W.P. (Criminal) No. 198 of 2003. Case: Thogorani alias K. Damayanti, Vs State of Orissa and others. High Court of Orissa (India)
| Case Number | W.P. (Criminal) No. 198 of 2003 |
| Counsel | For Petitioner: V. Narasingh and N. Panigrahi, Adv. and For Respondents: Addl. Govt. Advocate and M/s. A.C. Mohanty, G. N. Rout and Lina Patnaik, Adv. |
| Judges | A. K. Patnaik And M. M. Das , JJ. |
| Issue | Criminal Procedure Code (2 of 1974) - Sections 53, 173(8); Evidence Act (1 of 1872) - Section 114; Constitution of India - Articles 21, 20(3) |
| Citation | 2004 CriLJ 4003 |
| Judgement Date | July 20, 2004 |
| Court | High Court of Orissa (India) |
Judgment:
M. M. Das, J.
-
Petitioner is the victim lady and the informant in Sessions Case No. 20 of 2002 corresponding to G. R. Case No. 225/2001 pending in the Court of Addl. Sessions Judge, Gajapati, Parlakhemundi.
-
The matrix of this case, bereft of unnecessary details is that the petitioner lodged an F.I.R. before Parlakhemundi Police Station on 16-7-2001 alleging therein that when she was 14 years of age, the opposite party No. 3 developed relationship with her giving assurance of marriage and cohabitated with her. As a consequence of the same, a female child was born to her who is now aged about two and half years and by the time of lodging the F.I.R. she conceived for the second time through opp. party No. 3. She further alleged in the F.I.R. that the family members of opposite party No. 3 were threatening and forcing her to forbear from such relationship with opposite party No. 3 and at a point of time even offered her Rs. 10,000/- for aborting the child which she conceived through the opposite party No. 3 and also ill treated and tortured her.
-
The petitioner has averred in the writ petition that initially the said F.I.R. was registered as P.S. Case No. 123/2001 against the opposite party No. 3 and others for commission of offences under Sections 498A/506/34, I.P.C.
-
During the course of investigation, which was being done by the S.D.P.O. Parlakhemundi, an application was filed on 3-12-2001 by the said S.D.P.O. opposite party No. 2, before the S.D.J.M., Parlakhemundi to treat the said P.S. Case No. 123/2001 to be one under Sections 376/417/506/34, IPC read with Section 3 of the S.C. and S.T. (P.A.) Act and on the basis of the said application G.R. Case No. 225/2002 was registered for the offences under the aforesaid Sections. During the course of investigation, the petitioner gave birth to a second female child on 24-12-2001 at Melliaplaitti Government Hospital and after completion of investigation, charge sheet was filed on 18-4-2001 on which cognizance of offences under Sections 376/506/34, IPC and Section 3 of the S.C. and S.T. (P.A.) Act was taken by the learned S.D.J.M., Paralakhemundi on 10-5-2003 and thereafter the case has been committed to the Court of Session and is now pending as S.C. Case No. 20 of 2002 before the learned Addl. Sessions Judge, Paralakhemundi. The order granting bail to opposite party No. 3 has been cancelled by this Court in Crl. Misc. Case No. 4140 of 2002.
-
The petitioner further averred that on 10-2-2003 an application was filed on her before the learned Addl. Sessions Judge, Paralakhemundi under Section 173(8), Cr.P.C. for directing to make further investigation of the aforesaid P.S. Case No. 123 of 2001, stating therein that the police during investigation has not taken steps for medical examination of the petitioner with regard to her age and has not conducted DNA test regarding paternity of the issues born and unless the Investigating Agency conducts the aforesaid test, the accused opposite party No. 3 will go scot free. This application was rejected by the Court below only on the ground that the petition having not been filed by the public prosecutor, the same cannot be taken into consideration. It appears that the petitioner thereafter challenged the said order of rejection in Crl. Revision No. 332 of 2003 before this Court in which the impugned order was set aside and the Addl. Sessions Judge was directed to take a decision on the said petition afresh. Pursuant to the said order, the learned Addl. Sessions Judge by order dated 24-7-2003 directed the opposite party No. 2, the S.D.P.O. to investigate into the case and submit a supplementary case diary within 45 days from the date of the said order before the learned S.D.J.M., Paralakhemundi with regard to the age of the petitioner by conducting ossification test and further gave liberty to the Investigating Officer to take steps for DNA test after determining the Blood Group of the victim lady, her two children and the opposite party No. 3. Consequently to the said order the petitioner was examined by the doctor and ossification test was conducted and the report of the said test filed in the Court shows that the age of the petitioner was above 17 years and below 19 years on the date of the test. It is alleged that the Investigating Officer neither conducted any DNA test nor Blood Grouping test of anybody, but has given an opinion in the supplementary case diary that considering the date and time of occurrence no DNA test or Blood Grouping test was necessary.
-
Being aggrieved by the said action of opposite party No. 2, the S.D.P.O., the petitioner has filed this writ petition under 226 and 227 of the Constitution of India praying for a direction to opposite party No. 2 to conduct DNA test and Blood Grouping test for determination of paternity of her children...
To continue reading
Request your trial