Point of Law: DNA test is also available before the Court, which is marked as Annexure-H and only in order to overcome the positive report of the DNA, the petitioner has approached this Court by invoking the writ jurisdiction seeking the relief to quash the order as well as the DNA report

ORDER :

This petition is filed under Article 226 of the Constitution of India read with Section 482 of Cr.P.C. praying this Court to:

(i) issue a writ in the nature of certiorari to quash the impugned order dated 04.01.2017 and 05.01.2017 vide Annexures-E and F passed by the learned I Additional JMFC, Sindhanur in Crime No.142/2016 (S.C.No.61/2018);

(ii) issue a writ in the nature of certiorari to quash the DNA profile report bearing No.FSL/197/DNAC/8/2017 dated 27.02.2017 vide Annexure-H and final opinion dated 30.03.2017 issued by the Medical Officer, Sindhanur vide Annexure-J;

(iii) issue such other writ or order or direction as this Court deems fit in the circumstances of the case.

2. The factual matrix of the case is that the police based on the complaint given by the victim, who has been arraigned as respondent No.2 herein, have registered a case in Crime No.142/2016 against the petitioner for the offences punishable under Sections 504, 506, 417 and 376 of IPC. The complainant in the complaint vide Annexure-B dated 04.10.2016 alleged that on 05.03.2016, this petitioner went to her house and called her to coolie work in his land and took her at around 9.30 a.m. and when both were working in the land at 3.00 p.m. he told her that he would marry her and called her to have sexual intercourse and when she refused that she will not allow him till he marries her and that if the said fact is known to the family they are going to scold her. But he did not heed to her request and forcibly committed rape on her and threatened not to reveal the same to her family members and if she reveals the same, he will take away the life and as a result, she kept quiet. The petitioner repeated the same whenever he took her to work at his land 3-4 times and every time he was causing life threat and hence she did not reveal anything. The family members noticed her body development and she revealed that due to forcible intercourse by the petitioner, she became pregnant. When the family members enquired this petitioner and told him to marry her, he tried to avoid and every time he was escaping from their family members. When her parents went to the house of the accused and enquired again, he questioned that why they are questioning him, what evidence they are having that her daughter became pregnant due to the act of the petitioner and abused in a filthy language and in a rude manner. In the meanwhile, she became seven months pregnant. Hence, she lodged a complaint and the police after registration of the case, investigated the matter and filed the charge sheet against the accused for the above offences.

3. The prosecution also filed an application before the Magistrate to conduct the DNA test in terms of Annexure-C dated 27.10.2016 reiterating the averments of the complaint and requested that in order to know the truth, it is necessary to conduct the DNA test since other witnesses have also given the statement in consonance with the allegations of the victim. The victim was also subjected to medical examination and she gave statement before the Magistrate under Section 164 of Cr.P.C. and the accused is in custody. The copy of the application was also furnished to the accused and the accused filed objection statement in terms of Annexure-D and in the objection statement, he contends that he is an innocent and conducting of the DNA test of the accused is not tenable in the eye of law. It is further contended that the victim has already married one Siddappa and there is no justification to draw the blood sample of the accused for DNA test. In the meanwhile, the Investigating Officer filed requisition submitting that the infant of the victim is reported to be dead on 07.12.2016 at 3.50 a.m. at Shankara Hospital, Sindhanur and requested that proper investigation is necessary and as to identify the DNA of the deceased baby boy, sought a direction to direct the Chief Medical Officer (‘CMO’ for short) to extract the relevant portion of the body of the deceased