Bombay High Court
Sanjay Baban Katkar vs State Of Maharashtra And Anr on 23 July, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2025:BHC-AS:30654-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL CONFIRMATION CASE NO.3 OF 2022
State of Maharashtra .... Petitioner
Versus
Sanjay Baban Katkar .....Respondent
......
WITH
CRIMINAL APPEAL NO.1313 OF 2023
Sanjay Baban Katkar ....Appellant
Versus
The State of Maharashtra
and another .....Respondents
-----
Ms. Rebecca Gonsalvez, Advocate a/w. Ms. Sahana Manjesh,
Gaurav Bhawnani, for the Appellant in Appeal No.1313/2023 and
for the Respondent in Confirmation Case/3/2022.
Mr. S.V. Gavand, Addl. P.P. for the Appellant/State in Confirmation
Case/3/2022 and for the Respondent/State in Appeal
No.1313/2023.
Ms. Pranali P. Kakade, Advocate for the Respondent No.2
-----
CORAM : SARANG V. KOTWAL &
SHYAM C. CHANDAK, JJ.,
RESERVED ON : 15th JULY, 2025
PRONOUNCED ON : 23rd JULY, 2025
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Deshmane(PS)
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JUDGMENT :
[PER SARANG V. KOTWAL, J.]
1. Heard Ms.Rebecca Gonsalvez, learned counsel for the
Appellant in Appeal No.1313/2023 (for the Respondent in
Confirmation Case No.3/2022), Mr. S.V. Gavand, learned APP for
the State and Ms. Pranali Kakade, learned counsel for the
Respondent No.2 in Appeal No.1313/2023.
2. A common order is passed in both these proceedings.
The accused Sanjay Katkar (the Appellant in Criminal Appeal
No.1313/2023) was the sole accused in Special Criminal Case
(Child) No.285/2021 before the learned Special Judge under
POCSO Act, Pune. Vide the judgment and order dated 28.2.2022,
the learned Special Judge under POCSO Act, Pune convicted and
sentenced the accused as follows :
[i] The accused was convicted for commission of the offence
punishable under Section 6 of the Protection of Children
from Sexual Offences Act, 2012 (for short, ‘POCSO Act‘)
and was sentenced to be hanged by neck till his death as
per Section 354(5) of the Code of Criminal Procedure,
1973 (for short, ‘Cr.P.C.’), subject to confirmation by this
Court under Section 366 of Cr.P.C..
[ii] He was convicted for commission of the offence punishable
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:3: CONFIRMATION-CASE-3-22.odtunder Section 363 of the Indian Penal Code, 1860 (for
short, ‘IPC‘) and was sentenced to suffer RI for five years.
[iii] He was convicted for commission of the offence punishable
under Section 4(2) of the POCSO Act and was sentenced to
suffer RI for twenty years.
[iv] The sentences imposed under Section 363 of IPC and
under Section 4(2) of the POCSO Act were directed to run
concurrently.
[v] The accused was not sentenced for the offences punishable
under Sections 302, 376(a)(b) and 376(2)(j)(m) of IPC in
view of Section 42 of the POCSO Act.
The proceedings were submitted to this Court for
confirmation of the sentence of death under Section 366(1) of
Cr.P.C. vide Criminal Confirmation Case No.3/2022.
3. Criminal Appeal No.1313/2023 is filed by the original
accused against the judgment and order of conviction and
sentence.
4. For the reasons mentioned in the following discussion,
we are inclined to remand back the matter. Therefore, we are
refraining from making any observations regarding the merits of
the matter except wherever it is absolutely necessary to note down
the facts of the present case.
5. The prosecution case, in brief, is as follows :
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:4: CONFIRMATION-CASE-3-22.odtThe victim in this case was a two and a half year old
girl child. On 15.2.2021 she was abducted by the accused. She was
abducted from the front of her parents’ house at Katkar Vasti,
Kuran (Kh), Taluka – Velha, District-Pune. The child was playing
on the road in front of the house of one Ramdas Katkar. The father
of the child informed the police station at Velha. All of them
started searching for her. On 16.2.2021, at about 2.50 a.m., the
victim’s father lodged his FIR vide C.R. No.6/2021 at Velha police
station under Section 363 of IPC. In the afternoon on 16.2.2021,
the dead body of the victim was found in a cement pipe below a
small bridge in a remote place in the area of village Malkhed-
Thoptewadi, Tahsil Velha. The father identified the victim. She
was having injuries on her private parts, nose and lips. Two empty
packets of wafers were found nearby. A piece of newspaper and a
stone having blood stains were found at that spot. Apart from
these articles, there was one jerkin of ash colour having hood-cap
of saffron colour. There were blood stains on that jerkin. The
investigation started. The spot panchnama was conducted. The
dead body was sent for postmortem examination to Sassoon
Hospital. The clothes of the victim and thirteen samples viz. the
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blood samples and swabs taken from her private parts were
collected. They were sent to Chemical Analyzer, Pune under two
separate covering letters. The accused was arrested on 18.2.2021
at Raigad. He was sent for medical examination. The DNA analysis
kit was ordered. Blood samples of the accused were collected and
they were also sent for C.A. analysis. During investigation a
handkerchief was recovered at the instance of the accused. The
statements of witnesses were recorded under Section 164 of Cr.P.C.
and on completion of the investigation the charge-sheet was filed
in the Special Court.
6. During the trial, the prosecution examined sixteen
witnesses, including, the father of the victim, the panchas, the
medical officer who had conducted the postmortem examination
and had collected swabs, the investigating officers etc.. There were
two important witnesses who had seen the accused with the
deceased after she was abducted and before her dead body was
found. The test identification parade was held to enable them to
identify the accused. Those two witnesses were PW-3 Ashok
Khatpe and PW-4 Nana Tavade. Apart from them, the Naib
Tahsildar who had conducted the test identification parade was
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also examined. The CA reports and report of the DNA analysis
were produced on record through the evidence of the investigating
officer PW-16 API Manoj Pawar. The DNA report was produced on
record at Exhibit-105.
7. PW-3 Ashok Khatpe had seen one person with a girl of
two and a half years of age on 15.2.2021 at about 2.00 p.m.. That
person had come to his small shop and had purchased two packets
of wafers. On the next day, the police showed him a photograph of
a small child. He identified the victim. He was asked to attend the
test identification parade on 25.5.2021 wherein he had identified
the Appellant.
8. PW-4 Nana Tavade was an autorikshaw driver. One
person with a small child had travelled in his rickshaw on
15.2.2021 at about 12.00 p.m. from Puran Phata to village
Malkhed. Subsequently, the police showed him a photograph of the
victim and he identified the victim. He was also asked to attend
the test identification parade and he identified the accused in the
test identification parade held on 23.9.2021. The learned Judge
relied on their evidence in reaching his conclusion. Apart from this,
the learned Judge also relied on the DNA report. The discussion on
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this aspect is found in paragraph-53 of the impugned judgment,
which reads thus :
“53. The C.A. report Exh.98 shows that there was no poison
in the viscera of the prosecutrix. It means, death of the
prosecutrix was not caused by poison. The C.A report
Exh.99 shows that there was semen on the frock
(Article-‘A’) of the prosecutrix. The blood having ‘B’
Group of the prosecutrix is established by the C.A.
report Exh.100. The same blood was found in the frock
of the prosecutrix and jerkin of the accused as per C.A.
report Exh.99 which were sent to DNA analysis.
Exh.101 is C.A. report about the clothes of the accused
having blood stains. The blood of the prosecutrix was
detected in his shirt and Jerkin. It was sent for DNA
analysis. Exh.103 C.A. report shows that the clothes of
male DNA profile were obtained from Exh.4 anal smear
and Exh.5 vaginal swab and Exh.6 vaginal smear. C.A.
report Exh.104 shows that DNA analysis profile is
obtained from Exh.1 blood of the accused Sanjay Baban
Katkar. It was sent for DNA analysis profile. On the
basis of above referred C.A. report and DNA report at
Exh.105(1) and Exh.105(2) clarifies that male
haplotypes obtained from Exh.4 Anal smear, Exh.5
Vaginal swab of the prosecutrix (DNAp-216/2021) and
Exh.3 Semen stained cuttings from Frock (DNAp-
376/2021) are identical and matched with male
haplotypes obtained from Exh.1 Blood of accused
Sanjay Baban Katkar (DNAp-231/2021). Thus, it is the
evidence of conclusive nature.”
9. In paragraph-54, in the relevant portion, the learned
Judge observed thus :
“………….Thus, if the evidence of these witnesses is
considered alongwith opinion of Dr.Ajay Taware (PW.9)
with C.A. and DNA analysis reports then, it leads to the
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the prosecutrix and committed her murder by causing
serious bodily harm and danger to her life by throttling
her. Thus, the prosecution succeeded in proving the
ingredients of rape punishable under Section 376 AB
and 376(2)(j)(m) and intentional commission of murder
of the prosecutrix under Section 302 of the IPC as well
as aggravated penetrative sexual assault punishable
under Section 4 and 6 of the POCSO Act.”
10. The learned Judge rejected the evidence of recovery of
a handkerchief at the instance of the Appellant. The learned
Judge recorded his conclusion from paragraph-59 onwards.
Paragraph-59 reads thus :
“59. As discussed above, the prosecution has succeeded in
proving the age of the prosecutrix that she was child of
2 and ½ years old at the time of occurrence of the
incident. The prosecution also succeeded in proving
seizure of the clothes of the accused and prosecutrix,
which connected the accused with this crime as per the
DNA analysis and C.A. reports. The prosecution
succeeded in proving commission of rape and
penetrative sexual assault by the accused on the
prosecutrix, which is scientifically and independently
proved by DNA analysis and C.A. reports. The
prosecution also proved that the accused committed
murder of the prosecutrix i.e. homicidal death. The
prosecution has succeeded in proving that Ashok Khatpe
(PW.3) and Nana Tavade (PW.4) have lastly seen the
accused with the prosecutrix, soon after she was missing
and kidnapped and before commission of rape and
murder. Thus, the prosecution proved the kidnapping of
the prosecutrix by the accused. Prosecution further
succeeded in proving two spots of incidents, first is
courtyard of the home of the Ramdas Katkar by the
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incident by Aparna Chorge (PW.10), where the dead
body of the prosecutrix was kept after commission of
murder and rape.”
11. After reaching the conclusion of guilt, the learned
Judge considered the quantum of sentence; and then by recording
his reasons he passed the final judgment and order convicting and
sentencing the Appellant, as mentioned above. After the learned
Judge passed the judgment and order, it was submitted before this
Court for confirmation of the death sentence under Section 366(1)
of Cr.P.C., as mentioned earlier.
12. Earlier, the matter was placed before another Division
Bench of this Court. On behalf of the accused, an application vide
Interim Application No.2712/2024 in Criminal Confirmation Case
No.3/2022 was preferred for the following reliefs:
“A. Direct the Ld. Special Judge, Pune to summon Mr. VB
Shahagadkar, Assistant Chemical Analyser, Regional
Forensic Science Laboratory Pune, involved in preparation
of the report ML Case No.376/2021 (Ex. 105, Pg. 224) and
Mr.DV Mali, Assistant Chemical Analyser, Regional
Forensic Science Laboratory Pune, involved in preparation
of the reports ML Case No. Bp-894/2021 (Ex.99, Pg. 215),
ML Case No.Bp-895/2021 (Ex.100, Pg.217), ML Case No.
Bp-894/2021 (Ex.101, Pg. 218), ML Case No. Bp-
894/2021 (Ex. 102, Pg.219) as witnesses and permit the
counsel for the Applicant to cross-examine them.
B. Call for complete laboratory documentation of the
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Regional Forensic Science Laboratory, Pune in respect of
ML Case No.DNAp-376/2021 (Ex.105, Pg.224), including
but not limited to copies of the following:
a. All laboratory documentation including case register,
worksheets, bench notes and equipment log sheets
related to tests conducted and methods used for DNA
extraction, quantification, amplification,
electrophoresis and interpretation for all the articles
received;
b. Electropherograms for DNA profiles and electronic
raw data (.fsa) obtained from all exhibits received,
allelic ladders and control samples used; and
c. Working procedure manuals including DNA manual
used in examination of all exhibits received; and
d. Details of kits and softwares used for DNA
extraction, quantification, amplification,
electrophoresis and interpretation in the case along
with manuals of such kits and softwares; and
e. Details of seals and sample seals of all exhibits
received.
C. Call for complete laboratory documentation of the
Regional Forensic Laboratory, Pune in respect of ML Case
No.Bp-894/2021 (Ex. 99, Pg. 215), ML Case No. Bp-
895/2021 (Ex. 100, Pg 217), ML Case No. Bp-
894/2021(Ex. 101, Pg. 218), and ML Case No.Bp-
894/2021 (Ex. 102, Pg. 219), including but not limited to
copies of the following:
a. All laboratory documentation including bench notes;
b. Details of tests conducted and techniques used for
examination of the articles received as well as the
results of these tests;
c. Working procedure manuals including of biology
and/or serology division used in examination of the
exhibits;
d. Details of seals and sample seals of all exhibits
received”
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13. This Interim Application No.2712/2024 was argued
before the said Division Bench on various aspects. The Bench
considered the submissions made by both sides and referred to the
case law. In paragraph-19 of that order the Division Bench observed
that in this case there were two expert reports by two Analysts Mr.
DV Mali, and Mr. VV Shahagadkar, the latter being the report of
DNA Analysis of the DNA obtained from the deceased, through the
anal swab, oral swab, oral smear etc, which was compared from
the DNA profile of the accused obtained from his blood and it was
used for comparing the sweat stained cutting from the jacket and
the semen stained cutting from frock of the deceased. The method
adopted being DNA (STR analysis – Y-STR analysis). Paragraphs-26
& 27 of the said order reads thus :
“26. From perusal of the manual for forensic data testing it is
evidently clear that the submission of the counsel for the
applicant that the DNA report and CA reports only
contain the analystic opinion without the basis of the
opinion cannot be sufficient to prove the guilt of the
accused/applicant, warrant consideration.
In absence of the crucial information
regarding the process followed for DNA examination
including the kits and software used at different stages
during DNA profiling, notes and worksheets regarding
the finding at each step and the supportive laboratory
documentation has not been provided. The reports, which
are exhibited, being presented through Chemical
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offer any clarification on the test conducted and the
supporting laboratory documentation. In addition, the
strong likelihood of tampering/contamination of crucial
samples in such a scenario cannot be ruled out. The
report reveal a single source DNA profile matching the
deceased DNA profile, which is found in the blood
stained cutting from the applicants apparel, but it do not
offer any clarity on the basis on which the samples were
selected for the Y-STR testing as the STR analysis has
reported of a female DNA profile on the anal smear and
vaginal swab, however the Y-STR analysis finds male
haplotypes on the anal smear and vaginal swab. The
counsel for the applicant has also emphasized on lack of
genotyping of mixed profiles and the absence of any
statistical anaylsis data in the DNA report and that is why
she seek production of complete laboratory documents on
the basis of which DNA reports were issued.
27 The Assistant Analyser, who were involved in furnishing
this report Mr. Shahagadkar and Mr. DV Mali have not
been examined as the witness by the prosecution, and
hence the applicant/accused had no opportunity to cross-
examine them. Since, the purpose of criminal trial is to
ascertain truth and it contemplate every fair opportunity
to be given to the accused to deal with the incriminating
material which is relied upon by the prosecution in
establishing his guilt, in our consideration the applicant
deserve an opportunity in this regard.”
14. After considering these aspects, the Division Bench
passed the following order :
" ORDER
a) Interim Application No.2712 of 2024 is allowed in terms
of prayer clause (A).
b) The Special Judge (under POCSO Act), Pune shall
summon Mr. VV Shahagadkar, and Mr. DV Mali,
Assistant Chemical Analysers, Regional Forensic
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Laboratory, in connection with Exhibit No.99 to 105 and
upon their examination, afford an opportunity to the
applicant/accused to cross-examine the two expert
witnesses.
c) Upon the examination of the expert witnesses, if any
incriminating evidence is brought before the learned trial
Judge, that shall be put to the accused under Section 313
of Cr.P.C, by way of additional evidence, either by
securing his presence in person or by adopting virtual
mode.
d) The presence of the applicant/accused is dispensed with
while the witnesses are examined/cross-examined, but it
should be ensured that the evidence is taken in the
presence of the counsel representing the applicant.
e) We direct the Sessions Judge, to complete the entire
exercise of recording evidence of the expert witnesses
within a period of two months from the day of uploading
of this order and if necessary, by putting the same to the
accused under Section 313 of Cr.P.C, within a period of
one month thereafter and submit the same before this
Court on or before 14/11/2024, by complying the
provisions of Section 367(3) of Cr.P.C.
f) Record and Proceedings of the Special Case (POCSO
Act) No.285 of 2021, received in this Court, shall be
remitted to the trial court forthwith for compliance of the
aforesaid direction and along with the evidence, which is
directed to be forwarded in the above clause, the R & P
shall also be remitted back to this Court.
g) We direct the Registrar (Judicial) to communicate this
order to the trial court in addition to the communication
by the learned APP.
h) Parties to act on the authenticated copy of this order.”
15. Pursuant to the said order, the trial Court complied
with the directions. The evidence of PW-17 Datta Mali and PW-18
Vinodkumar Shahagadkar was recorded. They were extensively
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cross-examined. After that, additional statement of the accused
under Section 313 of Cr.P.C. was also recorded. The record and
proceedings were sent back to this Court.
16. When the matter was called out, the learned counsel
for the original accused, at the outset submitted that in view of the
recent Supreme Court judgment, the matter is required to be
remanded back. She submitted that earlier Division Bench had
passed the order in Interim Application No.2712/2024 on
29.7.2024 directing recording of further evidence and putting up
additional questions under Section 313 of Cr.P.C. to the accused.
After that the Hon’ble Supreme Court has considered exactly the
same issue in the case of Irfan alias Bhayu Mevati Vs. State of Madhya
Pradesh1. It was decided on 16.1.2025. She submitted that the
consideration of legal aspects and the factual position in that case
was strikingly similar to the facts and legal issues involved in the
present case before us.
17. Considering the submissions of learned counsel
appearing for the accused, we heard learned APP and the learned
counsel for the Respondent No.2 on the question as to whether we
should hear the Appeal and the Confirmation Case on the basis of
1 2025 SCC OnLine SC 359
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the record and proceedings which are available with us or whether
we should remand the matter back.
18. At the outset, it must be noted that not only the learned
counsel for the accused but even the learned APP and the learned
counsel for the Respondent No.2 made the same submissions that
the observations of the Hon’ble Supreme Court in the case of Irfan
alias Bhayu Mevati are applicable to the present case and as per the
directions issued by the Hon’ble Supreme Court in that case; the
same procedure will have to be adopted by this Court in the
present case. In the backdrop of these consistent submissions made
by all the learned counsel for the contesting parties, it is necessary
to refer to the facts and legal propositions in Irfan alias Bhayu
Mevati‘s case.
19. In Irfan alias Bhayu Mevati‘s case before the Hon’ble
Supreme Court, two accused Irfan and Asif were convicted by the
trial Court for commission of offences punishable under Sections
363, 366-A, 307 of IPC and under Section 376(DB) of the Criminal
Law (Amendment) Ordinance, 2018. The major sentence of capital
punishment was imposed for commission of the offence punishable
under Section 376(DB) of the Criminal Law (Amendment)
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Ordinance, 2018. In that case, PW-10 had seen the accused taking
away the victim. He had identified the accused in the test
identification parade. The victim also identified both the accused
from the albums containing photographs of the accused. 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, had dispatched these articles to the FSL for DNA analysis.
The accused were also subjected to medical examination and their
blood samples, semen slides, and hair were collected. The accused
were convicted and sentenced by the trial Court. The High Court
dismissed the criminal appeals filed by the accused and a reference
forwarded by the trial Court was answered in the affirmative
confirming the capital punishment. Before the Hon’ble Supreme
Court the accused preferred Interim Application No.98928/2022
under Section 391 Cr.PC read with Article 142 of the Constitution
of India seeking complete laboratory documents and for
examination of expert witnesses. Paragraph-12 of the said
judgment reads thus :
“12. The appellants have preferred an I.A. No. 98928 of 2022
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under Section 391 CrPC read with Article 142 of the
Constitution of India seeking complete laboratory documents
and for examination of expert witnesses. The prayer made in
the application reads: –
“A. Direct Ld. 2nd ADJ/ Special Judge POCSO, Mandsaur, to
summon and allow examination in chief, as well as allow
cross-examination by counsel for the Applicant, of Dr.
Anil Kumar Singh, Scientific Officer, and Assistant
Chemical Examiner, Govt of Madhya Pradesh, FSL Sagar
who would be competent to testify to the methodology,
analysis, and conclusions of the DNA Report;
B. Direct Ld. 2nd ADJ/ Special Judge POCSO, Mandsaur, to
allow such cross-examination by counsel for the
Applicant, by calling for and with the aid of the complete
laboratory documentation in relation to the report dated
11.07.2018 of FSL Sagar, bearing no./DNA/1078, 1087,
and 1132 /2018 filed in ST 88 of 2018 before the Ld. 2nd
ADJ/ Special Judge POCSO, Mandsaur, including but not
limited to copies of the following documents in the
present case:
i. All laboratory documentation including worksheets,
bench notes, and equipment log sheets related to the
tests conducted and methods used for extraction,
quantification, amplification, and genotyping for all
the articles received;
ii. Details and complete laboratory documentation of
tests conducted and results of the tests;
iii. Electropherograms for DNA profiles and electronic
raw data (.fsa) obtained from all articles received,
allelic ladders, and control samples used;
iv. Working procedure manuals including DNA manual
and Serology manual used in examination of all
exhibits received;
v. Details of kits used for DNA extraction,
quantification, amplification, and genotyping in the
case along with manuals of such kits; and
vi. Complete documentation of the chain of custody of
all the Articles sent for examination to FSL Sagar,
with details of the packaging seals and sample seals
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used.
C. Direct the trial Court to examine the Applicant under
Section 313 CrPC in respect of such additional evidence.”
The accused therein had raised certain grounds as is
reflected in that judgment. Those grounds were as follows :
1. Appellant did not have an adequate opportunity to
challenge the DNA report.
2. Substantive issues with the DNA report which make
the report unreliable.
3. Lack of serological examination to identify the body
fluid in item W.
4. The DNA report (ex. 157) is incomplete and cannot be
relied upon in the absence of underlying reasons.
5. The DNA report (ex. 157) has not been proved by the
DNA expert.”
. It was argued that the DNA report was proved by
PW-31 Rakesh Mukati, the Superintendent of Police. The expert
was not examined. PW-31 Rakesh Mukati did 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. It was also argued that given the absence of the
DNA experts who conducted the examination, the accused therein
was prohibited from cross-examining on the scientific and technical
aspects of DNA profiling, which goes to the foundation of the DNA
evidence. Considering all these grounds, the Hon’ble Supreme
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Court made certain observations. The relevant paragraphs are as
follows :
“22. It is an admitted position that the DNA profiling report
(Exhibit-157) was formally exhibited by the
Superintendent of Police(PW-31) in his evidence. None
of the scientific experts involved in the process of
conducting the DNA profiling examination and issuing
the report have been examined by the prosecution.
23. 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.”
20. Learned counsel for the accused Ms.Rebecca Gonsalvez
specifically emphasized on the observations in paragraph-29 of the
aforesaid judgment of the Hon’ble Supreme Court, which reads
thus :
“29. 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 failure of the trial
Court to ensure the deposition of the scientific experts
while relying upon the DNA report, has definitely led to
the failure of justice thereby, vitiating the trial.”
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21. Thus, it can be seen that the observations of the
Hon’ble Supreme Court on the legal issues, in particular, about the
DNA reports and other C.A. reports, are squarely applicable to the
present case. A clear observation of the Hon’ble Supreme Court, on
which we are basing our order, are mentioned in paragraph-29;
and at the cost of repetition considering the importance of that
observation, we are repeating the same as follows :
“The failure of the trial Court to ensure the deposition of
the scientific experts while relying upon the DNA report,
has definitely led to the failure of justice thereby, vitiating
the trial.”
22. The learned counsel for the accused, therefore,
submitted that the Hon’ble Supreme Court has laid-down that in
such cases the trial itself is vitiated and once the trial is vitiated
there was no question of confirming the sentence imposed through
the operative part of the judgment and order passed by the trial
Court. Even the learned APP and the learned counsel for the
Respondent No.2 also made the same submissions; and according
to even both of them this particular observation is quite clear and
unambiguous; and that is the only course open for this Court to
follow.
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23. In view of the observations made by the Hon'ble
Supreme Court in Irfan alias Bhayu Mevati's case and the
submissions made by all the learned counsel, which are acceptable
to us, we are of the considered opinion that it would be necessary
to remand back the matter. Since this is a case of capital
punishment, the Court has to ensure that all the opportunities must
be afforded to the accused to defend himself. The accused must
get one opportunity to argue all the aspects in respect of the
additional evidence before the trial Court itself so that he does not
lose one Forum. The trial Court can appreciate the additional
evidence in the background of the other evidence to consider the
effect of the entire evidence cumulatively. If this course is not
adopted then the accused would lose his valuable right from
getting the entire evidence appreciated by the first Forum i.e. the
trial Court. We are ensuring that this does not happen and he gets
full opportunity to raise all the grounds based on additional
evidence before the first Forum i.e. the trial Court.
24. The next question would be whether a re-trial should
be ordered or the trial Court be directed to re-hear the arguments.
Even this question is settled by the Hon’ble Supreme Court in Irfan
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alias Bhayu Mevati‘s case. Paragraphs-31, 32 and 33 in that respect
are important. They are as follows:
“31. Pursuant to the testimony of the scientific experts
being recorded, the accused shall be again questioned
under Section 313 CrPC in context to the fresh
evidence. They shall be provided a fair opportunity of
leading defence evidence. Thereafter, the trial Court
shall proceed to re-hear the arguments and decide the
case afresh as per law. The entire process as directed
above, shall be completed within a period of four
months from the date of receipt of this order.
32. That the discussion made above is confined to the
issue of the right of the accused to seek examination
of the scientific experts connected with the DNA
report and the same shall not be taken to be a
reflection on the merits of the matter, which shall be
considered and gone into, uninfluenced by any
observations made by us in this order.
33. Consequently, the judgment dated 21st August, 2018,
passed by the trial Court and the judgment dated 9th
September, 2021, passed by the High Court are
quashed and set aside.”
25. The Hon’ble Supreme Court in Irfan alias Bhayu Mevati’s
case had directed the trial Court to re-hear the arguments and
decide the case afresh as per law after the scientific experts were
examined and after the accused was asked questions under Section
313 of Cr.P.C.. The Hon’ble Supreme Court had not directed the
trial Court to conduct the trial de novo by wiping out the evidence
which is already recorded.
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26. We are inclined to adopt the same procedure. The trial
Court can be directed to undertake the similar exercise instead of
directing the complete re-trial of recording the entire evidence
again. As a result of the above discussion, the following order is
passed:
:: O R D E R ::
i. The judgment and order dated 28.2.2022 passed by the
learned Special Judge under POCSO Act, Pune in Special
Criminal Case (Child) No.285/2021, convicting and
sentencing the original accused – Sanjay Baban Katkar , is
set aside.
ii. The trial Court shall proceed to re-hear the arguments and
decide the case afresh as per law. It shall be decided as
expeditiously as possible.
iii. It is made clear that the trial Court shall decide the trial
without being influenced by any observations made by this
Court in these proceedings.
iv. The record and proceedings be sent back to the trial Court
urgently.
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v. The accused – Sanjay Baban Katkar shall be produced
before the trial Court on 12.8.2025. The learned counsel
representing the accused shall also remain present before
the trial Court on that date for further directions from the
trial Court.
vi. Criminal Confirmation Case No.3/2022 and Criminal
Appeal No.1313/2023 are disposed of in aforesaid terms.
( SHYAM C. CHANDAK, J.) (SARANG V. KOTWAL, J.)
Deshmane (PS)
Digitally signed
by
PRADIPKUMAR
PRADIPKUMAR PRAKASHRAO
PRAKASHRAO DESHMANE
DESHMANE Date:
2025.07.23
15:19:28
+0530
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