JUDGMENT : 1. This appeal is by the State being aggrieved by the judgment and order of acquittal dated 24.2.2012 passed by the Presiding Officer, Fast Track Court-III, Bengaluru Rural District, Bengaluru, in Sessions Case No. 232/2010. By the judgment and order, respondent Nos. 1 and 2 accused Nos. 1 and 2 were acquitted for the offences punishable under Sections 376, 354, 114, 120 and 506 read with Section 34 of IPC. 2. Brief facts of the case is that six months prior to 09.10.2009, accused Nos. 1 and 2 conspired to commit rape on PW.1 – Kumari Asha, aged about 16 years and when the prosecutrix, after finishing her coolie work was returning to her house, accused No. 1 all of a sudden came from her back and covering her face with a towel dragged her to a nearby eucalyptus garden of one Bylappa and by threatening her with dire consequences, committed rape. Further, he threatened her not to disclose the same to anyone, or otherwise, he will kill her parents. Thereafter, accused Nos. 1 and 2 followed P.W.1 and at the instigation of accused No. 2, accused No. 1 committed forcible sexual intercourse. Further, on 09.10.2009, at about 12:00 noon, when PW.1 had gone to attend nature’s call in the land of one Hanumantharayappa, at that time, accused Nos. 1 and 2 by holding her tightly and by closing her mouth, committed rape and threatened her with dire consequences. PW.1 became pregnant due to the act committed by the accused. On the basis of the complaint lodged by the victim, case was registered in crime No. 869/2009 of Nelamangala Police Station for the offences punishable under Sections 376, 354, 114, 120 and 506 read with section 34 of IPC. Investigation was taken up. After completion of the investigation, charge sheet came to be filed for the offences punishable under Sections 376, 354, 114, 120 and 506 read with section 34 of IPC. Charges were framed against accused Nos. 1 and 2 for the said offences and when the charges were read over and explained to accused Nos. 1 and 2, they pleaded not guilty and claimed to be tried. Hence, the matter was fixed for trial. In support of its case, the prosecution, in all, examined 17 witnesses as P.Ws.1 to 17 and produced the documents as per Exs.P.1 to P.9 and also got marked M.Os.1 to 11. 1 and 2, they pleaded not guilty and claimed to be tried. Hence, the matter was fixed for trial. In support of its case, the prosecution, in all, examined 17 witnesses as P.Ws.1 to 17 and produced the documents as per Exs.P.1 to P.9 and also got marked M.Os.1 to 11. On the side of the defence, no witnesses were got examined nor any documents got marked. After hearing the arguments on both sides, the Court below came to the conclusion that the prosecution failed to prove any of the charges as against both the accused persons, beyond all reasonable doubt, and hence, acquitted both the accused from the said charges. 3. Being aggrieved by the same and challenging the legality and correctness of the aforesaid judgment and order of acquittal passed by the Court below, the State is before this Court in this appeal and challenging judgment and order of acquittal on the grounds mentioned at ground Nos.1 to 10 in the appeal memorandum. 4. Heard the arguments of learned Additional SPP for the appellant-State, learned Amicus Curiae for the respondents-accused Nos. 1 and 2 and also respondent No. 2 party in person. 5. Learned Additional SPP during the course of the arguments made submission that looking to the complaint averments and also the evidence of victim girl (P.W.1), she has clearly stated about the rape committed on her by accused No. 1 wherein accused No. 2 assisted accused No. 1 in executing the said act. He made submission that, by that time, the victim girl was minor, aged 16 years. In this regard, learned Additional SPP drawing the attention of this Court to the school certificate (Ex.P.9) made submission that the said document clearly goes to show that as on the date of the alleged incident, the victim was minor. In this connection, the learned Additional SPP relies upon the decision of the Apex Court in case of STATE OF MADHYA PRADESH VS. ANOOP SINGH, AIR 2015 SCW 3985 and made submission that the documents issued by the school authorities regarding the date of birth can be relied upon by the Court. The learned Additional SPP also made submission that the second incident was said to have taken place on 9.10.2009. As per the case of prosecution, on the very day, during night, the victim was referred to the medical officer for examination. The learned Additional SPP also made submission that the second incident was said to have taken place on 9.10.2009. As per the case of prosecution, on the very day, during night, the victim was referred to the medical officer for examination. Ex.P.15 is the medical report of the victim. Referring to the said document, the learned Additional SPP made submission that the doctor, who examined the victim girl, noticed injury on the person of the victim girl so also it is mentioned that she was subjected to the sexual act. It is also mentioned that hymen was torn. Even it is noticed by the doctor that she was carrying pregnancy of 24 weeks. The learned Additional SPP made submission that subsequently when trial was going on, the victim girl delivered the male child. In this connection, he made submission that the investigating officer ought to have taken steps for sending the blood samples and taken steps for referring the matter to the expert’s opinion and got the report in the matter. But unfortunately, no steps were taken by the investigating officer. Even when it was deposed in the evidence of prosecution witnesses that the victim gave birth to a male child, the Court below at least could have taken note of the said fact and it would have directed the prosecution for taking steps for referring the matter to the DNA experts for getting the report in the matter. In spite of such evidence before the Court below and the photographs produced wherein the mother along with child are seen, which document is produced as per Ex.P.5, the Court below was totally silent on this aspect and no steps were taken for getting the DNA report in the matter. The report from the DNA authorities could have clinched the issue involved in the case. Hence, he made submission that looking to the prosecution witnesses, more particularly, the victim girl and also the parents of the victim girl and the other witnesses so also the investigating officer, the prosecution has established its case with the help of the medical records. Hence, it is the contention of the learned SPP that in spite of these material, both oral and documentary, the court below came to the conclusion that the prosecution has failed to prove its case beyond all reasonable doubt and acquitted the respondents-accused Nos. 1 and 2 from all the charges. Hence, it is the contention of the learned SPP that in spite of these material, both oral and documentary, the court below came to the conclusion that the prosecution has failed to prove its case beyond all reasonable doubt and acquitted the respondents-accused Nos. 1 and 2 from all the charges. Referring to the evidence of prosecution witnesses, more particularly, P.Ws.1 to 3 during the course of cross examination, he submitted that even there is no suggestion regarding the age of victim girl that she was below the age of 16 years as on the date of the alleged incident. Therefore, he submitted that the girl below the age of 16 years gave her evidence regarding commission of incident two times the rape committed on her, but only on the technical ground, the Court below while discussing and appreciating the prosecution material was of the opinion that there is no consistent and worth believable material on the side of the prosecution. Hence, the learned Addl. SPP submitted that the charge against the accused under Section 376 of IPC is a serious charge framed. The Court below could have considered each and every material placed before it meticulously and could have appreciated it in a proper manner. Hence, he made submission to allow the appeal, set aside the judgment and order of acquittal passed by the Court below by convicting the respondents-accused Nos. 1 and 2 for the said purpose and in the alternative, the learned Additional SPP made submission that since no steps were taken on the side of prosecution for referring the matter to DNA experts for examination and submit report, so far as the delivery of the male child by the victim is concerned, on that ground also, he submitted to allow the appeal and remand the matter back to the Court below with a direction to get DNA report and to proceed further in the matter. 6. Accused No. 2 who is personally present before this Court made submission that he was not at all involved in committing the offence. False allegations are made against him. It is also his contention that even looking to the prosecution material, there is no material placed as against him to show his involvement that he had committed rape on the victim girl. False allegations are made against him. It is also his contention that even looking to the prosecution material, there is no material placed as against him to show his involvement that he had committed rape on the victim girl. Hence, respondent No. 2accused No. 2 (party in person) submitted to this Court that the Court below has properly appreciated the matter, both oral and documentary and rightly came to the conclusion in acquitting him from the charges leveled against him. He further argued that the judgment and order of acquittal passed by the Court below is in accordance with law. There is no illegality committed by the Court below. Hence, there is no merit in the appeal so far as respondent No. 2accused No. 2 (party in person) is concerned. Ultimately, he submitted to dismiss the appeal against him. 7. Learned Amicus Curiae representing the respondents-accused Nos. 1 and 2 made submission that as per the complaint averments of the victim, there are two such incidents of rape on her. One on 9.10.2009 and another is three months earlier to the said date. During the course of oral evidence before the Court below, the victim deposed that there were three such incidents took place. Drawing the attention of this Court to the entire materials, the evidence of prosecution witnesses and also the documents produced in the case, the learned Amicus Curiae made submission that looking to the allegations made in the complaint and the oral evidence of P.W.1 victim, absolutely, there is no consistency and both are inconsistent with each other. It is also his submission that, on the very day, i.e. on 9.10.2009, when she complained before the police by lodging the complaint, the prosecution case is that on the very night, she was referred to the doctor. The belongings and clothes of the victim were seized on the very night and they were referred to FSL. Referring to the FSL report (Ex.P.12), the learned Amicus Curiae made submission that the report is negative and it is against the case of prosecution. He also made submission that earlier to 9.10.2009, there was an incident took place on the victim girl by both accused and no complaint has been lodged by the victim in respect of the first incident. There is delay in lodging the complaint on the allegation made about the earlier incident also. He also made submission that earlier to 9.10.2009, there was an incident took place on the victim girl by both accused and no complaint has been lodged by the victim in respect of the first incident. There is delay in lodging the complaint on the allegation made about the earlier incident also. He submitted that the said delay regarding reporting the first incident has not at all properly explained by the prosecution. Hence, on that ground also, he made submission that the Court below is justified in appreciating the material and coming to the conclusion that the prosecution has utterly failed to prove its case beyond reasonable doubt and acquitted both the accused from the charges leveled against them. He draws the attention of this Court to medical report (Ex.P.10) pertaining to accused No. 1 and his examination. In the document, it is observed by the doctor that there are no signs of sexual intercourse seen. Hence, it supports the defence of the accused persons that no such incident has taken place against the victim girl. It is further submitted by the learned Amicus Curiae that though it is the allegation against accused Nos.1 and 2 that accused No. 1 committed sexual intercourse on the victim girl with the assistance of accused No. 2 and though it is the allegation that subsequently she gave birth to a male child, the DNA report is not obtained. Had it obtained the said report, it would have clinched the whole issue. Hence, in the absence of such report, it cannot be said that accused No. 1 is the biological father of the baby that was born to the victim girl. On that ground also, the Court below is justified in coming to the conclusion that the prosecution has failed to prove its case. Lastly, he made submission that no illegality has been committed by the Court below in coming to the conclusion and acquitting both the accused persons. Hence, the learned Amicus Curiae submitted to dismiss the appeal. 8. We have perused the grounds urged in the appeal memorandum, judgment and order of acquittal passed by the Court below and oral evidence of prosecution witnesses so also the documents produced in the case. 9. The first and the foremost contention of the prosecution is that the victim girl (P.W.1) was the minor, aged 15 years, as on the date of the alleged incident. 9. The first and the foremost contention of the prosecution is that the victim girl (P.W.1) was the minor, aged 15 years, as on the date of the alleged incident. To support its contention, the prosecution has produced Ex.P.9, which goes to show that the date of birth of the victim is mentioned as 25.6.1993 and the date of incident is 9.10.2009 and an incident was also occurred three months earlier to the incident dated 9.10.2009. Therefore, the certificate produced as per Ex.P.9 goes to show that the victim had attained the age of 16 years. It is the contention of learned Additional SPP that as per the opinion of the doctor, her age is in between 14 and 18, it is as per Ex.P.15. Perusing the contents of Ex.P.1 and her oral evidence, no doubt, it is true that in the complaintEx.P.1, she has specifically mentioned the incident of rape on her by the accused i.e., accused No. 1 with the assistance of accused No. 2 on 9.10.2009 and three months earlier to the date of incident, there was also such incident on her wherein also, accused No. 1 committed rape on her. It is true that looking to her evidence deposed before the Court, on oath, she has stated about the incident 9.10.2009. Her evidence also shows that one week thereafter, there was such incident on her. She has further deposed that six months earlier, on 9.10.2009, there was rape on her by the accused persons. Therefore in her oral evidence, she refers to three such incidents committed on her by the accused persons. Even the Court below discussed about the credibility of the oral evidence of victim girl (P.W.1). It is also true that looking to the FSL report regarding the examination of articles sent to the FSL, there is negative finding by the FSL. But important aspect in the case is the photograph of the mother along with child (Ex.P.5). Even this document got accepted during the course of trial wherein the child is also seen along with the mother. In the oral evidence also, it has come that the victim delivered a male child. But important aspect in the case is the photograph of the mother along with child (Ex.P.5). Even this document got accepted during the course of trial wherein the child is also seen along with the mother. In the oral evidence also, it has come that the victim delivered a male child. Even though such evidence was placed on record during the course of trial and though it is the specific case of prosecution that it was accused No. 1 who committed rape on the victim with the assistance of accused No. 2, no steps were taken to get DNA report to ascertain whether it was accused No. 1 who was the biological father of the baby that was born to the victim. Looking to the medical records in the case, the doctor, on 9.10.2009, noticed injuries on the victim girl which is mentioned in the medical certificate issued. It is also mentioned that she was subjected to the sexual act. So also it is mentioned that hymen was torn. In spite of these things placed on record before the Court below, it has not at all called for the DNA report in the matter. 10. Looking to this aspect of the matter and without making further comments on the merits of the case, we are of the clear opinion that when the victim girl gave birth to a male child, it is necessary to get DNA report and to proceed further in the matter. For that reason, we are allowing the appeal by setting aside the judgment and order of acquittal passed by the Court below and remand the matter to the Court below with a direction to the said Court to obtain DNA report to ascertain as to whether accused No. 1 is the biological father of the baby of the victim or not, and then to proceed further in the matter. The Court below is directed to give opportunity to both sides to adduce additional evidence, if any, and to dispose of it afresh. 11. Accordingly, the appeal is allowed. The judgment and order of acquittal passed by the Court below is set aside. The matter is remitted back to the Court below with a direction to obtain DNA report to ascertain as to whether accused No. 1 is the biological father or not. 11. Accordingly, the appeal is allowed. The judgment and order of acquittal passed by the Court below is set aside. The matter is remitted back to the Court below with a direction to obtain DNA report to ascertain as to whether accused No. 1 is the biological father or not. The Court below is directed to dispose of the matter as early as possible but not later than six months from the date of receipt of a copy of this judgment. 12. We place on record, the valuable assistance of the learned Amicus Curiae Sri Pratheep K.C. Advocate. 13. Registry is hereby directed to pay the amount of Rs. 10,000/- to the learned Amicus Curiae Sri Pratheep K.C. as honorarium.