Delhi High Court
X vs State & Anr on 17 July, 2025
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Pronounced on: 17th July, 2025
+ CRL.M.C. 2984/2023
Ms. X
D/o XYZXYZ
R/o XYZXYZ
NEW DELHI-110017 .....Petitioner
Through: Ms. Nandita Rao, Senior Adv. with
Ms. Aditi Shivadhatri, Ms. Prerna
Singh, Ms. Jagriti Singh, Ms. Mamta
Saha, Mr. Amit Peswani and
Mr. Ankur Raghav, Advocates.
versus
1. STATE (NCT OF DELHI)
through SHO, PS Saket
New Delhi-110017
2. ABHISHEK PARUTHI
S/o Sh. R. K. Paruthi
R/o H. N0.193, Gulmohar Enclave
New Delhi - 110049. .....Respondents
Through: Mr. Shoaib Haider, APP for the State
with SI Udai Singh, P.S.Saket.
Mr. Rakesh Kumar Khanna, Sr. Adv.
with Mr. Harsh Prabhakar, Mr. Dhruv
Chaudhary, Ms. Pallavi Garg,
Mr. Anirudh Tanwar, Mr. Shubham
Sourav, Advocates for Respondent
No.2 along with R-2 in-person.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T
NEENA BANSAL KRISHNA, J.
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KUMAR BHATT
Signing Date:17.07.2025
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1. Petition under Section 482 Code of Criminal Procedure, 1973
(hereinafter referred to as ―Cr.P.C.‖) has been filed by the Petitioner/Ms. X
seeking quashing of Order dated 19.04.2023 passed by learned Additional
Sessions Judge, New Delhi setting aside Order of learned M.M. dated
02.06.2022, whereby blood sample of Respondent No.2/Abhishek Paruthi
was permitted to be taken for DNA analysis.
2. Briefly stated, on the Complaint made by the Petitioner / Prosecutrix,
FIR No.176/2021 under Sections 354/506/509 of the Indian Penal Code,
1860 (hereinafter referred to as ―IPC‖) PS Saket, was registered against
accused Karan Paruthi, elder brother of Respondent No.2/Abhishek Paruthi.
On the statement of Petitioner recorded under Section 164 Cr.P.C., Sections
326/313/354/34 IPC were added against Respondent No.2/Abhishek
Paruthi.
3. During the pendency of investigations, the Prosecutrix had alleged
that on midnight of 21/22.05.2021, while she was sleeping, someone rang
her doorbell. She opened the door and found that accused, Karan Paruthi in
drunkard condition at her door, who tried to forcefully enter the house by
pushing her back, touching her in a wrong way and then tried choking her by
strangulating her neck. She somehow kicked him back and managed to
close her door. She tried to call Abhishek Paruthi / Respondent No.2, brother
of Karan Paruthi, who did not respond to her calls. However, Karan Paruthi
repeatedly rang the bell and kept kicking the door and loudly using
defamatory and unparliamentary words. Neighbours also gathered and asked
him to leave, on which he went down the stairs.
4. Thereafter, the Prosecutrix approached Abhishek Paruthi /
Respondent No.2 and informed him about the incident. However, the
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Prosecutrix was manipulated by the accused persons. On the next day, she
filed the Complaint to the Police, on which FIR No.176/2021 was registered
at Police Station Saket.
5. During investigations, accused Karan Paruthi & Abhishek Paruthi /
Respondent No.2 did not join investigations. Accused Karan Paruthi was
granted Bail in July, 2021, but he failed to join investigations for almost 05
months and Application for cancellation of Bail was filed by the State in the
Court of learned Sessions Judge. It is only then, Karan Paruthi joined
investigations, but did not cooperate with the Investigating Agency and
failed to give his mobile phone.
6. Similarly, Abhishek Paruthi / Respondent No.2 absconded for almost
05 months and thereafter got Anticipatory Bail, but failed to join
investigations. He also joined investigations after his Bail was cancelled vide
Order dated 12.04.2022 and he was arrested on the same day at 08:30 PM.
He was taken for medical examination, where he denied providing his
medical samples. Even thereafter, he did not cooperate in the investigations
and gave evasive responses with regard to whether he has indulged in sexual
intercourse with the Petitioner.
7. It is submitted that the Status Report was filed by the IO indicating
independent evidence that Abhishek Paruthi / Respondent No.2 forcibly
tried to take the Petitioner in an Ambulance to have the foetus aborted. of
During the investigation, evidence of the Doctor has also come on record
that the accused person approached her to secure the abortion of the foetus.
Respondent No. 2 has also failed to handover any of his mobile phones and
refused to give his blood sample for DNA.
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KUMAR BHATT
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8. On 21.04.2022, IO moved an Application under Sections 53/53A
Cr.P.C. seeking permission to get DNA analysis of Abhishek Paruthi /
Respondent No.2 to match with that of the foetus. This Application was
allowed by learned M.M. vide Order dated 02.06.2022.
9. But, Abhishek Paruthi / Respondent No.2 challenged the Order by
filing Crl. Revision Petition No.210/2022, to which the prosecutrix filed her
Reply dated 20.03.2022.
10. Learned ASJ allowed the aforesaid Crl. Revision Petition
No.210/2022 and denied the Prosecution permission to match his DNA with
that of the child.
11. Aggrieved by the impugned Order, the Prosecutrix has filed present
Petition.
12. The grounds for challenging the Order of learned ASJ are that the
procedure for investigation of cases under Section 376 IPC, are well defined.
It has not been appreciated that medical sample of blood of accused is most
crucial evidence for the present offence. Learned ASJ ventured into the issue
of legitimacy of child with Abhishek Paruthi / Respondent No.2, which was
absolutely not essential for proving the alleged offence.
13. It has been erroneously observed by the learned ASJ that the offence
in question can be proved by other material evidence including oral
testimony of the Prosecutrix.
14. It is submitted that the DNA analysis is material evidence for the case
of the Prosecution under Section 376 IPC for which medical samples are
mandatorily required to be taken. Non-collection of the blood sample would
be fatal to the case of the Prosecution. The permission to obtain the DNA
evidence, would conclusively prove this issue of the commission of the
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offence. The rights of the minor child, is not in issue and no presumption
can be drawn that ascertaining the paternity would result in harm to the
interest of the child.
15. It is further submitted that the learned ASJ placed reliance on the
cases of Ashok Kumar vs. Raj Gupta & Ors., (2022) 1 SCC 20 and Aparna
Ajinkya Firodia vs. Ajinkya Arun Firodia, SLP (C) No.9855/2022 decided
on 20.02.2023. The mother of the child was legally wedded to the husband
and there was no separation between them, raising a presumption under
Section 112 of the Indian Evidence Act.
16. The facts in the present case are distinguishable, as the Prosecutrix
was admittedly separated from her husband since 2018 and her husband had
no access to her. The learned ASJ has erroneously placed reliance on
Section 112 of the Indian Evidence Act and has not considered the
averments contained in the Affidavit of both the parties of separation as
sufficient to conclude that they were not having access to each other.
17. In Nandlal Wasudeo Badwaik vs. Lata Nandlal Badwaik, AIR 2014
SC-932, the Apex Court noted that Section 112 of the Indian Evidence Act
was enacted at the time when modern scientific advancement and DNA Test
were not even in contemplation of legislature. Where there is evidence to the
contrary, the presumption is rebuttable and must yield to proof. Legal fiction
assumes existence of a fact, which may not really exist. However,
presumption of a fact depends on the satisfaction of certain circumstances.
The investigations are still pending and the rights of the Investigating
Agency to conduct the proper investigation to collect all the material against
the accused, must not be interfered with.
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18. Pertinently, the mother of the child herself had stated that the child
was conceived in consequence of continuous commission of offence upon
her, but ignoring this fact, reliance has been placed on Section 112 of the
Evidence Act, which is misplaced.
19. Reliance has been placed on Narayan Dutt Tiwari vs. Rohit Shekhar
and another, (2012) 12 SCC 554 wherein the Supreme Court of India
upheld the forceful extraction of DNA for the determination of paternity and
restricted the right of privacy to the extent that the DNA Test would be
conducted in the confines of the residence.
20. Furthermore, it has been overlooked that the Investigating Officer is
entitled to collect the best available evidence to prove the case of the
prosecution and depriving the Investigating Agency of such collection, on
the basis of surmises on the relative merit of the legitimacy of a child, is
arbitrary and contrary to law.
21. It is, therefore, submitted that the impugned Order is liable to be set-
aside and the blood sample of the Accused, be permitted to be taken by the
Investigating Officer for DNA matching.
22. The Respondent No. 2, Mr. Abhishek Paruthi in his detailed
Reply, has taken the preliminary objection that the child has not been
arrayed as a party, whose multiple legal and constitutional rights would be
affected by the decision of this Court. The legitimacy of the child is sought
to be challenged just at a drop of hat, which is not permissible under law.
23. It is submitted that the Complainant is an MBA and Advocate of
about 40 years of age, who habitually levels rape and sexual assault
allegations on various persons, for achieving the ulterior motive. The
Complainant „SA‟ is a married woman and was lawfully married to one Mr.
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Gaurav Sethi on 27.02.2014. Within one year of marriage, she lodged an
FIR No. 514/2014, Police Station Greater Kailash-1, on the allegations of
rape on false promise of marriage by one of her colleague, who was her
junior and seven years younger to her in the Company where they were
working.
24. Previously also, the Complainant has been involved in similar FIRs
with allegations of rape, even though she was lawfully married to Mr.
Gaurav Sethi. One FIR is of 2014, while three FIRs are of 2016 and one
FIR is of 2021. All these five FIRs contained allegations of sexual
molestation, stalking, assault, display of gun, deliberately causing
miscarriage, criminal conspiracy, rape and sexual harassment. She has also
levelled allegations of corruption, etc. against the police officials.
25. She also made similar allegations of abortion against Mr. Randhir
Kumar, Advocate, Saket Court, who is a married man with a family. She has
made complaints to Bar Counsel only to achieve her ulterior motive against
the Advocate.
26. The Investigating Officer in connivance with the Prosecutrix, is not
disclosing true facts to the Court including lodging of multiple Rape FIRs,
her lawful marriage to Mr. Gaurav Sethi, her Legal Status, Legitimacy of
minor child and Corruption Complaints against the Delhi Police officials.
27. Further, she does not co-operate during the investigations and
withdrew her allegations on the ground of Settlement or alleging mistake of
facts and misconception or for other reasons.
28. It is asserted that the impugned Order has been correctly made in lines
with the Judgment of the Apex Court. If the Application is permitted to be
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maintainable, it would change the entire scope of Sessions Court trial and
shall be against the scheme of the Code of Criminal Procedure.
29. It is further asserted that the co-accused, Karan, brother of the
Respondent No. 2, was granted Anticipatory Bail by the learned Sessions
Judge on 15.07.2021. Thereafter, State filed an Application for cancellation
before the learned Sessions Judge, which was dismissed.
30. Complainant had also filed Transfer Petition No. 9/2021 making
allegations of bias etc., on the learned Sessions Judge.
31. The Complainant also filed the Application for cancellation of Bail
before this Court, which was allowed and the Respondent No. 2 was
arrested. Regular Bail was granted vide Order dated 21.04.2022, which
Order has also been challenged by the Complainant before this Court, which
is pending consideration.
32. On merits, it is submitted that the role assigned to the Applicant,
Abhishek is of a close friend, in FIR dated 22.06.2021, which has been
concealed for achieving ulterior motives of the Complainant. It is further
claimed that the FIR has been registered only under Section 354/506/509
IPC on 22.06.2021, against Karan Deep. The Statement under Section 164
Cr.P.C, is contrary to the record and the Annexure which is filed by the
Complainant herself.
33. It is further submitted that the Chargesheet has yet not been filed since
two years. Moreover, Respondent No. 2 was unable to join the
investigations on account of another FIR lodged by his wife on account of
matrimonial disputes at the instance of the Complainant, in Uttar Pradesh.
34. In the end, it is contended that the DNA is sought to be matched with
a living minor child and not a foetus. It is submitted that the learned
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Sessions Judge with a detailed reasoned Order, has rightly declined the
taking of the sample of blood of the Respondent No. 2.
35. There is no merit in the Petition, which is liable to be dismissed.
36. The Petitioner in her Rejoinder to the Reply of the Respondent
No. 2, asserted that the child was born to the Petitioner in consequence of
the sexual offence committed upon her by the Respondent No. 2. The
Accused is also involved in FIR No. 272/2021 under Section
307/323/504/506/498 IPC, Police Station Nauchandi, Meerut.
37. It is further asserted that the Respondent No. 2 has not considered that
this is a criminal case and not civil litigation and therefore, there is no
question of ascertainment of the legitimacy of the child. The incomplete
Chargesheet had to be filed because of non-cooperation of the accused.
38. It is further asserted that the Statement of the Prosecutrix was
recorded under Section 164 Cr.P.C. It is claimed that under the law, even if
the offence of rape is committed on a married woman, the medical samples
of the Accused as material evidence, is required to be collected by the IO
and he cannot take the benefit of Section 112 of the Indian Evidence Act.
39. The allegations made are only to harass the Prosecutrix by claiming
that she is habitual in making false FIRs, which is extremely objectionable
and invites strict action against the Respondent No. 2. He is merely trying to
discourage, demotivate and demean the Prosecutrix further. Insofar as the
five FIRs are concerned, it is submitted that in FIR No. 541/2014, the trial
was conducted and benefit of doubt was given to the Accused, who was
acquitted. In the other two FIRs bearing 246/2016 and 249/2016, both were
registered under Section 376 IPC on the same date and time, in which the
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Prosecutrix was the Complainant and another lady Advocate, was Accused
in FIR No. 420/2016.
40. A cross-FIR bearing No. 249/2016 filed against the present Petitioner
by the Accused in FIR No. 420/2016, which was registered under Section
323 IPC and not under Section 376 IPC.
41. It is contended that each case has to be decided on the merits of its
own case and reference to the other FIRs is not only unfair but is also
demoralising for the Prosecutrix. Only two FIRs under Section 376 IPC,
were registered against the Accused, who had been the Legal Advisor of the
Prosecutrix throughout and was well aware of the FIRs.
42. It is asserted that the present Accused though engaged, but did not
disclose this fact to anyone and kept on committing offence on the
Prosecutrix and kept on falsely stating that he loved her and that he was
committed and desperate to marry her.
43. It is further submitted that the Application under Section 53/53A
Cr.P.C. was filed by the State for collecting corroborative evidence, which is
material in the facts of the present case. The contentions raised by the
Respondent, are without merit and the Application under Section 53/53A
Cr.P.C. be allowed.
44. Status Report was filed on behalf of the State wherein it is
explained that though initially, FIR was registered under Section
354/506/509 IPC but after the recording of the statement of the Prosecutrix
under Section 164 Cr.P.C., Section 376 IPC was added. The Respondent
No.2 was medically examined at AIIMS Hospital, but did not go operate
with the doctor and denied to give his blood sample for the investigations.
During the investigations, he has failed to hand over the mobile phone of the
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Complainant, which according to the Complainant, had been in his
possession.
45. It is submitted that the Petition may be allowed.
46. Written Submissions and compilation of Judgments have been
filed on behalf of the Petitioner and Respondents.
47. Submissions heard and record perused.
48. FIR No.176/2021 under Section 354/506/509 IPC was registered on
the Complaint of the Prosecutrix against Karan Paruthi, brother of
Respondent No. 2. Subsequently, a Statement under Section 164 Cr.P.C.
was recorded on 29.06.2021 wherein she made specific allegations of rape
against the Respondent No. 2/Abhishek Paruthi, leading to addition of
Section 376 IPC in the FIR.
49. It has been revealed during the investigations that the Prosecutrix was
pregnant and has subsequently delivered a child, which according to her was
the consequence of the alleged rape by Respondent No. 2. The Accused
after he was arrested, was taken to AIIMS Hospital for his medical
examination, but he did not co-operate and did not permit his blood sample
to be taken for the purpose of investigations.
50. The Investigating Officer then moved an Application under Section
53/53A Cr.P.C. on 21.04.2022, which was allowed by the learned M.M. vide
Order dated 02.06.2022 but was set-aside by the learned ASJ vide detailed
Order dated 19.04.2023.
51. The main question which arises is: Whether the blood sample of the
Accused facing Charges of 376 IPC, can be permitted to be collected under
Section 53/53A Cr.P.C.?
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52. Section 53 Cr.P.C. provides for examination of accused by
medical practitioner at the request of police officer. It reads as under:
“53. Examination of accused by medical
practitioner at the request of police officer.–
(1) When a person is arrested on a charge of
committing an offence of such a nature and alleged to
have been committed under such circumstances that
there are reasonable grounds for believing that an
examination of his person will afford evidence as to the
commission of an offence, it shall be lawful for a
registered medical practitioner, acting at the request
of a police officer not below the rank of sub-inspector,
and for any person acting in good faith in his aid and
under his direction, to make such an examination of
the person arrested as is reasonably necessary in
order to ascertain the facts which may afford such
evidence, and to use such force as is reasonably
necessary for that purpose.
(2) Whenever the person of a female is to be
examined under this section, the examination shall be
made only by, or under the supervision of, a female
registered medical practitioner.
Explanation.–In this section and in sections 53A
and 54,–
(a) “examination” shall include 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 practitioner thinks
necessary in a particular case;
(b) “registered medical practitioner” means a
medical practitioner who possesses any medical
qualification as defined in clause (h) of section 2 of theCRL.M.C. 2984/2023 Page 12 of 27
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Indian Medical Council Act, 1956 (102 of 1956) and
whose name has been entered in a State Medical
Register.‖
53. Section 53 Cr.P.C. provides that a person is arrested on the Charge of
committing an offence under the circumstances that there is a reasonable
ground to believe that examination of such person would afford evidence as
to the commission of the offence, it shall be lawful for the medical
practitioner, to make such examination of the person arrested on the request
of the police officer.
54. Section 53A Cr.P.C. is a special provision enacted in relation to the
offence of rape, which has been inserted w.e.f. 23.06.2006 by way of Act 25
of 2005. It reads as under:-
53A. Examination of person accused of rape by
medical practitioner.–
(1) When a person is arrested on a charge of
committing an offence of rape or an attempt to
commit rape and there are reasonable grounds for
believing that an examination of his person will
afford evidence as to the commission of such offence,
it shall be lawful for a registered medical practitioner
employed in a hospital run by the Government or by a
local authority and in the absence of such a
practitioner within the radius of sixteen kilometres
from the place where the offence has been committed,
by any other registered medical practitioner, acting at
the request of a police officer not below the rank of a
sub-inspector, and for any person acting in good faith
in his aid and under his direction, to make such an
examination of the arrested person and to use such
force as is reasonably necessary for that purpose.
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(2) The registered medical practitioner conducting
such examination shall, without delay, examine such
person and prepare a report of his examination giving
the following particulars, namely:–
(i)….
(3) …
(4) …
(5) The registered medical practitioner shall,
without delay, forward the report to the investigating
officer, who shall forward it to the Magistrate
referred to in section 173 as part of the documents
referred to in clause (a) of sub-section (5) of that
section.‖
55. Section 53A Cr.P.C. provides that in cases of rape/attempt to rape,
where there is a reasonable ground to believe that the examination of such
person would afford evidence as to the commission of the offence, direction
be given for examination of such arrested person and ―to use such force as
is reasonably necessary for that purpose.‖
56. From the conjoint reading of Section 53 and 53A Cr.P.C., it emerges
that a person accused of a crime may be medically examined on the request
of the Police Officer. It is further qualified that in case of the allegations of
rape, while directing the medical examination of the Accused person, further
direction may be given for use of such force as is reasonably necessary for
that purpose.
57. Further, the Explanation to Section 53 was also inserted w.e.f.
23.06.2006 wherein it was explained that the examination under Section 53
& 53A Cr.P.C., would include examination of blood, blood stains, semen
etc.
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58. The Sections therefore, explicitly provide that in the offences of
rape, it has become mandatory for the Prosecution to go for DNA Test, to
facilitate the Prosecution to prove its case against the Accused. Even prior to
2006 before Section 53A Cr.P.C. was inserted, the Prosecution could still
resort to this procedure for DNA Test for analysis and matching of semen of
the Accused which may have been found on the under garments of the
Prosecutrix, to make its case full proof; in case the Investigating Agency
did not do so, they may face the consequences.
59. The main argument of the Respondent No. 2 to resist the taking of his
blood sample, is that the Prosecutrix was legitimately and legally married to
her husband at the time of alleged offence. The child was born during the
subsistence of her marriage. The presumption under Section 112 of the
Evidence Act provides a presumption of legitimacy of a child, who is born
during the subsistence of marriage. The DNA Test analysis would amount to
challenge to the legitimacy of the child, which is not in the interest of
justice. The Respondent has thus, resisted giving his blood sample.
60. Before discussing the scope of presumption under Section 112 of the
Indian Evidence Act, 1872, it is pertinent to observe that it is a settled
principle of law that ‗odiosa et inhonesta non sunt in lege praesumenda’
(nothing odious or dishonorable will be presumed by the law). The law
presumes against vice and immorality. In a civilized society, it is imperative
to presume the legitimacy of a child born during continuation of a valid
marriage and whose parents had “access” to each other.
61. To comprehend the contention raised by Respondent No.2, it is
pertinent to refer to that Section 112 of the Evidence Act which provides
that birth during marriage is conclusive proof of legitimacy.
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62. Section 112 Indian Evidence Act, 1872 reads as under:-
“Section 112 of the Indian Evidence Act, 1872, deals
with the legitimacy of a child born during a valid
marriage. It states that if a child is born during a
marriage or within 280 days of its dissolution (the
mother remaining unmarried), it is considered
conclusive proof that the child is the legitimate
offspring of the couple. This presumption can only be
rebutted if it can be proven that the parties to the
marriage had no access to each other at the time the
child could have been conceived.‖
63. Section 112 of the Evidence Act was enacted at a time when modern
scientific technology such as DNA Test as well as Ribonucleic Acid Tests
(RNA) were not in contemplation of the legislature. Therefore, this
presumption was provided in the Indian Evidence Act, to presume the
legitimacy of the child, if there was a subsisting relationship between the
husband and wife. This was essentially not only to preserve the matrimonial
fabric, but also to protect the rights of the child.
64. However, with the advancement of science and technology whereby
DNA Test has evolved, there can be no denying to resort to the DNA Test,
in order to ascertain the truth of the matter, which is most germane to the
fair and just decision and for resolving the controversy.
65. Court of Appeals (Civil Division) in Re G (Parentage Blood Sample),
(1997) 1 F.L.R. 360, observed that it is apposite for the Court to forensically
establish what the individual through their refusal, had prevented from being
scientifically determined. In this regard, it was held that justice is best
served by truth. Justice is not served by impeding the establishment of truth.
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66. Thorpe LJ in his opinion while agreeing with Waite LJ, observed that
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 and emotional anxieties and needs may drive the
refusal to co-operate in the scientific tests, which the Court may direct.
67. In the Court of Appeal (Civil Division) in Re H and A (Children)
(Paternity: Blood Tests), 2002 EWCA Civ 383, it was observed that the
interest of justice in the abstract, are best served by the ascertainment of the
truth and there must be few cases where the interests of children can be
shown to be best served by the suppression of truth. Scientific evidence of
blood group is available since the early part of this Century and the progress
of serology has been so rapid that in many cases certainty or near certainty
can be reached in the ascertainment of paternity. Why should a risk be taken
of a judicial decision being made, which is factually wrong or may later be
demonstrated to be wrong. Where the science can assist in determination of
facts, then it is not appropriate to determine the same on the basis of legal
presumption or inference or by a long and acrimonious trial. It is in the
interest of justice that the best available evidence must be furnish in the
Court and must not be confined to unsatisfactory alternatives as
presumptions and inferences.
68. The House of Lords in Regina (Qunitavalle) vs. Secretary of State for
Health, (2003) 2 A.C. 687 had held that the laws must be construed in the
light of contemporary scientific knowledge and to give effect to a plain
parliamentary purpose, the Statute must be held to cover a scientific
development not known when the Statute was passed.
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69. Therefore, one aspect is well established that the presumptions of fact
must be permitted to be proved by the use of Science and Technology which
has now become available.
70. This principle was succinctly worded in the case of Nandlal Wasudeo
Badwaik vs. Lata Nandlal Badwaik and Anr., (2014) 2 SCC 576. The Apex
Court observed that the interest of justice is best served by ascertaining the
truth and the Court should be furnished with the best available evidence and
it may not be left to bank upon presumptions, unless science has no answer
to the facts in issue. Where there is a conflict between the conclusive proof
envisaged under law and the proof based on scientific advancement accepted
by the world community to be correct, the latter must prevail.
71. The Apex Court considered the distinction between the legal fiction
and presumption of fact. It was explained that legal fiction assumes
existence of a fact, which may not really exist. However, a presumption of a
fact depends on satisfaction of certain circumstances. Those circumstances
logically would lead to the fact sought to be presumed. Section 112
Evidence Act does not create a legal fiction, but provides for presumption.
While considering the husband‟s plea that he had no access to the wife when
the child was begotten, it stood proved otherwise by the DNA Test Report. It
was observed that the Appellant cannot be compelled to bear the fatherhood
of a child, when the Scientific Reports prove to the contrary. Being
conscious that the innocent child may not be bastardised as the marriage
between her father and mother was subsisting at the time of her birth, it was
observed that in view of the DNA Test Reports, the consequences cannot be
forestalled. It is denying the truth; „Truth must triumph’, is the hallmark of
justice.
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72. Likewise, in the case of Bhabani Prasad Jena and Orissa State
Commission for Women, (2010) 8 SCC 633, similar observations were made
that it would be permissible for a Court to direct the DNA examination to
determine the veracity of the allegations, which constitute one of the
grounds on which the party may succeed or lose. Needless to state that
where conducting of such test can be avoided, it should be done. The reason
is obvious; that the legitimacy of a child, who is not a party to the offence,
but not be disturbed in his absence.
73. In the case of Dipanwita Roy vs. Ronobroto Roy, (2013) SCC OnLine
SC 1300, which was a case of matrimonial dispute involving extra marital
relationship. While referring to the aforesaid Judgments, it was held that but
for the DNA Test, it would be impossible for the husband to confirm the
assertions made in the pleadings. DNA Testing is the most legitimate and
scientifically perfect means which the husband could use, to establish his
assertion of infidelity. This should simultaneously be taken as the most
authentic, rightful and correct means also for the wife to rebut the assertions
made by the husband and to establish that she had not been unfaithful,
adulterous or disloyal as claimed by the husband. It was thus, concluded that
the DNA Test is only to ascertain the true facts and may work in favour of
the husband to prove the allegations of infidelity or may even work in favour
of the wife, to dispel the allegations of infidelity made by the husband.
74. The Supreme Court in the case of Aparna Ajinkya Firodia vs. Ajinkya
Arun Firodia, (2024) 7 SCC 773 has held that the DNA Test was not
directed to be conducted purely because of the peculiar facts of matrimonial
dispute wherein there was an access between the husband and wife at the
time the child was begotten. A word of caution was sounded that while
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DNA Test may establish the adultery/infidelity relationship which may be
impossible otherwise, but each case has to be assessed in its own merits.
The DNA Test should be directed only in such cases where it is the only
possible evidence and there is possible way to ascertain the truth regarding
the adultery. In the peculiar facts of that case, it was held that the DNA
was not the only piece of evidence available. Furthermore, it was held that
where the person refuses to get the DNA Test done, then the presumption
under Section 114 (H) of Indian Evidence Act, would become applicable
and an adverse inference may be drawn against the person so refusing.
75. In this case of Aparna Ajinkya Firodia, (supra) as well, the utility of
DNA Test was reiterated, though was not considered appropriate to be
resorted to in the facts of the case.
76. In the context of matrimonial disputes, the High Court of Calcutta in
Lob Das vs. State of West Bengal and Another, 2024 SCC OnLine Calcutta
10836, observed that the Family Courts though competent to direct a person
to undergo medical test including DNA Test which would not be violative of
his right to personal liberty under Article 21 of the Constitution of India, but
the Court must exercise this power only if it is expedient in the interest of
justice to do so and only when the circumstances so warrant.
77. In the case of Goutam Kundu vs. State of West Bengal, (1993) 3 SCC
418, the Apex Court laid down the guidelines for directing the blood test to
be conducted to determine the paternity of the child. It was observed that the
Courts in India, cannot order blood test as a matter of course while
considering such prayers; where the Applications are made in order to have
roving inquiry, the prayer for blood test must not be entertained. There must
be a strong prima facie case that the husband must establish non-access in
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order to dispel the presumption arising under Section 112 of the Indian
Evidence Act. The Court must carefully examine the consequences of
ordering the blood test and whether it will have the effect of branding a
child as a bastard and the mother as an unchaste woman. No one can be
compelled to give sample of blood for analysis.
78. Likewise in the case of Inayath Ali vs. State of Telangana, (2024) 7
SCC 822, while considering the case under Section 498A/323/354/506 and
509 IPC, dealing with dowry related offences and the paternity of the child,
it was observed that subjecting the child to DNA Test in a proceeding where
his status is not required to be examined, must not be encouraged. It cannot
be overlooked that merely because something is permissible under the law,
it cannot be directed as a matter of course to be performed particularly when
the directions would have an effect of being invasive to the physical
autonomy of a person.
79. The word of caution while directing the blood sample to be taken for
DNA testing in the Case of Rohit Shekhar vs. Narayan Dutt Tiwari & Anr.,
AIR 2012 Del. 151 [partly modified in Narayan Dutt Tiwari vs. Rohit
Shekhar, (2012) 12 SCC 554], held that the DNA Test should be issued only
after the test of imminent need is satisfied. The truth is like a guiding star
and the quest in the judicial process and the voyage of trial. Significantly,
even though this was a Civil dispute where petitioner had sought his
paternity established, even reasonable force was permitted to be used to get
the blood sample of the Respondent.
80. The Respondent had placed reliance on the case of ‗W’ vs. ‗H’ &
Anr.‘, 2016 SCC OnLine Del 4786, to contend that wherever the issue of
paternity of a child is raised, the presumption under Section 112 of the
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Evidence Act, becomes applicable and there can be no direction to test the
paternity of the child by taking the blood sample of the Respondent. First
and foremost, this Judgment is in a Petition for divorce under Hindu
Marriage Act where the divorce was sought on the ground of adultery. It is
in that context that the Application for DNA test was filed to establish that
the child so born was not from the relationship of the Petitioner and the
Respondent. It was observed that while Section 112 of the Evidence Act
presumes the legitimacy of the child born to a married woman, is deemed to
be legitimate and the said presumption must not be disturbed on „slender‟
materials unless „compulsive and clinching‟ facts are brought to shake the
presumption by calling for a DNA examination. It was thus, concluded that
the DNA test is not to be directed as a matter of routine and the discretion
must be exercised only after balancing the interest of the parties and on due
consideration whether for a just decision, DNA test is imminently needed.
81. Similarly, in the case of Ramkanya Bai vs. Bharatram, (2010) 1 SCC
85 wherein the Order of the High Court directing DNA test of the child was
set-aside by holding that it was not justified because there was a possibility
of re-union. It was held that the discretion must be exercised only after
balancing the interest of the parties and on due consideration whether for a
just decision in the matter, DNA test is imminently needed.
82. Similarly, in the case of Kamti Devi (Smt.) vs. Poshi Ram, 2001 SC
2226, again, it was a Civil Suit filed by the husband, to challenge the
paternity of the child after 15 years of marriage of the parties, on the ground
that he had no access to the Appellant during the period when the child was
begotten. In the context of the questioning of the paternity of a child
begotten during the subsistence of marriage, it was observed that though the
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genuine DNA test is scientifically accurate, but it is not enough to escape the
conclusiveness under Section 112 of the Indian Evidence Act., if the
husband and wife had been living together during the time of conception of
the child. In this context, it was observed that by way of abundant caution
and as a matter of public policy, law cannot be allowed the consequence of
the child being branded as illegitimate on the strength of mere tilting of
probability. In the facts of the said case, the DNA test to ascertain the
paternity of the child, was denied.
83. The judgments relied upon by the learned Counsel for the
Respondents essentially arise in the matrimonial disputes. While earlier the
trend was to not resort to the DNA profiling because it impinges on the
valuable right of a child, who was not even a party to such litigation and also
in view of the Section 112 of the Evidence Act, which provided for the
legitimacy of a child born during the subsistence of a marriage or proof of
access of the husband to the wife. However, the recent trends have changed
as has been noted in the judgments discussed above and more so in the
criminal cases where the DNA profiling can in fact work in favour of the
accused person, to scientifically ascertain his innocence in case the DNA
profiling does not match with that of the child or the victim.
84. On the other hand, if the DNA profile matches, it ensures that the
guilty are not let off, for want of cogent conclusive evidence. Therefore, the
judgments on which reliance has been placed by the Petitioner while
recognising the importance of DNA profile has merely highlighted that they
may not be resorted to in every case, especially, in matrimonial dispute,
unless expedient and necessary to discern the truth.
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85. This underscores that the fundamental principles governing DNA
testing are well-established and undisputed, particularly in criminal
proceedings. In appropriate cases, especially those involving allegations of
sexual assault, recourse to DNA testing is not only permissible but
imperative.
86. In this regard, reference may also be made to Section 53A Cr.P.C.,
which makes it mandatory for getting the DNA Test, blood sample, etc.,
done in case of sexual assault offences. In the case of Krishan Kumar Malik
vs. State of Haryana, (2011) 7 SCC 130 while considering the Criminal
Case under Section 376/366 IPC, it was observed that after the incorporation
of Section 53A in Cr.P.C., it has become necessary for the prosecution to
going for the DNA Test in such types of cases.
87. To sum up the principles, the aforesaid Judgments consistently
observed that the DNA testing, which is an almost perfect science to
determine the commission of an offence of rape, must not be declined
especially when after 2006, Section 53A Cr.P.C. has been introduced
making it almost compulsory in rape cases, to conduct the blood test
including the DNA analysis. As has been noted above, in case the police
fails to do so, it may invite the wrath of the Court and is also not in the
interest of justice. It is one surest way of ascertaining the truth of the matter,
which may result in exoneration of an Accused from false implication as
much as may work in favour of the victim to bring the guilty to the books. It
is not as a DNA Test works only in favour of the victim but in many a cases,
may lead to honourable acquittal of the Accused.
88. Though, Section 53A Cr.P.C. has now almost made it mandatory to
take the blood sample but at the same time, balancing the rights of the
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Accused and the victim is required between the two. The facts of each case
have to be examined on their own merits and absolute evidence of non-
access and that the factor of non-access to the victim, may be one such
consideration for directing or refusing the blood sampling.
89. While there has been much debate in the matrimonial cases where
there is a dispute between the husband and wife and the allegations of
adultery have been made, the DNA testing which may bastardise the child,
may not be in the interest of justice but the same presumptions and the
considerations do not prevail in the criminal case, more so, when it is a case
of rape. The expediency and the advancement of technology mandates that
the blood sample must be taken for DNA analysis.
90. The core reason why the Respondent No. 2 has contested taking his
Blood Sample for DNA testing is that the Complainant was a married
woman and her marriage with her husband was subsisting and thus, the
presumption under Section 112 of the Evidence Act works in his favour and
the taking of Blood Sample is not justified in the circumstances.
91. The question in the present case, which arises now is whether the
Petitioner had any access to her husband at the time when the child was
begotten.
92. Much had been argued on behalf of the Respondent that there was a
subsisting marriage between the Prosecutrix and her husband. However, it is
brought on record by the Prosecution that the Prosecutrix was separated
from her husband since 2018 as is also evident from the averments made in
the affidavit filed by both the parties in the Family Court along with the
Petition under Section 13B(2)(1) of the Hindu Marriage Act, 1955. The
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Prosecutrix as well as her ex-husband, both had stated on divorce that they
were not having any access to each other.
93. It is only after the separation that the Prosecutrix allegedly became
friendly with the Respondent and a child was begotten from their
relationship. There can be no better evidence than the DNA Test, to support
the assertions of the Prosecutrix that it is the forcible sexual relationship
between her and the Respondent that had made her pregnant and to the birth
of the child. There can be no better evidence to prove or disprove the
commission of the offence. Therefore, the contentions of the Respondent to
resist giving his blood sample, is clearly not tenable.
94. The Respondent has not been forthcoming to give the blood sample. It
has been stated on behalf of the State that when he was taken for his medical
examination, he was non-cooperative and refused to give his blood sample.
95. In the case of Rohit Shekhar, (supra), it had been noted that the Orders
of the Court, cannot be allowed to be disregarded with impunity. It was
observed that the perception of ―the law‖ as Mr. Bumble (in Oliver Twist)
said ―is an ass – an idiot‖ will get cemented if the Courts themselves hold
their Orders to be un-implementable and un-enforceable. The Courts would
be reduced to be the laughing stock and public ridicule and the it is the duty
of every Court to prevent its machinery from being rendered a sham.
96. Furthermore, Section 53A Cr.P.C. itself states that where the Accused
does not co-operate, the reasonable force as is necessary for the purpose,
may be used.
97. It is, therefore, concluded that the FIR has been registered under
Section 376 IPC and by virtue of Section 53A Cr.P.C., the Police is duty
bound to take her blood sample for DNA analysis, especially because of the
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denial by the Respondent No.2. The learned ASJ, therefore, fell in error in
essentially venturing into the domain of civil litigation and ignoring the
crystallised principles in respect of the criminal trial, which also is the
mandate under Section 53A Cr.P.C.
98. The impugned Order dated 19.04.2023 of the learned ASJ is
hereby, set aside. It is directed that the Respondent shall present himself
for the taking of blood sample within fifteen days in co-ordination with the
Investigating Officer, for the purpose of taking the blood sample. In case,
the Respondent No.2 declines or resists, the Investigating Officer may use
reasonable force for the purpose.
99. Accordingly, the Criminal Petition is disposed of.
100. Pending Application(s), if any, also stands disposed of.
(NEENA BANSAL KRISHNA)
JUDGE
JULY 17, 2025/R/RS
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