# of Case Crime 1479/2017 v. State of U.P. & Ors

- **Citation:** (2024) 7 ILRA 942
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-18
- **Case number:** Application U/s 482 No. 6293 of 2024
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/of-case-crime-1479-2017-v-state-of-u-p-ors-52344
- **Pages:** 26

## Headnote

Law-The
Code
of
Criminal
Procedure, 1973-Section 53-A)- Efforts
should be made to find out the truth- Right to
privacy is a part of the right to life and personal
liberty under Article 21 and that Article 20(3)
provides that nobody should be compelled to
give evidence against himself, however that the
said would not over-ride the search for the
truth, as the offence of rape is an offence
against the society at large and as the objective
of a Court proceeding is to find out the "truth".
(Para 8, 9 & 11)

Application dismissed. (E-15)

List of the Cases cited:-

1.K.K. Malik Vs St. of Har., 2011 SCC (3)
(Criminal) 61

2.Case No. Crl.A./73/2023 (Sudip Biswas @
Bura vs. The State of Assam and another)

3.Meera Devi & ors. Vs Jitender & ors. 2016 SCC
OnLine Del 4322

## Text

_Characters 0–39,957 of 75,595. This is a partial read: ask again with offset=39957 for what follows._

942 INDIAN LAW REPORTS ALLAHABAD SERIES
as summoning order dated 18.11.2019,
therefore, these applications are rejected
and interim orders passed therein are
vacated.

23. Trial Court is directed to proceed
further in Case No. 843 of 2019 (State vs.
Rajesh Kumar Maurya and others) pending
before Court of Chief Judicial Magistrate,
Azamgarh in accordance with law.

24. Registrar (Compliance) to take
steps.
----------
(2024) 7 ILRA 942
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.07.2024

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Application U/s 482 No. 6293 of 2024

Complainant of Case Crime 1479/2017
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Niyaj Ahmad

Counsel for the Respondent:
G.A.

Criminal
Law-The
Code
of
Criminal
Procedure, 1973-Section 53-A)- Efforts
should be made to find out the truth- Right to
privacy is a part of the right to life and personal
liberty under Article 21 and that Article 20(3)
provides that nobody should be compelled to
give evidence against himself, however that the
said would not over-ride the search for the
truth, as the offence of rape is an offence
against the society at large and as the objective
of a Court proceeding is to find out the "truth".
(Para 8, 9 & 11)

Application dismissed. (E-15)

List of the Cases cited:-

1.K.K. Malik Vs St. of Har., 2011 SCC (3)
(Criminal) 61

2.Case No. Crl.A./73/2023 (Sudip Biswas @
Bura vs. The State of Assam and another)

3.Meera Devi & ors. Vs Jitender & ors. 2016 SCC
OnLine Del 4322

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard learned counsel for the
applicant, learned AGA for the State of U.P.
and Sri Manoj Kumar Singh, , Advocate,
who has filed Vakalatnama on behalf of
respondent No. 2 in the Court today, which
is taken on record.

2. By means of this application,
the applicant has sought the following main
relief:-

"Wherefore,
it
is
most
respectfully
prayed
that
this
Hon'ble Court may kindly be
pleased to quash the impugned
order dated 12.2.2024, passed by
the learned Additional Sessions
Judge/ Special Judge, POCSO Act,
Bahraich, in Special Criminal Case
No.90
of
2018;
State
Versus
Waliuddin, arising out of Case
Crime No.1479 of 2017, under
sections-363, 366,376 (D) I.P.C.
and Sections 3/4 of POCSO Act,
relating to Police Station- Hardi,
District- Bahraich, as contained in
Annexure no.2 to this petition, in
the interest of law and justice."

3. The facts, which are relevant for
disposal of this case, are to the effect that
an
FIR
was
lodged
against Ateek,
Kalimuddin
and
Khaisal
Nisha
on
7 All. Complainant of Case Crime 1479/2017 Vs. State of U.P. & Ors.
943
03.10.2017 registered as Case Crime No.
1479 of 2017, under Sections 363, 366 IPC,
Police Station- Hardi, District- Bahraich
and during investigation, Section 376-D
IPC and Section 3/4 POCSO Act were
added and thereafter, the charges sheet was
submitted before the trial court.

4. It would be apt to indicate here
that in the present application, it has not
been indicated that when the charges were
framed and what is the status of trial,
though, it is required for giving overall
picture of the pending case. Learned
counsel for the applicant while drafting the
application, for the reasons best known to
him, has not indicated the relevant facts of
the case. Accordingly, this Court is not in a
position to indicate all facts of the present
trial. The facts, which appear from the
record, are as under.

(i) As per the case of the
prosecution,
on
27.09.2017,
accused Ateeq abducted minor
daughter of the applicant and
thereafter
accused
Ateeq,
Waliuddin (respondent No. 2),
Akram and Intesar committed gang
rape with her. After this incident,
the victim gave birth to a male
child in the month of September,
2018.
(ii) After recording the
statements
of
witnesses
of
prosecution including the victim
(PW-3) in the trial i.e. Session Trial
No.
90/18
(State
vs.
Waliuddin) arising out of Case
Crime No.1479 of 2017, under
sections-363, 366,376 (D) I.P.C.
and Sections 3/4 of POCSO Act,
Police Station- Hardi, District-
Bahraich, an application No. 34B/1 to 34-B/2 was preferred by the
defence/accused namely Waliuddin
praying therein for holding DNA
test.

5. Before the trial court as also
before this Court, the applicant has stated
that the application aforesaid was moved
with ulterior motive i.e. to delay the
conclusion of trial.

6. The trial court, as appears from
the impugned order dated 12.02.2024, after
considering Section 53(A) Cr.P.C. and
observations made by the Hon'ble Apex
Court in the judgment passed in the case of
K.K. Malik vs. State of Haryana, 2011
SCC (3) (Criminal) 61 and also taking note
of oral statement made by the victim before
the this Court for getting DNA test in the
Government Medical College or Hospital,
the trial court allowed the application vide
impugned order dated 12.02.2024, relevant
portion of which reads as under:-

"म मि अियस्क पीहडत उम्र िगिग
14 िषु के स थ जबरदस्ती बि त्क र करके प्रिेशन
हिांग िमि करने, हजसके फिस्िरूप पीह़ित क
गिुिती िो ज ने से सम्बहधधत िै। म ननीय उच्चतम
धय य िय द्व र प्रहतप हदत हिहध व्यिस्थ K.K.
Malik Vs State of Haryana 2011
SCC (3) (Criminal) 61 में अिध ररत हकय
गय हक दण्ड प्रहिय सांहित में ध र 53(A) श हमि
हकये ज ने के पश् त् बि त्क र से सम्बहधधत सिी
म मिों में डी०एन०ए० परीक्षण कर य ज न आिश्यक
िै, हजससे अहियुक्त की पिच न की ज सके और
उसके हिरुद्ध िग ये गये आरोप को समुहचत ढांग से
स हबत कर य ज सके। प्रस्तुत प्रकरण में प्रथम सूहचक
द्व र उपरोक्त अहियुक्त की ओर से प्रस्तुत प्र थुन -पत्
ि स्ते कर ये ज ने डी०एन०ए० परीक्षण के हिरुद्ध
आपहत्त द हखि की गई िै और मौहखक रूप से उपरोक्त
अहियुक्त, पीह़ित ि पीह़ित से जधमे बच्चे क
डी०एन०ए० परीक्षण हकसी सरक री मेहडकि क िेज
अथि अस्पत ि में हकये ज ने िेतु प्र थुन की गई िै।
944 INDIAN LAW REPORTS ALLAHABAD SERIES
प्रस्तुत म मिे में अहियुक्त उपरोक्त की पिच न हकय
ज न मुख्य स क्ष्य हबधदु िोने के क रण डी०एन०ए०
परीक्षण कर य ज न आिश्यक िै। अतः अहियुक्त
ििीउद्दीन द्व र प्रस्तुत उपरोक्त प्र थुन पत् स्िीक र
हकय ज त िै और मुख्य हचहकत्स हधक री बिर इच को
हनदेहशत हकय ज त िै हक एक सप्त ि के अधदर
हनयम नुस र अहियुक्त ििीउद्दीन पुत् समीम, हनि सी-
सरजूपुरि , द ० म स डीि, थ न िरदी, जनपद बिर इच
तथ म मिे से सम्बहधधत पीह़ित ि दौर न मुकदम
पीह़ित से जधमे बच्चे क डी०एन०ए० सैम्पि िेकर
के०जी०एम०यू० िखनऊ में परीक्षण कर ये ज ने िेतु
सम्पूणु प्रहिय पूणु कर य ज न सुहनहित करें। उिय
पक्ष मुख्य हचहकत्स हधक री बिर इच के समक्ष उक्त
अिहध में उपहस्थत िों। इस आदेश की एक-एक प्रहत
मुख्य हचहकत्स हधक री बिर इच एिां उियपक्ष के हिद्व न
अहधिक्त गण को आिश्यक क युि िी िेतु प्र प्त कर यी
ज ये। प्रथम सूहचक की ओर से द हखि आपहत्त,
तद्नुस र हनस्त ररत की ज ती िै।"

7. To impeach the findings
recorded by the trail court in the order
impugned dated 12.02.2024, nothing has
been brought to the notice of the Court
particularly with regard to the oral
statement from the side of prosecution,
according
to
which,
it
has
been
requested/prayed
that
DNA
test
of
accused/applicant
namely
Waliuddin,
victim
and
minor
be
conducted
at
Government
Medical
College
or
Government Hospital.

8. On the subject matter of this
case, this Court feels it appropriate to refer
the relevant portion of the order dated
13.10.2023 passed by the Division Bench
of the Gauhati High Court while dealing
with Criminal Appeal filed against the
judgment of conviction i.e. Case No.
Crl.A./73/2023 (Sudip Biswas @ Bura vs.
The State of Assam and another) and the
judgment of the Delhi High Court passed in
the case of Meera Devi and others vs.
Jitender and others reported in 2016 SCC
OnLine Del 4322. According to which, in
nutshell, efforts should be made to find out
the truth.

9. The relevant paragraphs of the
order dated 13.10.2023 passed in the case
of Sudip Biswas @ Bura (supra) are as
under:-

"6. The question that arose
was whether this Court could direct
the appellant to undergo a DNA
test, to prove whether he was the
father of the child born to the
victim and which in turn would
prove as to whether he was the
rapist of the victim.
7.
The
learned
Senior
Counsel for the appellant submits
that this Court cannot compel the
appellant to undergo a DNA test
without his consent. In this regard
the learned Senior Counsel submits
that in terms of the judgment of the
Supreme Court in the case of
Goutam Kundu Vs. State of West
Bengal & Others, reported in 1993
3 SCC 418, Courts in India cannot
order a blood test as a matter of
course. He submits that the Apex
Court has held that the Courts have
to
carefully
examine
the
consequence of ordering a blood
test and no one can be compelled to
give his/her sample of blood for
analysis.
8.
The
learned
Senior
Counsel submits that the evidence
adduced by the prosecution does
not prove that the appellant was the
rapist of the victim or that the
appellant was the father of the
victim's child. In this respect, he
has referred to the evidence given
by
the
prosecution
witnesses,
7 All. Complainant of Case Crime 1479/2017 Vs. State of U.P. & Ors.
945
especially the evidence given by
the
victim
in
her
crossexamination,
wherein
she
has
stated that she came to know the
name of the appellant only when
the case was filed and that she had
not seen the face of the person who
raped her on the relevant night, due
to darkness. He also submits that as
the FIR had been filed after 6/7
months after the alleged rape had
been committed, the same cast a
doubt on the authenticity of the
contents of the FIR.
9. On the other hand, the
Additional
Public
Prosecutor
submits
that
the
victim
was
mentally ill and unable to recall
previous incidents, as given in the
testimony of PW-1. She also
submits that the victim was 48
years of age and the appellant was
24 years of age. Further, though a
bichar (village meeting under the
aegis of the elder of the village)
had been held in the village on 2
(two) occasions, due to the alleged
illegal act of the appellant, the
appellant did not turn up in the
bichar
held
on
the
2
(two)
occasions. She submits that though
the evidence of the prosecution
witnesses proved the guilt of the
appellant, the appellant should be
subjected to a DNA test to
conclusively prove the said fact.
10. We have heard the
learned counsels for the parties.
11. The question to be
decided is as to whether the
appellant had raped the victim and
whether the child born to the victim
had been fathered by the appellant,
as it has been alleged that the child
was the result of the rape. As stated
earlier, an issue has cropped up as
to whether a DNA test could/should
be done on the appellant and the
child, so as to determine whether
the appellant had fathered the child,
besides considering the evidence
that has already been recorded by
the learned Trial Court.
12. In the case of Goutam
Kundu (supra), the Supreme Court
was seized of an issue, wherein the
paternity of a child between a
married couple was disputed. The
alleged father (husband) of the
child prayed for a Blood Group test
of the child and himself to prove
that he was not the father of the
child.
The
application
was
dismissed on the ground that there
were other methods in the Evidence
Act to prove the paternity of the
child and that the Blood Group test
could not conclusively prove the
paternity of a child. The Supreme
Court in the above case held that
though a Blood Group test was a
useful
test
to
determine
the
question of disputed paternity, it
could be relied upon by the Courts
as a circumstantial evidence, which
ultimately
excluded
a
certain
individual as a father of the child.
The Supreme Court further held
that in terms of Section 112 of the
Evidence Act, the presumption of
legitimacy of a child, with regard to
the father is that a child born of a
married woman is deemed to be the
legitimate child of a husband and
would remain so, even if the child
was born within 280 days after
dissolution of a marriage and the
mother remain unmarried, unless it
could be shown that the parties to
the marriage had no access to each
946 INDIAN LAW REPORTS ALLAHABAD SERIES
other at any time, when the child
could have been begotten. It was in
the above context that the Supreme
Court in Goutam Kundu (supra)
held that the Courts in India cannot
order a blood test as a matter of
course. It thus held as follows:-
"(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 a
bastard and the mother as an
unchaste woman.
(5)
No
one
can
be
compelled to give sample of blood
for analysis."
13. The paternity test that
was sought to be done by the
alleged father in Goutam Kundu
(supra) was a Blood Group test and
not a DNA profiling/test, wherein
DNA rich cells are extracted. On
the other hand, Blood Group test
examines the Blood type of a
person.
As
per
the
medical
literature existing today with regard
to DNA test and Blood test,
perhaps the greatest difference
between a Blood Group test and a
DNA test is that a Blood Group test
cannot be used as conclusive proof
of fatherhood. It can only be used
to disprove parentage and not to
prove that the individual is the
father of the child. The DNA test
on the other hand, is a very reliable
test, which is based on different
parameters than a Blood Group
test.
14. With the incorporation
of
Section
53A
Cr.PC
w.e.f.
23.06.2006, DNA test can be done
to facilitate the prosecution, in
proving
it's
case
against
an
accused. Though it may be argued
that right to privacy is a part of the
right to life and personal liberty
under Article 21 and that Article
20(3) provides that nobody should
be compelled to give evidence
against himself, we are of the view
that the said would not over-ride
the search for the truth, as the
offence of rape is an offence
against the society at large and as
the objective of a Court proceeding
is to find out the "truth". We are
accordingly of the view that the
appellant's right under Articles
20(3) & 21 would have to give way
to public interest, so that the truth is
laid bare for all to see.
15.
In
the
case
of
Harishchandra
Sitaram
Khanorkar
Vs.
State
of
Maharashtra, reported in 2023 (1)
ABR (CRI) 259, the Division
Bench of the Bombay High Court
has held that there can be no doubt
that there have been remarkable
technological
advancement
in
forensic science and in scientific
investigations. The DNA testing
has an unparalleled ability both to
exonerate the wrongly convicted
person and to identify the guilty. It
7 All. Complainant of Case Crime 1479/2017 Vs. State of U.P. & Ors.
947
has the potential to significantly
improve both the criminal justice
system and police investigative
practices. Modern DNA testing can
provide powerful new evidence
unlike anything known before DNA
technology. It provides not only
guidance to the investigation, but
also supplies the Court accurate
information
regarding
the
identification of the criminal.
16. In the case of Pravin
Suryabhanji Gube Vs. State of
Maharashtra, reported in 2019 (2)
ABR (CRI) 70, the Bombay High
Court has held that DNA is a
modern scientific technique, which
is very useful and helpful not only
for investigators, but also for
Courts to reach to the truth. DNA
conclusively points the finger of
guilt towards the perpetrator of a
crime. However, while considering
this scientific piece of evidence, the
Court is required to examine as to
whether at any point of time, it
could be said that there was the
slightest chance of playing with the
samples and/or tampering with it
by anyone.
17. In the case of Mukesh
Vs. State (NCT of Delhi) 2017 6
SCC 1, the Hon'ble Supreme Court
spoke on the importance of DNA
evidence. It observed in paragraph
Nos. 216 and 217 as follows:-
"216. DNA technology as a
part of Forensic Science and
scientific
discipline
not
only
provides guidance to investigation
but also supplies the court accrued
information about
the
tending
features
of
identification
of
criminals. The recent advancement
in modern biological research has
regularized
Forensic
Science
resulting in radical help in the
administration of justice. In our
country also like several other
developed
and
developing
countries, DNA evidence is being
increasingly relied upon by courts.
After
the
amendment
in
the
Criminal Procedure Code by the
insertion of Section 53A by Act 25
of 2005, DNA profiling has now
become a part of the statutory
scheme. Section 53A relates to the
examination of a person accused of
rape by a medical practitioner.
217.
Similarly,
under
Section 164A inserted by Act 25 of
2005, for medical examination of
the victim of rape, the description
of material taken from the person
of the woman for DNA profiling is
a must."

18. In the case of Pantangi
Balarama Venkata Ganesh Vs. State of
A.P, reported in 2009 14 SCC 607, the
Supreme Court held that experts opine that
identification by DNA profiling is hundred
percent precise. However, there is a need
for quality control. Further, the evidence of
experts is admissible in evidence in terms
of Section 45 of the Evidence Act, 1872.
The Supreme Court in the above case has
held at paragraph No. 41 as follows:-
"41. Submission of Mr.
Sachar that the report of DNA
should not be relied upon, cannot
be accepted. What is DNA? It
means:
(Deoxyribonucleic
Acid),
which is found in the chromosomes
of the cells of living beings is the
blueprint of an individual. DNA
decides the characteristics of the
person such as the colour of the
skin, type of hair, nails and so on.
948 INDIAN LAW REPORTS ALLAHABAD SERIES
Using this genetic fingerprinting
identification of an individual is
done like in the traditional method
of
identifying
fingerprints
of
offenders. The identification is
hundred percent precise, experts
opine."

19. In the case of Prakash
Nishad Alias Kewat Zinak Nishad
Vs. State of Maharashtra, reported
in AIR 2023 SC (CRIMINAL)
1081, the Supreme Court has held
that even though the DNA evidence
by way of a report was present, its
reliability
is
not
infallible,
especially not so in light of the fact
that the uncompromised nature of
such
evidence
cannot
be
established.
20. In the case of Pattu
Ranjan Vs. State of T.N, reported
in AIR 2019 SC 1674, the Supreme
Court has held at paragraph No. 52
as follows:-
"52. Like all other opinion
evidence,
the
probative
value
accorded to DNA evidence also
varies from case to case, depending
on the facts and circumstances and
the weight accorded to other
evidence
on
record,
whether
contrary or corroborative. This is
all
the
more
important
to
remember, given that even though
the accuracy of DNA evidence may
be increasing with the advancement
of science and technology with
every passing day, thereby making
it more and more reliable, we have
not yet reached a juncture where it
may be said to be infallible. Thus, it
cannot be said that the absence of
DNA evidence would lead to an
adverse inference against a party,
especially in the presence of other
cogent and reliable evidence on
record in favour of such party."
21. In the case of Manoj
Vs. State of M.P, reported in AIR
Online 2022 SC 767, the Supreme
Court has held at paragraph No.
158 as follows:-
"158. This Court, therefore,
has relied on DNA reports, in the
past, where the guilt of an accused
was sought to be established.
Notably,
the
reliance
was
to
corroborate.
This
Court
highlighted the need to ensure
quality in the testing and eliminate
the possibility of contamination of
evidence; it also held that being an
opinion, the probative value of such
evidence has to vary from case to
case."
22.
Section
53A(2)(iv)
Cr.PC provides that a registered
medical practitioner shall prepare a
report of his examination, of a
person/material taken from the
person, arrested on a charge of
committing an offence of rape or an
attempt to commit rape by way of
DNA
profiling,
if
there
are
reasonable grounds for believing
that an examination of his person
will afford evidence as to the
commission
of
such
offence.
Section
164A
(2)(iii)
Cr.PC
provides that the registered medical
practitioner, to whom a victim of
rape or attempted to be raped is
sent, shall, without delay, examine
her person and prepare a report of
his examination giving various
particulars, one of them being, the
description of material taken from
the person of the woman for DNA
profiling.
7 All. Complainant of Case Crime 1479/2017 Vs. State of U.P. & Ors.
949
23. Section 53A Cr.PC and
Section 164A Cr.PC are reproduced
herein below as follows:-
"Section 53A of Cr.PC:-
Examination of person accused of
rape by medical practitioner ---
(1) When a person is
arrested on a charge of committing
an offence of rape or an attempt to
commit
rape
and
there
are
reasonable grounds for believing
that an examination of his person
will afford evidence as to the
commission of such offence, it shall
be lawful for a registered medical
practitioner employed in a hospital
run by the Government or by a
local authority and in the absence
of such a practitioner within the
radius of sixteen kilometers from
the place where the offence has
been committed by any other
registered
medical
practitioner,
acting at the request of a police
officer not below the rank of a subinspector, and for any person
acting in good faith in his aid and
under his direction, to make such
an examination of the arrested
person and to use such force as is
reasonably
necessary
for
that
purpose.
(2) The registered medical
practitioner
conducting
such
examination shall, without delay,
examine such person and prepare a
report of his examination giving the
following particulars, namely;
(i) the name and address of
the accused and of the person by
whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any,
on the person of the accused,
(iv)
the
description
of
material taken from the person of
the accused for DNA profiling,
and".
(v)
other
material
particulars in reasonable detail.
(3) The report shall state
precisely the reasons for each
conclusion arrived at.
(4) The exact time of
commencement and completion of
the examination shall also be noted
in the report.
(5) The registered medical
practitioner shall, without delay,
forward
the
report
of
the
investigating officer, who shall
forward
it
to
the
Magistrate
referred to in section 173 as part of
the documents referred to in clause
(a) of Sub-Section (5) of that
section.
Section
164A
Cr.PC:-
Medical examination of the victim
of rape---
(1) Where, during the stage
when an offence of committing rape
or attempt to commit rape is under
investigation, it is proposed to get
the person of the woman with
whom rape is alleged or attempted
to
have
been
committed
or
attempted, examined by a medical
expert, such examination shall be
conducted by a registered medical
practitioner employed in a hospital
run by the Government or a local
authority and in the absence of
such a practitioner, by any other
registered
medical
practitioner,
with the consent of such woman or
of a person competent to give such
consent on her behalf and such
woman shall be sent to such
registered
medical
practitioner
950 INDIAN LAW REPORTS ALLAHABAD SERIES
within twenty-four hours from the
time of receiving the information
relating to the commission of such
offence.
(2) The registered medical
practitioner, to whom such woman
is
sent
shall,
without
delay,
examine her person and prepare a
report of his examination giving the
following particulars, namely-
(i) the name and address of
the woman and of the person by
whom she was brought;
(ii) the age of the woman;
(iii)
the
description
of
material taken from the person of
the woman for DNA profiling;
(iv) marks of injury, if any,
on the person of the woman;
(v)
general
mental
condition of the woman; and
(vi)
other
material
particulars in reasonable detail.
(3) The report shall state
precisely the reasons for each
conclusion arrived at.
(4)
The
report
shall
specifically record that the consent
of the woman or of the person
competent, to give such consent on
her behalf to such examination had
been obtained.
(5) The exact time of
commencement and completion of
the examination shall also be noted
in the report.
(6) The registered medical
practitioner shall, without delay
forward
the
report
to
the
investigating officer who shall
forward
it
to
the
Magistrate
referred to in section 173 as part of
the documents referred to in clause
(a) of Sub-Section (5) of that
section.
(7) Nothing in this section
shall be construed as rendering
lawful any examination without the
consent of the woman or of any
person competent to give such
consent on her behalf."
24. In the case of Santosh
Kumar Singh Vs. State, reported
in 2010 9 SCC 747, which was in
respect of a young girl who was
raped and murdered, the DNA
report relied upon by the High
Court
was
approved
by
the
Supreme Court and held that the
DNA report can be accepted as
being scientifically accurate and an
exact science as held by the
Supreme Court in Kamti Devi Vs.
Poshi Ram, reported in 2001 5 SCC
311.
25. In the case of Krishan
Kumar Malik Vs. State of Haryana,
reported in 2011 7 SCC 130, which
was a case of gang rape, the
prosecution had not conducted the
DNA test or made any analysis and
matching of the semen of the
accused with that found on the
undergarments of the prosecutrix.
The Supreme Court has held at
paragraph No. 44 as follows:-
"44.
Now,
after
the
incorporation of Section 53-A in
the Criminal Procedure Code w.e.f.
23.06.2006, brought to our notice
by the learned counsel for the
respondent State, it has become
necessary for the prosecution to go
in for DNA test in such type of
cases, facilitating the prosecution
to prove its case against the
accused. Prior to 2006, even
without
the
aforesaid
specific
provision in Cr.PC the prosecution
could have still restored to this
7 All. Complainant of Case Crime 1479/2017 Vs. State of U.P. & Ors.
951
procedure of getting the DNA test
or analysis and matching of semen
of the appellant with that found on
the
undergarments
of
the
prosecutrix to make it a foolproof
case, but they did not do so, thus
they must face the consequences."
26. In the case of Sandeep
Vs. State of U.P, reported in 2012 6
SCC 107, which was a case of
murder of a pregnant girlfriend and
the unborn child of the accused, the
Supreme Court held that the DNA
report confirmed the accused as the
father of the unborn child.
27.
In
the
case
of
Rajkumar Vs. State of M.P,
reported in 2014 5 SCC 353, which
was a case involving the rape and
murder of a 14 year old girl, the
Supreme Court held that the DNA
report established the presence of
the semen of the accused in the
vaginal swab of the prosecutrix.
28. The above cases show
that there is no bar or restriction in
having a DNA profiling of an
accused in a case of rape. In the
present case, not only is there an
allegation of rape against the
appellant, but the appellant has
been accused of being the father of
the child born due to the rape
inflicted by the appellant. It is quite
clear that DNA profiling of the
appellant could prove whether the
appellant was the father of the child
born to the victim. As Section 53A
Cr.PC allows for examination of a
person accused of rape through
DNA profiling on the request of a
Police Officer not below the rank
of Sub-Inspector, we do not find
any bar or restriction for this Court
to pass a direction for DNA
profiling of the appellant, which
would prove whether the appellant
was the father of the child and thus
further prove the question whether
any rape had been committed on
the victim by the appellant.
29. Now let us see whether
DNA profiling can be done in civil
cases, wherein paternity of a child
between couples is in question.
30. In the case of Bhabani
Prasad Jena Vs. Orissa State
Commission for Women, reported
in 2010 8 SCC 633, the Supreme
Court has held that depending on
the facts and circumstances of a
case, it would be permissible for a
Court to direct the holding of a
DNA examination to determine the
paternity of a child. However, the
Court must exercise its discretion
only after balancing the interests of
the
parties
and
on
due
consideration whether for a just
decision in the matter, DNA test is
needed. Thus, in a case relating to
the
charge
by
the
husband
regarding the alleged infidelity of
the wife, the same could be ordered
by the Court depending upon the
facts and circumstances of the case.
31.
In
the
case
of
Dipanwita Roy Vs. Ronobroto
Roy, reported in 2015 1 SCC 365,
the Apex Court has allowed the
DNA test to be done with regard to
the paternity of the child born to his
wife, to establish whether or not the
husband was the father of the child,
so as to prove the alleged infidelity
of the wife. It also held that in view
of the issue involved in the above
case, Section 112 of the Evidence
Act was not strictly attracted to the
case.
952 INDIAN LAW REPORTS ALLAHABAD SERIES
32. As can be seen even in
civil cases regarding disputes with
regard to infidelity of the wife and
paternity of a child, the Supreme
Court has allowed DNA test to be
done, after balancing the interests
of the parties, keeping in view the
facts and circumstances of a case.
The case in hand is however
different, as it pertains to a criminal
case and in the view of this Court,
the right to preserve individual
privacy claimed by the appellant,
has to give way to the object of
finding out the truth, otherwise the
same could amount to sacrificing
the cause of justice. Thus, in
criminal cases, the requirement of
finding out the truth would override the stand of the appellant, in
not agreeing to undertake a DNA
test.
33. The present case is with
regard to whether the appellant had
committed a crime against society,
which can be proved by way of a
DNA test. We are of the view that
the principal of proportionality is
also in favour of the Court resorting
to DNA testing, to find out whether
a crime had been committed by the
appellant, keeping in view the
allegation made by the victim and
the fact that a child has been born.
34. A perusal of the orders
passed by the Supreme Court
clearly go to show that DNA
test/profiling is useful and helpful
in coming to a decision with regard
to identifying the perpetrator of a
crime. The Supreme Court has in
many cases as referred to above,
supported
the
use
of
DNA
test/profiling. However, it is only in
respect of civil cases where the
paternity of a child is in dispute
between the married couples that
the Hon'ble Supreme Court has
given words of caution that DNA
test/profiling should not be done at
the drop of a hat, in view of Section
112 of the Evidence Act. As stated
in the earlier paragraphs, the
Supreme Court in the case of
Sandeep Vs. State of U.P. (supra)
has accepted the confirmation that
the accused therein was the father
of the unborn child, who had died
during the murder of a pregnant
woman, determined on the basis of
a DNA test. In the present case, the
victim has accused the appellant of
raping
her
and
making
her
pregnant. In that view of the matter,
we are of the view that the DNA
test/profiling would conclusively
prove whether the appellant had
fathered the child and whether he
had raped the victim, as he has
denied raping her.
35. In view of the reasons
stated above, we are of the view
that additional evidence is required
to be taken in terms of Section 391
Cr.P.C, as DNA test of the appellant
and the child born to the victim,
would conclusively prove whether
the child has been fathered by the
appellant and whether the appellant
was the perpetrator of the rape
committed
on
the
victim.
Accordingly, we direct the learned
Trial Court to take additional
evidence under Section 391 Cr.PC,
by taking steps for ensuring that a
DNA test/profiling of the appellant
and the child of the victim alleged
to have been fathered by the
appellant,
is
undertaken,
after
taking
the
samples
from
the
7 All. Complainant of Case Crime 1479/2017 Vs. State of U.P. & Ors.
953
appellant and the child in the
presence of the learned Judge of the
learned Trial Court. In this regard,
necessary directions may be issued
by the learned Trial Court to the
Superintendent of the concerned
Jail to produce the appellant and
also to the victim to produce the
child. The learned Trial Court shall
ensure all precautions are taken at
the time of taking of samples from
the above persons and making sure
the samples are not compromised
in any manner. The learned Trial
Court shall also ensure that the
persons/institution which is going
to conduct the DNA test/profiling
takes all possible precautions so
that the entire testing procedure is
not compromised in any manner.
The entire exercise should be
conducted at the earliest and
preferably within a period of 2
(two) months from the date of
receipt of a copy of this order."

10. The relevant paragraphs of the
judgment of the Delhi High Court passed in
the case of Meera Devi (supra) are as
under:-

"10. It is fundamental duty
of the Court to ascertain the truth
and do justice on the basis of truth.
In Ved Prakash Kharbanda v. Vimal
Bindal, 198 (2013) DLT 555, this
Court has discussed the relevant
principles relating to the discovery
of the truth. Relevant portion of the
said
judgment
is
reproduced
hereunder:-
"11. Truth should be the
Guiding
Star
in
the
Entire
Judicial Process
11.1 Truth is the foundation
of justice. Dispensation of justice,
based on truth, is an essential
feature in the justice delivery
system. People would have faith in
Courts when truth alone triumphs.
The justice based on truth would
establish peace in the society.
11.2 Krishna
Iyer
J.
in Jasraj
Inder
Singh v. Hemraj
Multanchand, (1977)
2
SCC
155 described truth and justice as
under:
"8. ...Truth, like song, is
whole, and half-truth can be
noise! Justice is truth, is beauty
and
the
strategy
of
healing
injustice is discovery of the whole
truth and harmonising human
relations. Law's finest hour is not
in meditating on abstractions but
in being the delivery agent of full
fairness. This
divagation
is
justified by the need to remind
ourselves that the grammar of
justice according to law is not little
litigative
solution
of
isolated
problems but resolving the conflict
in its wider bearings."
11.3
In Union
Carbide
Corporation v. Union
of
India, (1989)
3
SCC
38, the
Supreme Court described justice
and truth to mean the same. The
observations of the Supreme Court
are as under:
"30. ...when one speaks of
justice and truth, these words mean
the same thing to all men whose
judgment is uncommitted. Of Truth
and Justice, Anatole France said:
"Truth
passes
within
herself
a
penetrating
force
unknown
alike
to
error
and
falsehood. I say truth and you must
954 INDIAN LAW REPORTS ALLAHABAD SERIES
understand my meaning. For the
beautiful
words Truth
and
Justice need not be defined in
order to be understood in their true
sense. They bear within them a
shining beauty and a heavenly
light. I firmly believe in the triumph
of truth and justice. That is what
upholds me in times of trial...."
11.4 In Mohanlal Shamji
Soni v. Union of India, 1991 Supp
(1) SCC 271, the Supreme Court
observed that the presiding officer
of a Court should not simply sit as
a mere umpire at a contest between
two parties and declare at the end
of the combat who has won and
who has lost and that there is a
legal duty of his own, independent
of the parties, to take an active role
in the proceedings in finding the
truth and administering justice.
11.5
In Chandra
Shashi v. Anil
Kumar
Verma, (1995) 1 SCC 421, the
Supreme Court observed that to
enable the Courts to ward off
unjustified interference in their
working, those who indulge in
immoral acts like perjury, prevariation and motivated falsehoods
have to be appropriately dealt with,
without which it would not be
possible
for
any
Court
to
administer justice in the true sense
and to the satisfaction of those who
approach it in the hope that truth
would ultimately prevail. People
would have faith in Courts when
they would find that truth alone
triumphs in Courts.
11.6
In A.S.
Narayana
Deekshitulu v. State of A.P., (1996)
9 SCC 548, the Supreme Court
observed that from the ancient
times, the constitutional system
depends on the foundation of truth.
The Supreme Court referred to
Upanishads, Valmiki
Ramayana
and Rig Veda.
11.7
In Mohan
Singh v. State of M.P., (1999) 2
SCC 428 the Supreme Court held
that effort should be made to find
the truth; this is the very object for
which
Courts
are
created. To
search it out, the Court has to
remove chaff from the grain. It has
to disperse the suspicious, cloud
and dust out the smear of dust as
all these things clog the very truth.
So long chaff, cloud and dust
remains, the criminals are clothed
with this protective layer to receive
the benefit of doubt. So it is a
solemn duty of the Courts, not to
merely conclude and leave the
case the moment suspicions are
created. It is onerous duty of the
Court, within permissible limit to
find out the truth. It means, on
one hand no innocent man should
be punished but on the other hand
to see no person committing an
offence should get scot free. There
is
no
mathematical
formula
through which the truthfulness of
a prosecution or a defence case
could be concretised. It would
depend on the evidence of each
case including the manner of
deposition
and
his
demeans,
clarity, corroboration of witnesses
and overall, the conscience of a
judge evoked by the evidence on
record. So Courts have to proceed
further and make genuine efforts
within judicial sphere to search
out the truth and not stop at the
7 All. Complainant of Case Crime 1479/2017 Vs. State of U.P. & Ors.
955
threshold of creation of doubt to
confer benefit of doubt.
11.8 In Zahira Habibullah
Sheikh v. State of Gujarat, (2006) 3
SCC
374, the
Supreme
Court
observed
that
right
from
the
inception of the judicial system it
has been accepted that discovery,
vindication and establishment of
truth are the main purposes
underlying existence of Courts of
justice.
11.9 In Himanshu Singh
Sabharwal v. State
of
Madhya
Pradesh, (2008) 3 SCC 602, the
Supreme Court held that the trial
should be a search for the truth and
not a bout over technicalities. The
Supreme Court's observation are as
under:
"5. ... 31. In 1846, in a
judgment which Lord Chancellor
Selborne would later describe as
'one of the ablest judgments of one
of the ablest judges who ever sat in
this Court', Vice-Chancellor Knight
Bruce
said [Pearse v. Pearse,
(1846) 1 De G&Sm. 12: 16 LJ Ch
153: 63 ER 950: 18 Digest (Repl.)
91, 748]: (De G&Sm. pp. 28-29):
"31. The discovery and
vindication and establishment of
truth are main purposes certainly
of the existence of courts of justice;
still, for the obtaining of these
objects, which, however valuable
and important, cannot be usefully
pursued
without
moderation,
cannot
be
either
usefully
or
creditably pursued unfairly or
gained by unfair means, not every
channel is or ought to be open to
them. The practical inefficacy of
torture is not, I suppose, the most
weighty objection to that mode of
examination,... Truth,
like
all
other good things, may be loved
unwisely-may be pursued too
keenly-may cost too much.
xxx xxx xxx
35. Courts have always
been
considered
to
have
an
overriding duty to maintain public
confidence in the administration of
justice-often referred to as the
duty to vindicate and uphold the
'majesty of the law'.
xxx xxx xxx
38.