ORDER :

Sanjay K. Agrawal, J.

1. This order will govern the disposal of I.A.No.1/2021 that has been filed in both the appeals for direction for DNA test of the appellants herein and the victim including the victim’s newly born baby.

2. The two appellants herein were tried by the Special Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, ‘the Act of 1989’), Raigarh, for commission of offences under Section 376-D of the IPC, Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘the POCSO Act’) & Section 3(2)(v) of the Act of 1989, date of offence being 21-1-2018. During the course of trial, after closure of the prosecution evidence, application under Section 311 of the CrPC was filed which was allowed upon which the victim was re-examined and in the statement it was brought on record that on 25-11-2018, the victim has delivered a baby (male child). During the course of trial, the appellants herein filed application for conducting DNA test of themselves, the victim and the newly born baby which was rejected by the Special Judge by order dated 1-5-2019 holding that commission of the offence of gang rape and other allied offences can be determined without directing for DNA test of the appellants and the victim/victim’s newly born baby and therefore there is no justification for directing DNA test and accordingly, the application was rejected by order dated 1-5-2019. Thereafter, after full-fledged trial, the appellants were convicted for offences under Sections 376-D of the IPC & Section 4 of the POCSO Act against which the instant criminal appeals have been filed by the two appellants herein in which also they have filed application for conducting DNA test of themselves and the victim as also the victim’s newly born baby, which this Court had earlier considered and directed that the same will be considered and decided at the time of final hearing of the appeal, which was assailed before the Hon’ble Supreme Court on which their Lordships of the Supreme Court have allowed the appeal and set aside the order dated 28-4-2022 and also directed to decide the application for DNA test expeditiously pursuant to which the application for DNA test is being considered on merits.

3. The victim has also been noticed and service report dated 14-7-2023 has been filed which reveals that notice has been served upon the father of the victim. But none has appeared on behalf of the victim to oppose the applications for conducting DNA test filed on behalf of the appellants.

4. Reply has been filed on behalf of the State / respondent opposing the said application stating inter alia that it is not necessary for just and proper disposal of the criminal appeal and DNA test cannot directed as a matter of course, and relied upon the decision rendered by the Supreme Court in the matter of Goutam Kundu v. State of W.B., 1993 Cr LJ 3233 (para 26) : (1993) 3 SCC 418, as such, the applications in both the appeals deserve to be dismissed.

5. Mr. Badruddin Khan & Mr. Vijay Kumar Sahu, learned counsel appearing for the appellants, would submit that DNA test is absolutely necessary for just and proper disposal of the criminal appeals, as the trial Court has previously rejected the application for DNA test and before the appellants could challenge the order dated 1-5-2019, they were convicted by the trial Court and therefore they could not challenge that order, as such, DNA test is absolutely necessary to find out the truth and to demonstrate that the appellants are innocent and they have not committed the offence of gang rape. Learned counsel have relied upon the decision of the Delhi High Court in the matter of Kapil Kumar Beri v. State of Delhi (NCT of Delhi), (2019) 256 DLT 415 : (2019) 5 RCR (Criminal) 345 and the decisions of the Supreme Court in the matters of Ranu Thakur v. Dayashanker and others, (2015) 2 RCR (Criminal) 153 and Brig. Sukhjeet Singh (Retd.) v. The State of Uttar Prad