RICHPAL KHARRA vs STATE
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By – Pragya Shukla

IN THE HIGH COURT OF RAJASTHAN

NAME OF THE CASERICHPAL KHARRA vs STATE  
CITATIONMisc. Crl. PETITION No. 1151 of 2013  
JURISDICTIONHIGH COURT OF RAJASTHAN
DATE OF THE CASE2nd MAY, 2013
APPELLANTRICHPAL KHARRA
RESPONDENTSTATE
JUDGEJUSTICE R.S. CHAUHAN
STATUTES INVOLVEDCRIMINAL PROCEDURE CODE & INDIAN PENAL CODE, 1860.
IMPORTANT SECTIONS  INVOLVEDSECTION 53A OF CRIMINAL PROCEDURE CODE & SECTION 376 OF IPC

ABSTRACT–

In the era of scientific development, a major challenge before society has become the modus operandi of criminals. DNA profile has now become a very important means of identification of criminals. Our legislature has also recognized the importance of DNA in our criminal justice system and it has been given statutory recognition under the Criminal Procedure Code. Our Supreme Court and Honourable High Courts have also granted judicial validation on DNA technology. Richpal Kharra vs State revolves around Section 53A of CrPC which deals with the subject matter of medical examination of the accused when he is arrested on the charge of rape. The crux before the court was afflicted with the mandatory nature of the provision.

INTRODUCTION–

Quite often we come across cases of false rape. Sometimes it happens that the accused may have to face punishment even though they are not guilty. However, Section 53A CrPC has come to the rescue in such cases. It lays down the procedure for medical examination of persons accused of rape. It clearly states that it is mandatory to collect the details and description of the materials of the accused of DNA profiling.  DNA acts as reliable evidence in cases of rape.

The basic objective of section 53A of CrPC was to collect concrete evidence to prove the offence of rape.  However, in the present case, the complainant first registered the case of rape and then told the police and the court that she did not want to pursue the matter further. The gravity of the matter, in this case, is that merely saying that a person does not want to pursue a case, does not mean that when the accused has not committed any offence, he/she can be done with the entitled liabilities.

BACKGROUND OF THE CASE-

acid (DNA) is becoming increasingly important to ensure accuracy and fairness in the criminal justice system. DNA can be used to solve crimes in many ways. DNA profiles generated by demonstrations from the crime scene can be matched with DNA profiles of suspects and can be used to distinguish between the innocent and guilty. DNA testing is also used to resolve various civil disputes including parental, immigration, and fraudulent sale of plant and animal products. During the past decades, many new and exciting innovations and technological progress have been made. Nanotechnology-based DNA-chip is another development to improve the speed and resolution of DNA evidence analysis.

 In the present judgment, the matter before the High Court dealt with Section 53A of CrPC which circumambulated the subject of medical examination of the accused when he was arrested on the charge of rape. The question before the court was about the mandatory nature of the provision.

        FACTS OF THE CASE-

  • In the present case, a complaint of rape was registered against the petitioner by the complainant Sanju Devi under Section 376 of the IPC.
  • Later, she told the investigating officer and the court that she no longer wanted to pursue the case as no offence of rape was committed against her.
  •  The respondent claimed  that  even though the complaint recorded a statement and a negative final report was also filed by the police, the magistrate returned the file to the police which wasn’t justified.
  • The police was directed  to obtain the F.S.L report of vaginal swab and underwear, which was sent for medical examination.
  • On the other hand, the petitioner in his petition argued that as per Section 53A of CrPC, once a person is arrested on the charge of committing rape, he should be subjected to medical examination and it is not a medical examination. The duty is to ask the examiner to collect material for medical examination from the offender.
  • The petitioner relied upon the case of Krishan Kumar Mallick v State of Haryana (2011) and further argued that the Supreme Court in the said case held the provision of section 53A to be imperative in nature.
  • Thus, the petitioner will be allowed to provide his material for DNA profiling to make it clear that the petitioner is innocent beyond reasonable doubt as the complainant has never defiled him.

ISSUES RAISED BEFORE THE COURT-

           Subsequent issues were raised before the Court-

  • The first issue  raised before the court was whether DNA test of the accused under section 53A is mandatory after the complainant has admitted that no offence of rape has been committed or not?
  • The second issue raised before the court was whether the claimant should be punished  for putting  false accusation on the accused or not?

ARGUMENTS

ARGUMENTS RAISED BY PETITIONER:-

Learned counsel for the petitioner has argued that as per Section 53-A of the Code of Criminal Procedure, once a person is arrested on the charge of rape, the offender should be subjected to a medical examination. It is the duty of the medical examiner to collect the material from the person concerned for the D.N.A profile. He has further argued that in the case of [1]Krishan Kumar Malik Vs. State of Haryana, 2011 104 AIC 262 SC , the Hon’ble Supreme Court had held that the provisions of Section 53-A, CrPC are imperative in nature. Therefore, learned counsel for the petitioner has prayed that the petitioner may be permitted to present his material for DNA profile. According to him, the D.N.A profile would clearly prove the fact that the accuser was never vandalized by the petitioner. Hence it would establish his innocence beyond a reasonable doubt.

ARGUMENTS RAISED BY RESPONDENT:-

Learned counsel for the respondent  [2]did not challenge the legal provision of Section 53-A of CrPC with regard to the principles laid down by the Hon’ble Supreme Court in the case of Krishan Kumar Malik vs State of Haryana  (cited supra).

The learned counsel for the respondent took into consideration the necessity of the Sec 53-A of the Code of Criminal Procedure.

        RELATED PROVISION: –

       CRIMINAL PROCEDURE CODE-

            SECTION 53A

  1. When a person is arrested on the charge of committing an offence of rape or attempting to commit rape and there are reasonable grounds to believe that the examination of this person shall provide evidence of the commission of such offence, it shall be valid for a registered medical practitioner working in a hospital run by the government or a local authority  in the absence of such doctor acting on the request of any other registered medical practitioner to make medical  examination of the arrested person and to use such force for providing help to the police officer within a radius of sixteen kilometers from the place of commission of the offence, who shall not be below the rank of a sub-sub-inspector.
  • The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely:

                     (i) the name and address of the accused and the person by whom he was brought,

                     (ii) the age of the accused;

                     (iii) the marks of injury, if any, on the accused;

                     (iv) the details of the material taken from the person;

                     (v) the details of the materials & their proper description.

  •  The report shall clearly state the reasons for arriving at each of the conclusions.
  • The exact time of commencement and completion of the examination shall also be noted  in the report.                           
  • The registered medical practitioner shall, without delay, forward the report to the Inquiry officer, who shall forward it to the Magistrate referred to in section 173.

  INDIAN PENAL CODE, 1860

  SECTION 376 OF IPC-

 According to section 376 of the Indian penal code, whoever commits an offence punishable under section (1) or sub-section (2) of section 376 and in the course of such commission causes injury to the woman, or causes the woman to remain in a continuous vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years but which may extend to imprisonment for life.

JUDGEMENT: –

While dealing with the issue, the first thing the court noted was that the petitioner’s prayer was very limited. Keeping this in view, the court decided not to go deep into the facts. Since the respondent in his case did not challenge the legal proposition of section 53A and did not put forward any other possible construction for the said provision; the court decided to look into the matter relied upon by the petitioner.

 The court held that as directed by the Supreme Court in the case of Krishan Kumar Malik, the provision of section 53A is mandatory in nature and thus directed SP Jaipur to supervise the investigation. The court further directed the petitioner to submit his DNA sample which would be given to the investigating officer who would send it for the enemy check. Therefore, the court allowed the petition.

CONCLUSION-

Medical and forensic science serves as the greatest source of finding evidence in the investigation and detection of rape. The old means of investigation i.e., inquiry, development of sources and surveillance for crime detection are completely discarded in today’s society.

Rape is a crime and not a medical diagnosis. Therefore, the doctors entrusted with the responsibility of examining the victims do not have the right to conclude whether a person was raped or not. This case basically revolved around the false accusation of rape.

 The judgement passed in this case is really commendable. Section 53A of CrPC is indeed a provision as it can provide strong evidence by determining whether the crime has been committed or not.  As there is usually no eyewitness in cases of rapes and the accused and the victim speak in their own interest, medical evidence is one of the ways that helps to ascertain true fact

REFERENCES-

[1] CASEMINE, “para” 4,  https://www.casemine.com/judgement/in/56e0efc3607dba38965f1364/amp (last visited on 5th Aug,2021)

[2] CASEMINE “para”5, https://www.casemine.com/judgement/in/56e0efc3607dba38965f1364/amp (last visited on 5th Aug, 2021)

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