Conviction Cannot Be Based Only On DNA Report When Ocular Evidence Does Not Support It: Bombay High Court

“When the ocular evidence was not supporting, conviction ought not to have been based only on the DNA test report i.e. medical report”, the court held.

A bench of Justice Vibha Kankanwadi and Justice Khobragade sitting at Aurangabad set aside a man's rape conviction observing that the victim changed her testimony and the DNA evidence was not reliable.

According to the prosecution, the victim is a 27 years old mentally disabled woman who is unable to speak properly. She resided with her brother and other family members. Her brother was informed by the Sarpanch of the village that she was pregnant for around 5 to 6 months. Hence the brother lodged an FIR. The appellant's name came up in a supplementary statement as the accused. He was convicted by the trial court under section 376 of the IPC.

The Sarpanch testified that a male child was born to her who died a few days later.

The victim testified that the male child was of “Guest”. Five photographs were shown to her asking her to identify the “Guest” out of those. She identified one of them and which was the same as the accused present in the trial court.

The court noted the there is no information about who those other four persons were whose photographs were shown to her. The court further questioned why this task was undertaken when the accused was present before the court.

The court noted that she has not given the name of the accused but named him as guest. Not only that, in the cross examination, she said that the child was not from the accused present before the court.

The court further observed that proper procedure was not followed in recording the testimony of the victim who is mentally disabled. Her brother was given the job of an interpreter as he understood her language. The court said that oath ought to be to have been administered to the interpreter before recording the victim’s testimony.

Further, there is no information on whether prior to her testimony the trial court ascertained that she is able to give rational answers, the court noted.

In the chief examination she stated that the child is from the accused but denied it in the cross examination. The court noted that there is no clarification regarding this from the prosecution.

Further the testimony of the informant and younger brother is silent on the issue.

According to the DNA report, the accused and the victim are the biological parents of the child.

The court said that the prosecution has to prove all steps which were taken by the investigating agency from collecting the blood sample, preservation etc. as the DNA evidence depends on the extracting of samples, its preservation, and ruling out the possibility of tampering.

The court observed that there is no evidence from the prosecution as to when the child was delivered, how long it was alive and when the samples of the child were taken and by whom. Even the death certificate of the child is not produced. Thus, there is nothing to show whether the sample was taken when the child was alive or dead, the court said.

Further, though the laboratory received two sealed plastic containers, it was stated that there were samples of three persons. The investigating officer should have explained where the samples were kept, in which condition and how they were transported. There is no information on the method of preservation. Thus, the court found the DNA test report to be unreliable.

The court concluded that the victim’s testimony cannot be trusted as she changed her statements. Therefore, the conviction should not have been based only on the DNA test report.

Case no. – Criminal Appeal No. 306 of 2016

Case Title – Suresh s/o Devidas Malche v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 153