Anand Pasi vs. State Of U.P. & Another (2013) - Admissibility of DNA Evidence

(It was held that the impugned order is unsustainable. Hence, the revision is allowed and the order by the Allahabad High Court dated 13.3.2013 is set aside.)

• Bench: Justice Anil Kumar Sharma
• Appellant: Anand Pasi
• Respondent: State Of U.P. & Another

Issue

13. This revision challenges the order dated 13.3.2013 passed by Addl. Sessions Judge, District Allahabad, whereby after closure of arguments of the defence, allowing the application of the prosecution permission has been accorded to put the DNA report paper no. 32-A/2 to 32-A/10 to the revisionist in his additional statement u/s 313 Cr. P.C.
14. To add to the point stated above, it was further vehemently argued by the learned counsel for the revisionist that the DNA report could not be admitted in evidence without its formal proof as required under the law unless it is demonstrated that the same could be considered in view of Sections 293 and 294 Cr. P. C., therefore, the accused cannot be put to explain the same.

• Instead of making submissions on 13.3.2013, an application was filed by the complainant of the case duly submitted by the concerned ADGC (Criminal) stating that the report of DNA from Hyderabad had been received and is placed on the record, which is admissible in evidence without its formal proof, so it should be read in evidence. On the same day, this application was disposed of by the learned trial Court.

14. Perusal of statement u/s 313 Cr.P.C. shows that by mistake or slip no question on DNA report has been put to accused. Hence in the interest of justice it is necessary to put question on each and every evidence available on record to accused u/s 313 Cr.P.C. to enable accused to put the defence, if any. Hence put up on 14.3.13 for additional statement u/s 313 Cr.P.C. Application of the prosecution is accordingly disposed off."

Facts

• When the revision came up before the Court as fresh following order was passed that, Learned AGA is unable to show any Notification by the Central Government on the basis of which, DNA report submitted by CDFC can be admissible under section 293 Cr.P.C. It was further ordered that let the District Government Counsel (DGC), Allahabad appear in person on the next date to apprise the Court with the appropriate Notification.
• It was further ordered that the additional statement of the accused under section 313 Cr.P.C. shall not be recorded by the Addl. Sessions Judge, on the basis of DNA report unless the DNA report is proved in accordance with law or it is shown to the satisfaction of the Court below on the basis of a Notification of the Central Government that DNA Report is admissible under section 203 P.C. without formal proof.
• It was further ordered that a copy of this order has be given to learned AGA (Additional Government Advocate) within 3 days.
• On 11.7.2013 in compliance with the order of the Court dated 23.5.2013 Sri R. P. Singh, District Government Counsel, Allahabad appeared and placed before the Court photo-copy of letter no. TS-17-2002(1)/298 dated February 11, 2010 issued by the Head Quarter of U. P. Police Technical Services under the signature of its Additional Director General Police addressed to all Inspector Generals of Police, Railways, PAC, CBCID, all Deputy Inspector Generals of Police, Senior Superintendent of Police of the State and Incharge Director and Joint Director of Forensic Science Laboratory, Lucknow, Agra and Varanasi.

Appellant's Contentions

• It was vehemently argued by the learned counsel for the revisionist that the DNA report could not be admitted in evidence without its formal proof as required under the law unless it is demonstrated that the same could be considered in view of Sections 293 and 294 Cr. P. C., therefore, the accused cannot be put to explain the same.
• In addition to this an application was filed by the complainant, stating that the report of DNA from Hyderabad had been received and is placed on the record, which is admissible in evidence without its formal proof, so it should be read in evidence. On the same day, this application was disposed of by the learned trial Court. 

Respondents Contentions

• The learned AGA(Additional Government Advocate) countering the arguments of revisionist's counsel has contended that the DNA report of CDFD, Hyderabad is admissible u/s 293(1) Cr.P.C. Reliance for this proposition has been made on the case of Cr. Appeal no. 620 of 2007 Vinay Kumar Vs. State and Cr. A no. 826 of 2007 Munish Kumar Vs. State decided by a division bench of Delhi High Court.

Judgment

It was held that the impugned order is unsustainable. Hence, the revision is allowed and the order by the Allahabad High Court dated 13.3.2013 is set aside.

Relevant Paragraphs

1. The Supreme Court had rather held that the report of DNA Fingerprinting has to be admitted in evidence under sub Section (1) of Section 293 as a report which is issued under the hand of a Government Scientific Expert. Therefore, the report exhibit PW.29/A of CDFD which has also been proved in the statement of Sh. S. P. R. Prasad, PW-29 can be considered and is admissible under Section 45 of the Indian Evidence Act and cannot be ignored."
2. It was further ordered by the Supreme Court that neither the DGC (Criminal), Allahabad nor the learned AGA could produce before the Court any Notification issued by the Central Government u/s 293(4) (g) of the Code of Criminal Procedure making provision for acceptance of the DNA report of scientific expert of the CDFD, Hyderabad. Section 293 of the Code provides that the reports of certain Government scientific experts may be used as evidence in any inquiry, trial or other proceedings under the Code.
3. The Hon'ble Apex Court was dealing with the report of Ballistic Expert of Central Forensic Science Laboratory, Chandigarh signed by one Junior Scientific Officer. Following observations have been made in para-6 of the report, which reads as under:

The report of ballistic expert (Ex. P-X) was signed by one junior scientific officer. According to the High Court, a junior scientific officer (Ballistic) is not the officer enumerated under sub-section (4) of Section 293 of the Code of Criminal Procedure and, therefore, in the absence of his examination such report cannot be read in evidence. For this exact reason of the High Court, in our view, is also fallacious. Firstly to bring to view, the Forensic Science Laboratory Report (Ex. P-X) has been submitted under the signatures of a junior scientific officer (Ballistic) of the Central Forensic Science Laboratory, Chandigarh. Further there is no dispute that the report was submitted under the hand of a Government scientific expert. Under Section 293(1) of the Code of Criminal Procedure enjoins that any document purporting to be a report under the hand of a Government scientific expert under the section, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under the Code, may be used as evidence in any inquiry, trial or other proceeding under the Code. It was then stated that the High Court has completely over-looked the provision of sub-section (1) of Section 293 and arrived at a fallacious conclusion that a junior scientific officer is not an officer enumerated under sub-section 4 of Section 293. What sub-section 4 of Section 293 envisages is that the court to accept the documents issued by any of six officers enumerated therein as valid evidence without examining the author of the documents.

4. To culminate all the points stated above in this particular case the learned trial Court without addressing himself to the core question about the admissibility of the DNA report without its having been proved according to law has illegally stepped forward to put the same in additional statement of the revisionist u/s 313 Cr.P.C. Consequenly, the learned trial Court has exceeded its jurisdiction in passing the impugned order. As the DNA report in question could be put to the revisionist in his additional statement u/s 313 Cr. P. C., if its genuineness is admitted by the defence or it is duly proved as per the provisions of law by examining the concerned expert. Furthermore the trial Court can exercise its jurisdiction u/s 311 Cr. P. C. to summon the expert, if any such application is moved by the prosecution.
5. To bring to a conclusion, the impugned order is unsustainable. The revision is allowed and the order dated 13.3.2013 is set aside.

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