Page No.# 1/5 vs The State Of Assam And Anr
2025 Latest Caselaw 7678 Gua

Gauhati High Court

Page No.# 1/5 vs The State Of Assam And Anr on 26 September, 2025

                                                                         Page No.# 1/5

GAHC010202022019




                                                                   2025:GAU-AS:13440

                             THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : Crl.Pet./972/2019

           AJAY TALUKDAR
           S/O LATE BHABAN TALUKDAR, VILL-UJAN ULUA, P.S.-PATACHARKUCHI,
           DIST-BARPETA, ASSAM



           VERSUS

           THE STATE OF ASSAM AND ANR.
           REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

           2:RABIN TALUKDAR
            S/O LATE DHONESWAR TALUKDAR
           VILL-UJAN ULUA
            P.S.-PATACHARKUCHI
            DIST-BARPETA
           ASSA

Advocates for the petitioner : Mr. S Hoque


Advocate for the respondent: Mr. B Sharma, Ld. Legal Aid

Counsel for respondent No. 2.

                        Mr. B Sharma, Ld. Additional Public Prosecutor

                                        BEFORE
                  HON'BLE MR. JUSTICE SANJEEV KUMAR SHARMA


Date of Hearing          :      19.09.2025.


Date of Judgment         :     26.09.2025.
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                          JUDGMENT AND ORDER (C.A.V)
26.09.2025

1. Heard Mr. S Hoque, learned counsel for the petitioner. Also heard Mr. B Sharma, learned Additional Public Prosecutor for the State of Assam and Mr. B Sharma, learned Legal Aid Counsel appearing on behalf of respondent No. 2.

2. This is an application under Section 482 of the Cr.P.C for setting aside and quashing the order dated 26.04.2019 passed by the Ld. Additional Sessions Judge, Bajali in Special POCSO Case No. 11/2016 whereby the prayer of the petitioner/accused for conducting DNA test upon the child allegedly fathered by the petitioner with the victim of the case was rejected.

3. The brief of the case is that on 18-12-2016, the Opp. Party No.2, Shri Rabin Talukdar had lodged an FIR before the In-Charge, Patacharkuchi Police Station stating inter-alia that-"the TA complainant's own daughter XXX is minor aged about 15 years. The accused and complainant are the neighbor of the same village. The daughter of the complainant being a minor girl, takin chance, the accused person had established physical relationship with her 3 (three) months ago by enticing and threatening her in various manner and also threatened her to kill if she disclose the same before anybody. The daughter of the complainant did not disclose the incident before anybody being ignorant of the incident and also at the threatening of the accused. Taking chance of the same, the accused had repeatedly committed the same. At the irregular menstrual of the daughter of the complainant, while the wife the complainant had asked the daughter, she had disclosed everything and immediately after medical examination, it is found that XXX is pregnant. While the complainant asked the accused person about the incident, the accused person had become aggressive and also threatened to kill them if they ask the accused about the incident in future."

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4. Subsequently the case was investigated and charge-sheeted where after the trial was held and after conclusion and recording of the defence statement, the petitioner/accused submitted an application being petition no. 1038/2017 before the Ld. Trial Court praying for DNA test upon the victim's baby as well as the victim to prove the veracity of the allegations. The same was rejected by the Ld. Trial Court.

5. The Ld. Trial Court observed that if the DNA results would be positive and in favour of the accused, the fate of the child would have to be considered and considering the same in light of the decision of the Hon'ble Supreme Court in the case of Ramkanya Bai v. Bharatnam in Civil Appeal No. 7018 of 2009, wherein the Hon'ble Supreme Court did not allow the DNA test of the child in a case of such nature, the prayer of the accused/petitioner was rejected.

6. Mr. S Hoque, learned counsel for the petitioner has relied upon a decision of the Division Bench of this Court in Sudeep Biswas @ Bura v. The State of Assam and Another 2024 (1) GauLT 37 wherein it has been observed after reviewing a catena of decisions of the Apex Court that :

"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 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.

In the case of Dipanwita Roy Vs. Ronobroto Roy, reported in 2015 1 SCC 365, the Apex Court has allowed the DNA test to be done with regard to the Page No.# 4/5

paternity of the child born to his wife, to establish whether or not the husband was the father of the child, so as to prove the alleged infidelity of the wife. It also held that in view of the issue involved in the above case, Section 112 of the Evidence Act was not strictly attracted to the case.

As can be seen even in civil cases regarding disputes with regard to infidelity of the wife and paternity of a child, the Supreme Court has allowed DNA test to be done, after balancing the interests of the parties, keeping in view the facts and circumstances of a case. The case in hand is however different, as it pertains to a criminal case and in the view of this Court, the right to preserve individual privacy claimed by the appellant, has to give way to the object of finding out the truth, otherwise the same could amount to sacrificing the cause of justice. Thus, in criminal cases, the requirement of finding out the truth would over-ride the stand of the appellant, in not agreeing to undertake a DNA test.

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 denled raping her.

7. In the light of the law laid down as discusssed above, I am of the view that additional evidence is required to be taken in terms of Section 391 Cr.P.C, as DNA test Page No.# 5/5

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, the learned Trial Court is directed 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.

8. Upon receipt of the report of the DNA test, the Ld. Trial Court shall proceed as per procedure envisaged by law whereafter, the Ld. Trial Court shall decide the case.

9. Petition stands allowed accordingly.

10. Send back the T.C.R.

JUDGE

Comparing Assistant