DNA testing is permitted in rape cases to establish paternity and ascertain the truth, with the right to privacy yielding to public interest in justice.

JUDGMENT :

Hon'ble Saurabh Lavania, J.

1. Heard learned counsel for the applicant, learned AGA for the State of Uttar Pradesh and Sri Manoj Kumar Singh, Advocate, who has filed Vakalatnama on behalf of respondent No. 2 in the Court today, which is taken on record.

2. By means of this application, the applicant has sought the following main relief:-

"Wherefore, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to quash the impugned order dated 12.2.2024, passed by the learned Additional Sessions Judge/ Special Judge, POCSO Act, Bahraich, in Special Criminal Case No.90 of 2018; State Versus Waliuddin, arising out of Case Crime No.1479 of 2017, under sections-363, 366,376 (D) I.P.C. and Sections 3/4 of POCSO Act, relating to Police Station-Hardi, District-Bahraich, as contained in Annexure no.2 to this petition, in the interest of law and justice."

3. The facts, which are relevant for disposal of this case, are to the effect that an FIR was lodged against Ateek, Kalimuddin and Khaisal Nisha on 03.10.2017 registered as Case Crime No. 1479 of 2017, under Sections 3 63 , 366 IPC, Police Station-Hardi, District-Bahraich and during investigation, Section 3 76-D IPC and Section 3 /4 POCSO Act were added and thereafter, the charges sheet was submitted before the trial court.

4. It would be apt to indicate here that in the present application, it has not been indicated that when the charges were framed and what is the status of trial, though, it is required for giving overall picture of the pending case. Learned counsel for the applicant while drafting the application, for the reasons best known to him, has not indicated the relevant facts of the case. Accordingly, this Court is not in a position to indicate all facts of the present trial. The facts, which appear from the record, are as under.

(i) As per the case of the prosecution, on 27.09.2017, accused Ateeq abducted minor daughter of the applicant and thereafter accused Ateeq, Waliuddin (respondent No. 2), Akram and Intesar committed gang rape with her. After this incident, the victim gave birth to a male child in the month of September, 2018.

(ii) After recording the statements of witnesses of prosecution including the victim (PW-3) in the trial i.e. Session Trial No. 90/18 (State vs. Waliuddin) arising out of Case Crime No.1479 of 2017, under sections-363, 366,376 (D) I.P.C. and Sections 3 /4 of POCSO Act, Police Station-Hardi, District-Bahraich, an application No. 34-B/1 to 34-B/2 was preferred by the defence/accused namely Waliuddin praying therein for holding DNA test.

5. Before the trial court as also before this Court, the applicant has stated that the application aforesaid was moved with ulterior motive i.e. to delay the conclusion of trial.

6. The trial court, as appears from the impugned order dated 12.02.2024, after considering Section 53(A) Cr.P.C. and observations made by the Hon'ble Apex Court in the judgment passed in the case of K.K. Malik vs. State of Haryana , 2011 SCC (3) (Criminal) 61 and also taking note of oral statement made by the victim before the this Court for getting DNA test in the Government Medical College or Hospital, the trial court allowed the application vide impugned order dated 12.02.2024, relevant portion of which reads as under:-

7. To impeach the findings recorded by the trai