Gauhati High Court
Md. Habibur @ Habibulah Rahman vs The State Of Assam And Anr on 8 August, 2024
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
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GAHC010157572024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./934/2024
MD. HABIBUR @ HABIBULAH RAHMAN
S/O LATE HAJIBUULAH
VILL- KAIBARTRA DOLONI GAON
P.S. DIMOW
DIST. SIVASAGAR, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM
2:SMTI. BUDUNI MURARI
W/O LT. BABU MURARI
VILL- KAIBARTRA DOLONI GAON
P.S. DIMOW
DIST. SIVSAGAR
ASSA
Advocate for the Petitioner : MR. A AHMED, MR A AHMED,U U KHAN
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
ORDER
Date : 08.08.2024
Heard Mr. A. Ahmed, the learned counsel appearing for the petitioner as
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well as Mr. B. Sarma, the learned counsel appearing for the State of Assam.
2. This is an application under section 528 of BNSS, 2023 read with Article
227 of the Constitution of India challenging the impugned order dated
29.07.2024 passed by the learned Additional Sessions Judge, Sivasagar in
Sessions Case No. 131(S-S)/2018.
3. I have considered the submissions made by Mr. Ahmed. I have also gone
through the impugned order.
4. The view of the learned trial court that the prayer of the petitioner that
DNA test should be done to ascertain the paternity of the child is a delaying
tactics, is not applicable in the eye of law.
5. Therefore, the impugned order refusing to hold the DNA test is set aside.
6. Moreover, the learned trial court seems to have hurriedly passed the
impugned order issuing the non-bailable warrant of arrest against the petitioner.
The said order is also set aside. The petitioner shall be allowed to remain on
previous bail.
7. The case is remanded to the learned trial court. The court shall consider
the prayer for DNA test of the child. The trial court shall be guided by the
paragraphs 28, 34 and 35 of the judgment of this Court that was delivered in
Crl. Appeal No. 73/2023.
8. For the sake of convenience, the said paragraphs are quoted hereunder :
"28. The above cases show that there is no bar or restriction in having a
DNA profiling of an accused in a case of rape. In the present case, not
only is there an allegation of rape against the appellant, but the appellant
has been accused of being the father of the child born due to the rape
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inflicted by the appellant. It is quite clear that DNA profiling of the
appellant could prove whether the appellant was the father of the child
born to the victim. As Section 53A Cr.PC allows for examination of a
person accused of rape through DNA profiling on the request of a Police
Officer not below the rank of Sub-Inspector, we do not find any bar or
restriction for this Court to pass a direction for DNA profiling of the
appellant, which would prove whether the appellant was the father of the
child and thus further prove the question whether any rape had been
committed on the victim by the appellant.
34. A perusal of the orders passed by the Supreme Court clearly go to
show that DNA test/profiling is useful and helpful in coming to a decision
with regard to identifying the perpetrator of a crime. The Supreme Court
has in many cases as referred to above, supported the use of DNA
test/profiling. However, it is only in respect of civil cases where the
paternity of a child is in dispute between the married couples that the
Hon'ble Supreme Court has given words of caution that DNA test/profiling
should not be done at the drop of a hat, in view of Section 112 of the
Evidence Act. As stated in the earlier paragraphs, the Supreme Court in
the case of Sandeep Vs. State of U.P. (supra) has accepted the
confirmation that the accused therein was the father of the unborn child,
who had died during the murder of a pregnant woman, determined on the
basis of a DNA test. In the present case, the victim has accused the
appellant of raping her and making her pregnant. In that view of the
matter, we are of the view that the DNA test/profiling would conclusively
prove whether the appellant had fathered the child and whether he had
raped the victim, as he has denied raping her.
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35. In view of the reasons stated above, we are of the view that
additional evidence is required to be taken in terms of Section 391 Cr.P.C,
as DNA test of the appellant and the child born to the victim, would
conclusively prove whether the child has been fathered by the appellant
and whether the appellant was the perpetrator of the rape committed on
the victim. Accordingly, we direct the learned Trial Court to take additional
evidence under Section 391 Cr.PC, by taking steps for ensuring that a DNA
test/profiling of the appellant and the child of the victim alleged to have
been fathered by the appellant, is undertaken, after taking the samples
from the appellant and the child in the presence of the learned Judge of
the learned Trial Court. In this regard, necessary directions may be issued
by the learned Trial Court to the Superintendent of the concerned Jail to
produce the appellant and also to the victim to produce the child. The
learned Trial Court shall ensure all precautions are taken at the time of
taking of samples from the above persons and making sure the samples
are not compromised in any manner. The learned Trial Court shall also
ensure that the persons/institution which is going to conduct the DNA
test/profiling takes all possible precautions so that the entire testing
procedure is not compromised in any manner. The entire exercise should
be conducted at the earliest and preferably within a period of 2 (two)
months from the date of receipt of a copy of this order.
9. With the aforesaid direction, the criminal petition stands disposed of.
JUDGE
Comparing Assistant
