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2004 (4) Crimes 76
Orissa High Court (DB)
A.K. Patnaik & M.M. Das, JJ.
Thogorani @ K. Damayanti —Petitioner
versus
State of Orissa and others —Opp. Parties
W.P. (Criminal) No. 198 of 2003
Decided on 20-7-2004
(ii) Criminal Procedure Code, 1973 — Section 173(8) — Further investigation is not altogather ruled out merely because Court has taken cognizance. (Para 12)
(iii) Constitution of India — Art 20(3) — Whether direction to conduct DNA test by collecting blood sample from accused would infringe his right under Arts. 20(3) & 21 of the Constitution ? No.
Held: With regard to the right guaranteed under Article 20(3) of the Constitution of India which says that “no person accused of any offence shall be compelled to be a witness against himself” it would be seen from the case of State of Bombay v. Kathi Kalu, AIR 1961 SC 1808, the phrase “to be a witness-was interpreted to mean ‘imparting know-ledge’ in respect of relevant facts by means of oral statement or statements in writing by a person who has personal knowledge of the facts to be communicated to a Court or to person holding an enquiry or investigation. The Supreme Court has pointed out that the handwriting or finger impression could not change their intrinsic character and, therefore, even though the taking of finger impression or specimen hand-writing may amount to furnishing evidence in the larger sense, but they could not be included within the expression ‘to be a witness”. It was further observed that the Constitution-makers may have intended to protect an accused from the hazards of self-incrimination, but they could not have intended to put obstacles in the way of efficient and effective investigation into a crime and of bringing criminals to justice. The majority Judges in the said decision came to the finding that taking specimen writing or thumb impressions etc. did not amount to ‘testimonial compulsion”. (Para 21)
We are of the view that taking blood sample of the accused-opp party No. 3, in the instant case, will not amount to the accused becoming a witness against himself and thus a direction if issued to collect blood sample from the accused - opp. party No. 3 conducting DNA test would not in any way take away his rights enjoyed under Article 20(3) of the Constitution. (Para 23)
Result: Petition allowed.
JUDGMENT
M.M. Das, J.— Petitioner is the victim lady and the informant in Sessions Case No. 20 of 2002 corresponding to G.R. Case No. 225/2001 pending in the Court of Addl. Sessions Judge, Gajapati, Parlakhemundi.
2. The matrix of this case, bereft of unnecessary details is that the petitioner lodged an F.I.R. before Parlakhemundi Police Station on 16.7.2001 alleging therein that when she was 14 years of age, the opp. party No.3 developed relationship with her giving assurance of marriage and cohibitated with her. As a consequence of the same, a female child was born to her who is now aged about two and half years and by the time of lodging the F.I.R. she conceived for the second time through opp. party No.3. She further alleged in the F.I.R. that the family members of opp. party No.3 were threatening and forcing her to forbear from such relationship with opp. party
No. 3 and at a point of time even offered her Rs. 10,000/- for aborting the child which she conceived through the opp. party No. 3 and also ill-treated and tortured her.
3. The petitioner has averred in the writ petition that initially the said F.I.R. was registered as P.S. Case No. 123/2001 against the opp. party No. 3 and others for commission of offences under Sections 498-A/506/34, I.P.C.
4. During the course of investigation, which was being done by the S.D.P.O., Paralakhemnudi an application was filed on 3.12.2001 by the said S.D.P.O, opp. party No. 2, before the S.D.J.M., Parlakhemundi to treat the said P.S. Case No. 123/2001 to be one under Sections 376/417/506/34, IPC read with Section 3 of the S.C. & S.T. (P.A.) Act and on the basis of the said application G.R. Case No. 225/2002 was registered for the offences under the aforesaid Sections. During the course of investigation, the petitioner gave birth to a second female child on 24.12.2001 at Melliaplaitti Government Hospital and after comple-tion of investigation, charge sheet was filed on 18.4.2001 on which cognizance of offences under Sections 376/506/34 IPC and Section 3 of the S.C. & S.T.
(P.A.) Act was taken by the learned S.D.J.M., Parlakhemundi on 10.5.2003 and thereafter the case has been committed to the Court of Sessions and is now pending as S.C. Case No. 20 of 2002 before the learned Addl. Sessions Judge, Parlakhemundi. The order granting bail to opp. party No. 3 has been cancelled by this Court in Crl. Misc. Case No. 4140 of 2002.
5. The petitioner further averred that on 10.2.2003 an application was filed on her behalf before the learned Addl. Sessions Judge, Paralakhemundi under Section 173(8), Cr.P.C. for directing to make further investigation of the aforesaid P.S. Case No. 123 of 2001, stating therein that the police during investigation has not taken steps for medical examination of the petitioner with regard to her age and has not conducted DNA test regarding paternity of the issues born and unless the Investigating Agency conducts the aforesaid test, the accused-opp. party No. 3 will go scot free. This application was rejected by the Court below only on the ground that the petition having not been filed by the public prosecutor, the same cannot be taken into consideration. It appears that the petitioner thereafter challenged the said order of rejection in Crl. Revision No. 332 of 2003 before this Court in which the impugned order was set aside and the Addl. Sessions Judge was directed to take a decision on the said petition afresh. Pursuant to the said order, the learned Addl. Sessions Judge by order dated 24.7.2003 directed the opp. party No. 2, the S.D.P.O. to investigate into the case and submit a supplementary case diary within 45 days from the date of the said order before the learned S.D.J.M., Paralakhemundi with regard to the age of the petitioner by conducting ossification test and further gave liberty to the Investigating Officer to take steps for DNA test after determining the Blood Group of the victim lady, her two children and the opp. party No. 3. Consequent to th
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