The Kerala High Court in its judgement has held that DNA testing of rape accused does not violate right against self-incrimination. The court stated that Article 20(3) is applicable to testimonial evidence only. The court further added that DNA testing is crucial in cases of sexual offence and is not violative of the right enshrined under Article 20(3).
Justice Kauser Edappagath in his statement clarified that the right against self-incrimination is a prohibition on the use of any physical or oral compulsion to extort testimonial evidence from an accused. On the other hand, taking sample of blood for evidence from accused will not amount to an self-incriminating action or does not compel the accused to be a witness against himself.
The court also stated that according to Section 53A of the Code of Criminal Procedure, the police have has the power to send the accused to a qualified medical practitioner for the purpose of taking samples. The reason behind this is that the examination of the accused aids the police in investigation for the purposes of trial.
As per the prosecution, the petitioner 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.
The petitioner was facing trial for the offenses punishable under Sections 376 and 511 and 313 r/w 34 of Indian Penal Code.
The accused was required to give blood for the purpose of investigation, however, he was not cooperating and then proceeded to file a detailed objection.
The court 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 is violative of fundamental rights.
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.
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