GAUHATI HIGH COURT ISSUES ORDER ON SUDIP BISWAS V/S THE STATE OF ASSAM AND ANR.

GUWAHATI, India, Oct. 21 -- Gauhati High Court issued the following order on Sept. 22:

1. Heard Mr. H.R.A. Choudhury, learned Senior Counsel for the appellant assisted by Mr. A. Ahmed. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam.

2. This is an appeal against the judgment dated 26.07.2022 passed by the learned Sessions Judge, Bongaigaon in Sessions Case No.49(M)/2018 convicting the appellant under Section 376(1) IPC and sentencing him to undergo rigorous imprisonment for 12 (twelve) years with a fine of Rs.50,000/-, in default to undergo simple imprisonment for 1 (one) year.

3. The appellant, who was 24 years old has been convicted on the ground of having raped a woman of 48 years, resulting in the birth of a child. Though the appellant had filed an application under Section 389 Cr.P.C. for suspension of the sentence and release of the appellant on bail, vide I.A.(Crl.) No.160/2023, this Court had dismissed the said I.A.(Crl.) No.160/2023, vide order dated 10.10.2023 by holding that unless and until a DNA test/profiling of the appellant was done, it would not be proper to suspend the sentence and release the appellant on bail.

4. This Court had, during the pendency of I.A.(Crl.) No.160/2023, directed the appellant's counsel to obtain instructions as to whether the appellant was willing to undergo a DNA test, to verify whether he was the father of the child that had been born to the victim. However, the learned Senior Counsel for the appellant had stated on 10.10.2023 that the appellant was not willing to undergo a DNA test.

5. The question that arose was whether this Court could direct the appellant to undergo a DNA test, to prove whether he was the father of the child born to the victim and which in turn would prove as to whether he was the rapist of the victim.

6. The learned Senior Counsel for the appellant had submitted that this Court cannot compel the appellant to undergo a DNA test without his consent. In this regard the learned Senior Counsel had submitted that in terms of the judgment of the Supreme Court in the case of Goutam Kundu Vs. State of West Bengal & Others, reported in 1993 3 SCC 418, Courts in India cannot order a blood test as a matter of course. He had also submitted that the Apex Court has held that the Courts have to carefully examine the consequence of ordering a blood test and no one can be compelled to give his/her sample of blood for analysis.

7. The learned Senior Counsel submits that the evidence adduced by the prosecution does not prove that the appellant was the rapist of the victim or that the appellant was the father of the victim's child. In this respect, he has referred to the evidence given by the prosecution witnesses, especially the evidence given by the victim in her cross-examination, wherein she has stated that she came to know the name of the appellant only when the case was filed and that she had not seen the face of the person who raped her on the relevant night, due to darkness. He also submits that as the FIR had been filed after 6/7 months after the alleged rape had been committed, the same cast a doubt on the authenticity of the contents of the FIR.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=tuqye3PhFs%2BBDn75ghiOpCW6N7gu%2BF%2Fx9BsALvg7%2FIhttsCbt2JBQY6QztRFVGRq&caseno=Crl.A./73/2023&cCode=1&cino=GAHC010031352023&state_code=6&appFlag=)

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