Andhra Pradesh High Court - Amravati
P.Ganesh vs State Of Ap on 2 September, 2022
Author: K. Sreenivasa Reddy
Bench: K. Sreenivasa Reddy
THE HONOURABLE SRI JUSTICE K. SREENIVASA REDDY
CRIMINAL PETITION NO.475 OF 2019
ORDER :-
The Criminal Petition has been filed to quash the order dated 16.11.2018 in Crl.MP.No.5 of 2018 in S.C.No.263 of 2017 passed by the learned VIII Additional District and Sessions Judge-cum-Special Court for Trial of Offences against Women, East Godavari at Rajamahendravaram.
2. A charge sheet has been filed against the petitioner/A1 and another for the offences punishable under Sections 376, 417, 420 r/w 109 I.P.C on the file of the Additional Judicial First Class Magistrate, Peddapuram, which was registered as P.R.C.No.23 of 2016.
3. As the offences are triable by a Court of Session, the case was committed to the Court of Session under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned VIII Additional District and Sessions Judge-cum-Special Court for Trial of Offences against Women, East Godavari at Rajamahendravaram for trial and disposal in accordance with law and the same has been numbered as S.C.No.263 of 2017.
4. Brief facts of the case are that the respondent No.3-victim girl, who is aged about 19 years, studied upto 10th class in S.S.R.K.Municipal Corporation High School, Kakinada. She used to visit her elder sister's house in Marripudi Village, Rangampeta 2 Mandal. In the year, 2015, as her elder brother-in-law had taken Deeksha of Durgamma mala, she came to her elder sister's house. While her sister and brother-in-law and other relatives were busy in meals arrangements, A2 called the victim girl and took her to her bed room, where A1 was present. Later A2 closed the doors and went away from there. A1 caught hold her and when tried for sexual intercourse, she objected. Then, A1 dishonestly induced her with a belief of lawful marriage and had sexual intercourse, which continued for four days at the same place. A1 also used to visit her house in the absence of her parents and used to perform sexual act, due to which she became pregnant. About week days prior to 28.04.2016, on suspicion, when her parents took her for medical check up, the doctor declared that the victim girl was pregnant. When the matter was placed before the elders, A1 admitted the same. But on 27.04.2016, A1 and others came to the house of the victim and openly proclaimed that A1 would not marry victim and would give Rs.10,000/- for terminating the pregnancy. Hence, she lodged a report, which was registered as a case in Crime No.41 of 2016 of Rangampeta Police Station for the offences under Sections 376, 417, 420 r/w 109 I.P.C. The Inspector of Police, Peddapuram Circle, visited the scene of offence, examined, prepared rough sketch, taken photographs, prepared observation report, recorded the statements of witnesses, sent the victim for medical examination and on 10.05.2016, he arrested A1, who was sent to judicial custody, and later sent A1 to Area Hospital, Peddapuram 3 for potency test. LW17-Dr.D.Ushasree, issued medical certificate opining that the victim girl is subjected to sexual intercourse and she is pregnant with 16 weeks. LW.18-Dr.K.R.Ravikanth, Medical Officer, issued potency certificate opining that there is nothing to suggest that the male examined is not capable of performing sexual act. After completion of investigation, the Inspector of Police filed charge sheet.
5. Pending the Sessions Case, A1 filed Crl.M.P.No.5 of 2018 under Section 45 of the Indian Evidence Act, 1872 to send the petitioner and her child to A.P.Forensic Laboratory for DNA test for deciding the paternity, stating that he did not commit any offence and is not responsible for pregnancy of the de facto complainant He denied the paternity. It is further stated that the de facto complainant, during her cross examination, agreed and reported no objection to undergo DNA test.
6. A counter came to be filed stating that the police, after conducting detailed investigation, filed charge sheet against the accused. Trial has completed and the case is coming up for arguments. This petition is filed only to drag on the case and prayed to dismiss the petition.
7. By an order dated 16.11.2018, the learned Sessions Judge, dismissed the petition.
8. Aggrieved by the same, the petitioner preferred the present Criminal Petition.
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9. Learned counsel for the petitioner strenuously contended that to put an end to the controversy, the only test that can be undergone is DNA test to cull out the factual aspect; that the petitioner, the victim girl and her child have to undergo DNA test. He further submits that the allegations made by the de facto complainant regarding the paternity of the child is a great stigma on the character of the petitioner. In support of the said contentions, he relied upon the judgments reported in Dipanwita Roy v. Ronobroto Roy1, Vijayan v. State of Kerala2 and Janachaitanya Housing Ltd v. Divya Financiers 3.
10. Sri N.Siva Reddy, learned counsel for the 3rd respondent/de facto complainant opposed to subject the de facto complainant and her child to DNA test, for the reason that the offence against the petitioner is under Section 376 IPC and the same is nothing to do with the DNA test and her child. Hence, he prays to dismiss the Criminal Petition.
11. Heard and perused the record.
12. A perusal of the charge sheet goes to show that A1 dishonestly induced the de facto complainant with a belief of lawful marriage and made her to believe his promises and in such belief, he had sexual intercourse with the de facto complainant and also visited the house of the de facto complainant in the 1 AIR 2015 SC 418 2 (2008) 14 SCC 763 3 2008 Law Suit(AP) 189 5 absence of her parents and used to perform sexual act with her, due to which she became pregnant.
13. Admittedly, the offences registered against the petitioner are under Sections 376, 417, 420 r/w 109 I.P.C and the same are nothing to do with the paternity aspects. The alleged incident is said to have taken place in the year 2015, whereas Crl.M.P. came to be filed in the year 2018 i.e. after lapse of three years.
14. Vijayan v. State of Kerala(2 supra), was a case where the complaint was made by the prosecutrix after the alleged commission of rape on her by the accused. At the time of making the case, the prosecutrix was pregnant for about seven months. The Hon'ble Apex Court did not place reliance on the sole testimony of the prosecutrix. The Court noticed the flaw that no DNA test was conducted to find out whether the child was born out of the said incident and the accused was responsible for the said child.
15. The judgments relied upon by the learned counsel for the petitioner dealt with Section 45 of the Indian Evidence Act, 1872 and in connection with sending the disputed signatures or writings to the handwriting expert for a comparison and with regard to the time gap by the date of incident and obtaining the signatures. The commission of offence under Section 376 IPC cannot be determined even if DNA test is performed with and without consent of the complainant.
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16. In Goutam Kundu v. State of West Bengal4, while dealing with Sections 112 and 4 of the Indian Evidence Act, 1872, it is held that no one can be compelled to give sample of blood for analysis in a proceedings for maintenance under Section 125 Cr.P.C. and the purpose of application for blood group test was held to be nothing more than to avoid payment of maintenance. In para-26 it was held as follows:
"26.From the above discussion it emerges-
1. that courts in India cannot order blood test as a matter of course;
2. Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.
3. There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act.
4. The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as abastard and the mother as an unchaste woman
5. No one can be compelled to give sample of blood for analysis."
17. In Anandmay Bag v. State of West Bengal decided on 07.05.2007, it was observed that in a case under Section 376 of the Penal Code, 1860, DNA test may be a valid test but not always relevant, more so, when, during investigation or during pendency of trial, there was no attempt by the prosecution to hold such test. Section 375 of the Penal Code defines rape and Section 376 of the Penal Code is the penal provision of rape. It is pertinent to 4 (1993) 3 SCC 418 7 mention here that in case of rape medical evidence is not always final, Medical evidence plays the role of secondary evidence. If the Court finds that evidence of prosecutrix is sufficient to come to the conclusion that prosecution case was true, then there can be conviction on the basis of sole evidence of prosecutrix.
18. In State of Punjab v. Ramdev Singh5, the Apex Court held that absence of injury in a case of rape is of no consequence.
19. In State of M.P v. Dayal Sahu, it was held that non- examination of doctor in a case of rape is not always fatal to the prosecution when the testimony of the prosecutrix inspires confidence of the Court and non-production of doctor's report is not at all fatal.
20. In view of the facts and circumstances of the case, it is clear that the petition filed under Section 45 of the Indian Evidence Act, 1872 for holding DNA test cannot be allowed at this belated stage to establish the offence under Section 376 IPC. To determine the paternity of the child is relevant or not, through DNA test, can be decided in a different forum and not in the case, where the accused are facing charges under Section 376 IPC. Merely because the petitioner offered to undergo DNA test, it would not mean that the de facto complainant and the minor child are to be submitted to such test without their willingness, since consent of the de facto complainant as well as the minor child is also essential. On this 5 2004 SCC (Cri) 307 8 aspect, it is pertinent to refer to the decision of the High Court of Allahabad in Gulafsa Begum v. State of U.P., as affirmed by the Hon'ble Apex Court in its Order dated 12.07.2022 in ALP (Criminal) Diary No.12603 of 2022, the Allahabad High Court held thus:
(paragraph No.11 and 15).
"11. Learned counsel for the revisionist has also placed reliance upon a judgment rendered by the Calcutta High Court Anandmay Bag v. State of West Bengal decided on 07.05.2007 where the Court has observed in Paragraphs-14 & 16 thereof is as follows:--
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16. In view of the discussion made above it is clear that in this case the prosecution prayer under Section 311 of the Code of Criminal Procedure for holding DNA test cannot be allowed as during investigation or during the stage of charge or during the stage of trial there was no attempt for holding DNA test. After closer of prosecution evidence, examination of accused under Section 313 of Cr. PC and after discloser of entire defence case prosecution prayer to hold DNA test of the victim, her male child and accused cannot be allowed to establish the offence under Section 376 of IPC Whether determination of paternity of the child is relevant or not through DNA test that can be decided in a different forum and not in this case."
15. This Court having heard the learned counsel for the revisionist and counsel appearing on behalf opposite party no. 2 has carefully gone through the judgment rendered by the learned Additional District and Sessions Judge, challenged in this Revision. It is apparent that the learned Additional Sessions Judge has misdirected his energies. The question before the learned Trial Court was not whether the 9 child that was born to the prosecutrix was the child of the opposite party no. 2. There was no question for determining the paternity of the child, the question involved in the case was whether rape was committed on the prosecutrix by the opposite party no.2. There was no reason for the prosecutrix to let her child undergo DNA Test."
21. The question before the Court below was not whether the child that was born to the defacto complainant and A1. There was no issue for determining the paternity of the child. The question involved in the case on hand was whether the rape committed was on the defacto complainant by the accused. There is absolutely no reason for the defacto complaint to let her child undergo DNA test.
22. In view of the aforesaid reasons, this Court feels that the order passed by the learned Sessions Judge is on correct lines and is not inclined to interfere with the impugned order.
23. Accordingly, the Criminal Petition is dismissed.
24. Miscellaneous petitions, if any pending, shall stand closed.
_____________________________ JUSTICE K. SREENIVASA REDDY 02.09.2022 Pab/DRK 10 THE HONOURABLE SRI JUSTICE K. SREENIVASA REDDY CRIMINAL PETITION NO.475 OF 2019 .08.2022 Pab/DRK