The High Court of Calcutta, while dismissing a petition filed for setting aside the impugned order dated 16.01.2017 as well as quashing the proceedings pending before the Learned Additional Sessions, held that though the DNA report shows the present petitioner is not the biological father of the female baby, the accused cannot be discharged because a DNA analysis report cannot be said to be the conclusive evidence regarding rape and can only be used as corroborative evidence in the trial.
Brief Facts:
The accused filed an application for discharge from the Criminal Case arising out of a Case registered under Sections 376(2)(i)/506 of the IPC and Section 4 of the POSCO pending before the Learned Additional Sessions Judge on the ground that the DNA Report, collected from CFSL, established that the present accused/petitioner is not the biological father of the child born to the victim. The learned Additional Sessions Judge ruled against the accused. Being aggrieved by and dissatisfied with the said rejection order dated 16.01.2017, the present petitioner/accused filed this revisional application
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner submitted that the petitioner is totally innocent. The DNA Report of CFSL corroborated such fact. The DNA report clearly indicates the present petitioner is not the biological father of a female baby. In view of the DNA report and the entire facts, the proceeding deserves to be quashed.
Contentions of the Respondent:
The learned counsel appearing on behalf of the Respondent submitted that the learned Court below rightly rejected his prayer for discharge. The accused person raped the victim in the absence of her parents on several occasions and on different dates. The allegation of rape and determining the biological father of the child are two different issues. It is true that the DNA report of the CFSL indicates that the petitioner is not the biological father of the female baby but an allegation of rape only can be decided by adducing evidence from both sides.
Observations of the court:
The court noted that the statement of the victim was recorded under Section 164 of the CrPC. The present petitioner had committed rape upon the victim not only on a single day but also on several occasions on different dates. The facts in the case diary establish a prima facie case of rape or penetrative sexual assault as well as threat perception against the present petitioner.
The Court observed that though the DNA report shows the present petitioner is not the biological father of the female baby, only on such scientific report, the accused cannot be discharged from a case where direct evidence is apparent from the Case Diary. Allegation of rape may be proved by substantive evidence and to prove substantive evidence, leading evidence from both sides are essential. At this initial stage, the accused cannot be discharged only on the basis of a scientific report i.e. DNA Report because a DNA analysis report cannot be said to be the conclusive evidence regarding rape and can only be used as corroborative evidence in the trial and it is not clinching evidence.
The decision of the Court:
The Calcutta High Court, allowing the petition, held that the rejection of prayer for discharge of the accused person only on the ground that he is not the biological father of the female baby as per the DNA Test Report is correct, legal, and valid.
Case Title: Rabi Das @ Rabindra Nath Das v The State of West Bengal & Anr.
Coram: Hon’ble Justice Ajay Kumar Gupta
Case No.: C.R.R. 649 of 2017
Advocate for the Petitioner: Mr. Amal Krishna Samanta
Advocate for the Respondent: Mr. Bibaswan Bhattacharya
Read Judgment @LatestLaws.com
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