JUDGMENT : Hon'ble Saurabh Lavania, J. 1. Heard learned counsel for the applicant, learned AGA for the State of Uttar Pradesh and Sri Manoj Kumar Singh, Advocate, who has filed Vakalatnama on behalf of respondent No. 2 in the Court today, which is taken on record. 2. By means of this application, the applicant has sought the following main relief:- "Wherefore, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to quash the impugned order dated 12.2.2024, passed by the learned Additional Sessions Judge/ Special Judge, POCSO Act, Bahraich, in Special Criminal Case No.90 of 2018; State Versus Waliuddin, arising out of Case Crime No.1479 of 2017, under sections-363, 366,376 (D) I.P.C. and Sections 3/4 of POCSO Act, relating to Police Station-Hardi, District-Bahraich, as contained in Annexure no.2 to this petition, in the interest of law and justice." 3. The facts, which are relevant for disposal of this case, are to the effect that an FIR was lodged against Ateek, Kalimuddin and Khaisal Nisha on 03.10.2017 registered as Case Crime No. 1479 of 2017, under Sections 363, 366 IPC, Police Station-Hardi, District-Bahraich and during investigation, Section 376-D IPC and Section 3/4 POCSO Act were added and thereafter, the charges sheet was submitted before the trial court. 4. It would be apt to indicate here that in the present application, it has not been indicated that when the charges were framed and what is the status of trial, though, it is required for giving overall picture of the pending case. Learned counsel for the applicant while drafting the application, for the reasons best known to him, has not indicated the relevant facts of the case. Accordingly, this Court is not in a position to indicate all facts of the present trial. The facts, which appear from the record, are as under. (i) As per the case of the prosecution, on 27.09.2017, accused Ateeq abducted minor daughter of the applicant and thereafter accused Ateeq, Waliuddin (respondent No. 2), Akram and Intesar committed gang rape with her. After this incident, the victim gave birth to a male child in the month of September, 2018. (i) As per the case of the prosecution, on 27.09.2017, accused Ateeq abducted minor daughter of the applicant and thereafter accused Ateeq, Waliuddin (respondent No. 2), Akram and Intesar committed gang rape with her. After this incident, the victim gave birth to a male child in the month of September, 2018. (ii) After recording the statements of witnesses of prosecution including the victim (PW-3) in the trial i.e. Session Trial No. 90/18 (State vs. Waliuddin) arising out of Case Crime No.1479 of 2017, under sections-363, 366,376 (D) I.P.C. and Sections 3/4 of POCSO Act, Police Station-Hardi, District-Bahraich, an application No. 34-B/1 to 34-B/2 was preferred by the defence/accused namely Waliuddin praying therein for holding DNA test. 5. Before the trial court as also before this Court, the applicant has stated that the application aforesaid was moved with ulterior motive i.e. to delay the conclusion of trial. 6. The trial court, as appears from the impugned order dated 12.02.2024, after considering Section 53(A) Cr.P.C. and observations made by the Hon'ble Apex Court in the judgment passed in the case of K.K. Malik vs. State of Haryana, 2011 SCC (3) (Criminal) 61 and also taking note of oral statement made by the victim before the this Court for getting DNA test in the Government Medical College or Hospital, the trial court allowed the application vide impugned order dated 12.02.2024, relevant portion of which reads as under:- 7. To impeach the findings recorded by the trail court in the order impugned dated 12.02.2024, nothing has been brought to the notice of the Court particularly with regard to the oral statement from the side of prosecution, according to which, it has been requested/prayed that DNA test of accused/applicant namely Waliuddin, victim and minor be conducted at Government Medical College or Government Hospital. 8. On the subject matter of this case, this Court feels it appropriate to refer the relevant portion of the order dated 13.10.2023 passed by the Division Bench of the Gauhati High Court while dealing with Criminal Appeal filed against the judgment of conviction i.e. Case No. Crl.A./73/2023 (Sudip Biswas @ Bura vs. The State of Assam and another) and the judgment of the Delhi High Court passed in the case of Meera Devi and others vs. Jitender and others reported in 2016 SCC OnLine Del 4322. According to which, in nutshell, efforts should be made to find out the truth. 9. According to which, in nutshell, efforts should be made to find out the truth. 9. The relevant paragraphs of the order dated 13.10.2023 passed in the case of Sudip Biswas @ Bura (supra) are as under:- "6. The question that arose was whether this Court could direct the appellant to undergo a DNA test, to prove whether he was the father of the child born to the victim and which in turn would prove as to whether he was the rapist of the victim. 7. The learned Senior Counsel for the appellant submits that this Court cannot compel the appellant to undergo a DNA test without his consent. In this regard the learned Senior Counsel submits that in terms of the judgment of the Supreme Court in the case of Goutam Kundu Vs. State of West Bengal & Others, reported in 1993 3 SCC 418 , Courts in India cannot order a blood test as a matter of course. He submits that the Apex Court has held that the Courts have to carefully examine the consequence of ordering a blood test and no one can be compelled to give his/her sample of blood for analysis. 8. The learned Senior Counsel submits that the evidence adduced by the prosecution does not prove that the appellant was the rapist of the victim or that the appellant was the father of the victim's child. In this respect, he has referred to the evidence given by the prosecution witnesses, especially the evidence given by the victim in her cross-examination, wherein she has stated that she came to know the name of the appellant only when the case was filed and that she had not seen the face of the person who raped her on the relevant night, due to darkness. He also submits that as the FIR had been filed after 6/7 months after the alleged rape had been committed, the same cast a doubt on the authenticity of the contents of the FIR. 9. On the other hand, the Additional Public Prosecutor submits that the victim was mentally ill and unable to recall previous incidents, as given in the testimony of PW-1. She also submits that the victim was 48 years of age and the appellant was 24 years of age. 9. On the other hand, the Additional Public Prosecutor submits that the victim was mentally ill and unable to recall previous incidents, as given in the testimony of PW-1. She also submits that the victim was 48 years of age and the appellant was 24 years of age. Further, though a bichar (village meeting under the aegis of the elder of the village) had been held in the village on 2 (two) occasions, due to the alleged illegal act of the appellant, the appellant did not turn up in the bichar held on the 2 (two) occasions. She submits that though the evidence of the prosecution witnesses proved the guilt of the appellant, the appellant should be subjected to a DNA test to conclusively prove the said fact. 10. We have heard the learned counsels for the parties. 11. The question to be decided is as to whether the appellant had raped the victim and whether the child born to the victim had been fathered by the appellant, as it has been alleged that the child was the result of the rape. As stated earlier, an issue has cropped up as to whether a DNA test could/should be done on the appellant and the child, so as to determine whether the appellant had fathered the child, besides considering the evidence that has already been recorded by the learned Trial Court. 12. In the case of Goutam Kundu (supra), the Supreme Court was seized of an issue, wherein the paternity of a child between a married couple was disputed. The alleged father (husband) of the child prayed for a Blood Group test of the child and himself to prove that he was not the father of the child. The application was dismissed on the ground that there were other methods in the Evidence Act to prove the paternity of the child and that the Blood Group test could not conclusively prove the paternity of a child. The Supreme Court in the above case held that though a Blood Group test was a useful test to determine the question of disputed paternity, it could be relied upon by the Courts as a circumstantial evidence, which ultimately excluded a certain individual as a father of the child. The Supreme Court in the above case held that though a Blood Group test was a useful test to determine the question of disputed paternity, it could be relied upon by the Courts as a circumstantial evidence, which ultimately excluded a certain individual as a father of the child. The Supreme Court further held that in terms of Section 112 of the Evidence Act, the presumption of legitimacy of a child, with regard to the father is that a child born of a married woman is deemed to be the legitimate child of a husband and would remain so, even if the child was born within 280 days after dissolution of a marriage and the mother remain unmarried, unless it could be shown that the parties to the marriage had no access to each other at any time, when the child could have been begotten. It was in the above context that the Supreme Court in Goutam Kundu (supra) held that the Courts in India cannot order a blood test as a matter of course. It thus held as follows:- "(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." 13. The paternity test that was sought to be done by the alleged father in Goutam Kundu (supra) was a Blood Group test and not a DNA profiling/test, wherein DNA rich cells are extracted. On the other hand, Blood Group test examines the Blood type of a person. As per the medical literature existing today with regard to DNA test and Blood test, perhaps the greatest difference between a Blood Group test and a DNA test is that a Blood Group test cannot be used as conclusive proof of fatherhood. On the other hand, Blood Group test examines the Blood type of a person. As per the medical literature existing today with regard to DNA test and Blood test, perhaps the greatest difference between a Blood Group test and a DNA test is that a Blood Group test cannot be used as conclusive proof of fatherhood. It can only be used to disprove parentage and not to prove that the individual is the father of the child. The DNA test on the other hand, is a very reliable test, which is based on different parameters than a Blood Group test. 14. With the incorporation of Section 53A Cr.PC w.e.f. 23.06.2006, DNA test can be done to facilitate the prosecution, in proving it's case against an accused. Though it may be argued that right to privacy is a part of the right to life and personal liberty under Article 21 and that Article 20(3) provides that nobody should be compelled to give evidence against himself, we are of the view that the said would not over-ride the search for the truth, as the offence of rape is an offence against the society at large and as the objective of a Court proceeding is to find out the "truth". We are accordingly of the view that the appellant's right under Articles 20(3) & 21 would have to give way to public interest, so that the truth is laid bare for all to see. 15. In the case of Harishchandra Sitaram Khanorkar Vs. State of Maharashtra, reported in 2023 (1) ABR (CRI) 259, the Division Bench of the Bombay High Court has held that there can be no doubt that there have been remarkable technological advancement in forensic science and in scientific investigations. The DNA testing has an unparalleled ability both to exonerate the wrongly convicted person and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigative practices. Modern DNA testing can provide powerful new evidence unlike anything known before DNA technology. It provides not only guidance to the investigation, but also supplies the Court accurate information regarding the identification of the criminal. 16. In the case of Pravin Suryabhanji Gube Vs. It has the potential to significantly improve both the criminal justice system and police investigative practices. Modern DNA testing can provide powerful new evidence unlike anything known before DNA technology. It provides not only guidance to the investigation, but also supplies the Court accurate information regarding the identification of the criminal. 16. In the case of Pravin Suryabhanji Gube Vs. State of Maharashtra, reported in 2019 (2) ABR (CRI) 70, the Bombay High Court has held that DNA is a modern scientific technique, which is very useful and helpful not only for investigators, but also for Courts to reach to the truth. DNA conclusively points the finger of guilt towards the perpetrator of a crime. However, while considering this scientific piece of evidence, the Court is required to examine as to whether at any point of time, it could be said that there was the slightest chance of playing with the samples and/or tampering with it by anyone. 17. In the case of Mukesh Vs. State (NCT of Delhi) 2017 6 SCC 1 , the Hon'ble Supreme Court spoke on the importance of DNA evidence. It observed in paragraph Nos. 216 and 217 as follows:- "216. DNA technology as a part of Forensic Science and scientific discipline not only provides guidance to investigation but also supplies the court accrued information about the tending features of identification of criminals. The recent advancement in modern biological research has regularized Forensic Science resulting in radical help in the administration of justice. In our country also like several other developed and developing countries, DNA evidence is being increasingly relied upon by courts. After the amendment in the Criminal Procedure Code by the insertion of Section 53A by Act 25 of 2005, DNA profiling has now become a part of the statutory scheme. Section 53A relates to the examination of a person accused of rape by a medical practitioner. 217. Similarly, under Section 164A inserted by Act 25 of 2005, for medical examination of the victim of rape, the description of material taken from the person of the woman for DNA profiling is a must." 18. In the case of Pantangi Balarama Venkata Ganesh Vs. State of A.P, reported in 2009 14 SCC 607 , the Supreme Court held that experts opine that identification by DNA profiling is hundred percent precise. However, there is a need for quality control. In the case of Pantangi Balarama Venkata Ganesh Vs. State of A.P, reported in 2009 14 SCC 607 , the Supreme Court held that experts opine that identification by DNA profiling is hundred percent precise. However, there is a need for quality control. Further, the evidence of experts is admissible in evidence in terms of Section 45 of the Evidence Act, 1872. The Supreme Court in the above case has held at paragraph No. 41 as follows:- "41. Submission of Mr. Sachar that the report of DNA should not be relied upon, cannot be accepted. What is DNA? It means: (Deoxyribonucleic Acid), which is found in the chromosomes of the cells of living beings is the blueprint of an individual. DNA decides the characteristics of the person such as the colour of the skin, type of hair, nails and so on. Using this genetic fingerprinting identification of an individual is done like in the traditional method of identifying fingerprints of offenders. The identification is hundred percent precise, experts opine." 19. In the case of Prakash Nishad Alias Kewat Zinak Nishad Vs. State of Maharashtra, reported in AIR 2023 SC (CRIMINAL) 1081, the Supreme Court has held that even though the DNA evidence by way of a report was present, its reliability is not infallible, especially not so in light of the fact that the uncompromised nature of such evidence cannot be established. 20. In the case of Pattu Ranjan Vs. State of T.N, reported in AIR 2019 SC 1674 , the Supreme Court has held at paragraph No. 52 as follows:- "52. Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on the facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party." 21. In the case of Manoj Vs. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party." 21. In the case of Manoj Vs. State of M.P, reported in AIR Online 2022 SC 767, the Supreme Court has held at paragraph No. 158 as follows:- "158. This Court, therefore, has relied on DNA reports, in the past, where the guilt of an accused was sought to be established. Notably, the reliance was to corroborate. This Court highlighted the need to ensure quality in the testing and eliminate the possibility of contamination of evidence; it also held that being an opinion, the probative value of such evidence has to vary from case to case." 22. Section 53A(2)(iv) Cr.PC provides that a registered medical practitioner shall prepare a report of his examination, of a person/material taken from the person, arrested on a charge of committing an offence of rape or an attempt to commit rape by way of DNA profiling, if there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence. Section 164A (2)(iii) Cr.PC provides that the registered medical practitioner, to whom a victim of rape or attempted to be raped is sent, shall, without delay, examine her person and prepare a report of his examination giving various particulars, one of them being, the description of material taken from the person of the woman for DNA profiling. 23. Section 164A (2)(iii) Cr.PC provides that the registered medical practitioner, to whom a victim of rape or attempted to be raped is sent, shall, without delay, examine her person and prepare a report of his examination giving various particulars, one of them being, the description of material taken from the person of the woman for DNA profiling. 23. Section 53A Cr.PC and Section 164A Cr.PC are reproduced herein below as follows:- "Section 53A of Cr.PC:-Examination of person accused of rape by medical practitioner --- (1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose. (2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely; (i) the name and address of the accused and of the person by whom he was brought, (ii) the age of the accused, (iii) marks of injury, if any, on the person of the accused, (iv) the description of material taken from the person of the accused for DNA profiling, and". (v) other material particulars in reasonable detail. (3) The report shall state precisely the reasons for each conclusion arrived at. (4) The exact time of commencement and completion of the examination shall also be noted in the report. (5) The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of Sub-Section (5) of that section. (5) The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of Sub-Section (5) of that section. Section 164A Cr.PC:-Medical examination of the victim of rape--- (1) Where, during the stage when an offence of committing rape or attempt to commit rape is under investigation, it is proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman shall be sent to such registered medical practitioner within twenty-four hours from the time of receiving the information relating to the commission of such offence. (2) The registered medical practitioner, to whom such woman is sent shall, without delay, examine her person and prepare a report of his examination giving the following particulars, namely— (i) the name and address of the woman and of the person by whom she was brought; (ii) the age of the woman; (iii) the description of material taken from the person of the woman for DNA profiling; (iv) marks of injury, if any, on the person of the woman; (v) general mental condition of the woman; and (vi) other material particulars in reasonable detail. (3) The report shall state precisely the reasons for each conclusion arrived at. (4) The report shall specifically record that the consent of the woman or of the person competent, to give such consent on her behalf to such examination had been obtained. (5) The exact time of commencement and completion of the examination shall also be noted in the report. (6) The registered medical practitioner shall, without delay forward the report to the investigating officer who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of Sub-Section (5) of that section. (6) The registered medical practitioner shall, without delay forward the report to the investigating officer who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of Sub-Section (5) of that section. (7) Nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf." 24. In the case of Santosh Kumar Singh Vs. State, reported in 2010 9 SCC 747 , which was in respect of a young girl who was raped and murdered, the DNA report relied upon by the High Court was approved by the Supreme Court and held that the DNA report can be accepted as being scientifically accurate and an exact science as held by the Supreme Court in Kamti Devi Vs. Poshi Ram, reported in 2001 5 SCC 311 . 25. In the case of Krishan Kumar Malik Vs. State of Haryana, reported in 2011 7 SCC 130 , which was a case of gang rape, the prosecution had not conducted the DNA test or made any analysis and matching of the semen of the accused with that found on the undergarments of the prosecutrix. The Supreme Court has held at paragraph No. 44 as follows:- "44. Now, after the incorporation of Section 53-A in the Criminal Procedure Code w.e.f. 23.06.2006, brought to our notice by the learned counsel for the respondent State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in Cr.PC the prosecution could have still restored to this procedure of getting the DNA test or analysis and matching of semen of the appellant with that found on the undergarments of the prosecutrix to make it a foolproof case, but they did not do so, thus they must face the consequences." 26. In the case of Sandeep Vs. State of U.P, reported in 2012 6 SCC 107 , which was a case of murder of a pregnant girlfriend and the unborn child of the accused, the Supreme Court held that the DNA report confirmed the accused as the father of the unborn child. 27. In the case of Rajkumar Vs. In the case of Sandeep Vs. State of U.P, reported in 2012 6 SCC 107 , which was a case of murder of a pregnant girlfriend and the unborn child of the accused, the Supreme Court held that the DNA report confirmed the accused as the father of the unborn child. 27. In the case of Rajkumar Vs. State of M.P, reported in 2014 5 SCC 353 , which was a case involving the rape and murder of a 14 year old girl, the Supreme Court held that the DNA report established the presence of the semen of the accused in the vaginal swab of the prosecutrix. 28. The above cases show that there is no bar or restriction in having a DNA profiling of an accused in a case of rape. In the present case, not only is there an allegation of rape against the appellant, but the appellant has been accused of being the father of the child born due to the rape inflicted by the appellant. It is quite clear that DNA profiling of the appellant could prove whether the appellant was the father of the child born to the victim. As Section 53A Cr.PC allows for examination of a person accused of rape through DNA profiling on the request of a Police Officer not below the rank of Sub-Inspector, we do not find any bar or restriction for this Court to pass a direction for DNA profiling of the appellant, which would prove whether the appellant was the father of the child and thus further prove the question whether any rape had been committed on the victim by the appellant. 29. Now let us see whether DNA profiling can be done in civil cases, wherein paternity of a child between couples is in question. 30. In the case of Bhabani Prasad Jena Vs. Orissa State Commission for Women, reported in 2010 8 SCC 633 , the Supreme Court has held that depending on the facts and circumstances of a case, it would be permissible for a Court to direct the holding of a DNA examination to determine the paternity of a child. However, the Court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is needed. However, the Court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is needed. Thus, in a case relating to the charge by the husband regarding the alleged infidelity of the wife, the same could be ordered by the Court depending upon the facts and circumstances of the case. 31. In the case of Dipanwita Roy Vs. Ronobroto Roy, reported in 2015 1 SCC 365 , the Apex Court has allowed the DNA test to be done with regard to the paternity of the child born to his wife, to establish whether or not the husband was the father of the child, so as to prove the alleged infidelity of the wife. It also held that in view of the issue involved in the above case, Section 112 of the Evidence Act was not strictly attracted to the case. 32. As can be seen even in civil cases regarding disputes with regard to infidelity of the wife and paternity of a child, the Supreme Court has allowed DNA test to be done, after balancing the interests of the parties, keeping in view the facts and circumstances of a case. The case in hand is however different, as it pertains to a criminal case and in the view of this Court, the right to preserve individual privacy claimed by the appellant, has to give way to the object of finding out the truth, otherwise the same could amount to sacrificing the cause of justice. Thus, in criminal cases, the requirement of finding out the truth would over-ride the stand of the appellant, in not agreeing to undertake a DNA test. 33. The present case is with regard to whether the appellant had committed a crime against society, which can be proved by way of a DNA test. We are of the view that the principal of proportionality is also in favour of the Court resorting to DNA testing, to find out whether a crime had been committed by the appellant, keeping in view the allegation made by the victim and the fact that a child has been born. 34. A perusal of the orders passed by the Supreme Court clearly go to show that DNA test/profiling is useful and helpful in coming to a decision with regard to identifying the perpetrator of a crime. 34. A perusal of the orders passed by the Supreme Court clearly go to show that DNA test/profiling is useful and helpful in coming to a decision with regard to identifying the perpetrator of a crime. The Supreme Court has in many cases as referred to above, supported the use of DNA test/profiling. However, it is only in respect of civil cases where the paternity of a child is in dispute between the married couples that the Hon'ble Supreme Court has given words of caution that DNA test/profiling should not be done at the drop of a hat, in view of Section 112 of the Evidence Act. As stated in the earlier paragraphs, the Supreme Court in the case of Sandeep Vs. State of Uttar Pradesh (supra) has accepted the confirmation that the accused therein was the father of the unborn child, who had died during the murder of a pregnant woman, determined on the basis of a DNA test. In the present case, the victim has accused the appellant of raping her and making her pregnant. In that view of the matter, we are of the view that the DNA test/profiling would conclusively prove whether the appellant had fathered the child and whether he had raped the victim, as he has denied raping her. 35. In view of the reasons stated above, we are of the view that additional evidence is required to be taken in terms of Section 391 Cr.P.C, as DNA test of the appellant and the child born to the victim, would conclusively prove whether the child has been fathered by the appellant and whether the appellant was the perpetrator of the rape committed on the victim. Accordingly, we direct the learned Trial Court to take additional evidence under Section 391 Cr.PC, by taking steps for ensuring that a DNA test/profiling of the appellant and the child of the victim alleged to have been fathered by the appellant, is undertaken, after taking the samples from the appellant and the child in the presence of the learned Judge of the learned Trial Court. In this regard, necessary directions may be issued by the learned Trial Court to the Superintendent of the concerned Jail to produce the appellant and also to the victim to produce the child. In this regard, necessary directions may be issued by the learned Trial Court to the Superintendent of the concerned Jail to produce the appellant and also to the victim to produce the child. The learned Trial Court shall ensure all precautions are taken at the time of taking of samples from the above persons and making sure the samples are not compromised in any manner. The learned Trial Court shall also ensure that the persons/institution which is going to conduct the DNA test/profiling takes all possible precautions so that the entire testing procedure is not compromised in any manner. The entire exercise should be conducted at the earliest and preferably within a period of 2 (two) months from the date of receipt of a copy of this order." 10. The relevant paragraphs of the judgment of the Delhi High Court passed in the case of Meera Devi (supra) are as under:- "10. It is fundamental duty of the Court to ascertain the truth and do justice on the basis of truth. In Ved Prakash Kharbanda v. Vimal Bindal, 198 (2013) DLT 555, this Court has discussed the relevant principles relating to the discovery of the truth. Relevant portion of the said judgment is reproduced hereunder:- “11. Truth should be the Guiding Star in the Entire Judicial Process 11.1 Truth is the foundation of justice. Dispensation of justice, based on truth, is an essential feature in the justice delivery system. People would have faith in Courts when truth alone triumphs. The justice based on truth would establish peace in the society. 11.2 Krishna Iyer J. in Jasraj Inder Singh v. Hemraj Multanchand, (1977) 2 SCC 155 described truth and justice as under: “8. …Truth, like song, is whole, and half-truth can be noise! Justice is truth, is beauty and the strategy of healing injustice is discovery of the whole truth and harmonising human relations. Law's finest hour is not in meditating on abstractions but in being the delivery agent of full fairness. This divagation is justified by the need to remind ourselves that the grammar of justice according to law is not little litigative solution of isolated problems but resolving the conflict in its wider bearings.” 11.3 In Union Carbide Corporation v. Union of India, (1989) 3 SCC 38 , the Supreme Court described justice and truth to mean the same. The observations of the Supreme Court are as under: “30. The observations of the Supreme Court are as under: “30. …when one speaks of justice and truth, these words mean the same thing to all men whose judgment is uncommitted. Of Truth and Justice, Anatole France said: “Truth passes within herself a penetrating force unknown alike to error and falsehood. I say truth and you must understand my meaning. For the beautiful words Truth and Justice need not be defined in order to be understood in their true sense. They bear within them a shining beauty and a heavenly light. I firmly believe in the triumph of truth and justice. That is what upholds me in times of trial….” 11.4 In Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271, the Supreme Court observed that the presiding officer of a Court should not simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost and that there is a legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice. 11.5 In Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC 421 , the Supreme Court observed that to enable the Courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, pre-variation and motivated falsehoods have to be appropriately dealt with, without which it would not be possible for any Court to administer justice in the true sense and to the satisfaction of those who approach it in the hope that truth would ultimately prevail. People would have faith in Courts when they would find that truth alone triumphs in Courts. 11.6 In A.S. Narayana Deekshitulu v. State of A.P., (1996) 9 SCC 548 , the Supreme Court observed that from the ancient times, the constitutional system depends on the foundation of truth. The Supreme Court referred to Upanishads, Valmiki Ramayana and Rig Veda. 11.7 In Mohan Singh v. State of M.P., (1999) 2 SCC 428 the Supreme Court held that effort should be made to find the truth; this is the very object for which Courts are created. To search it out, the Court has to remove chaff from the grain. The Supreme Court referred to Upanishads, Valmiki Ramayana and Rig Veda. 11.7 In Mohan Singh v. State of M.P., (1999) 2 SCC 428 the Supreme Court held that effort should be made to find the truth; this is the very object for which Courts are created. To search it out, the Court has to remove chaff from the grain. It has to disperse the suspicious, cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is onerous duty of the Court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot free. There is no mathematical formula through which the truthfulness of a prosecution or a defence case could be concretised. It would depend on the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a judge evoked by the evidence on record. So Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt. 11.8 In Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374 , the Supreme Court observed that right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. 11.9 In Himanshu Singh Sabharwal v. State of Madhya Pradesh, (2008) 3 SCC 602 , the Supreme Court held that the trial should be a search for the truth and not a bout over technicalities. The Supreme Court's observation are as under: “5. … 31. In 1846, in a judgment which Lord Chancellor Selborne would later describe as ‘one of the ablest judgments of one of the ablest judges who ever sat in this Court’, Vice-Chancellor Knight Bruce said [Pearse v. Pearse, (1846) 1 De G&Sm. The Supreme Court's observation are as under: “5. … 31. In 1846, in a judgment which Lord Chancellor Selborne would later describe as ‘one of the ablest judgments of one of the ablest judges who ever sat in this Court’, Vice-Chancellor Knight Bruce said [Pearse v. Pearse, (1846) 1 De G&Sm. 12: 16 LJ Ch 153: 63 ER 950: 18 Digest (Repl.) 91, 748]: (De G&Sm. pp. 28-29): “31. The discovery and vindication and establishment of truth are main purposes certainly of the existence of courts of justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination,… Truth, like all other good things, may be loved unwisely—may be pursued too keenly—may cost too much. xxx xxx xxx 35. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice—often referred to as the duty to vindicate and uphold the ‘majesty of the law’. xxx xxx xxx 38. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty.” (Emphasis Supplied) 11.10 In Ritesh Tewari v. State of U.P., (2010) 10 SCC 677 , the Supreme Court reproduced often quoted quotation: ‘Every trial is voyage of discovery in which truth is the quest’ 11.11 In Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria, (2012) 5 SCC 370 , the Supreme Court again highlighted the significance of truth and observed that the truth should be the guiding star in the entire legal process and it is the duty of the Judge to discover truth to do complete justice. The Supreme Court stressed that Judge has to play an active role to discover the truth and he should explore all avenues open to him in order to discover the truth. The Supreme Court observed as under: “32. The Supreme Court stressed that Judge has to play an active role to discover the truth and he should explore all avenues open to him in order to discover the truth. The Supreme Court observed as under: “32. In this unfortunate litigation, the Court's serious endeavour has to be to find out where in fact the truth lies. 33. The truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth. xxx xxx xxx 35. What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice. xxx xxx xxx 52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth.” (Emphasis supplied) 11.12 In A. Shanmugam v. Ariya Kshatriya, (2012) 6 SCC 430 , the Supreme Court held that the entire journey of a judge is to discern the truth from the pleadings, documents and arguments of the parties. Truth is the basis of justice delivery system. The Supreme Court laid down the following principles: “43. On the facts of the present case, following principles emerge: 43.1. It is the bounden duty of the Court to uphold the truth and do justice. 43.2. Every litigant is expected to state truth before the law court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts. 43.3. The ultimate object of the judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations before the court should be truthful. 43.4. Every litigant is expected to state truth before the law court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts. 43.3. The ultimate object of the judicial proceedings is to discern the truth and do justice. It is imperative that pleadings and all other presentations before the court should be truthful. 43.4. Once the court discovers falsehood, concealment, distortion, obstruction or confusion in pleadings and documents, the court should in addition to full restitution impose appropriate costs. The court must ensure that there is no incentive for wrong doer in the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice. 43.5. It is the bounden obligation of the Court to neutralize any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process.”(Emphasis supplied) 11.13 In Ramesh Harijan v. State of Uttar Pradesh, (2012) 5 SCC 777 , the Supreme Court emphasized that it is the duty of the Court to unravel the truth under all circumstances. 11.14 In Bhimanna v. State of Karnataka, (2012) 9 SCC 650 , the Supreme Court again stressed that the Court must endeavour to find the truth. The observations of the Supreme Court are as under: “28. The court must endeavour to find the truth. There would be “failure of justice” not only by unjust conviction but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and safeguarded but they should not be overemphasised to the extent of forgetting that the victims also have rights.” 11.15 In the recent pronouncement in Kishore Samrite v. State of U.P., MANU/SC/0892/2012, the Supreme Court observed that truth should become the ideal to inspire the Courts to pursue. This can be achieved by statutorily mandating the Courts to become active seekers of truth. The observations of Supreme Court are as under: “31. It has been consistently stated by this Court that the entire journey of a Judge is to discern the truth from the pleadings, documents and arguments of the parties, as truth is the basis of the Justice Delivery System. 32. The observations of Supreme Court are as under: “31. It has been consistently stated by this Court that the entire journey of a Judge is to discern the truth from the pleadings, documents and arguments of the parties, as truth is the basis of the Justice Delivery System. 32. With the passage of time, it has been realised that people used to feel proud to tell the truth in the Courts, irrespective of the consequences but that practice no longer proves true, in all cases. The Court does not sit simply as an umpire in a contest between two parties and declare at the end of the combat as to who has won and who has lost but it has a legal duty of its own, independent of parties, to take active role in the proceedings and reach at the truth, which is the foundation of administration of justice. Therefore, the truth should become the ideal to inspire the courts to pursue. This can be achieved by statutorily mandating the Courts to become active seekers of truth. To enable the courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, prevarication and motivated falsehood, must be appropriately dealt with. The parties must state forthwith sufficient factual details to the extent that it reduces the ability to put forward false and exaggerated claims and a litigant must approach the Court with clean hands. It is the bounden duty of the Court to ensure that dishonesty and any attempt to surpass the legal process must be effectively curbed and the Court must ensure that there is no wrongful, unauthorised or unjust gain to anyone as a result of abuse of the process of the Court. One way to curb this tendency is to impose realistic or punitive costs.” (Emphasis supplied) 11.16 Malimath Committee on Judicial Reforms discussed the paramount duty of Courts to search for truth. The relevant observations of the Committee are as under:- -The Indian ethos accords the highest importance to truth. The motto Satyameva Jayate (Truth alone succeeds) is inscribed in our National Emblem “Ashoka Sthambha”. Our epics extol the virtue of truth. -For the common man truth and justice are synonymous. So when truth fails, justice fails. Those who know that the acquitted accused was in fact the offender, lose faith in the system. The motto Satyameva Jayate (Truth alone succeeds) is inscribed in our National Emblem “Ashoka Sthambha”. Our epics extol the virtue of truth. -For the common man truth and justice are synonymous. So when truth fails, justice fails. Those who know that the acquitted accused was in fact the offender, lose faith in the system. -In practice however we find that the Judge, in his anxiety to demonstrate his neutrality opts to remain passive and truth often becomes a casualty. -Truth being the cherished ideal and ethos of India, pursuit of truth should be the guiding star of the Justice System. For justice to be done truth must prevail. It is truth that must protect the innocent and it is truth that must be the basis to punish the guilty. Truth is the very soul of justice. Therefore truth should become the ideal to inspire the courts to pursue. -Many countries which have Inquisitorial model have inscribed in their Parliamentary Acts a duty to find the truth in the case. In Germany Section 139 of the so called ‘Majna Charta’, a breach of the Judges' duty to actively discover truth would promulgate a procedural error which may provide grounds for an appeal. -For Courts of justice there cannot be any better or higher ideal than quest for truth.” 11. Section 165 of the Indian Evidence Act empowers the Courts to examine any witness or party at any stage to discover the truth. In Jai Prakash v. National Insurance Company, (2010) 2 SCC 607 , the Supreme Court directed the Claims Tribunal to use of 165 of the Indian Evidence Act to discover the truth. Relevant portion of the said judgment is reproduced hereunder:- "The Tribunal shall take an active role in deciding and expeditious disposal of the applications for compensation and make effective use of Section 165 of the Evidence Act, 1872, to determine the just compensation." 12. In Ved Prakash Kharbanda v. Vimal Bindal (supra), this Court considered the scope of the Section 165 of the Indian Evidence Act. Relevant portion of the said judgment is reproduced hereunder:- 15. Section 165 of the Indian Evidence Act, 1872 15.1 Section 165 of the Indian Evidence Act, 1872 invests the Judge with plenary powers to put any question to any witness or party; in any form, at any time, about any fact relevant or irrelevant. Relevant portion of the said judgment is reproduced hereunder:- 15. Section 165 of the Indian Evidence Act, 1872 15.1 Section 165 of the Indian Evidence Act, 1872 invests the Judge with plenary powers to put any question to any witness or party; in any form, at any time, about any fact relevant or irrelevant. Section 165 is intended to arm the Judge with the most extensive power possible for the purpose of getting at the truth. The effect of this section is that in order to get to the bottom of the matter before it, the Court will be able to look at and inquire into every fact and thus possibly acquire valuable indicative evidence which may lead to other evidence strictly relevant and admissible. The Court is not, however, permitted to found its judgment on any but relevant statements. 15.2 Section 165 of the Indian Evidence Act, 1872 reads as under: "Section 165. The Court is not, however, permitted to found its judgment on any but relevant statements. 15.2 Section 165 of the Indian Evidence Act, 1872 reads as under: "Section 165. Judge's power to put questions or order production.- The Judge may, in order to discover or obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question: Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved: Provided also that this section shall not authorize any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases herein before excepted." 15.3 The object of a trial is, first to ascertain truth by the light of reason, and then, do justice upon the basis of the truth and the Judge is not only justified but required to elicit a fact, wherever the interest of truth and justice would suffer, if he did not. 15.4 The Judge contemplated by Section 165 is not a mere umpire at a wit-combat between the lawyers for the parties whose only duty is to enforce the rules of the game and declare at the end of the combat who has won and who has lost. He is expected, and indeed it is his duty, to explore all avenues open to him in order to discover the truth and to that end, question witnesses on points which the lawyers for the parties have either overlooked or left obscure or willfully avoided. He is expected, and indeed it is his duty, to explore all avenues open to him in order to discover the truth and to that end, question witnesses on points which the lawyers for the parties have either overlooked or left obscure or willfully avoided. A Judge, who at the trial merely sits and records evidence without caring so to conduct the examination of the witnesses that every point is brought out, is not fulfilling his duty. 15.5 The framers of the Act, in the Report of the Select Committee published on 31st March, 1871 along with the Bill settled by them, observed: "In many cases, the Judge has to get at the truth, or as near to it as he can by the aid of collateral inquiries, which may incidentally tend to something relevant; and it is most unlikely that he should ever wish to push an inquiry needlessly, or to go into matters not really connected with it. We have accordingly thought it right to arm Judges with a general power to ask any questions upon any facts, of any witnesses, at any stage of the proceedings, irrespectively of the rules of evidence binding on the parties and their agents, and we have inserted in the Bill a distinct declaration that it is the duty of the Judge, especially in criminal cases, not merely to listen to the evidence put before him but to inquire to the utmost into the truth of the matter." 15.6 Cunningham, Secretary to the Council of the Governor General for making Laws and Regulations at the time of the passing of the Indian Evidence Act stated: "It is highly important that the Judge should be armed with full power enabling him to get at the facts. He may, accordingly, subject to conditions to be immediately noticed, ask any question he pleases, in any form, at any stage of the proceedings, about any matter relevant or irrelevant, and he may order the production of any document or thing. He may, accordingly, subject to conditions to be immediately noticed, ask any question he pleases, in any form, at any stage of the proceedings, about any matter relevant or irrelevant, and he may order the production of any document or thing. No objection can be taken to any such question or order, nor are the parties entitled, without Court's permission to cross-examine on the answers given." 15.7 The relevant judgments relating to Section 165 of the Indian Evidence Act, 1872 are as under:- 15.7.1 The Supreme Court in Ram Chander v. State of Haryana, (1981) 3 SCC 191 observed that under Section 165, the Court has ample power and discretion to control the trial effectively. While conducting trial, the Court is not required to sit as a silent spectator or umpire but to take active part within the boundaries of law by putting questions to witnesses in order to elicit the truth and to protect the weak and the innocent. It is the duty of a Judge to discover the truth and for that purpose he may "ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant or irrelevant". 15.7.2 In Ritesh Tewari v. State of Uttar Pradesh, (2010) 10 SCC 677 , the Supreme Court held that every trial is a voyage of discovery in which truth is the quest. The power under Section 165 is to be exercised with the object of subserving the cause of justice and public interest, and for getting the evidence in aid of a just decision and to uphold the truth. It is an extraordinary power conferred upon the Court to elicit the truth and to act in the interest of justice. The purpose being to secure justice by full discovery of truth and an accurate knowledge of facts, the Court can put questions to the parties, except those which fall within exceptions contained in the said provision itself. 15.7.3 In Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 , the Supreme Court held that Section 165 of the Indian Evidence Act and Section 311 of the Code of Criminal Procedure confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. The Judge can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The Section consists of two parts i.e. (i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory portion which compels the Courts to examine a witness if his evidence appears to be essential to the just decision of the Court. The second part of the section does not allow any discretion but obligates and binds the Court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case, essential to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the Section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. Though justice is depicted to be blind-folded, as popularly said, it is only a veil not to see who the party before it is while pronouncing judgment on the cause brought before it by enforcing law and administering justice and not to ignore or turn the mind/attention of the Court away from the truth of the cause or lis before it, in disregard of its duty to prevent miscarriage of justice. Doing justice is the paramount consideration and that duty cannot be abdicated or diluted and diverted by manipulative red herrings. 15.7.4 In State of Rajasthan v. Ani, (1997) 6 SCC 162 , the Supreme Court held that Section 165 of the Indian Evidence Act confers vast and unrestricted powers on the Court to elicit truth. Reticence may be good in many circumstances, but a Judge remaining mute during trial is not an ideal situation. A taciturn Judge may be the model caricatured in public mind. But there is nothing wrong in his becoming active or dynamic during trial so that criminal justice being the end could be achieved. A Judge is expected to actively participate in the trial to elicit necessary materials from witnesses in the appropriate context which he feels necessary for reaching the correct conclusion. But there is nothing wrong in his becoming active or dynamic during trial so that criminal justice being the end could be achieved. A Judge is expected to actively participate in the trial to elicit necessary materials from witnesses in the appropriate context which he feels necessary for reaching the correct conclusion. 15.7.5 In Mohanlal Shamji Soni v. Union of India, 1991 Supp (1) SCC 271, referring to Section 165 of the Indian Evidence Act and Section 311 of the Code of Criminal Procedure, the Supreme Court stated that the said two sections are complementary to each other and between them, they confer jurisdiction on the Judge to act in aid of justice. It is a well-accepted and settled principle that a Court must discharge its statutory functions -whether discretionary or obligatory -according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. 15.7.6 In Jamatraj Kewalji Govani v. State of Maharashtra, AIR 1968 SC 178 , the Supreme Court held that Section 165 of the Indian Evidence Act and Section 540 of the Code of Criminal Procedure, 1898 confer jurisdiction on the Judge to act in aid of justice. In criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in Court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. 15.7.7 In Sessions Judge Nellore Referring Officer v. Intha Ramana Reddy, 1972 CriLJ 1485, the Andhra Pradesh High Court held that every trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. For that purpose he is expressly invested by Section 165 of the Evidence Act with the right to put questions to witnesses. Indeed the right given to a Judge is so wide that he may ask any question he pleases, in any form at any time, of any witness, or of the parties about any fact, relevant or irrelevant." 13. For that purpose he is expressly invested by Section 165 of the Evidence Act with the right to put questions to witnesses. Indeed the right given to a Judge is so wide that he may ask any question he pleases, in any form at any time, of any witness, or of the parties about any fact, relevant or irrelevant." 13. In Ved Prakash Kharbanda v. Vimal Bindal (supra), this Court also discussed the importance of the Trial Court in justice delivery system as under: - "16. Importance of Trial Courts The Law Commission of India headed by H.R. Khanna, J. in its Seventy Seventh Report relating to the 'Delays and Arrears in Trial Courts' dealt with the importance of Trial Courts in the justice delivery system. The relevant portion of the said Report is reproduced as under: -"If an evaluation were made of the importance of the role of the different functionaries who play their part in the administration of justice, the top position would necessarily have to be assigned to the Trial Court Judge. He is the key-man in our judicial system, the most important and influential participant in the dispensation of justice. It is mostly with the Trial Judge rather than with the appellate Judge that the members of the general public come in contact, whether as parties or as witnesses. The image of the judiciary for the common man is projected by the Trial Court Judges and this, in turn depends upon their intellectual, moral and personal qualities." -Personality of Trial Court Judges "Errors committed by the Trial Judge who is not of the right caliber can sometimes be so crucial that they change the entire course of the trial and thus result in irreparable miscarriage of justice. Apart from that, a rectification of the error by the appellate Court which must necessarily be after lapse of a long time, can hardly compensate for the mischief which resulted from the error committed by the Trial Judge." -The 'Upper Court' Myth "The notion about the provisional nature of the Trial Court decisions being subject to correction in appeal, or what has been called the "upper-Court myth" ignores the realities of the situation. In spite of the right of appeal, there are many cases in which appeals are not filed. In spite of the right of appeal, there are many cases in which appeals are not filed. This apart, the appellate Courts having only the written record before them are normally reluctant to interfere with the appraisement of evidence of witnesses by the Trial Judges who have had the advantage of looking at the demeanour of the witnesses. The appellate Court, it has been said, operates in the partial vacuum of the printed record. A stenographic transcript fails to reproduce tones of voice and hesitations of speech that often make a sentence mean the reverse of what the mere words signify. The best and most accurate record of oral testimony is like a dehydrated peach; it has neither the substance nor the flavor of the peach before it was dried." 14. The principles of law summarised by this Court in Ved Prakash Kharbanda v. Vimal Bindal (supra) are reproduced hereunder:- "21. Summary of Principles 21.1 Truth should be the Guiding Star in the Entire Judicial Process • Truth is foundation of Justice. Dispensation of justice, based on truth, is an essential and inevitable feature in the justice delivery system. Justice is truth in action. • It is the duty of the Judge to discover truth to do complete justice. The entire judicial system has been created only to discern and find out the real truth. • The justice based on truth would establish peace in the society. For the common man truth and justice are synonymous. So when truth fails, justice fails. People would have faith in Courts when truth alone triumphs. • Every trial is voyage of discovery in which truth is the quest. Truth should be reigning objective of every trial. Judge has to play an active role to discover the truth and he should explore all avenues open to him in order to discover the truth. • The Trial Judge is the key-man in the judicial system and he is in a unique position to strongly impact the quality of a trial to affect system's capacity to produce and assimilate truth. The Trial Judge should explore all avenues open to him in order to discover the truth. Trial Judge has the advantage of looking at the demeanour of the witnesses. In spite of the right of appeal, there are many cases in which appeals are not filed. The Trial Judge should explore all avenues open to him in order to discover the truth. Trial Judge has the advantage of looking at the demeanour of the witnesses. In spite of the right of appeal, there are many cases in which appeals are not filed. It is mostly with the Trial Judge rather than with the appellate Judge that the members of the general public come in contact, whether as parties or as witnesses. 21.2 What is 'Truth' and how to discover it • Law's Truth is synonymous with facts established in accordance with the procedure prescribed by law. • The purpose of judicial inquiry is to establish the existence of facts in accordance with law. • Facts are proved through lawfully prescribed methods and standards. • The belief of Courts about existence of facts must be based on reason, rationality and justification, strictly on the basis of relevant and admissible evidence, judicial notice or legally permitted presumptions. It must be based on a prescribed methodology of proof. It must be objective and verifiable. 21.3 Section 3 of Indian Evidence Act, 1872 • "Evidence" of a fact and "proof" of a fact are not synonymous terms. "Proof" in the strict sense means the effect of evidence. • A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. • The term "after considering the matters before it" in Section 3 of the Evidence Act means that for judging whether a fact is or not proved, the Court is entitled to take into consideration all matters before it which shall include the statement of the witnesses, admissions of the parties, confession of the accused, documents proved in evidence, judicial notice, demeanour of witnesses, local inspections and presumptions. • The term "believes it to exist" in the definition of "proof" is a "judicial belief" of the Judge based on logical/rational thinking and the power of reason, and the Court is required to give reasons for the belief. The reasons are live links between the mind of the decision maker and the belief formed. Reasons convey judicial idea in words and sentences. Reasons are rational explanation of the conclusion. Reason is the very life of law. The reasons are live links between the mind of the decision maker and the belief formed. Reasons convey judicial idea in words and sentences. Reasons are rational explanation of the conclusion. Reason is the very life of law. It is the heart beat of every belief and without it, law becomes lifeless. Reasons also ensure transparency and fairness in the decision making process. The reasons substitute subjectivity by objectivity. Recording of reasons also play as a vital restraint on possible arbitrary use of the judicial power. The recording of reasons serve the following four purposes:- -To clarify the thought process. -To explain the decision to the parties. -To communicate the reasons to the public. -To provide the reasons for an appellate Court to consider. • Non-recording of reasons would cause prejudice to the litigant who would be unable to know the ground which weighed with the Court and also cause impediment in his taking adequate grounds before the appellate Court in the event of challenge. • Nothing can be said to be "proved", however much material there may be available, until the Court believes the fact to exist or considers its existence so probable that a prudent man will act under the supposition that it exists. For example, ten witnesses may say that they saw the sun rising from the West and all the witnesses may withstand the cross-examination, the Court would not believe it to be true being against the law of nature and, therefore, the fact is 'disproved'. In mathematical terms, the entire evidence is multiplied with zero and, therefore, it is not required to be put on judicial scales. Where the Court believes the case of both the parties, their respective case is to be put on judicial scales to apply the test of preponderance. • The approach of the Trial Court has to be as under:-If on consideration of all the matters before it, the Court believes a fact to exist or considers its existence probable, the fact is said to be 'proved'. On the other hand, if the Court does not believe a fact either to exist or probable, such fact is said to be 'disproved'. A fact is said to be 'not proved' if it is neither proved nor disproved. On the other hand, if the Court does not believe a fact either to exist or probable, such fact is said to be 'disproved'. A fact is said to be 'not proved' if it is neither proved nor disproved. • The test whether a fact is proved is such degree of probability as would satisfy the mind of a reasonable man as to its existence. The standard of certainty required is of a prudent man. The Judge like a prudent man has to use its own judgment and experience and is not bound by any rule except his own judicial discretion, human experience, and judicial sense. 21.4 Section 114 of the Indian Evidence Act, 1872 • Section 114 is a useful device to aid the Court in its quest for truth by using common sense as a judicial tool. Section 114 recognizes the general power of the Court to raise inferences as to the existence or non-existence of unknown facts on proof or admission of other facts. • Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. • The source of presumptions is the common course of natural events, human conduct and public or private business, and the Section proceeds on the assumption that just as in nature there prevails a fixed order of things, so the volitional acts of men placed in similar circumstances exhibits, on the whole, a distinct uniformity which is traceable to the impulses of human nature, customs and habits of society. • The illustrations though taken from different spheres of human activity, are not exhaustive. They are based upon human experience and have to be applied in the context of the facts of each case. The illustrations are merely examples of circumstances in which certain presumptions may be made. Other presumptions of a similar kind in similar circumstances can be made under the provisions of the section itself. • Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the Court can draw an inference and that would remain until such inference is either disproved or dispelled. • Presumptions of fact can be used by the Courts in the course of administration of justice to remove lacunae in the chain of direct evidence before it. From a certain fact or facts the Court can draw an inference and that would remain until such inference is either disproved or dispelled. • Presumptions of fact can be used by the Courts in the course of administration of justice to remove lacunae in the chain of direct evidence before it. The function of a presumption is to fill a gap in evidence. • Section 114 of the Indian Evidence Act applies to both civil and criminal proceedings. • Whether or not a presumption can be drawn under the section in a particular case depends ultimately upon the facts and circumstances of each case. No hard and fast rule can be laid down. Human behaviour is so complex and room must be left for play in the joints. It is not possible to formulate a series of exact propositions and con-flue human behaviour within straitjackets. • No rule of evidence can guide the Judge on the fundamental question whether evidence as to a relevant fact should be believed or not. Secondly, assuming that the Judge believes very few cases, guide him on the question what inference he should draw from it as to assist a Judge in the very smallest degree in determining the master question of the whole subject -whether and how far he ought to believe what the witnesses say? The rules of evidence do not guide what inference the Judge ought to draw from the facts in which, after considering the statements made to him, he believes. In every judicial proceeding whatever these two questions -Is this true, and, if it is true what then? -ought to be constantly present in the mind of the Judge, and the rules of evidence do not throw the smallest portion of light upon them. 21.5 Section 165 of the Indian Evidence Act, 1872 • Section 165 of the Indian Evidence Act, 1872 invests the Judge with plenary powers to put any question to any witness or party; in any form, at any time, about any fact relevant or irrelevant. Section 165 is intended to arm the Judge with the most extensive power possible for the purpose of getting at the truth. Section 165 is intended to arm the Judge with the most extensive power possible for the purpose of getting at the truth. The effect of this Section is that in order to get to the bottom of the matter before it, the Court will be able to look at and inquire into every fact and thus possibly acquire valuable indicative evidence which may lead to other evidence strictly relevant and admissible. The Court is not, however, permitted to found its judgment on any but relevant statements. • The object of a trial is, first to ascertain truth by the light of reason, and then, do justice upon the basis of the truth and the Judge is not only justified but required to elicit a fact, wherever the interest of truth and justice would suffer, if he did not. • The Judge contemplated by Section 165 is not a mere umpire at a wit-combat between the lawyers for the parties whose only duty is to enforce the rules of the game and declare at the end of the combat who has won and who has lost. He is expected, and indeed it is his duty, to explore all avenues open to him in order to discover the truth and to that end, question witnesses on points which the lawyers for the parties have either overlooked or left obscure or willfully avoided. A Judge, who at the trial merely sits and records evidence without caring so to conduct the examination of the witnesses that every point is brought out, is not fulfilling his duty." 11. Upon due consideration of the aforesaid including the consent of the prosecution regarding DNA test, this Court finds that no interference is required in the matter, as the impugned order dated 12.02.2024 is not in violation of the provisions and the judgment(s) referred above. The instant application is accordingly dismissed.