By filing this application, the applicants-convicts have made a prayer to direct the respondents to undertake their DNA test and to submit report in that regard on the ground that with a view to unearth the real culprits , application Exhs. 64 and 65 for DNA test was given by the prosecution but as there was no facility to carry out DNA test at Porbandar or Jamnagar, DNA test was not undertaken. The report of DNA test is necessary to connect the real culprits with the offence and therefore direction for DNA test should be given to the respondents.
I have heard learned advocate Mr. Shastri for the applicants and learned APP Ms. C.M. Shah for the respondent State at length and in great detail.
The convicts are convicted for the offences under Sections 363, 366, 376 and 506(1) of the Indian Penal Code. According to the prosecution case, before about 7 to 8 months of 16.9.2009, the applicants-convicts kidnapped the victim from her lawful guardianship and applicant-convict Babu Ratnaji Baval Meghvar committed rape on her and applicant-convict Deepak Premji Somani committed criminal trespass and also committed rape on her. After investigation, the applicants were chargesheeted for the aforesaid offence and at the end of trial they were convicted. Therefore, the applicants preferred Criminal Appeal No. 679 of 2011 challenging the order of conviction and sentence. This application is filed during the pendency of appeal.
The averments made in the application indicate that the victim and other witness did not give names of real culprits and they have been wrongly implicated. The application does not indicate as to how DNA test would be helpful in deciding their defence as in the offence alleged against the applicants, the evidence of victim was material to connect them with the offence. It appears from the evidence of the victim that she has alleged rape by the applicants-convicts. Therefore, DNA test would not help the applicants-convicts to prove their innocence. Even the applicants should have led evidence of DNA report in defence at the time of trial. It appears that the applicants have not availed of that opportunity at the time of trial. In view of the fact that DNA report of the applicants is not relevant to prove the defence, the application cannot be entertained.
In view of above, the application fails and stands dismissed. Rule discharged.
(BANKIM N. MEHTA, J) (pkn) Top