2019 (12) TMI 1559 - HC - Indian Laws

Rape - the child was aborted - 3rd respondent defacto complainant did not appear for taking samples required for the DNA test despite notice given to her and direction was issued through investigating officer by court below concerned - delay in initiation of criminal proceedings - HELD THAT - The prosecution has not even given any reasonable explanation for the long delay of more than 3 months in the initiation of the criminal proceedings - It is by now too well settled by a series of the rulings of the Apex Court in various decisions as in THULIA KALI VERSUS STATE OF TN. 1972 (2) TMI 93 - SUPREME COURT that delay in lodging the FIR more often than not results in embellishment and exaggeration which is a creation of an afterthought and a delayed report not only gets bereft of the advantage of spontaneity but the danger of the introduction of a coloured version an exaggerated account of incident or a concocted story as a result of deliberations and consultations also creeps in thus casting a very serious doubt on its veracity. It is highly essential that the delay in lodging the FIR should be duly and satisfactorily explained by the prosecution. Resultantly when the substratum of the prosecution case itself is found to be unreliable prosecution case has to be rejected in its entirety etc. The act of the 3rd respondent in having terminated the solid scientific evidence to ascertain the paternity issue is to be seriously viewed. If as a matter of fact it was found that the petitioner was not in any manner responsible for the paternity of the foetus in the womb of the 3rd respondent then he could have easily disproved that the contention of the 3rd respondent that it was the petitioner who was responsible for her pregnancy and in the facts of this case it would have led to the demolition of the very substratum and foundation of the prosecution story. By the conduct of the 3rd respondent in not having co-operated with the investigating officer and the court below in the conduct of the DNA testing in her adamant action in refusing to give any sample for DNA testing and the ultimate act of getting the foetus aborted have to be viewed very seriously. This Court has no hesitation to hold that in the light of the facts and circumstances of the case a serious and adverse inference has to be drawn on the abovesaid crucial conduct of the 2nd respondent. In the nature of the facts and circumstances alleged in the instant prosecution story this Court has no hesitation to hold that in view of the abovesaid conduct of the 3rd respondent it has to be held that she has done the abovesaid act of aborting the child in order to defeat the scientific DNA testing process and that an adverse inference is to be drawn that if she has done so such a testing process would have revealed that it was not the petitioner who was responsible for her pregnancy. Thus it is only to be held that as the very substratum of the prosecution case has been shattered the continuance of the impugned criminal proceedings is a sheer abuse of the process of the court. In this context it is only to be incidentally noted that even the 3rd respondent is no longer interested to continue the impugned criminal proceedings. This Court is inclined to quash the impugned criminal proceedings not merely on the ground of settlement as is referred to in the aforesaid affidavit dated 2.3.2018 filed by the 3rd respondent but in the light of the aforesaid independent grounds - it is ordered that the impugned Anx. A-1 FIR in Crime No. 487/2017 of Aranmula Police Station registered as against the petitioner accused and all further proceedings emanating therefrom as against the petitioner accused will stand quashed. The petitioner will produce certified copies of this order before the investigating officer concerned and the competent court below concerned. The office of the Advocate General will forward copy of this order to the investigating officer concerned for information - application disposed off.

Summary

Issues Involved:
1. Delay in lodging the FIR and its impact on the prosecution case.
2. Allegations of rape and the refusal of the complainant to undergo DNA testing.
3. Settlement between the parties and its impact on quashing the criminal proceedings.

Issue 1: Delay in lodging the FIR and its impact on the prosecution case:
The judgment addresses the delay in lodging the FIR and its consequences on the prosecution case. It cites various legal precedents to highlight that a delayed report can lead to embellishment and exaggeration, casting doubt on its veracity. The court emphasizes that prosecution must satisfactorily explain any delay in lodging the FIR. The judgment asserts that when the substratum of the prosecution case is unreliable, the entire case must be rejected.

Issue 2: Allegations of rape and refusal of the complainant to undergo DNA testing:
The judgment delves into the case of alleged rape where the accused, who is the cousin of the complainant, is accused of impregnating her. The court notes that the complainant refused to cooperate with DNA testing, leading to the abortion of the fetus, thereby destroying crucial evidence. The court views this conduct seriously, indicating that the refusal to undergo testing and the subsequent abortion raise suspicions about the veracity of the allegations. The court opines that such actions by the complainant amount to malicious intent to scuttle the investigation and judicial process.

Issue 3: Settlement between the parties and its impact on quashing the criminal proceedings:
The judgment discusses a settlement between the parties, where the complainant states she has settled all disputes with the accused and is no longer interested in pursuing the criminal proceedings. However, the court notes that due to the nature of the offense being rape, mere settlement may not warrant quashing of proceedings. The court emphasizes that the complainant's actions in destroying evidence and attempting to thwart the investigation constitute malicious behavior, justifying the quashing of the criminal proceedings. The court ultimately quashes the FIR and all further proceedings against the accused.

In conclusion, the judgment meticulously analyzes the issues related to the delay in lodging the FIR, the refusal of the complainant to undergo DNA testing, and the subsequent settlement between the parties. It underscores the importance of timely reporting, cooperation in investigations, and the impact of malicious actions on the judicial process. The court's decision to quash the criminal proceedings is based on the critical evaluation of the facts and circumstances surrounding the case, ensuring justice and fairness in the legal process.