IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 20TH OCTOBER 2011 / 28TH ASWINA 1933 Crl.MC.No. 2928 of 2011() ------------------------- AGAINST THE ORDER DATED 01/07/2011 IN CMP.407/2011 IN SC.1101/2007 of II ADDL. ASSISTANT SESSIONS COURT, TRIVANDRUM .................... PETITIONER(S): PETITIONER/COMPLAINANT ------------------------------------- BEEVI HUSSAIN, W/O.HUSSAIN, NOW RESIDING AT BEEVI MANZIL, T.C. 32/1143, 2ND CROSS ROAD, ALL SAINTS COLLEGE, BEACH (P.O), THIRUVANANTHAPURAM. BY ADV. SRI.GOPAKUMAR R.THALIYAL SRI.S.VENUGOPAL SRI.KURUPPATH BHASKARAN RESPONDENT(S): RESPONDENTS/ACCUSED & STATE ------------------------------------------ 1. RAHIM, PLAVIRA HOUSE, PACHIRA, PALLIPPURAM (P.O), KANIYAPURAM, THIRUVANANTHAPURAM DISTRICT, PIN - 695 316. 2. SAFEELA, W/O.REHIM, PLAVIRA HOUSE, PACHIRA, PALLIPPURAM (P.O), KANIYAPURAM, THIRUVANANTHAPURAM DISTRICT, PIN - 695 316. 3. SHERIFA BEEVI, W/O.SHAHUL HAMEED, PLAVIRA HOUSE, PACHIRA, PALLIPPURAM (P.O), KANIYAPURAM, THIRUVANANTHAPURAM DISTRICT, PIN - 695 316. 4. RAMLA, W/O.SULAIMAN, FATHIMA MANZIL, PACHIRA, PALLIPPURAM (P.O), KANIYAPURAM, THIRUVANANTHAPURAM DISTRICT, PIN - 695 316. 5. HASSAN, S/O.SHAHUL HAMEED, PLAVIRA HOUSE, PACHIRA, PALLIPPURAM (P.O), KANIYAPURAM, THIRUVANANTHAPURAM DISTRICT, PIN - 695 316. 6. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. KOCHI - 682 031. ADV. SRI.SHAJIN S.HAMEED FOR R2-4 PUBLIC PROSECUTOR SMT.R.REMA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.C.NO. 2928/2011 APPENDIX PETITIONER'S EXHIBITS ANNEXURE-I TRUE COPY OF THE AFFIDAVIT AND PETITION DATED 10.02.2011 IN C.M.P.NO.407/2011 IN S.C.NO. 1101/2007 ALONG WITH ITS TRUE ENGLISH TRANSLATION. ANNEXURE-II CERTIFIED COPY OF THE ORDER PASSED BY THE 2ND ADDITIONAL ASSISTANT SESSIONS JUDGE, THIRUVANANTHAPURAM IN C.M.P.NO.407/2011 IN S.C.NO.1101/2007 DATED 01.07.2011. RESPONDANTS'S EXHIBITS : NIL /TRUE COPY/ P.A. TO JUDGE dnc N.K.BALAKRISHNAN, J. ------------------------------- Cr.M.C.No.2928 of 2011 ------------------------------- Dated this the 20th day of October, 2011. O R D E R This petition is filed by the defacto complainant in S.C.No.1101/07 on the file of IInd Additional Asst. Sessions Judge, Thiruvananthapuram. There are five accused in that case. The first accused against whom the offence of rape is alleged is stated to be absconding. He is reported to be in gulf. Other four accused are facing trial. Of them, A2 to A4 are ladies. As against the 5th accused, (Hassan), it is submitted that no offence of rape is charged against him. A petition was filed by the defacto complainant to have the DNA test conducted so as to prove that the child given birth to by the defacto complainant was born through the 1st accused who was stated to have raped the complainant. Since the case against the 1st accused, who is absconding, is to be treated as split up, no purpose would be served by conducting the DNA test at this stage. Not only that, in the 2 Cr.M.C.No.2928 of 2011 absence of A1 (the alleged father of the child), it is not known how DNA test can be conducted. A2 to A4 being women cannot be liable to be punished for the offence of rape. It is stated that there is no allegation of rape against the 5th accused. Hence the request of the complainant is left open to be considered when the 1st accused appears in court and faces trial. Therefore, this petition is dismissed but reserving the right of the complainant to move the trial court as and when the 1st accused appears to face the trial. N.K.BALAKRISHNAN Judge. ami/