Calcutta High Court
Anandamay Bag vs State Of West Bengal And Anr. on 7 May, 2007
Equivalent citations: 2007(4)CHN470
JUDGMENT P.N. Sinha, J.
1. This revisional application is directed against the order dated 19.10.2006 passed by the learned Assistant Sessions Judge, 2nd Court, Hooghly in S.T. No. 10 of 2003 thereby rejecting the prosecution prayer under Section 311 of the Code of Criminal Procedure for holding DNA test of the victim, the accused and the male child born to the victim.
2. Learned Advocate for the petitioner submitted that in this case the victim was a minor and due to the alleged rape committed on her by the accused she became pregnant and gave birth to a male child who is now aged about 5 years. Concerning the incident of rape, the FIR was lodged at Polba P.S. and after investigation chargesheet was submitted. After commitment of the case to the Court of Sessions, trial also progressed and the case was pending for judgment. During that stage the learned P.P. in-charge of the case filed an application under Section 311 of the Code of Criminal Procedure for direction for holding the DNA test of the victim, her child and the accused. The learned Assistant Sessions Judge by the impugned order dated 19.10. 2006 rejected the said prayer.
3. According to the submission of the learned Advocate for the petitioner, the learned Judge failed, to appreciate the importance of the DNA test as during investigation such test was not conducted by the Investigating Officer. In a case of rape DNA test is very much necessary and it will establish the alleged offence. The learned Judge failed to appreciate that the victim was a minor when the rape was committed on her as a consequence of which she gave birth to a male child. The learned Judge acted illegally by rejecting the prayer under Section 311 of the Code of Criminal Procedure for holding the genealogical test of the victim, the accused and the male child of the victim. The learned Judge failed to appreciate the true spirit of the provision of Section 311 of the Code of Criminal Procedure. The DNA test is necessary to ascertain the fact of alleged rape as well as for ascertaining the paternity of the child of the victim girl. Scope of Section 311 of the Code of Criminal Procedure is very wide and in this case DNA test was necessary for the just decision of the case and in view of provision of Section 311 of the Code of Criminal Procedure at any stage of the case direction for further evidence of further materials may be made. The learned Judge was in error and the impugned order was cryptic and a product of failure of the learned Judge to appreciate the legal principles. In support of his contention Mr. Chatterjee placed before me the decisions in Thogorani alias K. Damayanti v. State of Orissa and Ors. reported in 2004 Cr. LJ 4003 and Solaimuthu v. State rep. by Inspector of Police, Kaikalathor, Perambalpur and Anr. reported in 2005 Cr. LJ 31. He also placed reliance on Ram Lal Narang v. State (Delhi Admn.) , in respect of powers of Magistrate to direct further investigation or powers of police to conduct further investigation and also placed the decision in Gurdev Singh v. State of Punjab reported in 1982 Cr. LJ 2211 and Mina Barai and Ors. v. State of West Bengal reported in 2006(1) CHN 686, in support of his contention over powers of Court under Section 311 of the Code of Criminal Procedure.
4. Mr. Aloke Roychowdhury, learned Advocate appearing for the State submitted that he is supporting the revisional application filed on behalf of the petitioner. In this case the DNA test is very much necessary to determine the alleged offence of rape and further submitted that under Section 311 of Cr. PC the Court has ample power to direct such further investigation as well as further evidence. In support of his contention Mr. Roychowdhury placed reliance on the same decision in Thogorani alias K. Damayanti v. State of Orissa and Ors. (supra).
5. On the contrary, Mr. Tapash Kumar Ghosh, the learned Advocate appearing for the O.P. No. 2 opposed the revisional application and submitted that in this case the application was made by the learned P.P in-charge of the case while the case was pending for delivery of judgment. Section 311 of the Code of Criminal Procedure cannot be used for collecting evidence or filling lacuna in prosecution case. During investigation or during the stage of pendency of the trial there was no such prayer for DNA test. After the evidence was closed the entire defence was disclosed and, the case was ready for judgment, such a prayer cannot be allowed and if such prayer is allowed at such a belated stage, it would be against the very spirit of the provision of Section 311 of the Cr. PC. Mr. Ghosh further submitted that a man cannot be compelled against his wishes to give his blood sample as it would hit Article 20(3) of the Constitution of India. In support of his contention, Mr. Ghosh placed reliance on Goutam Kundu v. State of West Bengal and Anr. , where the Hon'ble Supreme Court observed that the Court's in India cannot order blood test as a matter of course. The Supreme Court also observed that where applications, are made for such prayer in order to have roving inquiry, the prayer for blood test cannot be entertained. Mr. Ghosh also referred to a decision of this Court in Lakshmi Bose Roychowdhury v. State of West Bengal reported in 2007(1) CHN 779, where this Court held that order for DNA test after submission of chargesheet have no relevancy and this Court set aside the order of the subordinate Court. Mr. Ghosh also placed reliance on two decisions in Syed Mohd. Ghouse v. Noorunnisa Begum reported in 2001 Cr. LJ 2028 and Haribhai Chanabhai Vora and Ors. v. Keshubhai Haribhai Vora , wherein the Hon'ble Andhra Pradesh High Court and Gujarat High Court respectively held that no one can be compelled to submit himself for DNA test and Court cannot compel further to submit himself to DNA test. According to Mr. Ghosh, the revisional application, accordingly, having no merit requires dismissal.
6. I have duly considered the submissions made by the learned Advocates for the respective parties and perused the contents of the revisional application and the impugned order dated 19.10.2006 passed by the learned Assistant Sessions Judge, 2nd Court, Hooghly in S.T. No. 10 of 2003. I have also gone through the decisions cited by the learned Advocates for the respective parties. Before I actually enter into the merit of the matter a brief discloser of the fact is necessary which would help the Court to arrive at a decision whether in this case DNA test was at all necessary. The FIR was lodged by one Anandamay Bag. The prosecution story was that the victim Kajal Bag was a girl aged about 13 years only. The victim often used to stay in the house of the accused Manasha Malik and taking that advantage the accused allegedly committed rape on her and she became pregnant. It was also alleged that when the local people enquired about the fact from Manasha Malik, he admitted the incident. After lodging FIR, Polba P.S. Case No. 96 dated 26.11.2001 under Section 376 of the IPC was started against the accused/opposite party No. 2. Subsequently, the victim gave birth to a male child on 19.12.2001 at Chinsurah Sadar Hospital. The ossification test of the victim was also held. After completing investigation the police submitted chargesheet in the case. It is clear that during the pendency of the investigation there was no attempt to hold the DNA test of either of the victim or the accused or of the child of the victim. The case was committed to the Court of Sessions and the trial progressed and the witnesses were examined. During the pendency of the trial also there was no attempt on the part of the prosecution to submit prayer before the learned Trial Court for holding DNA test. Anyway, the trial continued on and finally prosecution evidence was closed and thereafter the accused was examined under Section 313 of the Code of Criminal Procedure and, finally the learned Judge heard argument from both sides on 25.9.2006, and thereafter, the learned Judge fixed 27.9.2006 as the date for delivery of judgment. On 27.9.2006 which was the date for delivery of the judgment, an application was filed by the learned P.P. in-charge of the case praying for holding genealogical test i.e. the DNA test of the victim Kajal Bag as well as the DNA test of O.P. No. 2 and the male child born to the victim. The learned Judge after hearing both parties by order dated 19.10.2006 rejected the prosecution prayer under Section 311 of the Cr. PC.
7. It has been strenuously argued by the learned Advocate for the petitioner as well the learned Advocate for the State that in this case the learned Court below could have allowed the prosecution prayer under Section 311 of the Code of Criminal Procedure. Section 311 of the Code of Criminal Procedure runs as follows:
Section 311. Power to summon material witness, or examine person present.-Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine, any person already examined; and the Court shall summon and examine or recall and re-examine any such person of his evidence appears to it to be essential to the just decision of the case.
8. From the language of Section 311 of the Code of Criminal Procedure it is clear that the Court may at any stage of any inquiry, trial or other proceeding under this Code summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or re-call or re-examine, any person already examined; and such examination of the witnesses may be done if it appears to the Court that the same is essential for the just decision of the case. Provision of Section 311 of the Code of Criminal Procedure is wide no doubt, but it cannot be used for any purpose and in any manner the prosecution likes. Section 311 of the Cr. PC cannot be used in this case where evidence was closed and entire defence was disclosed and earlier there was no attempt by the prosecution to hold the DNA test. If such a prayer is allowed at such a belated stage, it would amount to a kind of further investigation in favour of the prosecution. Scope of Section 311 of the Cr. PC could have been invoked in this case, if out of the chargesheet witnesses some were not examined or, if any of the seized documents were not produced during trial the prosecution prayer to produce such document or such witness at a belated stage would have been permissible under Section 311 of the Cr. PC. In a complaint case if any witness is left out at earlier stage but at a later stage, if the complainant thinks that examination of such witness or production of any document is necessary then the scope of Section 311 of the Cr. PC would come in aid of the complainant. For example, in a complaint case under Section 138 of the NI Act if the complainant failed to produce in evidence the postal receipt or the AD card showing service of demand notice upon the accused and if the complainant filed any application before the learned Magistrate at any stage before delivery of judgment such a prayer should be allowed. But Section 311 cannot be used in a matter when there was no such evidence earlier, no such document seized earlier and nothing was there in existence which prosecution wants to bring now. Scope of further investigation is there no doubt but where such scope can be exercised? Can the prosecution be allowed favour of further investigation in the form of DNA test in this case when entire evidence was closed and entire defence was also revealed and earlier there was no scent of DNA test?
9. The decisions cited on behalf of the prosecution and State are distinguishable. In Thogorani aliasi K. Damayanti v. State of Orissa and Ors. (supra) chargesheet was submitted but the trial did not start and even charge was not framed. During such stage there was a prayer under Section 173(8) of Cr. PC for further investigation and for holding DNA test and when it was refused in the Court below, the matter went before the Hon'ble Orissa High Court and the Division Bench of the Orissa High Court allowed the prayer.
10. In Solaimuthu v. Stale rep. by Inspector of Police, Kaikalathor, Perambalpur and Anr. (supra), the Madras High Court allowed the prayer for DNA test in a case. Prayer for DNA test was made during the stage of investigation. Objection was raised on behalf of the accused by submitting that direction for holding such test would be violative of Article 20(3) of the Constitution but, the Hon'ble Madras High Court rejected such objection of accused and directed that DNA test is necessary and it does not offend Article 20(3) of the Constitution. Besides the decisions cited by the learned Advocate for the petitioner and the learned Advocate supported the State, I also may refer one decision in Raghuvir Dessai v. State reported in 2007 Cr. LJ 829. In this decision the Bombay High Court held that DNA test is clinching piece of evidence and such test is foundation of establishing heredity. In the Bombay matter also the DNA test was directed during stage of investigation and in that matter-DNA test was actually held during the stage of investigation. None of the decisions accordingly show that DNA test in a rape case can be directed after closer of both prosecution and defence case and during the stage of pendency of delivery of judgment.
11. Relating to scope of Section 311 of Cr. PC I think I have given indication already still the decisions referred to by the learned Advocate for the petitioner need some discussion.
12. In Gurdev Singh v. State of Punjab (supra) the Hon'ble Supreme Court indicated that Court has power to examine a witness at any stage of the prosecution in aid of justice as this is the paramount consideration for arriving at a just decision of the case. It appears that it was a case relating to possession of opium and during investigation or enquiry stage chemical examination report was not produced. When the prosecution wanted to produce it in evidence a later stage there was objection on the part of the accused and finally the matter went before the Hon'ble Supreme Court. In that perspective the Supreme Court directed that Court has power to examine a witness at any stage of the proceeding. The facts of the reported case which went to the Supreme Court also reveal that in that matter during investigation there was a report of chemical examiner which was not produced during trial and that is why the Supreme Court directed that production of such evidence was necessary.
13. In Mina Barai and Ors. v. State of West Bengal (supra) this Court directed recall of post-mortem doctor and Investigating Officer as the same was necessary and such prayer was allowed as post-mortem reports were earlier held and due to some discrepancies certain questions were not put to the doctor. Over that background this Court allowed prayer of the prosecution to recall the postmortem surgeon and the Investigating Officer. It is clear, therefore, that in none of the reported decisions there was direction to produce completely a new thing which was not within the knowledge of either the prosecution or defence and Section 311 of Cr. PC cannot be invoked to introduce completely a new thing in the trial.
14. This is a case under Section 376 of the Indian Penal Code and in a case of Section 376 of the Indian Penal Code, 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 Indian Penal Code defines rape and Section 376 of the Indian Penal Code is the penal provision of rape. In several decisions the Supreme Court held that in a case of rape medical evidence is not always final but 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. In State of Punjab v. Ramdev Singh reported in 2004 SCC (Cri) 307, the Supreme Court held that absence of injury in a case of rape is of no consequence. In State of M.P. v. Dayal Sahu , it was held by the Supreme Court 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. It was a case of rape on a girl of 13 years and if the learned Trial Court finds that evidence of the prosecutrix is sufficient, the DNA test is not at all necessary. The learned Judge must be aware of the age of the victim and in such a matter consent is of no consequence.
15. The decisions cited by Mr. Ghosh do not require lengthy discussion as scope and object of the decisions were to some extent different and principles are settled.
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.
17. In view of the discussions made above, this Court does not find any merit in the revisional application. The revisional application accordingly fails and is dismissed.
18. It is made clear that this Court did not enter into the merit of the case or merit of the trial and observations made by this Court are only for the purpose of disposal of this revisional application. The learned Judge will decide the fate of the trial on the basis of evidence and materials on record without being influenced in any way by the observations made by this Court.
19. Criminal Department is directed to forward a copy of this order to the learned Assistant Sessions Judge, 2nd Court, Hooghly for information and necessary action.
20. Criminal Section is to supply certified copy of this order to the respective parties, if applied for.