# Gulafsa Begum Revisionist v. State of U.P

- **Citation:** (2021) 11 ILRA 156
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-03
- **Case number:** Criminal Revision No. 477 of 2021
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gulafsa-begum-revisionist-v-state-of-u-p-46562
- **Pages:** 5

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397 - Revision -
Indian Penal Code, 1860 - Sections 376, 504
& 506 - The Protection of Children From
Sexual Offences Act, 2012 - Section 3/4 - No
Court can bind the prosecutrix to get the DNA
Test conducted - An adverse inference can be
drawn against the prosecutrix - No DNA Test
can be conducted of the prosecutrix without
her consent . (Para - 6)

First Information Report lodged by revisionist
against opposite party nos.2 and 3 and other coaccused - daughter of revisionist aged about 14
years was raped - pregnant - statement under
Sections 161 and 164 Cr.P.C. - Charge-sheet -
Application for conducting DNA Test of PW-2 -
Objections filed by revisionist - Juvenile Justice
Board rejected application - opposite party no.2
filed Criminal Appeal - opposite party no.2 filed an
application for arrange/impleading revisionist as
opposite party no.2 - Appellate Court without
deciding application for impleadment of revisionist
decided the Appeal finally and passed impugned
order - observation of Appellate Court - DNA Test
will determine paternity of child and would clarify
the issue - hence revision.(Para - 3,4)

HELD:- 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. No reason for the
prosecutrix to let her child undergo DNA Test.
Order dated 25.06.2021 set aside.Trial Court order
dated
25.03.2021is
affirmed
subject
to
modificattion.(Para -14 )

Criminal Revision allowed. (E-7)

List of Cases cited:-

## Text

156 INDIAN LAW REPORTS ALLAHABAD SERIES
notified by the Act of 2015. Let a fresh order be
passed on the application moved by the
revisionist within four weeks from the date of
production of certified copy of this order.

20. The Revision stands disposed of.
----------
(2021)12ILR A156
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.12.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Criminal Revision No. 477 of 2021

Gulafsa Begum ...Revisionist
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Ashish Kumar Shukla, Deepanjali Singh

Counsel for the Opposite Party:
G.A., Umesh Singh

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397 - Revision -
Indian Penal Code, 1860 - Sections 376, 504
& 506 - The Protection of Children From
Sexual Offences Act, 2012 - Section 3/4 - No
Court can bind the prosecutrix to get the DNA
Test conducted - An adverse inference can be
drawn against the prosecutrix - No DNA Test
can be conducted of the prosecutrix without
her consent . (Para - 6)

First Information Report lodged by revisionist
against opposite party nos.2 and 3 and other coaccused - daughter of revisionist aged about 14
years was raped - pregnant - statement under
Sections 161 and 164 Cr.P.C. - Charge-sheet -
Application for conducting DNA Test of PW-2 -
Objections filed by revisionist - Juvenile Justice
Board rejected application - opposite party no.2
filed Criminal Appeal - opposite party no.2 filed an
application for arrange/impleading revisionist as
opposite party no.2 - Appellate Court without
deciding application for impleadment of revisionist
decided the Appeal finally and passed impugned
order - observation of Appellate Court - DNA Test
will determine paternity of child and would clarify
the issue - hence revision.(Para - 3,4)

HELD:- 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. No reason for the
prosecutrix to let her child undergo DNA Test.
Order dated 25.06.2021 set aside.Trial Court order
dated
25.03.2021is
affirmed
subject
to
modificattion.(Para -14 )

Criminal Revision allowed. (E-7)

List of Cases cited:-

1. Shameem @ Bugul Vs St. of U.P. , Criminal
Appeal (Juvenile) No.19/2021

2. Goutam Kundu Vs St. of W.B. & anr. , (1993) 3
SCC 418

3. Ashok Kumar Vs Raj Gupta & ors., Civil Appeal
No.6153 of 2021

4. Calcutta High Court Anandmay Bag Vs St. of
W.B. & anr.

5. G. Vasanthi Vs M. Muneeshwaran

6. Muthukutti Vs The Deputy Director & ors.

7. Yedla Srinivasa Rao Vs St. of A.P. , (2006) 11
SCC 615

(Delivered by Hon'ble Mrs. Sangeeta Chandra, J.)

(1) Heard the learned counsel for the
parties and perused the record.

(2) This Criminal Revision has been filed
challenging the judgment and order dated
25.06.2021 passed by the learned Additional
Sessions
Judge,
(POCSO
Act),
No.12,
Sultanpur, passed in Criminal Appeal (Juvenile)
No.19 of 2021, relating to Case Crime
No.360/2017, under Sections 376, 504, 506 IPC
11 All. Gulafsa Begum Vs. State of U.P.
157
and Section 3/4 POCSO Act, Police Station
Kotwali Dehat, District Sultanpur.

(3) It has been submitted by the learned
counsel for the revisionist that on 17.12.2017 the
First Information Report of Case Crime
No.360/2017, under Sections 376, 504, 506 IPC
and Section 3/4 POCSO Act, Police Station
Kotwali Dehat, District Sultanpur, was lodged
by the revisionist against the opposite party
nos.2 and 3 and other co-accused that the
daughter of the revisionist aged about 14 years
was raped seven months ago as a result whereof
she became pregnant. When the revisionist got
information of her daughter's pregnancy they
tried to marry her with the opposite party no.2
but the father of the opposite party no.2 denied
such proposal. The revisionist and her associates
told the father of the opposite party no.2 that if
the child is not aborted they would have to face
dire consequences. The Investigating Officer
after recording the statement under Sections 161
and
164
Cr.P.C.
filed
Charge-sheet
on
13.06.2014 in the Court of Chief Judicial
Magistrate, Court No.17, Sultanpur, against the
opposite party no.2 and two persons. With
regard to the other accused in the F.I.R.
investigation is pending till date and they have
not been arrested as yet. Later on, the opposite
party no.2 was declared juvenile and the Trial
was transferred to the Juvenile Justice Board,
Sultanpur. After examination-in-chief and crossexamination of prosecution witness as PW-1 i.e.
the revisionist and PW-2 i.e. the victim her
daughter, a date was fixed for examination of
other prosecution witnesses.

(4) The opposite party no.2 filed an
application for conducting DNA Test of the PW2. Objections were filed by the counsel for the
revisionist. On 25.03.2021 learned Juvenile
Justice Board after considering the entire facts
and circumstances and evidence available on
record rejected the application for DNA Test.
Against the order the dated 25.03.2021, the
opposite party no.2 filed a Criminal Appeal in
the court of Additional Sessions Judge, Court
No.12, Sultanpur, which was registered as
Criminal
Appeal
(Juvenile)
No.19/2021
(Shameem @ Bugul Vs. State of U.P.). During
the pendency of such Appeal, the opposite party
no.2 filed an application for arrange/impleading
the revisionist as opposite party no.2.The
Appellate Court without deciding the application
for impleadment of the revisionist decided the
Appeal finally and passed impugned order on
25.06.2021. In the order dated 25.06.2021 the
learned Appellate Court has ignored the
provisions of Article 14--21 of the Constitution
of India, the Juvenile Justice Board in its order
dated 25.03.2021 had observed that the
application for examination of child of the
prosecution witness moved by the opposite party
no.2 can only be moved at the stage when
defence witnesses were being examined under
Section 313 Cr.P.C. It held that sending the
victim child for DNA Test would further delay
the Trial which under the provisions of Statute
should be concluded as expeditiously as
possible.

(5) It has been submitted by the learned
counsel for the revisionist that the revisionist
and her daughter, the victim had never given any
consent for DNA Test which is extremely
necessary in such cases. Only because the
learned Appellate Court observed that the DNA
Test will determine the paternity of the child and
would clarify the issue. Such DNA Test cannot
be performed without consent of the prosecutrix.
The issue involved in the prosecution of the
opposite party no.2 was not whether her child
was son of the accused. The issue was whether
the prosecutrix was raped by the opposite party
no.2 which cannot be decided only by
determining the paternity of the child who was
born much later. As a consequence, learned
Appellate Court has erred in recording a finding
that conducting of DNA Test will not be
performed without the consent of the parties.
158 INDIAN LAW REPORTS ALLAHABAD SERIES

(6) Most certainly, the commission of
offence under Sections 376, 504, 506 IPC cannot
be determined even if DNA Test is verified with
and without consent of the prosecutrix. The
Supreme Court as well as several High Courts
have observed that no Court can bind the
prosecutrix to get the DNA Test conducted. It is
probable that an adverse inference can be drawn
against the prosecutrix. On refusal of the
prosecutrix to undergo for DNA Test but no DNA
Test can be conducted of the prosecutrix without
her consent.

(7) Learned counsel for the opposite party
no.2 has pointed out from his counter affidavit that
the revisionist herself had given a statement before
the Investigating Officer that she was willing to get
DNA Test conducted of the child born to the
prosecutrix.

(8) Learned counsel appearing for the
revisionist in rejoinder affidavit has submitted that
only because the prosecutrix's mother had made a
statement to the Investigating Officer, such
statement cannot bind the prosecutix who has now
become major and can decide for her child
whether she wants her child to face the risk of
being declared a bastard. Learned counsel for the
revisionist has placed reliance upon the judgment
of the Hon'ble Supreme Court in the case of
Goutam Kundu Vs. State of West Bengal &
Another reported in (1993) 3 SCC 418, where
the question involved was with regard to the
legitimacy of a born child during marriage of the
appellant with the private respondents. The
Supreme Court had observed that if the legitimacy
is questioned by making out a strong case of nonaccess of the husband by the person questioning
the legitimacy, on whom burden of rebuttal of
presumption of legitimacy lies, the Court will also
consider the effect of ordering the blood test on the
status of the child and the character of the mother.
No one can be compelled to give sample of blood
for analysis.

(9) Learned counsel for the revisionist has
relied upon Paragraph-26 of the judgment in
Goutam Kundu (Supra) case which is being
quoted hereinbelow:-

"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 nonaccess 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."

(10) Learned counsel for the revisionist has
placed reliance on another judgment of the
Hon'ble Supreme Court in the case of Ashok
Kumar Vs. Raj Gupta & Others, Civil
Appeal
No.6153
of
2021
decided
on
01.10.2021 and has referred to Paragraph-17 of
the
judgment
which
is
being
quoted
hereinebelow:-

"The appellant (plaintiff) as noted
earlier, has brought on record the evidence in
his support which in his assessment adequately
establishes his case. His suit will succeed or fall
with those evidence, subject of course to the
evidence adduced by the other side. When the
plaintiff is unwilling to subject himself to the
DNA test, forcing him to undergo one would
impinge on his personal liberty and his right to
privacy."
11 All. Gulafsa Begum Vs. State of U.P.
159

(11) Learned counsel for the revisionist has
also placed reliance upon a judgment rendered
by the Calcutta High Court Anandmay Bag
Vs. State of West Bengal and Another
decided on 07.05.2007 where the Court has
observed in Paragraphs- 14 & 16 thereof is as
follows:-

"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.

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."

(12) Learned counsel for the revisionist has
also placed reliance upon a decision of the the
Madras High Court in the case of G. Vasanthi
Vs.
M.
Muneeshwaran
delivered
on
02.01.2019 and reported Online on Website of
the said High Court. A reference has been made
to Paragraph-19 of the said judgment where it
has been observed that the learned Trial Court
would be justified in drawing an adverse
inference against the litigant on refusal to
undergo DNA Test. While character of the
mother may be exposed the status of the child
shall remain in law even if the result of the DNA
test does not establish the paternity of the child.
Just as identity of the rape victim and that of
juvenile in conflict of the law is concealed.
Similar protective measures shall be taken in
such cases.

(13) It was a case where G. Vsanthi
(Supra) the parties were fighting an application
for dissolution of marriage.

(13) Learned counsel for the revisionist has
also placed reliance upon a judgment rendered
by Madurai Bench of the Madras High Court of
02.11.2011 in Muthukutti Vs. The Deputy
Director and others decided on 02.11.2011,
DNA Section Forensic Science Department,
Mylapore, Chennai and other. The petitioner
therein wanted the DNA Test to be conducted of
her child within a stipulated time and prayed that
160 INDIAN LAW REPORTS ALLAHABAD SERIES
a direction to be issued by the Court with regard
to the same. The Madurai Bench referred the
observations made by the Supreme Court in the
case of Yedla Srinivasa Rao Vs. State of
Andhra Pradesh reported in (2006) 11 SCC
615, and emphasize that merely because the
petitioner had offered to conduct DNA Test it
would not mean that the complainant and the
minor child can also be subjected to such test
without their consent. It was observed that the
consent of the complainant and the consent of
the minor child was relevant.

(14) 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 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.

(15) The order dated 25.06.2021 is set
aside and the learned Trial Court order dated
25.03.2021
is
affirmed
subject
to
the
modification that the Trial Court's observation
regarding such application being moved under
Section 313 of the Cr.P.C. would be considered
on its merits when it is taken up, shall also not
be read against the revisionist that victim of rape
can be compelled to undergo DNA test after
such long time of the alleged incident.

(16) The Revision stands allowed.
----------
(2021)12ILR A160
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.12.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Criminal Revision No. 556 of 2021

Siyaram @ Shiva Ram ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Jai Pal Singh

Counsel for the Opposite Parties:
G.A., Vijay Kumar

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397 - Revision -
Indian Penal Code, 1860 - Accused person
has
got
legal
right
to
file
discharge
application - such legal right must be
addressed and disposed of by speaking and
reasoned order within the four corners of the
law - While disposing of the discharge
application, application of mind should be
reflected in as much as as per trite law, trial
court
while
considering
the
discharge
application is not to act as a mere post office.
(Para - 12 ,13)

Discharge application of the revisionist been rejected
- hence revision .

HELD:-While disposing of the discharge application,
court below has not considered each and every
relevant contentions of the discharge application and
rejected the same in a cursory manner, a fresh order
should be passed by the court below on the discharge
application.(Para - 14)

Criminal Revision allowed. (E-7)

List of Cases cited:-

1. M.E. Shivalingamurthy Vs Central Bureau of
Investigation, AIR 2020 SC 331

2. Sanjay Kumar Rai Vs St. of U.P., AIR Online 2021
SC 239