[POCSO] Accused's DNA Not Matching With Victim's Vaginal Swab, Absence Of Semen Doesn't Rule Out Penetrative Sexual Assault: P&H High Court

The Punjab & Haryana High Court has said that non-matching of the DNA of the accused with the vaginal swab of the alleged victim and the absence of semen from the vaginal swab would not rule out the offence of “penetrative sexual assault” under the Protection of Children from Sexual Offences Act (POCSO) when the victim has supported her version in a recorded statement.

Justice Harpreet Kaur Jeewan said, "Keeping in view the elaborate definition of the offence of penetrative sexual assault, non-matching of the DNA of the petitioner- accused with the vaginal swab of the victim and absence of human semen from the vaginal swab of a female victim would not rule out the offence of “penetrative sexual assault” wherein the minor victim had supported her version in a statement recorded under Section 164 Cr.P.C., given her history before the Medical Officer regarding sexual assault and there is a prima facie medical opinion by the doctor that the offence sexually abusing cannot be ruled out in the medical report."

The Court was hearing a pre-arrest bail plea of a 37-year-old man accused of committing rape on a 15-year-old. 

The FIR against the accused was registered in 2022 under Sections 376 (punishment for rape), 506 (Punishment for criminal intimidation) and 456 (Punishment for lurking house-trespass) of the IPC and Section 4 (penetrative sexual assault) of POCSO on victim's statement that the neighbour, had entered her house and forcibly taken her to the fields and raped her. 

Merely, on the basis of an application given by the brother and a subsequent application given by the father of the accused, the investigating agency obtained a DNA comparison report by taking the blood sample of the petitioner. On the basis of the said report, the Station House Officer of the police station has recommended cancellation report as human semen and male DNA were not detected on the vaginal swab of the victim, the Court noted.

After hearing the submissions, the Court said that the recommendation for cancellation report by the Station House Officer is misconceived and contrary to the provisions of Sections 3 & 4 of the POCSO.

Justice Jeewan highlighted that in the case under Sections 363, 376, 376 (2) (f) and 302 of the IPC, where there was a failure to conduct the DNA test of the sample taken from the accused, the Supreme Court in Sunil vs. Madhya Pradesh [2017], has observed that a positive result of the DNA test would constitute clinching evidence against the accused, if however, the result of the test is in the negative, i.e. favouring the accused or if DNA profiling had not been done, the weight of the other material evidence on record still has to be considered.

The Court noted that the victim had given a history of sexual assault at a farmhouse and four vaginal swabs were taken for DNA analysis and detection of spermatozoa. She had "supported her version in the statement recorded under Section 164 Cr.P.C." before the Magistrate it said.

Furthermore, the Court pointed out that the offence alleged to have been committed by the petitioner is grievous in nature where under Section 4 of POCSO, the minimum punishment of 07 years has been prescribed which may extent to imprisonment for life.

"The investigating agency cannot shut the matter at the investigation stage by preparing a closure report in such cases where the allegations are of sexual abuse of a minor victim," the Court remarked.

The judge said, merely, on the ground of the DNA examination report being in favour of the petitioner, he was not entitled to pre-arrest bail, especially keeping in view of the fact that he is a neighbour of the victim, the age difference between the petitioner and the minor victim and there being prima facie no previous enmity between the petitioner and the victim.

In the light of the above, the plea was dismissed.

Mr. A.S. Manaise, Advocate, for the petitioner.

Ms. Himani Arora, A.A.G., Punjab.

Mr. Goldy Jakhar, Advocate, for the complainant.

Case: XXX v. XXX

Citation: 2024 LiveLaw (PH) 216