NAVEEN @ AJAYversusTHE STATE OF MADHYA PRADESH

                 [2023] 14 S.C.R. 977 : 2023 INSC 936



                           CASE DETAILS
                          NAVEEN @ AJAY
                                    v.
               THE STATE OF MADHYA PRADESH
                (Criminal Appeal Nos. 489-490 of 2019)
                          OCTOBER 19, 2023
  [B. R. GAVAI, PAMIDIGHANTAM SRI NARASIMHA AND
            PRASHANT KUMAR MISHRA, JJ.]
                            HEADNOTES
    Issue for consideration: Whether appellant was afforded a fair trial;
whether he was deprived of his valuable legal rights.
      Penal Code, 1860 – s. 302 – Appellant was convicted and sentenced
for committing rape and murder of 3 months old girl child – His death
sentence was confirmed by the High Court – Appellant contended that
the entire trial was completed within a span of 15 days and appellant
was not afforded a fair trial – Propriety:
      Held: The Order-sheet would clearly indicate that the trial was
conducted in a hurried manner without providing ample and proper
opportunity to the defence counsel, who was engaged through legal aid,
to prepare himself effectively – It is also to be noted that copies of DNA
Report, FSL Report and Viscera Report were not submitted along with
the charge-sheet and were presented before the Court during the course
of trial – When the reports were challenged by the accused before the
High Court, it was brushed aside by observing that even if the authors of
the reports were not called for evidence, in terms of Section 293 Cr.P.C.,
the reports are not open to question as the defence had an opportunity to
cross-examine the authors of the reports during the trial – High Court was
not correct in saying that the defence had an opportunity to cross-examine
the experts – Accused, who was in jail and defended by a counsel from
legal aid, was compelled by the Trial Court to produce defence witness
of his own in one day – It was impossible for the accused himself to
produce doctors, the authors of the Reports (Ex.P-72), in one day because
                                     977
978           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


the said experts are government servants and could not have attended the
Court at the request of an accused in jail – There was no opportunity, in
the real sense, to the appellant to cross-examine the experts – Therefore,
the Judgment of conviction and sentence passed by the Trial Court and
affirmed by the High Court is set aside and the matter is remitted back
to the trial court for de novo trial by affording proper opportunity to the
appellant to defend himself. [Paras 8, 10, 21, 22]
      Criminal Trial – Fair Trial – Definition of:
       Held: There can be no analytical, all-comprehensive or exhaustive
definition of the concept of a fair trial, and it may have to be determined
in seemingly infinite variety of actual situations with the ultimate object
in mind viz. whether something that was done or said either before or at
the trial deprived the quality of fairness to a degree where a miscarriage of
justice has resulted – Each one has an inbuilt right to be dealt with fairly
in a criminal trial – Denial of a fair trial is as much injustice to the accused
as is to the victim and the society – Fair trial obviously would mean a trial
before an impartial judge, a fair prosecutor, and the atmosphere of judicial
calm – Fair trial means a trial in which bias or prejudice for or against
the accused, the witnesses, or the cause which is being tried is eliminated
– It is inherent in the concept of due process of law, that condemnation
should be rendered only after the trial in which the hearing is a real one,
not sham or a mere farce and pretence – Since fair hearing requires an
opportunity to preserve the process, it may be vitiated and violated by an
overhasty, stage-managed, tailored and partisan trial – It is thus settled
that a hasty trial in which proper and sufficient opportunity has not been
provided to the accused to defend himself/herself would vitiate the trial
as being meaningless & stage-managed – It is in violation of the principle
of judicial calm. [Para 16]
      Principle/Doctrine – Judicial Calm – Discussed. [Paras 16, 17]
       LIST OF CITATIONS AND OTHER REFERENCES
     Bashira vs. State of U.P. AIR 1968 SC 1313 : [1969] SCR 32; Zahira
Habibulla H. Sheikh & Anr. Vs. State of Gujarat & Ors (2004) 4 SCC 158
: [2004] 3 SCR 1050; Anokhilal vs. State of Madhya Pradesh (2019) 20
    NAVEEN @ AJAY v. THE STATE OF MADHYA PRADESH                      979


SCC 196: Rahul v. State of Delhi, Ministry of Home Affairs & Anr (2023) 1
SCC 83; Manoj & Ors. Vs. State of M.P (2023) 2 SCC 353: Anil @ Anthony
Arikswamy Joseph Vs. State of Maharashtra (2014) 4 SCC 69 : [2014] 3
SCR 34 – relied on.
        OTHER CASE DETAILS INCLUDING IMPUGNED
               ORDER AND APPEARANCES
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
489-490 of 2019.
     From the Judgment and Order dated 24.12.2018 of the High Court
of Madhya Pradesh at Indore in CRR No. 3 of 2018 and CRLA No.3830
of 2018.
      Appearances:
    B H Marlapalle, Sr. Adv., Bhavesh Seth, Avinish Kumar Saurab, Harini
Raghupathy, Rajat Mittal, Advs. for the Appellant.
      Pashupathi Nath Razdan, Ms. Smriti Razdan, Ms. Maitreyee Jagat
Joshi, Pulkit Agarwal, Astik Gupta, Ms. Akanksha Tomar, Advs. for the
Respondent.
        JUDGMENT / ORDER OF THE SUPREME COURT
                             JUDGMENT
      PRASHANT KUMAR MISHRA, J.
      These appeals would call in question, the impugned Judgment of
conviction and sentence dated 24.12.2018 passed by the High Court of
Judicature of Madhya Pradesh at Indore in Criminal Reference No. 03 of
2018 and Criminal Appeal No. 3830 of 2018 upholding the conviction of the
appellant under Sections 363, 366-A, 376(A), 376(2)(i), 376(2)(j), 376(2)
(k), 376(2)(m), 302 and 201 of the Indian Penal Code1, and Section 5(m),
5(i) read with Section 6 of Protection of Children from Sexual Offences Act
20122, and confirming the sentence of death imposed on the appellant by
the Fifth Additional Sessions Judge, Indore (MP) in Sessions Trial No. 87


1    (for short, ‘IPC’)
2    (for short, ‘POCSO’)
980               SUPREME COURT REPORTS                   [2023] 14 S.C.R.


of 2018 arising out of Crime No. 50 of 2018 dated 20.04.2018, registered
at P.S. Sarafa, Indore, Madhya Pradesh.
      2. The appellant has been convicted and sentenced for committing
rape and murder of 3 months old girl child. The appellant was tried for the
afore-mentioned offences on the allegation that complainant-Sunil and his
wife were engaged in the business of selling balloons and they were residing
at Rajawada, Indore (MP). On 20.04.2018, complainant-Sunil along with
his family members were sleeping at a platform near Rajawada, at about
03:00 a.m., his daughter (deceased) aged about three months and four days
started weeping on which her mother Sonubai fed milk, thereafter, the
deceased slept. At about 05:00 a.m. when complainant-Sunil and his family
members woke up, they did not find the deceased at the place where she was
sleeping. Despite search, they could not find her. Thereafter, Sunil lodged
a missing report of his daughter at Police Station, Sarafa, Indore registered
as Crime No. 50 of 2018 (Ex.P-7). At about 13.27 hours, one Mr. Deepak
Jain (PW-5) informed the Police Station MG Road, Indore (MP) that one
dead body of a girl of about three months old has been found at Shreenath
Palace Society, Indore. MERG intimation was recorded under Section 174
of the Code of Criminal Procedure, 19733. On coming to know about the
discovery of a dead body, Sunil went to the spot and identified the deceased
as his daughter. Postmortem of the dead body was conducted, and the Report
thereof was submitted by Dr. Poonam Mathur (PW-20) vide Ex. P-53. After
completing the investigation including collection of evidence from CCTV
footage, recovery of incriminating articles, chemical analysis report etc.,
the charge-sheet was filed on 27.04.2018. The DNA report was produced
later during the trial.
       3. On the basis of evidence brought on record during the course of
trial, wherein the prosecution examined 29 witnesses and also proved 78
documents including expert opinion/chemical report/FSL report, the Trial
Court convicted the appellant for the subject offences against which the
appellant preferred appeal before the High Court. The Sessions Court also
sent reference to the High Court under Section 396 Cr.P.C. for confirmation
of death sentence. The High Court has confirmed the death sentence and


3     (for short, ‘Cr.P.C.)
 NAVEEN @ AJAY v. THE STATE OF MADHYA PRADESH                                 981
          [PRASHANT KUMAR MISHRA, J.]

resultantly the Criminal Appeal preferred by the appellant has also been
dismissed by the impugned Judgment.
      4. We have heard learned counsel for the parties. They have advanced
lengthy arguments and have taken us through the entire evidence on record.
However, considering the nature of the order, we propose to pass, we are
not referring to the details of the evidence on record.
       5. At the outset, learned senior counsel Mr. B.H. Marlappalle assisted
by Mr. Rajat Mittal, Advocate-on-Record for the appellant argued that the
entire trial for such serious offences has been completed within a span of
15 days i.e. from 27th April, 2018 (when the charge-sheet was filed) to
12th May, 2018 (when the Judgment was delivered by the Sessions Court).
Referring to the order-sheet recorded by the trial court from 27th April, 2018
to 12th May, 2018, learned senior counsel would submit that the appellant
has not been afforded a fair trial depriving him of his valuable legal rights.
It is also argued that the DNA report (Ex.P-72) has not been proved in
accordance with law. The forensic experts were not examined during the
trial, nor the report was put to the accused for admission or otherwise.
        6. Per contra learned counsel for the respondent-State, while
supporting the impugned Judgment of the High Court, would submit that
the appellant having not raised any objection regarding hasty completion of
trial or denial of a fair trial, it is not open for the appellant to argue, at this
stage, that the trial has not been conducted properly and fairly. He would
submit that in view of clinching evidence against the appellant which are
scientific in nature, the Sessions Court and the High Court as well, have
not committed any illegality in convicting and sentencing the appellant.
     7. To appreciate the arguments regarding denial of fair trial, we have
gone through the complete order-sheet recorded by the trial court from 27th
April, 2018 to 12th May, 2018. The gist whereof is reproduced hereunder: -
      27.04.2018
       Charge-sheet filed.
       Cognizance taken.
       Charge-sheet supplied to the accused. He requested for
         appointment of an advocate through legal aid.
982          SUPREME COURT REPORTS                     [2023] 14 S.C.R.


       Advocate from legal aid appointed on the same day.
       The case was posted on the same day, after some time, for
         arguments on charge.
       Later on, the case was posted for next day for hearing arguments
         on charge.
      28.04.2018
       Arguments on charge heard, charges framed.
       Accused was asked as to whether he admits any documents
         as required under Section 294 of Cr.P.C. to which the accused
         refused to admit any document.
       District Public Prosecution Officer was directed to submit trial
         program today itself.
       Prosecution submitted trial program for examining 34 witnesses.
      01.05.2018
       PW Nos. 1 to 4 examined.
       The prosecution was directed to keep its remaining witnesses
         present (summons not issued).
      02.05.2018
       PW Nos. 5 to 10 examined.
       The prosecution was directed to keep its remaining witnesses
         present (summons not issued).
      03.05.2018
       PW Nos. 11 to 15 examined.
       Two witnesses discharged without examination.
       The prosecution was directed to keep its remaining witnesses
         present (summons not issued).
      04.05.2018
       PW Nos. 16 to 20 examined.
NAVEEN @ AJAY v. THE STATE OF MADHYA PRADESH                    983
         [PRASHANT KUMAR MISHRA, J.]

   FSL report received from State Forensic Science Laboratory,
     Sagar, Viscera Report of deceased received from the Regional
     Forensic Science Laboratory, Jhumarghat, Rau, Indore and DNA
     report received from the State Forensic Science Laboratory,
     Government of M.P. produced by the prosecution.
   The prosecution was directed to keep its remaining witnesses
     present through summons tomorrow.
  05.05.2018
   PW Nos. 21 to 25 examined.
   No other witnesses were presented.
   Remaining Witnesses were directed to be called through
     summons.
   Witness-Sunil was directed to be called from the District Jail,
     Dhar through production warrant (this witness was never
     examined).
   The case fixed for 07.05.2023 for remaining witnesses.
  07.05.2018
   PW No. 26 examined.
   The prosecution was directed to keep its remaining witnesses
     present tomorrow.
  08.05.2018
   PW Nos. 27 to 29 examined.
   The prosecution closed its evidence.
   The case was posted for accused examination under Section 313
     of Cr.P.C. tomorrow.
  09.05.2018
   The accused examined under Section 313 of Cr.P.C.
   The accused requested to provide an opportunity to produce
     defence witness on his behalf.
   He was directed to keep the defence witness present tomorrow.
984          SUPREME COURT REPORTS                         [2023] 14 S.C.R.


      10.05.2018
       Defence witness was not present.
       Defence closed.
       Parties were directed for final arguments today itself (after
         recess).
       Final arguments heard.
       The case was posted for Judgment on 12.05.2018.
      12.05.2018
       Judgment pronounced.
       The accused and his advocate heard on the question of sentence.
       The case posted after some time for hearing the accused on
         sentence (order-sheet does not record that copy of the Judgement
         supplied to the accused).
       After some time, sentence pronounced.
       Copy of the Judgment provided to the accused.
      8. A close reading and scrutiny of the order-sheet recorded by the
Trial Court, as stated above in brief, would manifest that the accused was
not provided an opportunity to engage a counsel of his choice and instead
his submission was recorded that he desires to be defended by a counsel
appointed through legal aid. From the very beginning, the trial proceeded
on day-to-day basis except on Saturday and Sunday and all the witnesses
examined by the prosecution were produced without issuing summons. One
witness-Sunil was directed to be produced from District Jail, Dhar through
production warrant. However, this witness was never examined nor there is
any indication that this witness has been given up. It is this witness (Sunil)
who was named as a suspect in the FIR. Non-examination of this witness
has therefore left a crucial gap in the prosecution case. It is significant to
note that the FSL report, Viscera report and DNA report were not submitted
along with the charge-sheet. The same were presented before the Trial Court
on 04.05.2018. The accused was never asked as to whether he admits the
documents, as required under Section 294 of Cr.P.C.. Neither any witnesses
    NAVEEN @ AJAY v. THE STATE OF MADHYA PRADESH                           985
             [PRASHANT KUMAR MISHRA, J.]

were called to prove these reports. After the prosecution case was closed
on 08.05.2018, the accused examination was conducted on the very next
day i.e. on 09.05.2018 and thereafter on the next day i.e. on 10.05.2018,
the case was fixed for examination of defence witness. It requires special
notice that the accused was in jail and was not defended by a counsel of
his choice but by a legal aid counsel. He was not in a position to present
the witness himself, yet he was directed to keep his witnesses present on
the next day i.e. on 10.05.2018. On this date, he could not produce his
witnesses, therefore, his defence was closed, and the case was posted for
final arguments after recess.
      9. In a case of this nature, the trial was conducted on day-to-day basis
and the order-sheet does not record that copies of statement of witnesses
were supplied to the accused or his counsel, it is not known as to whether
the defence counsel was supplied all the requisite material basing which he
could have advanced his final arguments.
     10. The Order-sheet would thus clearly indicate that the trial was
conducted in a hurried manner without providing ample and proper
opportunity to the defence counsel, who was engaged through legal aid, to
prepare himself effectively. It is also to be noted that copies of DNA Report,
FSL Report and Viscera Report were presented before the Court during the
course of trial on 04.05.2018.
      11. In the matter of Bashira vs. State of U.P.4, almost similar situation,
like in the present case arose, when the trial was conducted in 13 days.
Dealing with submissions made by the accused counsel apropos lack of
sufficient opportunity to defend the accused, this Court held in paragraph
8 and 9 as follows: -
      “8. There is nothing on the record to show that, after his appointment
      as counsel for the appellant, Sri Shukla was given sufficient time to
      prepare the defence. The order- sheet maintained by the Judge seems
      to indicate that, as soon as the counsel was appointed, the charge
      was read out to the accused and, after his plea had been recorded,
      examination of witnesses began. The counsel, of course, did his best


4    AIR 1968 SC 1313
986           SUPREME COURT REPORTS                          [2023] 14 S.C.R.


      to cross-examine the witnesses to the extent it was possible for him to
      do in the very short time available to him. It is true that the record,
      also does not contain any note that the counsel asked for more time to
      prepare the defence, but that, in our opinion, is immaterial. The Rule
      casts a duty on the court itself to grant sufficient time to the counsel for
      this -purpose and the record should show that the Rule was complied
      with by granting him time which the court considered sufficient in the
      circumstances of the case. In this case, the record seems to show that
      the trial was proceeded with immediately after appointing the amicus
      curiae counsel and that, in fact, if any time at all was granted, it was
      nominal. In these circumstances, it must be held that there was no
      compliance with the requirements of this Rule.
      9. In this connection, we may refer to the decisions of two of the High
      Courts where a similar situation arose. In Re: Alla Nageswara Rao,
      Petitioner(1) reference was made to Rule 228 of the Madras Criminal
      Rules of Practice which. provided for engaging a pleader at the cost
      of the State to defend an accused person in a case where a sentence
      of death could be passed. It was held by Subba Rao, Chief Justice as
      he then was, speaking for the Bench, that:-
           “ a mere formal compliance with this Rule will not carry out the
           object underlying the rule. A sufficient time should be given to
           the advocate engaged on behalf of the accused to prepare his
           case and conduct it on behalf of his client. We are satisfied that
           the time given was insufficient and, in the circumstances, no real
           opportunity was given to the accused to defend himself.”
      This view was expressed on the basis of the fact found that the advocate
      had been engaged for the accused two hours prior to the trial. In
      Mathai Thommen v. State the Kerala High Court was dealing with a
      sessions trial in which the counsel was engaged to defend the accused
      on 02nd August, 1958, when the trial was posted to begin on 04th August,
      1958, showing that barely more than a day was allowed to the counsel
      to get prepared and obtain instructions from the accused. Commenting
      on the procedure adopted by the Sessions Court, the High Court finally
      expressed its opinion by saying:
    NAVEEN @ AJAY v. THE STATE OF MADHYA PRADESH                            987
             [PRASHANT KUMAR MISHRA, J.]

            “Practices like this would reduce to a farce the engagement of
            counsel under Rule 21 of the Criminal Rules of Practice which
            has been made for the purpose of effectively carrying out the duty
            cast on courts of law to see that no one is deprived of life and
            liberty without a fair and reasonable opportunity being afforded
            to him to prove his innocence. We consider that in cases like this
            counsel should be engaged at least some 10 to 15 days before the
            trial and should also be furnished with copies of the records.”
      In our opinion, no hard and fast rule can be laid down as to the time
      which must elapse between the appointment of the counsel and the
      beginning of the trial; but, on the circumstances of each case, the
      Court of Session must ensure that the time granted to the counsel
      is sufficient to prepare for the defence. In the present case, when
      the counsel was appointed just before the trial started, it is clear
      that there was failure to comply with the requirements of the rule of
      procedure in this behalf.”
      12. In Bashira (supra), this Court concluded that the conviction of the
appellant in a trial held in violation of Rule and the award of death sentence
will result in the deprivation of his life in breach of the procedure established
by law. Holding further that, the conviction is void because of an error in
the procedure adopted at the trial, it was directed that the accused shall be
tried afresh, and the matter be remitted back to the Sessions Court.
      13. The issue concerning importance of a fair trial was considered by
this Court in Zahira Habibulla H. Sheikh & Anr. Vs. State of Gujarat &
Ors.5 (known as ‘Best Bakery Case’) wherein this Court made the following
observations in paragraphs 38 to 40:-
      “38. A criminal trial is a judicial examination of the issues in the case
      and its purpose is to arrive at a judgment on an issue as to a fact or
      relevant facts which may lead to the discovery of the fact issue and
      obtain proof of such facts at which the prosecution and the accused
      have arrived by their pleadings; the controlling question being the


5    (2004) 4 SCC 158
988            SUPREME COURT REPORTS                         [2023] 14 S.C.R.


       guilt or innocence of the accused. Since the object is to mete out
       justice and to convict the guilty and protect the innocent, the trial
       should be a search for the truth and not a bout over technicalities
       and must be conducted under such rules as will protect the innocent,
       and punish the guilty. The proof of charge which has to be beyond
       reasonable doubt must depend upon judicial evaluation of the totality
       of the evidence, oral and circumstantial, and not by an isolated
       scrutiny.
       39. Failure to accord fair hearing either to the accused or the
       prosecution violates even minimum standards of due process of law.
       It is inherent in the concept of due process of law, that condemnation
       should be rendered only after the trial in which the hearing is a real
       one, not sham or a mere farce and pretence. Since the fair hearing
       requires an opportunity to preserve the process, it may be vitiated and
       violated by an overhasty, stage-managed, tailored and partisan trial.
       40. The fair trial for a criminal offence consists not only in technical
       observance of the frame and forms of law, but also in recognition and
       just application of its principles in substance, to find out the truth and
       prevent miscarriage of justice.”
                                                         (Emphasis supplied)
      14. In the case of Anokhilal vs. State of Madhya Pradesh,6 this Court,
after referring to Best Bakery (supra) on the issue, has held in paragraphs
21 to 23 as follows: -
       “21. In the present case, the Amicus Curiae, was appointed on
       19.02.2013, and on the same date, the counsel was called upon to
       defend the accused at the stage of framing of charges. One can say
       with certainty that the Amicus Curiae did not have sufficient time
       to go through even the basic documents, nor the advantage of any
       discussion or interaction with the accused, and time to reflect over
       the matter. Thus, even before the Amicus Curiae could come to grips
       of the matter, the charges were framed.


6     (2019) 20 SCC 196
 NAVEEN @ AJAY v. THE STATE OF MADHYA PRADESH                            989
          [PRASHANT KUMAR MISHRA, J.]

     22. The provisions concerned viz. Sections 227 and 228 of the Code
     contemplate framing of charge upon consideration of the record of
     the case and the documents submitted herewith, and after ‘hearing
     the submissions of the accused and the prosecution in that behalf’. If
     the hearing for the purposes of these provisions is to be meaningful,
     and not just a routine affair, the right under the said provisions stood
     denied to the appellant.
     23. In our considered view, the Trial Court on its own, ought to have
     adjourned the matter for some time so that the Amicus Curiae could
     have had the advantage of sufficient time to prepare the matter. The
     approach adopted by the Trial Court, in our view, may have expedited
     the conduct of trial, but did not further the cause of justice. Not only
     were the charges framed the same day as stated above, but the trial
     itself was conducted within a fortnight thereafter. In the process, the
     assistance that the appellant was entitled to in the form of legal aid,
     could not be real and meaningful.”
      This Court, in Anokhilal (supra), also set aside the conviction and
sentenced imposed by the Trial Court and the High Court and directed for
de novo trial. This Court also laid down certain norms in matters where the
accused is represented by a counsel appointed through legal aid. The norms,
as stated in paragraph 31 of the said judgment are reproduced hereunder: -
     “31.1 In all cases there is a possibility of life sentence or death
     sentence, learned Advocates who have put in minimum of 10 years’
     practice at the Bar alone be considered to be appointed as Amicus
     Curiae or through legal services to represent an accused.
     31.2 In all matters dealt with by the High Court concerning
     confirmation of death sentence, Senior Advocates of the Court must
     first be considered to be appointed as Amicus Curiae.
     31.3 Whenever any learned counsel is appointed as Amicus Curiae,
     some reasonable time may be provided to enable the counsel to prepare
     the matter. There cannot be any hard and fast rule in that behalf.
     However, a minimum of seven days’ time may normally be considered
     to be appropriate and adequate.
990          SUPREME COURT REPORTS                          [2023] 14 S.C.R.


      31.4 Any learned counsel, who is appointed as Amicus Curiae on
      behalf of the accused must normally be granted to have meetings and
      discussion with the concerned accused. Such interactions may prove
      to be helpful as was noticed in Imtiyaz Ramzan Khan.”
      15. In Best Bakery (supra), this Court has observed that the principle
of fair trial now informs and energises many areas of the law. It is reflected
in numerous rules and practices. It is a constant, ongoing development
process continually adapting to new and changing circumstances, and
exigencies of the situation – peculiar at times and related to the nature of
crime, persons involved – directly or operating behind social impact and
societal needs and even so many powerful balancing factors which may
come in the way of administration of criminal justice system. The concept
of fair trial entails familiar triangulation of interests of the accused, the
victim, and the society.
      16. It was further observed that there can be no analytical, all-
comprehensive or exhaustive definition of the concept of a fair trial, and it
may have to be determined in seemingly infinite variety of actual situations
with the ultimate object in mind viz. whether something that was done
or said either before or at the trial deprived the quality of fairness to a
degree where a miscarriage of justice has resulted. Each one has an inbuilt
right to be dealt with fairly in a criminal trial. Denial of a fair trial is as
much injustice to the accused as is to the victim and the society. Fair trial
obviously would mean a trial before an impartial judge, a fair prosecutor,
and the atmosphere of judicial calm. Fair trial means a trial in which bias
or prejudice for or against the accused, the witnesses, or the cause which
is being tried is eliminated. It is inherent in the concept of due process of
law, that condemnation should be rendered only after the trial in which
the hearing is a real one, not sham or a mere farce and pretence. Since fair
hearing requires an opportunity to preserve the process, it may be vitiated
and violated by an overhasty, stage-managed, tailored and partisan trial. It
is thus settled that a hasty trial in which proper and sufficient opportunity
has not been provided to the accused to defend himself/herself would vitiate
the trial as being meaningless & stage-managed. It is in violation of the
principle of judicial calm.
    NAVEEN @ AJAY v. THE STATE OF MADHYA PRADESH                           991
             [PRASHANT KUMAR MISHRA, J.]

       17. The principle of “judicial calm” in the context of a fair trial needs
to be elaborated for its observance in letter and spirit. In our view, in the
hallowed halls of justice, the essence of a fair and impartial trial lies in
the steadfast embrace of judicial calm. It is incumbent upon a judge to
exude an aura of tranquillity, offering a sanctuary of reason and measured
deliberation. In the halls of justice, the gavel strikes not in haste, but in
a deliberate cadence ensuring every voice, every piece of evidence, is
accorded its due weight. The expanse of judicial calm serves not only as a
pillar of constitutional integrity, but as the very bedrock upon which trust
in a legal system is forged. It is a beacon that illuminates the path towards
a verdict untainted by haste or prejudice, thus upholding the sanctity of
justice for all.
      18. The issue concerning evidentiary value of DNA report has been
considered by this Court in a recent Judgment reported in the case of Rahul
v. State of Delhi, Ministry of Home Affairs & Anr.7 wherein the following
has been held in Paragraphs 36 and 38 as under: -
      “36. The learned Amicus Curiae has also assailed the forensic
      evidence i.e. the report regarding the DNA profiling dated 18-4-2012
      (Ext. P-23/1) giving incriminating findings. She vehemently submitted
      that apart from the fact that the collection of the samples sent for
      examination itself was very doubtful, the said forensic evidence was
      neither scientifically nor legally proved and could not have been used
      as a circumstance against the appellant-accused. The Court finds
      substance in the said submissions made by the Amicus Curiae. The
      DNA evidence is in the nature of opinion evidence as envisaged under
      Section 45 and like any other opinion evidence, its probative value
      varies from case to case.
      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 Ext. PW 23/A,
      however mere exhibiting a document, would not prove its contents. The



7    (2023) 1 SCC 83
992            SUPREME COURT REPORTS                         [2023] 14 S.C.R.


       record shows that all the samples relating to the accused and relating to
       the deceased were seized by the investigating officer on 14-2-2012 and
       16-2-2012; and they were sent to CFSL for examination on 27-2-2012.
       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 the 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.”
                                                         (Emphasis supplied)
      19. In the case of Manoj & Ors. Vs. State of M.P.8, it was held
that if DNA evidence is not properly documented, collected, packaged,
and preserved, it will not meet the legal and scientific requirements for
admissibility in a court of law. Because extremely small samples of
DNA can be used as evidence, greater attention to contamination issues
is necessary while locating, collecting, and preserving DNA evidence as
it can be contaminated when DNA from another source gets mixed with
DNA relevant to the case. This can happen even when someone sneezes or
coughs over the evidence or touches his/her mouth, nose, or other part of
the face and then touches the area that may contain the DNA to be tested.
The exhibits having biological specimen, which can establish link among
victim(s), suspect(s), scene of crime for solving the case should be identified,
preserved, packed, and sent for DNA Profiling.
   20. In the case of Anil @ Anthony Arikswamy Joseph Vs. State of
Maharashtra9, the following has been held in paragraph 18 as under:-
       “18. Deoxyribonucleic acid, or DNA, is a molecule that encodes the
       genetic information in all living organisms. DNA genotype can be



8     (2023) 2 SCC 353
9     (2014) 4 SCC 69
 NAVEEN @ AJAY v. THE STATE OF MADHYA PRADESH                             993
          [PRASHANT KUMAR MISHRA, J.]

     obtained from any biological material such as bone, blood, semen,
     saliva, hair, skin, etc. Now, for several years, DNA profile has also
     shown a tremendous impact on forensic investigation. Generally, when
     DNA profile of a sample found at the scene of crime matches with the
     DNA profile of the suspect, it can generally be concluded that both
     the samples have the same biological origin. DNA profile is valid and
     reliable, but variance in a particular result depends on the quality
     control and quality procedure in the laboratory.”
                                                       (Emphasis supplied)
      21. In the case at hand, the prosecution is based on circumstantial
evidence in which the prosecution has to prove each link in the chain of
circumstantial evidence and the important chains in the link are DNA
report, FSL report and Viscera report. When the reports were challenged
by the accused before the High Court, it was brushed aside by observing
that even if the authors of the reports were not called for evidence, in
terms of Section 293 Cr.P.C., the reports are not open to question as the
defence had an opportunity to cross-examine the authors of the reports
during the trial. In our considered view, the High Court was not correct in
saying that the defence had an opportunity to cross-examine the experts.
The trial has been conducted on day-to-day basis wherein the accused,
who was in jail and defended by a counsel from legal aid, was compelled
by the Trial Court to produce defence witness of his own in one day. It
was impossible for the accused himself to produce Dr. Anil Kumar Singh
and Dr. Kamlesh Kaitholiya, the authors of the Reports (Ex.P-72), in one
day because the said experts are government servants and could not have
attended the Court at the request of an accused in jail. The Trial Court
treated the accused as if he is carrying a magic wand which is available
to produce highly qualified experts, who are government servants, on a
phone call. There was no opportunity, in the real sense, to the appellant
to cross-examine the experts.
      22. For all the afore-stated reasons, we are of the considered view that
the Trial Court conducted the trial in a hurried manner without giving proper
opportunity to the accused to defend himself. Therefore, the Judgment of
conviction and sentence passed by the Trial Court and affirmed by the High
994            SUPREME COURT REPORTS                     [2023] 14 S.C.R.


Court is hereby set aside and the matter is remitted back to the trial court
for de novo trial by affording proper opportunity to the appellant to defend
himself. The trial court and the District Legal Services Authority, Indore,
are directed to provide assistance of a senior counsel to the appellant to
contest the trial on his behalf.
      23. The appeals stand disposed of accordingly.


Headnotes prepared by:                                     Appeals disposed of.
Ankit Gyan