Arun Kumar Chandela vs The State Of Madhya Pradesh
2023 Latest Caselaw 9683 MP

    IN THE HIGH COURT OF MADHYA PRADESH
                 AT JABALPUR
                     CRA No. 2682 of 2021
        (ARUN KUMAR CHANDELA Vs THE STATE OF MADHYA PRADESH)


Dated : 27-06-2023
      Shri Shreyas Pandit - Advocate for the appellant.

      Shri Ajay Shukla - Government Advocate for the

respondent/State.

Heard on IA No. 6350/2021- an application under Section

389(1) of the Cr.P.C. for suspension of remaining jail sentence and

grant of bail to appellant - Arun Kumar Chandela arising out of

judgment dated 09.03.2021 delivered in ST No.30/2018 by 1st

Additional Sessions Judge, Mandla.

The appellant has been convicted under Section 302 of IPC

and sentenced to undergo R.I. for life imprisonment with fine of

Rs.20,000/- and Section 201 of IPC and sentenced to undergo R.I.

for 3 years with fine of Rs. 5,000/- with default stipulations.

Learned counsel for the appellant submits that as per

prosecution story, the appellant had an affair with the sister of the

deceased Deepak Chandela. Appellant visited the house of Deepak

Chandela about 2-3 months before the date of incident

(22.01.2018). Deepak Chandela and his father abused and

assaulted him because of which he came back. Because of this animosity, the appellant must have murdered the deceased person.

Deepak Chandela left his house to visit Nainpur on

22.01.2018 but did not come back. On 23.01.2018, uncle of the

deceased informed the father of the deceased that dead body of

Deepak Chandela is lying in the agricultural field of Shiv Verma.

The police completed the investigation and the Court below

opined that there is no eye witness to the incident. The case of

prosecution is mainly based on extra judicial confession of

Upendra Chandela (PW-1) and DNA report which is discussed

by the Court below in para-78 of the impugned judgment.

Shri Shreyas Pandit, learned counsel for the appellant

submits that the Court below has erred in basing its conclusion on

extra judicial confession of Upendra Chandela (PW-1). By placing

reliance on his statement recorded under Section 164 of Cr.P.C.

(Ex. P/1), it is urged that he did not depose before the Magistrate

that appellant informed him that he murdered the deceased person.

In the Court, Upendra Chandela (PW-1) took a diametrically

opposite stand in his examination-in-chief. However, when he was

confronted with his previous statement recorded under Section 164

of Cr.P.C. (Ex. P/1), he admitted that his previous statement Ex.

P/1 is correct and he has taken a U-turn in the Court because of the

pressure of police. The Court below has failed to consider the

cross-examination part of the statement of Upendra Chandela

(PW-1). Thus, this statement of Upendra Chandela (PW-1) is not trustworthy and does not inspire confidence.

So far conclusion drawn on the basis of DNA report is

concerned, by placing reliance on (2023) 1 SCC 83 (Rahul Vs.

State of Delhi), Shri Shreyas Pandit, Advocate submits that DNA

report is the conclusion of the exercise undertaken by

Investigation Agency. The Exercise begins with the disclosure of

the accused, seizure of the incriminating material, proper sealing

with description of incriminating material, keeping and sending of

incriminating material in safe custody to FSL for its scientific

examination.

Criticizing the procedure adopted by the prosecution

agency, it is argued that a conjoint reading of statement of the

R.K. Singh (PW-12) and Abhinav Singh, I.O. (PW-13) it is clear

that no 'Malkhana' register was produced to establish that

incriminating/seized material was kept in the safe custody. This

was important submits Shri Shreyas Pandit because admittedly the

incriminating material namely pieces of stick, pieces of stone and

appellant's cloths were seized on 24.01.2018 and were sent to

FSL for examination on 13.02.2018. Between these two dates,

where these materials were kept and whether they were kept in

safe custody could not be established by the prosecution.

Shri Shreyas Pandit, learned counsel for the appellant

further submits that as per the story, one piece of wood was found

near the dead body of the deceased whereas another piece of wood was allegedly recovered, at the instance of appellant, from a

different place. The I.O. admitted that he is unable to state whether

both the pieces of wood are of the same wood. In order to separate

the wheat from chaff, the appellant preferred an application before

the Court below to (1) call an expert to give opinion whether

above two pieces of wood are pieces of same wood. (2) to get

opinion relating to the pieces of stone. In addition, the appellant

prayed for requisitioning the expert who has prepared the DNA

report. A conjoint reading of Sections 233 and 293 of Cr.P.C.

enjoins the Court to undertake the said exercise and appellant

raised his justifiable objection based on valid reasons and

therefore, Court below has committed an error in not

requisitioning the expert and rejected the said application

mechanically. This runs contrary to the judgment of Supreme

Court in Rahul (Supra). Heavy reliance is placed on paras 38, 42

and 45 which read thus :-

"38. It is true that PW-23 Dr. B.K. Mohapatra, Senior Scientific Officer (Biology) of CFSL, New Delhi had stepped into the witness box and his report regarding DNA profiling was exhibited as Ex. PW-23/A, however mere exhibiting a document, would not prove its contents. The record shows that all the samples relating to the accused and relating to the deceased were seized by the Investigating Officer on 14.02.2012 and 16.02.2012;

and they were sent to CFSL for examination on 27.02.2012. During this period, they remained in the Malkhana of the Police Station. Under the circumstances, the possibility of tampering with the samples collected also could not be ruled out. Neither the Trial Court nor the High Court has examined the underlying basis of the findings in the DNA reports nor have they examined the fact whether the techniques were reliably applied by the expert. In absence of such evidence on record, all the reports with regard to the DNA profiling become highly vulnerable, more particularly when the collection and sealing of the samples sent for examination were also not free from suspicion.

42. It may be true that if the accused involved in the heinous crime go unpunished or are acquitted, a kind of agony and frustration may be caused to the society in general and to the family of the victim in particular, however the law does not permit the Courts to punish the accused on the basis of moral conviction or on suspicion alone. No conviction should be based merely on the apprehension of indictment or condemnation over the decision rendered. Every case has to be decided by the Courts strictly on merits and in accordance with law without being influenced by any kind of outside moral pressures or otherwise.

45. In the instant case, material witnesses examined by the prosecution having not been either cross-examined or adequately examined, and the trial court also having acted as a passive umpire, we find that the Appellants-accused were deprived of their rights to have a fair trial, apart from the fact that the truth also could not be elicited by the trial court. We leave it to the wisdom and discretion of the trial courts to exercise their powers under Section 165 of the Indian Evidence Act for eliciting the truth in the cases before them, howsoever heinous or otherwise they may be."

(Emphasis Supplied)

In nutshell, learned counsel for the appellant submits that

Court below has mechanically held him guilty and convicted him.

Since the final hearing of this appeal is not possible in near future,

the remaining jail sentence of the appellant may be suspended.

Shri Ajay Shukla, Government Advocate for the State

supported the impugned judgment on the basis of extra judicial

confession and DNA report.

We have heard the learned counsel for the parties at length.

Considering the aforesaid factual backdrop and without

expressing any conclusive opinion on merits, we deem it proper to

suspend the remaining jail sentence of the appellant.

Accordingly, aforesaid IA is allowed.

Subject to depositing the fine amount, if not already

deposited, the remaining jail sentence of the appellant- Arun Kumar Chandela is hereby suspended and it is directed that the

appellant be released on bail on his furnishing a personal bond

for a sum of Rs.50,000/- (Rupees fifty thousand only) with one

solvent surety of the like amount to the satisfaction of the trial

court with a further direction to appear before the concerning trial

court Mandla on 04.09.2023 and also on such other dates, as may

be fixed by the trial court in this regard during the pendency of

this appeal.

C c as per rules.

  (SUJOY PAUL)                      (ACHAL KUMAR PALIWAL)
     JUDGE                                  JUDGE




L.R.