IMPORTANT POINT
DNA testing is essential in rape cases to establish paternity and guilt, and the right to privacy of the accused must yield to the public interest in justice.

ORDER :

M. Zothankhuma, J.

Heard Mr. H.R.A. Choudhury, learned senior counsel assisted by Mr. A. Ahmed, learned counsel for the applicant/applicant. Also heard Ms. B. Bhuyan, learned Addl. PP for the State.

2. This is an application under Section 389 Cr.PC for suspending the sentence imposed upon the applicant on being convicted under Section 376(1) IPC, vide Judgment & Order dated 26.07.2022 passed by the Court of the Sessions Judge, Bongaigaon in Sessions Case No. 49(M)/2018 arising out of Manikpur PS Case No. 176/2016. The applicant has been sentenced to undergo rigorous imprisonment for 12 (twelve) years with a fine of Rs.50,000/- in default to undergo simple imprisonment for 1 (one) year.

3. The prosecution case is that an FIR dated 03.07.2016 was submitted by PW1, which is to the effect that the applicant had raped the victim (PW-7) around 6/7 months back and threatened her that if she disclosed the incident to any person, she would be killed. However, the informant (PW-1), who resided in the same village as the victim PW-7, noticing changes in the body of the victim PW1, made enquiries with the victim regarding the same. Thereafter, the victim disclosed to her (PW-1) that she had been raped by the applicant/applicant, as a result of which she became pregnant.

4. The learned senior counsel for the applicant submits at the outset that though this Court had directed the applicant to obtain instructions as to whether he was willing to undergo a DNA test, to verify whether he was the father of the child that had been born to the victim, vide Order dated 17.08.2023, the applicant was not willing to undergo a DNA test.

5. The learned senior counsel also submits that in terms of the judgment of the Supreme Court in the case of Goutam Kundu Vs. State of West Bengal & Others, reported in (1993) 3 SCC 418, Courts in India cannot order a blood test as a matter of course. He submits that the Apex Court has held that the Courts have to carefully examine the consequence of ordering a blood test and no one can be compelled to give his/her sample of blood for analysis.

6. The learned senior counsel has referred to the evidence given by the prosecution witnesses, especially the evidence given by the victim in her cross-examination, wherein she has stated that she came to know the name of the applicant only when the case was filed and that she had not seen the face of the person who raped her on the relevant night, due to darkness. He also submits that as the FIR had been filed after 6/7 months after the alleged rape had been committed, the same cast a doubt on the authenticity of the contents of the FIR. He accordingly submits that as there is no proof that the applicant was the person who allegedly raped the victim, the sentence should be suspended and the applicant should be allowed to go on bail.

7. On the other hand, the Addl. PP submits that the victim was mentally ill and unable to recall previous incidents, as given in the testimony of PW-1. She also submits that the victim was 48 years of age and the applicant was 24 years of age. Further, though a bichar had been held in the village on 2 (two) occasions, due to the illegal act of the applicant/applicant, the applicant did not turn up in the bichar held on the 2 (two) occasions. She submits that the evidence of the prosecution witnesses, having clearly proved the guilt of the applicant/applicant, the application should be rejected and bail should be denied.

8. We have heard the learned counsels for the parties.

9. The question to be decided is as to whether the applicant had raped the victim and whether the child born to the victim had been fathered by the applicant, as it has been alleged that the child was the result of the rape. In this regard, an issue has cropped up as to whether a DNA test could/should be done on the applicant and the child, so as to determine whether the applicant had fathered the child.

10. In the case of Goutam Kundu (supra), the Supreme Court was seized of an issu