The Kerala High Court has recently upheld a trial court order that ordered an accused rapist to appear before a coroner to provide his blood sample for DNA profiling.
Justice Kauser Edappagath rejected the contention raised by the accused’s counsel that the court’s order would violate the fundamental right against self-incrimination. The judge said, “The protection guaranteed under Article 20(3) of the Constitution of India does not extend to the protection of the accused from being compelled to give a blood sample during the investigation of a criminal case.”
As the judge clarified, the right against self-incrimination is only a prohibition to use physical or verbal coercion on a person to testify, not to exclude the evidence taken from his body when it may be material.
“20 the privilege of paragraph 3 of the article applies only to testimonial evidence. Taking DNA samples from the body of an accused in a criminal case, especially in a case involving sex offences, will not violate his right against self-incrimination protected under Article 20(3) of the Constitution of India,” Justice Edappagath said.
In this case, the Prosecutor’s Office, through Article 53.A of the Code of Criminal Procedure, requested a DNA test to determine the paternity of the victim’s children.
In this regard, the court said, “Though S.53A only refers to the examination of the accused by a medical practitioner on the request of the police officer, in an appropriate case, the court can issue an order to the police officer to collect blood sample and DNA test from the accused for further investigation under 173(8) of CrPC.”
In arriving at the conclusion, the court in State of Bombay v. He also referred to the Supreme Court judgment in Kathi Kalu v. Oghad, which held that the collection of fingerprint samples for comparison and identification is not an act of testimony for the purpose of the article. 20(3) and Selvi and Others v. In the case of State of Karnataka, where it was held that the taking and preservation of DNA samples as physical evidence has no constitutional bar in the Indian context.
In the current issue, the accused allegedly raped a minor in 1997, and then gave birth to a baby girl. Initially, in 1997, a case was registered against four people, including the applicant. The accused had attempted to induce an abortion. In 2007, two of the accused were acquitted. However, the case against the petitioner and the fourth accused was again filed.
During the course of trial, the investigating officer submitted a report that further investigation u/s 173(8) of CrPC was initiated and for DNA analysis, blood sample should be collected from the petitioner. He informed the trial court that, despite being warned, the petitioner showed his unwillingness. The court then granted the request for DNA samples.
Rejecting the objections raised by the petitioner’s lawyers against the trial court order, the single judge bench of the High Court said: “It is true that in a case of rape the prosecution has to prove, by positive evidence, that the accused had intercourse. the victim without his consent or against his will. However, it cannot be said that the evidence of the paternity of the child born during the alleged sexual act has no importance in deciding the case”.
The judge said: “Certainly, proof of the child’s paternity is probative evidence to establish rape.”
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