IMPORTANT POINT
The court established that DNA testing is essential in cases of alleged false implication in sexual assault, balancing the rights of the accused and the victim.

JUDGMENT :

1. The applicant has filed this Revision Application challenging the order dated 09.05.2024 passed by 3rd Additional Sessions Judge at Anjar-Kachchh rejecting the prayer for DNA test below Exh.64 in Special POCSO Case No.11 of 2022 in connection with FIR No.11993003220400 of 2022 registered with Anjar Police Station for the offences punishable under section 376(2)(n) and 506(2) of IPC and sections 4 and 6 of the Protection of Children From Sexual Offences Act, 2012 (for short ‘POCSO Act’).

2. Learned advocate Mr. Ashish Dagli with Ms. Aishwarya H.Chaudhary, learned advocate for the applicant submitted that the applicant being the original accused in the trial before the 3rd Additional Sessions Judge, Anjar-Kachchh had moved an application, Exh.64, while he was put to answer the evidence against him in further statement under section 313 of Cr.P.C., and he had categorically stated in the further statement that he is innocent and he is falsely implicated, and had prayed for DNA test.

2.1 Advocate Mr. Dagli stated that earlier too, in application vide Exh.34/C in Special POCSO Case No.11 of 2022, prayer was made under section 53(A)(2)(iv) of Cr.P.C. for DNA test. Advocate Mr. Dagli submitted that the same came to be rejected on 29.09.2023 by the Special Judge, POCSO, observing that for a case under section 375 of IPC, there would not be any relevancy to the nexus of the biological father of the child. Advocate Mr. Dagli submitted that such an observation would become erroneous in view of the decision of the Division Bench of this Court in case of Ajitkumar Kumarsinh Bhagora Vs. State of Gujarat, rendered in Criminal Appeal No.1110 of 2017 with Criminal Appeal No.845 of 2017 dated 04.04.2019.

2.2 Advocate Mr. Dagli submitted that at the relevant time the order could not be challenged, but now the trial has come at the fag end and consistently evidence has been placed on record, even by way of cross-examination the evidence was led to doubt the paternity and specific questions were put to the victim, where her relation with some other named person had been brought on record.

2.3 Advocate Mr. Dagli further stated that the victim was asked the question whether she was ready for a DNA test of the child, she has specifically denied. Mr. Dagli stated that it is a consistent specific case of the accused that he has been falsely implicated and, thus, an opportunity is required to be given to the accused by way of DNA test lest for want of such test on record the accused may not be wrongly convicted.

3. By way of Application, Exh.64/C, the accused had made a prayer for DNA test urging the Court to lend a helpful attitude for discovery of truth and had pleaded that DNA test can be helpful in finding out the facts relating to the offence, and should be used and utilized and the Courts should not obstruct the conduct of the exercise.

3.1 During the course of cross-examination of the victim, the accused could bring on record a name of some third person, who according to the accused was having relation with the victim. The child, who has been born as per the record, is adopted by a court staff. In the statement under section 313 of Cr.P.C., the accused had stated that since the fetus has already taken the shape of the child, who is born and the child is adopted by a court staff, thus, had made a prayer that a DNA test be conducted of his along with victim with child stating that he is innocent.

4. Ms. Joyti Bhatt, learned APP submitted that since the victim girl was aged about 14 years, when she suffered the offence, and since she has not given her consent for DNA test, it cannot be imposed upon her to give consent and therefore in the interest of justice necessary orders are required to be passed.

5. Rule was issued for the complainant, who is mother of the victim, to remain present. In spite of being served, she has failed to appear before this Court.

6. In paragraph no. 33, the Division Bench of this Court in Ajitkumar Kumarsinh Bhagora (su