KUNU ALIAS CHHABINDRA DALEI Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS revision is directed against the order dated 25.7.2003 passed by the learned Additional Sessions Judge, Mayurbhanj at Baripada if S.T. No. 32/272 of 2002 rejecting the petition filed by the petitioners under Section 293 of the Code of Criminal Procedure to summon the Chemical Examiner for examination and cross -examination.

(2.) FROM the record, it appears that the petitioners are facing trial for commission of offences under Sections 498 -A, 304 -B and 34 of the Penal Code. It appears from the impugned order that the Chemical Examiner had opined that organ chloro insecticidal poison was detected during examination. The report of the Chemical Examiner as it appears from the impugned order was proved on admission and examination of the Chemical Examiner was dispensed with. The said report was marked as Ext. 11 and after closure of the prosecution evidence as well as examination of the accused persons under Section 313 Cr.P.C. an application was filed under Section 293 Cr.P.C. read with Section 311 of the Code for summoning the Chemical Examiner and to give an opportunity to the petitioners for cross -examining him in relation to the said report submitted by him. The said prayer having been turned down, the present revision has been filed.

(3.) SHRI S.P. Mishra, the learned counsel appearing for the petitioners submitted that under Section 293 of the Code of Criminal Procedure the report of the Chemical Examiner being a report of the Government scientific expert can be used as evidence in any inquiry, trial or other proceeding under the Code. Sub -section (2) of Section 293 of the Code however prescribes that the Court may examine any such expert as to the subject -matter of his report. Therefore, the Court had ample powers to summon the Chemical Examiner for examination. There cannot be any dispute about the powers of the Sessions Court in summoning the Chemical Examiner for examination, if it thinks fit. The learned Additional Sessions Judge also in the impugned order has not disputed the said proposition of law. Therefore the only question remains to be considered is whether for the ends of justice the Chemical Examiner is required to be summoned or not. The Apex Court in the case of Ram Dayal v. Municipal Corporation of Delhi and Anr. reported in : 1970CriLJ515 , which is also referred to by the learned Additional Sessions Judge in the impugned order, held as follows : - Where certificates are not made final and conclusive evidence of the facts stated therein, it will be open to the party against whom certificates which are declared to be sufficient evidence, either to rebut the facts stated therein by his own or other evidence or to require the expert to be produced for cross -examination which prayer the Court is bound to consider on merits in granting or rejecting it. There is no presumption that the contents are true or correct though such certificate is evidence without formal proof. In any case where there is evidence to the contra the Court is bound to consider that evidence along with such a certificate with or without the evidence of the expert who gave it being called and come to its own conclusion....