Raghav Rajan s/o Rajive Rajan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 1ST DAY OF AUGUST 2013/10TH SRAVANA, 1935 Crl.Rev.Pet.No. 1052 of 2013 () --------------------------------** **CRRP 17/2013 of ADDL.SESSIONS COURT, THALASSERY CRIME NO. 188/2013 OF PAYANGADI POLICE STATION,KANNUR** ## **REVISION PETITIONER/RESPONDENT/ACCUSED:** **--------------------------------------** **RAGHAV RAJAN S/O.RAJIVE RAJAN, 30 YEARS (WRONGLY SHOWN BY THE POLICE AS BITTIHOTRA MOHANTHY @ RAGHVRAJAN S/O.B.B.MOHANTHY), 6/80, YANUMUNAPALLE BLOCK-6, PUTTAPARTHY, ANANTHAPUR ANDRAPRADES, NOW IN CENTRAL JAIL, KANNUR.** **BY ADV. SRI.P.NARAYANAN** **RESPONDENT/COMPLAINANT:** **----------------------** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, PIN 682031.** **BY SRI.K.I.ABDUL RASHEED, ADDL. DGP PUBLIC PROSECUTOR SRI.LIJU V.STEPEHN** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.Rev.Pet.No. of 2013 ()** ## **APPENDIX** ## **REVN. PETITIONER'S EXHIBITS:** **ANNEXURE-1: COPY OF THE FIR CRIME NO.188/13 OF PAZHAYANGADI POLICE STATION** **ANNEXURE-2: COPY OF THE COUNTER STATEMENT FILED BY THE COUNSEL FOR THE PETITIONER IN CMP.1693/13** ## **RESPONDENT'S EXHIBITS: NIL** _**OKB.**_ ## _**TRUE COPY**_ _**P.A. TO JUDGE**_ _**.**_ ## **K.HARILAL, J. --------------------------------------------Crl.R.P. No.1052 of 2013 ---------------------------------------------** Dated this the 1[st] day of August, 2013 ## **O R D E R** The Revision Petitioner is the respondent in Crl.R.P.No.17/2013 on the files of the Sessions Judge, Thalassery as well as the accused in Crime No.188/2013 of the Payangadi Police Station. The above crime is registered for the offences punishable under Sections 419, 420, 468, 471 and 201 of the Indian Penal Code and Section 66D of the IT Act and Section 12(i)(b) of the Passport Act against the Revision Petitioner. According to the prosecution case, the Revision Petitioner is the convict who had been undergoing imprisonment in Crime No.143/2006 registered for the offence punishable under Section 376 IPC of the Kotvali Police Station, Alwar District, Rajasthan. 2. The allegation against the Revision Petitioner in that case is that he had committed rape of Julia Sivers, aged 26, a German lady. In that case, the Revision _Crl.R.P.1052/13_ **:2:** Petitioner was found guilty of the offence under Section 376 IPC and convicted thereunder. In execution of the sentence imposed in that case he was undergoing imprisonment for seven years. But, after releasing on parole on 20.11.2006 from the Central Jail, Jaipur, he did not report back to the jail and with regard to this incident Crime No.11/2007 under Section 224 IPC was registered at Lalkoti Police Station, Rajasthan on 10.1.2007. 3. Thereafter, the Revision Petitioner who is the convict in the above case prepared and forged several documents as he is one Raghav Rajan and using that document he obtained degrees and a job in State Bank of Travancore, Madayi branch in Kerala as Probationary Officer, by way of impersonation and thereby cheated the Bank in addition to the commission of fabrication of document. Crime No.188/13 is registered in Payangadi Police Station against the accused alleging the said offences and the same is now pending before the Judicial First Class Magistrate Court-I, Payyannur. In the course of investigation, after the arrest, he was produced before the _Crl.R.P.1052/13_ **:3:** Investigating Officer in Crime No.143/2006 of Kotvali Police Station. The Investigating Officer in that case who is now working as Deputy Superintendent of Police identified the Revision Petitioner as the accused Bitty Hothra Mohanthy who is the convict in Crime No.143/2006 of Kotvali Police Station. When he had been produced before the jail wardens of the jail in which he was undergoing imprisonment and they also identified the Revision Petitioner as Bitty Hothra Mohanthy, who was undergoing imprisonment as convict in Crime No.143/06. The jail records also show that Bitty Hothra Mohanthy was undergoing imprisonment as convict. 4. The Investigating Officer could seize certain forged documents as well as computer and printer which were used for printing forged documents by which he managed to get the job of Probationary Officer in the Bank. The Investigating Officer seized ten items of MOs. from the house in which he was residing. Twelve witnesses were questioned and their statements were recorded. The Degree Certificates seized from the possession of the _Crl.R.P.1052/13_ **:4:** Revision Petitioner show that they were fabricated in the name of Raghav Rajan and also show that he had been educated at Stewart School, Cuttak, Christ College, Cuttak and Kalinga Institute of Industrial Technology, Orissa. On investigation with the above educational institutions, it is revealed that no such Raghav Rajan ever studied in these institutions in the relevant period but, at the same time one Bitti Hothra Mohanthy, S/o.B.B.Mohanthy had studied in those institutions. The Investigating Officer also questioned Sri.B.B.Mohanthy, former Director General of Police, Orissa, who is the father of Bitti Hothra Mohanthy on 15.3.2013 and in his statement he has identified the recent photograph of his son taken by Payangadi Police as Bitti Mohanthy. On investigation in Orissa it is revealed that he name of Bitty Mohanthy was changed as Raghava Rajan in the certificates by way of fabrication. In investigation it was also revealed that he has fabricated and produced the transfer certificate at the time of admission in Kannur University for admission for MBA course. _Crl.R.P.1052/13_ **:5:** 5. Another crime is also pending against him as Crime No.790/13 of the Karunagappalli Police Station under Sections 419 and 420 IPC. The above crime was registered on a complaint filed by one J.K.Srinivasan, E- Learning Research Lab, Amrita Vishwa Vidyapeetham, Amrithapuri, Clappana (PO), Kollam, Kerala. After investigation, the said crime is also transferred to the Payangadi Police Station for further investigation along with Crime No.188/13. 6. According to the prosecution, the investigation reveals that in the name of Raghav Rajan he fabricated forged certificates of Council for the Indian School Examination, New Delhi, pass certificate cum Memorandum of marks of Higher Secondary Education, Final grade report issued by Kalinga Institute of Industrial Technology, Deemed University, Bhuvaneswar, decree certificate of B.Tech. in Computer Science and Engineering issued by Kalinga Institute of Industrial Technology, Deemed University, Bhuvaneswar. By using the impersonated name and false address, he obtained Election _Crl.R.P.1052/13_ **:6:** Identity Card, and Indian Passport bearing No.J 3306779, Driving Licence, Pan Card, Bank accounts of Canara Bank, State Bank of India, State Bank of Travancore etc. By using the forged documents he obtained admission for Master of Business Administration Course, admission in Chinmaya Institute of Technology. He has conducted Research work in E-learning Research Lab as Instructional Designer, finally he obtained a job of Probationary Officer in the State Bank of Travancore. In short, by using the above false documents the accused who is the convict undergoing imprisonment impersonated himself as Raghav Rajan and obtained admission in various educational institutions and obtained job of Probationary Officer in State Bank of Travancore, Madayi Branch, Puthiyangadi, Kannur District in Kerala. The prosecution further contends that on investigation till date, it is revealed that the Revision Petitioner who jumped from parole while undergoing imprisonment in Crime No.143/2006 taken the name as Raghav Rajan and he forged the certificates referred above. According to the prosecution, the _Crl.R.P.1052/13_ **:7:** investigation so far conducted pointing towards the finding that Bitty Hothra Mohanthi who is the son of B.B.Mohanthi and the convict in Crime No.143/2006 of Kotvali Police Station and the Raghav Rajan who is the accused in Crime No.188/013 of Payangadi Police Station are one and the same person and he has committed all the offences in Crime No.188/13 by way of fabrication of documents and impersonation. By using the fabricated documents, he cheated several educational institutions and finally the State Bank of Travancore. This is the brief facts of the prosecution case. 7. In view of the above back drop, during the course of investigation, the police filed CMP.No.1693/2013 before the Court of the Judicial Magistrate of the First Class, Payyanur, seeking permission to subject the Revision Petitioner to DNA test. In the application it is stated that, the investigation so far conducted reveals that Raghav Rajan who is the accused in Crime No.188/13 of Payangadi Police Station is none other than Bitty Mohanthi, the convict in Crime No.143/2006 of Kotvali Police Station. _Crl.R.P.1052/13_ **:8:** But, to prove the facts revealed from the investigation scientifically, DNA test is required. DNA test is sought for ascertaining beyond reasonable doubt that Raghav Rajan is none other than Bitty Hothra Mohanthi who is the son of B.B.Mohanthi. In short, according to the prosecution, the identity can be proved by way of proving his paternity. 8. The learned counsel for the Revision Petitioner submits that other remedies are available to prove the identity which is required to be proved by DNA test and DNA test is the last remedy only. No purpose will be served by conducting DNA test. For matching the blood samples, the blood samples of B.B.Mohanthi is also required, for which his consent is also required. The learned counsel further submits that the identity can be proved by comparing the documents in connection with Crime No.188/13, which are available in the jail in which he was undergoing imprisonment. In short, the argument advanced by the learned counsel for the Revision Petitioner is that without resorting to available remedies, the police sought for permission to conduct DNA test. The learned _Crl.R.P.1052/13_ **:9:** counsel further submits that in view of Section 53 of the Cr.PC, there must be reasonable grounds to seek for permission to conduct DNA test and the learned Magistrate was not satisfied with the grounds raised for DNA test. But the learned Addl.Sessions Judge, without arriving at such a satisfaction, passed the order permitting to subject the Revision Petitioner for DNA test. Unless consent of the parents are obtained, the DNA test is not possible. Therefore, it can be deferred till obtaining their consent also. 9. Per contra, the learned Additional Director General of Prosecution submits that the Investigating Officer has conducted a detailed investigation and the records seized from the possession of the Revision Petitioner show that he is one Raghav Rajan. But, during the course of investigation, on questioning the authorities of the educational institutions in which he had studied, it is revealed that the so-called Raghav Rajan had not studied in those institutions and one Bitty Mohanthi, S/o.B.B.Mohanthi had studied in their institutions. _Crl.R.P.1052/13_ **:10:** Therefore, the question in controversy is the identity of the accused in Crime No.188/13 of Payangadi Police Station. Unless and until the disputed identity of the accused is proved beyond reasonable doubt, the prosecution will not be able to prove the case. The learned Director General of Prosecution further drew my attention to Section 53 of the Cr.PC. and also cited the decision reported in **Selvi v. State of Karnataka** (AIR 2010 SC 1974). The learned counsel for the Revision Petitioner also cited the decision in **Bhabani Prasad Jena v. Orissa State Commission for Women** (2010(8) SCC 633) and **Mrs.Thamaraiammal v. Executive Magistrate-cum-Revenue Divisional Officer** (2007 Crl.LJ 1885) and **Ranbir Singh v. Dalbir Singh** (AIR 2002 SC 1500). Going by the rival contentions, the question to be considered is whether Raghav Rajan, the accused in Crime No.188/13 of Payangadi Police Station and the Bitty Mohanthi, S/o.B.B.Mohanthi, the convict who jumped parole, while undergoing imprisonment in Crime No.143/2006 of Kotvali Police Station are one and the same person. _Crl.R.P.1052/13_ **:11:** 10. Going by the statement filed by the prosecution, it is seen that the investigation has been reached upto the finding that Raghav Rajan and Bitti Mohanthy referred above are one and the same person. On the basis of the documents seized from the possession of the accused/revision petitioner as well as from the documents seized from the educational institutions in which Bitti Mohanthy had studied, they arrived at a preliminary conclusion that Bitti Mohanthy and Raghav Rajan are one and the same person. So also, the photograph of Raghav Rajan taken in connection with Crime No.188/2013 of the Payangadi Police Station was shown to B.B. Mohanthy, the father of the revision petitioner, and he has identified the photograph as his son Bitti Mohanthy's photograph. 11. Before considering the above question, let us examine the legal validity as well as authenticity of the DNA test in view of the decisions rendered by the Apex Court. Here, according to the prosecution, the identity of the person who allegedly impersonated and committed the offence can be established by proving his paternity only; _Crl.R.P.1052/13_ **:12:** i.e. the person known by name “Raghav Rajan” is the son of B.B. Mohanthi. In **Sharda Vs. Dharmpal [2003 (2) KLT 243 (SC)]** after referring the decision in **Goutam Kundu Vs. State of West Bengal (AIR 1993 SC 2295)** the Apex Court held that DNA test is the scientific and authentic test and it can be allowed in exceptional cases where DNA Test is in imminent need. In the decision in **Sharda** 's case (cited supra) considering the authority of a court to issue direction for compelling a party to suit or proceedings to submit himself for medical examination, the Supreme Court had unequivocally expressed that even if the enabling statutory provisions are absent, that do not preclude the court from passing such an order. The right of privacy conferred under Article 21 of the Constitution of India cannot be an absolute right and, that, some limitations on the rights of the individual have to be imposed, particularly where two competing interests clash, the interest of the accused as person and the interest of the prosecution in which the interest of the State is also implied. _Crl.R.P.1052/13_ **:13:** 12. In **Selvi Vs. State of Karnataka (AIR 2010 Supreme Court 1974)** , the Apex Court has held as follows: “188. In the present case, written submissions made on behalf of the respondents have tried to liken the compulsory administration of the impugned techniques with the DNA profiling technique. In light of this attempted analogy, we must stress that the DNA profiling technique has been expressly included among the various forms of medical examination in the amended explanation to Sections 53, 53-A and 54 of 'DNA profile' is different from a DNA sample which can be obtained from bodily substances. A DNA profile is a record created on the basis of DNA samples made available to forensic experts. Creating and maintaining DNA profiles of offenders and suspects are useful practices since newly obtained DNA samples can be readily matched with existing profiles that are already in the possession of lawenforcement agencies. The matching of _Crl.R.P.1052/13_ **:14:** DNA samples is emerging as a vital tool for linking suspects to specific criminal acts. It may also be recalled that as per the majority decision in **Kathi Kalu Oghad, (AIR 1961 SC 1808)** (supra) the use of material samples such as fingerprints for the purpose of comparison and identification does not amount to a testimonial act for the purpose of Article 20 (3). Hence, the taking and retention of DNA samples which are in the nature of physical evidence does not face constitutional hurdles in the Indian context. However, if the DNA profiling technique is further developed and used for testimonial purposes, then such uses in the future could face challenges in the judicial domain.” 13. On a conjoint reading of all these decisions, it could be seen that the Apex Court has expressed the view that the court has to reconcile the competing interest by balancing the interest involved in the proceedings, indicating that orders, which are necessary to advance the ends of justice even if it affects the right of privacy of an individual, can be passed by the court. In short, DNA test _Crl.R.P.1052/13_ **:15:** is permissible in imminent need to resolve the issue regarding paternity. It is also to be remembered that those decisions were rendered in cases wherein the paternity of the child was under question and those decisions were also rendered after discussing the statutory presumption available under Sec.112 of the Indian Evidence Act regarding the paternity of a child. To sum up, undoubtedly it could be seen that the Supreme Court has approved the DNA test as authoritative scientific test to prove the paternity of a person. But, it cannot be availed of as a matter of course and, when there is an imminent need to resolve the issue, the DNA test can be availed of. This decision was rendered in the year 2003 and 2005. But, in view of these decisions, amendment was brought to the Cr.P.C. also with effect from 23.6.2006 by insertion of Explanation under Section 53(2) of the Cr.P.C., as follows:- ## **53. Examination of accused by medical practitioner at the request of police officer:-** - 1) When a person ........................................ - 2) Whenever the person .............................. _Crl.R.P.1052/13_ **:16:** Explanation:- In this section and in Section 53A and 54,- - (a) “examination” shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the unse of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case; - (b) “registered medical practitioner” means a medical practitioner who possess any medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and whose name has been entered in a State Medical Register. 14. Thus, the DNA test got the approval of legislature also as authoritative and authentic test to prove the paternity of a person. The learned counsel for the revision petitioner argued that other possible methods are available to prove the alleged fact. But, I am of the opinion that if _Crl.R.P.1052/13_ **:17:** the best evidence is possible, it must be availed and produced to prove a fact in issue. As far as the evidence to prove the fact in issue, there cannot be a maximum limit or there cannot be a saturated point. It is incumbent on the prosecution to prove the prosecution case beyond reasonable doubt by producing the best and cogent evidence as far as possible. Going by the facts disclosed in investigation, I am of the opinion that the investigating agency has already got a primary satisfaction that Bitti Hothra Mohanthy and Raghav Rajan are one and the same person. The prosecution wants to make it sure by DNA test, a scientific authoritative test got sanctioned and approved by the Apex Court as well as the Parliament. As I stated earlier, when the entire prosecution case revolves around the issue of paternity, it is incumbent on the prosecution to prove the same beyond reasonable doubt by making use of all modes of proof. 15. The next point argued by the learned counsel for the revision petitioner is that unless the willingness of the parents are obtained, the DNA test is not possible and it _Crl.R.P.1052/13_ **:18:** will be a futile exercise. Going by the petition, it could be seen that the permission is not sought for subjecting the accused to DNA test only. I am of the opinion that it is the preliminary requirement and the willingness of the parents comes only after getting permission of the court for conducting the DNA test of the accused, the second stage has not reached. It is true that the blood samples of parents is also required for the proposed DNA Test. But, that is not a matter to be considered at this stage. I am inclined to consider the matter confining the reliefs sought for in the present petition. So also, if the parents are not willing to undergo DNA test, that also will contribute in favour of the prosecution in view of Section 114 (g) of the Indian Evidence Act. An adverse inference also can be drawn against them if such an occasion arises. I hope that B.B. Mohanthi, the father of the accused would understand the imminent need of prosecution and voluntarily come forward to co-operate with the investigation so as to prove the identity of the accused, as he has been the Police Chief of a State. However, I am of the opinion that those _Crl.R.P.1052/13_ **:19:** questions need not be considered at this stage. 16. I have bestowed my anxious consideration to the decisions cited by the learned counsel for the revision petitioner and the learned Public Prosecutor. All those decisions placed reliance on **Goutam Kundu Vs. State of West Bengal (AIR 1993 SC 2295)** and **Sharda Vs. Dharmpal [2003 (2) KLT 243 (SC)]** , the decisions to which I placed reliance. I do not find any kind of conflict in those decisions. The principle that can be culled out from all the decisions so far rendered on this subject is one and the same; i.e. “DNA test is permissible, when it is imminently needed for just decision in the matter.” I find that the decisions cited by the learned counsel for the revision petitioner do not render any special assistance or help to the objections in the arguments advanced by him. 17. In the light of the above discussions, I find that the question whether Raghav Rajan, the accused in crime No.188/2013 of Payangadi Police Station and Bitti Hothra Mohanthy, the son of B.B. Mohanthy, in Crime No.143/06 of Kotvali Police Station, the convict who is undergoing _Crl.R.P.1052/13_ **:20:** imprisonment and escaped from jail by jumping parole are one and the same person, can be answered by proving his identity and that can be done by answering the question whether the above referred Raghav Rajan and Bitti Hothra Mohanthy are the son of B.B. Mohanthy. In short, considering the issue involved in the prosecution case, the prosecution case can be proved beyond doubt by establishing the paternity of the accused. Therefore, the prosecution is in imminent need of subjecting the revision petitioner to DNA test, a scientific as well as authentic test approved by the Apex Court and the Parliament of India. 18. It is made clear that the observations made above shall be confined to this order only and shall not be allowed to cause any prejudice to the defence which can be taken at the time of trial. Resultantly, the Revision Petition is dismissed. Sd/- ## **(K.HARILAL, JUDGE)** **Kvs/** _**Okb.**_ ## _**TRUE COPY**_ ## _**P.A. TO JUDGE**_ _Crl.R.P.1052/13_ **:21:** _Crl.R.P.1052/13_ **:22:** ## **K.HARILAL, J.** ## **--------------------------------------------Crl.R.P. No.1052 of 2013 ---------------------------------------------** Dated this the 5[th] day of June, 2013 ## **O R D E R** The respondent is directed to file a counter statement explaining as to the nature and the purpose for which DNA test is intended to be done. 2. Interim order is extended by ten days. Post on 14.6.2013. **K.HARILAL, JUDGE.** okb.