When “Non-Access” To Relationship Is Claimed In Rape Case, Accused Can Have The Same Proved By Way Of Possible Evidence: Calcutta HC allows DNA Test Of Child
The Calcutta High Court allowed the application filed by a rape accused seeking DNA Test of the child and clarified that when “non-access” to a relationship is claimed by the accused, it is his right to have the same proved by way of evidence available/possible.
The High Court was considering a revisional application preferred against an order of the Additional Sessions Judge arising out a criminal case registered under Sections 376 and 420 of the Indian Penal Code.
The Single-Judge Bench of Justice Shampa Dutt (Paul) said, “Thus, when “non-access” is claimed in such a relationship, it is the right of the accused to have the same proved by way of evidence available/possible.”
Advocate Dipankar Aditya represented the Petitioner while Advocate Bibaswan Bhattacharya represented the Respondent.
It was the case of the de-facto complainant that his daughter-Victim girl fell in love with the present petitioner. The petitioner used to stay in his maternal uncle’s house and at that time his daughter was 17 or 18 years old and later the complainant came to know that due to intimacy and a promise to marry, his daughter was in a physical relationship because of which she conceived. The de facto complainant prayed that the administration should compel the petitioner to marry his daughter.
On completion of investigation, the investigating agency filed a charge sheet under Sections 376 and 420 of IPC. Trial commenced and during cross examination, the victim girl specifically agreed to undergo a paternal test for herself and her son to prove that Dasarath is the son of the petitioner.The petitioner had also filed an application praying for DNA test of the victim girl and her child. The Judge rejected the said application of the petitioner on the ground that the specific test would waste the Court’s time.
The main issue before the High Court was whether a DNA examination of the victim girl and her child was necessary in the present case or not for its proper adjudication.
It was the specific case of the Petitioner that there was no access of the petitioner to the victim girl and, as such, the child born to the victim girl was not the child of the petitioner.
The Bench considered the fact that there was admittedly no marriage between the parties. The victim girl claimed the child to be that of the petitioner. On the other hand, the petitioner denying the paternity of the child claimed non access to the relationship. It was also observed that when “non-access” is claimed in such a relationship, it is the right of the accused to have the same proved by way of evidence available/possible.
It was further noticed that in the present case, there was admittedly no marriage and the allegations included offence under Section 376 IPC of the Indian Penal Code among others. As per the Bench, the paternity of the child if ‘positive’ would prima facie prove access to the relationship but the questions to the proof of offence under Section 376 IPC and other offences have to be proved by way of relevant evidence to prove such offences.
Placing reliance upon the judgment in Dipanwita Roy vs. Ronobroto Roy (2015) 1 SCC 365, the Bench said, “ Thus the prayer of the petitioner is required to be allowed, not only, in the interest of justice, but also in exercise of a valuable right available to the petitioner, which if denied shall be an abuse of the process of law.”
Setting aside the order under revision passed by the Additional Sessions Judge, the Bench directed the petitioner to deposit a sum of Rs 1 Lakh with the Trial Court, which in case the test is ‘positive’ shall be given to the victim girl and her child.
Cause Title: X v. The State of West Bengal & Another [Case No. CRR 3189 OF 2023]
Appearance:
Petitioner: Advocates Dipankar Aditya, Tina Biswas
Respondent: Advocate Bibaswan Bhattacharya
