Observing that it may not be in the interest of the child, Bombay high court has ruled out conducting a DNA test on a minor rape survivor’s child given in adoption. “…since the child is given in adoption, the DNA test of the said child may not be in the interest of the child and future of the child,” Justice G A Sanap said in the November 10 order.
The court heard the bail plea of the accused who was booked in 2020 under IPC and Pocso.
The FIR said on promise of marriage, the accused had physical relations with her. Advocate of the accused said despite grant of sufficient time, prosecution has not collected the child’s DNA samples. The accused is in jail for 2 years 10 months. The prosecutor said, if given bail, he will pressure the survivor and witnesses.
Justice Sanap noted that on October 26, the investigation officer was directed to inform steps taken to obtain the child’s DNA samples. The officer replied that the child was given in adoption and the institution refused to disclose particulars of the adoptive parents. “The difficulty expressed by the investigating officer in my view is reasonable,” said Justice Sanap.
He noted that while an ossification test said the survivor was 17 years, the medical officer said she was not over 18. “In case of ossification test, there is always a margin of two years on either side of the age…it appears the victim, on the date of incident, had attained age of understanding. She was in a position to understand consequences of her act,” he added.
He said the defence of the accused that the act was consensual cannot be accepted at this stage. “However… the accused cannot be denied bail,” he added. He noted that after filing the chargesheet, charges have not yet been framed and possibility of completion of trial in near future is bleak. “In my view, therefore, further incarceration of the accused in jail is not warranted,” Justice Sanap added. He directed his release on bail on condition that he not enter Mumbai till completion of trial except to attend the case by reporting to the police in advance.
