Shivamma vs State of Karnataka and Mahalingappa

K.N. Keshavanarayana

Though this petition is listed to-day for admission, with the consent of learned Counsel on both side, the matter was heard on merits.

The petitioner herein is the victim and complainant before the police in Crime No. 37/2008 of Arasikere Police Station and on the point of territorial jurisdication the said case was transferred to Pavagada Police who ultimately filed the charge sheet against the respondent No. 2 herein for the offences punishable u/s 417, 420, 376 IPC. Now the said case is pending trial in S.C. No, 60/2009 on the file of Vth Fast Track Court at Madhugiri.

The petitioner has been examined as PW1 during the trial, During the trial the prosecution filed two applications, one u/s 91 Cr.P.C, seeking to summon the doctor who conducted DNA profile on the blood samples of victim, the child and of respondent No, 2/accused, and another application u/s 230 Cr.P.C for the same relief. These applications were opposed by the accused, interalia on the ground that the applications are not maintainable under law and the applications are filed at belated stage with a view to protect the proceedings. The learned Sessions Judge on hearing the parties, by order dated 24.12.3010, rejected both the applications, interalia on the ground that the prosecution has already examined the victim as a witness who is competent person to speak about the paternity of Use child, therefore summoning of the doctor who is said to have done the DNA profile is not necessary. The learned sessions judge has also noticed that the provisions of Sections 91 and 230 Cr.P.C are not applicable for the relief sought in the applications.

Being aggrieved by the rejection of the applications, the victim has presented this petition on the ground that the rejection of the application has caused great prejudice to her case. On presentation of this petition notices were issued to respondent No. 2. Inspite of service of notice he has remained absent and unrepresented.

It is the contention of the learned Counsel for the petitioner that the petitioner-victim is a born blind and as per her complaint, respondent No. 2 promising to many her, committed forcible sexual acts on her, as a result, the because pregnant and later delivered the child, therefore, the evidence of the doctor who did DNA profile on the blood samples of the victim, the child and the accused is very much essential and the evidence of the said witness would convincingly prove the complicity of the accused in the commission of the offence alleged. Therefore, according to learned Counsel the order rejecting the applications is perverse and illegal as such it is liable to be quashed and applications are required to be allowed.

There is no dispute that the petitioner is a born blind lady. According to her evidence she recognised the respondent No. 2 only through his voice. The fact that the petitioner was subjected to sexual act and as a result, she became pregnant is not seriously disputed, since she delivered a child on 24.10.08. Therefore, the question which arise for consideration during the trial is as to whether the accused was responsible for the said act. Having regard to the fact that the victim is a born blind and said to have recognised the culprit through his voice, though she has given her evidence before the court about the complicity of the accused, possibility of suspecting her testimony on the ground that some other person might have imitated the voice of the accused, cannot be ruled out. Therefore, the court may require to look for some assurance to the evidence of the victim, There appears to be no dispute, that during the investigation the blood samples of the victim and the child was collected and with the permission of the jurisdictional magistrate the blood sample of the accused was obtained for subjecting them to DNA profile. It is net in serious dispute that DNA profile was done and the report was submitted to the I.O.

As could be seen from the certified copy of the order sheet maintained by the Sessions Court, the DNA report was submitted to the Court on 20.01.2011 along with a memo, Thus the DNA report is placed on record. No doubt the same ought to have been produced along with the charge sheet, Nevertheless it cannot be said that the prosecution cannot produce the same at a later stage. As the DNA report is already on record, the same will have to be proved in accordance with law. For that the prosecution wanted to summon the doctor who conducted the DNA profile, However the learned Sessions Judge has rejected the said prayer holding that the prosecution has already led the evidence of the victim who is the only competent person to speak about the paternity of the child. It to not only the endeavor of the prosecution to prove the paternity, but also the prosecution is required to prove the complicity of accused for the alleged offence of rape. Therefore in order to corroborate the evidence of the victim who is a born blind, examination of the doctor who conducted DNA profile is very much necessary. No doubt Sections 91 and 230 Cr.P.C are not attracted to the circumstances of the case.

However, having regard. to the fact that the prosecution has already placed the DNA report on record and in view of the fact that the victim is a born. blind, the learned Sessions Judge ought to have exercise his jurisdiction u/s 311 Cr.P.C to summon the witness mentioned in the application as he was a material witness. u/s 311 Cr.P.C the Court is empowered to summon any witness at any stage of the trial if evidence of such person in the opinion of the Court appears to be essential to the just decision of the case. Having regard to the facts and circumstance of this case the evidence of the doctor who conducted DNA profile is essential for the just decision in the case therefore, the learned Sessions Judge ought to have summoned the witness in exercise of his power u/s 311 Cr.P.C.

It is new brought to the notice of this Court that though this Court granted order of stay on 21.11.10 and the name was communicated to the Court below on 24.01.11, the trial court proceeded with the examination of accused u/s 313 Cr.P.C on 24.01.2011 and thereafter noted the production of a certified, copy of the stay order which was produced by the public prosecutor. Though the learned Sessions Judge has examined the accused u/s 313 Cr.P.C in view of the fact that this Court finds examination of the doctor who conducted the DNA profile it essential for the just decision in the case, the learned Sessions Judge has to examine the accused further in the light of the evidence of the additional witness. In the light of the above discussion the petition deserves to be allowed.

Accordingly, the petition is allowed, Order dated 24.12.2010 passed by the Vth Fast Track Court in S.C. No. 60/2009 in hereby quashed. The learned Sessions Judge is directed to summon the doctor who conducted the DNA profile as a witness and examine the said witness on the report submitted by him. Thereafter, if necessary, question the accused further u/s 313 Cr.P.C. in the light of the evidence of said witness.