DILESH NISHAD Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This order will govern the disposal of I.A.No.1/2021 that has been filed in both the appeals for direction for DNA test of the appellants herein and the victim including the victim's newly born baby.

(2.) The two appellants herein were tried by the Special Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, 'the Act of 1989'), Raigarh, for commission of offences under Sec. 376-D of the IPC, Sec. 4 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'the POCSO Act') and Sec. 3(2)(v) of the Act of 1989, date of offence being 21/1/2018. During the course of trial, after closure of the prosecution evidence, application under Sec. 311 of the CrPC was filed which was allowed upon which the victim was re-examined and in the statement it was brought on record that on 25/11/2018, the victim has delivered a baby (male child). During the course of trial, the appellants herein filed application for conducting DNA test of themselves, the victim and the newly born baby which was rejected by the Special Judge by order dtd. 1/5/2019 holding that commission of the offence of gang rape and other allied offences can be determined without directing for DNA test of the appellants and the victim/victim's newly born baby and therefore there is no justification for directing DNA test and accordingly, the application was rejected by order dtd. 1/5/2019. Thereafter, after full-fledged trial, the appellants were convicted for offences under Ss. 376-D of the IPC and Sec. 4 of the POCSO Act against which the instant criminal appeals have been filed by the two appellants herein in which also they have filed application for conducting DNA test of themselves and the victim as also the victim's newly born baby, which this Court had earlier considered and directed that the same will be considered and decided at the time of final hearing of the appeal, which was assailed before the Hon'ble Supreme Court on which their Lordships of the Supreme Court have allowed the appeal and set aside the order dtd. 28/4/2022 and also directed to decide the application for DNA test expeditiously pursuant to which the application for DNA test is being considered on merits.

(3.) The victim has also been noticed and service report dtd. 14/7/2023 has been filed which reveals that notice has been served upon the father of the victim. But none has appeared on behalf of the victim to oppose the applications for conducting DNA test filed on behalf of the appellants.