Veerapan v. Ms.Shanmuga Devi

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:29.07.2010CORAMTHE HON'BLE MR.JUSTICE T.SUDANTHIRAMCRL.R.C.No.770 of 2009andM.P.No.1 of 2009 Veerapan .. Petitioner/AccusedVs.

Ms.Shanmuga Devi.. 1st respondent/Defacto complainant2.The State, rep. ByStation House Officer, Thirunavalur Police Station, Ulundurpet Taluk. (Crime No.331 of 2006) ..2nd Respondent/ComplainantPrayer:-Petition filed under Section 397 r/w. 401 of Cr.P.C,praying to call for the records in S.C.No.150 of 2008 on the fileof the learned II Additional Sessions Judge, Villupuram, and toset aside the order of the learned II Additional Sessions Judge, Villupuram, passed in Crl.M.P.No.311 of 2009, dated 09.07.2009 inS.C.No.150 of 2008.For Petitioner : Mr.T.V.RajagopalFor R-1 : No AppearanceFor R-2 : Mr.V.R.Balasubramaniam, Additional Public Prosecutor.- - - - -ORDERThe revision petitioner herein is an accused in S.C.No.150of 2008 on the file of the learned Second Additional SessionsJudge, Villupuram and he is facing charge for the offences under Sections 417 and 376 I.P.C. The trial proceeded against theaccused. The prosecution witnesses were examined and the accusedwas questioned under Section 313 Cr.P.C. Thereafter, thearguments of both prosecution and the defence were heard and thecase was also posted for judgment on 24.06.2009. On 24.06.2009,the judgment was not pronounced and it was adjourned to https://hcservices.ecourts.gov.in/hcservices/

25.06.2009. On that day, P.W.1, who is the defacto complainanthad filed a petition under Section 53 of Cr.P.C. praying to sendthe child and the accused for D.N.A. Test. On the same day, the Investigating Officer had submitted a letter with a prayer tosend the accused, P.W.1 and the child for D.N.A. Test. Thelearned Sessions Judge had also passed an order to subject theaccused, P.W.1 and the child for D.N.A. Test. Aggrieved by thesaid order, the petitioner herein has preferred this CriminalRevision Petition before this Court.

The revision was admitted and notice was ordered to therespondents on 11.08.2009. Though notice had been served, thefirst respondent/defacto complainant/P.W.1 is not represented byany counsel and she is also not appearing before the Court.

The learned counsel for the petitioner submitted thatthe case after being posted for Judgment, allowing the petitionerfor D.N.A. Test would amount to filling up the lacuna in the caseof the prosecution and reopening the case at the stage ofjudgment and ordering for fresh investigation to collect freshmaterials would cause prejudice to the accused and it is bad inthe eye of law. The petition was preferred only by P.W.1 and noapplication was preferred by the learned Public Prosecutor, whorepresented the case and the Investigating Officer against normalprocedure, has submitted a letter to the Court. It is furthersubmitted that as per the available evidence already recorded, there is absolutely no necessity for conducting the D.N.A. Testand P.W.1 did not even whisper in her evidence that she had givenbirth to a child. It is also submitted that the learned SessionsJudge should not have presumed that the accused would accede toD.N.A. Test. The learned counsel for the petitioner also reliedon a decision of the Hon'ble Supreme Court reported in (2010) 2M.L.J. (Crl.) 908 (SC) (Smt. Selvi and Others Vs. State of Karnataka) and submitted that the accused cannot be compelled tosubject himself for the D.N.A. Test.

Per contra, the learned Additional Public Prosecutorsubmitted that during the cross-examination of the witnesses, theaccused had specifically denied the paternity of the child and assuch, it is necessary to conduct the D.N.A. Test. It is furthersubmitted that even if the prosecution had not chosen to file anapplication seeking for D.N.A. Test, nothing prevents the victimfrom coming forward to file such an application. The prosecutionalso supports the application filed by the victim-P.W.1.

This Court has considered the submissions made by bothparties and also perused the records.

According to P.W.1, on 18.05.2006, she was raped by the https://hcservices.ecourts.gov.in/hcservices/ accused and when she informed this matter to her parents, theaccused begged her parents not to give a complaint and also hepromised to marry the victim-P.W.1. When P.W.1 became pregnant, she requested the accused to marry her but the accused wanted toabort the pregnancy and he refused to marry her. Thereafter, shehad given a complaint to the police. It appears in the cross-examination that the accused totally denied the occurrence andaccording to the suggestion put forth by the accused, he haddenied the conceivement of P.W.1. Of course, D.N.A. Test couldhave been conducted during the investigation. Even at the stageof trial, if D.N.A. Test is conducted, it will be useful fordeciding the issue. But at the same time, unless the accusedaccedes and gives his consent for D.N.A. Test, it is not possibleto compel the accused to subject himself for D.N.A. Test. Thoughit is possible for the trial Court to draw an adverse inferencefrom the denial of the accused for the D.N.A. Test, it is notproper to pass an order directing the accused to subject him forD.N.A. Test.

It is observed by the Hon'ble Supreme Court in thedecision reported in (2010) 2 M.L.J. (Crl.) 908 (SC) (Smt. Selviand Others Vs. State of Karnataka) at paragraph Nos.126, 165 and222 as follows:-"126. At this juncture, it must be reiterated that Indian law incorporates the 'rule against adverseinferences from silence' which is operative at the trialstage. As mentioned earlier, this position is embodiedin a conjunctive reading of Article 20(3) of the Constitution and Sections 161(2), 313(3) and Proviso (b)of Section 315 (1) of the Cr.P.C. The gist of thisposition is that even though an accused is a competentwitness in his/her own trial, he/she cannot be compelledto answer questions that could expose him/her toincrimination and the trial judge cannot draw adverseinferences from the refusal to do so. This position iscemented by prohibiting any of the parties fromcommenting on the failure of the accused to giveevidence.