Gauhati HC orders rape convict to undergo DNA test to ascertain paternity of victim’s child

 STAFF REPORTER

GUWAHATI: The Gauhati High Court has ordered a man, who was found guilty of rape by a trial court, to undergo a DNA test to ascertain whether he is the father of the child born to the rape victim.

The Sessions Judge, Bongaigaon passed a judgment on July 26, 2022 convicting the man under Section 376(1) IPC and sentencing him to undergo rigorous imprisonment for 12 years with a fine of Rs 50,000, in default to undergo simple imprisonment for one year. The man, who was 24 years old, was convicted for raping a 48-year-old woman, resulting in the birth of a child. The man filed an application (Crl.A./73/2023) under Section 389 Cr.PC in Gauhati High Court for suspension of the sentence and his release on bail. The High Court on October 10, 2023, rejected the man’s application for suspension of sentence. It held that unless and until a DNA (Deoxyribonucleic acid) test was done, it would not be proper to release him. After the man refused to consent to the test, the question before the Court was whether it can direct him to undergo the test. “The question that arose was whether this Court could direct the appellant to undergo a DNA test, to prove whether he was the father of the child born to the victim and which in turn would prove as to whether he was the rapist of the victim.”

The division bench of Justice Michael Zothankhuma and Justice Mitali Thakuria, while overruling the man’s refusal to undergo the test, observed that individual privacy has to give way to the object of finding out the truth. “......and in the view of this Court, the right to preserve individual privacy claimed by the appellant, 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.”

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 above cases show that there is no bar or restriction in having a DNA profiling of an accused in a case of rape. In the present case, not only is there an allegation of rape against the appellant, but the appellant has been accused of being the father of the child born due to the rape inflicted by the appellant. 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.

“As Section 53A Cr.PC allows for examination of a person accused of rape through DNA profiling on the request of a Police Officer not below the rank of Sub-Inspector, 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.”

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 High Court directed the trial court to take additional evidence under Section 391 Cr.PC, by taking steps for ensuring that a DNA test/profiling of the appellant and the child of the victim alleged to have been fathered by the appellant, is undertaken, after taking the samples from the appellant and the child in the presence of the Judge of the trial court.

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. The court listed the next hearing in the case after two months.

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