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Not Safe To Rely On DNA Report In...

Not Safe To Rely On DNA Report In Absence Of Evidence

Regarding How Samples Were Collected: P&H High
Court Acquits POCSO Rape Convict
Aiman J. Chishti
(/aimanj-chishti-205752)
22 Mar 2024 3:30 PM

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The Punjab & Haryana High Court acquitted a man convicted of raping a minor girl,
observing that there was "an important break in the chain of link evidence to prove
that the vaginal swabs" were taken for medical examination of the alleged victim.

While setting aside the conviction under the Protection of Children from Sexual
Offences (POCSO) Act, Justice Manisha Batra said, "It was for the prosecution to
rule out the possibility of the samples being contaminated or tampered with. In the
absence of evidence how the samples were collected as well as the fact that they
were properly preserved or not, it will not at all be safe to rely upon the DNA
report."

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The Court noted that as such, the position that emerges is that there is an
important break in the chain of link evidence to prove that the vaginal swabs,
which were taken by the doctor at the time of conducting medical examination of
the victim were the same which were deposited with FSL and the same had
remained properly collected, packaged and preserved.

"It is also well settled law that the prosecution is necessarily required to examine
the witnesses, who were in the custody of the samples to prove that while in their
custody, the seals of the samples had not been tampered with and the same
remained preserved. In the absence of the same, the prosecution cannot be held
to have brought home the offences against the accused," added the judge.

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These observations were made while hearing the plea of a man convicted of
penetrative sexual assault punishable under Section 4 of the POCSO Act and was
sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a
fine of Rs. 10,000.

Facts In Brief
According to the prosecution, the petitioner was arrested after a girl was allegedly
found in his house by her mother in a "perplexed condition" and the alleged victim
complained that she was forcibly taken to a room and stripped of her clothing,
after which he committed penetrative sexual assault on her.

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On the basis of her statement, a case under Section 363, 368, 376 and 506 of IPC
read with Section 4 of the POCSO Act was registered and investigation
proceedings were initiated.

It is stated that the victim was medico-legally examined and the statement of the
victim was recorded under Section 164 Cr.P.C., wherein she reiterated the
allegations as levelled in the FIR.

It is argued that the trial Court acquitted the accused of the charges framed under
Sections 363, 368 and 506 of the IPC but held him guilty of the commission of
offences punishable under Section 376 of IPC and Section 4 of the POCSO Act,
sentencing him to rigorous imprisonment.

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After hearing both sides, the Court noted that there were material inconsistencies
in the statements of the concerned witnesses with regard to the collection and
preservation of the samples, which were collected for DNA profiling of the victim
as well as the accused.

The Court noted that the Investigating Officer's (IO) statement remained silent on
the point of taking any vaginal swabs of the victim into custody and depositing as
well as ensuring its preservation and did not even say that vaginal swabs were
taken and remained with the doctor concerned.

Furthermore, it was noted that even the other IO, who had joined the investigation,
did not say that vaginal swabs of the victim were taken into possession and were
deposited.

Justice Batra found that the testimony of the doctor narrated a different story, as
according to her, the vaginal swabs as well as two different samples of the victim
were taken for DNA analysis.

The Court noted that she had remained quiet on the point of whether vaginal
swabs and blood swabs were handed over by her to any police official at all or
were kept in her custody and if the same remained preserved till the date when
they were handed over to the police. Strangely, the Court noted that she did not
even say that she had handed over any clothing of the victim to the police.

The Court opined that there was no evidence to prove that the vaginal swabs and
blood samples taken by the doctor were not contaminated or manipulated.

"It is the duty of the prosecution to prove every step to preserve the sample or
manipulation/contamination as the absence of proof of such step will certainly
cause a dent in the story of the prosecution," it stated.

Court added that in the absence of positive evidence, nothing can be presumed
and said that it was obligatory upon the prosecution to prove by leading positive
evidence that every precaution had been taken to keep the blood samples/vaginal
swabs of the victim in a safe condition right from obtaining the same till the same
were submitted by the police to the authorities FSL concerned for DNA profiling.
"The position that emerges is that the chain linking the vaginal swabs and blood
samples of the victim, which were deposited in the Malkhana...is broken one and,
therefore, it cannot be stated that the samples, which were deposited on
11.12.2020 before the FSL, Kharar were of the victim and of none else," the Court
decided.

Hence, the Court said that the DNA report cannot be said to be having a clinching
or high degree of probative value as it has not at all been proved beyond doubt that
the vaginal swabs as well as blood samples taken by the doctor were of the victim
and accused.

Alleged Victim Cannot Be Proved As Minor

The Court also reversed the Trial Court's finding that the alleged victim was a
minor as the school documents supporting her age were not conclusive proof.

It stated that the extract of the entries made in the admission register of the
school of the victim in the absence of any evidence on record to show as to on
what basis the date of birth of the victim was calculated, would have no
evidentiary value as neither the mother of the victim stated that it was she who
had disclosed the date of birth of the victim,

Consequently, the Court acquitted the convict and set aside the Trial Court
judgment.

Satinder Kaur, Advocate for the appellant.

R. S. Khaira, DAG, Punjab.

Suman Bishnoi, Advocate for the complainant.

Citation: 2024 LiveLaw (PH) 88

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