[Rape Of Intellectually Disabled Minor] P&H HC Flags 'Lackadaisical Approach' Of Police In Collecting DNA, Seeks Affidavit Of DGP On Compliance Of Guidelines

Raising concern on the "lackadaisical attitude" of police in collecting DNA samples, the Punjab & Haryana High Court has directed the DGPs of Punjab, Haryana and Chandigarh to submit an affidavit on compliance with the High Court's direction to mandatorily adhere to Section 53-A of the CrPC.

Section 53A CrPC pertains to the medical examination of a person accused of committing rape.

The development came while hearing a plea of a man accused of committing rape on a minor mentally disabled girl, who sought her psychiatric evaluation to establish her competence as a witness.

While noting that the alleged victim was impregnated, the Court opined, "DNA profiling becomes all the more vital and relevant to ascertain the guilt of the accused."

Justice Harpreet Singh Brar said, "Considering the glaring lack of social support system on part of the State, for persons with disabilities, the Courts must take on a more proactive and empathetic role in litigation involving them. It is the onerous duty of the Courts to maintain a middle ground to secure fair investigation and trial of the accused without sacrificing the interest of the victim and the society."

The Court highlighted that every day, it witnesses cases, where the accused accrues undue advantage owing to the lackadaisical attitude of the investigating agencies in collecting DNA samples, in spite of the existence of the provisions under Section 53-A Cr.P.C and the directions issued by High Court in Ram Singh @ Dewan Singh [2023(4) R.C.R(Criminal) 17]'.

It observed further that the provision exists merely on paper as evidenced by the widespread apathy and insouciance prevalent among the investigating agencies, which has pricked the conscience of this Court.

Consequently, the Court directed the Director Generals of Police for the States of Punjab and Haryana as well as the Union Territory of Chandigarh to file affidavits indicating compliance with the directions issued by the Court in Ram Singh @ Dewan Singh's case and highlight the instructions issued in furtherance thereof.

In Ram Singh's case, the division bench of the Court had declared the provision of Section 53-A Cr.P.C. to be mandatory in nature and issued directions to Director Generals of Police of the States of Punjab, Haryana and Union Territory of Chandigarh to issue necessary directions for scrupulous compliance of Section 53-A of Cr.P.C.

Background

In November 2023, the victim was taken to hospital for stomach pain and vomiting where it was discovered that she was four months pregnant, when she was asked about the perpetrator she named her cousin, the accused.

An FIR was lodged under Section 376, 450, 323, 506 IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 at Haryana's Palwal alleging that the man has committed rape upon her.

The accused moved an application under Section 156(3) Cr.P.C. read with Section 118 of the Evidence Act, seeking a psychiatric evaluation of the prosecutrix to establish her competence as a witness before the Trial Court. However, the same was dismissed on the grounds of maintainability.

The petitioner's counsel contended that the prosecutrix has an intellectual disability to the extent of 90% and as such, her statement cannot be relied on without due corroboration. 

After hearing the submissions and perusing the record of the case, the Court said, "that the prosecutrix in the present case is a person with intellectual disabilities."

"The right to life enshrined in Article 21 of the Constitution of India, is not limited to mere animal-like existence but includes right to live a meaningful life, with dignity in the truest sense of the term. The State is obligated to create a level playing field to realize the fundamental rights guaranteed to all its citizens by the Constitution, which also includes access to justice," the judge observed.

In the instant case, "this Court cannot turn a Nelson's eye to the fact that the prosecutrix is four months pregnant and has referred to the petitioner as the perpetrator. The question of her competency cannot be decided upon by Court merely at the instance of the accused", it added.

"In fact, this Court is of the view that owing to the pregnancy, DNA profiling becomes all the more vital and relevant to ascertain the guilt of the petitioner," the Court opined.

Justice Brar said that, "the right to fair trial is not only restricted to the accused but extends to the victim and the society as well. These days, all the attention is given to the accused to ensure a fair investigation and fair trial while little concern is shown to the victim and the society."

The Court underscored that it is imperative for the investigating officer to scrupulously follow the drill of Section 53-A of the Cr.P.C., especially for victims of tender age and those with intellectual disabilities as they may not be able to effectively advocate for themselves.

"The investigating officer is duty bound to produce the accused before a medical practitioner and submit a written application for collection of his blood sample as provided under Section 53-A of the Cr.P.C. and use such force as necessary for that purpose. The said provision has also been carried forward as Section 52 of the Bhartiya Nagrik Suraksha Sanhita, 2023."

In case the accused refuses to give his blood sample, the investigating officer shall approach the concerned Illaqa Magistrate and move an application seeking direction of the Court for the purpose of collecting blood sample of the accused for DNA analysis, added Justice Brar.

The Court emphasised that the High Court in Ram Singh @ Dewan Singh Vs. State of Haryana, [2023(4) R.C.R(Criminal) 17], observed that there is a distinction between the physical evidence and testimonial evidence. "Physical evidence can be utilized for explaining relevant facts within the meaning of Sections 9 and 11 of the Evidence Act. As such, there is no bar in directing the accused to give his fingerprints, blood sample, signatures specimen etc," it said.

"Thus, providing such physical evidence lies outside the scope of Article 20(3) of the Constitution of India," added the Court.

In light of the above, the Court directed the Director Generals of Police for the States of Punjab and Haryana as well as the Union Territory of Chandigarh to file affidavits indicating compliance with the directions issued by this Court in Ram Singh @ Dewan Singh's case and highlight the instructions issued in furtherance thereof.

The matter is listed for July 23, for further consideration.

XXX v. XXX

Mr. Abhimanyu Jangra, Advocate for the petitioner.