1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPLICATION (APPCO) NO.2 OF 2011 IN CRIMINAL CONFIRMATION CASE NO.2 OF 2010 WITH CRIMINAL APPEAL NO.17/2011 (State of Maharashtra ..vs.. Anil @ Anthony Arikswamy Joseph) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri S.S. Doifode, A.P.P. for the applicant-State, Shri R.M. Patwardhan, Advocate (appointed) for the non-applicant. CORAM : MRS. V.K. TAHILRAMANI AND M.L.TAHALIYANI, JJ. DATE : 1 0-08- 2011 . The record and proceedings of Sessions Case No.167 of 2008 have been received by this Court from the learned Sessions Judge, Nagpur for orders under Section 366 of the Criminal Procedure Code. The accused in the said sessions case has been convicted of the offence punishable under Section 302 of the Indian Penal Code and has been sentenced him to death and has further been sentenced to pay a fine of Rs.10,000/-, in default to suffer rigorous imprisonment for one year. He has further been convicted of the offence punishable under Section 377 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs.1,000/-, in default to suffer rigorous imprisonment for three months. He has further been convicted of the offence punishable under Section 201 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, 2 in default to suffer further rigorous imprisonment for the period of three months. 2. The accused has also filed appeal against the judgment and order of learned Sessions Court. The Appeal No.17/2011 is being heard with Confirmation Case. 3. Learned Advocate Mr. R.M. Patwardhan is appointed to represent the accused/appellant. 4. When the case was taken up for final hearing and arguments on the documentary evidence, particularly reports of Chemical Analyzer, were in progress, it was noticed by us that the DNA profile of blood sample and semen sample of the accused was not produced before the trial Court. It was noticed that P.W.5-Dr. Varsha Rathod, Assistant Chemical Analyzer of Forensic Science Laboratory, Mumbai had given detail evidence in respect of the contents of Ex.35. This witness has also stated that she had occasion to compare DNA of blood sample of the accused with Ex.1 (semen stains on half pant) and Ex.5 (anal smear of the deceased). According to her, the DNA samples were matching and therefore, she had submitted report Ex.38. We have gone through the contents of Ex.38. Ex.38 does not disclose that any comparison as stated by P.W.5 was done in F.S.L. at Mumbai. Report in Ex.38 reads as under :- “Exhibit 1 is a control sample”. There is nothing more than this in the said report. 5. As such the DNA profile of semen or blood sample of the appellant-accused was not produced before the trial Court. In our view, this was very vital piece of evidence. 3 Considering the serious nature of the offence and also considering the fact that whole case against the accused was based on circumstantial evidence, we had enquired from the learned Additional Public Prosecutor as to whether the DNA profile of the blood and semen samples of the accused was done and as to whether the Chemical Analyser of Forensic Science Laboratory, Mumbai had given any opinion in writing with regard to matching or otherwise of DNA profile with the DNA profile of anal smear of the deceased. 6. The learned Additional Public Prosecutor has now submitted application for grant of permission to file some documents on record. The documents, which are sought to be introduced at this stage, are copies of judgments in two earlier sessions cases and the report of the Assistant Director, Forensic Science Laboratory, Mumbai. In both the sessions cases, the appellant-accused Anil was tried for the offence of murder and he was acquitted. The report the Assistant Director, Forensic Science Laboratory, Mumbai pertains to the DNA profile of blood sample of the accused collected during investigation of this case. 7. During the course of hearing of the application, the learned Additional Public Prosecutor did not press for production of copies of the judgments. However, he vehemently submitted that the report of the Assistant Director of Forensic Science Laboratory, Mumbai could be taken on record as this Court has power to take further evidence during the course of hearing of confirmation case under Section 367 of the Criminal Procedure Code. Section 367 of Cr.P.C. runs as under :- 4 “ Power to direct further inquiry to be made or additional evidence to be taken – (1) If, when such proceedings are submitted, the High Court thinks that a further inquiry should be made into, or additional evidence taken upon, any point bearing upon the guilt or innocence of the convicted person, it may make such inquiry or take such evidence itself, or direct it to be made or taken by the Court of Sessions. (2) Unless the High Court otherwise directs, the presence of the convicted person may be dispensed with when such inquiry is made or such evidence is taken. (3) When the inquiry or evidence (if any) is not made or taken by the High Court, the result of such inquiry or evidence shall be certified to such Court.” 8. No doubt, High Court, during the course of proceedings under Section 367 of the Cri.P.C., can make further enquiry, or can take further evidence, or can direct further evidence to be taken by the Court of Session, in case High Court thinks that further enquiry is needed or additional evidence is required to be taken upon any point bearing upon the guilt or innocence on the convicted person. The High Court during the course of hearing of the appeal also can, under Section 391 of Cri.P.C., direct additional evidence to be recorded. 9. Let us now, briefly, state the background in which the present application is submitted by the Addl. P.P. In the present case, during the course of investigation, anal smear of the deceased was collected by the Medical Officer. Trousers and Barmuda allegedly belonging to the accused having semen stains were also seized. It appears that the blood stains found near or around private parts of the deceased 5 were taken on a gauze piece. These articles were sent to the F.S.L., Mumbai. The Assistant Chemical Analyzer Dr. Varsha Rathod, who has been examined as P.W.5, had given report in respect of semen found on half pant (Barmuda) (Ex.1), blood stains (Ex.4) sent on gauze piece and anal smear (Ex.5) forwarded on a slide. It was stated by P.W.5 that DNA was obtained from Exs.1,4 and 5 and for all 8 different STR Loci analyzed with PCR and 15 STR loci analyzed for Y-STAR typing, Ex. 5 (anal smear) gave mixed DNA profile which matched all the obligate alle-les with the DNA profile obtained from Exhibit 1 (Blood stains on half pant) and Exhibit 4 (blood stains on gauze piece). 10. It is also seen from the record and proceedings that after the arrest of accused, the Investigating Officer had collected his blood sample, semen sample, sample of pubic hair, sample of nail clippings. While forwarding the samples of semen and blood of the accused, the Investigating Officer had requested the F.S.L. to give opinion as to whether the traces of semen or blood of the accused were found on the blood stains collected on a gauze piece (Ex.4 of Ex.35) and anal swab (Ex.5 of Ex.35) collected by the Medical Officer while conducting post-mortem examination of the deceased. However, it does not appear from the evidence that these questions were ever answered either by F.S.L., Nagpur or by F.S.L., Mumbai till the date of filing of charge- sheet. The learned Additional Public Prosecutor conceded that question Nos.12 and 13 of the questionnaire submitted by the Investigating Officer to the F.S.L. did not appear to have been answered. 6 11. The learned Additional Public Prosecutor has now received DNA profile of the accused and he seeks permission of this Court to produce the report of the Assistant Director, F.S.L., Mumbai in respect of DNA profile of blood sample of the accused. 12. We have heard the learned Additional Public Prosecutor and the learned Advocate Shri Patwardhan for the accused-appellant. We have gone through the letter addressed to the learned Additional Public Prosecutor Shri Doifode by the Director of Forensic Science Laboratory, Mumbai. The annexure to the said letter is the DNA profile of the accused. We are afraid as to whether the document can be taken on record in the manner prayed by the learned Additional Public Prosecutor. The documents so produced, in our opinion, cannot be treated to be evidence unless it is admitted by the defence. The learned Advocate for the accused has strongly opposed the prayer of the learned Additional Public Prosecutor. 13. After hearing both the sides, we have come to the conclusion that the report of the Assistant Director of Forensic Science Laboratory, Mumbai in respect of DNA profile of blood sample of the accused has bearing upon the guilt or innocence of the appellant-accused who has been convicted and has been sentenced to death. We are also of the view that it is necessary to recall P.W.5 and record his further examination-in-chief with reference to her report in respect of DNA profile of the accused and with reference to her evidence at Para No.3 of her examination-in-chief recorded on 25th September, 2009. 7 14. In brief, what we have come to the conclusion is that the additional evidence is necessary to be taken as the evidence, which is required to be taken, has bearing upon the guilt or innocence of the accused. Original record and proceedings will have to be sent back to the Sessions Judge, Nagpur. He will have to be directed to recall P.W.5 and record her further examination-in-chief, in view of the observations made by us hereinabove. Needless to state that the accused will have to be given an opportunity to cross- examine the witness. At the same time, the learned Sessions Judge will have to record further statement of the accused under Section 313 of the Criminal Procedure Code, if found necessary, after recording of further evidence. 15. As far as copies of two judgments are concerned, they pertain to the earlier cases decided against the appellant- accused. The production of those copies is irrelevant and does not have any bearing on the present case. As already stated, the appellant-accused had been acquitted of all the charges in both the cases. The learned Addl. P.P., therefore, does not press production of copies of said two judgments. In view what has been stated by us herein above, we pass the following order. i) The prayer for production of copies of judgments in Sessions Trial No.118 of 1997 and Sessions Trial No.39 of 2002 does not survive as it is not pressed. ii) The prosecution shall move the learned trial Court for production of the additional evidence.. iii) The prosecution shall recall P.W.5 and shall 8 re-examine the said witness further with reference to the DNA profile of blood sample of the accused and the comparison thereof with Exs.1,4 and 5 of the report Ex.35. iv) The learned trial Court shall be at liberty to allow the prosecution to produce any other documents connected with the evidence or concerning the collection of samples, carrying the same to F.S.L. and analysis thereof. v) The learned Trial Court shall also be at liberty to allow the prosecution to examine any other witness pertaining to or concerning with the collection of samples, carrying the same to F.S.L. and analysis thereof. vi) The prosecution shall recall P.W.10 and P.W.14 and shall examine them further with reference to forwarding samples Exs.1,4 and 5 of Ex.35 and blood and semen samples of the accused-appellant. vii) Needless to state that the accused-appellant shall be given an opportunity to cross-examine the witnesses recalled or fresh witnesses examined following this order. viii) The learned trial Court shall record further statement of the accused-appellant under Section 313 of the Cr.P.C. with reference to the additional evidence. ix) It is made clear that the learned trial Court shall be at liberty to pass any incidental order to achieve the purpose of this order, but shall be careful to see that the prosecution do not misuse this opportunity of recording of additional evidence to introduce any other evidence which is 9 not subject matter of the present order. ix) The original record and proceedings be sent back to the learned Sessions Judge, Nagpur. x) The learned Sessions Judge shall comply with this order within 30 days from the date of receipt of this order and shall certify the additional evidence to this Court immediately thereof. Application accordingly stands disposed of. Criminal Confirmation Case No.2 of 2010 With Criminal Appeal No.17 of 2011 S.O. to 04-10-2011. Not to be treated as part heard. JUDGE JUDGE pma