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Synopsis

The Supreme Court has set aside conviction and sentence of capital punishment awarded to two men in a case related to gang rape of a class III student in Madhya Pradesh's Mandsaur in 2018, and ordered fresh proceedings by the sessions court, which had concluded the hearing in less than two months of registration of the FIR.

The apex court allowed the accused men's plea for examination of scientific experts who conducted the DNA examination but were not produced before the trial court, as their report formed the basis of their conviction.

A bench of Justices Vikram Nath, Sanjay Karol and Sandeep Mehta took an exception to undue haste shown in the case as proceedings were concluded against appellants Irfan alias Bhayu Mevati and Asif Mevati within two months of lodging the FIR.

"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 bench said.

On an application filed by the appellants under Section 391, CrPC and Article 142 of the Constitution, the bench held, the failure of the trial court to ensure the deposition of the scientific experts while relying upon the DNA report, had definitely led to the failure of justice thereby, vitiating the trial.

On June 26, 2018, an FIR was lodged alleging inter alia that the minor girl, who was studying in the 3rd standard, had gone missing from the school premises after classes. On the next day, the child was rescued in an injured condition.

Upon treatment, she narrated the story of her plight to the police officials, alleging 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.

Based on CCTV footage, the accused were arrested.

The medical examination of the victim revealed that not only had she 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.

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.

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 have 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.

Before the apex court, they contended that they did not have adequate opportunity to challenge the DNA report. They also claimed the DNA report did not contain the complete data and materials relied upon during the DNA examination, which formed the basis of the conclusion drawn in the report.

They also contended that the DNA report had not been proved by the DNA expert.

Their counsel vehemently and fervently contended that the denial of the permission to examine scientific experts with reference to the documents on which the evidence of DNA experts and the FSL experts was based had caused grave prejudice to them and went to the very root of the case.

He said the non examination of these scientific experts had led to gross miscarriage of justice vitiating the entire trial.

None of these experts were examined to prove the contents/conclusions of the DNA report which was proved during the evidence of Rakesh Mukati, Superintendent of Police. 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, he said.

The counsel for the State, on the opposite, urged that there was absolutely necessity to examine the scientific experts and that the exhibiting of the DNA report under Section 293 CrPC was sufficient compliance of the statutory mandate.

The examination of the experts would have been a mere formality, thereby delaying the trial, contending so, he implored the court to dismiss the application.

The court, on its part, noted the State was not in a position to dispute the fact that the DNA report was formally exhibited in the evidence of the Superintendent of Police 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.

"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," the bench noted.

The bench pointed out the controversy in question was squarely covered by the decision of the top court in Anokhilal Vs State of Madhya Pradesh (2019) wherein, the 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 court thus allowed the application filed by the appellants and remanded the case to the trial court, and ordered that it should summon the scientific experts associated with the preparation and issuance of the DNA report with the entire supporting material.

These scientific experts should 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 should be appointed to defend the accused and in the de novo trial, the bench ordered.

After recording the testimony of the scientific experts, the accused should be again questioned under Section 313 CrPC in context to the fresh evidence. They should be provided a fair opportunity of leading defence evidence. Thereafter, the trial court should proceed to rehear the arguments and decide the case afresh as per law, the bench ordered.

The apex court clarified that the entire process should be completed within a period of four months from the date of receipt of the present order.

The bench set aside the judgment of August 21, 2018, passed by the trial court and the judgment of September 9, 2021 by the high court.

Case Title: Irfan alias Bhayu Mevati Vs State of Madhya Pradesh