Abdurahiman v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 10TH DAY OF JULY 2013/19TH ASHADHA, 1935** ## **Crl.Rev.Pet.No. 2329 of 2012 ()** **------------------------------------------CRL.M.P. NO.305/2012 IN SC 55/2011 of PRL. ASSISTANT SESSIONS COURT, KOZHIKODE. CMP 3649/2000 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I,THAMARASSERY .** **.....** **REVISION PETITIONER(S): PETITIONER** **---------------------------------------------------------** **ABDURAHIMAN, AGED 49 YEARS, S/O.LATE KOYATTY, PADINCHARAYIL HOUSE, PARANNUR AMSOM PUNNUR CHERUPALAM DESOM, P.O PALAM VIA NARIKUNNI KOZHIKODE TALUK.** **BY ADVS.SRI.K.M.FIROZ SMT.M.SHAJNA** **RESPONDENT(S)/RESPONDENT:** **------------------------------------------------** **THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KODUVALLI POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.ROY THOMAS** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **tss** ## **CRRP. NO. 2329/2012** ## **APPENDIX** ## **PETITIONER'S ANNEXURES** ## **A1:- CERTIFIED COPY OF THE ORDER DTD. 12/10/2012 IN CMP. 305/2012 IN SC. 552011 PASSED BY PRINCIPAL ASSISTANT SESSIONS COURT, KOZHIKODE.** ## **A2:- COPY OF THE COMPLAINT SUBMITTED BY THE DEFACTO COMPLAINANT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE OURT, THAMARASSERY IN CMP. NO.3649/2000.** **A3:- COPY OF THE APPLICATION AND THE AFFIDAVIT DTD. 20.9.2006 FILED BY THE PETITIONER AS CMP 305/2006 PRAYING FOR CONDUCTING DNA TEST.** **A4:- COPY OF THE DEPOSITION STATEMENT OF PW1 RECORDED BY THE PRINCIPAL ASSISTANT SESSIONS COURT, KOZHIKODE IN SC. 55/2011.** **A5:- COPY OF THE STATEMENT OF THE PETITIONER UNDER SECTION 313 OF THE CR.P.C. RECORDED BY THE PRINCIPAL ASSISTANT SESSIONS COURT, KOZHIKODE IN SC 55/2011.** **A6:- COPY OF THE APPLICATION , CMP.305/2012 DTD. 11.7.20132 UNDER SECTION 233 OF THE CODE OF CRIMINAL PROCEDURE IN SC 55/23011 FILED BY THE PETITIONER BEFORE THE PRINCIPAL ASSISTANT SESSIONS COURT, KOZHIKODE.** ## **RESPONDENT'S ANNEXURES** ## **NIL** **TRUE COPY** ## **P.A. TO JUDGE** **tss** ## P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - Crl.R.P. No. 2329 of 2012 - - - - - - - - - - - - - - - - - - Dated this the 10[th] day of July, 2013. ## ORDER Assailing the order dated 12.10.2012 in Crl.M.P. No.305 of 2012 in S.C. No. 55 of 2011, the accused has come up in revision. 2. The accused was being prosecuted for the offences punishable under Section 376 of Indian Penal Code. The allegation against the petitioner was that the accused had close acquaintance with the family of the victim and was almost like a member of the family of the victim. It is stated that whenever he used to come to the house of the victim, he used to express his desire to marry her and she was made to believe so. Believing the words of the accused, the victim would say that she discharged the duties of a wife. The victim also says that she was forced to have sexual intercourse with him on the promise of marriage. She had conceived as a result of the same. On the basis of the complaint, crime was 2 Crl.R.P.2329/2012. registered and after investigation, final report was filed, cognizance of the offence was taken by the court concerned, and being a case triable by a court of Sessions, committed the case to Sessions Court, Kozhikode. The said court made over the case to the Principal Assistant Sessions Court, Kozhikode for trial and disposal. Trial commenced and when the defacto complainant was partly examined, the accused absconded. He had also filed an application as Crl.M.P. 305 of 2006 dated 20.9.2006 seeking DNA test to prove that the child alleged to be that of his was not his child or in other words, he wanted to dispute the paternity of the child which the victim claimed was his. That petition seems to have been allowed and on the failure of the petitioner to take adequate steps, finally the petition was dismissed. It was long thereafter that he was brought before court and trial proceeded with, and he had filed Crl.M.P. 305 of 2012 for the very same relief. Crl.R.P.2329/2012. 3 3. The petition was opposed by the State and after considering the various aspects, the lower court dismissed the petition. 4. Learned counsel appearing for the revision petitioner contended that the court below was not justified in dismissing the petition and should not have foreclosed the evidence in defence. The observation that there was an earlier petition and the petitioner was asked to take steps are also challenged. According to the petitioner, he is entitled to adduce evidence in support of his defence and that opportunity ought not to have been denied to him. 5. It was also contended on behalf of the petitioner that in view of Section 7 and 11 of the Indian Evidence Act, the DNA test will be the relevant factor and that cannot be shut out. Reliance was also placed in the decision reported in State of Kerala v. Ayoob [2005 (2) KLT 441], Krishan Kumar Malik v. Crl.R.P.2329/2012. 4 State of Haryana [2011 (7) SCC 130] where also the question regarding DNA test and its relevance was considered. Pointing out that principles of those decisions apply to the facts of the case, it is contended that the court below ought to have allowed the DNA test. 6. Learned Public Prosecutor contended that the question of paternity does not arise for consideration in an allegation of rape. It is not the paternity of the child that is in issue, but the question is whether the victim has been sexually assaulted. Even assuming that the DNA test goes against the victim, it does not mean that no sexual assault has been committed by the accused. Viewed from any angle, according to the learned Public Prosecutor, there is no scope for DNA test in a trial of a case of rape. 7. The learned Public Prosecutor relied on the decision reported in Babu v. State of Kerala [2013 (2) KHC 526] and pointed out that this Court has elaborately Crl.R.P.2329/2012. 5 considered the necessity to conduct the DNA test in a case of rape and has come to the conclusion that even assuming that the DNA test is against the accused, that by itself is not a clinching evidence and that has no relevance in determining whether the act committed amounts to a rape or not. In the light of the principle laid down in the said decisions, according to the learned Public Prosecutor, claim made for DNA test has no basis. 8. True, normally, the court will not, as a matter of fact, shut out the evidence which enables the court to determine the truth. But to say that a DNA test is the necessity in a case of rape cannot be accepted. True, in the case on hand, from the deposition produced along with the petition of the defacto complainant, it is seen that she has a case of only a solitary instance of sexual intercourse with the accused as a result of which she claims to have been conceived. This aspect is highlighted by the learned counsel Crl.R.P.2329/2012. 6 for the petitioner that the DNA test is the issue and that should have been allowed. 9. As already noticed, it is not the paternity that is in issue, but whether the act was committed by the accused, and if the act was committed by the accused, whether there was any consent on the part of the victim. Even assuming that the DNA test goes against the defacto complainant, that by itself may not be a ground to hold that the incident has not taken place as alleged by the victim. Sections 7 and 11 on which considerable reliance is placed by the learned counsel for the petitioner, have no application to the facts of the case. They deal with different circumstances and situations altogether. The learned counsel try to contend that the effect of sexual assault is impregnation and therefore, DNA test is relevant. It is not such an act which is contemplated by Sections 7 and 11 as could be clear from the illustrations Crl.R.P.2329/2012. 7 provided by these Sections. The argument based on Sections 7 and 11 is misconceived. 10. True, in the decisions reported in State of Kerala v. Ayoob [2005 (2) KLT 441], the court has indicated the relevance of the DNA test. In the decision reported in Krishan Kumar Malik v. State of Haryana [2011 (7) SCC 130], in paragraph 45, it is held as follows: “45. We have also gone through the orders of dismissal passed by this Court in Crl MP No. 9646 on 15.06.2009 as also of the review petition dated 5.11.2009 filed by Smt. Hardevi. Admittedly, the said orders passed in the SLP and the review petition by this Court did not assign any reasons for the dismissal, thus it would not be proper and safe for us to place reliance thereon.” 11. Apart from the fact that in relation to the new provision of Section 53 (A) in Cr.P.C., that decision cannot be taken to lay down principle that in case of rape, DNA test is a must. This Court in the decision referred to by the learned Public Prosecutor has considered the issue elaborately and has Crl.R.P.2329/2012. 8 held that it is not necessary to go for a DNA test nor can that the result of DNA test is conclusive either way. If that be so, there is no merit in the contention that if the DNA test goes in favour of the petitioner, he would be exonerated. As rightly pointed out by the learned Public Prosecutor, the issue is one whether the act is alleged to have been committed by the petitioner is with consent or not and not whether the child is that of the petitioner. Following the principles laid down in the decision rendered by the Division Bench of this Court referred to by the learned Public Prosecutor, it is held that the court below was justified in declining to grant relief to the petitioner for DNA test though for different reasons. The petition is accordingly dismissed. P. BHAVADASAN, JUDGE sb.