# Mohan Singh v. State of U.P. & Anr

- **Citation:** (2022) 8 ILRA 216
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-06
- **Case number:** Criminal Misc. Application U/S 482 No. 1621 of 2022
- **Bench:** Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohan-singh-v-state-of-u-p-anr-48744
- **Pages:** 7

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973 - Sections 233, 313 & 482 -
DNA Test - Permissibility - Use of
scientific knowledge to unearth the truth
- Held, rejection of the application for
DNA test and granted an opportunity to
adduce documentary or oral evidence in
respect of his innocence by the court
below is nothing but an old aged practice
inspite of availability of scientific methods
available before it - Scientific method
must be used to unearth the truth because
justice is best served by truth - To arrive
at just decision of the case and to avoid
any suspicion or doubt in the prosecution
case, it would be in the interest of justice
that DNA test may be conducted - High
court set aside the impugned order of trial
court holding it illegal. (Para 11 and 16)
B. Constitution of India - Article 21 -
Right to life and privacy - DNA test, how
far affect the right - Importance in
proving
the
innocence
of
applicantaccused in criminal case - Held, DNA test
has not been asked to be conducted to
establish the relationship between the
applicant and informant rather the same
has
been
requested
to
prove
the
innocence of the applicant, therefore,
there would be no impinge on his personal
liberty and his right to privacy of the
informant or his family members. (Para
14)
Application allowed. (E-1)
List of Cases cited:-

## Text

216 INDIAN LAW REPORTS ALLAHABAD SERIES

63. After this judgment was delivered
in open court, the learned Additional
Solicitor General of India and the learned
Senior Standing Counsel requested that the
cost may be deferred today and they may
be heard only on the question of
quantum of cost.

Request is accepted. Payment of
cost is deferred till the next date. Let the
matter be put up on 01.09.2022 at 02:00
P.M. for arguments only on the quantum
of costs.
----------
(2022) 8 ILRA 216
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.08.2022

BEFORE

THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Misc. Application U/S 482 No. 1621 of
2022

Mohan Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Gaurav Kakkar, Sri Rishab Agrawal

Counsel for the Opposite Parties:
G.A., Sri Amit Singh

A. Criminal Law - Criminal Procedure
Code,1973 - Sections 233, 313 & 482 -
DNA Test - Permissibility - Use of
scientific knowledge to unearth the truth
- Held, rejection of the application for
DNA test and granted an opportunity to
adduce documentary or oral evidence in
respect of his innocence by the court
below is nothing but an old aged practice
inspite of availability of scientific methods
available before it - Scientific method
must be used to unearth the truth because
justice is best served by truth - To arrive
at just decision of the case and to avoid
any suspicion or doubt in the prosecution
case, it would be in the interest of justice
that DNA test may be conducted - High
court set aside the impugned order of trial
court holding it illegal. (Para 11 and 16)
B. Constitution of India - Article 21 -
Right to life and privacy - DNA test, how
far affect the right - Importance in
proving
the
innocence
of
applicantaccused in criminal case - Held, DNA test
has not been asked to be conducted to
establish the relationship between the
applicant and informant rather the same
has
been
requested
to
prove
the
innocence of the applicant, therefore,
there would be no impinge on his personal
liberty and his right to privacy of the
informant or his family members. (Para
14)
Application allowed. (E-1)
List of Cases cited:-
1. Sharda Vs Dharmpal; AIR 2003 SC 3450
2. Bhabani Prasad Jena Vs Convenor Secretary
Orissa St. Commission for Women; AIR 2010 SC
2851
3. Civil Appeal No. 6153 of 2021; Ashok Kumar
Vs Raj Gupta & ors.
4. Regina (Quantavalle) Vs Secretary of St. for
Health [2003] 2 A.C. 687
5. Narayan Dutt Tiwari Vs Rohit Shekhar; 2012
(12) SCC 554,
(Delivered by Hon'ble Gautam
Chowdhary, J.)

1. Heard Sri Gaurav Kakkar, learned
counsel for the applicant, Sri Amit Singh,
learned counsel for the opposite party no.2,
Sri Rajeshwar Singh and Sri Rakesh
Chandra, learned A.G.A. for the State and
perused the material on record.

2. Brief facts of the case are that a
first information report was lodged by
Hardeo Singh with the averments that on
8 All. Mohan Singh Vs. State of U.P. & Anr.
217
Thursday i.e. 21.06.2012 due to opening of
city market, his mother had gone to market
to purchase some articles, on the way some
quarrel was going on between Mohan
Singh (applicant) and Tikki both sons of
Hariya, whereupon his mother intervened
in order to pacify them and had asked them
to finish the quarrel, due to which, Mohan
Singh accused-applicant abused and shot
her, who later on died. With regard to
aforesaid incident dated 21.06.2012, a first
information report was lodged by the
opposite party no.2 on 21.06.2012 in Case
Crime No. 368 of 2012 under Section 302
I.P.C. Police Station Kosi Kalan, District
Mathura. Thereafter, matter was entrusted
for investigation which culminated in filing
of charge sheet. Thereafter, the case was
committed to the Court of Sessions, which
was registered as Sessions Trial No. 573 of
2012 (State Vs. Mohan Singh) under
Section 302 I.P.C. in which, statements of
the witnesses were recorded, thereafter
statement of the accused was recorded
under Section 313 Cr.P.C. and during the
pendency of the trial, the accused applicant
moved an application dated 16.08.2021
under Section 233 Cr.P.C. stating therein
that the prosecution may be directed to
provide the blood sample of the family
members of victim and be sent to Forensic
Laboratory for conducting the DNA test of
the blood collected from earth to ensure as
to whether both are same or not, upon
which objection was filed and thereafter,
said application has been rejected vide
order dated 11.10.2021, it is this order
which is under challenge before this Court.

3. Learned counsel for the applicant
submits that an application under Section
233 Cr.P.C. dated 16.01.2018 was filed by
the applicant stating therein that on the day
of incident the applicant had gone to Delhi
with regard to payment of loan taken from
S.R.E.I.
Equipment
Finance
Private
Limited whereafter, he had gone to Bijnor
and purchased a mobile phone from CEC
Computers. It has also been stated that the
deceased had died somewhere else as such,
the Investigating Officer had prepared
wrong Naksha Nazari of the place of
incident. The Investigating Officer did not
send the samples of Blood stained earth
(mud) with the blood stained clothes of
deceased for DNA test before the Forensic
Laboratory and thus prayer was made for
DNA test of blood stained earth (mud) and
the wearing clothes of the deceased, which
application was partly allowed to the effect
that the SREL Equipment Finance Private
Limited shall be present along with record
as well as owner of C.E.C. Computers,
Nagina Road, Bijnor was summoned but so
far as grievance of the applicant with
respect to DNA test, the same has been
rejected vide order dated 16.07.2018,
which order was challenged by the
applicant by way of filing Application U/s
482 No. 33291 of 2018 and the co-ordinate
Bench of this Court vide order dated
05.10.2018 had quashed the order dated
16.07.2020 to the extent it denies the
permission of DNA test. Pursuant to the
order dated 05.10.2018, the learned Court
below ordered for DNA test of the blood
stained earth with blood stained clothes of
the deceased but the same could not be
done as the incident is of the year 2012 and
the clothes of the deceased was not possible
to be traced as the same has been misplaced
from Malkhana, as such the application was
disposed of vide order dated 20.07.2021
with
further
direction
to
initiate
proceedings against the concerned erring
police officials. Learned counsel further
submits that thereafter another application
dated 16.08.2021 was moved by the
applicant to direct the prosecution to
provide the blood sample of family
218 INDIAN LAW REPORTS ALLAHABAD SERIES
members of the victim and be sent to
Forensic Laboratory for conducting the
DNA test of blood stained earth to ensure
that the blood of the stained earth and the
blood of the family members of the victim
are same, to arrive at just decision of the
case and to prove the innocence of the
aplicant, which application has been
rejected on the ground that the prosecution
has not been able to provide the blood
sample of the family members of the
deceased as they have denied to provide the
same and further directed that the applicant
may adduce any documentary or oral
evidence with respect to his innocence.
Learned counsel for the applicant submits
that
since
the
deceased
had
died
somewhere else and false Naksha Nazari
was prepared, thus it was absolutely
necesary in the interest of justice of justice
to arrive a just conclusion of the trial that
the blood of the earth collected from the
place of incident, as alleged, and the blood
of the family members of the victim are
matched, which can be ascertained by way
of DNA test only.

4. Learned counsel for the applicant
submits that although the DNA test cannot
be conducted where there is a violation of
right to life, or privacy of a person and the
same should be exercised after weighing all
pros and cons and satisfying that the test is
of eminent need, whereas in the instant
case by no stretch of imagination violation
of right to life or any stigma would be put
to privacy of the family members of the
deceased and therefore in the instant case,
there is eminent need of DNA test to prove
the innocence of the applicant. He further
submits that there would be no adversity
for the informant, in case, this Court directs
for DNA test of the family members of the
victim with the blood stained earth, thus the
informant would not face any adverse
consequences. In support of his contention,
learned counsel for the applicant has relied
upon a decision reported in AIR 2003 SC
3450 in the matter of Sharda Vs.
Dharmpal as well as AIR 2010 SC 2851 in
the matter of Bhabani Prasad Jena Vs.
Convenor
Secretary
Orissa
State
Commission for Women in support of his
contention.

5. Per contra, Sri Amit Singh, learned
counsel for the opposite party no.2 has
submitted that the incident is of the year
2012 and we are in the year 2022, thus
nothing remains in the blood stained earth
and in case DNA test would be permitted,
no concrete results may be aserctained due
to passage of time, due to which the
accused-applicant may be benefited from
the same and thus the learned Court below
has rightly rejected the application of the
accused-applicant. He further submits that
if a person refuses to undergo for DNA test,
then he cannot be forced/compelled to
undergo for the same as such the informant
or his family members also cannot be
forced to undergo for DNA test as it relates
to their privacy. Learned counsel has
placed reliance upon a reported Judgement
of Hon'ble Apex Court in the matter of
Ashok Kumar Vs. Raj Gupta and others
passed in Civil Appeal No. 6153 of 2021
and has relied upon paragraph nos. 4, 5, 15,
16 and 17, which is quoted below:-

"4. In course of the proceedings
before the learned Addl. Civil Judge (Sr.
Division), Kalka, on closure of the
plaintiff's evidence, when the suit was
slated for the other side's evidence, the
defendants
filed
an
application
on
19.4.2017 seeking direction from the Court
to conduct a Deoxyribonucleic Acid Test
(for short "DNA test") of the plaintiff and
either of the defendants, to establish a
8 All. Mohan Singh Vs. State of U.P. & Anr.
219
biological link of the plaintiff to the
defendants parents i.e. late Trilok Chand
Gupta and Smt. Sona Devi.This application
was opposed by the plaintiff with the
projection that the defendants' application
is an abuse of the process of law and that
there are adequate evidences placed before
the Court by the plaintiff to show that he is
the son of Trilok Chand Gupta and Sona
Devi. The plaintiff in his opposition had
specifically pleaded that the mother of the
plaintiff and the defendants had submitted
sworn affidavit before the Municipal
Committee, Kalka to transfer the Property
No. 496, Pahari Bazar, Kalka in her name,
mentioning the name of the plaintiff as her
son. The copy of the concerned affidavit
was duly placed on record in the suit
proceedings. Similarly, sworn affidavits of
the three defendants regarding transfer of
the property No. 496, Pahari Bazar, Kalka,
where again the plaintiff was admitted to
be the son of late Trilok Chand Gupta and
late Smt. Sona Devi, were also brought on
record in the suit. With such projection of
admission on his linkage to the defendants'
parents, the plaintiff opposed the DNA test
suggested in the defendants' application
and offered to rely on the already adduced
evidence to prove his case.

5. The defendants' application for
conducting the DNA test for the plaintiff (at
the cost of the defendants) was disposed of
by the Court by referring to the fact that the
CS No. 53/2013 is for declaration of
ownership of property left behind by late
Trilok Chand Gupta and late Sona Devi
where the defendants have denied that the
plaintiff is their brother or the son of their
parents. The learned Judge noted that the
evidence was already led by the plaintiff to
prove his case and the application of the
defendants was filed at that stage of the
Suit when it was their turn to lay their
evidence.
Taking
these
aspects
into
account, the Court opined that onus is on
the plaintiff to prove that he is a
coparcener amongst the defendants by way
of his birth in their family and such burden
does not shift to the defendants. Since the
plaintiff had refused to give the DNA
sample, the view taken was that the Court
cannot force the plaintiff to provide DNA
sample and accordingly the defendants'
application came to be dismissed by the
order dated 28.11.2017 by the learned
Trial Judge.

15.
Having
answered
these
questions, additional issue to be resolved is
whether refusal to undergo DNA Testing
amounts to ''other evidence' or in other
words, can an adverse inference be drawn
in such situation. In Sharda vs. Dharmpal a
three judges bench in the opinion written
by Justice S.B. Sinha rightly observed in
paragraph 79 that "if despite an order
passed by the court, a person refuses to
submit
himself
to
such
medical
examination, a strong case for drawing an
adverse inference" can be made out against
the person within the ambit of Section 114
of the Evidence Act. The plaintiff here has
adduced his documentary evidence and is
disinclined to produce further evidence. He
is conscious of the adverse consequences of
his refusal but is standing firm in refusing
to undergo the DNA Test. His suit
eventually will be decided on the nature
and quality of the evidence adduced. The
issue of drawing adverse inference may
also arise based on the refusal. The Court
is to weigh both side's evidence with all
attendant circumstances and then reach a
verdict in the Suit and this is not the kind of
case where a DNA test of the plaintiff is
without exception.

16.
The
respondent
cannot
compel the plaintiff to adduce further
evidence in support of the defendants' case.
In any case, it is the burden on a litigating
220 INDIAN LAW REPORTS ALLAHABAD SERIES
party to prove his case adducing evidence
in support of his plea and the court should
not compel the party to prove his case in
the manner, suggested by the contesting
party.

17. 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. Seen from this
perspective, the impugned judgment merits
interference
and
is
set
aside.
In
consequence thereof, the order passed by
the learned Trial Court on 28.11.2017 is
restored. The suit is ordered to proceed
accordingly."

6. He lastly submits that the stage of
313 Cr.P.C. stage is over and thus the
application has been moved at a belated
stage with intention to linger on the trial.
Apart from the same, the learned Court
below has rightly recorded reasons while
rejecting the application vide order dated
11.10.2021, thus there is no illegality or
infirmity in the impugned order which may
call for any interference by this Court in
exercise of powers conferred under 482
Cr.P.C. jurisdiction.

7. Lerned A.G.A. has supported the
arguments advanced by learned counsel for
the opposite party no.2.

8. After hearing the learned counsel
for the parties and after perusing the
averments made in the present application,
this Court has to examine firstly whether
the scientific knowledge to unearth the
truth can be used ? Secondly, what would
be the effect in case, DNA is directed to be
conducted, thirdly whether the right to life
or privacy of the informant can be violated?

9. Dealing with the first issue as to
whether scientific knowledge can be used
to unearth the truth, relevant to our
discussion is the decision of the Hon'ble
Apex Court in the matter of Regina
(Quantavalle) Vs. Secretary of State for
Health [2003] 2 A.C. 687 wherein it has
been held that the laws have to be
construed in the light of contemporary
scientific knowledge and in order to give
effect to a plain parliamentaly purpose, the
statute may be held to cover a scientific
development not known when the statute
was passed. Notice may be taken of the
amendment of the year 1976 to Section 75
of the CPC enabling the Court to issue
commissions to hold a scientific techinical
or expert investigation. The same is
indicative of legislative intent to keep pace
with scientific advancements in the matter
of judicial adjudication.

10. Hon'ble Apex Court in the matter
of Narayan Dutt Tiwari Vs. Rohit Shekhar
2012 (12) SCC 554, has held in paragraph
no. 24 and 25 as under:-

24. Even the Constitution of
India, while laying down the Fundamental
Duties by Article 51-A (h) and (j) declares
it to be the duty of every citizen of India to
develop a scientific temper and the spirit of
inquiry and reform and to strive towards
excellence, to reach higher levels of
achivement. What we wonder is that when
modern tools of adjudication are at hand
must the Courts refuse to step out of their
dogmas and insist upon the long route to be
followed at the cost of misery to the
litigants. The answer obviously has to be
8 All. Mohan Singh Vs. State of U.P. & Anr.
221
no., The Courts are doing for justice by
adjudicating rival claims and unearthing
the truth and not for following the age old
practices and procedures when new, better
methods are available.

25. We, in the contest find the
judgement of the Court of Appeal (Civil
Division) in Re G. (Parentage Blood
Sample) [1977] 1 F.L.R. 360 holding that
the Court should find proven forensically
what the person by his refusal had
prevented
from
being
established
scientifically to be apposite. It was further
held therein:-

"Justice is to be best served by
truth. Justice is not served by impeding the
establishgment of truth. No injustice is
done to him by conclusively establishing
paternity. If he is the father, his position is
put beyond doubt by the testing, and the
justice of his position is entrenched by the
destruction of the mother's doubts and
aspersions. If he is not the father, no
injustice is done by acknowledging him to
be a devoted step father to a child of the
family. Justrice to the child, a factor not to
be ignored, demands that the truth be
known when truth can be established, as it
undoubetely can. Whilst, therefore, I do not
in any way wish to undermine the sincerity
of the father's belieg that contact is of a
continuing good to the child and that it will
be reduced if the mother's beliefs prevail,
that contact is the best when taking place
against the reality fact, and fact can be
established by these tests being undertaken;

Thorpe
LJ
in
his
opinion,
agreeing with Waite LJ that the appeal
should be allowed, said:

"A putative father may seek to
avoid his paternity which science could
prove; alternativel to cling on to a status
that science could disprove. In both cases
selfish motives or emotional anxieties and
needs may drive the refusal to co-operate
in the scientific tests which the court
directed."

11. In view of the aforesaid, the
rejection of the application for DNA test
and granted an opportunity to adduce
documentary or oral evidence in respect of
his innocence by the court below is nothing
but an old aged practice inspite of
availability of scientific methods available
before it and therefore scientific method
must be used to unearth the truth because
justice is best served by truth.

12. Secondly what would be the effect
in case, DNA is directed to be conducted.
This Court is of the opinion that at the
most,
the
following
result
may
be
obtained:-

(A) D.N.A. may match.

(B) D.N.A. may not match.

(C) Disintegrated eroded test.

13. In case, the DNA is directed to be
conducted and DNA matched, then the
accused may be convicted. In case, DNA
does not match, then to arrive at just and
fair decision of the case, following the
settled and basic principles that no innocent
be convicted else, ten culprits are left free.
The contention that the applicant is
innocent would be proved if the DNA
samples are not matched and he is being
falsely roped in the present case. Thirdly, in
case,
the
opinion
comes
to
the
disintegraded eroded test, then the report
would again be against the applicant.

14. Now the third question before this
Court is that whether right to life or privacy
of the informant is violated in case DNA is
directed? The reliance of the learned
counsel for the opposite party no.2 upon
paragraph nos 4, 5, 15, 16 and 17 in the
222 INDIAN LAW REPORTS ALLAHABAD SERIES
matter of Ashok Kumar Vs. Raj Gupta and
others (supra) pertains to dispute between
the parties with regard to parentage,
whereas in the instant case, the DNA test
has not been asked to be conducted to
establish the relationship between the
applicant and informant rather the same has
been requested to prove the innocence of
the applicant, therefore, there would be no
impinge on his personal liberty and his
right to privacy of the informant or his
family members.

15. It is the case of the applicant that
false naksha najri has been prepared to
implicate him as the incident has taken
place somewhere else and is shown to have
occurred at the place mentioned in the FIR,
it would be primary to ascertain the place
of incident first so as to gain faith in the
prosecution story as narrated in the FIR.
The said requirement can be best served by
obtaining DNA result of the blood sample
of the informant or his relative with the
blood stained earth recovered from the
alleged place of occurrence. While making
such observation, this Court is mindful of
the fact that DNA test is not to be
directed as a matter of routine and in
only deserving cases where strong prima
facie case is made out, such direction may
be given. Since the life of the applicant is
stake as he is accused of offence under
Section 302 IPC, it is must to ascertain and
test the truthfulness of the prosecution case.

16.

Considering
the
facts
and
circumstances in entirety, this Court is of the
opinion that to arrive at just decision of the
case and to avoid any suspicion or doubt in
the prosecution case, it would be in the
interest of justice that DNA test may be
conducted and thus the learned Court below
has committed an illegallity in passing the
impugned order, therefore the same is liable
to be set aside.

17. Accordingly, the impugned order
dated
11.10.2021
passed
by
learned
Additional District Judge, Court No.8,
District Mathura in Sessions Trial No. 573 of
2012 arising out of Case Crime No. 368 of
2012 under Section 302 I.P.C. Police Station
Kosi Kalan, District Mathura, is set aside and
the blood sample of informant or any of his
family members be taken for conducting the
DNA test with the blood stained earth
collected
from
the
alleged
place
of
occurrence to unearth the truthfulness of the
prosecution case.

18. The aforesaid exercise may be
completed within a period of one month from
the date of production of a certified copy of
the order before the concerned court below.

19. The instant application is allowed.
----------
(2022) 8 ILRA 222
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.07.2022

BEFORE

THE HON'BLE SAMEER JAIN, J.

Criminal Misc. Application U/S 482 No. 3041 of
2022

Om Prakash & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Satyendra Narayan Singh, Sri Pankaj
Kumar Mishra

Counsel for the Respondents:
G.A.