Whether court can compel the victim of Rape to undergo DNA test?

 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