Gauhati High Court orders rape convict to undergo DNA test to ascertain guilt, paternity of child born to victim

More than a year after a trial court found a man guilty of rape, the Gauhati High Court ordered him to undergo the (Deoxyribonucleic acid) DNA test to ascertain whether he is the father of the child born to the rape victim [Sudip Biswas @ Bura v. The State of Assam and Anr]. .The division bench of Justice Michael Zothankhuma and Justice Mitali Thakuria, while overruling the convict’s refusal to undergo the test, observed that individual privacy has to give way to the object of finding out the truth.“Otherwise, the same could amount to sacrificing the cause of justice. Thus, in criminal cases, the requirement of finding out the truth would over-ride the stand of the appellant, in not agreeing to undertake a DNA test,” it held..The Court took into account the fact that Section 53A of Code of Criminal Procedure (CrPC) allows collection of material for DNA profiling of a rape accused on a request by police.“We do not find any bar or restriction for this Court to pass a direction for DNA profiling of the appellant, which would prove whether the appellant was the father of the child and thus further prove the question whether any rape had been committed on the victim by the appellant,” the Court said. Invoking its powers under Section 391 of the Code of Criminal Procedure - the provision allows appellate courts to take further evidence at appeal stage - the Court directed the trial court to take steps for ensuring DNA test of the convict and the child..In the case dating back to 2016, a 48-year-old woman was raped by a 24-year-old. The woman later gave birth to a child. In July 2022, the trial court convicted the accused under Section 376(1) (rape) of the Indian Penal Code and sentenced him to 12 years imprisonment.On October 10, the High Court rejected the convict’s application for suspension of sentence. It held that unless and until a DNA test was done, it would not be proper to release him.After the convict refused to consent to the test, the question before the Court was whether it can direct him to undergo the test. .The Court said that with the incorporation of Section 53 (Examination of accused by medical practitioner at the request of police officer) in the CrPC in 2006, DNA test can be done to facilitate the prosecution in proving its case.It added that Section 164A (2)(iii) CrPC provides that the registered medical practitioner who examines the rape victim prepares a report giving various particulars, “one of them being, the description of material taken from the person of the woman for DNA profiling”.On the argument that right to privacy is part of the fundamental right to life and Article 20(3) provides that nobody should be compelled to give evidence against him, the Court said that the same would not override “the search of truth”.“As the offence of rape is an offence against the society at large and as the objective of a Court proceeding is to find out the “truth”. We are accordingly of the view that the appellant’s right under Articles 20(3) & 21 would have to give way to public interest, so that the truth is laid bare for all to see,” the Court said..Looking into various precedents on the evidentiary value of DNA reports in rape cases, the Court said there was no bar or restriction in conducting a DNA test of an accused in a case of rape.The Court noted that in the convict’s case before it, there was not only an allegation of rape but also the accusation that he is father of the victim’s birth.“It is quite clear that DNA profiling of the appellant could prove whether the appellant was the father of the child born to the victim,” it added.The Court also looked at the law laid down by the Supreme Court in matrimonial dispute cases.It said that even in civil cases like disputes related to “infidelity of the wife and paternity of a child”, the apex court has allowed DNA tests to be done after balancing the interest of the parties and keeping in view the case facts.Observing that the case before it was different as it pertains to a criminal offence, the Court rejected the argument about the individual’s privacy and said the matter involves crime against society.“We are of the view that the principle of proportionality is also in favour of the Court resorting to DNA testing, to find out whether a crime had been committed by the appellant, keeping in view the allegation made by the victim and the fact that a child has been born,” the division bench said..Concluding that the Supreme Court has in many cases supported the case of DNA test, the Court passed the following direction to the trial court:“We are of the view that additional evidence is required to be taken in terms of Section 391 Cr.P.C, as DNA test of the appellant and the child born to the victim, would conclusively prove whether the child has been fathered by the appellant and whether the appellant was the perpetrator of the rape committed on the victim.” The Court ordered that the entire exercise be completed within two months and the result of the DNA test be sent to the High Court.It will hear the matter again after two months.Advocate HRA Choudhury represented the appellant Additional Public Prosecutor B Bhuyan represented the State[Read Order]