The Allahabad High Court has ordered a DNA test of the complainant or any member of his family, in connection with the murder case of his mother.
A Single-Judge Bench of Justice Gautam Chowdhary passed this order, while hearing an application filed under Section 482 by Mohan Singh.
A first information report was lodged by one Hardeo Singh, stating that on June 21, 2012, his mother had gone to the city market to purchase some articles. On way, she encountered a quarrel between Mohan Singh (applicant) and Tikki, both sons of Hariya. Hardeo alleged that his mother intervened to pacify the brothers, Mohan Singh abused and shot her, which later led to her death.
However, Mohan Singh had alleged that he was not in Mathura at the day of the incident.
A first information report was also lodged by the opposite party no 2 on June 21, 2012 under Section 302 IPC at Police Station Kosi Kalan, District Mathura.
During the pendency of trial before the Sessions Court, Mohan Singh alleged that the mother of the complainant had died somewhere else.
He moved an application on August 16, 2021 under Section 233 CrPC, stating that the prosecution may be directed to provide the blood sample of the family members of the victim, which should be sent to Forensic Laboratory for conducting the DNA test of the blood collected from earth, to ensure that Hardeo’s mother died on the place entioned by him in the FIR.
The application was rejected by the Trial Court on October 11, 2021, which is under challenge before the Court.
The Counsel for the applicant submitted that an application under Section 233 CrPC dated January 16, 2018 was filed by the applicant, stating that on the day the of incident, he had gone to Delhi with regard to payment of loan taken from SREI Equipment Finance Private Limited, from where he had gone to Bijnor and purchased a mobile phone from CEC Computers.
It has also been stated that the deceased had died somewhere else as such, the Investigating Officer had prepared wrong Naksha Nazari of the place of incident. The Investigating Officer did not send the samples of Blood stained earth (mud) with the blood stained clothes of deceased for DNA test before the Forensic Laboratory and thus prayer was made for DNA test of blood stained earth (mud) and the wearing clothes of the deceased, which application was partly allowed to the effect that the SREL Equipment Finance Private Limited shall be present along with record as well as owner of CEC Computers, Nagina Road, Bijnor was summoned but so far as grievance of the applicant with respect to DNA test, the same has been rejected order dated 16.07.2018, which order was challenged by the applicant by way of filing Application U/s 482 and the coordinate Bench of the Court order dated 05.10.2018 had quashed the order dated 16.07.2020 to the extent it denies the permission of DNA test.
Counsel further submitted that thereafter another application dated 16.08.2021 was moved by the applicant to direct the prosecution to provide the blood sample of family members of the victim and be sent to Forensic Laboratory for conducting the DNA test of blood stained earth to ensure that the blood of the stained earth and the blood of the family members of the victim are same, to arrive at just decision of the case and to prove the innocence of the applicant, which application has been rejected on the ground that the prosecution has not been able to provide the blood sample of the family members of the deceased as they have denied to provide the same and further directed that the applicant may adduce any documentary or oral evidence with respect to his innocence.
Counsel for the applicant also submitted that since the deceased had died somewhere else and false Naksha Nazari was prepared, thus it was absolutely necessary in the interest of justice of justice to arrive a just conclusion of the trial that the blood of the earth collected from the place of incident, as alleged, and the blood of the family members of the victim are matched, which can be ascertained by way of DNA test only.
Counsel for the applicant said that although the DNA test cannot be conducted where there is a violation of right to life, or privacy of a person and the same should be exercised after weighing all pros and cons and satisfying that the test is of eminent need, whereas in the case by no stretch of imagination violation of right to life or any stigma would be put to privacy of the family members of the deceased and therefore in the case, there is eminent need of DNA test to prove the innocence of the applicant.
He further said that there would be no adversity for the informant, in case, the Court directs for DNA test of the family members of the victim with the blood stained earth, thus the informant would not face any adverse consequences.
Per contra, Amit Singh, counsel for the opposite party no 2 has submitted that the incident is of the year 2012 and we are in the year 2022, thus nothing remains in the blood stained earth and in case DNA test would be permitted, no concrete results may be ascertained due to passage of time, due to which the accused-applicant may be benefited from the same and thus the Court below has rightly rejected the application of the accused-applicant.
He further submits that if a person refuses to undergo a DNA test, then he cannot be forced/compelled to undergo for the same as such the informant or his family members also cannot be forced to undergo a DNA test as it relates to their privacy.
Apart from the same, the Court below has rightly recorded reasons while rejecting the application order dated 11.10.2021, thus there is no illegality or infirmity in the impugned order which may call for any interference by this Court in exercise of powers conferred under 482 CrPC jurisdiction.
After hearing the counsel for the parties and after perusing the averments made in the application, the Court has to examine firstly whether the scientific knowledge to unearth the truth can be used ? Secondly, what would be the effect in case, DNA is directed to be conducted, thirdly whether the right to life or privacy of the informant can be violated?
The Court observed that,
In view of the aforesaid, the rejection of the application for DNA test and granted an opportunity to adduce documentary or oral evidence in respect of his innocence by the court below is nothing but an old aged practice in spite of availability of scientific methods available before it and therefore scientific method must be used to unearth the truth because justice is best served by truth.
Secondly, what would be the effect in case, DNA is directed to be conducted.
The Court is of the opinion that at the most, the following result may be obtained:-
(A) D.N.A may match.
(B) D.N.A may not match.
(C) Disintegrated eroded test.
The Court noted that,
In case, the DNA is directed to be conducted and DNA matched, then the accused may be convicted. In case, DNA does not match, then to arrive at just and fair decision of the case, following the settled and basic principles that no innocent be convicted else, ten culprits are left free. The contention that the applicant is innocent would be proved if the DNA samples are not matched and he is being falsely roped in the case. Thirdly, in case, the opinion comes to the disintegrated eroded test, then the report would again be against the applicant.
Now the third question before the Court is whether the right to life or privacy of the informant is violated in case DNA is directed?
The reliance of the counsel for the opposite party no 2 in the matter of Ashok Kumar Vs Raj Gupta and others (supra) pertains to dispute between the parties with regard to parentage, whereas in the case, the DNA test has not been asked to be conducted to establish the relationship between the applicant and informant rather the same has been requested to prove the innocence of the applicant, therefore, there would be no impinge on his personal liberty and his right to privacy of the informant or his family members, the Court held.
“It is the case of the applicant that false naksha najri has been prepared to implicate him as the incident has taken place somewhere else and is shown to have occurred at the place mentioned in the FIR, it would be primary to ascertain the place of incident first so as to gain faith in the prosecution story as narrated in the FIR. The said requirement can be best served by obtaining DNA results of the blood sample of the informant or his relative with the blood stained earth recovered from the alleged place of occurrence. While making such observation, this Court is mindful of the fact that DNA test is not to be directed as a matter of routine and in only deserving cases where strong prima facie case is made out, such direction may be given. Since the life of the applicant is at stake as he is accused of offence under Section 302 IPC, it is necessary to ascertain and test the truthfulness of the prosecution case”, the Court said while allowing the application.
Considering the facts and circumstances in entirety, the Court opined that to arrive at just decision of the case and to avoid any suspicion or doubt in the prosecution case, it would be in the interest of justice that DNA test may be conducted and thus the Court below has committed an illegality in passing the impugned order, therefore the same is liable to be set aside.
“Accordingly, the order dated October 11, 2021 passed by the Additional District Judge, District Mathura in Sessions Trial arising out of Case under Section 302 IPC Police Station Kosi Kalan, District Mathura, is set aside and the blood sample of informant or any of his family members be taken for conducting the DNA test with the blood stained earth collected from the alleged place of occurrence to unearth the truthfulness of the prosecution case”, the Court ordered.