KARANDEEP SHARMA @ RAZIA @ RAJU v. STATE OF UTTARAKHAND
Criminal Appeal Nos. 630-631 of 2018
Coram: Sandeep Mehta; Vikram Nath; Sanjay Karol
No. Proper opportunity was not given before framing charges, and the accused remained unrepresented throughout despite the trial Court noting it. With the prosecution evidence concluded in 27 days and the amicus curiae changed and compelled to cross-examine on the same day, the appellant was not provided a reasonable opportunity to defend himself.
Code of Criminal Procedure, 1973 — ss.207, 293 — Indian Evidence Act, 1872 — ss.24, 25, 26 — Indian Penal Code, 1860 — ss.302, 376A — Protection of Children from Sexual Offences Act, 2012 — ss.5, 6 — Just and fair manner — Legal aid counsel — DNA profiling — Chain of custody — Last seen —
Code of Criminal Procedure, 1973 — s.207 — Legal aid counsel — Opportunity to defend before charge —
Held: Framing charges on the day the relied upon documents are supplied denies the accused a reasonable opportunity to defend himself. Where the amicus curiae is compelled to cross-examine on the day of his appointment, the trial is not conducted in a just and fair manner. (¶15, 16)
Code of Criminal Procedure, 1973 — s.293 — DNA profiling — Expert must be examined —
Held further: A DNA profiling report is not admissible ipso facto by virtue of Section 293; the prosecution must examine the expert and prove that the techniques were reliably applied. Non-examination of that expert is fatal and the report cannot be admitted in evidence. (¶39, 40)
Code of Criminal Procedure, 1973 — Forensic samples — Chain of custody — Link evidence —
Held further: The sanctity and chain of custody of the samples, from their collection till they reach the FSL, must be proved by link evidence. Where they were not sealed at the inception and no witness proves their self-same condition, the reports are eschewed from consideration. (¶54, 55)
Indian Penal Code, 1860 — s.302 — Last seen — Silence of the witnesses; no test identification parade —
Held further: Where the witnesses of last seen remained silent before the police officers who reached the spot and no test identification parade was held, the last seen theory is demolished. With the DNA/FSL reports eschewed, no evidence remains to connect the appellant with the crime; conviction and death sentence set aside, appeals allowed. (¶35, 36, 56)
In the Court's own words
Paragraph 15The incident took place on the intervening night of 25th/26th June, 2016. The charge-sheet came to be filed on 24th September, 2016 and the trial Court took cognizance of the same on the very same day. The matter was deferred to 26th September, 2016 for providing copies of the documents submitted under Section 173(2) CrPC to the appellant, as per the mandate of Section 207 CrPC. The matter was then deferred to 5th October, 2016 for the very same purpose. The order sheets of 5th October, 2016, 13th October, 2016, 17th October, 2016, 19th October, 2016 and 1st November, 2016, all indicate that the matter was deferred for providing the copies of the relied upon documents to the accused (appellant herein). It was only on 5th November, 2016 that the trial Court noted that the appellant had been presented from custody and the documents included in the chargesheet as relied upon by the prosecution were being provided to him. It must be emphasized that till this date the appellant was neither represented by a privately engaged defence counsel nor did the trial Court offer him the services of a legal aid counsel. On 5th November, 2016 itself, the trial Court proceeded to frame charges against the appellant even though he had been provided with the copies of the relied upon documents on that very day. Apparently thus, proper opportunity was not given to the appellant before framing charges against him and sending him for trial. Not only this, the trial Court extensively referred to the confession of the appellant recorded under Section 164 CrPC while framing charges against him. It is a different matter that the said confession was not relied upon either by the trial Court or the High Court, as a reliable piece of evidence against the appellant. On none of the dates fixed by the trial Court right up to the framing of charges and summoning of the witnesses did the Court make any endeavour to provide legal aid counsel to the appellant despite noting the fact that he remained unrepresented throughout the said proceedings.
Paragraph 16Further, the Forensic Science Laboratory[^15] report was presented by the Investigating Officer(PW-14) on 1st and 3rd December, 2016 and the trial Court took it on record. However, the order sheets of the trial Court are totally silent on the aspect of whether the copy of the said FSL report was ever provided to the appellant. For the first time on 11th January, 2017, on the request being made by the appellant, one Shri S.P. Singh, Advocate, was appointed as an amicus curiae to represent him in the trial. It is pertinent to note that the recording of the evidence of prosecution witnesses began on the very same day, i.e., 11th January, 2017, and the process was concluded within 27 days, i.e., on 6th February, 2017. During this short period, the amicus curiae appointed to defend the appellant was changed on 31st January, 2017. In view of the above sequence of events, there is no possibility that the defense counsel could have had a reasonable opportunity to prepare the matter and conduct the cross-examination from the witnesses. Thus, it is established beyond the pale of doubt that the trial was not conducted in a fair manner and that the appellant was not provided with a reasonable opportunity to defend himself.
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