IMPORTANT POINTS
(1) DNA examination – Merely because something is permissible under law, cannot be directed as a matter of course to be performed particularly when a direction to that effect may encroach privacy and physical autonomy of a person.
(2) In a case of rape medical evidence is not always final but medical evidence plays role of secondary evidence.

JUDGMENT

Heard Mr. Bibhash Sinha, learned counsel for the petitioner and Mr. Ashok Kumar Yadav assisted by Mr. Rituraj and Ms. Priyanka Boby, learned counsel for the State.

2. This petition has been filed for quashing the order dated 15.09.2022 passed by the learned Special Judge, POCSO, Ranchi in POCSO Case No.89 of 2020 (Chanho P.S. Case No.89 of 2020), whereby, the petition dated 07.07.2022 filed on behalf of the petitioner for his DNA examination and the child is rejected, pending in the court of the learned Special Judge, POCSO, Ranchi. The prayer is also made for direction for DNA examination of the petitioner and the child in POCSO Case No.89 of 2020 (Chanho P.S. Case No.89 of 2020).

3. Mr. Bibhash Sinha, learned counsel for the petitioner submitted that in a mechanical way, charge-sheet has been submitted against the petitioner for an alleged offence under Section 376 of the Indian Penal Code (IPC) as well as under Section 4/6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. Thereafter, the charges have been framed against the petitioner and he was put on trial. He further submitted that nine witnesses have already been examined and upon closure of the prosecution evidence, the statement of the petitioner was recorded under Section 313 of the Code of Criminal Procedure (Cr.P.C.) on 22.06.2022 in which the petitioner in its defence has pleaded his innocence. He also submitted that in that statement, the petitioner has stated that he wants DNA test. He further submitted that the petitioner has earlier moved before this Court in Cr.M.P. No.127 of 2021 challenging the cognizance order as well as the order rejecting the prayer for DNA test of the child. He submitted that although the Court has not interfered with the cognizance order, however liberty was provided to the petitioner to file a petition for conducting DNA test of the child at proper stage. He submitted that the petition has been filed on behalf of the petitioner, which has been rejected by the learned court vide order dated 15.09.2022 on flimsy ground. He further submitted that in the impugned order only on the ground of delay, the prayer for DNA test has been rejected in spite of the observation of the High Court. To buttress his arguments, he relied upon the judgment passed by the Hon’ble Supreme Court in Sharda v. Dharmpal; [(2003) 4 SCC 493].

4. Paragraphs 76, 79 and 80 of the said judgment are quoted herein below:—

“76. The matter may be considered from another angle. In all such matrimonial cases where divorce is sought, say on the ground of impotency, schizophrenia etc. normally without there being medical examination, it would be difficult to arrive at a conclusion as to whether the allegation made by a spouse against the other spouse seeking divorce on such a ground, is correct or not. In order to substantiate such allegation, the petitioner would always insist on medical examination. If the respondent avoids such medical examination on the ground that it violates his/her right to privacy or for that matter right to personal liberty as enshrined under Article 21 of the Constitution of India, then it may in most of such cases become impossible to arrive at a conclusion. It may render the very grounds on which divorce is permissible nugatory. Therefore, when there is no right to privacy specifically conferred by Article 21 of the Constitution of India and with the extensive interpretation of the phrase “personal liberty” this right has been read into Article 21, it cannot be treated as an absolute right. What is emphasized is that some limitations on this right have to be imposed and particularly where two competing interests clash. In matters of the aforesaid nature where the legislature has conferred a right upon his spouse to seek divorce on such grounds, it would be the right of that spouse which comes in conflict with the so-called right to privacy of the respondent. Thus the court has to reconcile these competing interests