Karnataka High Court
Ningappa S/O Hanumantappa Pujar vs State Of Karnataka By on 27 July, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 27th DAY OF JULY, 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No.10834/2012
BETWEEN:
Ningappa, S/o. Hanumantappa Pujar
Aged about 30 years
R/o. Yalawatti, Hangal
Now at Nazik-Lakamapur
Tq. & Dist. Haveri.
...PETITIONER
(By Sri. Aravind D. Kulkarni & Sri. Praveen P. Tarikar, Advs.)
AND:
1. State of Karnataka by
Hangal Police Station, Hangal
Rep. by the Public Prosecutor
High Court of Karnataka
Dharwad.
2. Malakka, D/o. Mayateppa Karigar
Aged about 25 years
R/o. Yalawatti
Tq. Hangal, Dist. Haveri.
...RESPONDENTS
(By Srr. V. M. Banakar, Addl. SPP)
---
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This Criminal Petition is filed under Section 482 of the
Code of Criminal Procedure, 1973, seeking to set aside the
impugned order dated 15.06.2012 passed by the Sessions
Court, Haveri in S.C.No.57/2005.
This petition coming on for admission this day, the
court made the following:
ORDER
The present petitioner is accused of the offence punishable under Section 376 and other provisions of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.' for brevity).
2. The petitioner having been charge sheeted, came to be tried before the Court of Sessions. The trial having been completed, in that, the prosecution had closed its case and the statement of the accused-petitioner under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to 'Cr.P.C.', for brevity) was also recorded. It is thereafter, that the prosecution had sought to file an application invoking Section 53(A) of the Cr.P.C, seeking that the petitioner may be subjected to DNA profiling. That application having been allowed, the petitioner is before this Court. 3
3. The learned Counsel for the petitioner would point out that, it is the complainant's case itself, that the petitioner and she were known to each other and they had a prolonged relationship, in the belief that, the petitioner would marry her and it is in this background, that she had lodged a case against the petitioner and therefore, the present application being filed at the fag end of the proceedings, when the matter was set down for final hearing, results in a miscarriage of justice.
4. From a reading of Section 53(A) of Cr.P.C, the accused may be subjected to medical examination at the very first instance, when such medical examination is found to be necessary by the police. No such medical examination had been conducted at that point of time. Therefore, the present application is completely inexplicable. The reason assigned by the prosecution is that, as a result of the offence committed by the petitioner, the victim had conceived and she had also delivered a child and in order to ascertain that he child is born to the petitioner, such DNA profiling is necessary.
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5. The learned Counsel for the petitioner would submit that, if the DNA profiling of the petitioner should even match that of the infant now delivered by the alleged victim, it would only prove his parentage and would not establish the commission of rape. The prosecution is required to establish the offence of rape having been committed by the petitioner and not the impregnation or the parentage of the child, that may have been born to the complainant.
6. Therefore, the above purpose, for which the application is filed, is alien to the burden cast on the prosecution and would not lead to a conclusion that the petitioner had indeed committed the offence of rape and, since the application has been filed at a stage, when the entire proceedings had been closed and was set down for final hearing, it results in a miscarriage of justice.
7. While the learned Additional State Public Prosecutor would submit that, a narrow view ought not to be taken of the tenor of Section 53A. It cannot be construed as being limited to a situation, where the accused should be 5 subjected to examination at the very first instance and not at all at a later stage. Such an interpretation would defeat the very object of such provision for medical examination. There can be any number of instances, where DNA profiling would be warranted, even after a long period pursuant to the complaint, depending on the facts and circumstances of the case. Therefore, the purpose of obtaining DNA profiling is to establish beyond doubt that, not only the petitioner had committed rape on the complainant, but as a result of the same, a child was also born to the victim, which would prove that the petitioner has committed the offence punishable for the sexual act, amounting to rape by the petitioner. It is therefore, justified and he would submit that the petition may be dismissed.
8. Having regard to the circumstances of the case, as rightly pointed out by the learned Counsel for the petitioner, the DNA profiling, at this point of time would only establish, if at all, that the child born to the complainant is that of petitioner. That by itself would not be conclusive proof of the petitioner having committed rape, since the prosecution has 6 closed its case with all the evidence, that can be tendered against the petitioner. The proposed additional evidence is superfluous and hence the prosecution is bound to establish its case on the material already on record.
9. Therefore, the DNA profile may be wholly unnecessary and the order passed by the trial Court is quashed.
The petition is disposed of.
Sd/-
JUDGE gab/-