While very rightly according paramount importance to probity, truth and transparency, the Allahabad High Court has in an extremely laudable, landmark, learned and latest judgment titled Mohan Singh vs State of UP and Another in Application u/s 482 No.- 1621 of 2022 and cited in 2022 LiveLaw (AB) 360 pronounced as recently as on August 6, 2022 allowed the conduct of DNA test in a murder trial as it noted that the same was in the interests of justice to unearth the truthfulness of the prosecution's case.
But the Bench of Hon'ble Mr Justice Gautam Chowdhary did underscore that the DNA test should not be directed as a matter of routine which is truly commendable and it is in only deserving cases where a strong prima facie case is made out that it should be permitted. The Court noted that the contention of the murder accused that he is innocent would be proved if the DNA samples are not matched and it would come on the record that he was being falsely roped in the case.
At the outset, this commendable, cogent, composed and creditworthy judgment authored by a Single Judge Bench of the Allahabad High Court comprising of Hon'ble Mr Justice Gautam Chowdhary sets the pitch in motion by first and foremost putting forth in the opening para that:
Heard Sri Gaurav Kakkar, learned counsel for the applicant, Sri Amit Singh, learned counsel for the opposite party no.2, Sri Rajeshwar Singh and Sri Rakesh Chandra, learned A.G.A. for the State and perused the material on record.
To put things in perspective, the Bench then envisages in the next para of this learned judgment that:
Brief facts of the case are that a first information report was lodged by Hardeo Singh with the averments that on Thursday i.e. 21.06.2012 due to opening of city market, his mother had gone to market to purchase some articles, on the way some quarrel was going on between Mohan Singh (applicant) and Tikki both sons of Hariya, whereupon his mother intervened in order to pacify them and had asked them to finish the quarrel, due to which, Mohan Singh accused-applicant abused and shot her, who later on died. With regard to aforesaid incident dated 21.06.2012, a first information report was lodged by the opposite party no.2 on 21.06.2012 in Case Crime No. 368 of 2012 under Section 302 I.P.C. Police Station Kosi Kalan, District Mathura. Thereafter, matter was entrusted for investigation which culminated in filing of charge sheet.
Thereafter, the case was committed to the Court of Sessions, which was registered as Sessions Trial No. 573 of 2012 (State Vs. Mohan Singh) under Section 302 I.P.C. in which, statements of the witnesses were recorded, thereafter statement of the accused was recorded under Section 313 Cr.P.C. and during the pendency of the trial, the accused applicant moved an application dated 16.08.2021 under Section 233 Cr.P.C. stating therein that the prosecution may be directed to provide the blood sample of the family members of victim and be sent to Forensic Laboratory for conducting the DNA test of the blood collected from earth to ensure as to whether both are same or not, upon which objection was filed and thereafter, said application has been rejected vide order dated 11.10.2021, it is this order which is under challenge before this Court.
On the one hand, the Bench mentions in next para that:
Learned counsel for the applicant submits that an application under Section 233 Cr.P.C. dated 16.01.2018 was filed by the applicant stating therein that on the day of incident the applicant had gone to Delhi with regard to payment of loan taken from S.R.E.I. Equipment Finance Private Limited whereafter, he had gone to Bijnor and purchased a mobile phone from CEC Computers. It has also been stated that the deceased had died somewhere else as such, the Investigating Officer had prepared wrong Naksha Nazari of the place of incident.
The Investigating Officer did not send the samples of Blood stained earth (mud) with the blood stained clothes of deceased for DNA test before the Forensic Laboratory and thus prayer was made for DNA test of blood stained earth (mud) and the wearing clothes of the deceased, which application was partly allowed to the effect that the SREL Equipment Finance Private Limited shall be present along with record as well as owner of C.E.C. Computers, Nagina Road, Bijnor was summoned but so far as grievance of the applicant with respect to DNA test, the same has been rejected vide order dated 16.07.2018, which order was challenged by the applicant by way of filing Application U/s 482 No. 33291 of 2018 and the co-ordinate Bench of this Court vide order dated 05.10.2018 had quashed the order dated 16.07.2020 to the extent it denies the permission of DNA test.
Pursuant to the order dated 05.10.2018, the learned Court below ordered for DNA test of the blood stained earth with blood stained clothes of the deceased but the same could not be done as the incident is of the year 2012 and the clothes of the deceased was not possible to be traced as the same has been misplaced from Malkhana, as such the application was disposed of vide order dated 20.07.2021 with further direction to initiate proceedings against the concerned erring police officials.
Learned counsel further submits that thereafter another application dated 16.08.2021 was moved by the applicant to direct the prosecution to provide the blood sample of family members of the victim and be sent to Forensic Laboratory for conducting the DNA test of blood stained earth to ensure that the blood of the stained earth and the blood of the family members of the victim are same, to arrive at just decision of the case and to prove the innocence of the applicant, which application has been rejected on the ground that the prosecution has not been able to provide the blood sample of the family members of the deceased as they have denied to provide the same and further directed that the applicant may adduce any documentary or oral evidence with respect to his innocence. Learned counsel for the applicant submits that since the deceased had died somewhere else and false Naksha Nazari was prepared, thus it was absolutely necessary in the interest of justice of justice to arrive a just conclusion of the trial that the blood of the earth collected from the place of incident, as alleged, and the blood of the family members of the victim are matched, which can be ascertained by way of DNA test only.
While continuing in a similar vein, the Bench then states in next para that, Learned counsel for the applicant submits that although the DNA test cannot be conducted where there is a violation of right to life, or privacy of a person and the same should be exercised after weighing all pros and cons and satisfying that the test is of eminent need, whereas in the instant case by no stretch of imagination violation of right to life or any stigma would be put to privacy of the family members of the deceased and therefore in the instant case, there is eminent need of DNA test to prove the innocence of the applicant.
He further submits that there would be no adversity for the informant, in case, this Court directs for DNA test of the family members of the victim with the blood stained earth, thus the informant would not face any adverse consequences. In support of his contention, learned counsel for the applicant has relied upon a decision reported in AIR 2003 SC 3450 in the matter of Sharda Vs. Dharmpal as well as AIR 2010 SC 2851 in the matter of Bhabani Prasad Jena Vs. Convenor Secretary Orissa State Commission for Women in support of his contention.
Briefly stated, on the other hand, the Bench then discloses in next para that, Per contra, Sri Amit Singh, learned counsel for the opposite party no.2 has submitted that the incident is of the year 2012 and we are in the year 2022, thus nothing remains in the blood stained earth and in case DNA test would be permitted, no concrete results may be ascertained due to passage of time, due to which the accused-applicant may be benefited from the same and thus the learned Court below has rightly rejected the application of the accused-applicant.
He further submits that if a person refuses to undergo for DNA test, then he cannot be forced/compelled to undergo for the same as such the informant or his family members also cannot be forced to undergo for DNA test as it relates to their privacy. Learned counsel has placed reliance upon a reported Judgement of Hon'ble Apex Court in the matter of Ashok Kumar Vs. Raj Gupta and others passed in Civil Appeal No. 6153 of 2021 and has relied upon paragraph nos. 4, 5, 15, 16 and 17.
As we see, the Bench then stipulates that:
After hearing the learned counsel for the parties and after perusing the averments made in the present application, this Court has to examine firstly whether the scientific knowledge to unearth the truth can be used? Secondly, what would be the effect in case, DNA is directed to be conducted, thirdly whether the right to life or privacy of the informant can be violated?
Be it noted, the Bench then observes quite explicitly in the next para that, Dealing with the first issue as to whether scientific knowledge can be used to unearth the truth, relevant to our discussion is the decision of the Hon'ble Apex Court in the matter of Regina (Quantavalle) Vs. Secretary of State for Health [2003] 2 A.C. 687 wherein it has been held that the laws have to be construed in the light of contemporary scientific knowledge and in order to give effect to a plain parliamentary purpose, the statute may be held to cover a scientific development not known when the statute was passed. Notice may be taken of the amendment of the year 1976 to Section 75 of the CPC enabling the Court to issue commissions to hold a scientific technical or expert investigation. The same is indicative of legislative intent to keep pace with scientific advancements in the matter of judicial adjudication.
It is also worth noting that the Bench then while mentioning the most relevant and latest case law points out in the next para of this erudite judgment that, Hon'ble Apex Court in the matter of Narayan Dutt Tiwari Vs. Rohit Shekhar 2012 (12) SCC 554, has held in paragraph no. 24 and 25 as under:-
24. Even the Constitution of India, while laying down the Fundamental Duties by Article 51-A (h) and (j) declares it to be the duty of every citizen of India to develop a scientific temper and the spirit of inquiry and reform and to strive towards excellence, to reach higher levels of achievement. What we wonder is that when modern tools of adjudication are at hand must the Courts refuse to step out of their dogmas and insist upon the long route to be followed at the cost of misery to the litigants. The answer obviously has to be no., The Courts are doing for justice by adjudicating rival claims and unearthing the truth and not for following the age old practices and procedures when new, better methods are available.
25. We, in the contest find the judgement of the Court of Appeal (Civil Division) in Re G. (Parentage Blood Sample) [1977] 1 F.L.R. 360 holding that the Court should find proven forensically what the person by his refusal had prevented from being established scientifically to be apposite. It was further held therein:-
Justice is to be best served by truth. Justice is not served by impeding the establishment of truth. No injustice is done to him by conclusively establishing paternity. If he is the father, his position is put beyond doubt by the testing, and the justice of his position is entrenched by the destruction of the mother's doubts and aspersions. If he is not the father, no injustice is done by acknowledging him to be a devoted step father to a child of the family. Justice to the child, a factor not to be ignored, demands that the truth be known when truth can be established, as it undoubtedly can. Whilst, therefore, I do not in any way wish to undermine the sincerity of the father's belief that contact is of a continuing good to the child and that it will be reduced if the mother's beliefs prevail, that contact is the best when taking place against the reality fact, and fact can be established by these tests being undertaken;
Thorpe LJ in his opinion, agreeing with Waite LJ that the appeal should be allowed, said:
A putative father may seek to avoid his paternity which science could prove; alternatively to cling on to a status that science could disprove. In both cases selfish motives or emotional anxieties and needs may drive the refusal to co-operate in the scientific tests which the court directed.
As a corollary, the Bench then maintains in the next para that:
In view of the aforesaid, the rejection of the application for DNA test and granted an opportunity to adduce documentary or oral evidence in respect of his innocence by the court below is nothing but an old aged practice inspite of availability of scientific methods available before it and therefore scientific method must be used to unearth the truth because justice is best served by truth.
It cannot be glossed over that the Bench then specifies that:
Secondly what would be the effect in case, DNA is directed to be conducted. This Court is of the opinion that at the most, the following result may be obtained:-
- D.N.A. may match.
- D.N.A. may not match.
- Disintegrated eroded test.
In case, the DNA is directed to be conducted and DNA matched, then the accused may be convicted. In case, DNA does not match, then to arrive at just and fair decision of the case, following the settled and basic principles that no innocent be convicted else, ten culprits are left free. The contention that the applicant is innocent would be proved if the DNA samples are not matched and he is being falsely roped in the present case. Thirdly, in case, the opinion comes to the disintegrated eroded test, then the report would again be against the applicant.
Quite significantly, the Bench then clarifies in the next para that:
Now the third question before this Court is that whether right to life or privacy of the informant is violated in case DNA is directed? The reliance of the learned counsel for the opposite party no.2 upon paragraph nos 4, 5, 15, 16 and 17 in the matter of Ashok Kumar Vs. Raj Gupta and others (supra) pertains to dispute between the parties with regard to parentage, whereas in the instant case, the DNA test has not been asked to be conducted to establish the relationship between the applicant and informant rather the same has been requested to prove the innocence of the applicant, therefore, there would be no impinge on his personal liberty and his right to privacy of the informant or his family members.
Most significantly and also most commendably, the Bench then holds in the next para of this learned judgment that:
It is the case of the applicant that false naksha najri has been prepared to implicate him as the incident has taken place somewhere else and is shown to have occurred at the place mentioned in the FIR, it would be primary to ascertain the place of incident first so as to gain faith in the prosecution story as narrated in the FIR. The said requirement can be best served by obtaining DNA result of the blood sample of the informant or his relative with the blood stained earth recovered from the alleged place of occurrence.
While making such observation, this Court is mindful of the fact that DNA test is not to be directed as a matter of routine and in only deserving cases where strong prima facie case is made out, such direction may be given. Since the life of the applicant is at stake as he is accused of offence under Section 302 IPC, it is must to ascertain and test the truthfulness of the prosecution case.
As an inevitable fallout, the Bench then deems it apposite to hold in the next para that:
Considering the facts and circumstances in entirety, this Court is of the opinion that to arrive at just decision of the case and to avoid any suspicion or doubt in the prosecution case, it would be in the interest of justice that DNA test may be conducted and thus the learned Court below has committed an illegality in passing the impugned order, therefore the same is liable to be set aside.
Resultantly, the Bench then directs in the next para that:
Accordingly, the impugned order dated 11.10.2021 passed by learned Additional District Judge, Court No.8, District Mathura in Sessions Trial No. 573 of 2012 arising out of Case Crime No. 368 of 2012 under Section 302 I.P.C. Police Station Kosi Kalan, District Mathura, is set aside and the blood sample of informant or any of his family members be taken for conducting the DNA test with the blood stained earth collected from the alleged place of occurrence to unearth the truthfulness of the prosecution case.
Finally, the Bench then concludes by holding that:
The aforesaid exercise may be completed within a period of one month from the date of production of a certified copy of the order before the concerned court below. The instant application is allowed.
In conclusion, we thus see that the Allahabad High Court has taken the most commendable step in ordering the DNA test to unearth the truthfulness of the prosecution case in a murder trial which has to be definitely lauded as it is a very decisive step in the right direction! It is certainly in the paramount interest of justice that truth must definitely come out in this leading case and so this is a most welcome step. There can definitely be just no denying it.
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh
