DNA testing rape accused does not violate right against self-incrimination: Kerala High Court

The Kerala High Court recently held that the right against self-incrimination under Article 20(3) of the Constitution of India is only applicable to testimonial evidence and that drawing DNA samples in a criminal case, especially a case of sexual offence, will not violate the said right [Das@Anu v State of Kerala and Another].

Justice Kauser Edappagath clarified that the right against self-incrimination is a prohibition on the use of physical or oral compulsion to extort testimonial evidence from a person.

Taking a sample of the blood for evidence from the accused will not amount to tendering evidence against himself or compelling to be a witness against himself.

“Article 20(3) of the Constitution of India provides that “no person accused of any offense shall be compelled to be a witness against himself”. The petitioner's contention is that obtaining a sample from him for a DNA test violates his right against self-incrimination. The privilege of Article 20(3) is applicable only to testimonial evidence. Drawing DNA samples from the body of an accused in a criminal case, especially in a case involving a sexual offense, will not violate his right against self-incrimination protected under Article 20(3) of the Constitution of India. The right against self-incrimination is just a prohibition on the use of physical or oral compulsion to extort testimonial evidence from a person, not an exclusion of evidence taken from his body when it may be material. There is no testimonial compulsion in the process of taking a sample of the blood by a qualified and registered medical practitioner, and in no case could it be said that by this process, the accused is forced to tender evidence against himself nor by this process accused is being compelled to be a witness against himself,“ the order said.

The Court further added that according to Section 53A of the Code of Criminal Procedure (CrPC), the police have got enough power to send the accused to a qualified medical practitioner for the purpose of taking samples as examination of the accused is contemplated as an aid to the investigation of the trial to ascertain facts.

“That apart, as per Section 53A of CrPC, the police have got enough power to send the accused to a qualified medical practitioner for the purpose of taking samples. The examination of the person of the accused is contemplated as an aid to the investigation of the trial to ascertain facts that may afford evidence as to the commission of the offense under investigation,” the order said.

The Court was considering a petition challenging an order of the court below directing the petitioner to appear before the investigating officer to collect his blood sample for the purpose of DNA examination.

As per the proseuction, the petitioner had raped a minor girl twice and impregnated her in 1997. Further, he along with other accused had also attempted to cause a miscarriage. The victim later conceived a girl child out of the said rape.

The petitioner faced trial for the offenses punishable under Sections 376(Punishment for rape) and 511 (Punishment for attempting to commit offenses punishable with imprisonment for life or another imprisonment) of 313(Causing miscarriage without woman’s consent) r/w 34 (act done by several persons) of Indian Penal Code (IPC).

During the trial, the blood sample of the petitioner was required for further investigation and thus the prosecution filed an application to make the petitioner available for the DNA test. However, the petitioner did not cooperate and filed a detailed objection.

The court below allowed the application and thus, the petitioner approached the High Court.

The counsel for the petitioner submitted that DNA profiling would amount to self-incrimination and is thus unsustainable.

The counsel further submitted that the question of paternity of the child has absolutely no nexus to the offence of rape, and the allegation regarding rape must be independently proved by the prosecution hence, the court below went wrong in ordering a DNA examination.

However, the High Court said that to prove the offence of rape allegedly committed by the petitioner, the matching of the DNA samples and conducting of DNA profiling test is very essential, and thus, the court below was absolutely justified in allowing the application.

“The recent advancement in modern biological research has regularized forensic science resulting in radical help in the administration of justice. DNA technology, as a part of forensic science and scientific discipline, not only provides guidance to the investigation but also supplies the court accrued information about the tending features of the identification of criminals. After the amendment of Cr. P.C, by the insertion of S.53A by Act 25 of 2005, DNA profiling has now become a part of the statutory scheme. S.53A relates to the examination of a person accused of rape by a medical practitioner. DNA profiling test is now specifically included by way of explanation to S.53 of Cr.P.C. Similarly, u/s 164A of Cr.P.C inserted by Act 25 of 2005, for medical examination of the victim of rape, the description of material taken from the person of the woman for DNA profiling is must. Thus, S.53A and S.164A inserted in the Cr. P.C by way of the Amendment Act of 2005, makes the DNA profiling of the accused and the victim permissible in cases of rape,” the order said.

Therefore, the Court said that it does not find illegality or infirmity in the order passed by the court below and dismissed the petition.

The petitioner was represented by advocate MVS Nampoothiry. The respondent was represented by public prosecutor Sangeetha Raj.

[Read Order]