Law Doesn't Give Exception From DNA Profiling On Ground That Accused And Victim Are Siblings: Kerala High Court

The accused and victim here are siblings, and the accused is alleged to have committed offences punishable under Sections 376, 376(3) (punishment for rape) of the IPC, Section 5j(ii) (aggravated penetrative sexual assault) and Section 6(1) (punishment for aggravated penetrative sexual assault) of the POCSO Act.

Justice A. Badharudeen dismissed the criminal miscellaneous cases filed by the accused and the victim challenging the seizure of blood samples collected for DNA profiling.

“DNA profiling of the accused to compare the same with that of the victim to prove the prosecution allegation is legally permissible and in such a case merely on the ground that the accused and the victim are siblings, the law doesn't give any exception or concession.”

The allegation against the accused is that he impregnated the 14-year-old minor victim. When the minor was brought to the hospital for scanning, the hospital authorities informed the police. Based on the statement obtained from the mother, police registered the FIR.

The counsel for the accused argued that the case was based on the intuitions of the police and that his blood sample was collected forcefully without his consent or permission of the jurisdictional court. It was argued that the accused is the direct brother of the victim and that if the DNA profiling result is found positive, it would be fatal to the interest of the accused as well as the victim. It was argued that forceful collection of samples without any reasonable basis violates the fundamental rights guaranteed under Articles 14 and 21 of the Constitution.

Similarly, the victim also approached the Court to quash the seizure of blood samples collected from her body by coercing her and without the permission of the jurisdictional court.

The DNA profiling result was in a sealed cover before the Court.

Section 53 of the CrPC provides for the examination of the accused by a medical practitioner at the request of a police officer and Section 54 provides for the examination of the arrested person by a medical practitioner at the request of the arrested person. The Court noted that Sections 51 and 52 of the BNSS also have similar provisions.

Court said, “Going by the contentions raised by the defacto complainant as well as the victim, the same have no legal footing since collection of blood samples from the accused is legally permissible as part of the investigation under Sections 53 and 54 of the Cr.P.C read with Explanation(a) to Section 53. Sections 51 and 52 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (`BNSS' for short) are the para materia provisions.”

As such, the Court dismissed the criminal miscellaneous cases filed by the accused and the victim.

Counsel for Petitioners: Advocates Prabhu Kn, Manumon A, Dinesh G Warrier, Jayan Kuttichakku, Suresh C

Counsel for Respondents: Advocates Manumon A, Rebin Vincent Gralan, Public Prosecutor M P Prasanth

Case Number: CRL.MC NO. 8147 OF 2023 & Connected Matter

Case Title: XXX v State of Kerala & Connected Matter

Citation: 2024 LiveLaw (Ker) 608