State v. Juvenile) arising out of Case crime no

Trial no. 1249 of 2021 (State vs. Juvenile) arising out of Case crime no. 0386 of 2021 under sections 376 I.P.C. and Section 5J(2)/6 P.O.C.S.O. Act, Police Station-Cholapur, District- Varanasi and allow the application 18- kha dated 28.07.2023 filed by the applicant. It is further prayed that this Hon'ble Court may graciously be pleased to stay the entire proceeding of Special Sessions Trial no. 1249 of 2021 (State vs. Juvenile) arising out of Case crime no. 0386 of 2021 under sections 376 I.P.C. and Section 5J(2)/6 P.O.C.S.O. Act, Police Station Cholapur, District-Varanasi, pending in the court of Additional District and Sessions Judge/Special Judge (POCSO ACT), court no.2, Varanasi, during the pendency of the instant application and/or to pass such other or further under which this Hon'ble Court may deem fit and proper under the peculiar circumstances, otherwise the applicant shall suffer an irreparable loss and injury."

6. Record shows that an FIR dated 08.10.2021 was lodged by first informant-opposite party-2- Lallan Ram (father of the prosecutrix) and was registered as Case Crime No.0386 of 2021 under Section 376 IPC and Section 3/4 of the POCSO Act, Police Station- Cholapur, District- Varanasi. In the aforesaid FIR applicant- Juvenile X has been nominated as solitary named accused.

7. Gravamen of the FIR is to the effect that daughter of first informant i.e. prosecutrix is aged about 16 years. Applicant who is resident of the same village used to frequently visit the house of first informant. He is also alleged to have stated that he shall solemnize marriage with the prosecutrix. On the aforesaid false promise of marriage, accused applicant repeatedly dislodged the modesty of the prosecutrix by committing rape upon her. Ultimately the prosecutrix came in family way and the age of embriyo was aged about 7 months. Applicant is further alleged to have refused to solemnize marriage with the prosecutrix. The occurrence was stated to be about 5 to 6 months old.

8. After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. On the basis of material collected by him during course of investigation, he came to the conclusion that offence complained of against applicant is fully established. He accordingly submitted the charge-sheet/police report in terms of Section 173 (2) Cr.P.C. before the concerned Juvenile Justice Board. Since the applicant-Juvenile X was above 16 years of age accordingly the matter was referred by the Juvenile Justice Board to the regular Court/Child Court. Resultantly Special Sessions Trial No.1249 of 2021 (State Vs. Juvenile) arising out of Case Crime No.0386 of 2021 under Sections 376 IPC and Section 5J(2)/6 POCSO Act, Police Station Cholapur, District Varanasi came to be registered in the Court of Additional District and Sessions Judge/Special Judge (POCSO Act), Court No.2, Varanasi.

9. It appears from the order impugned that charges were framed against applicant and matter was fixed for prosecution evidence. As such the trial is at a stage of Section 242 Cr.P.C.

10. At this juncture, an application dated 28.07.2023 (paper No.18Kha) was filed on behalf of accused applicant before court below on the plea of alibi that since applicant was not present in Varanasi at the relevant time as he had gone to Nasik on

14.01.2021 and thereafter started working in a company named as 'Andiglature' which is involved in grape packaging, therefore, DNA test of the prosecutrix and her child be conducted to ascertain the guilt/innocence of applicant.

11. Aforementioned application was opposed by the prosecution. However, it appears that no written objections were filed to the same.

12. Ultimately court below upon perusal of the facts stated in the application as well as the plea raised in support of aforementioned application in the light of material on record rejected the said application vide order dated 02.09.2023. Court below upon appraisal and appreciation of the material on record and the relevant provisions of the Code i.e. Cr.P.C. concluded that charges have already been framed against applicant vide framing of charge order dated 31.08.2022, the trial is at the stage of prosecution evidence, as such the Court is to ensure compliance of Sections 230 and 231 Cr.P.C., at this stage, no evidence can be collected by Court at the instance of the defence/accused, the case law relied upon on behalf of accused i.e. Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia, (2024) 7 SCC 773, Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik, (2014) 2 SCC 576 and Narayan Dutt Tiwari Vs. Rohit Shekhar, (2012) 12 SCC 554 are distinguishable on the facts as DNA test was permitted by Court in aforementioned cases on account of exceptional and unavoidable circumstances. Since the trial is at prosecution evidence stage, therefore, no final opinion regarding the necessity of DNA test can be formed/given at this stage, in view of above, aforementioned application filed on behalf of accused/applicant is neither maintainable nor any opinion on the DNA test being necessary and unavoidable can be given.

13. Thus, feeling aggrieved by the above order dated 02.09.2023 applicant who is a juvenile but a charge-sheeted accused has now approached this Court by means of present application under Section 528 BNSS.

14. Mr. Abhinav Mukharjee along with Mr. Amarnath Tripathi, the learned counsel for applicant contends that order impugned in present application is manifestly illegal and without jurisdiction. As such the same is liable to be quashed by this Court. In support of above, the learned counsel for applicant invited the attention of Court to the application dated 28.07.2023 (paper No.18Kha) and on basis thereof he contends that perusal of the aforesaid application, copy of which is on record at page-78 of the paper book will go to show applicant is innocent as he was not present in Varanasi at the relevant time. The application was primarily based on the plea of alibi which was substantially evidenced by material facts. The facts as mentioned in the aforesaid application ultimately go to establish the innocence of applicant. Moreover in case the DNA test of the prosecutrix and the child is allowed to be conducted then the innocence/guilt of the applicant shall stand proved scientifically. The ultimate object of trial is to find the truth and therefore the DNA test of prosecutrix and child be conducted to find out the truth. As such the application was liable to be allowed as it does not cause any impediment in the discovery of truth. To buttress his submission, the learned counsel for applicant has relied upon the following judgments of Supreme Court in Dipanwita Roy Vs. Ronobroto Roy, (2015) 1 SCC 365, Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia, (2024) 7 SCC 773, Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik, (2014) 2 SCC 576 and Narayan Dutt Tiwari Vs. Rohit Shekhar, (2012) 12 SCC 554, wherein the Court has allowed the prayer for conducting the DNA test.

15. According to the learned counsel for applicant, since no such circumstance has emerged on record on the basis of which the observations made by Apex Court in aforementioned judgments could be distinguished, court below has erred in law in rejecting the application dated 28.07.2023 (paper No.18Kha) filed by applicant. On the above premise, the learned counsel for applicant thus submits that the order impugned cannot be sustained and is therefore liable to be quashed by this Court.

16. Per contra, the learned AGA for State-opposite party-1 has vehementally opposed the present application. Learned AGA submits that order impugned in present application is perfectly just and legal and thus no interference is warranted by this Court in present application. According to the learned AGA, the submissions urged by the learned counsel for applicant in support of this application appear to be fanciful and attractive at the first flush but upon deeper scrutiny they appear to be devoid of merit and therefore liable to be rejected.

17. Learned AGA contends that admittedly the charges have been framed against applicant by court below in exercise of jurisdiction under Section 228 Cr.P.C. It is by now well settled that once the charges have been framed, the Court is bound to answer the same. As such court below cannot pre-empt the trial. Secondly; trial is at prosecution evidence stage i.e. Section 242 Cr.P.C. By reason of above court below is to ensure compliance of Sections 230 and 231 Cr.P.C. i.e. for prosecution evidence. At this stage, no exercise can be undertaken by court below to collect defence evidence. Moreover, the findings returned by court below in the order impugned could not be dislodged as being illegal, perverse or erroneous. Once the findings returned by court below in the order impugned could not be dislodged, the conclusion cannot be altered. On the above conspectus, the learned AGA thus submits that no good ground for interference by this Court is made out in present application. In view of above, the present application is liable to be dismissed.

18. Having heard the learned counsel for applicant, the learned AGA for State-opposite party-1, upon perusal of record and considering the rival submissions. this Court finds that the application dated 28.07.2023 (paper No.18Kha) was filed on behalf of applicant with the prayer that the DNA test of the prosecutrix and her new born child be conducted. The aforesaid application was filed on the plea of alibi i.e. the accused applicant was not present in Varanasi at the relevant point of time. The factual basis of aforesaid plea has been raised in paragraph No.5 of the aforesaid application which is accordingly reproduced hereinunder: "5. यह कक पपरर कदनपनक 14.01.2021 कक गपडड सनखयप 01094 महपनगरड एकसपपस सप नपससक चलप गयप और वहपह कदनपनक 17.01.2021 सप नमबर 2642509411 पड.एन.आर. एनडडगलपचर कमपनड जक अनगगर पपक करनप कप कपम करतड हप, कमपनड कक उपससरकत पनसजकप कक छपयपपकत पपररनप पत कप सपर सनलग हप।" इसमम कपम करनप लगप। पपरर उक

19. It is by now well settled that the plea of alibi is subject to trial evidence. The facts relied upon by applicant in support of the plea of alibi raised by him are not of impeccable character. As such it cannot be said that the plea of alibi raised by applicant is established beyond doubt. As such no cast iron case is made out for directing the DNA test of the prosecutrix and her new born child.

20. Apart from above, the Apex Court has held that DNA test cannot be directed by Courts as a matter of course. On account of serious social effects of such a test, the Apex Court has repeatedly cautioned that such a power should be exercised with care and caution and only when compelling and unavoidable circumstances have emerged on record. In this regard, reference be made to the following judgments of the Supreme Court: (i) Goutam Kundu vs. State of West Bengal, (1993) 3 SCC 418, (ii) Amarjit Kaur vs. Harbhajan Singh and Anr., (2003) 10 SCC 228, (iii) Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women and Anr., (2010) 8 SCC 633 (iv) Dipanwita Roy vs. Ronobroto Roy, (2015) 1 SCC 365 (v) Ashok Kumar vs. Raj Gupta and Ors., (2022) 1 SCC 20 (vi) Aparna Ajinkya Firodia vs. Ajinkya Arun Firodia, (2024) 7 SCC 773 and (vii) Ivan Rathinam vs. Milan Joseph, 2025 SCC OnLine SC 175.

21. In view of the discussion made above, present application fails and is liable to be dismissed.

22. It is accordingly dismissed. Order Date :- 13.5.2025 R.S. Tiwari

Trial no. 1249 of 2021 (State vs. Juvenile) arising out of Case crime no. 0386 of 2021 under sections 376 I.P.C. and Section 5J(2)/6 P.O.C.S.O. Act, Police Station-Cholapur, District- Varanasi and allow the application 18- kha dated 28.07.2023 filed by the applicant. It is further prayed that this Hon'ble Court may graciously be pleased to stay the entire proceeding of Special Sessions Trial no. 1249 of 2021 (State vs. Juvenile) arising out of Case crime no. 0386 of 2021 under sections 376 I.P.C. and Section 5J(2)/6 P.O.C.S.O. Act, Police Station Cholapur, District-Varanasi, pending in the court of Additional District and Sessions Judge/Special Judge (POCSO ACT), court no.2, Varanasi, during the pendency of the instant application and/or to pass such other or further under which this Hon'ble Court may deem fit and proper under the peculiar circumstances, otherwise the applicant shall suffer an irreparable loss and injury."

6. Record shows that an FIR dated 08.10.2021 was lodged by first informant-opposite party-2- Lallan Ram (father of the prosecutrix) and was registered as Case Crime No.0386 of 2021 under Section 376 IPC and Section 3/4 of the POCSO Act, Police Station- Cholapur, District- Varanasi. In the aforesaid FIR applicant- Juvenile X has been nominated as solitary named accused.

7. Gravamen of the FIR is to the effect that daughter of first informant i.e. prosecutrix is aged about 16 years. Applicant who is resident of the same village used to frequently visit the house of first informant. He is also alleged to have stated that he shall solemnize marriage with the prosecutrix. On the aforesaid false promise of marriage, accused applicant repeatedly dislodged the modesty of the prosecutrix by committing rape upon her. Ultimately the prosecutrix came in family way and the age of embriyo was aged about 7 months. Applicant is further alleged to have refused to solemnize marriage with the prosecutrix. The occurrence was stated to be about 5 to 6 months old.

8. After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. On the basis of material collected by him during course of investigation, he came to the conclusion that offence complained of against applicant is fully established. He accordingly submitted the charge-sheet/police report in terms of Section 173 (2) Cr.P.C. before the concerned Juvenile Justice Board. Since the applicant-Juvenile X was above 16 years of age accordingly the matter was referred by the Juvenile Justice Board to the regular Court/Child Court. Resultantly Special Sessions Trial No.1249 of 2021 (State Vs. Juvenile) arising out of Case Crime No.0386 of 2021 under Sections 376 IPC and Section 5J(2)/6 POCSO Act, Police Station Cholapur, District Varanasi came to be registered in the Court of Additional District and Sessions Judge/Special Judge (POCSO Act), Court No.2, Varanasi.

9. It appears from the order impugned that charges were framed against applicant and matter was fixed for prosecution evidence. As such the trial is at a stage of Section 242 Cr.P.C.

10. At this juncture, an application dated 28.07.2023 (paper No.18Kha) was filed on behalf of accused applicant before court below on the plea of alibi that since applicant was not present in Varanasi at the relevant time as he had gone to Nasik on

14.01.2021 and thereafter started working in a company named as 'Andiglature' which is involved in grape packaging, therefore, DNA test of the prosecutrix and her child be conducted to ascertain the guilt/innocence of applicant.

11. Aforementioned application was opposed by the prosecution. However, it appears that no written objections were filed to the same.

12. Ultimately court below upon perusal of the facts stated in the application as well as the plea raised in support of aforementioned application in the light of material on record rejected the said application vide order dated 02.09.2023. Court below upon appraisal and appreciation of the material on record and the relevant provisions of the Code i.e. Cr.P.C. concluded that charges have already been framed against applicant vide framing of charge order dated 31.08.2022, the trial is at the stage of prosecution evidence, as such the Court is to ensure compliance of Sections 230 and 231 Cr.P.C., at this stage, no evidence can be collected by Court at the instance of the defence/accused, the case law relied upon on behalf of accused i.e. Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia, (2024) 7 SCC 773, Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik, (2014) 2 SCC 576 and Narayan Dutt Tiwari Vs. Rohit Shekhar, (2012) 12 SCC 554 are distinguishable on the facts as DNA test was permitted by Court in aforementioned cases on account of exceptional and unavoidable circumstances. Since the trial is at prosecution evidence stage, therefore, no final opinion regarding the necessity of DNA test can be formed/given at this stage, in view of above, aforementioned application filed on behalf of accused/applicant is neither maintainable nor any opinion on the DNA test being necessary and unavoidable can be given.

13. Thus, feeling aggrieved by the above order dated 02.09.2023 applicant who is a juvenile but a charge-sheeted accused has now approached this Court by means of present application under Section 528 BNSS.

14. Mr. Abhinav Mukharjee along with Mr. Amarnath Tripathi, the learned counsel for applicant contends that order impugned in present application is manifestly illegal and without jurisdiction. As such the same is liable to be quashed by this Court. In support of above, the learned counsel for applicant invited the attention of Court to the application dated 28.07.2023 (paper No.18Kha) and on basis thereof he contends that perusal of the aforesaid application, copy of which is on record at page-78 of the paper book will go to show applicant is innocent as he was not present in Varanasi at the relevant time. The application was primarily based on the plea of alibi which was substantially evidenced by material facts. The facts as mentioned in the aforesaid application ultimately go to establish the innocence of applicant. Moreover in case the DNA test of the prosecutrix and the child is allowed to be conducted then the innocence/guilt of the applicant shall stand proved scientifically. The ultimate object of trial is to find the truth and therefore the DNA test of prosecutrix and child be conducted to find out the truth. As such the application was liable to be allowed as it does not cause any impediment in the discovery of truth. To buttress his submission, the learned counsel for applicant has relied upon the following judgments of Supreme Court in Dipanwita Roy Vs. Ronobroto Roy, (2015) 1 SCC 365, Aparna Ajinkya Firodia Vs. Ajinkya Arun Firodia, (2024) 7 SCC 773, Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik, (2014) 2 SCC 576 and Narayan Dutt Tiwari Vs. Rohit Shekhar, (2012) 12 SCC 554, wherein the Court has allowed the prayer for conducting the DNA test.

15. According to the learned counsel for applicant, since no such circumstance has emerged on record on the basis of which the observations made by Apex Court in aforementioned judgments could be distinguished, court below has erred in law in rejecting the application dated 28.07.2023 (paper No.18Kha) filed by applicant. On the above premise, the learned counsel for applicant thus submits that the order impugned cannot be sustained and is therefore liable to be quashed by this Court.

16. Per contra, the learned AGA for State-opposite party-1 has vehementally opposed the present application. Learned AGA submits that order impugned in present application is perfectly just and legal and thus no interference is warranted by this Court in present application. According to the learned AGA, the submissions urged by the learned counsel for applicant in support of this application appear to be fanciful and attractive at the first flush but upon deeper scrutiny they appear to be devoid of merit and therefore liable to be rejected.

17. Learned AGA contends that admittedly the charges have been framed against applicant by court below in exercise of jurisdiction under Section 228 Cr.P.C. It is by now well settled that once the charges have been framed, the Court is bound to answer the same. As such court below cannot pre-empt the trial. Secondly; trial is at prosecution evidence stage i.e. Section 242 Cr.P.C. By reason of above court below is to ensure compliance of Sections 230 and 231 Cr.P.C. i.e. for prosecution evidence. At this stage, no exercise can be undertaken by court below to collect defence evidence. Moreover, the findings returned by court below in the order impugned could not be dislodged as being illegal, perverse or erroneous. Once the findings returned by court below in the order impugned could not be dislodged, the conclusion cannot be altered. On the above conspectus, the learned AGA thus submits that no good ground for interference by this Court is made out in present application. In view of above, the present application is liable to be dismissed.

18. Having heard the learned counsel for applicant, the learned AGA for State-opposite party-1, upon perusal of record and considering the rival submissions. this Court finds that the application dated 28.07.2023 (paper No.18Kha) was filed on behalf of applicant with the prayer that the DNA test of the prosecutrix and her new born child be conducted. The aforesaid application was filed on the plea of alibi i.e. the accused applicant was not present in Varanasi at the relevant point of time. The factual basis of aforesaid plea has been raised in paragraph No.5 of the aforesaid application which is accordingly reproduced hereinunder: "5. यह कक पपरर कदनपनक 14.01.2021 कक गपडड सनखयप 01094 महपनगरड एकसपपस सप नपससक चलप गयप और वहपह कदनपनक 17.01.2021 सप नमबर 2642509411 पड.एन.आर. एनडडगलपचर कमपनड जक अनगगर पपक करनप कप कपम करतड हप, कमपनड कक उपससरकत पनसजकप कक छपयपपकत पपररनप पत कप सपर सनलग हप।" इसमम कपम करनप लगप। पपरर उक

19. It is by now well settled that the plea of alibi is subject to trial evidence. The facts relied upon by applicant in support of the plea of alibi raised by him are not of impeccable character. As such it cannot be said that the plea of alibi raised by applicant is established beyond doubt. As such no cast iron case is made out for directing the DNA test of the prosecutrix and her new born child.

20. Apart from above, the Apex Court has held that DNA test cannot be directed by Courts as a matter of course. On account of serious social effects of such a test, the Apex Court has repeatedly cautioned that such a power should be exercised with care and caution and only when compelling and unavoidable circumstances have emerged on record. In this regard, reference be made to the following judgments of the Supreme Court: (i) Goutam Kundu vs. State of West Bengal, (1993) 3 SCC 418, (ii) Amarjit Kaur vs. Harbhajan Singh and Anr., (2003) 10 SCC 228, (iii) Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women and Anr., (2010) 8 SCC 633 (iv) Dipanwita Roy vs. Ronobroto Roy, (2015) 1 SCC 365 (v) Ashok Kumar vs. Raj Gupta and Ors., (2022) 1 SCC 20 (vi) Aparna Ajinkya Firodia vs. Ajinkya Arun Firodia, (2024) 7 SCC 773 and (vii) Ivan Rathinam vs. Milan Joseph, 2025 SCC OnLine SC 175.

21. In view of the discussion made above, present application fails and is liable to be dismissed.

22. It is accordingly dismissed. Order Date :- 13.5.2025 R.S. Tiwari