Point of Law: Merely because the petitioner had offered to conduct DNA Test it would not mean that the complainant and the minor child can also be subjected to such test without their consent.

JUDGMENT :

SANGEETA CHANDRA, J.

1. Heard the learned counsel for the parties and perused the record.

2. This Criminal Revision has been filed challenging the judgment and order dated 25.06.2021 passed by the learned Additional Sessions Judge, (POCSO Act), No. 12, Sultanpur, passed in Criminal Appeal (Juvenile) No. 19 of 2021, relating to Case Crime No. 360/2017, under Sections 376, 504, 506 IPC and Section 3/4 POCSO Act, Police Station Kotwali Dehat, District Sultanpur.

3. It has been submitted by the learned counsel for the revisionist that on 17.12.2017 the First Information Report of Case Crime No. 360/2017, under Sections 376, 504, 506 IPC and Section 3/4 POCSO Act, Police Station Kotwali Dehat, District Sultanpur, was lodged by the revisionist against the opposite party nos.2 and 3 and other co-accused that the daughter of the revisionist aged about 14 years was raped seven months ago as a result whereof she became pregnant. When the revisionist got information of her daughter's pregnancy they tried to marry her with the opposite party no. 2 but the father of the opposite party no. 2 denied such proposal. The revisionist and her associates told the father of the opposite party no. 2 that if the child is not aborted they would have to face dire consequences. The Investigating Officer after recording the statement under Sections 161 and 164 Cr.P.C. filed Charge-sheet on 13.06.2014 in the Court of Chief Judicial Magistrate, Court No. 17, Sultanpur, against the opposite party no. 2 and two persons. With regard to the other accused in the F.I.R. investigation is pending till date and they have not been arrested as yet. Later on, the opposite party no. 2 was declared juvenile and the Trial was transferred to the Juvenile Justice Board, Sultanpur. After examination-in-chief and cross-examination of prosecution witness as PW-1 i.e. the revisionist and PW-2 i.e. the victim her daughter, a date was fixed for examination of other prosecution witnesses.

4. The opposite party no. 2 filed an application for conducting DNA Test of the PW-2. Objections were filed by the counsel for the revisionist. On 25.03.2021 learned Juvenile Justice Board after considering the entire facts and circumstances and evidence available on record rejected the application for DNA Test. Against the order the dated 25.03.2021, the opposite party no. 2 filed a Criminal Appeal in the court of Additional Sessions Judge, Court No. 12, Sultanpur, which was registered as Criminal Appeal (Juvenile) No. 19/2021 (Shameem @ Bugul vs. State of U.P.). During the pendency of such Appeal, the opposite party no. 2 filed an application for arrange/impleading the revisionist as opposite party no. 2.The Appellate Court without deciding the application for impleadment of the revisionist decided the Appeal finally and passed impugned order on 25.06.2021. In the order dated 25.06.2021 the learned Appellate Court has ignored the provisions of Article 14-21 of the Constitution of India, the Juvenile Justice Board in its order dated 25.03.2021 had observed that the application for examination of child of the prosecution witness moved by the opposite party no. 2 can only be moved at the stage when defence witnesses were being examined under Section 313 Cr.P.C. It held that sending the victim child for DNA Test would further delay the Trial which under the provisions of Statute should be concluded as expeditiously as possible.

5. It has been submitted by the learned counsel for the revisionist that the revisionist and her daughter, the victim had never given any consent for DNA Test which is extremely necessary in such cases. Only because the learned Appellate Court observed that the DNA Test will determine the paternity of the child and would clarify the issue. Such DNA Test cannot be performed without consent of the prosecutrix. The issue involved in the prosecution of the opposite party no. 2 was not whether her child was son of the accused. The issue was whether the prosecutrix was raped