Though Author Of CFSL Report Need Not Be Examined, It Is Not Admissible In Evidence Unless It Is Exhibited In Trial By A Witness : Delhi High Court

The observation was made by a Single Bench of Justice Vibhu Bakhru while setting aside the conviction of a man under Section 307 of IPC for firing bullets upon four police officers, during an alleged encounter.

The Judge noted that in this case two CSFL Reports pertaining to recovery of bullets allegedly fired by the accused, were neither tendered in evidence nor exhibited.

In this backdrop, it was observed,

"The Trial Court had taken note of a report dated 16.10.2015 as evidence that the bullets recovered from the bullet proof jackets were fired from the weapon that had been recovered from the accused. However, that report was neither tendered in evidence nor exhibited.

Although the said report may be admissible under Section 293 of the Cr.PC without the author testifying to the contents thereof, however, the said report was required to be tendered and could not be taken note of without the same being tendered and exhibited."

Section 293 of CrPC provides that any document purporting to be a report under the hand of a Government scientific expert, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under CPC, may be used as evidence in any inquiry, trial or other proceeding under this Code.

The Court held that such report may be used as evidence only when it is tendered into evidence or is exhibited by any witness.

Reliance was placed upon Dharampal and Anr. v. State, where a Division Bench of the High Court had held,

"It is true that in view of Section 293 of the Criminal Procedure Code, the report in question need not have been proved by summoning the author thereof, but that does not mean, that during trial nobody had to tender the same in evidence and have the same exhibited by deposing that either he himself went to the FSL Laboratory and collected the report in question or deposing that during investigation he obtained the report in question and that the same pertains to the investigation conducted in the case which was being tried."

Background

The Petitioner in this case had been convicted by the Trial Court in November 2016 for the offences punishable under Sections 186, 353 and 307 of IPC and Sections 25 and 27 of the Arms Act, 1959.

The allegation against the Petitioner was that he involved in an illegal business of supplying arms and ammunitions and a team comprising of ten officials was formed to raid. However, it was the prosecution's case that the Petitioner sensed the Police's presence and tried to escape the scene. On being intercepted, it was alleged, the Petitioner open fired on four officers who had gone after him.

In appeal, the Petitioner claimed that he had been falsely implicated and the police had planted their illegal weapons and framed him.

Findings

The Bench noted in this case that the examinations-in chief of the Police officers as witnesses was absolutely identical.

"The examination-inchief of the witnesses, which are identical both in their construct and content, would in normal circumstances lead to a doubt that the witnesses may have rehearsed their testimony in consultation with one another," the Court said.

Further, it suspiciously noted that only those 4 members of the raiding team, who were wearing bullet proof vests, were hit by the Petitioner, that too on the body parts covered by the vest.

"The appellant's conviction under Section 307 of the IPC is premised on the basis that he had fired four shots at the police officials. The bullets fired by him had struck each of the said officials on their chest region of the bullet proof vest, which they were wearing. However, none of them had been hurt, obviously, on account of them wearing the bullet proof vest…the examination-in-chief of all the said four police officials are identical. It is obvious that the Trial Court has merely copied the examination-in-chief of one of the said witnesses as the examination-in-chief of the other three witnesses as well," the Court added.

Other irregularities recorded in the facts of the case are as follows:

Prosecution had decided not to examine any of the six police officials that had formed a part of the raiding team regarding the events leading to the apprehension of the appellant:

"The site plan also indicates that the spot where the encounter took place was straight ahead from where the raiding team was deployed. According to the prosecution, the entire team had left the spot to apprehend the appellant. However, there is no explanation as to why the other members of the raiding team did not immediately proceed to the spot, even though it was at a visible distance from where they were deployed. Even if the team had walked to the spot, they would have covered the distance in less than ten minutes."

Even though the raiding team was deployed at a spot, which was not isolated, no public persons were joined as independent witnesses to the proceedings:

"It is well settled that evidence of the police officers cannot be rejected only on the ground that it is not supported by independent witnesses. However, non-examination of independent witnesses does cast an added duty on the court to scrutinize the evidence of the police officers (Kalpnath Rai v. State, AIR 1998 SC 201)."

In view of the above, the appeal was allowed and the Petitioners conviction under Section 307 IPC was set aside. The Court added,

"It is settled law that the presumption of innocence must be maintained until the accused is found guilty. Therefore, even though the appellant may be involved in other cases, the same could not be considered as a factor to award a harsher sentence because the appellant had not been convicted in any of the cases at the material time. This Court is of the view that the Trial Court erred in considering that the appellant was also involved in other cases, while considering the quantum of sentence."

The appellant was represented by Advocates Akshay Bhandari and Digvijay Singh.

State by APP Amit Gupta.

Case Title: Chhotu Kumar @ Chote Fauji v. State (Govt. Of NCT of Delhi)

Click Here To Download Order

Read Order