DNA Evidence Not Conclusive Proof In Rape Cases: Calcutta HC

It is absolutely vital to note that while ruling on a very significant legal point pertaining to the evidentiary value of DNA evidence in rape cases, the Calcutta High Court in a most remarkable, robust, rational and recent judgment titled Rabi Das @ Rabindra Nath Das vs The State of West Bengal & Another in C.R.R. 649 of 2017 With CRAN 2/2017 (Old CRAN 3544/2017) in exercise of its criminal revisional jurisdiction from appellate side that was heard on 20.03.2024 and then finally decided on 06.05.2024 refused to discharge a man in a rape case despite a DNA report concluding that he was not the biological father of the child born to the victim. We need to note here that the Single-Judge Bench comprising of Hon’ble Mr Justice Ajay Kumar Gupta noted the glaring fact that the evidence adduced by the victim-girl established a prima facie case of rape or penetrative sexual assault of the victim girl by the petitioner. The Bench noted that the parents of the victim-girl who was only 14 years old at the relevant time found her to be 7 months pregnant only after she fell ill.

We need to also pay attention here to the irrefutable fact that the Court noted that the DNA report from the Central Forensic Science Laboratory showed the petitioner was not the biological father of female baby but the same cannot be a ground to discharge the accused. It must also be noted that the Court was hearing a revision application that had been filed by the applicant challenging the decision of a special court designated to hear cases under the Protection of Children from Sexual Offences Act (POCSO Act). Earlier the Special Court in Purba Medinipur had by an order passed on January 16, 2017 refused to discharge the applicant from the rape case and concluded that though the applicant may not be a biological father of the child, that does not necessarily mean that he has not committed rape as alleged.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Ajay Kumar Gupta sets the ball in motion by first and foremost putting forth in para 1 that, “Rabi Das @ Rabindra Nath Das being an accused filed an application for discharge from the Criminal Case being S.C. 10(2) of 2016 arising out of Moyna Police Station Case No. 182 of 2015 dated 04.08.2015 under Sections 376(2)(i)/506 of the Indian Penal Code and Section 4 of Protection of Children from Sexual Offences Act relating to M.P. Case No. 859/2015 giving rise to G.R. Case No. 2006/2015 pending before the Learned Additional Sessions Judge, 2nd Court, Tamluk, Purba Medinipur on the ground that the DNA Report, collected from CFSL, has established that the present accused/petitioner is not the biological father of the child born to the victim. The allegation of rape is out and out false and he has been falsely entangled into this case.”

As we see, the Bench then enunciates in para 2 that, “The learned Additional Sessions Judge, after hearing the parties and considering the DNA Report as well as other surrounding circumstances of the allegation, came to a conclusion that he may not be a biological father of the child does not necessarily mean that he has not committed rape as alleged because to arrive at such decision, a mixed question of law and fact is required, which cannot be decided without adducing evidence from both sides and finally rejected his prayer for discharge on 16.01.2017 observing therein that at this stage it would be prejudiced the whole issue if the accused is discharged only on the basis of DNA Report since the allegation of the victim is that the accused has committed rape forcibly on several occasions on different dates.”

As it turned out, the Bench then discloses in para 3 that, “Being aggrieved by and dissatisfied with the said rejection order dated 16.01.2017, the present petitioner/accused filed this revisional application seeking for setting aside the impugned order dated 16.01.2017 as well as quashing of the aforesaid proceeding pending before the Learned Additional Sessions Judge, 2nd Court, Tamluk, Purba Medinipur.”

To put things in perspective, the Bench envisages in para 4 that, “The brief facts are relevant for the purpose of disposal of this case as under:

4a. On 30.07.2015, the de-facto complainant filed a petition of complaint under Section 156(3) of the Code of Criminal Procedure before the learned Chief Judicial Magistrate, Purba Medinipur at Tamluk to the effect that his daughter aged about 14 years was a student of Class-VII. On 10.07.2015, the said daughter of the complainant felt illness in her school. Initially, she was treated by a quack doctor and, thereafter, she was further treated by Dr. B. K. Roy at Tamluk and came to know that his daughter found pregnant for 7/8 months. On asking, she disclosed that on 18.12.2014 at about 10 am, the petitioner/accused took her to his house forcibly and committed rape against her will and further threatened her if she disclosed the fact then she would be killed. The de-facto complainant also stated in his complaint that the present petitioner/accused committed rape upon her day by day in absence of the complainant and his wife. On the basis of direction passed by the learned Court below, the Police authority has treated the written complaint as an FIR, resulted in registration of a Moyna Police Station Case No. 182 of 2015 dated 04.08.2015 under Sections 376(2)(i)/506 of the Indian Penal Code read with Section 4 of Protection of Children from Sexual Offences Act has been started against the present petitioner and cause investigation. Subsequently, a charge sheet has been submitted being Charge Sheet No. 29/2016 dated 09.02.2016 under Sections 376(2)(i)/506 of the IPC and Section 4 of the Protection of Children from Sexual Offences Act against the petitioner and later on a supplementary charge sheet has been submitted after collecting the DNA Report in negative. Hence, the instant criminal revisional application.”

Truth be told, the Bench points out in para 7 that, “Having heard the elaborate submissions of the parties and on perusal of the application and annexure thereto as well as the case diary, this Court finds during investigation statement of the victim was recorded under Section 164 of the Cr.PC. From perusal of the said statement, it is clear allegation that the present petitioner had committed rape upon the victim not only a single day but also on several occasions on different dates.”

Be it noted, the Bench notes in para 7a that, “It further reveals, petitioner has threatened her to murder if she disclosed the fact of rape. The incident of rape came to knowledge of the parents when she became ill in her school and when the doctor examined her. She also stated before the doctor about the name of the accused who had committed rape upon her forcibly on several occasions on different dates.”

Most significantly and most remarkably, the Bench mandates in para 7b of this remarkable judgment postulating that, “It further reveals, from the case diary that she was 14 years old at the time of incident. All these facts established a prima facie case of rape or penetrative sexual assault as well as threat perception against the present petitioner. It is admitted facts that DNA report, collected from the CFSL, shows the present petitioner is not the biological father of female baby titas. Only on such scientific report, the accused cannot be discharged from a case where direct evidence is apparent from the Case Diary. Allegation of rape may be proved by substantive evidence and to prove substantive evidence, leading of evidence from both the sides are essential. Accordingly, at this initial stage, the accused cannot be discharged only on the basis of scientific report i.e. DNA Report because DNA analysis report cannot be said to be the conclusive evidence regarding rape and can only be used as corroborative evidence in the trial and it is not clinching evidence.”

As a corollary, the Bench then propounds and directs in para 8 that, “In the light of above discussions, this Court finds the rejection of prayer for discharge of the accused person only on the ground that he is not the biological father of the female baby titas as per the DNA Test Report collected from CFSL, is correct, legal and valid. There is no error in jurisdiction or law. Thus, the revisional application has devoid of merits.”

It is worth noting that the Bench then notes in para 9 that, “Accordingly, C.R.R. 649 of 2017 is, thus, dismissed without order as to costs. Consequently, CRAN 2/2017 (Old CRAN 3544/2017) is also, thus, disposed of.”

Finally, the Bench then concludes by holding in para 14 of this notable judgment that, “Urgent photostat certified copy of this judgment, if applied for, is to be given as expeditiously to the parties on compliance of all legal formalities.”

In a nutshell, we thus see that the Calcutta High Court has minced just no words to hold indubitably that DNA evidence is not conclusive proof in rape cases. We also saw how the Single-Judge Bench comprising of Hon’ble Mr Justice Ajay Kumar Gupta in his precise judgment refused to discharge the rape accused even after the DNA report concluded that he was not the biological father of the victim’s child. No denying!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.