In an interim application of a confirmation case filed before the Bombay High Court, invoking Sections 408 and 432 read with Section 329 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), assailing a judgment and order dated 22-03-2024 by the Court of Additional Sessions Judge, Pune, while seeking a direction that the chemical analysers of the laboratory concerned be summoned for cross-examination, a Division Bench of Justice Manish Pitale and Justice Shreeram V. Shirsat quashed the impugned judgment and remanded the matter to the Sessions Court while granting bail to the appellant’s mother (accused 2).
It was contended that not summoning the chemical analysts and abstaining the accused from cross-examining them had vitiated the trial before the Sessions Court, which is why the judgment and order by the Sessions Court deserved to be set aside. It was also requested that, if the matter is remanded to the Sessions Court, a direction be issued for a statement under Section 313 of the Code of Criminal Procedure, 1973 (CrPC), to be recorded in the context of the further evidence that would come on record.
The applicant was alleged to have brutally assaulted a 6-year-old girl, who used to live in his neighbourhood. She suffered aggravated penetrative assault and had deep wounds on her throat, which led to her death. The mother of the appellant was accused of assisting him in concealing the minor girl’s body.
By the impugned judgment, the applicant was convicted for offences under Section 363, 302, 376(2), 376A, 376AB, 201 of the Indian Penal Code, 1860 (IPC), and Sections 4 as well as 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). He was sentenced to death for offences under Section 376A, 376AB of the IPC, and Section 6 of the POCSO Act. The applicant’s mother (accused 2) was convicted under Section 201 of the IPC for a seven-year sentence of imprisonment and under Section 21 of the POCSO Act for a six-month sentence.
The applicant asserted that 12 chemical analyst reports were brought on record during the investigating officer’s examination-in-chief, but the authors of those reports were never called to testify. However, it was submitted that the said reports were heavily relied upon by the Sessions Court to decide against the appellants. It was also contended that the statement under Section 313 of the CrPC was vitiated because questions were put jointly to both appellants.
The Court referred to the Supreme Court’s stance in similar cases and found it evident that even when the judgment of the trial court was found fit to be set aside and the matter to be remanded to the trial court, the trial was not directed to be conducted de novo by wiping out evidence that was already on record. The Court stated that the Sessions Court committed a grave error while observing that since the accused person did not make any requisition for examining the chemical analysers, the said reports had been directly admitted in evidence.
It was stated that such a course of action was not open to the Sessions Court, as the Supreme Court has laid down that such witnesses ought to be court witnesses even if the prosecution fails in its duty to summon them. The Court opined that the impugned judgment as well as the trial stood vitiated to that extent. The Court stated that the applicant had made a case for the application to be allowed since it is the duty of all persons in authority to ensure that all material is brought on record to assist the court in ascertaining the truth of the matter.
The Court found substance in the contention raised on behalf of the appellants that the entire statement under Section 313 CrPC ought to be recorded afresh and found it necessary to give ancillary directions for the same. Further, since the appellant’s mother had already suffered incarceration for more than 3 years, and she was convicted for bailable offences, the Court granted her bail subject to certain conditions while setting aside the impugned judgment and remanding the matter to the Sessions Court.
Thus, the Court directed the records to be sent back to the Sessions Court within three weeks through a special messenger and directed the Sessions Court to pass final judgment within four months from 07-04-2026.
Appearances:
Mr. Shrikant V. Gavand (APP), Ms. Rebecca Gonsalvez, Ms. Sahana Manjesh
