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2016 DIGILAW 61 (CAL)

Bappaditya Ghosh v. State of West Bengal

2016-01-19

SHIVAKANT PRASAD

body2016
JUDGMENT : Shivakant Prasad, J. Challenge in this revisional application is against an order dated 28.11.2014 passed by the learned Additional Sessions Judge, F.T.C. 2nd Court, Hooghly, in Sessions Trial Case No. 33/2013 and Sessions Case No. 139/2013 arising out of Pandua Police Station Case No. 282/11 dated 03.11.2011 under Sections 376/417 of the Indian Penal Code thereby, allowing the prayer of the prosecution for holding a DNA test of the accused and the child. Chronological events of this case is that the petitioner was arraigned as an accused in connection with Pandua Police Station Case No. 282/11 dated 03.11.2011 under Sections 376/420 of the Indian Penal Code, which was registered on the basis of a written complaint lodged by the opposite party no. 2 against him. On conclusion of investigation, the Investigating Officer submitted Charge-sheet being No. 115/2012 dated 31.5.2012 under Section 376 of the Indian Penal Code against the present petitioner. The case was committed to the Court of Sessions and cognizance was taken as per Section 193 Cr.P.C. The session trial was started after framing of Charges under Section 376/417 of the Indian Penal Code to which the petitioner abjured the guilt and claimed to be tried. During trial, a petition was filed on behalf of the prosecution on 20.8.2014 praying for holding DNA test of the petitioner and the child of the opposite party no. 2 and the petitioner filed an objection to it and after contested hearing the learned trial Judge was pleased to allow the application of the prosecution for holding DNA test vide order dated 28.11.2014 at the stage when examination of 3 prosecution witnesses was completed. Being aggrieved by and dissatisfied with the impugned order dated 28.11.2014 passed by the learned Additional District Judge, Fast Track Court, 2nd Court, Hooghly in S. T. Case No. 33/13 and S.C. Case No. 139/13 arising out of Pandua Police Station Case No. 282/11 dated 03.11.2011 under Sections 376/417 of the Indian Penal Code thereby, inter alia, allowing the prayer of the prosecution for holding a DNA test, inter alia, on the grounds that the learned Judge has observed in the impugned order that during cross-examination the learned Counsel for the defence had put a suggestion that the petitioner has not fathered the child born to the opposite party no. 2 and in view of such suggestion, DNA test is necessary to prove the physical relationship between them; determination of paternity is within the domain of the civil court and the learned Judge has exceeded his jurisdiction in passing the impugned order and that the opposite party no. 2 was cross-examined in September, 2013 and it is absolutely absurd what prompted the prosecution to act on such cross-examination and prefer an application for DNA test after lapse of almost a year. Accordingly, the petitioner has prayed for setting aside the impugned order as bad in law and in fact. Now the point for decision is as to whether the order impugned is tenable in law. Learned Counsel for the petitioner has submitted that the Sessions Court has no authority to pass an order for DNA test and in support of his submission, has placed reliance on the decisions, viz., Sharda Vs. Dharmpal, (2003) 4 Supreme Court Cases 493; Goutam Kundu Vs. State of West Bengal and Another, 1993 Supreme Court Cases (Cri) 928; Dipanwita Roy Vs. Ronobroto Roy reported in (2015) 1 Supreme Court Cases 365; Anandamay Bag Vs. State of West Bengal & Anr., 2007(4) CHN 470 and Sabur Hossain Biswas @ Paltu Vs. The State of West Bengal and Ors. (2008) 1 C Cr LR (Cal) 332. In case of Goutam Kundu (Supra) the Hon’ble Supreme Court held thus— “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. In matters of this kind the court must have regard to Section 112 of the Evidence Act where the words ‘conclusive proof’ must be understood by their definition in Section 4. That section is based on the well-known maxim pate rest quem nuptiae demostrant (he is the father whom the marriage indicates). In matters of this kind the court must have regard to Section 112 of the Evidence Act where the words ‘conclusive proof’ must be understood by their definition in Section 4. That section is based on the well-known maxim pate rest quem nuptiae demostrant (he is the father whom the marriage indicates). It is a rebuttable presumption of law that a child born during the lawful wedlock is legitimate and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. It throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (percentage) may be presumed, the law in general presuming against vice and immorality. Therefore, there must be a strong prima facie in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act. “Access” and “non-access” mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual “cohabitation”. The case of Gautam Kundu is distinguishable from the instant case in as much as the facts were that after living together for sometime the wife went to reside with her parents in order to prepare for Higher Secondary Examination. In that case legitimacy of child born during his marriage was in question before the Court and the husband had applied before the trial Court for order directing his wife to undergo DNA test to ascertain the paternity of the female child. The wife had filed a petition under Section 125 Cr.P.C. for maintenance. The Chief Judicial Magistrate, Hooghly, passed an ex parte order of maintenance to the mother and to the child. The appellant of the case moved revisional application before the High Court at Calcutta during pendency of which he had filed a Criminal Misc. Petition praying for blood group test of the second respondent and the child to prove that he was not the father of the child as according to him if could be established he would not be liable to pay maintenance. Petition praying for blood group test of the second respondent and the child to prove that he was not the father of the child as according to him if could be established he would not be liable to pay maintenance. So, the Hon’ble Apex Court in that set of facts observed that the parties of the application was nothing more than to avoid payment of maintenance, without making any ground whatsoever to have recourse to the test and the Hon’ble Supreme Court was pleased to confirm the order of the High Court confirming the order of Additional Chief Judicial Magistrate rejecting the application for blood test and it was summed up in paragraph 26 of the cited decision as under— “26. From the above discussion it emerges- (1) That courts in India cannot order blood test as a matter of course; (2) Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained. (3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act. (4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. (5) No one can be compelled to give sample of blood for analysis.” In respectful consideration of the proposition as held in the said decision, I am of the view that though the petitioner may not be compelled to undergo DNA test but presumption would be there as against him if he does not choose to undergo DNA test. It would not be out of the contest to mention here that the petitioner has taken ground in his application that the denial by the petitioner to participate in the DNA test at best gives rise to an adverse presumption against him. It would appear from the materials in record that the defence put a suggestion to the witness during cross-examination that the petitioner is not father of the child born to opposite party no. 2. In view of such a suggestion, the prosecution prayed for DNA test to prove filial relationship between the accused petitioner and the child. It would appear from the materials in record that the defence put a suggestion to the witness during cross-examination that the petitioner is not father of the child born to opposite party no. 2. In view of such a suggestion, the prosecution prayed for DNA test to prove filial relationship between the accused petitioner and the child. It is pertinent to mention that charge-sheet being No. 115/12 dated 31.5.2012 under Section 376 IPC was submitted before the Chief Judicial Magistrate, Hooghly, after investigation in connection with Pandua Police Station Case No. 282/11 dated 03.11.2011 under Section 376 IPC registered on the basis of a complaint of the prosecutrix alleging that the petitioner had cohabited with her on promise to marry as a result she become expectant mother and gave birth to a child but the accused petitioner failed to keep his promise. Thus, this Court finds that the facts and circumstances of the instant case is distinguishable from that of the cited case in Goutam Kundu (Supra). In case of Sharda (Supra) it has been clearly held that the Hindu Marriage Act or any other law governing field does not contain any express provision in putting a Court to issue a direction upon a party to a matrimonial proceedings to compel him to submit himself to a medical examination. However, that does not preclude a Court from passing such an order. In Sharda case, the parties were married in 1991 according to Hindu Rites. In 1995, the respondent filed an application for divorce against the appellant under Section 12(1)(b) and 13(1)(iii) of the Hindu Marriage Act, 1955. He also filed an application seeking direction for medical examination of the appellant. The appellant objected thereto on the ground that the Court had no jurisdiction to pass such directions. The Court allowed the application and directed the appellant to submit herself to the medical examination. After unsuccessfully approaching the High Court, she filed the case before the Hon’ble Apex Court. In respectful consideration of the cited decision, I find that the husband had filed suit for divorce taking a ground that his wife was suffering from unsoundness of mind being incurable but under the provision of the Mental Health Act, 1987, a person suffering from unsoundness of mind can be said to suffer from any sort of bodily disorder but it does not mean that unsoundness of mind is incurable. In the present case it is evident that the learned trial Judge passed the order for DNA test under the circumstances which cropped up during cross-examination of the prime witness when a suggestion was put to the witness by the defence that the petitioner/accused has not fathered the child born to the prosecutrix. In order to dispel the misgivings arising in the mind of the petitioner, the prosecution submitted a prayer for DNA test and the learned Judge passed the order for DNA test with the observation that during cross-examination the learned Counsel for the defence had put a suggestion that the petitioner has not fathered the child born to the opposite party no. 2 and in view of such suggestion, DNA test is necessary to prove the physical relationship between them. Therefore, it cannot be said that the learned Single Judge can be precluded from passing impugned order of DNA test, albeit, the petitioner may not be compelled to undergo DNA test that admittedly a presumption will be taken as against him, if he does not submit to undergo DNA test as ordered by the learned Trial Judge. Therefore, it cannot be said that the learned Single Judge can be precluded from passing impugned order of DNA test, albeit, the petitioner may not be compelled to undergo DNA test that admittedly a presumption will be taken as against him, if he does not submit to undergo DNA test as ordered by the learned Trial Judge. The Hon’ble Supreme Court in a latest decision of Dipanwita case held thus – “The said prayer of husband for conducting a DNA test was aimed at to establish the alleged adulterous behaviour of wife and the issue of legitimacy of son was incidentally involved therein – hence, S. 112 of Evidence Act not strictly attracted to present case – As without DNA test it would be impossible for husband to establish the alleged infidelity of wife, the said test, which is the most legitimate and scientifically perfect means, could be used by husband to establish the assertion of infidelity – simultaneously, the said test could also be used by wife to rebut the assertions made by husband and to establish that she had not been unfaithful, adulterous or disloyal – Hence, the impugned order of High Court directing holding of DNA test of husband and son, held, was fully justified – However, wife given liberty to comply with or disregard the order passed by High Court – If the wife accepts the High Court’s direction, DNA test would conclusively determine the veracity of accusation levelled against her by husband – And if she declines to comply with High Court’s direction, the said allegation would be determined by the court concerned by drawing an adverse inference against her in terms of S. 114 III. (h) of Evidence Act – By adopting such a course, the issue of infidelity alone would be determined, without expressly disturbing the presumption contemplated under S. 112 of Evidence Act. In case she declines to comply with the direction issued by the High Court, the said allegation would be determined by the court concerned by drawing a presumption of the nature contemplated in Section 114 of the Evidence Act, especially, in terms of Illustration (h) thereof. In case she declines to comply with the direction issued by the High Court, the said allegation would be determined by the court concerned by drawing a presumption of the nature contemplated in Section 114 of the Evidence Act, especially, in terms of Illustration (h) thereof. ” Thus, it transpires from the above proposition laid by the Hon’ble Apex Court in the cited decision, that in case the petitioner declines to comply with the direction passed by the learned Trial Judge, it would be justified to draw presumption of the nature contemplated in Section 114 of the Evidence Act especially, in terms of illustration (h) thereof. In case of Anandamay Bag (Supra) it has been held that DNA test is valid test in a rape case but not always relevant, more so when during investigation or during pendency of trial there was no attempt by the prosecution to hold such test. It was alleged that the victim a 13 years girl used to stay in the house of the accused and taking advantage of the situation the accused committed rape on the victim girl. Consequently the victim became pregnant. The trial started and entire evidence was closed and the case was pending for judgment. At that stage prosecution filed an application under Section 311 Cr.P.C. before the learned Trial Court for DNA test of the accused, victim girl and the child born to the victim. The learned Trial Court rejected the prayer of prosecution on the ground that at the belated stage such prayer cannot be accepted against which the prosecution preferred a revisional application before the High Court and in that situation on the ground that application was taken out at the stage of delivery of judgment, the revisional application was dismissed and after disclosure of entire defence case prosecution prayer to hold DNA test of the victim, her male child and accused cannot be allowed to establish the offence under Section 376 of IPC and further held that the DNA test can be decided in a different forum and not in that case. In case of Sabur Hossain Biswas @ Paltu (Supra) it has been held that DNA test is not necessary where guilt of accused petitioner may be established by evidence of witnesses. In case of Sabur Hossain Biswas @ Paltu (Supra) it has been held that DNA test is not necessary where guilt of accused petitioner may be established by evidence of witnesses. The question in the cited decision was whether blood test commonly known as DNA was necessary for establishment of charge under Section 376/417 of Indian Penal Code and it was answered by holding that as it was a case to consider whether the accused petitioner committed rape upon the victim girl, so the Trial Court would not be considering the question as to whether the child was fathered by the accused petitioner. So holding of DNA test would not be relevant to the consideration of the charge of rape. DNA profiling also called as DNA testing or DNA typing is used to identify individuals by characteristics of their DNA and is used for parentage testing. A paternity or maternity test can be used to establish the biological parenthood of an individual. A DNA kinship test will test the relationship between two or more individuals to assess if they are biologically related. Thus, DNA test for filial relationship between the accused petitioner, the child born to the opposite party no. 2 and so also of the latter would be more scientific in my considered view and further in respectful consideration of the decision of Dipanwita Roy Vs. Ronobroto Roy reported in (2015) 1 Supreme Court Cases 365 I hold that the learned Trial Court has rightly passed the order for DNA test of the accused petitioner and the child on consideration of the question raised by defence during cross-examination of the prosecution prime witness with an object in mind to determine the allegation as to whether at all, the petitioner accused has had sexual intercourse with the victim girl as a result of which she was blessed with the child being fathered by the accused petitioner or not. In case the accused petitioner chooses to decline to comply with the direction issued vide order by the learned Trial Court, the said allegation would be determined by the learned Trial Court by drawing presumption as contemplated in Section 114 of Evidence Act. Ergo, this Court is not persuaded by the decisions in case of Anandamay Bag and Sabur Hossain Biswas @ Paltu (Supra). Ergo, this Court is not persuaded by the decisions in case of Anandamay Bag and Sabur Hossain Biswas @ Paltu (Supra). Bestowing upon an anxious consideration to the facts and circumstances of the case and in the context of the above discussion, this Court is pleased to affirm the impugned order passed by the learned Trial Judge. Accordingly, the revisional application being No. C.R.R. 56 of 2015 is dismissed. Let a copy of this order be sent to the learned Trial Court forthwith for information and taking necessary action. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.