ANANDAMAY BAG Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS revisional application is directed against the order dated 19. 10. 2006 passed by the learned Assistant Sessions Judge, 2nd Court, Hooghly in S. T. No. 10 of 2003 thereby rejecting the prosecution prayer under section 311 of the code of Criminal Procedure for holding DNA test of the victim, the accused and the male child born to the victim.

(2.) LEARNED Advocate for the petitioner submitted that in this case the victim was a minor and due to the alleged rape committed on her by the accused she became pregnant and gave birth to a male child who is now aged about 5 years. Concerning the incident of rape, the FIR was lodged at Polba P. S. and after investigation chargesheet was submitted. After commitment of the case to the court of Sessions, trial also progressed and the case was pending for judgment. During that stage the learned P. P. in-charge of the case filed an application under section 311 of the Code of Criminal Procedure for direction for holding the DNA test of the victim, her child and the accused. The learned Assistant sessions Judge by the impugned order dated 19. 10. 2006 rejected the said prayer.

(3.) ACCORDING to the submission of the learned Advocate for the petitioner, the learned Judge failed to appreciate the importance of the DNA test as during investigation such test was not conducted by the Investigating Officer. In a case of rape DNA test is very much necessary and it will establish the alleged offence. The learned Judge failed to appreciate that the victim was a minor when the rape was committed on her as a consequence of which she gave birth to a male child. The learned Judge acted illegally by rejecting the prayer under section 311 of the Code of Criminal Procedure for holding the genealogical test of the victim, the accused and the male child of the victim. The learned Judge failed to appreciate the true spirit of the provision of section 311 of the Code of criminal Procedure. The DNA test is necessary to ascertain the fact of alleged rape as well as for ascertaining the paternity of the child of the victim girl. Scope of section 311 of the Code of Criminal Procedure is very wide and in this case DNA test was necessary for the just decision of the case and in view of provision of section 311 of the Code of Criminal Procedure at any stage of the case direction for further evidence of further materials may be made. The learned judge was in error and the impugned order was cryptic and a product of failure of the learned Judge to appreciate the legal principles. In support of his contention Mr. Chatterjee placed before me the decisions in Thogorani alias K. Damayanti vs. State of Orissa and Ors. , reported in 2004 Cr. LJ 4003 and solaimuthu vs. State rep. by Inspector of Police, Kaikalathor, Perambalpur and anr. , reported in 2005 Cr. LJ 31. He also placed reliance on Ram Lal Narang vs. State (Delhi Admn.), reported in AIR 1979 SC 1791, in respect of powers of magistrate to direct further investigation or powers of police to conduct further investigation and also placed the decision in Gurdev Singh vs. State of Punjab, reported in 1982 Cr. LJ 2211 and Mina Barai and Ors. vs. State of West Bengal, reported in 2006 (1) CHN 686, in support of his contention over powers of Court under section 311 of the Code of Criminal Procedure.