Title: Sudip Biswas @ Bura v. The State of Assam and Anr.
Decide on October 13, 2023.
Case No.: Cr.L.A/73/2023.
CORUM: HON’BLE MR. JUSTICE MICHAEL ZOTHANKUMA AND HON’BLE MRS.
JUSTICE MITALI THAKURIA.
Introduction
In the present case an appeal has been filed by the accused against the judgement given learned Magistrate in Session Case No. 49(M)/2018. Convincing the Appellant U/S 376(1) IPC and sentencing him rigorous punishment of 12 years with the fine of Rs.50,000/- while observing the facts and circumstances of the present case the two judges bench off Hon’ble Gauhati Court allowed the DNA test of the Appellant to know the paternity of the new born child to the victim and to confirm the offence of the accused.
Facts of the case
A 24 years old accused had convicted on the ground that he had raped a 48 years old victim resulting in the birth of a child. Though the appellant had filed a bail Application U/S 389 Cr. P. C. 1973, for the suspension of sentence and release on bail, vide – I.A. (Crl.) No. 160/2023, this court had dismissed the said IA (Crl.) No. 160/2023 on dated 10.10.2023 and said this would not be proper to suspend the sentence and release the appellant on bail, before the result of tha DNA test of the accused.
Court’s observation
The learned senior counsel for the appellant relied on the judgement given the Apex Court of India in the case of Gautam Kundu v. State of West Bengal & Others. 1993 3 SCC 48. The learned senior counsel argued that it is unjust and against the law allow the DNA test of the accused without the consent of the accused. The Additional Public Prosecutor submitted that the victim was mentally ill and unable to recall the previous incidents. The Hon’ble High Court relied on various judgements of the Apex Court in the relation rape and child birth in the result of rape to unfold the mysterious truth of the case. In the cases like Sandeep v. State of UP, Dipanwita Roy v. Ronobroto Roy, Bhabani Prasad Jena v. Orrisa State Commission for Women and Raj Kumar v. State of MP. In all the above mentioned cases the DNA test accepted to unfold the truth. The Hon’ble High Court ordered to examine the DNA test of accused and child born to the victim in the result of rape to prove the paternity of the child and allegation of the rape, and directed to the lower court to take the DNA test as an additional evidence U/S 391 of Cr. P. C. 1973, also directed whenever the DNA test result will be received by learned trial court, the same shall be transmitted to this court along with the lower court report.
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Written by: Aamir Hussain.
