DIVINE PROVIDENCE FOUNDLING HOME Vs. RAJU GOPI

JUDGEMENT

(1.) The first respondent herein has been facing prosecution under Section 376 of the Indian Penal Code (for short the 'IPC') in SC No. 375/2009 before the Court of Session, Thodupuzha, on the allegation that he committed rape on a lady and impregnated her. The crime was registered after the birth of the child. Pending prosecution, the first respondent made an application before the trial court, to have the paternity proved by DNA test. The child was in fact, at that time, in the custody of the revision petitioner herein as de facto guardian. Without hearing the revision petitioner the trial court allowed Crl. M.P. No. 4506/2011 filed by the accused, by order dated 21/01/2012, directing the Circle Inspector of Police, Kattappana to produce the Prosecutrix and her child for taking specimen for DNA test, before the Rajiv Gandhi Centre for Biotechnology, Thiruvananthapuram. The said order is under challenge in this revision.

(2.) On hearing both sides and on a perusal of the impugned order, I find that the impugned order is liable to be set aside. A similar case came up before this Court in the year 2008. In that case also the accused wanted DNA test in a prosecution alleging rape. In the said case, Sisu Bhavan V. Joy Yohannan,2008 4 KerLT 550 this Court held that there is no scope or necessity for DNA test in a prosecution for rape.

(3.) Here the allegation is that the first respondent committed rape on a lady and impregnated her. The prosecution will have to prove that the first respondent had sexual intercourse with the lady without her consent or against her will. It doesn't matter whether she was impregnated or not. It doesn't matter whether the petitioner is the father of the child or not. Even if it is found on DNA test that he is the father of the child, the court cannot convict him under Section 376 IPC on that ground. He can be convicted only if the prosecution proves the offence to the satisfaction of the court. In the reported decision, this Court held that the question of paternity in such cases will have no nexus with the alleged offence of rape. Rape is something to be proved by the prosecution, by positive evidence, that the accused had sexual intercourse with the lady without her consent or against her will. Proof of paternity, positive or negative, will not help the court in deciding rape case on facts. This is not a maintenance claim or a matrimonial dispute, where paternity will have to be proved by appropriate scientific method. This is a case of rape where paternity does not assume any importance. Anyway, in view of the decision of this Court in Sisu Bhavan V. Joy Yohannan the impugned order passed by the court below is liable to be set aside. I am also of the same view on the question of law, that in this case there is no situation of nexus between the paternity of the child of the Prosecutrix and the alleged incident of rape.