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2006 DIGILAW 104 (RAJ)

Chhotu v. The State of Rajasthan

2006-01-09

R.S.CHAUHAN

body2006
JUDGMENT 1. :- Petitioner has challenged the order dated 26.2.2002 passed by the learned Addl.Sessions Judge, Gangapur City, wherein he has declined the prayer made by the petitioner for sending the semen of the accused and the 'Lahanga' of the prosecutrix for D.N.A.Test. 2. Brief facts of the case are that on 24.8.2005 one Sampu Mali lodged a report at Police Station, Bamanwas wherein he has alleged that the petitioner had committed rape on his wife Keshanti while she was working in the field. On the basis of the said report, a First Information Report was registered against the petitioner for offence under section 376IPC and investigation commenced. During the course of investigation, the 'Lahanga' of the prosecutrix was recovered by the police. Meanwhile during potency test of the petitioner his semen was also taken by the Medical Doctor. Both the 'Lahanga' and the semen were sent for F.S.L. for the analysis. However, still in order to prove his innocence, the petitioner filed an application requesting therein that the "Lahanga" and the semen so recovered be sent for D.N.A. Test. However, vide impugned order dated 26.11.2005 the learned Addl.Sessions Judge, dismissed the application. Hence, this petition before us. 3. Learned counsel for the petitioner has contended that the accused has a right to defend his life, liberty and reputation. Since, the accused knows that he is innocent and a false and fabricated case has been hoisted upon him, he moved the said application before the Sessions Court. The only reason given by the learned Addl.Sessions Judge for declining the request made by the petitioner is that since, the sample of the semen and "lahanga" have already been sent to F.S.L. there is no need to send the same for D.N.A. Test. 4. On the other hand, with all fairness, Mr.Jain, learned P.P. agrees to send the sample of semen and "lahanga" should be sent for D.N.A. Test. 5. Right of defend one's life and liberty emanates from Article 21 of the Constitution of India. Therefore, the petitioner has a right to defend his life and liberty. Undoubtedly, the latest F.S.L. facility is available, the D.N.A. Test facility is also available to the Forensic Science. According to Forensic Science, D.N.A. Test is almost a full proof method of identifying the culprit. Therefore, the petitioner has a right to defend his life and liberty. Undoubtedly, the latest F.S.L. facility is available, the D.N.A. Test facility is also available to the Forensic Science. According to Forensic Science, D.N.A. Test is almost a full proof method of identifying the culprit. When a request is made by the accused petitioner, there is no reason to deny the request merely because the sample has already been sent to Forensic Science Laboratory. Such sending of sample to the F.S.L. does not preclude the accused from further requesting to send the sample of semen and "lahanga" for the D.N.A. Test. Hence, in our considered opinion the impugned order dated 26.11.2005 passed by the learned Addl. Sessions Judge, Gangapur City, Distt. Sawai Madhopur is without any legal basis. Therefore, while quashing the aforesaid impugned order, we direct the learned Addl.Sessions Judge, to send the 'Lahanga' and semen so recovered for D.N.A. Test either at Hyderabad or if the facility is made available at Jaipur to he F.S.L. at Jaipur, within two weeks from the date of receipt of the certified copy of this order. Moreover, the trial Court is directed not to pronounce the final judgment in the case till the DNA Report is received.With the aforesaid observations, the Cr. Misc.Petition is disposed of. *******