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2024 DIGILAW 1800 (GUJ)

Ramji Bavla Koli v. State Of Gujarat

2024-09-02

GITA GOPI

body2024
JUDGMENT : 1. The applicant has filed this Revision Application challenging the order dated 09.05.2024 passed by 3rd Additional Sessions Judge at Anjar-Kachchh rejecting the prayer for DNA test below Exh.64 in Special POCSO Case No.11 of 2022 in connection with FIR No.11993003220400 of 2022 registered with Anjar Police Station for the offences punishable under section 376(2)(n) and 506(2) of IPC and sections 4 and 6 of the Protection of Children From Sexual Offences Act, 2012 (for short ‘POCSO Act’). 2. Learned advocate Mr. Ashish Dagli with Ms. Aishwarya H.Chaudhary, learned advocate for the applicant submitted that the applicant being the original accused in the trial before the 3rd Additional Sessions Judge, Anjar-Kachchh had moved an application, Exh.64, while he was put to answer the evidence against him in further statement under section 313 of Cr.P.C., and he had categorically stated in the further statement that he is innocent and he is falsely implicated, and had prayed for DNA test. 2.1 Advocate Mr. Dagli stated that earlier too, in application vide Exh.34/C in Special POCSO Case No.11 of 2022, prayer was made under section 53(A)(2)(iv) of Cr.P.C. for DNA test. Advocate Mr. Dagli submitted that the same came to be rejected on 29.09.2023 by the Special Judge, POCSO, observing that for a case under section 375 of IPC, there would not be any relevancy to the nexus of the biological father of the child. Advocate Mr. Dagli submitted that such an observation would become erroneous in view of the decision of the Division Bench of this Court in case of Ajitkumar Kumarsinh Bhagora Vs. State of Gujarat, rendered in Criminal Appeal No.1110 of 2017 with Criminal Appeal No.845 of 2017 dated 04.04.2019. 2.2 Advocate Mr. Dagli submitted that at the relevant time the order could not be challenged, but now the trial has come at the fag end and consistently evidence has been placed on record, even by way of cross-examination the evidence was led to doubt the paternity and specific questions were put to the victim, where her relation with some other named person had been brought on record. 2.3 Advocate Mr. Dagli further stated that the victim was asked the question whether she was ready for a DNA test of the child, she has specifically denied. Mr. 2.3 Advocate Mr. Dagli further stated that the victim was asked the question whether she was ready for a DNA test of the child, she has specifically denied. Mr. Dagli stated that it is a consistent specific case of the accused that he has been falsely implicated and, thus, an opportunity is required to be given to the accused by way of DNA test lest for want of such test on record the accused may not be wrongly convicted. 3. By way of Application, Exh.64/C, the accused had made a prayer for DNA test urging the Court to lend a helpful attitude for discovery of truth and had pleaded that DNA test can be helpful in finding out the facts relating to the offence, and should be used and utilized and the Courts should not obstruct the conduct of the exercise. 3.1 During the course of cross-examination of the victim, the accused could bring on record a name of some third person, who according to the accused was having relation with the victim. The child, who has been born as per the record, is adopted by a court staff. In the statement under section 313 of Cr.P.C., the accused had stated that since the fetus has already taken the shape of the child, who is born and the child is adopted by a court staff, thus, had made a prayer that a DNA test be conducted of his along with victim with child stating that he is innocent. 4. Ms. Joyti Bhatt, learned APP submitted that since the victim girl was aged about 14 years, when she suffered the offence, and since she has not given her consent for DNA test, it cannot be imposed upon her to give consent and therefore in the interest of justice necessary orders are required to be passed. 5. Rule was issued for the complainant, who is mother of the victim, to remain present. In spite of being served, she has failed to appear before this Court. 6. In paragraph no. 33, the Division Bench of this Court in Ajitkumar Kumarsinh Bhagora (supra), has cited the judgment of Mumesh & Anr. Vs. 5. Rule was issued for the complainant, who is mother of the victim, to remain present. In spite of being served, she has failed to appear before this Court. 6. In paragraph no. 33, the Division Bench of this Court in Ajitkumar Kumarsinh Bhagora (supra), has cited the judgment of Mumesh & Anr. Vs. State for Nct of Delhi & Ors., reported in (2017) 6 SCC 1 , which reads as under: “DNA evidence is now a predominant forensic technique for identifying criminals when biological tissues are left at the scene of crime or for identifying the source of blood found on any articles or clothes etc. recovered from the accused or from witnesses. DNA testing on samples such as saliva, skin, blood, hair or semen not only helps to convict the accused but also serves to exonerate. The sophisticated technology of DNA finger printing makes it possible to obtain conclusive results. Section 53A Cr.P.C. is added by the Code of Criminal Procedure (Amendment) Act, 2005. It provides for a detailed medical examination of accused for an offence of rape or attempt to commit rape by the registered medical practitioners employed in a hospital run by the Government or by a local authority or in the absence of such a practitioner within the radius of 16 kms. from the place where the offence has been committed by any other registered medical practitioner.” 6.1 In paragraph no.34, the Division Bench has cited the judgment of Kamalanantha And Ors. Vs. State of Tamil Nadu, reported in 2005 5 SCC 194 , and quoted para 61 thereof, which reads as under: “Regarding Data Base and contamination Dr.Lalji has stated in cross- examination as under :-" "As far as Paternity is concerned, the Paternity of the child is determined by identifying which are the bands of maternal and which are paternal. Therefore, comparison of DNA fingerprinting of the child with the mother will identify which are the bands maternally inherited. Elimination of these bands will leave those bands inherited from the childs to father, the paternally specific bands. If the alleged Father's Fingerprinting pattern contains all of these bands, then he is the true Biological Father of that Child and Paternity is confirmed. The article published by a Laboratory - CELLMARK, United States is Ex.D.42." 7. Elimination of these bands will leave those bands inherited from the childs to father, the paternally specific bands. If the alleged Father's Fingerprinting pattern contains all of these bands, then he is the true Biological Father of that Child and Paternity is confirmed. The article published by a Laboratory - CELLMARK, United States is Ex.D.42." 7. Under section 29 of the POCSO Act, the presumption is for the offences under sections 3, 5, 7 and 9 of the POCSO Act. Here, in this case, the sections, which have been invoked are sections 4 and 6. Section 4 and 6 are the punitive Sections for section 3 and 5 of the POCSO Act. The presumption would run for these offences, unless the contrary stand proved. Here, in the present matter, the accused had moved the Court with evidence on record in the cross- examination. The specific defence was taken that the person as named in the cross-examination was having relation with the victim. The accused states that he is innocent, meaning thereby of false implication. 8. The learned trial Court Judge denying the DNA test observed that such orders cannot be passed for the paternity test to loose the child in the search of paternity, and further secrecy has to be maintained, which is the human right and that the right of the child is also to be taken into consideration. The learned Judge has also kept in view the denial of the victim for such a test appreciating the argument of learned APP of the trial Court that the interest of the minor victim is required to be protected, who had also urged before the Court that there is no nexus to find out the paternity under section 375 of the IPC and for that purpose any biological test of the accused. Such order can be passed only in exceptional cases. 9. The Division Bench of this Court after having noted various judgments of the other Courts has relied in the case of Tameezuddin alias Tammu Vs. State (NCT of Delhi), reported in (2009) 15 SCC 566 , and noted paragraph 9, which reads as under: "9. Such order can be passed only in exceptional cases. 9. The Division Bench of this Court after having noted various judgments of the other Courts has relied in the case of Tameezuddin alias Tammu Vs. State (NCT of Delhi), reported in (2009) 15 SCC 566 , and noted paragraph 9, which reads as under: "9. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that story is indeed improbable.” 10. In the case of Raju And Others Vs. State of Madhya Pradesh, reported in (2008) 15 SCC 133 , the Hon’ble Supreme Court has observed in paragraph nos.10 and 11, which reads as under: “10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court. 11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.” 10.1 In view of the observations, the protection of the child born out of such relation would be paramount, and even at the same time, the victim’s interest is also required to be protected, but when the case has been urged of false implication and for that purpose certain evidence has been brought on record by way of cross-examination, then in that circumstances, the prayer for DNA test ought not to have been denied by the learned trial Court Judge. The basic principle as has been observed in Raju And Others Vs. State of Madhya Pradesh (supra), that evidence of the prosecutrix should not be suspected and should be believed, since statement is at par as of an injured witness, but at the same time that cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the Court. 10.2 The Hon’ble Supreme Court has observed that rape causes the great distress and humiliation to the victim, but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, and when in the present case by way of cross- examination certain evidence has been led, which can prima facie be considered that the accused had tried to bring on record some evidence, which could lead to rebuttal of the presumption, then in that case, the learned Judge was required to allow the prayer, which was made by moving application by Exh.64 in the further statement of the accused. 11. 11. In the result, the Revision Application is allowed. The order dated 09.05.2024 passed by learned 3rd Additional Sessions Judge at Anjar- Kachchh below Exh.64 in Special POCSO Case No.11 of 2022 is quashed and set aside. 11.1 It is directed to the concerned trial Court to send the accused and request to the court staff for taking necessary sample of the child for necessary DNA test. The test report be presented by the concerned Medical Officer within a reasonable time before the concerned trial Court, and such exercise be completed as expeditiously as possible preferably within a period of one month. Rule is made absolute to the aforesaid extent.