Thursday, January 26, 2023

Kerala High Court allows woman’s petition to conduct DNA test of her child to establish paternity

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The Kerala High Court set aside the orders of a Sessions Court and allowed the appeal of a woman to conduct DNA test of her child to establish that the accused is the child’s biological father, which had been rejected by the Sessions Court. The offences alleged against the sole accused are under Sections 376 and 420 IPC read with Section 3(1)(xii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The single-judge bench of Justice Ziyad Rahman A.A. noted,

“The appellant herein is a person entitled for the benefits of the said provisions. In the light of such special protection, it cannot be held that the de facto complainant in this case, has to act as a mute spectator of events that occur during the course of trial. She has every right to invoke her special rights and privileges as contemplated under Section 15A of SC ST Act, when the prosecution is not taking necessary care in prosecuting the matter and there are lapses on their part.”

The Court observed,

“While protecting the rights of the accused, the court has also a duty to see that the interest of the victims are also protected. A balance has to be struck between the rights of both parties, during the course of trial by providing a fair opportunity to the parties concerned, to adduce evidence. In this case, the 2nd respondent/accused cannot advance a case of prejudice in conducting a test of potency and DNA test at this juncture for more than one reason. Firstly, as the same is his own making since he did not make himself available for conducting tests during the course of investigation. Secondly, conducting such a test would not cause any prejudice to the 2nd respondent because of the fact that it is not intended to introduce something new to the 2nd respondent.”

“The fact of potency is a matter known to him and by conducting such test, there is no possibility of causing any prejudice to him. As far as the evidence of the witnesses already examined are concerned, the outcome of potency test would not have any impact, as the result of potency test is something intimate to the 2nd respondent and his physical condition/capacity. The question of opportunity being denied to cross examine the other witnesses on the aspect of potency also does not arise at all, because of this. In such circumstances, the fact that the witnesses already cited by the prosecution were already examined, is not a matter of concern for the purpose of considering the prayers sought for in this petition by the prosecution,”

-the bench observed.

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Manu Ramachandran, the learned counsel for the 2nd respondent/accused, contended, “The said provision is not applicable in this case. The said provision would come into play only under those circumstances where the documents, materials to be produced are already in existence, whereas, in this case, a test report can be obtained only after conducting a medical examination of the 2nd respondent. Thus, as the said document is not in existence as of now the said provision cannot be pressed into service. However, I do not find any merit in the said contention. Prayer sought for is to conduct a potency test and DNA test. The aforesaid tests are intended to verify the physical condition of the 2nd respondent accused, which is already in existence and is a very relevant aspect in a case of rape and consequent impregnation. The test report is only a certificate showing such physical condition and therefore, it cannot concluded that, conducting such test and obtaining a certificate would amount to introduction of new facts. In my view, the test report is a certification of existing facts only.”

Justice Rahman noted, “Section 15(A) of the SC/ST Act provides special privileges and rights to the persons under SC/ST Act. The rights contemplated under the section is a special protection provided to the victims of offences under SC/ST Act which itself is an enactment for welfare of certain classes of persons. Thus, in the light of the special rights available to the victim of an offence under SC/ST Act, the finding of the Sessions Court, as to the lack of locus standi in raising such a prayer is not legally sustainable.”

The bench referred to State of Kerala v. Jayesh @ Jaabar @ Babu [ILR 2020 (2) Kerala 239] where a division bench of this Court observed as follows: “…………A Judge does not preside over a criminal trial merely to see that no innocent man is punished, he also presides to see that a guilty man does not escape and one is as important as the other.”

The counsel for the appellant contended that the orders passed by the Sessions Court rejecting the applications are improper as the same are against the statutory mandate as contained under Section 53A of CrPC. Failure in conducting the potency test during the course of investigation was a serious lapse on the part of the investigating agency and it has seriously affected her right to get justice as a victim of the crime.

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The Special Government Pleader also submits that if potency test is not conducted, serious prejudice would cause to the prosecution as it is one of the crucial pieces of evidence for establishing the offence alleged against the 2nd respondent/accused. In such circumstances, the learned Government Pleader supports the contentions put forward by the learned counsel for the appellant.

Here the case of the prosecution is that the 2nd respondent (accused), by inducing the de facto complainant under the promise of marriage, had sexual intercourse with her and thereby impregnated her. Subsequently, he had withdrawn from the promise. As the consent for sexual intercourse was obtained under a false promise of marriage, it was not a valid consent and hence the said acts of the accused attract the aforesaid offences. After investigation, chargesheet was submitted by the police for the offences mentioned above and cognizance was taken by the Sessions Court.

Read order below


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