^ff^l^e'y^'Ty^m^mmjvKlih^^ i^^^S^^^^;'S;;&&f-'h.i-..fc-:;; v ^ ,1' , 3 K- L^: :. .^•e.'^ y/;' !^: i' f|r • o ^: ''s ?t t ? ) ^ CO Sl4 g'i ^f ^S)'i •s •sl ^l 3T^ Sf^ A rtiP 'l s HIGH COURT OF CHHATTISGARHAT BILASPUR Sinale Bench : Hon'bleShrl Dhirendra Wlishra, J. APPLICANT NON-APPLICANTS (Accused Persons) Cr.M.P.No. 385 of 2010 The State of Chhattisgarh, Through Station House Officer, P.S. Anda, District Durg (CG) -Versus- Smt. Sarita Deshmukh and Premjeet Deshmukh. Present: Mr. DK Gwalre, Govt. Advocate for the State/applicant. Mr. AK Prasad, counsel for the non-applicants/accused persons. ORJ2ER (Passed on (^'October, 2010) This criminal miscellaneous petition has been registered as per directions ofthis Courtdated 21stApril, 2010 in M.Cr.C.No.214/10 preferred by Smt. Sarita Deshmukh and a show cause notice has been issued to both the accused persons of Cr.No.91/09 registered in Police Station - Anda, Distt. Durg. The accusgd persons herein have been called upon to show cause as to why a direction' should not be issued to the prosecution to undertake necessary scientific examination by taking blood samples of Smt. Kirti Deshmukh and her husband Premjeet Deshmukh for the purposes of matching the same with the bone of the deceased-child preserved for DNA profiling during postmortem. 02. Facts, as mentioned in the order dated 21s April, 2010 of this Court passed in M.Cr.C.No.214/10, are that dead body of a female infant was found on the bank of river, whereupon merg No.27/09 was registered. After receiving the postmortem report, offence under Section 302 of the IPC was registered against unknown persons on the basis of merg inquiry. During investigation, it revealed that wife of accused Premjeet Deshmukh namely Smt. Kirti Deshmukh was admitted in Govt. Hospital, Durg for delivery and she gave birth to a third female child on 2 September, 2009 and because of the / •-/ ^ child being his third daughter, Premjeet in association with accused Smt. Sarita Deshmukh murdered the infant by throttling and threw her dead body in the river. Postmortem of the child was conducted in the Medical College, Raipur and as per postmortem report, the infant was bdrn alive after full term and signs of surgical intervention were present on her person. Bones of the infant were preserved for diatoms test and for DNA profiling and the same have been seized during investigation. However, DNA profilingwas not done and application of the prosecution for thesame has been rejected by the learned Sessions Judge on 29 March, 2010 on the ground that same has been filed belatedly at the fag end of trial. 03. Learned counsel appearing for the accused persons Smt. Sarita Deshmukh and Premjeet Deshmukh Would argue that no one has lodged a complaint that the newly born daughter of Smt. Kirti Deshmukh has been murdej'ed by the accused persons. They have been implicated only on the basis of their memorandum statements, though no fact was discovered on their memorandums. The other evidence against them was that of Smt. Kirti Deshmukh, who has since been examined during trial, and she has not supported the prosecytion case. The doctor, who conducted postmortem, has been, examined and he has categorically deposed that the body was in a highly decomposed condition and no definite opinion regarding cause of death of the infant could be given. Though bones of the dead body have been preserved, but the prosecution did not move for DNA test and application for the same was filed only at the fag end of trial, which has been rejected by the learned Sessions Judge on valid grounds. Since the prosecution did not go for DNA test during investigation, they cannot now be permitted to undertake scientific examination and the accused persons cannot be compelled by the Court for giving blood samples for performing any scientific examination, like DNA test, to fill up the lacuna in the prosecution case. • S—BB 1 It was further argued that compelling an accused to gjve blood samples from his or her body would infringe the fundamental right enshrined in Article 20(3) ofthe Constitution, according towhich no person accused ofany offence can be compelled to be a witness against himself. Reliance is placed on the judgment in the matters of Goutam Kundu Vs. State of West Bengal and another reported in AIR 1993 SC 2295. 04. On the other hand, Shri DK Gwalre, learned Govt. Advocate appearing for the State, would argue that in the postmortem report, it is mentioned that the infant was born alive after full term and signs of surgical intervention were present. Bones of the infant were preserved for diatoms test and for DNA profiling and the same have been seized during investigation. However, during trial, when it was discovered that DNA profiling has not been done, and an application was filed before the learned Sessions Judge for permission to take blood samples of accused Premjeet Deshmukh and his wife Smt. Kirti Deshmukh for matching the same with the bones of the deceased-infant, the same has been rejected on the ground that there is no explanation as to why it was not done earlier and the application has been filed at the belated stage at the fag end of trial, particularly when the accused persons are in custody. He further argued that necessary scientific investigation after obtaining blood samples ofthe accused persons on the preserved bones ofthe deceased has a definite bearing for proper adjudication of the trial to establish paternity of the child, and the learned Sessions Judge was not justified in rejecting the application of the prosecution on the ground of delay and also on the ground that it is not shown as to how the same is necessary for effective and proper adjudication pf the case. 05. He further argued that direction to the accused persons to give blood samples for DNA profiling cannot be construed to be an infringement oftheir fundamental rights guaranteed under Article 20(3) of the Constitution as the .'^c. only bar under Article 20(3) is that the accused person shall not be compelled to be a witness against himself and where the accused furnishes blood samples for the purpose of DNA profiling, he does not furnish evidence against himself. Reliance is placed on the Judgment of eleven Judges Bench of the Supreme Court in the matter of State of Bombay Vs. Kathi Kalu Oghad reported in 1961 (2) Cri.L.J. 856 : AIR 1961SC 1808. He further argued that Section 53 of Cr.P.C. specifically provides that a person arrested on a charge of committing an offence can be sent to the registered medical practitioner with a request for such examination of his person that would afford evidence as to commission of the offence. 06: Heard learned counsel for the parties and perused the order dated 21 April,2010. 07. The questions for consideration of this Court are as follows: "1. Whether learned Sessions Judge was justified in rejecting the application filed by the prosecution for p^mission to take blood samples of accused Premjeet Deshmukh and his wife Smt. Kirti Deshmukh? 2. Whether accused Premjeet can be compelled to give his blood samples for the purposes of scientific examination? 08. As already pointed out in the foregoing paragraphs, in the postmortem report of the deceased-child it is mentioned that she was born alive after full term and signs of surgical intervention were present. Bones of the infant were preserved for diatoms test and for DNA profiling and the same have been seized; during investigation. However, DNA profiling was not done and therefore, an application was filed before the learned Sessions for permission to take blood samples of accused Premjeet and his wife Smt. Kirti Deshmukh for matching the same with the bones of the deceased-child, but the same has •--^r' ^^SEBiSfi;;-!'1^;.'-? :s /? been rejected on the ground that it has been filed at the belated stage at the fag end of trial and also for the reason that it is not shown as to how the same is necessary for effective and proper adjudication of the case. 1 am unable to accept the reasoning assigned by the learned Sessions Judge for rejecting the above application for the reasons that if blood sample is drawn from accused Premjeet and his wife and the same is matched with the bones of the deceased-child presen/ed after postmortem for diatoms test and DNA profiling, the same can scientifically establish the paternity of the child and as such, has a direct bearing on the issue involved. The prayer of the prosecution for the above purpose ought not to have been rejected simply on the ground that the application has been filed belatedly, and interest ofthe accused persons could be protected by releasing them on bail. 09. In the matter of Goutam Kundu (supra), the appellant and respondent No.2 were duly married husband and wife. She gave birth to a female child. An applicaferi-loi" maintenance was filed by the wife and the female infant under Section 125 of CrPC. The husband also filed a criminal miscellaneous case and prayed for blood group test of the child to prove that he was not the father.of that child, because if the same is established, he would not be liable to paymaintenance. In this background, the Supreme Court observed thus: "(1)That Courts in India cannot order blood test as a matter of course. (2) Wherever applications are made for such prayer in order to have roving inquiry, the prayer for blood test cannot be entertained. (3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising underS. 112 ofthe EvidenceAct. (4) The Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. ,'i (5) No one can be compelled to give sample of blood for analysis." 10. In the case of Kathi Kalu Oghad (supra), eleven Judges Bench of the Supreme Court, while considering similar argurrients based on Article 20(3) of the Constitution, in para-16 held thus: (1) XXXXXXXXXXXX (2) XXXXXXXXXXXX (3) "To be a witness" is not equivalent to "furnishing evidence" in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence ofthe accused. (4)Giving thumb impressions or impressions offoot pr palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression "to be a witness". (5) "To be a witness" means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, maelg^o'r-given in court or otherwise. (6) "To be a witness" in its ordinary grammatical sense means giving oral testimony in court. Case law has gone beyond this strict literal interpretation of the expression which may now •" bear a wider meaning, namely, bearing testimony in court or * out of court by a person accused of an offence, orally or in writing. 11. A bare reading of Section 53 of CrPC makes it abundantly clear that an accused can be compelled for examination of his person where the police officer has reasonable grounds to believe that examination of his person would afford evidence as to commission of the offence. "Examination" includes the examination of blood, blood stains, semen, swabs, in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitionerthinks necessary in a particular case. For the aforesaid reasons, we find no substance in the arguments of learned counsel for the accused persons that grant of permission to the prosecution for taking blood sample of accused Premjeet for scientific examination would amount to compelling the accused to be a witness against himself. 12. On the basis of aforesaid discussions, l am of the opinion that learned Sessions Judge was not justified in rejecting the application of the prosecution for permission to take blood samples of accused Premjeet Deshmukh and his wife Smt. Kirti Deshmukh. Accordingly, the petition is allowed. The prosecution is directed to undertake necessary scientific examination by taking blood samples of accused Premjeet Deshmukh and his wife Smt. Kirti Deshmukh for the purposes of matching the same with the bones of deceased-child preserved for DNA profiling during postmortem. *^;_ -. - -- Sd/- DhirendraMisb" Judge