IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.32162 of 2009 MD.ISHHAQUE @ MD.ISHFAQUE, son of Md. Hafiz, resident of village Naraula, Police Station Obra, District Aurangabad (Bihar)… Petitioner. Versus 1. THE STATE OF BIHAR 2. Mr. Shahnaz Khatoon, daughter of Md. Safique, resident of village- Naraviba, P. S. Obra District Aurangabad Bihar. … Opposite parties. ----------- 3. 16.11.2009. Heard counsel for the petitioner, counsel for the State as also counsel for the informant. The allegation against the petitioner for offence under Section 376 of the Indian Penal Code is primarily based on the fact that the victim girl was subjected to physical cruelty and assault against her wishes. The prosecution story in fact for the purpose of bail needs not be gone into in view of the fact that now the petitioner has taken a specific stand that the child who is said to be conceived by the victim girl as a consequence of physical assault on her person does not belong to him and he is prepared to undergo DNA Test to prove this aspect. From the order of the court below it would appear that even such an offer was made by the petitioner which was also accepted by the victim girl but due to lack of facility 2 in local government hospital such DNA Test could not be carried out. Mr. Vindhyachal Singh, learned counsel for the petitioner would submit that if the petitioner is granted provisional bail, still he will get DNA Test done. This court taking into account that there is possibility of putting pressure and/or tampering the evidence by the petitioner in the event of his being released on bail, would direct for release of the petitioner namely Md. Ishhaque @ Md. Ishfaque on provisional bail for a period of six weeks on his furnishing bail bond of Rs.10,000/- (ten thousand) with two sureties of the like amount each to the satisfaction of learned SDJM, Daudnagar, District –Aurangabad in connection with Obra P. S. Case No. 25 of 2009, subject to the following conditions:- (i) One of the sureties for release of the petitioner on provisional bail shall be his father. (ii) the petitioner on being released on provisional bail shall immediately report to the investigating officer within 48 3 hours and thereafter the petitioner in company of the investigating officer will get his sample collected under the supervision of Director, Forensic Science Laboratory, Patna who is directed to ensure that samples necessary for pathological test/DNA Test of the petitioner, victim lady and the child is collected within three days of their appearance before him. In this regard the learned Counsel for the informant also undertakes that informant and the child shall also appear before the Investigating Officer for accompanying him to the office of the Director, Forensic Science Laboratory. (iii) On collection of samples from the persons concerned namely, petitioner, victim lady and child and completing the formalities by way of filling up the prescribed form and production of two passport size of photographs by them, the same will be sent for its 4 examination to Central Forensic Science Laboratory, Hyderabad and the said laboratory will submit its report of DNA Test to the Director Forensic Science Laboratory within a period of two weeks from the date of receipt of samples in a sealed cover. (iv) The petitioner in the period of provisional bail would remain away at any place beyond the radius of 100 kilometers of his village under intimation of his temporary place of abode to the Investigating Officer and irrespective of the result of DNA Test must surrender in the concerned court within six weeks from the date of his being granted provisional bail. (v) Such report of DNA Test received by the Director Forensic Science Laboratory in the sealed cover will be transmitted by him to the SDJM, Daudnagar, Aurangabad and if it is found from the said report that the child in question belongs to the 5 petitioner, it would cancel the provisional bail of the petitioner and take him into custody. On the other hand, if it is found that DNA test does not support the allegation of the prosecution and the child is found to be not belonging to the petitioner, provisional bail of the petitioner shall be confirmed. Let a copy of this order be given to Mr. Chaubey Jawahar, learned counsel for the State. kanchan (Mihir Kumar Jha, J.)