Taking DNA Samples Of Rape Accused Does Not Violate His Constitutional Right Against Self-Incrimination: Kerala High Court

The Kerala High Court on Friday ruled that the protection guaranteed under Article 20(3) of the Constitution of India does not extend to protecting an accused from being compelled to give his blood sample during the investigation of a criminal case. 

Justice Kauser Edappagath said the privilege of Article 20(3) is applicable only to testimonial evidence and drawing DNA samples from the body of an accused in a criminal case, especially in a case involving sexual offence, will not violate his right against self-incrimination protected under Article 20(3).

"The right against self-incrimination is just a prohibition on the use of physical or oral compulsion to extort testimonial evidence from a person, not an exclusion of evidence taken from his body when it may be material."

Justice Edappagath also said that though Section 53A CrPC only refers to examination of the accused by a medical practitioner at the request of the police officer, the court also, in the appropriate case, can give a direction to the police officer to collect the blood sample of the accused and conduct DNA test for the purpose of further investigation under Section 173(8) CrPC

There is no testimonial compulsion in the process of taking a sample of the blood by a qualified and registered medical practitioner, and in no case could it be said that by this process, the accused is forced to tender evidence against himself nor by this process accused is being compelled to be a witness against himself, said the court.

"That apart, as per S.53A of Cr.P.C, the police have got enough power to send the accused to a qualified medical practitioner for the purpose of taking samples. The examination of the person of the accused is contemplated as an aid to the investigation of the trial to ascertain facts which may afford evidence as to the commission of the offence under investigation"

The court in this regard relied upon State of Bombay v. Kathi Kalu Oghad  wherein it was held the use of material samples such as fingerprints for the purpose of comparison and identification does not amount to testimonial act for the purpose of Article 20(3).

"Relying on the said judgment, the Apex Court in Selvi and Others v. State of Karnataka (AIR 2010 SC 1974) has held that taking and retention of DNA samples which are in the nature of physical evidence, does not face constitutional hurdles in the Indian context," it added. 

Facts

The petitioner before the court had challenged a trial court order directing him to appear before the investigating officer to give his blood sample for the purpose of DNA examination. The accused is facing trial in a rape case dating back to 1997. The petitioner is accused of having raped a minor, who later became pregnant. The other accused in the case were accused of attempting to cause miscarriage.

The co-accused were acquitted by the trial court in 2007. The case against the petitioner and other accused was refiled in 2003. The Sessions Court took cognisance of the same in 2012. During the trial, the investigating officer filed a report stating that further investigation had been initiated and for that DNA examination was to be done. The court was told that though notice was given to the petitioner regarding it, he expressed his unwillingness. In 2018, the trial court allowed the application for drawing his DNA sample.

Trial Court Order Challenged

It was contended by Advocate M.V.S. Nampoothiry on behalf of the petitioner that the impugned order directing the petitioner to submit to DNA profiling test would amount to self-incrimination that Article 20(3) of the Constitution of India protects against.

It was also submitted that the question of paternity of the child had no nexus to the offence of rape, and that the allegation regarding rape ought to be independently proved by the prosecution.

The counsel further submitted that in order to direct a person to undergo a DNA examination, a strong prima facie case would be essential which could not be found in the instant case. The court was also told that when the victim was examined. she had categorically deposed that she was not aware of the person responsible for her pregnancy. 

On the other hand, the Public Prosecutor, Sangeetha Raj, justified the trial court order, and contended that the police had sufficient power to seek direction from the court to make an accused person undergo a DNA test in a case of rape under Section 53A of Cr.P.C., and added that in order to prove the offence of rape, the matching of the DNA samples and conduct of DNA profiling test was essential. 

Findings

The Court said recent advancements in modern biological research has regularized forensic science, resulting in radical help in administration of justice.

"DNA technology, as a part of forensic science and scientific discipline, not only provides guidance to the investigation but also supplies the court accrued information about the tending features of the identification of criminals. After the amendment of Cr. P.C, by the insertion of S.53A by Act 25 of 2005, DNA profiling has now become a part of the statutory scheme. S.53A relates to the examination of a person accused of rape by a medical practitioner. DNA profiling test is now specifically included by way of explanation to S.53 of Cr.P.C"

The Court further said that under Section 164A of Cr.P.C also, for medical examination of the rape victim, the description of material taken from the person of the woman for DNA profiling was essential. 

"Thus, S.53A and S.164A inserted in the Cr. P.C by way of the Amendment Act of 2005, makes the DNA profiling of the accused and the victim permissible in cases of rape," it added.

As regards the contention of the petitioner that the application for drawing DNA samples was a belated one which ought not to be allowed, the Court observed that the petitioner accused had been absconding during the investigation stage.

"Hence, the investigating agency could not take samples of his blood to conduct a DNA examination. Now, the investigating agency has initiated further investigation," said the bench.

It added: "It is settled that further investigation u/s 173(8) of Cr. P.C can be initiated at any stage of the trial. In Siva Vallabhaneni v. State of Karnataka and Another [(2015) 2 SCC 90], a contention was raised before the Apex Court that the DNA profiling test must be conducted immediately after the arrest and cannot be allowed at a later point in time. Repelling the contention, it was held that S.53A does not put fetters on the investigating agency to get the accused examined at a later stage. Thus, the argument based on delay must fail."

As regards the argument by the petitioner that the question of paternity of the child has no nexus to the alleged offence of rape because of which DNA test could not be allowed, the Court observed, 

"It is true that in a rape case, the prosecution must prove, by positive evidence, that the accused had sex with the victim without her consent or against her will. However, it cannot be said that the proof of paternity of the child born in the alleged sexual act has no relevance in deciding the case. Certainly, the proof of paternity of the child is a corroborative piece of evidence to establish the commission of rape". 

However, the court noted that since the victim in the case had only been 15.5 years old at the time of the alleged incident, the sexual intercourse with her would amount to rape, whether it was with or without consent. "Thus, the paternity of the child does assumes significance." 

The Court also did not find any merit with the contention that the victim could not identify the person who was responsible for the pregnancy and that the DNA test ought to be dispensed with on that ground.

"The petitioner was not facing trial in SC No.79/2004. He was absconding at that time. Therefore, he cannot take advantage of the said evidence given by the victim. The victim has already been examined in SC No.19/2012. The petitioner has no case that she did not support the prosecution case," it said.

Case Title: Das @ Anu v. State of Kerala 

Citation: 2022 LiveLaw (Ker) 560

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