The Jharkhand High Court had denied issuing directions for a DNA test in the POCSO case. A single-judge bench comprising Hon’ble Justice Sanjay Kumar Dwivedi held that for deciding the case under Section 376 of IPC, the paternity of the child is not relevant as the same can be decided on oral evidence. The Bench also observed that DNA testing could not be directed as a matter of course despite being permissible under the law as it invades the unwilling party’s right to privacy and personal liberty.
Brief Facts:
The petition was filed against the order dated 15.09.2022 in which the learned Special Judge, POCSO, had rejected the plea of the Petitioner to direct the DNA examination of the petitioner and the child in POCSO Case No.89 of 2020. The petitioner highlighted that when he earlier approached this court against the above order, this Court had granted him the liberty to file a petition for conducting a DNA test of the child at the proper stage. Therefore, the present petition was filed seeking direction for a DNA examination.Contentions of the Petitioner:
The learned Counsel submitted that the prosecution evidence had closed after examining their nine witnesses, and the statement of the petitioner was recorded under Section 313 of the Code of Criminal Procedure (Cr.P.C.) in which he stated that he wanted a DNA test. The Counsel had placed his reliance upon the Apex Court judgment in Sharda v. Dharmpal; [(2003) 4 SCC 493] to argue that if the respondent avoids medical examination on the ground that it violates his/her right to privacy or personal liberty as enshrined under Article 21 of the Constitution of India, then it is the onus of the Court to reconcile the competing interests by balancing the interests involved. Therefore, he finally submitted that the impugned order is bad in law and sought permission to conduct the DNA test so that the question of the paternity of the child could be decided.
Contentions of the Respondent:
It was contended by the learned Counsel of the Respondent that in each and every case, a DNA test is not a rule. He further argues that in a case of rape, medical evidence is not always final but plays the role of secondary evidence. To buttress his claim that there is no illegality in the impugned order, he had placed reliance upon the plethora of judgments where the Supreme Court (“SC”) held that “non-examination of doctor in a case of rape is not always fatal to the prosecution when the testimony of the prosecutrix inspires confidence of the Court”.
Observation of the Court ;
This Court concurred with the submissions of the respondent that in a case of rape, medical evidence plays the role of secondary evidence and cannot be allowed in a routine way. The Court had referred to the leading decision on a similar issue in the case of Goutam Kundu v. State of West Bengal; [1993 (3) SCC 418]¸wherein the SC held that no person could be compelled to give a sample of blood for analysis against their will.
This Court had also referred to the case of Ashok Kumar v. Raj Gupta; [(2022) 1 SCC 20], in which the SC held that a person’s right to privacy and personal liberty impinges when compelled to undergo a DNA test. The judgement relied by the petitioner was distinguished by this Court due to the different subject matter. Therefore, the Court concluded that there was no illegality in the impugned order.
The decision of the Court:
The petition seeking the conduction of a DNA test was dismissed on the reasoning that merely because something is permissible under the law cannot be directed as a matter of course.
Case Title: Afan Ansari vs The State of Jharkhand and another
Coram: Hon’ble Justice Sanjay Kumar Dwivedi
Case no.: W.P. (Cr.) No. 536 of 2022
Advocate for the Petitioner: Mr. Bibhash Sinha
Advocate for the Respondent no. 1 to 3: Mr. Ashok Kumar Yadav, Mr. Rituraj and Ms. Priyanka Boby
Read Judgment;
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(With input from news agency language)
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