Citing Madras & Karnataka HCs rulings on Sec.53-A CrPC not being violative of Article 20(3) of Constitution, P&H HC says Sec.53-A makes it imperative for prosecution to conduct DNA test in rape cases

Read Order: Jagjeet Singh v. State Of Haryana

Monika Rahar

Chandigarh, February 28, 2022: In a rape case, the Punjab and Haryana High Court has upheld the impugned decision of the Trial Court wherein the accused was directed to undergo a DNA Test. 

While disagreeing with the accused/petitioner’s submission that such a test would amount to self-incrimination, thus attracting the protection of Article 20 (3) of the Indian Constitution, the Bench of Justice Suvir Sehgal opined, “Section 53-A has been incorporated in the Code, w.e.f., 23.06.2006 and make it imperative for the prosecution to conduct DNA test in cases involving rape and attempt to rape, for establishing the case against the accused, more so, when there is likelihood that it may provide material to connect the accused with the crime.”

In arriving at this decision, the Court relied upon the judgements of the High Courts of Madras and Karnataka in M. Muthukumar v. Inspector of Police and another, and Shreemad Jagadgaru Shankracharya Versus State Karnataka, 2014 (37) R.C.R. (Criminal) 787, respectively, wherein the ground of self-incrimination was rejected and it was held that Section 53-A of the Cr.P.C. is not violative of fundamental rights in Part III of the Constitution of India. 

In the present case, the High Court was approached in a revision petition under Section 401 of the Code of Criminal Procedure, 1973 wherein the accused-petitioner challenged order of the Trial Court, whereby the SHO concerned directed him to the General Hospital, Sirsa, for taking his blood sample and to send the same to FSL, Madhuban for DNA examination. 

The facts of the matter were such that an FIR was registered under Sections 365, 376-D and 120-B of the Indian Penal Code, 1860, Section 6 of the Protection of Children from Sexual Offences Act, 2012 and Section 3(w)(ii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against accused (including the petitioner) on the statement of the minor victim who alleged that the accused- petitioner raped her with the aid of his co-accused. 

It was the case of the petitioner’s counsel that the blood sample of the accused was not taken during the investigation and during the course of the trial, however, after the minor victim and other prosecution witnesses turned hostile, the application for DNA samples was made and the same was allowed by the Trial Court vide the impugned order. He further argued that the application was submitted at a belated stage to cover up the lacuna. He urged that the impugned order could not be sustained as the petitioner could not be forced to be a witness against himself. He had claimed the protection of Article 20 (3) of the Constitution of India. 

Opposing the petition, the State counsel submitted that the blood sample of the accused-petitioner was taken in 2021 and was sent to the laboratory for analysis and a report was awaited. She relied upon Section 53-A of the Code. 

After considering the rival submissions the Court made reference to the judgment of the Supreme Court in Krishan Kumar Malik Versus State of Haryana, 2011 (7) SCC 130 wherein it was held that procedure for getting the DNA test or analysis and matching of semen of the accused with that of the undergarments of the prosecutrix has to be mandatorily resorted to and in case it is not done, the prosecution must face the consequences. 

Further, applying the above-stated position of law and reiterating that Section 53 A of Cr.P.C. is not infringing fundamental rights, the Court observed that it came on the record that the FSL result of the victim was found to be positive. In such a situation, the Court was of the view that it was essential for the prosecution to conduct DNA profiling. 

Further, addressing the argument of the petitioner’s counsel on the prosecution witnesses turning hostile, the Court opined that the issue could not be gone into at this stage as the evidentiary value of those statements would be a matter of appreciation at the time of final adjudication upon the guilt or innocence of the accused. 

Thus, after having considered the factual situation of the case and the submissions of the parties, the Court was of the view that there was no merit in the petition and hence, the same was dismissed.