Madras High Court
Kumareshan vs The Inspector Of Police on 25 August, 2021
Crl.O.P.(MD)No.10883 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.ILANGOVAN
Crl.O.P.(MD) No.7792 of 2021
and
Crl.M.P.(MD) No.3958 of 2021
Kumareshan ... Petitioner
Vs.
The Inspector of Police,
All Women Police Station,
Pudukkottai.
Crime No.1 of 2018 ..Respondent
PRAYER: Criminal Original Petition is filed under Section 482 of
Cr.P.C, to call for the records relating to the order in Cr.M.P.No.167 of
2021 in Spl.S.C.No.10 of 2018 dated 27.04.2021 on the file of the
learned Sessions Judge, Mahila Court, Pudukkottai and set aside the
same.
For Petitioner : Mr.S.Karthikeyan
For Respondent : Mr.R.M.Anbunithi
Additional Public Prosecutor (Crl.Side)
ORDER
This petition is filed seeking to set aside the order passed in
Cr.M.P.No.167 of 2021 in Spl.S.C.No.10 of 2018 dated 27.04.2021 on
the file of the learned Sessions Judge, Mahila Court, Pudukkottai.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.10883 of 2021
2.The facts in brief are as follows:-
3.The petitioner is facing charge in Crime No.1 of 2018, which
culminated in Spl.S.C.No.10 of 2018 on the file of the learned Sessions
Judge, Mahila Court, Pudukkottai, for the offences punishable under
Sections 5(j)(ii) r/w Section 6 of POCSO Act, 2012. The charge against
this petitioner is that the victim girl was doing 10th standard. On
31.08.2017 at about 06.00 pm., this petitioner invited the victim girl to
Whip Grove and committed penetrative sexual assault with the victim
girl by threatening her and coercing her by giving false promise to marry
her. So, because of the penetrative sexual assault, the victim girl has
become pregnant.
4.The trial proceeding is started and on the side of the prosecution,
evidence was over and the case has been listed for the defence side
witnesses. During the course of trial proceedings, at the instance of the
learned Sessions Judge, Mahila Court, Pudukkottai, the respondent
police took steps for subjecting the petitioner to DNA profiling on
15.11.2019. It was also conducted on 05.03.2020. DNA report was
received and the same was also informed to the petitioner and his
counsel.
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Crl.O.P.(MD)No.10883 of 2021
5.After that, the trial proceeding proceeded and as stated earlier, on
17.09.2020, the prosecution evidence was over and the petitioner was put
under 313 (1) of Cr.P.C. proceedings and later, the matter was posted to
23.12.2020 for examination of the defence side witnesses. Later, it was
adjourned to various dates. At that time, the petitioner filed the impugned
petition seeking a direction to conduct 2nd DNA test. This petition came
to be filed on 02.03.2021.
6.After hearing both sides, this petition came to be dismissed by
the trial Court by observing that sufficient opportunity was available to
the petitioner after receiving the DNA report on 17.09.2020, the
petitioner by keeping quite till the completion of the prosecution side
evidence and participated in the trial proceedings. Thereafter, the present
petition came to be filed by this petitioner.
7.Heard both sides.
8.As stated above, originally DNA test was not conducted upon the
petitioner by the prosecution. But later, at the instance of the directions
issued by the trial Court, DNA test was conducted and the report of the
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Crl.O.P.(MD)No.10883 of 2021
same was also received on 17.09.2020, wherein, the chance of the
petitioner being the biological father of the child, namely, Ridhthiga, who
was born to the victim girl, was found to be 99.999999999%. So, the
question is whether the 2nd DNA test can be conducted at the request
made by the petitioner.
9.The learned counsel for the petitioner would rely upon the
judgment for the purpose of arguing that the 2 nd DNA test is permissible
and available to the accused person to prove his innocence. In the case of
Vishal Motising Vasava Vs. State of Gujarat reported in 2004 CriLJ
3086, the 2nd DNA test was requested. The 1st DNA test was found to be
negative. The petitioner, namely, the complainant insisted 2nd DNA test to
be conducted by a particular laboratory situated at Hyderabad.
10.The Court after considering the factual situation and position
came to a conclusion that the 2nd DNA test is permissible, but at the same
time, it was observed that the petitioner cannot insist a particular
laboratory to take and undertake DNA profiling. So, according to the
learned counsel for the petitioner, this case squarely applicable to the
facts of the present case and the petitioner herein is entitled for the relief.
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Crl.O.P.(MD)No.10883 of 2021
11.In another case in Crl.O.P.(MD) No.19734 of 2014 dated
03.02.2015 (S.Veeralakshmi Vs. The Superintendent of Police,
Madurai and others), similar situation arose. So, this Court on the basis
of the earlier judgment reported in (2005) 3 MLJ 483 (Sakthivel Vs.
Karpagam), had held that simply because the expert opinion is not in
favour of the particular individual, he cannot seek repeated opinions by
different persons.
12.Under what circumstances the 2nd DNA test is permissible has
also been stated that the defect must be pointed out in the earlier test. So,
the perusal of the catena of judgments shows that the 2nd DNA test cannot
be sought or granted as a matter of right. The party, who seeks 2 nd DNA
test, must make out a specific case of serious defects or doubts not only
in the process of DNA profiling but also during the process of sample
taking. So, the question, which arises for consideration in this petition, is
that whether this petitioner made out even a prima facie doubt or defect
in the earlier DNA profiling process including the process of taking the
sample.
13.The affidavit filed by this petitioner in support of this petition
shows that nothing has been stated. It has been simply stated that the
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Crl.O.P.(MD)No.10883 of 2021
earlier report is not acceptable to the petitioner. It creates doubts.
Somewhere and somehow the mistake has been committed. So, a reading
of this shows that it is vague in nature. The party, who comes to the Court
seeking specific relief cannot be expected to speak in a language, which
is not understandable and clear in nature. Specific doubts or defects must
be pointed out. The petitioner did not object to the sample taking process
either at the time of completion of the process or after receiving the
report. He waited for one year to file such petition.
14.As mentioned above, if the sample is not in favour of the
petitioner, he cannot go and seek retest by different persons, which is not
permissible even as per the judgment cited by this petitioner as noted
above. I find that there is no merits in this matter.
15.Under the guise of giving opportunity to the petitioner to prove
his innocence, the Courts cannot be expected to make a roving enquiry
and test. So, I am of the considered view that the ultimate conclusion that
has been reached by the trial Court does not suffer from any illegality.
So, this petition deserves to be dismissed and accordingly, the same is
dismissed. The order passed by the trial Court in Cr.M.P.No.167 of 2021
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.10883 of 2021
in Spl.S.C.No.10 of 2018 dated 27.04.2021 is hereby confirmed.
Consequently, connected miscellaneous petition is closed.
Index : Yes/No 25.08.2021
Internet : Yes/No
mm
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the copy of
the order that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
To
1.The Sessions Judge,
Mahila Court, Pudukkottai.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
Crl.O.P.(MD)No.10883 of 2021
G.ILANGOVAN. J.
mm
Crl.O.P.(MD)No.7792 of 2021
25.08.2021
https://www.mhc.tn.gov.in/judis/
