'Victim Of Rape Cannot Be Compelled To Undergo DNA Test': Allahabad High Court In POCSO Case

The Allahabad High Court has recently ruled that a victim of rape cannot be compelled to undergo DNA test to determine the paternity of her child. The Court was adjudicating upon a revision petition challenging the order dated June 25, 2021 of the Additional Sessions Judge, Sultanpur wherein such a DNA test was allowed to be conducted.

Justice Sangeeta Chandra observed with dismay that the concerned Additional Sessions Judge had 'misdirected his energies' as the question in consideration before him was not whether the child born to the victim was the child of the accused (opposite party 2) but whether the offence of rape had been committed by the accused.

"It is apparent that the learned Additional Sessions Judge has misdirected his energies. The question before the learned Trial Court was not whether the child that was born to the prosecutrix was the child of the opposite party no.2. There was no question for determining the paternity of the child, the question involved in the case was whether rape was committed on the prosecutrix by the opposite party no.2. There was no reason for the prosecutrix to let her child undergo DNA Test", the Court observed.

It was further held that a victim of rape cannot be compelled to undergo DNA test after such long time of the alleged incident.

Background

In the instant case, the revision petition had been moved by the mother of the victim against the order dated June 25, 2021 of the Additional Sessions Judge, Sultanpur. The victim, a 14 year old girl had allegedly been raped seven months ago as a result of which she became pregnant. Consequently a case had been registered at the police station, Kotwali Dehat, District Sultanpur under Sections 376, 504, 506 IPC and Section 3/4 POCSO Act.

On getting the news of her daughter's pregnancy, the victim's mother had tried to get her married to the accused however the father of the accused had denied such a proposal. Furthermore, during pendency of the trial, the accused was declared a juvenile as a result of which the case was transferred from the Trial Court to the Juvenile Justice Board, Sultanpur.

Consequently, the accused moved an application for conducting DNA test of the victim before the Juvenile Justice Board. On March 25, 2021 the Juvenile Justice Board after considering the entire facts and circumstances and evidence available on record rejected the application for DNA Test. The Juvenile Justice Board in its order had observed that such an application for examining the victim can only be moved at the stage when defence witnesses were being examined under Section 313 CrPC. It had further held that sending the victim child for DNA Test would further delay the trial which under the provisions of statute should be concluded as expeditiously as possible

Thereafter, against the order of the Juvenile Justice Board, the accused filed a criminal appeal before the Additional Sessions Judge, Sultanpur which allowed the application for conducting a DNA Test vide impugned order dated June 25, 2021.

Observations

The Court observed that the Additional Sessions Judge, Sultanpur while passing the imougned order had ignored the provisions of Article 14--21 of the Constitution of India. It further held that there was no reason to allow the victim to undergo a DNA Test as the issue in consideration was whether the offence of rape had been committed and not whether the accused had fathered the child.

Allowing the revision petition, the Court observed,

"The order dated 25.06.2021 is set aside and the learned Trial Court order dated 25.03.2021 is affirmed subject to the modification that the Trial Court's observation regarding such application being moved under Section 313 of the Cr.P.C. would be considered on its merits when it is taken up, shall also not be read against the revisionist that victim of rape can be compelled to undergo DNA test after such long time of the alleged incident."

Case Title: Gulafsa Begum v. State of U.P.

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