IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Revision No.13 of 2005. Judgment Reserved on: 08.07.2011. Date of decision: 02.09.2011 Ramesh Kumar … …Petitioner Versus Master Ankit (Minor) … …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Petitioner : Mr.P.P. Chauhan, Advocate. For the Respondents: Mr.Sharwan Dogra, Advocate. Dev Darshan Sud,J. The petitioner challenges the order passed by the learned Sessions Judge reversing the order passed by learned Sub Divisional Judicial Magistrate, Rampur in a petition under Section 125 of the Code of Criminal Procedure instituted on behalf of the minor claiming maintenance on the ground that he was the son of the petitioner herein. The learned trial Court on the evidence on record dismissed the petition. 2. Two points were settled by learned trial Court for consideration. (1) Whether the petitioner- respondent has been born in the result of sexual 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 intercourse committed by the petitioner herein on Tauli Devi alias Manisha. Adverting to this point, the learned trial Court rejected the petition on the ground that her conduct after the alleged sexual intercourse was not natural. The case of rape had been registered against the petitioner herein after about four months of the incident. At that point of time, the petitioner herein had already been held guilty for offences under Section 376 by the learned Sessions Judge. The petition was dismissed. 3. The respondent herein appealed. The learned Sessions Judge set aside the order holding that even in the absence of the evidence of the younger sister of the mother of the claimant there was ample evidence on the record to establish that he was the illegitimate offspring of the petitioner. The learned Sessions Judge notes:- “13. … … … … … … … …On 22.10.2002 that is after the birth of the petitioner, the police had applied for obtaining sample of blood of the petitioner, his mother and the respondent. P.W.1 was prepared to supply sample of blood of her child and herself to the police and the Medical Officer for establishing the paternity of her child. The respondent however had refused to supply a sample of his blood to the Medical Officer. The Ld.Counsel for the respondent had simply argued that the respondent had not refused to supply sample of his blood and as such, the petitioner was required to establish his relationship with the respondent by 3 independent evidence. It had also been argued that the respondent had not been stated and explained the circumstances for which a sample of his blood was sought by the Medical Officer and the police on 22.10.2002. I find that the submission of the respondent merited outright rejection. The plea of the respondent was a plea of despair not worthy of any credence. The respondent had sought legal assistance from the day one. .. … … … … ” 4. The petition was accordingly allowed. I have noted in some detail the observations made by learned Sessions Judge as I find that they are of major significance. 5. Learned counsel for the petitioner relies upon the judgment of this Court in Criminal Appeal No.445 of 2003, titled: Ramesh Kumar vs. State of H.P., decided on 7th September, 2010 in which he has been acquitted for offences under Sections 376, 342 417 and 506 IPC, which related to the offence of rape as alleged against him by the respondent. Learned counsel submits that once the acquittal was recorded, there can not be a presumption that the respondent was born from illegitimate sexual intercourse. On going through the judgment, what I find is that the Hon’ble Judge after consideration of the evidence holds that the possibility of consensual sex was established on the record and not of rape. This fact, coupled with the observations made by the learned Sessions Judge, is 4 sufficient to hold that the petitioner cannot escape his liability for maintaining the respondent herein. 6. I do not find any perversity in the judgment of the learned Sessions Judge. This petition is accordingly dismissed. September 2, 2011. (Dev Darshan Sud) (aks) Judge.