IMPORTANT POINTS
(1) Sexual assault on girl child – Alleged act has not at all happened cannot be inference that can be drawn due to a DNA sample coming in favour of accused.
(2) DNA sample report that is given by analyst is also to be confirmed by way of evidence – Mere production of DNA sample report before Court would not mean that it has to be taken as gospel truth without examination or cross-examination of doctor who has rendered such opinion.

ORDER

The petitioner is before this Court calling in question proceedings in Special C.C.No.188 of 2022 arising out of crime No.70 of 2021 registered for offences punishable under Section 376(2)(i)(n) of the IPC and Sections 5(j)(ii), 5(l) and 6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’).

2. Heard Sri V.Manjunath, learned counsel appearing for the petitioner and Sri K.S. Abhijith, learned High Court Government Pleader appearing for respondent No.1.

3. Facts that lead the petitioner to this Court, succinctly stated, are as follows:—

Petitioner is the accused, a man of 45 years working as a Conductor with the KSRTC. A crime comes to be registered on 19-02-2021 by the 2nd respondent, father of the victim. The allegation against the petitioner is that the daughter of the complainant who was 12 years old had become pregnant. The reason for pregnancy is the act of the petitioner/accused who is a relative of the family of the complainant. It is the allegation that on the night of 05-01-2021 the petitioner had indulged in sexual act with the victim and on 17-02-2021 the victim had developed nausea which necessitated the complainant to take her to the doctor and then comes to know that his daughter is pregnant and the reason for pregnancy is the petitioner. The crime then comes to be registered on the complaint of the 2nd respondent in crime No.70 of 2021 for the afore-quoted offences. Since the victim was 12 years old, foetus had to be removed and sent for DNA analysis. The blood sample of the petitioner was also sent along for the analysis. The report of the DNA sample that was sent for analysis was yet to come about. The police, however, after investigation filed a charge sheet in the matter pending receipt of the report of the DNA sample.

4. When the proceedings in terms of the charge sheet filed in Special C.C.No.188 of 2022 was in progress, the report of DNA comes about and the report of the DNA was in favour of the petitioner, opining that the DNA sample of the foetus did not match with the blood sample of the petitioner. The petitioner on receipt of DNA report rushes to this Court with the subject petition, contending that he was not responsible for the daughter of the complainant becoming pregnant.

5. The learned counsel appearing for the petitioner elaborating the DNA report would contend that no such act had happened on the victim and if at all it had happened, the DNA sample of the foetus should have matched with that of the petitioner. Since DNA report is negative, no offence can be made out against the petitioner and, therefore, the proceedings are to be terminated.

6. On the other hand, the learned High Court Government Pleader placing reliance on the entire records of the case would submit that Section 164 CrPC statement rendered by the victim is clear as to what acts the petitioner had indulged in and, therefore, it would become a matter for trial for the petitioner to come out clean, notwithstanding the report of the DNA being in favour of the petitioner.

7. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.

8. The afore-narrated facts are not in dispute. The incident is alleged to have happened at 12.30 a.m. on 05-01-2021. It is the said incident that becomes the fulcrum of allegations against the petitioner. The incident narrated in the complaint is that when all the members of the family were asleep in the house of the victim where the petitioner was also sleeping, the aunt of the victim walks out and goes to use the washroom for a considerable time. Between the time the aunt of the victim going to the wash room and coming back, the petitioner is alleged to have indulged in sexual assault on the 12 year old victim. This fact was known to none.

9. On 17-02-2021 the victim develops