The Court can order a DNA test under Section 53A of CrPC even at a later stage, and the exercise of power under Section 311 Cr.P.C. should ensure a just decision without causing prejudice to the accused.

JUDGMENT :

1. This Criminal Revision under Section 397 of CrPC has been filed against the order dated 03/03/2021 passed by 6th Additional Sessions Judge, Gwalior in Sessions Trial No.545/2017, by which the Trial Court has directed for conducting DNA Test.

2. The necessary facts for disposal of present revision in short are that the applicant is facing trial for offence under Sections 376, 376-A, 376(2)(n), 506, 454 of IPC. After the defence evidence was closed and the case was fixed for final arguments, the Trial Court found that as per the FSL report (ExB), human sperm and semen were found on the undergarments of the prosecutrix. Accordingly, the Trial Court, in the light of the direction given by a Coordinate Bench of this Court (Principal Bench) in the case of Raja Burman @ Rahu vs. The State of Madhya Pradesh by order dated 4th May, 2016 passed in MCRC 6476/2016, came to a conclusion that it would be necessary for the just decision of the Court that the DNA of the applicant may be compared with the DNA in the human sperm and semen found on the undergarments of the prosecutrix.

3. Challenging the order passed by the Court below, it is submitted by the Counsel for the applicant that the Court cannot exercise its power under Section 311 of CrPC for filling up the lacuna at the last stage.

4. Heard the learned Counsel for the applicant.

5. Section 53A of CrPC reads as under:-

''53A.Examination of person accused of rape by medical practitioner.-(1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.

(2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely;-

(i) the name and address of the accused and of the person by whom he was brought,

(ii) the age of the accused,

(iii) marks of injury, if any, on the person of the accused,

(iv) the description of material taken from the person of the accused for DNA profiling, and.

(v) other material particulars in reasonable detail.

(3)The report shall state precisely the reasons for each conclusion arrived at.

(4) The exact time of commencement and completion of the examination shall also be noted in the report.

(5) The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of Sub-Section (5) of that section.

6. The Supreme Court in the case of Krishan Kumar Malik vs. State of Haryana, reported in (2011) 7 SCC 130 has held as under:-

''44. Now, after the incorporation of Section 53 (A) in the Criminal Procedure Code, w.e.f. 23.06.2006, brought to our notice by learned counsel for the respondent State, it has become necessary for the prosecution to go in for DNA test in such type of cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in Cr.P.C. prosecution could have still resorted to this procedure of getting the DNA test or analysis and matching of semen of the appellant with that found on the undergarments of the prosecutrix to make it a foolproof case, but they