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2016 Supreme(MP) 610
IN THE HIGH COURT OF MADHYA PRADESH
Anand Pathak, J.
Mulayam Singh v. State of M.P.
Miscellaneous Criminal Case No.9189 of 2016 (Gwalior);
Decided on 5.10.2016.
Arun Pateriya for petitioner;
R.K. Awasthy, Public Prosecutor for respondent/State.
Headnote:Criminal P.C., 1973 -- Ss.482, 53A(2)(iv), 164A(2)(iii) and 233(3) -- Penal Code, 1860 -- S.376 -- seeking direction for conducting DNA test of petitioner -- trial Court and Sessions Court rejected application -- maintainability of -- prosecution can compel such person to undertake such examination at any stage of investigation and report can be produced -- result of test if comes in negative or favouring accused then other evidence on record will have to be considered by trial Court -- for better investigation and effective prosecution accused must be put to DNA test for clinching evidence against accused and in case of false implication -- when accused himself asked for such test -- it would be in interest of justice if direction is given to prosecution agency to conduct DNA test over petitioner -- orders dated 22.5.2015 and 13.10.2015 set aside -- accused given liberty to move fresh application before trial Court for appropriate directions -- petition allowed.
Held : For better investigation and effective prosecution in a case where semen is found over the person/clothes of prosecutrix, the investigating authority must resort to section 53A of the Code and must put the accused to DNA test so as to have a clinching evidence against the accused. It is equally applicable over the cases where false implication is apparent and writ large. In a case where an innocent has been implicated, section 53A of CrPC would be a provision advancing fair trial.
In the present case; when petitioner accused himself asking for DNA test would be in the interest of justice if a direction is given to the prosecution/investigating agency to conduct DNA test over the petitioner-accused as per the procedure adopted in this regard and in accordance with law. (2014)5 SCC 509, AIR 2014 SC (Cr.) 1124, (2014)4 SCC 69, (2014)5 SCC 108, (2011)7 SCC 130, 2015 CrLJ 1858, (2016) SCC Online SC 604 and Miscellaneous Criminal Case No.6476 of 2016 dated 4.5.2016 referred to.
naM izfdz;k lafgrk] 1973 & /kkjk 482] 53d¼2½¼4½] 164d¼2½¼3½ rFkk 233¼3½ & naM lafgrk] 1860 & /kkjk 376 & ;kph dk MhŒ,uŒ,Œ ijh{k.k lapkfyr djus ds funs'k pkguk & fopkj.k U;k;ky; rFkk l= U;k;ky; us vkosnu [kkfjt fd;k & dh iks"k.kh;rk & vfHk;kstu ,sls O;fDr dks ,slk ijh{k.k tk¡p ds fdlh Hkh izdze ij djkus ds fy, ck/; dj ldrk gS rFkk fjiksVZ is'k dh tk ldrh gS & ijh{k.k dk ifj.kke ;fn udkjkRed ;k vfHk;qDr ds fgr esa vkrk gS rc vfHkys[k ij vU; lk{; fopkj.k U;k;ky; }kjk fopkj esa yh tk,xh & csgrj tk¡p rFkk izHkkoh vfHk;kstu ds fy, & vfHk;qDr dk mlds fo:} lk{; lqfuf'pr djus rFkk >¡wBk vkfyIr djus ds ekeys esa MhŒ,uŒ,Œ ijh{k.k djkuk pkfg, & tcfd vfHk;qDr Lo;a us ,sls ijh{k.k ds fy, dgk & ;g U;k; ds fgr esa gksxk ;fn vfHk;kstu ,stsalh dks ;kph dk MhŒ,uŒ,Œ ijh{k.k lapkfyr djus ds fy, funs'k fn;k tkrk gS & vkns'k fnukad 22-5-2015 rFkk 13-10-2015 vikLr & vfHk;qDr dks fopkj.k U;k;ky; ds le{k leqfpr funs'k ds fy, u;k vkosnu izLrqr djus ds fy, Lora=rk iznku dh xbZ & ;kfpdk eatwjA
vfHkfu/kkZfjr % csgrj tk¡p rFkk izHkkoh vfHk;kstu ds fy, ,d ekeys esa tgk¡ vfHk;ksD=h ij ;k mlds oL=ksa ij oh;Z ik;k tkrk gS] tk¡p izkf/kdkjh dks lafgrk dh /kkjk 53d dk vkJ; ysuk pkfg, rFkk vfHk;qDr dks mlds fo:} lk{; lqfuf'pr djus fy, mls MhŒ,uŒ,Œ ijh{k.k ds fy, j[kuk pkfg,A ;g ekeyksa esa cjkcj ls ykxw gS tgk¡ >¡wBh vkfyIrrk izdV gS rFkk ,sls ekeys esa tgk¡ funksZ"k dks vkfyIr fd;k x;k gS] naM izfdz;k lafgrk dh /kkjk 53d mfpr fopkj.k ds fy, mica/k gksxkA
orZeku ekeys esa] tc ;kph vfHk;qDr Lo;a MhŒ,uŒ,Œ ijh{k.k ds fy, dg jgk gS] ;g U;k;fgr esa gksxk ;fn vfHk;kstu ,stsalh dks ;kph@vfHk;qDr dk MhŒ,uŒ,Œ ijh{k.k lapkfyr djus ds fy, fof/k vuqlkj rFkk bl laca/k esa viukbZ xbZ izfdz;k ds vuqlkj funs'k fn;k tkrk gSA ¼2014½ 5 ,l lh lh 509] , vkb vkj 2014 ,l lh ¼fdz-½ 1124] ¼2014½ 4 ,l lh lh 69] ¼2014½ 5 ,l lh lh 108] ¼2011½ 7 ,l lh lh 130] 2015 lhvkj ,y ts 1858] ¼2016½ ,l lh lh vkWuykbZu ,l lh 604 rFkk izdh.kZ vkijkf/kd ekeyk dz- 6476 lu~ 2016 4-5-2016 fufnZ"VA
Heard with consent.
1. The present petition under section 482 of the Code of Criminal Procedure, 1973 has been preferred by the petitioner-accused invoking extraordinary jurisdiction of this Court whereby the petitioner is seeking direction to the trial Court for conducting DNA test of the present petitioner-accused who is facing the charge of section 376 of IPC before the trial Court. He is further aggrieved by the order dated 22.5.2015 whereby the application preferred by the present petitioner for DNA test of himself has been rejected on the ground that the case has not been committed before the competent Court. He is further aggrieved by the order dated 13.10.2015 whereby the Sessions Court (after committal of case to the Sessions Court) has also rejected the application.
2. Learned counsel for the petitioner submits that petitioner is facing charge of section 376 of IPC before the Sessions Court, Mungaoli District Ashoknagar in respect of alleged incident taken place on 17.3.2015 wherein according to prosecution, petitioner-accused has committed rape over the prosecutrix. According to him, he is innocent and has been framed by the prosecutrix/complainant with the help of prosecution because of previous animosity.
3. After the alleged incident, the prosecution has referred the prosecutrix for medical examination which was duly undertaken by the medical officer, Mungaoli and gave report vide Annexure P-2. Internal garment (Petticoat), pubic hair and vaginal swab have been preserved in three sets, in sealed covers.
4. Learned counsel for the petitioner through the application so preferred before the JMFC, Mungaoli, later on before the Sessions Court, Mungaoli offered himself for DNA testing/DNA profiling because according to him, he is innocent and has not committed any act for which he has been tried. Therefore, if the DNA test is conducted over the petitioner then it can be matched with the preserved material of the prosecutrix and would help all the parties concerned to reach to a logical conclusion. Counsel for the petitioner relied upon section 53A of the CrPC and tried to support the arguments. According to him, learned Courts below have erred in passing the orders, rejecting the application for DNA test. He is invoking the extraordinary jurisdiction of this Court for a direction to the trial Court to conduct DNA test. According to the counsel for petitioner, charge has been framed and trial is at evidence stage.
5. Per contra, learned counsel for the respondents/State opposed the prayer of the petitioner on the ground that the Magisterial Court had no authority to pass the order for DNA test because matter had to be committed to the Sessions Court. While defending the order dated 13.10.2015 passed by Sessions Court, he further submits that DNA test report is not conclusive in nature. It is not necessary that semen can be found over the person of prosecutrix as insertion of penis itself is sufficient for commission of offence of rape. Similarly, the stage of defence evidence is not reached yet, therefore, DNA test can not be conducted. Counsel for the State relied upon the order dated 13.10.2015 passed by the Sessions Court (First Additional Sessions Judge, Mungaoli) wherein the Sessions Court has dismissed the application also on the ground that at the time of defence evidence, the petitioner would be at liberty to submit the said application.
6. Learned counsel for the respondent also raised the ground in relation to insufficiency of infrastructure and inadequacy of DNA lab to conduct the said test, therefore, according to the respondent, direction for DNA test would be a futile exercise in absence of any DNA lab in the State. On these grounds, counsel for the State prayed for dismissal of the petition.
7. Heard learned counsel for the parties and perused the documents and case diary.
8. Before adverting to the legal question, it is imperative to understand the Genetics of DNA Testing Method to analysis DNA evidence. F
