1. Rule. Learned A.P.P. Mr. Jani waives service of Rule on behalf of the respondent – State and learned Advocate Mr. Dagli waives service of Rule on behalf of respondent No.2.
2. The applicant has filed this revision application under Section 397 read with Section 401 of Code of Criminal Procedure, challenging the order dated 8.4.2011 passed by the learned Additional Sessions Judge, Morbi, on an application below Exh.31 in Sessions Case No.2 of 2011. The said application Exh.31 is filed by the applicant - original complainant for permitting him to conduct fresh DNA Test from private/other laboratory.
3. It is the case of the petitioner – original complainant that before 3 months prior to 1.11.2010, while the prosecutrix had gone to the factory, which is of the ownership of respondent No.3, for work, she was forcefully raped by the respondent No.2 (son of the respondent No.3) against her wish, will and consent. It is alleged that, looking to the physical condition of the prosecutrix, when the petitioner inquired the prosecutrix informed him about the incident. The petitioner, therefore, filed complaint against the present respondents No.2 & 3 before Morbi City Police Station for the offences under Sections 376, 354, 506(2) of I.P. Code. Thereafter, the case is registered as Sessions Case No.2 of 2011 in the Court of learned Additional Sessions Judge, Morbi. During the pendency of trial, the DNA test of the respondent No.2 was carried out through the Government Laboratory. Therefore, the petitioner has preferred Application Exh.31 before the learned Additional Sessions Judge, inter-alia, praying for conducting the DNA Test through the private/other laboratory. The learned Addl. Sessions Judge, dismissed the said application Exh. 31, vide order dated 8.4.2011. Against the said order dated 8.4.2011 passed by the learned Additional Sessions Judge, below Application Exh.31, in Sessions Case No.2 of 2011, the petitioner – original complainant has filed this Revision Application.
4. Heard learned Advocate Mr. Patel, appearing for the petitioner, learned A.P.P. Mr. Jani for respondent No.1 – State and learned Advocate Mr. Dagli, appearing on behalf of the respondents No.2 & 3.
5. Learned Advocate for the petitioner has contended that petitioner has filed complaint against the present respondents No.2 & 3, alleging that the respondent No.2, who is the son of respondent No.3 – factory owner, has committed rape thrice on the prosecutrix, minor daughter of the petitioner. He has contended that the respondent No.3 is highly influential and financially sound person and by using his position, the accused have managed to show incorrect picture in the DNA Test carried out by the Government Laboratory. He has contended that the petitioner has raised serious doubt on credibility of the said report and requested the learned Judge to permit him to carry out DNA Test from other/private Laboratory, the learned Judge has rejected the same. He has contended that the order passed by the learned Judge is ex-facie illegal and without appreciating the facts and circumstances of the case and, therefore, the same requires to be quashed and set aside.
6. Learned APP Mr. Jani, for the respondent No.1 – State, as well as learned Advocate Mr. Dagli for the respondents No.2 & 3, have supported the order passed by the learned Judge. They have contended that DNA Test is conducted by the Forensic Science Laboratory, which is a Government Laboratory and, therefore, there is no question to raise doubt about the same. The DNA test is conducted as per the procedure of biological method. The petitioner has created some doubt that the report of the Government Agency is doubtful. It is contended that the human nature can create some doubt, but, there must be some reason for doubting the Report of the Government Agency. Looking to the facts of the case, the order passed by the learned Judge is proper and no interference is required to be called for by this Court.
7. I have considered the submissions made by the learned Advocates for the parties and also perused the papers produced before me. I have also perused the report of the office of the Directorate of Forensic Science, Gujarat State, Gandhinagar. It appears that the office of the Directorate of Forensic Science received two sealed plastic tube parcels (vide Exhibit – 1, 2A to 2D) from the Morbi City Police Station in connection with CR No. I- 157 of 2010 on 20.11.2010 for conducting the DNA Test. It appears from the Report that DNA from above exhibits was isolated by organic extraction method and subjected to multiplex PCR reaction for fifteen autosomal STR loci along with amelogenin using AmpFe STR identifiler Kit. In the said Report, result of Analysis is also shown and below that the observation of the result is shown, which is as under :
“non-material allele of the amplified loci of DNA profile of Blood Sample (Exhibit 1; source of Baby of Artiben Manjibhai Kanzariya) is not match with the respective allele in the DNA profile of Blood Sample (Exhibit : 2 C: source of Sudhir Danmjibhai Kanzariya).”
Thereafter, at the last, following conclusion has arrived at by the Scientific Officer :
“Autosomal DNA profile of Sudhir Damjibhai Kanzaria (source of Exhibit : 2 C: Blood sample) is excluded as biological father of source of Exh.1 : Blood Sample of Baby of Artiben Manjibhai Kanzariya”.
8. The report is made by the expert, who is a public servant in Forensic Science and, therefore, there is no question of raising any doubt about the credibility of the said Report. I, am, therefore, of the opinion that the learned Judge has rightly not considered the application of the petitioner for conducting the DNA test through the private/other laboratory. Except expressing doubt, no material is brought on record to create any doubt or suspicion in the working method or credibility of FSL which has its own credentials and reputation. The learned Judge has cogent and convincing reasons for rejecting the application and hence no interference is required to be called for by this Court.
9. In view of above, the revision Application deserves to be dismissed and hence, it is dismissed. Rule is discharged.
(Z.K.SAIYED, J.) sas