established scientific protocols and literature, which state that

DNA profile cannot be obtained from vaginal samples 96 hours

after sexual assault. [Ministry of Health & Family Welfare,

Guidelines & Protocols Medico-legal care for survivors/victims

for sexual violence, 2014, pgs 29, 59; Gringas et. al. Biological

and DNA evidence in 1000 sexual assault cases, Forensic

Science International: Genetics Supplement Series 2 (2009)

138-140] Further, it is important to note that a set of samples,

including nails, pad, hair combings, grass and mud samples,

and swabs taken from labia and posterior fornix were collected

from the Prosecutrix on 27.06.2018 at MY Hospital Indore

(Ex.85, Pg. 198 Hindi TCR). No seizure memo was prepared

after the collection of these samples and the chain of custody of

these samples after collection by the doctors is unknown.

Despite that, since the Prosecutrix's nails were collected on

27.06.2018 as per the medical record, the finding of Y-STR DNA

on the second set of nail clippings collected after 6 days on

02.07.2018 would be impossible.

11

iii. Issues in the chain of custody of vulval pad (item R)

which warrant further examination of DNA profiling results:

As per the medical records at MY Hospital Indore (Ex. 116, Pg.

239-240 Hindi TCR), the vulval pad (item R) was collected along

with 4 swabs (from the perinium, vagina, preanal and anal), 2

smears, blood sample, hair and nail clippings on 02.07.2018 at

1 PM and handed over to PC Archana Dodiya (760). However,

as per the seizure memo (Ex. 181, Pg. 348 Hindi TCR) and the

forwarding memo from the police to SFSL Sagar (Ex. 154), these

items were seized on 29.06.2018. It is important to note that no

samples have been collected from the Prosecutrix on

29.06.2018. Therefore, the identity and custody of the vulval

pad (item R) is dubious.

iv. Doubts over identity of pubic hair (item 1): Item I is

alleged to be the pubic hair of the Applicant from which a mixed

DNA profile has been generated that is reported to include the

DNA profile of the Prosecutrix. However, the mixed DNA profile

excludes the Applicant's DNA, on 5 out of 24 genetic markers

or loci (THOJ, D22Sl045, D10S1248, Y-Indel, DYS391) (Pg. 302

Hindi TCR), which raises doubts regarding the identity of the

pubic hair. It is important to note that the DNA report fails to

mention this exclusion for the Applicant's DNA in item I and

incorrectly refers to Item I as pubic hair of the Applicant in the

findings and opinion.

v. Absence of Applicant's DNA from clothes (Pant item K,

Shirt item L and Baniyan item N): It is the prosecution's case

that items K, Land N are clothes worn by the Applicant during

the commission of the offence. As per the DNA report, the Pant

item K and Baniyan item N only have a single source DNA

profile which is consistent with the DNA of the Prosecutrix.

Further, item L reveals a mixed DNA profile which is also

reported as containing the DNA of the Prosecutrix. However, the

Applicant is excluded from this mixed DNA profile on 9 out of

24 loci(D8Sll79, D19S433, THO1, D22Sl045, D13S317,

D7S820, D1OSJ248, D1Sl656, D12S391) (Pg. 302 Hindi TCR).

Therefore, the Applicant's DNA is not found on any of the

clothing items attributed to him which raises a serious doubt

since a person's clothes may contain different sources of their

DNA, including skin, saliva, sweat, semen, blood etc.

vi. Presence of unknown alleles in DNA profiles generated

from hair found at crime scene (item Y) and Applicant's

shirt (item L): The mixed DNA profile obtained from the shirt

(item L) contains unknown alleles on 5 out of 24 loci (CSFlPO,

D21Sll, FGA, SE33, D2S 1338) which are not attributable either

12

to the Prosecutrix or the Applicant (Pg. 302 Hindi TCR).

Further, the mixed Y-STR DNA profile obtained from the hair

found at the crime scene (item Y) contains an unknown allele

on one locus (DYS635) (Pg. 299 Hindi TCR). Since both these

samples show the presence of unknown alleles, it is more

important to review the interpretation of the mixed DNA profile

by reviewing the electronic raw data and the electropherograms.

As explained in the section below, interpretation of DNA

mixtures requires consideration of the number of contributors,

the peak heights of the alleles as seen in the electropherograms

and the peak height ratios to consider the allele pairs (or

genotype) for ascertaining whether an individual's DNA is

present within the mixture. Mere finding of individual alleles

without identifying the genotypes is scientifically invalid. For

example, if alleles A, B, C, D are present in a DNA mixture and

the suspect has alleles C and D in their profile, it is incorrect to

conclude that the suspect's DNA is present in the DNA mixture.

This is because with these alleles, 10 possible genotypes are

possible i.e. AA, BB, CC DD, AB, AC, AD, BC, BD, CD. In such

a scenario, it is possible that genotype CD may not be present

in the mixture although the individual alleles C and D are

reported in the mixture. Further since unknown alleles have

been found in DNA profiles generated from hair found at crime

scene (item Y) and Applicant's shirt (item L), equipment log

sheets are required to check for contamination, to determine

which samples were run with the aforesaid samples.

In the absence of any interpretational data in the DNA report,

the finding of unknown alleles in hair found at the crime scene

(item Y) and the Applicant's shirt (item L) raise more concerns

regarding the interpretation of the DNA mixtures to conclude

the presence of the Applicant's and the Prosecutrix's DNA in

these items, respectively.

vii. Presence of off-ladder allele in multiple samples: As per

the allelic tables in the DNA report, the autosomal STR profiles

for six samples shows an off-ladder peak on locus SE33 (Pg.

300 and 304, Hindi TCR). The samples include the hair found

at the crime scene (item Y), and blood sample (item F),

underwear (item A), pubic hair (item B), nail (item Z-4) and

baniyan (item Z-7) collected from co-accused Asif. As per

established scientific protocols, including the DFSS MHA

Working Procedures Manual for Forensic DNA Profiling, an off-

ladder peak may either be a true allele or an artefact created

during the DNA profiling process. To determine the nature of

an OL allele, re-amplification of the samples would be required,

13

particularly if the peak is observed in a DNA mixture such as

the hair found at the crime scene (item Y). Interpretation of DNA

profiles without determining the nature of the OL peak cannot

be done. Further, as per the DFSS manual, documentation of

an OL allele requires the electropherogram with both the

sample and associated allelic ladder for the locus to be

provided. (DFSS MHA, Working Procedures Manual Forensic

DNA Testing, 2019, pg 131-132)

Since multiple samples have displayed an OL allele, it is

essential to check if the procedures for interpretation of an OL

allele have been followed in this case. The identity of this OL

allele directly impacts the interpretation and genotyping of the

other allelic peaks that present in these samples. Without such

information, the interpretation and conclusions regarding these

samples cannot be relied upon.

A. Lack of serological examination to identify the body fluid

in item W: As per the forwarding letter (Ex. PI 54, Pg. 602 Hindi

TCR), the soil seized from the crime scene (item W) was

forwarded to the SFSL Sagar as "blood stained soil". The DNA

Report refers to this sample as blood stained soil from the crime

scene and concludes that the Prosecutrix's DNA is found in that

sample. However, it must be noted that no serological

examination has been done to conclude that this sample

contains blood. Further, even assuming that the DNA profile

generated is correctly reported in the allelic table, DNA

examination cannot determine the biological material from

which the DNA is sourced.

B. THE DNA REPORT (EX. 157) IS INCOMPLETE AND

CANNOT BE RELIED UPON IN THE ABSENCE OF

UNDERLYING REASONS

9. The DNA Report does not contain the complete data and

materials relied upon during the DNA examination, which form

the basis of the conclusion drawn in the report. It is pertinent

to note that without examining these materials, neither this

Hon'ble Court nor the Applicant can verify the accuracy and

reliability of the DNA evidence. As per settled law, under Section

45 of the Indian Evidence Act, it is the duty of the expert to

provide the "necessary scientific criteria for testing the accuracy

of the conclusions so as to enable the Judge to form his

independent judgment by the application of these criteria to the

facts proved by the evidence of the case." (State of Himachal

Pradesh v Jai Lal, (1999) 7 SCC 280, para 18, Ramesh Chandra

Agarwal v. Regency Hospital Ltd. (2009) 9 sec 709,para 20)

14

10. The DNA report only contains the allelic tables followed by

the conclusions of the tests and analysis conducted. Crucial

underlying data and materials, such as details of the amount

of DNA extracted and amplified for each sample, quantification

kits used, use of positive and negative controls during different

steps of DNA profiling, use of allelic ladders for interpretation,

the electronic raw data and electropherogram generated during

the electrophoresis process which were interpreted to prepare

the allelic tables, the method and thresholds for interpretation

of the DNA samples, and the statistical analysis of the samples

that have matched have not been provided to the Applicant.

11. There are glaring lapses in the chain of custody

documentation with respect to crucial reference and evidence

samples which cast a doubt over the integrity of the samples

and require further examination of laboratory records. For

instance, Article Zl and Z2 i.e. the blood sample (used for

generating reference DNA profile of the Prosecutrix) and oral

swab of the Prosecutrix were sent to SFSL Sagar with letter

bearing no. PO/Mand/FSL/177 -A/20 18 dated 02.07.2018 (Ex

.155, Pg. 292 Hindi TCR). As per the evidence of PW33 SI Vijay

Purohit (Pg. 454, Hindi TCR), he deposited these articles to FSL

Sagar. However, the receipt issued by SFSL Sagar dated

03.07.2018 (Ex Pl6l, Pg. 311 Hindi TCR) mentions that the

articles were brought by Constable Lalit (not examined).

12. Further, the Applicant has never been given access to these

documents and therefore, has been denied an adequate

opportunity to challenge the evidence adduced against him. The

lack of these documents gains further significance in this case

as the DNA report has been admitted under Section 293 CrPC

(Pg.10 297 Hindi TCR) and the evidence of the DNA experts who

have signed the report, Dr Kamlesh Kaitholia Scientific Officer,

Dr. Praveesh Bhati Scientific Officer and Dr Ani! Kumar Singh

Scientific Officer & Assistant Chemical Examiner, have not

been recorded. This has further limited the scope of the

scientific and technical examination of the DNA evidence in the

present case. In several decisions, this Hon'ble Court has

reiterated the need to ensure quality control of the samples and

the testing methods used as part of the DNA examination.

Given the sensitive nature of DNA which makes it susceptible

to issues of contamination and DNA transfer, this Court has

also stressed on the need to ensure that possibility o f

contamination is eliminated (Anil v. State of Maharashtra

(2014) 4 SCC 69 para 53, Manoj v. State of Madhya Pradesh,

Crl. Appeal 248-250 of 2015 decided on 20.05.2022 paras 139-

15

141, Pattu Rajan v. State of Tamil Nadu (2019) 4 SCC 771 para

52)

13. The non-supply of the complete laboratory documentation

violates the Applicant's right to an adequate and meaningful

opportunity to challenge the DNA evidence adduced against

him, resulting in violation of his right to fair trial under Article

21 of the Constitution. As explained above, without these

documents, the scientific accuracy and reliability of DNA

evidence cannot be ascertained. Furthermore, the absence of a

request on the Applicant's part to supply these documents at

an earlier stage cannot have the effect of foreclosing a right of

the accused. [Manu Sharma v. State (NCT of Delhi) 2010 6 SCC

1 (paras 220-221), V.K. Sasikala v. State (2012) 9 SCC 771

(paras 20-21)]

C. THE DNA REPORT (EX. 157) HAS NOT BEEN PROVED BY

THE DNA EXPERT

14. The DNA Report has been signed by Dr Kamlesh Kaitholia

Scientific Officer, Dr. Praveesh Bhati Scientific Officer and Dr

Ani! Kumar Singh Scientific Officer & Assistant Chemical

Examiner (Pg. 305 Hindi TCR). However, none of these experts

were examined in order to prove the contents or the conclusions

of the DNA report. In fact, the DNA report was proven by PW31

Rakesh Mukati, the Superintendent of Police, who merely

mentions that the DNA report was received via letter bearing

serial no. FSL/DNA/1078, 1087 and 1132 /2018 dated

11.07.2018 and was sent by PS City Kotwali for the purpose of

attaching it to the case documents (PW31, Pg. 447 Hindi TCR).

Not involved in the process of DNA examination, PW31 Rakesh

Mukati does not testifY to the methodology used during the

different steps of the DNA profiling process or the basis for the

interpretation of the DNA profiles. Further, given the absence

of the DNA experts who conducted the examination, the

Applicant is prohibited from cross-examining on the scientific

and technical aspects of DNA profiling, which go to the

foundation of the DNA evidence.

15. It is humbly submitted that errors in the DNA examination

mentioned above have been overlooked by the lower courts and

the DNA evidence has been incorrectly considered. Contrary to

the correct scientific and legal position, the Ld. Trial Court in

paragraph 62 of its decision even mentioned that DNA profile

detection is an "advanced and precise science". Hence, the Ld.

Trial Court did not question the conclusions of the DNA Report

and took the opinions as facts.

16

16. That in order to effectively challenge the conclusions of the

DNA Report, the Applicant seeks a copy of all underlying

documents, including but not limited to, the worksheets for

DNA extraction, quantification, amplification and

electrophoresis for all exhibits received in the present case,

electropherograms for DNA profiles generated in respect of all

articles received, allelic ladders and control samples, details of

all the tests conducted as well as their results, DNA working

procedure manual used in examination of all exhibits received

in the present case, complete chain of custody documentation

for all Articles received, with details of the packaging, seals and

sample seals used, in respect of all forensic DNA reports

generated by FSL Sagar.

17. The Applicant further seeks that the Ld. Trial Court be

directed to summon and take on record the testimony of Dr Anil

Kumar Singh or any such person competent to testify to the

methodology adopted, the manner in which DNA profiles were

extracted, tests conducted, the chain of custody of articles

within FSL Sagar, analysis of the DNA, and basis of the

conclusions in the DNA Report.”

Notice was issued on this application on 10

th August, 2022 and

the State has filed a response to the same with a categoric plea that the

State FSL has preserved the documents for 10 years and they are available

with the State FSL, Sagar, Madhya Pradesh. It is further stated that the

scientific officers are still in service of State FSL, but they have been

transferred to different units and can be called upon as and when this

Court deems it necessary to summon them so as to substantiate the

exhibited reports.

13. Learned counsel appearing for the appellants vehemently and

fervently contended that the denial of the permission to examine the

17

scientific experts with reference to the documents on which, the evidence

of DNA Experts and the FSL Experts was based, has caused grave

prejudice to the appellants and goes to the very root of the case.

14. He submitted that the DNA report signed by the scientific experts

forms a critical piece of evidence, which has been relied upon by the trial

Court and High Court while convicting the appellants. Therefore, the non-

examination of these scientific experts has led to gross miscarriage of

justice vitiating the entire trial.

15. Learned counsel urged that the DNA report has been signed by

Dr. Anil Kumar Singh, Scientific Officer and Assistant Chemical

Examiner, Dr. Kamlesh Kaitholia, Scientific Officer, and Dr. Pravesh

Bhatti, Scientific Officer. However, none of these Experts were examined

to prove the contents/conclusions of the DNA report (Exhibit - 157) which

was proved during the evidence of Rakesh Mukati, Superintendent of

Police (PW-31). It was submitted that the mere exhibiting of the DNA

report during the deposition of the Police Officer would not satisfy the

essential requirement to prove the methodology used during the different

steps of DNA profiling or the basis of the interpretation of DNA profiling.

16. Learned counsel further pointed out that even the allele number

entered into the table, was corrected subsequently after comparison from

the Electropherogram, without giving any opportunity to the accused to

18

rebut the same. He urged that the State Government has admitted in its

reply that there was a typographical error in the allele number, which was

corrected at a later stage. He thus, urged that the accused have suffered

grave prejudice on account of the failure of the prosecution to provide the

fundamental material on which, the DNA report was based. It was also

contended that the failure to examine the experts in evidence has led to a

miscarriage of justice.

17. He submitted that even the relevant questions regarding the DNA

report were not put to the accused persons (appellants herein) when their

statements were recorded under Section 313 CrPC, which has caused

them grave prejudice. He placed reliance on the judgment of this Court in

the case of Anokhilal v. State of Madhya Pradesh

17 and urged that the

application deserves acceptance and the scientific experts be summoned

and the accused be allowed to cross -examine these witnesses with

reference to the complete records including the link evidence so that they

can be provided a proper opportunity to defend themselves , more

particularly as they face the daunting prospect of death penalty.

18. Learned counsel for the State has filed a detailed reply to the

application filed by the accused under Section 391 read with Article 142

of the Constitution of India. It has been asserted in the reply that the

17

(2019) 20 SCC 196

19

discrepancy in the allele number entered into the table was simply a

typographical error and thus, was bona fide corrected after comparison

with the Electropherogram. It was further submitted that the trial Court

acted in consonance with the legislative mandate of the Criminal Law

Amendment Act, 2018 which requires that a trial for the offence under

Section 376(DB) IPC must be completed in a time-bound manner and

thus, no fault can be found in the procedure of conducting trial.

19. Learned counsel for the State urged that there is absolutely no

necessity to examine the scientific experts and that the exhibiting of the

DNA report under Section 293 CrPC is sufficient compliance of the

statutory mandate. The examination of the expert(s) would have been a

mere formality thereby, delaying the trial. Contending so, he implored the

Court to dismiss the application.

20. Learned standing counsel appearing for the State was, however,

not in a position to dispute the fact that the DNA report was formally

exhibited in the evidence of the Superintendent of Police (PW-31)and none

of the scientific experts who conducted the DNA profiling procedure,

prepared and issued the report, were examined during trial so as to testify

about the methodology used during the different steps of the DNA

profiling or the basis for the interpretation thereof.

20

21. We have given our thoughtful consideration to the submissions

advanced by the parties and have perused the material available on

record.

22. It is an admitted position that the DNA profiling report (Exhibit-

157) was formally exhibited by the Superintendent of Police(PW-31) in his

evidence. None of the scientific experts involved in the process of

conducting the DNA profiling examination and issuing the report have

been examined by the prosecution.

23. The DNA profiling report is a document on which the entire

fulcrum of the prosecution case is based. The defence has claimed grave

prejudice on account of non-examination of these scientific witnesses and

the non-production of the experts in evidence, thereby creating a grave

doubt on the probative value of the report.

24. The aspect concerning evidentiary value of DNA report has been

explained by this Court in Rahul v. State of Delhi, Ministry of Home

Affairs

18, wherein it was held as under: -

"36. The learned Amicus Curiae has also assailed the forensic

evidence i.e. the report regarding the DNA profiling dated 18-4-

2012 (Ext. P-23/1) giving incriminating findings. She

vehemently submitted that apart from the fact that the

collection of the samples sent for examination itself was very

doubtful, the said forensic evidence was neither scientifically

nor legally proved and could not have been used as a

circumstance against the appellant-accused. The Court finds

substance in the said submissions made by the Amicus

Curiae. The DNA evidence is in the nature of opinion

18

(2023) 1 SCC 83

21

evidence as envisaged under Section 45 and like any other

opinion evidence, its probative value varies from case to

case.

38. It is true that PW 23 Dr B.K. Mohapatra, Senior Scientific

Officer (Biology) of CFSL, New Delhi had stepped into the

witness box and his report regarding DNA profiling was

exhibited as Ext. PW 23/A, however mere exhibiting a

document, would not prove its contents. The record shows

that all the samples relating to the accused and relating to the

deceased were seized by the investigating officer on 14-2-2012

and 16-2-2012; and they were sent to CFSL for examination on

27-2-2012. During this period, they remained in the malkhana

of the police station. Under the circumstances, the possibility

of tampering with the samples collected also could not be ruled

out. Neither the trial court nor the High Court has examined

the underlying basis of the findings in the DNA reports nor have

they examined the fact whether the techniques were reliably

applied by the expert. In the absence of such evidence on

record, all the reports with regard to the DNA profiling become

highly vulnerable, more particularly when the collection and

sealing of the samples sent for examination were also not free

from suspicion."

(emphasis supplied)

25. This Court in Zahira Habibulla H. Sheikh v. State of Gujarat

19

has emphasized that the object of the criminal trial is to search for the

truth and the trial is not about over technicalities and must be conducted

in such a manner as will protect the innocent and punish the guilty. The

relevant extract is as follows:

“38. A criminal trial is a judicial examination of the issues in the

case and its purpose is to arrive at a judgment on an issue as to

a fact or relevant facts which may lead to the discovery of the

fact issue and obtain proof of such facts at which the prosecution

and the accused have arrived by their pleadings; the controlling

question being the guilt or innocence of the accused. Since the

object is to mete out justice and to convict the guilty and protect

the innocent, the trial should be a search for the truth and not a

bout over technicalities, and must be conducted under such

19

(2004) 4 SCC 158

22

rules as will protect the innocent, and punish the guilty. The

proof of charge which has to be beyond reasonable doubt must

depend upon judicial evaluation of the totality of the evidence.

oral and circumstantial, and not by an isolated scrutiny.

39. Failure to accord fair hearing either to the accused or the

prosecution violates even minimum standards of due process of

law. It is inherent in the concept of due process of law, that

condemnation should be rendered only after the trial in which

the hearing is a real one, not sham or a mere farce and pretence.

Since the fair hearing requires an opportunity to preserve the

process, it may be vitiated and violated by an overhasty, stage-

managed, tailored, and partisan trial.

40. The fair trial for a criminal offence consists not only in

technical observance of the frame and forms of law, but also in

recognition and just application of its principles in substance, to

find out the truth and prevent miscarriage of justice.”

26. The controversy in question is squarely covered by the decision of

this Court in Anokhilal(supra), wherein, this Court remanded the matter

to the trial Court for de-novo trial, considering the fact that the entire trial

was completed in a period of less than one month and that the DNA report

was received almost at the fag end of the matter, and after such receipt,

though technically an opportunity was given to the accused, the issue on

the point was concluded the very same day. The relevant extract is as under:

“26. Expeditious disposal is undoubtedly required in criminal

matters and that would naturally be part of guarantee of fair

trial. However, the attempts to expedite the process should not

be at the expense of the basic elements of fairness and the

opportunity to the accused, on which postulates, the entire

criminal administration of justice is founded. In the pursuit for

expeditious disposal, the cause of justice must never be allowed

to suffer or be sacrificed. What is paramount is the cause of

justice and keeping the basic ingredients which secure that as

a core idea and ideal, the process may be expedited, but fast

tracking of process must never ever result in burying the cause

of justice.

……..

23

28. All that we can say by way of caution is that in matters

where death sentence could be one of the alternative

punishments, the courts must be completely vigilant and see

that full opportunity at every stage is afforded to the accused.

29. We, therefore, have no hesitation in setting aside the

judgments of conviction and orders of sentence passed by the

trial court and the High Court against the appellant and

directing de novo consideration. It shall be open to the learned

counsel representing the appellant in the trial court to make

any submissions touching upon the issues (i) whether the

charges framed by the trial court are required to be amended

or not; (ii) whether any of the prosecution witnesses need to be

recalled for further cross-examination; and (iii) whether any

expert evidence is required to be led in response to the FSL

report and DNA report. The matter shall, thereafter, be

considered on the basis of available material on record in

accordance with law.”

27. This Court in Anokhilal(supra), has further provided certain

norms to remove the technical infirmities in Para 31 of the judgment, which

reads as under:-

“31. Before we part, we must lay down certain norms so that

the infirmities that we have noticed in the present matter are

not repeated:

31.1. In all cases where there is a possibility of life sentence or

death sentence, learned advocates who have put in minimum

of 10 years' practice at the Bar alone be considered to be

appointed as Amicus Curiac or through legal services to

represent an accused.

31.2. In all matters dealt with by the High Court concerning

confirmation of death sentence, Senior Advocates of the Court

must first be considered to be appointed as Amicus Curiae.

31.3. Whenever any learned counsel is appointed as Amicus

Curiae, some reasonable time may be provided to enable the

counsel to prepare the matter. There cannot be any hard-and-

fast rule in that behalf. However, a minimum of seven days' time

may normally be considered to be appropriate and adequate.

31.4. Any learned counsel, who is appointed as Amicus Curiae

on behalf of the accused must normally be granted to have

24

meetings and discussions with the accused concerned. Such

interactions may prove to be helpful as was noticed in Imtiyaz

Ramzan Khan.”

28. Further, this Court in Naveen @ Ajay v. State of Madhya

Pradesh

20, wherein the accused was never asked as to whether he admits

the documents, as required under Section 294 CrPC and neither the

scientific experts were called to prove the reports, remanded the matter to

the trial Court for de-novo trial holding that no proper opportunity was

granted to the accused therein to defend himself. The relevant extract from

this judgment is as under:-

“8. ………It is significant to note that the FSL report,

Viscera report and DNA report were not submitted along

with the charge-sheet. The same were presented before the

Trial Court on 04.05.2018. The accused was never asked as

to whether he admits the documents, as required under

Section 294 of Cr. P.C.. Neither any witnesses were called

to prove these reports. After the prosecution case was closed

on 08.05.2018, the accused examination was conducted on the

very next day i.e. on 09.05.2018 and thereafter on the next day

i.e. on 10.05.2018, the case was fixed for examination of

defence witness.

It requires special notice that the accused was in jail and was

not defended by a counsel of his choice but by a legal aid

counsel. He was not in a position to present the witness himself,

yet he was directed to keep his witnesses present on the next

day i.e. on 10.05.2018. On this date, he could not produce his

witnesses, therefore, his defence was closed, and the case was

posted for final arguments after recess.

22. In the case at hand, the prosecution is based on

circumstantial evidence in which the prosecution has to prove

each link in the chain of circumstantial evidence and the

important chains in the link are DNA report, FSL report and

Viscera report. When the reports were challenged by the

20

2023 SCC OnLine SC 1365

25

accused before the High Court, it was brushed aside by

observing that even if the authors of the reports were not

called for evidence, in terms of Section 293 Cr. P.C., the

reports are not open to question as the defence had an

opportunity to cross-examine the authors of the reports

during the trial. In our considered view, the High Court was

not correct in saying that the defence had an opportunity

to cross-examine the experts. The trial has been conducted

on day-to-day basis wherein the accused, who was in jail and

defended by a counsel from legal aid, was compelled by the Trial

Court to produce defence witness of his own in one day. It was

impossible for the accused himself to produce Dr. Anil Kumar

Singh and Dr. Kamlesh Kaitholiya, the authors of the Reports

(Ex.P-72), in one day because the said experts are government

servants and could not have attended the Court at the request

of an accused in jail. The Trial Court treated the accused as if

he is carrying a magic wand which is available to produce highly

qualified experts, who are government servants, on a phone

call. There was no opportunity, in the real sense, to the

appellant to cross-examine the experts.”

(emphasis supplied)

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

26

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 observations made by us in this order.

27

33. Consequently, the judgment dated 21

st August, 2018, passed by

the trial Court and the judgment dated 9

th September, 2021, passed by

the High Court are quashed and set aside.

34. The appeals are allowed accordingly.

35. Pending application(s), if any, shall stand disposed of.

………………….……….J.

(VIKRAM NATH)

………………….……….J.

(SANJAY KAROL)

………………………….J.

(SANDEEP MEHTA)

New Delhi;

January 16, 2025.