TMI Blog2019 (12) TMI 1559X X X X Extracts X X X X X X X X Extracts X X X X ..... odging 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t defacto complainant, who is none other than the first cousin of the petitioner accused. The prosecution case is that the petitioner had taken the 3rd respondent defacto complainant from Kottarakkara to a vacant space in Kozhencherry on last Thursday of November, 2016 in an auto-rickshaw and raped her from there. It is stated that Anx. A-1 FIR was registered on the basis of the complaint of the 3rd respondent against the petitioner, from whom she is allegedly became pregnant. It is stated that the petitioner has not committed any offences as alleged against the petitioner. That the 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 and during the course of the same, she aborted the child in the womb shutting all possibilities of taking samples for DNA testing. That the reluctance to subject herself to DNA sampling pursuant to Anx. A5 order and medical termination of the pregnancy, brings Anx. A-1 FIR within the ambit of guidelines set by the Apex Court in the decision in State of Haryana Ors. v. Ch. Bhajan Lal Ors. [AIR 1992 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nant aged 22 years. The petitioner would assert that the allegation that he had sexual relationship with the 3rd respondent who is his cousin sister, is absolutely false and fabricated. That the 3rd respondent became pregnant on account of her relationship with someone else and she and her family members wanted to thrust the paternity on the petitioner as they did not want the actual truth of the matter to come out, as otherwise it would have detrimentally affected her marriage proposals. That the case of the 3rd respondent is that she has became pregnant on account of the said sexual relationship with the petitioner, etc. That thereafter the Judicial First Class Magistrate's Court, Pathanamthitta, has passed Anx. A-4 order 20.3.2017 in the matter of conduct of DNA testing to find out as to who was responsible for the conception and pregnancy of the 3rd respondent. A reading of para No. 3 of Anx. A-4 order would make it clear like the day light that the petitioner accused has himself volunteered and had taken the bold stand before the learned Magistrate that he is prepared to undergo DNA testing so as to prove his claim that he is not in any manner responsible for the pregnancy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. Hence it is only to be held that going by the facts and circumstances of the case, the very substratum and foundation of the prosecution story of the prosecutrix has crumbled by her abovesaid act and the impugned criminal proceedings could be interdicted. It is now stated by the learned counsel for the 3rd respondent that she has fully settled the issues with the petitioner and that subsequently she has married another man and she is leading peaceful married life with her husband and that she has fully settled all disputes with the petitioner accused, who is her c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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