‘Violative Of Privacy Right Of The Infant’: Chhattisgarh High Court Rejects Applications Seeking DNA Test Of Child Born Out Of Gang Rape

The Chhattisgarh High Court has recently rejected applications filed by two men, accused of committing gang rape on a minor girl, for conducting DNA test of the child born to the victim subsequent to the gang rape.

The Division Bench of Justice Sanjay K. Agrawal and Justice Radhakishan Agrawal held the demand for DNA test as a violation of the ‘right to privacy’ of the infant and observed,

“…ascertaining the paternity of the victim’s child is not at all required to be determined in these criminal appeals filed by the appellants and directing for DNA test of the baby child of the victim would violate the privacy right of the infant, which is a constitutionally protected right as declared by their Lordhsips of the Supreme Court in K.S. Puttaswamy (supra).”

The two appellants herein allegedly committed gang rape on the victim on 21.01.2018. An FIR was lodged and on completion of the investigation, the charge-sheet was filed against the appellants under Section 376-D of the IPC, Section 4 of the POCSO Act & Section 3(2)(v) of the SC & ST (PoA) Act.

On 25.11.2018, the victim delivered a male child. During the course of the trial, the appellants filed applications for conducting DNA test of themselves, the victim and the newly born baby which was rejected by the Special Judge holding that commission of the offence of gang rape can be determined without directing for DNA test.

After full-fledged trial, the appellants were convicted for offences under Sections 376-D of the IPC & Section 4 of the POCSO Act against which the instant criminal appeals have been filed by the two appellants.

The appellants filed applications again before the High Court for conducting DNA test of themselves and the victim as also the victim’s newly born baby, which the Court had earlier considered and directed that the same will be decided at the time of final hearing of the appeal.

However, the above order was assailed before the Apex Court which directed the High Court to expeditiously decide the applications for conducting DNA test, pursuant to which the applications were considered on merits.

It was contended for the State that conduct of DNA test is not eminently necessary to decide the culpability of the appellants for the offence of gang rape. It was argued that the offence of gang rape is not intrinsically connected to the issue of DNA test and by determining the paternity of child, conviction of the appellants would remain unaffected.

Court’s Observations

The moot question which fell for consideration before the Court was whether the applications for DNA test of the infant born to the victim of gang rape can be favourably allowed. The Court relied on a number decisions rendered by the Supreme Court on similar issues.

It cited Ashok Kumar v. Raj Gupta & Ors., wherein it was held that a person can be compelled to provide sample for DNA only by considering the ‘principle of proportionality’. The Bench also placed reliance on Inayath Ali & Anr. v. State of Telangana & Anr. wherein the Supreme Court, while analysing the consequences of conducting such tests, held the following:

“The consequence thereof would not be confined to the question as to whether such an order would result in testimonial compulsion, but encompasses right to privacy as well. Such direction would violate the privacy right of the persons subjected to such tests and could be prejudicial to the future of the two children who were also sought to be brought within the ambit of the Trial Court’s direction.”

Therefore, having due regard for the aforesaid decisions, the Court was of the opinion that the baby is neither a party in the criminal appeals nor his status/paternity is required to be examined to determine the guilt of the appellants for commission of gang rape.

Accordingly, it dismissed the applications holding that directing to conduct such test would violate the right to privacy of the infant which is a constitutionally protected right, being reaffirmed by the judgment of 9-Judge Bench of the Supreme Court in Justice (Retd.) K.S. Puttaswamy v. Union of India.

Also Read: Kerala High Court Stays Orders For Collecting Blood Samples Of Children Of Rape Victims For DNA Testing

Case Title: Dilesh Nishad v. State of Chhattisgarh & connected matter

Case No: Criminal Appeal Nos. 1266 & 1400 of 2019

Citation: 2023 LiveLaw (Chh) 27

Date of Order: August 17, 2023

Counsel for the Appellants: Mr. Badruddin Khan & Mr. Vijay Kumar Sahu, Advocates

Counsel for the State: Mr. Ashish Tiwari, Govt. Advocate

Click Here To Read/Download Order