Section 53A CrPC - Omission To Carry Out Accused's DNA Profiling By Itself Not Fatal In Rape Cum Murder Cases: Supreme Court

The Supreme Court observed that a lapse or omission to carry out DNA profiling, by itself, cannot be held to be fatal in rape cum murder cases.

"The lapse or omission (purposeful or otherwise) to carry out DNA profiling, by itself, cannot be permitted to decide the fate of a trial for the offence of rape especially, when it is combined with the commission of the offence of murder as in case of acquittal only on account of such a flaw or defect in the investigation the cause of criminal justice would become the victim.", the bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and C T Ravikumar observed.

The court observed thus while considering the appeal filed by a man convicted by the Trial Court under Sections 302, 376A, 376(2)(i) IPC and Section 6 of POCSO Act. The death sentence awarded to him by the Trial Court was confirmed by the High Court. 

In appeal before the Apex Court, one of the contentions raised by the accused was that no DNA test was conducted to connect the appellant to the samples found on the body of the deceased and thereby Section 53A Cr.P.C., was violated.

Section 53A CrPC

Section 53A of the Code of Criminal Procedure, which was added to the Code by Cr.P.C. (Amendment) Act, 2005  deals with examination of person accused of rape by medical practitioner. It provides for a detailed examination, (which term has been explained under Explanation (a) to Section 53A Cr.P.C.), of a person accused of an offence of rape or attempt to commit rape, by a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of 16 kilometers from the place where the offence has been committed, by any other registered medical practitioner.

Non Conduct Of DNA Profiling A Flaw, But Not Fatal

The court agreed with the contention that non-conduct of DNA profiling in terms of the provisions under Section 53A Cr.P.C., is a flaw in the investigation. But it proceeded to consider whether the conviction of the appellant for the said offences, is liable to be set aside on that sole score? The court, referring to earlier decisions, observed:

In view of the nature of the provision under Section 53A Cr.P.C and the decisions referred (supra) we are also of the considered view that the lapse or omission (purposeful or otherwise) to carry out DNA profiling, by itself, cannot be permitted to decide the fate of a trial for the offence of rape especially, when it is combined with the commission of the offence of murder as in case of acquittal only on account of such a flaw or defect in the investigation the cause of criminal justice would become the victim. The upshot of this discussion is that even if such a flaw had occurred in the investigation in a given case, the Court has still a duty to consider whether the materials and evidence available on record before it, is enough and cogent to prove the case of the prosecution. In a case which rests on circumstantial evidence, the Court has to consider whether, despite such a lapse, the various links in the chain of circumstances forms a complete chain pointing to the guilt of the accused alone in exclusion of all hypothesis of innocence in his favour.

Further, referring to Sunil Vs. State of Madhya Pradesh [(2017) 4 SCC 393], the bench rejected this contention raised by the accused-appellant and observed: 

"As held in Sunil's case (supra), a positive result of DNA test would constitute clinching evidence against the accused. But, a negative result of DNA test or DNA profiling having not been done would not and could not, for that sole reason, result in failure of prosecution case. So much so, even in such circumstances, the Court has a duty to weigh the other materials and evidence on record to come to the conclusion on guilt or otherwise of the appellant herein and that exactly what was done by the trial Court and then by the High Court, in the instant case."

Rejecting other contentions raised by the accused, the bench upheld the conviction recorded by the Trial Court. However, taking note of mitigating factors, the  death sentence awarded to the appellant for the offence under Section 300, IPC punishable under Section 302, IPC was commuted to that of imprisonment for life with the stipulation that he shall not be entitled to premature release or remission before undergoing actual imprisonment for a period of thirty years.

Case details

Veerendra vs State of Madhya Pradesh | 2022 LiveLaw (SC) 480 | CrA 5 & 6 OF 2018 | 13 May 2022

Coram: Justices AM Khanwilkar, Dinesh Maheshwari and C T Ravikumar

Counsel: Sr. Adv Sonia Mathur, Amicus Curiae for the appellant,  Adv Pashupatinath Razdan for State

Headnotes

Code of Criminal Procedure, 1973 ; Section 53A - The lapse or omission (purposeful or otherwise) to carry out DNA profiling, by itself, cannot be permitted to decide the fate of a trial for the offence of rape especially, when it is combined with the commission of the offence of murder - Even if such a flaw had occurred in the investigation in a given case, the Court has still a duty to consider whether the materials and evidence available on record before it, is enough and cogent to prove the case of the prosecution. (Para 28)

Code of Criminal Procedure, 1973 ; Section 354(3) - Death Sentence - The 'crime test' and the 'criminal test' require to be followed before awarding capital sentence - Consideration of the aggravating and mitigating circumstances with application of mind required. [Referred to Pappu Vs. The State of Uttar Pradesh 2022 LiveLaw (SC) 144 ]

Indian Evidence Act, 1872 ; Section 8 - Doctrine of Res Gestae - The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" that it becomes relevant by itself. A conduct of the accused after the incident may become admissible under Section 6 of the Evidence Act, though not in issue, if it is so connected with the fact in issue.(Para 36)

Criminal Trial - Description of a witness as  'chance witness' cannot and will not by itself denude the admissibility or relevance of the evidence of such a witness if nothing was brought out to make his version suspicious and thereby unacceptable. (Para 37)

Criminal Trial - There would be nothing wrong in relying on the testimony of police officers if their evidence is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidence. (Para 40)

Criminal Trial - The recovery of the dead body, which was in a concealed condition from an unused and dilapidated building based on the disclosure statement of an accused is a crucial incriminating circumstance - Discovery of the body at the instance of the accused is a crucial circumstance, in a case resting on circumstantial evidence. ( Para 41)

Criminal Trial - When other circumstances are available non-detection of blood group by itself would not be fatal. ( Para 44 )

Code of Criminal Procedure, 1973 ; Section 313 - Offering no explanation on incriminating circumstances mentioned above would become an additional link in the chain of circumstances. (Para 47)

Criminal Trial - Last seen theory - discussed (Para 32-32.5)

Criminal Trial - Being related to the victim, by itself, is no reason at all to discredit the testimony of a witness. (Para 34)

Summary: Death sentence imposed on accused in case of rape and murder of 8 year old commuted to that of imprisonment for life with the stipulation that he shall not be entitled to premature release or remission before undergoing actual imprisonment for a period of 30 years - The present case cannot be considered as one falling in the category of 'rarest of rare cases'. 

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