Failure To Examine Forensic Experts Whose CA reports / DNA reports Are Relied Upon Vitiates Trial

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.)