The question before the learned Trial Court was
not whether the child that was born to the prosecutrix was
the child of the opposite party no.2. There was no
question for determining the paternity of the child, the
question involved in the case was whether rape was
committed on the prosecutrix by the opposite party no.2.
There was no reason for the prosecutrix to let her child
undergo DNA Test.
(15) The order dated 25.06.2021 is set aside and the
learned Trial Court order dated 25.03.2021 is affirmed
subject to the modification that the Trial Court's
observation regarding such application being moved
under Section 313 of the Cr.P.C. would be considered on
its merits when it is taken up, shall also not be read
against the revisionist that victim of rape can be
compelled to undergo DNA test after such long time of the
alleged incident.
ALLAHABAD HIGH COURT
Case :- CRIMINAL REVISION No. - 477 of 2021
Revisionist :- Gulafsa Begum
Opposite Party :- State of U.P.
Coram: Hon'ble Mrs. Sangeeta Chandra,J.
Dated: 3.12.2021
(1) Heard the learned counsel for the parties and perused
the record.
(2) This Criminal Revision has been filed challenging the
judgment and order dated 25.06.2021 passed by the
learned Additional Sessions Judge, (POCSO Act), No.12,
Sultanpur, passed in Criminal Appeal (Juvenile) No.19 of
2021, relating to Case Crime No.360/2017, under
Sections 376, 504, 506 IPC and Section 3/4 POCSO Act,
Police Station Kotwali Dehat, District Sultanpur.
(3) It has been submitted by the learned counsel for the
revisionist that on 17.12.2017 the First Information Report
of Case Crime No.360/2017, under Sections 376, 504,
506 IPC and Section 3/4 POCSO Act, Police Station
Kotwali Dehat, District Sultanpur, was lodged by the
revisionist against the opposite party nos.2 and 3 and
other co-accused that the daughter of the revisionist aged
about 14 years was raped seven months ago as a result
whereof she became pregnant. When the revisionist got
information of her daughter's pregnancy they tried to
marry her with the opposite party no.2 but the father of
the opposite party no.2 denied such proposal. The
revisionist and her associates told the father of the
opposite party no.2 that if the child is not aborted they
would have to face dire consequences. The Investigating
Officer after recording the statement under Sections 161
and 164 Cr.P.C. filed Charge-sheet on 13.06.2014 in the
Court of Chief Judicial Magistrate, Court No.17, Sultanpur,
against the opposite party no.2 and two persons. With
regard to the other accused in the F.I.R. investigation is
pending till date and they have not been arrested as yet.
Later on, the opposite party no.2 was declared juvenile
and the Trial was transferred to the Juvenile Justice
Board, Sultanpur. After examination-in-chief and crossexamination
of prosecution witness as PW-1 i.e. the
revisionist and PW-2 i.e. the victim her daughter, a date
was fixed for examination of other prosecution witnesses.
(4) The opposite party no.2 filed an application for
conducting DNA Test of the PW-2. Objections were filed
by the counsel for the revisionist. On 25.03.2021 learned
Juvenile Justice Board after considering the entire facts
and circumstances and evidence available on record
rejected the application for DNA Test. Against the order
the dated 25.03.2021, the opposite party no.2 filed a
Criminal Appeal in the court of Additional Sessions Judge,
Court No.12, Sultanpur, which was registered as Criminal
Appeal (Juvenile) No.19/2021 (Shameem @ Bugul Vs.
State of U.P.). During the pendency of such Appeal, the
opposite party no.2 filed an application for
arrange/impleading the revisionist as opposite party
no.2.The Appellate Court without deciding the application
for impleadment of the revisionist decided the Appeal
finally and passed impugned order on 25.06.2021. In the
order dated 25.06.2021 the learned Appellate Court has
ignored the provisions of Article 14--21 of the Constitution
of India, the Juvenile Justice Board in its order dated
25.03.2021 had observed that the application for
examination of child of the prosecution witness moved by
the opposite party no.2 can only be moved at the stage
when defence witnesses were being examined under
Section 313 Cr.P.C. It held that sending the victim child for
DNA Test would further delay the Trial which under the
provisions of Statute should be concluded as
expeditiously as possible.
(5) It has been submitted by the learned counsel for the
revisionist that the revisionist and her daughter, the victim
had never given any consent for DNA Test which is
extremely necessary in such cases. Only because the
learned Appellate Court observed that the DNA Test will
determine the paternity of the child and would clarify the
issue. Such DNA Test cannot be performed without
consent of the prosecutrix. The issue involved in the
prosecution of the opposite party no.2 was not whether
her child was son of the accused. The issue was whether
the prosecutrix was raped by the opposite party no.2
which cannot be decided only by determining the
paternity of the child who was born much later. As a
consequence, learned Appellate Court has erred in
recording a finding that conducting of DNA Test will not be
performed without the consent of the parties.
(6) Most certainly, the commission of offence under
Sections 376, 504, 506 IPC cannot be determined even if
DNA Test is verified with and without consent of the
prosecutrix. The Supreme Court as well as several High
Courts have observed that no Court can bind the
prosecutrix to get the DNA Test conducted. It is probable
that an adverse inference can be drawn against the
prosecutrix. On refusal of the prosecutrix to undergo for
DNA Test but no DNA Test can be conducted of the
prosecutrix without her consent.
(7) Learned counsel for the opposite party no.2 has
pointed out from his counter affidavit that the revisionist
herself had given a statement before the Investigating
Officer that she was willing to get DNA Test conducted of
the child born to the prosecutrix.
(8) Learned counsel appearing for the revisionist in
rejoinder affidavit has submitted that only because the
prosecutrix's mother had made a statement to the
Investigating Officer, such statement cannot bind the
prosecutix who has now become major and can decide
for her child whether she wants her child to face the risk
of being declared a bastard. Learned counsel for the
revisionist has placed reliance upon the judgment of the
Hon'ble Supreme Court in the case of Goutam Kundu
Vs. State of West Bengal & Another reported in (1993)
3 SCC 418, where the question involved was with regard
to the legitimacy of a born child during marriage of the
appellant with the private respondents. The Supreme
Court had observed that if the legitimacy is questioned by
making out a strong case of non-access of the husband
by the person questioning the legitimacy, on whom
burden of rebuttal of presumption of legitimacy lies, the
Court will also consider the effect of ordering the blood
test on the status of the child and the character of the
mother. No one can be compelled to give sample of blood
for analysis.
(9) Learned counsel for the revisionist has relied upon
Paragraph-26 of the judgment in Goutam Kundu (Supra)
case which is being quoted hereinbelow:-
"26. From the above discussion it emerges :-
(1) that courts in India cannot order blood test as a matter
of course;
(2) wherever applications are made for such prayers in
order to have roving inquiry, the prayer for blood test
cannot be entertained.
(3) There must be a strong prima facie case in that the
husband must establish non-access in order to dispel the
presumption arising under Section 112 of the Evidence
Act.
(4) The court must carefully examine as to what would be
the consequence of ordering the blood test; whether it will
have the effect of branding a child as a bastard and the
mother as an unchaste woman.
(5) No one can be compelled to give sample of blood for
analysis."
(10) Learned counsel for the revisionist has placed
reliance on another judgment of the Hon'ble Supreme
Court in the case of Ashok Kumar Vs. Raj Gupta &
Others, Civil Appeal No.6153 of 2021 decided on
01.10.2021 and has referred to Paragraph-17 of the
judgment which is being quoted hereinebelow:-
"The appellant (plaintiff) as noted earlier, has brought on
record the evidence in his support which in his
assessment adequately establishes his case. His suit will
succeed or fall with those evidence, subject of course to
the evidence adduced by the other side. When the
plaintiff is unwilling to subject himself to the DNA test,
forcing him to undergo one would impinge on his personal
liberty and his right to privacy."
(11) Learned counsel for the revisionist has also placed
reliance upon a judgment rendered by the Calcutta High
Court Anandmay Bag Vs. State of West Bengal and
Another decided on 07.05.2007 where the Court has
observed in Paragraphs- 14 & 16 thereof is as follows:-
"14. This is a case under Section 376 of the Indian Penal
Code and in a case of Section 376 of the Indian Penal
Code, DNA test may be a valid test but not always
relevant, more so, when during investigation or during
pendency of trial there was no attempt by the prosecution
to hold such test. Section 375 of the Indian Penal Code
defines rape and Section 376 of the Indian Penal Code is
the penal provision of rape. In several decisions the
Supreme Court held that in a case of rape medical
evidence is not always final but medical evidence plays
the role of secondary evidence. If the Court finds that
evidence of prosecutrix is sufficient to come to the
conclusion that prosecution case was true then there can
be conviction on the basis of sole evidence of prosecutrix.
In State of Punjab v. Ramdev Singh reported in 2004
SCC (Cri) 307, the Supreme Court held that absence of
injury in a case of rape is of no consequence. In State of
M.P v. Dayal Sahu, it was held by the Supreme Court that
non-examination of doctor in a case of rape is not always
fatal to the prosecution when the testimony of the
prosecutrix inspires confidence of the Court and nonproduction
of doctor's report is not at all fatal. It was a
case of rape on a girl of 13 years and if the learned Trial
Court finds that evidence of the prosecutrix is sufficient,
the DNA test is not at all necessary. The learned Judge
must be aware of the age of the victim and in such a
matter consent is of no consequence.
16. In view of the discussion made above it is clear that in
this case the prosecution prayer under Section 311 of the
Code of Criminal Procedure for holding DNA test cannot
be allowed as during investigation or during the stage of
charge or during the stage of trial there was no attempt
for holding DNA test. After closer of prosecution evidence,
examination of accused under Section 313 of Cr. PC and
after discloser of entire defence case prosecution prayer
to hold DNA test of the victim, her male child and accused
cannot be allowed to establish the offence under Section
376 of IPC Whether determination of paternity of the child
is relevant or not through DNA test that can be decided in
a different forum and not in this case."
(12) Learned counsel for the revisionist has also placed
reliance upon a decision of the the Madras High Court in
the case of G. Vasanthi Vs. M. Muneeshwaran
delivered on 02.01.2019 and reported Online on
Website of the said High Court. A reference has been
made to Paragraph-19 of the said judgment where it has
been observed that the learned Trial Court would be
justified in drawing an adverse inference against the
litigant on refusal to undergo DNA Test. While character
of the mother may be exposed the status of the child shall
remain in law even if the result of the DNA test does not
establish the paternity of the child. Just as identity of the
rape victim and that of juvenile in conflict of the law is
concealed. Similar protective measures shall be taken in
such cases.
(13) It was a case where G. Vsanthi (Supra) the parties
were fighting an application for dissolution of marriage.
(13) Learned counsel for the revisionist has also placed
reliance upon a judgment rendered by Madurai Bench of
the Madras High Court of 02.11.2011 in Muthukutti Vs.
The Deputy Director and others decided on
02.11.2011, DNA Section Forensic Science Department,
Mylapore, Chennai and other. The petitioner therein
wanted the DNA Test to be conducted of her child within a
stipulated time and prayed that a direction to be issued by
the Court with regard to the same. The Madurai Bench
referred the observations made by the Supreme Court in
the case of Yedla Srinivasa Rao Vs. State of Andhra
Pradesh reported in (2006) 11 SCC 615, and emphasize
that merely because the petitioner had offered to conduct
DNA Test it would not mean that the complainant and the
minor child can also be subjected to such test without
their consent. It was observed that the consent of the
complainant and the consent of the minor child was
relevant.
(14) This Court having heard the learned counsel for the
revisionist and counsel appearing on behalf opposite
party no.2 has carefully gone through the judgment
rendered by the learned Additional District and Sessions
Judge, challenged in this Revision. It is apparent that the
learned Additional Sessions Judge has misdirected his
energies. The question before the learned Trial Court was
not whether the child that was born to the prosecutrix was
the child of the opposite party no.2. There was no
question for determining the paternity of the child, the
question involved in the case was whether rape was
committed on the prosecutrix by the opposite party no.2.
There was no reason for the prosecutrix to let her child
undergo DNA Test.
(15) The order dated 25.06.2021 is set aside and the
learned Trial Court order dated 25.03.2021 is affirmed
subject to the modification that the Trial Court's
observation regarding such application being moved
under Section 313 of the Cr.P.C. would be considered on
its merits when it is taken up, shall also not be read
against the revisionist that victim of rape can be
compelled to undergo DNA test after such long time of the
alleged incident.
(16) The Revision stands allowed.
Order Date :- 3.12.2021
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