Karpagam vs State and Alaguraj

G. Rajasuria, J.—This petition has been filed to get set aside the order passed by the learned Assistant Sessions Judge, Kovilpatti, in Crl.M.P. No. 687(A)/09 in S.C. No. 291 of 2008 dated 28.10.2009.

A summation and summarisation of the relevant facts absolutely necessary for the disposal of this petition woulP.C., based on the complaint lodged d run thus:

The police registered a case in Cr. No. 3 of 2007 for the offences punishable under Sections 417, 376 and 506(II) I.P.C., based on the complaint lodged by the Petitioner herein on the ground that the said accused Alaguraj moved with the Petitioner and had sexual relationship with her on the promise of marrying her, so to say, sponsalia per verba de futuro. However, he had a volte face and turned turtle and refused to marry her. However, in view of the accused having had sexual intercourse with her, she became pregnant and ultimately, gave birth to a child. After 8 months, the child died. However, even during the life time of the said child, DNA test was undertaken and in the report obtained from the expert, the following conclusion is found set out:

Conclusion: From the DNA typing results of the above individuals, it is found that,

the alleged father Mr. M. Alaguraj is excluded from the paternity of the male child Karuppsamy Pandian.

the male child Karuppsamy Pandian is not born to Mr. M. Alaguraj

After obtaining the expert opinion and completing the investigation, the police laid the charge sheet invoking Sections 417, 376 and 506(II) I.P.C. Thereupon, the matter was committed to the Court of Sessions.

According to the learned Government Advocate (Criminal Side), the charges were framed and seven prosecution witnesses were examined. However, the learned Counsel for the Petitioner would submit that after framing of the charges, the application was filed u/s 173(8) Code of Criminal Procedure praying for further investigation. But, the learned Assistant Sessions Judge dismissed the said application on the ground that the Court had no power to order for further investigation and there is no provision for filing such application by the Petitioner subjecting the accused for DNA test.

Being aggrieved by and dissatisfied with the said order, this petition has been filed.

Normally, if a party is aggrieved by an order of a criminal Court, the revision would lie and not straight away a petition invoking Section 482 Code of Criminal Procedure However, the learned Counsel for the Petitioner would submit that there is non-exercise of power by the learned Judge by simply rejecting the application at the threshold itself resulting in failure of justice.

It has to be seen as to whether in the facts and circumstances of the case, the application u/s 173(8) Code of Criminal Procedure would lie for obtaining a direction from the trial Court for directing the police to conduct further investigation into the matter by subjecting the accused and the defacto complainant for second DNA test.

The learned Counsel for the second Respondent/accused would submit that such an application filed by the defacto complainant is nothing but an abuse of process of the Court and that absolutely there is no ground for seeking second opinion. In support of his contention, he would place reliance on the decision of this Court in Sakthivel v. Karpagam reported in (2005) 3 M.L.J. 483. An excerpt from it, would run thus:

...The Petitioner cannot seek to send blood samples for D.N.A. test for the second time which would lead to unhealthy practice where the parties repeatedly seeking to send the sample till they get a favourable report. Such request of the revision Petitioner/husband to send the blood sample of the spouse for D.N.A. test for the second time cannot be acceded to.

The learned Government Advocate (Criminal Side) would oppose the move of the Petitioner/defacto complainant, reiterating the arguments as put forth on the side of the learned Counsel for the second Respondent/accused.

However, the learned Counsel for the Petitioner would submit that the report of the expert is quite antithetical to the realities. The defacto complainant is the best person to say as through whom she gave birth to the child as she with all sincerity submitted that she gave birth to the child only in view of her sexual life with the accused and in such a case, the report should be wrong and accordingly, the learned Counsel for the Petitioner prays for a second DNA test. He also relied upon the unreported judgment of this Court dated 13.04.2010 in Crl.R.C.(MD) No. 567 of 2008. An excerpt from it, would run thus:

...On taking into consideration of the submission of the learned Counsel appearing for the revision Petitioner, this Court finds some force on it, because since the first Respondent in the revision petition being the father of the victim girl had voluntarily come forward with the petition in Crl.M.P. No. 48 of 2008 in S.C. No. 388 of 2006, with a request to pass an order for the second D.N.A. test apprehending that the first report dated 25.04.2007 could have been obtained by the influence of a doctor, known to this revision Petitioner, it may be appropriate to order for the second DNA test at the expenses of the parties concerned.

As adumbrated supra, there is nothing wrong to conduct another test for the satisfaction of the victim girl at their expenses. Under these circumstances, the order of the learned Sessions Judge, Mahila Court, Madurai, shall have to be modified.

The above cited judgment is merely out of concession being given to the victim in the facts and circumstances of that case; however, in the earlier judgment, the law point has been dealt with in extenso.

A mere reading of the decision of this Court in Sakthivel v. Karpagam reported in (2005) 3 M.L.J. 483, would show that simply because an expert opinion is not in favour of a particular individual, that individual cannot go on seeking separate expert opinion till he could find a favourable opinion. No doubt, in this case, the Petitioner/defacto complainant based on her own confidence in herself has come forward with the plea that she gave birth to the child only through the accused and at this stage, this Court cannot give any finding on that. However, before she could ask for a second DNA test, she must be able to point out as to what are the defects in the earlier DNA test and absolutely, there is no iota or shred, shrag or molecular, jot or pint of evidence to point out that the available expert opinion is fraught with falsity or illegality or with any non-medical approach. When such is the position, this Court, at this stage, cannot simply order for the second DNA test.

As rightly pointed out by the learned Counsel for the second Respondent/accused and the learned Government Advocate (Criminal Side), the expert opinion is a piece of evidence and that cannot be the be all and end all in adjudging a criminal case; wherefore, from the available materials, I do not think that second DNA test should be ordered. As such, I do not find any merit in this petition.

However, the learned Counsel for the Petitioner/defacto complainant would make an extempore submission that if the defacto complainant could obtain any opinion from an expert relating to the defects in the available report already filed, then the defacto complainant might be given liberty to place the matter before the trial Court to highlight the same.

Accordingly, I would make it clear that if at all, the defacto complainant could obtain any other expert opinion finding fault with the existing report, then, it is for her to file the same in the Court and thereafter, it is the Court concerned to entertain the same as evidence in the manner known to law.

In the result, this Criminal Original Petition is dismissed.