Can Conviction be Based Solely on DNA Report
The bench of Justices Vibha Kankanwadi and Y.G. Khobragade was dealing with the appeal filed by the accused challenging his conviction by Additional Sessions Judge, in a case registered for the offences punishable under Section 376(2)(l) of IPC.In this case, the informant is the brother of the victim. She was residing with the informant, his wife and the other family members. The victim is unmarried.The informant had gone to Kolhapur district to work on bricks kiln about eight months prior to the FIR and his wife and daughter was along with him.The Sarpanch of the village of the native place of the victim informed that the victim is pregnant of around 5 to 6 months and, therefore, he should return to the village.Four days prior to the FIR, the informant came back to his village and lodged report against an unknown person.At that time, the offence was wrongly registered under Section 376(2)(i) and 376(2)(K) of the IPC.The bench found that the explanation of Section 118 of the Evidence Act states that a lunatic is not incompetent to testify. Under such circumstances, even a lunatic/mentally challenged person can also testify, but it would be for the Court to consider the capacity of such witness.High Court noted that the prosecution has heavily relied on DNA report and the opinion that was given in respect of the DNA test of the samples taken of the victim, child and the accused; as per the report, is that the accused and the victim are concluded to be the biological parents of the child.The bench referred to the case of Mukesh and another v. State (NCT of Delhi) and others where the Supreme Court has elaborated the procedure to be adopted for selecting the samples as well as the precautions, which are required to be taken in conducting the DNA test.High Court observed that no doubt, the DNA testing and the report is based on a well-developed science and it can lead of a concluded evidence, still it depends upon the extracting of samples, its preservation and ruling out the possibility of tampering.The bench referred to the case of Kamalanantha and others v. State of Tamil Nadu wherein there was a DNA test on dead foetus to establish a paternity, however, in that case, the expert was examined and Supreme Court approved the scientific position stating that even if there was contamination, it would make no difference where there are matching of bands.High Court opined that P.W.4 and P.W.5 are not trustworthy as they have changed their statements in the cross. When the ocular evidence was not supporting, conviction ought not to have been based only on the DNA test report.Therefore, the finding and conclusion in the judgment by the Trial Court is perverse and not based on legal principles.Case Title: Suresh v. The State of MaharashtraDr. Ajay Kummar Pandey
( LLM, MBA, (UK), PhD, AIMA, AFAI, PHD Chamber, ICTC, PCI, FCC, DFC, PPL, MNP, BNI, ICJ (UK), WP, (UK), MLE, Harvard Square, London, CT, Blair Singer Institute, (USA), Dip. in International Crime, Leiden University, the Netherlands )Advocate & Consultant, Supreme Court of India & High Courts4C Supreme Law International, Delhi, NCR. Mumbai & DubaiTel: M- 91- 9818320572. Email: editor.kumar@gmail.comWebsite: www.ajaykr.com, www.4Csupremelawint.com
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