The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(Cr.) No. 317 of 2024 Mother of the Victim, aged about 39 years State of Jharkhand Versus -------- ..... … Petitioner ..... … Respondent CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioner ------ :
Legal Reasoning
Mr. Kaushik Sarkhel, Advocate. [through V.C.] : : ------ 04/ 30.07.2024 Heard learned counsel appearing for the petitioners and Mr. Arpit Kumar, Advocate. Mr. K.K. Bhatt, A.C. to S.C.-I. For the State learned counsel for the respondent-State. 2. Prayer in this petition is made for a direction upon the learned District and Additional Sessions Judge-I-cum-Special Judge, Children Court, Hazaribagh to conduct the fresh DNA test of accused Abhishek Kumar, victim girl and the female child of the victim, in connection with Katkamsandi P.S. Case No. 37 of 2020, registered for the offence under Sections 417 and 376 of the Indian Penal Code and Section 4 of the POCSO Act, pending in the court of learned District and Additional Sessions Judge-1-cum-Special Judge, Children Court, Hazaribagh. 3. The FIR was lodged by the petitioner alleging therein that her daughter victim girl, is 16 years old and with this girl there is a boy named Abhishek from the village, father name Tulsi Mehta, resident of village Lupung, police station Katkamsaundhi, district Hazaribagh. It is alleged by the Petitioner that Abhishek called her daughter in his house and raped on pretext of marriage and sometimes giving money. As he raped several times to my daughter due to which my daughter Victim girl became pregnant. Further it is stated by the Petitioner that Victim girl did not tell this to anyone in the house. When victim girl stomach started becoming visible, then people came to know about that and victim girl was taken to the doctor on 15.02.2020 and got her medical examination done. In the medical examination report, Victim girl was -1- found to be 8 months pregnant. This information was informed to the Abhishek’s father Tulsi Mehta on 16.02.2020. So he refused to marry her son. Thereafter it is stated by the Informant that Gram Panchayat was held regarding this matter on 20.02.2020, in this Panchayat oral Panchayat was held in the presence of the head, Sarpanch and all the respected persons of the village. In this Panchayat, Tulsi Mehta's son Abhishek Kumar accepted his mistake but refused to marry. Panch people also refused, did not take any strict action on this and after saying that Rs 200000/- will be given, the decision was given that you can marry your daughter with this money, we did not accept the Panch's decision and accordingly FIR has been lodged vide Katkamsandi P.S case No. 37 of 2020 for the offence under section 417 & 376 of the Indian Penal Code and section 4 of POCSO Act. 4. Mr. Kaushik Sarkhel, learned counsel appearing through V.C. submits that the statement of the informant was recorded in para-3 and the statements of the victim girl was recorded in para-4, wherein they have specifically alleged and supported the allegations. He submits that after medical examination, it was found that the victim girl has the pregnancy of eight months and she has given the birth of a female child, who is 3-4 years of age now. He further submits that in the statement recorded under Section 164 Cr.P.C., the victim girl has narrated about the incident. He then submits that in the year 2021, the blood samples of the accused Abhishek Kumar, Victim Girl and the female child of the victim girl were sent for DNA Test, but due to mark name was not clear, the DNA test of the victim mother and her child were not completed and only accused Abhishek Kumar’s DNA test report has been prepared in the year 2021. He submits that the DNA test was done by the order of the learned court. He further submits that the petitioner, being the mother of the victim has filed a petition on 09.04.2024 before the learned court for a direction to conduct the fresh DNA Test of all the three persons, which was rejected on 24.04.2024. He submits that the said order has been passed during the pendency of this petition and for challenging the said order, I.A. No. 6976 of 2024 -2- has been filed. 5. Learned counsel appearing for the petitioner submits that the learned court has not passed the said order in accordance with law and in view of the nature of allegations, the said DNA Test is necessary, in view of that appropriate order may kindly be passed. 6. To avoid the multiplicity of litigation, the prayer made in
Decision
the aforementioned I.A. is allowed and the same is disposed of. 7. 8. Let the said I.A. be treated as a part of the main petition. Learned counsel appearing for the respondent-State submits that the case is arising out of Section 376 and other Section of the IPC as well as POCSO Act and in view of that, the said order is well reasoned one and the same has been passed upon going through the materials available on record. 9. In the impugned order dated 24.04.2024, it has been recorded by the learned court that an application was filed on 09.04.2024 for fresh DNA Test. However in earlier proceeding, after submission of the chargesheet and on the willingness of the informant and after birth of the child of the victim, her child and the CCL for ascertain the percentage of the said child and the learned Principal Magistrate, Juvenile Justice Board, Hazaribagh has allowed the petition on 15.01.2021 and the blood samples of the CCL, Victim and the child of the victim was collected and were sent to State Forensic Science Laboratory, Jharkhand, Ranchi for test and report, however, the said report was not submitted and hence, thereafter the I.O. of the case made an application stating therein that the blood sample of the victim, her child and the CCL, respectively marked as A, B and C, were sent to the FSC, Ranchi, but there was confusion regarding marking of sample of the victim and her daughter which were sent in a single envelope and hence, FSL Ranchi had asked for taking fresh blood sample of the victim and her daughter. Accordingly, it was directed by the learned court vide order dated 23.12.2023 to collect the blood sample of the victim and her daughter in scientific manner in presence of doctor at S.B.M.C. Hospital (Sadar Hospital), Hazaribagh. Accordingly, the -3- blood sample of the victim and her daughter was collected in proper manner and was again sent to Forensic Science Laboratory, Ranchi for D.N.A. test report. Thereafter the report has been submitted in this case by the Director of Forensic Science Laboratory, Jharkhand, Ranchi signed by Assistant Director of the said Forensic Science Laboratory. Learned court further observed that the learned counsel for the informant has not given any cogent reason as to why the said DNA test is not reliable. It was further observed that no reason is disclosed in the petition for a further direction with regard to DNA Test. Thus, it is crystal clear that the learned court has twice obtained the DNA report and for the same prayer, on the third time, the petition filed by the informant for fresh DNA test, the learned court has rejected the same. 10. In the case of Goutam Kundu Versus State of West Bengal, reported in (1993) 3 SCC 418, it was held by the Hon’ble Supreme Court that Blood grouping test is a useful test to determine the question of disputed paternity. It can be relied upon by courts as a circumstantial evidence which ultimately excludes a certain individual as a father of the child However, no person can be compelled to give sample of blood for analysis against his/her will and no adverse inference can be drawn against him/her for this refusal. Courts in India cannot order blood test as a matter of course. Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained. 11. The responsibility on the shoulders of the courts is more onerous so as to provide proper legal protection to the children, which was considered by the Hon'ble Supreme Court in the case of State of Punjab v. Gurmit Singh; reported in (1996) 2 SCC 384, where in paragraph 21 of the said judgment, it has been held as follows:- “21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of -4- indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault — it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless therefore, female. The courts, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant the discrepancies prosecutrix, which are not of a fatal nature, reliable to the prosecution case. prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance testimony, short of corroboration required in the case of an accomplice. the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.” throw out an otherwise the statement of If evidence of testimony to her The of in 12. In several decisions, the Hon'ble Supreme Court held that in a case of rape, medical evidence is not always final but medical evidence plays the role of secondary evidence Even presuming that earlier plea was taken by the petitioner for DNA test, the said test cannot be allowed in a routine way. For deciding the case under Section 376 of IPC, paternity of the child is not relevant as the same can be decided on oral evidence. Therefore, holding of DNA test will not be -5- relevant to the consideration of the charge. Moreover in the case in hand, twice the DNA test was done at the instance of the accused and one time at the instance of the victim girl and the child. The court further finds that in the impugned order, cogent reason has been given by the learned court. 13. In view of the above, no case of interference is made out. Accordingly, this petition is dismissed. Amitesh/- [A.F.R.] (Sanjay Kumar Dwivedi, J.) -6-