Madhya Pradesh High Court

Rahul Pandey vs The State Of Madhya Pradesh on 6 April, 2021

Author: Gurpal Singh Ahluwalia

           THE HIGH COURT OF MADHYA PRADESH 1
                Criminal Revision No. 1020 of 2021
               Rahul Pandey vs. State of MP and Anr.

Gwalior, Dated : 06/04/2021

         Shri DP Singh, Counsel for the applicant.

         Smt. Uma Kushwah, Panel Lawyer for the respondent No.1/

State.

This Criminal Revision under Section 397 of CrPC has been

filed against the order dated 03/03/2021 passed by 6 th Additional

Sessions Judge, Gwalior in Sessions Trial No.545/2017, by which the

Trial Court has directed for conducting DNA Test.

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.

Challenging the order passed by the Court below, it is submitted

by the Counsel for the applicant that the Court cannot exercise its THE HIGH COURT OF MADHYA PRADESH 2 Criminal Revision No. 1020 of 2021 Rahul Pandey vs. State of MP and Anr.

power under Section 311 of CrPC for filling up the lacuna at the last

stage.

Heard the learned Counsel for the applicant.

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- THE HIGH COURT OF MADHYA PRADESH 3 Criminal Revision No. 1020 of 2021 Rahul Pandey vs. State of MP and Anr.

Section (5) of that section.

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 did not do so, thus they must face the consequences.''

The Supreme Court in the case of Siva Vallabhaneni vs. State

of Karnataka and Another, reported in (2015) 2 SCC 90 has held as

under:-

''12. It is urged by learned counsel for A1 that application dated 18-6- 2012 filed by the prosecution under Section 53-A read with Section 173(8) Cr.P.C. was not tenable inasmuch as the accused was earlier medically examined. It is submitted that Section 53-A Cr.P.C. speaks of examination of person accused of rape, by medical practitioner. It must be done immediately after the arrest. The direction issued to A1 to submit himself to medical examination is illegal. We feel that this submission is raised to avoid medical examination. It is the prime duty of the accused to cooperate with the investigating agency. It is pointed out by the State counsel that Section 53-A does not put fetters on the investigating agency to get the accused examined at a later stage. It is submitted that earlier examination was conducted to find out whether there are any marks of violence on the accused. We do not want to comment on this. If the accused are entitled to get any benefit because of the delayed medical examination, they can surely urge that point in the trial. But they must submit themselves to medical examination. This THE HIGH COURT OF MADHYA PRADESH 4 Criminal Revision No. 1020 of 2021 Rahul Pandey vs. State of MP and Anr.

submission is, therefore, rejected.''

Thus, it is clear that a direction for conducting DNA as per the

provisions of Section 53A of CrPC can be given even at a later stage.

The Supreme Court in the case of Rajaram Prasad Yadav vs.

State of Bihar and Another, reported in (2013) 14 SCC 461 has held

as under:-

''17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:

(17.1). Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?

(17.2.) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.

(17.3) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.

(17.4) The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.

(17.5) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.

(17.6) The wide discretionary power should be exercised judiciously and not arbitrarily.

(17.7) The Court must satisfy itself that it was in every respect essential to examine such a witness or to THE HIGH COURT OF MADHYA PRADESH 5 Criminal Revision No. 1020 of 2021 Rahul Pandey vs. State of MP and Anr.

recall him for further examination in order to arrive at a just decision of the case.

(17.8) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.

(17.9) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.

(17.10) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.

(17.11) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.

(17.12) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.

(17.13) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.

(17.14) The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.'' THE HIGH COURT OF MADHYA PRADESH 6 Criminal Revision No. 1020 of 2021 Rahul Pandey vs. State of MP and Anr.

The Supreme Court in the case of Rajendra Prasad vs.

Narcotic Cell, reported in (1999) 6 SCC 110 has held as under:-

''7. It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act, 1872 by saying that the court could not ''fill the lacuna in the prosecution case''. A lacuna in prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage ''to err is human'' is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as the lacuna which a court cannot fill up.''

Further, a Coordinate Bench of this Court (Principal Bench) in

the case of Raja Burman @ Rahu (supra) has held as under:-

''The police is directed that in every case under Section 376 of I.P.C.:-

(a) under which the doctor preparing the MLC of the prosecutrix prepares vaginal slides and clothing of the prosecutrix, which upon test by the FSL confirms the presence of human sperm then such slides must then be sent for DNA verification with the blood sample of the suspect.

(b) where the prosecutrix is rendered pregnant on account of the rape and if birth takes place, then a DNA verification be sought to ascertain paternity of the child which will again either confirm or exclude the suspect.

If the foetus is aborted, then the tissue sample of the foetus be tested alongwith the sample of the suspect to see if they match, and

(c) in the event of the death of the prosecutrix during pregnancy, then also procedure enunciated in (b) to be followed.''

If the facts of the case are considered, then it is clear that in the

FSL report, human sperm and semen were found on the undergarments THE HIGH COURT OF MADHYA PRADESH 7 Criminal Revision No. 1020 of 2021 Rahul Pandey vs. State of MP and Anr.

of the prosecutrix. In the light of Section 53A of CrPC holding a DNA

Test is essential and if the Court comes to a conclusion that in the light

of the judgment passed by a Coordinate Bench of this Court (Principal

Bench) in the case of Raja Burman @ Rahu (supra) as well as in the

light of Section 53A of CrPC, DNA test is essential for just decision of

the case, then it cannot be said that the Trial Court has tried to fill up

the lacuna.