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Jharkhand High Court · body

2012 DIGILAW 1702 (JHR)

Meera Devi v. State of Jharkhand

2012-12-10

D.N.PATEL, PRASHANT KUMAR

body2012
ORDER 1. The present petition has been preferred by the petitioner for getting custody of the boy, namely, Sunil Oraon alias Ravish alias Kittu Kumar. It is contended by the counsel for the petitioner that the boy, who was found in the custody of respondent No.7, is the son of the petitioner and she had lost the boy (her son) previously. The petitioner's son was missing since th March, 2010. Information to this effect was given to Sukhdeonagar Police Station, Ranchi, but, no step was taken by the police. Thereafter, the petitioner got the whereabouts of her son and ultimately they found their son. They reached to the concerned police station again and had gone to the house of respondent No.7. The boy was identified by the petitioner and another sister and brother of the boy, but, the respondent No.7 refused to give custody of the boy to the petitioner and, therefore, the present petition has been preferred for getting custody of Sunil Oraon alias Ravish alias Kittu Kumar to the petitioner. 2. This Court vide order dated 7th November, 2012, had called the boy in the Court along with the police and along with one Pachwa Devi, wife of Fulchand Mahli, of village Ganeshpur, P.S. Chanho, District – Ranchi, who is Board Member of Village Ganeshpur, P.S. Chanho, District Ranchi. The matter was fixed for 8th November, 2012. On that day, this Court had directed the respondents-State authorities to carry out DNA test of the petitioner as well as the respondent No.7 as well as the boy for determination of motherhood. The necessary blood samples were drawn by the Forensic Medicine and Toxicology, Rajendra Institute of Medical Sciences, Ranchi (RIMS). The blood samples were properly sealed and the blood samples along with impression of the seal were forwarded to the State Forensic Science Laboratory, Ranchi. By the said order, this Court had directed to present the report of the Forensic Science Laboratory before this Court. The said report was received on 27th November, 2012 and again a detailed order was passed by this Court. The sealed cover was open and the copy of the report was given to the counsel for both sides. Looking to the said report given by the Forensic Science Laboratory, Ranchi, the DNA profile of Sunil Oraon alias Ravish alias Kittu Kumar is matching with the DNA Profile of the petitioner. The sealed cover was open and the copy of the report was given to the counsel for both sides. Looking to the said report given by the Forensic Science Laboratory, Ranchi, the DNA profile of Sunil Oraon alias Ravish alias Kittu Kumar is matching with the DNA Profile of the petitioner. The said report is on the record of this writ petition. There is a further clarity given in the Forensic Science Laboratory report that the DNA profile of Sunil Oraon alias Ravish alias Kittu Kumar is not matching with the DNA report of Smt. Bolo Oraon (respondent No.7) and the conclusion given by the Director of Forensic Science Laboratory, Ranchi in the report is that Sunil Oraon alias Ravish alias Kittu Kumar is a biological male child of Smt. Meera Devi (petitioner). The respondent No.7 was also in the Court on the said day. With a view to give chance to represent through lawyer, we had appointed a Senior Counsel as well as an Advocate on record. On the next date i.e. th December, 2012, the said Senior Advocate Sri Binod Poddar, who was appearing as a counsel on behalf of respondent No.7, showed his inability to appear. Then, we appointed Sri Ramesh Kumar Singh, learned Advocate, to be assisted by Sri Ashish Verma. Today, we have heard learned counsel for both the sides at length. 3. Counsel for respondent No.7 have vehemently submitted that there are minimal chances of errors in the DNA test, but, the fact remains that Court should not rely exclusively or solely upon the DNA test for grant of custody of the boy to the petitioner. Moreover, the blood samples of three persons which were taken by Forensic Medicine and Toxicology, Rajendra Institute of Medical Sciences, Ranchi were handed over to the police and, thereafter, the police handed over the same to the State Forensic Science Laboratory, Ranchi and, therefore, there are some chances of manipulation of the blood samples. Counsel for the respondent No.7 have also pointed out that the Court should not rely on DNA test solely and there should be some other evidences on record for giving custody of the boy to the petitioner or for deciding the parentage of the boy or the motherhood of the boy. 4. Counsel for the respondent No.7 have also pointed out that the Court should not rely on DNA test solely and there should be some other evidences on record for giving custody of the boy to the petitioner or for deciding the parentage of the boy or the motherhood of the boy. 4. Counsel for the petitioner vehemently submitted that it is not the case of respondent No.7 that she is a biological mother, looking to the statement recorded by the police. A case was already registered by the police and the police have recorded certain statements. The respondent No.7 has stated before the police that respondent No.7 was given custody of the boy by one Jitendra Pandey, who is driver of one truck. Now the question is of whose boy was in the custody of Jitendra Pandey. The police has stated that Jitendra Pandey got the custody of boy from Namkum Railway Crossing where he had seen the boy walking all alone and, from there, he had taken custody of the body and, ultimately as the truck driver was belonging to Village Ganeshpur, the custody was given to respondent No.7. Whereas the petitioner had already approached the Police Station namely Sukhdeonagar Police Station, Ranchi that the boy was missing since 17th March 2010. Moreover, the boy had also identified the present petitioner when the petitioner had gone to respondent No.7. Petitioner had one more son and daughter, who are brother and sister of the boy in question. This boy Sunil Oraon alias Ravish alias Kittu Kumar also identified his brother and sister who are son and daughter of the present petitioner. Moreover, the DNA test report has also clearly stated that the petitioner is biological mother of the boy namely Sunil Oraon alias Ravish alias Kittu Kumar and in view of this, the custody of the boy may now be handed over to the petitioner. Counsel for the petitioner has submitted that no error has been committed by the respondentsState authorities in drawing the blood samples of the petitioner and of the boy and of the respondent No.7. The blood samples of the three persons were drawn by Forensic Medicine and Toxicology, Rajendra Institute of Medical Sciences, Ranchi. All the three blood samples were properly sealed. The impression of the seal was also given and in a sealed cover, it was got reached to the Forensic Science Laboratory, Ranchi. The blood samples of the three persons were drawn by Forensic Medicine and Toxicology, Rajendra Institute of Medical Sciences, Ranchi. All the three blood samples were properly sealed. The impression of the seal was also given and in a sealed cover, it was got reached to the Forensic Science Laboratory, Ranchi. Looking to the report given by the Forensic Science Laboratory, Ranchi, the seals were intact. Secondly, the seal was matching with the impression of the seal given by the Forensic Medicine and Toxicology, Rajendra Institute of Medical Sciences, Ranchi. Thus, in a properly sealed condition, the blood samples reached the Forensic Science Laboratory, Ranchi, where, they were opened, necessary tests were carried out and DNA Profile of the boy is now matching with the DNA profile of the petitioner. It is also stated in the report given by the Forensic Science Laboratory that the DNA profile of the boy is not matching with the DNA profile of the respondent No.7 and the conclusion reached by the Director as well as Deputy Director of the Forensic Science Laboratory, Ranchi is that Sunil Oraon alias Ravish alias Kittu Kumar is the biological male child of Smt. Meera Devi (petitioner). It is also submitted by the counsel for the State that even as per the respondent No.7, the boy is not the son of respondent No.7. In fact, the boy was walking all alone near Namkum Railway Crossing. It was submitted by the counsel for the State that husband of petitioner had gone to Gorakhpur (Uttar Pradesh)where they lost their son, whereas it is submitted by the counsel for the State that the custody of Sunil Oraon alias Ravish alias Kittu Kumar was initially got by one Jitendra Pandey, who is a truck driver while this boy was all alone walking nearby Namkum Railway Crossing which is nearby the capital of the State of Jharkhand. He took the custody of the boy with him and as he was belonging to Village Ganeshpur, P.S. Chanho, District Ranchi, he reached with the boy at Village Ganeshpur where he handed over the custody of the boy to respondent No.7. He took the custody of the boy with him and as he was belonging to Village Ganeshpur, P.S. Chanho, District Ranchi, he reached with the boy at Village Ganeshpur where he handed over the custody of the boy to respondent No.7. Thus, the respondent No.7 is not mother of the Sunil Oraon alias Ravish alias Kittu Kumar and this aspect of the matter has now been scientifically clarified by the report given by the State Forensic Science Laboratory, Ranchi and, therefore, custody of the boy may be handed over to the petitioner. It is also submitted by the counsel for the State that if the respondent No.7 wants to file any declaratory suit for proving that she is mother of the boy, she can do so by initiating an independent proceeding, but, so far as this proceeding is concerned, there is DNA test report in favour of the petitioner and, therefore, custody of the boy may be handed over to the petitioner. 5. Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, it appears that the present petitioner's son was missing since 17th March, 2010. To that effect, information was given to the Sukhdeonagar Police Station. To that effect, there was a paper publication also. Thereafter the boy was not traceable. Petitioner got whereabouts of her son that at a particular place the boy is staying with someone. She reached the village Ganeshpur under Chanho Police Station (Ranchi) where the son of the petitioner was playing with respondent No.7. The boy also identified the petitioner. The petitioner is also having one more son and daughter who are brother and sister of the boy in question. This boy had also identified his brother and sister, but, the respondent No.7 refused to give custody of the boy, namely, Sunil Oraon alias Ravish alias Kittu Kumar, to the petitioner and, therefore, the present petition has been preferred. As stated herein above, we have issued notices upon the respondents. The boy was ordered to be presented before this Court. This Court also passed another order to carry out DNA tests by taking necessary blood samples at the cost of the petitioner. The blood samples were taken of the petitioner, respondent No.7 as also the boy in question. As stated herein above, we have issued notices upon the respondents. The boy was ordered to be presented before this Court. This Court also passed another order to carry out DNA tests by taking necessary blood samples at the cost of the petitioner. The blood samples were taken of the petitioner, respondent No.7 as also the boy in question. The blood samples were taken by Forensic Medicine and Toxicology, Rajendra Institute of Medical Sciences, Ranchi, as stated by the counsel for the State. Thereafter, the blood samples were properly sealed. The seal impression was also given for proper matching by the Forensic Science Laboratory, Ranchi. Thereafter, the blood samples were sent to the Forensic Science Laboratory, State of Jharkhand, Ranchi. We received the report of the blood samples of the said three persons and it has been narrated in the report jointly given by the Director as well as Deputy Director, Forensic Science Laboratory, Ranchi that the seals were intact and they were matching with the impression of the seal also. DNA tests were carries out and the DNA profile of Sunil Oraon alias Ravish alias Kittu Kumar was matching with the DNA profile of the petitioner. It has also been stated in the report given by the Forensic Science Laboratory that DNA profile of the boy is not matching with the DNA profile of the respondent No.7 and, the conclusion arrived at by the Forensic Science Laboratory's Director as well as Deputy Director that Sunil Oraon alias Ravish alias Kittu Kumar is biological male child of Smt. Meera Devi (petitioner). For the ready reference, the observation as well as the conclusion made jointly by the Director as well as the Deputy Director of the Forensic Science Laboratory, Ranchi reads as under: Observation: 1. DNA profile generated from the DNA extracted from the Exhibit markedA (source: Blood of Sunil Oraon alias Ravish alias Kittu Kumar in EDTA vial and also soaked on cotton) belongs to a human male. 2. DNA profile generated from the DNA extracted from each of the sources of Exhibit markedB (source: Blood of Smt. Meera Devi in EDTA vial and also soaked on cotton) and Exhibit markedC (source: Blood of Smt. Bolo Orain in EDTA vial and also soaked on cotton) belong to two different human females. 3. 2. DNA profile generated from the DNA extracted from each of the sources of Exhibit markedB (source: Blood of Smt. Meera Devi in EDTA vial and also soaked on cotton) and Exhibit markedC (source: Blood of Smt. Bolo Orain in EDTA vial and also soaked on cotton) belong to two different human females. 3. The maternal alleles of the source of Exhibit markedA (source: Blood of Sunil Oraon alias Ravish alias Kittu Kumar in EDTA vial and also soaked on cotton) have been accounted to be present in the DNA profile of the Exhibit markedB (source: Blood of Smt. Meera Devi in EDTA vial and also soaked on cotton). 4. The maternal alleles of Exhibit marked-A (source: Blood of Sunil Oraon alias Ravish alias Kittu Kumar in EDTA vial and also soaked on cotton) did not match to the DNA profile of Exhibit markedC (source: Blood of Smt. Bolo Orain in EDTA vial and also soaked on cotton) at six different loci. Conclusion: The DNA test performed on the exhibits noted above is sufficient to conclude that-1. Sunil Oraon alias Ravish alias Kittu Kumar (Source of exhibit markedA) is biological male child of Smt. Meera Devi (Source of exhibitB).” 6. Moreover, adequate opportunity of hearing was given to respondent No.7. She was also present in the Court on previous occasions. Initially she refused to argue out anything. Looking to the gravity of the case and the consequences of the writ petition, we had appointed a Senior Counsel along with Advocate on record. One Sri Binod Poddar, Senior Counsel, was appointed to argue out the case on behalf of respondent No.7. On the next date of hearing, the said Senior Counsel shown his inability, therefore, we had appointed another Advocate Sri Ramesh Kumar Singh along with Advocate on record Sri Ashish Verma. They had also interacted with the respondent No.7, but respondent No.7 has not filed any affidavit controverting the report nor any document or evidence has been presented by respondent No.7, whereas, the petitioner has stated herein above that she has given information to the police about missing of her son. Thereafter also, paper publication was made, colour photographs of the boy were also annexed at Annexure5, in the memo of petition filed by the petitioner. Besides, there is a DNA profile test in favour of the petitioner. Thereafter also, paper publication was made, colour photographs of the boy were also annexed at Annexure5, in the memo of petition filed by the petitioner. Besides, there is a DNA profile test in favour of the petitioner. Meanwhile, we have handed over the custody of the boy to Boy's Observation Home, Dumardaga, Booty More, Ranchi. We, therefore, direct the Director of Boy's Observation Home, Dumardaga, Booty More, Ranchi to hand over the custody of Sunil Oraon alias Ravish alias Kittu Kumar to the petitioner forthwith on proper identification of the petitioner. The respondent No.7, if they are so choosing, is at liberty to file a declaratory suit before the appropriate forum. 7. We appreciate the assistance rendered by the learned counsel Sri Ramesh Kumar Singh as also Sri Ashish Verma. As Sri Ashish Verma is an Advocate on record of Jharkhand State Legal Services Authority, Ranchi, his cost and fees shall be borne by the Jharkhand State Legal Services Authority. So far cost and fee of Sri Ramesh Kumar, Advocate, is concerned, we hereby direct the State of Jharkhand to make payment of Rs.10000/(Rupees Ten Thousand) towards the total fees for his arguments in the present case. The fees of Sri Ramesh Kumar Singh, learned Advocate, must be paid within four weeks from the date of receipt of a copy of this order. The counsel for the State submitted that the said fees of Sri Ramesh Kumar Singh will be borne by the Home Department of the State of Jharkhand. 8. The boy, namely, Sunil Oraon alias Ravish alias Kittu Kumar, who is present in Court today, is directed to be taken back to the Boy's Observation Home, Dumardaga, Booty More, Ranchi, for compliance of the order. Ordered accordingly.