Gauhati High Court
Ram Lochan Choudhury vs The State Of Assam And Anr on 16 September, 2025
Author: M. Zothankhuma
Bench: Michael Zothankhuma
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GAHC010114912025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./193/2025
RAM LOCHAN CHOUDHURY
S/O LATE JALESWAR CHOUDHURY, R/OI VILL- DOIGRUNG NO. 2, P.S.-
GOLAGHAT, DIST- GOLAGHAT, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
2:SMTI MUNI TELENGA
W/O SRI BIRAJ TELENGA
R/O VILL- NO. 2 DOIGRUNG TEA ESTATE
JONGHOL LINE
P.S.- GOLAGHAT
PIN-785702
DIST- GOLAGHAT
ASSA
Advocate for the Petitioner : MR. P K MUNIR, MR. A. GAYAN,J BHUYAN
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MR. JUSTICE ANJAN MONI KALITA
ORDER
16.09.2025
(M. Zothankhuma, J)
1. Heard Mr. P.K. Munir, learned counsel for the appellant and Ms. A. Begum,
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learned Additional Public Prosecutor, Assam for the State.
2. This is an appeal against the judgment dated 26.09.2023 passed by the
learned Special Judge, POCSO at Golaghat in Special POCSO Case No.25/2022,
arising out of Golaghat P.S. Case No.69/2022, by which the appellant had been
convicted under Section 6 of the POCSO Act, 2012 and sentenced to undergo
rigorous imprisonment for life with a fine of Rs.50,000/-, in default, to undergo
rigorous imprisonment for 3 (three) months.
3. The case against the appellant is that he had raped the victim girl who was
an alleged minor, due to which the appellant has been convicted under Section
6 of the POCSO Act, 2012. The ossification test that had been conducted on the
victim shows that she was between 16 and 18 years during the time the
incident of rape had occurred. Keeping in view the decision of the Supreme
Court in the case of Ram Suresh Singh vs. Prabhat Singh @ Chhotu &
Another, reported in (2009) 6 SCC 681 and Jyoti Prakash Rai @ Jyoti
Prakash vs. State of Bihar, reported in (2008) 15 SCC 223, the age
determined by ossification test is not a precise one and therefore a 2 year
margin of error can be applied on either side of the age of the victim. Though
the above judgments are in relation to the giving of the benefit of ± 1 or 2
years to an accused on whom an ossification test had been conducted to
determine the age of the accused, there is no reason not to apply the said
principle of ± 2 years margin of error even on an ossification test conducted on
a victim. Keeping in view the settled law of the land that in the event of there
being 2 views, one in favour of the accused and one in favour of the State, we
are of the view that the margin of error of 1 plus 2 year can be given on the
higher side, when it comes to determining the age of the victim after an
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ossification test is conducted. The victim, in any event, would have been
deemed to be 18 years in terms of the ossification test. The above being said, it
is the case of the prosecution that a child has been born out of the rape that
had been committed by the appellant on the victim. On a query made to the
learned counsels for the parties, as to whether a DNA test should be conducted,
to determine the paternity of the child vis-a-vis the appellant, the counsels of
the parties submit that they do not have any objection if a DNA test is
conducted on the child and the appellant.
4. In the case of Sudip Biswas @ Bura vs. The State of Assam &
Another (Criminal Appeal 73/2023), the Division Bench of this Court, vide
Order dated 13.10.2023, had directed that a DNA test/profiling should be
conducted on the child of the victim and the accused/appellant therein, to get to
the truth of the matter, as the offence of rape was an offence against the
society at large and as the objective of a Court proceeding was to find out the
truth. This Court, thus held that though it might be argued that a right to
privacy is a part of the right to life and personal liberty under Article 21 and that
Article 20(3) provides that nobody should be compelled to give evidence against
himself, the said right cannot over-ride the search for the truth.
5. In the case of Harishchandra Sitaram Khanorkar Vs. State of
Maharashtra, reported in 2023 (1) ABR (CRI) 259, the Division Bench of
the Bombay High Court has held that there can be no doubt that there have
been remarkable technological advancement in forensic science and in scientific
investigations. The DNA testing has an unparalleled ability both to exonerate the
wrongly convicted person and to identify the guilty. It has the potential to
significantly improve both the criminal justice system and police investigative
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practices. Modern DNA testing can provide powerful new evidence unlike
anything known before DNA technology. It provides not only guidance to the
investigation, but also supplies the Court accurate information regarding the
identification of the criminal.
6. In the case of Pravin Suryabhanji Gube Vs. State of Maharashtra,
reported in 2019 (2) ABR (CRI) 70, the Bombay High Court has held that
DNA is a modern scientific technique, which is very useful and helpful not only
for investigators, but also for Courts to reach to the truth. DNA conclusively
points the finger of guilt towards the perpetrator of a crime. However, while
considering this scientific piece of evidence, the Court is required to examine as
to whether at any point of time, it could be said that there was the slightest
chance of playing with the samples and/or tampering with it by anyone.
7. In the case of Mukesh Vs. State (NCT of Delhi) 2017 6 SCC 1, the
Hon'ble Supreme Court spoke on the importance of DNA evidence. It observed
in paragraph Nos. 216 and 217 as follows:-
"216. DNA technology as a part of Forensic Science and scientific
discipline not only provides guidance to investigation but also supplies the
court accrued information about the tending features of identification of
criminals. The recent advancement in modern biological research has
regularized Forensic Science resulting in radical help in the administration
of justice. In our country also like several other developed and developing
countries, DNA evidence is being increasingly relied upon by courts. After
the amendment in the Criminal Procedure Code by the insertion of Section
53A by Act 25 of 2005, DNA profiling has now become a part of the
statutory scheme. Section 53A relates to the examination of a person
accused of rape by a medical practitioner.
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217. Similarly, under Section 164A 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 a must."
8. In the case of Pantangi Balarama Venkata Ganesh Vs. State of A.P,
reported in 2009 14 SCC 607, the Supreme Court held that experts opine that
identification by DNA profiling is hundred percent precise. However, there is a
need for quality control. Further, the evidence of experts is admissible in
evidence in terms of Section 45 of the Evidence Act, 1872. The Supreme Court
in the above case has held at paragraph No. 41 as follows:-
"41. Submission of Mr. Sachar that the report of DNA should not be relied
upon, cannot be accepted. What is DNA? It means:
(Deoxyribonucleic Acid), which is found in the chromosomes of the cells of
living beings is the blueprint of an individual. DNA decides the
characteristics of the person such as the colour of the skin, type of hair,
nails and so on. Using this genetic fingerprinting identification of an
individual is done like in the traditional method of identifying fingerprints
of offenders. The identification is hundred percent precise, experts opine."
9. In the case of Manoj Vs. State of M.P, reported in AIR Online 2022
SC 767, the Supreme Court has held at paragraph No. 158 as follows:-
"158. This Court, therefore, has relied on DNA reports, in the past, where
the guilt of an accused was sought to be established. Notably, the reliance
was to corroborate. This Court highlighted the need to ensure quality in
the testing and eliminate the possibility of contamination of evidence; it
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also held that being an opinion, the probative value of such evidence has
to vary from case to case."
10. Section 53A(2)(iv) Cr.P.C, which is equivalent to Section 52(2)(iv) BNSS
provides that a registered medical practitioner shall prepare a report of his
examination, of a person/material taken from the person, arrested on a charge
of committing an offence of rape or an attempt to commit rape by way of DNA
profiling, if there are reasonable grounds for believing that an examination of
his person will afford evidence as to the commission of such offence. Section
164A (2)(iii) Cr.P.C, which is equivalent to Section 184(2)(iii) BNSS provides that
the registered medical practitioner, to whom a victim of rape or attempted to be
raped is sent, shall, without delay, examine her person and prepare a report of
his examination giving various particulars, one of them being, the description of
material taken from the person of the woman for DNA profiling.
11. Section 52 BNSS Section 184 BNSS are reproduced herein below as
follows:-
"Section 52 of BNSS:-Examination of person accused of rape
by medical practitioner ---
(1) When a person is arrested on a charge of committing an offence of
rape or an attempt to commit rape and there are reasonable grounds
for believing that an examination of his person will afford evidence as
to the commission of such offence, it shall be lawful for a registered
medical practitioner employed in a hospital run by the Government or
by a local authority and in the absence of such a practitioner within
the radius of sixteen kilometers from the place where the offence has
been committed by any other registered medical practitioner, acting at
the request of a police officer not below the rank of a sub-inspector,
and for any person acting in good faith in his aid and under his
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direction, to make such an examination of the arrested person and to
use such force as is reasonably necessary for that purpose.
(2) The registered medical practitioner conducting such examination
shall, without delay, examine such person and prepare a report of his
examination giving the following particulars, namely;
(i) the name and address of the accused and of the person by whom
he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of the accused
for DNA profiling, and".
(v) other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion
arrived at.
(4) The exact time of commencement and completion of the
examination shall also be noted in the report.
(5) The registered medical practitioner shall, without delay, forward
the report of the investigating officer, who shall forward it to the
Magistrate referred to in section 193 as part of the documents referred
to in clause (a) of Sub-Section (6) of that section.
Section 184 BNSS:- Medical examination of the victim of
rape---
(1) Where, during the stage when an offence of committing rape or
attempt to commit rape is under investigation, it is proposed to get the
person of the woman with whom rape is alleged or attempted to have
been committed or attempted, examined by a medical expert, such
examination shall be conducted by a registered medical practitioner
employed in a hospital run by the Government or a local authority and in
the absence of such a practitioner, by any other registered medical
practitioner, with the consent of such woman or of a person competent to
give such consent on her behalf and such woman shall be sent to such
registered medical practitioner within twenty-four hours from the time of
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receiving the information relating to the commission of such offence.
(2) The registered medical practitioner, to whom such woman is sent shall,
without delay, examine her person and prepare a report of his
examination giving the following particulars, namely--
(i) the name and address of the woman and of the person by whom
she was brought;
(ii) the age of the woman;
(iii) the description of material taken from the person of the woman for
DNA profiling;
(iv) marks of injury, if any, on the person of the woman;
(v) general mental condition of the woman; and
(vi) other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion arrived
at.
(4) The report shall specifically record that the consent of the woman or
of the person competent, to give such consent on her behalf to such
examination had been obtained.
(5) The exact time of commencement and completion of the examination
shall also be noted in the report.
(6) The registered medical practitioner shall, without delay forward the
report to the investigating officer who shall forward it to the Magistrate
referred to in section 193 as part of the documents referred to in clause
(a) of Sub-Section (6) of that section.
(7) Nothing in this section shall be construed as rendering lawful any
examination without the consent of the woman or of any person
competent to give such consent on her behalf.
Explanation - For the purposes of this section, "examination" and
"registered medical practitioner" shall have the same meanings as
respectively assigned to them in Section 51.
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12. In the case of Santosh Kumar Singh Vs. State, reported in 2010 9
SCC 747, which was in respect of a young girl who was raped and murdered,
the DNA report relied upon by the High Court was approved by the Supreme
Court and held that the DNA report can be accepted as being scientifically
accurate and an exact science as held by the Supreme Court in Kamti Devi Vs.
Poshi Ram, reported in 2001 5 SCC 311.
13. In the case of Krishan Kumar Malik Vs. State of Haryana, reported in
2011 7 SCC 130, which was a case of gang rape, the prosecution had not
conducted the DNA test or made any analysis and matching of the semen of the
accused with that found on the undergarments of the prosecutrix. The Supreme
Court has held at paragraph No. 44 as follows:-
"44. Now, after the incorporation of Section 53-A in the Criminal
Procedure Code w.e.f. 23.06.2006, brought to our notice by the
learned counsel for the respondent State, it has become necessary for
the prosecution to go in for DNA test in such type of cases, facilitating
the prosecution to prove its case against the accused. Prior to 2006,
even without the aforesaid specific provision in Cr.PC the prosecution
could have still restored to this procedure of getting the DNA test or
analysis and matching of semen of the appellant with that found on
the undergarments of the prosecutrix to make it a foolproof case, but
they did not do so, thus they must face the consequences."
14. In the case of Sandeep Vs. State of U.P, reported in 2012 6 SCC 107,
which was a case of murder of a pregnant girlfriend and the unborn child of the
accused, the Supreme Court held that the DNA report confirmed the accused as
the father of the unborn child.
15. In the case of Rajkumar Vs. State of M.P, reported in 2014 5 SCC
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353, which was a case involving the rape and murder of a 14 year old girl, the
Supreme Court held that the DNA report established the presence of the semen
of the accused in the vaginal swab of the prosecutrix.
16. On considering that there is no bar or restriction in having a DNA profiling
of an accused in a rape case and as the appellant has been accused of being
the father of the child born to the victim, we are of the view that there should
be a DNA profiling of the appellant under Section 53 Cr.P.C. We have also
noticed that in the case of Bhabani Prasad Jena Vs. Orissa State
Commission for Women, reported in 2010 8 SCC 633 and Dipanwita Roy
Vs. Ronobroto Roy, reported in 2015 1 SCC 365, DNA testing has been
allowed to determining the paternity of the child
17. Keeping in view the above decisions and the order dated 13.10.2023
passed in Criminal Appeal 73/2023 (Sudip Biswas @ Bura vs. The State of
Assam & Another ), we are of the view that a DNA profiling of the appellant,
who is in jail and the child born to the victim should be done, so as to determine
the paternity of the child. Accordingly, we direct the learned Trial Court to take
additional evidence under Section 391 Cr.P.C, which is equivalent to Section 432
BNSS, 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 learned Judge of the learned Trial Court. In this regard,
necessary directions may be issued by the learned Trial Court to the
Superintendent of the concerned Jail to produce the appellant and also to the
victim to produce the child. The learned Trial Court shall ensure all precautions
are taken at the time of taking of samples from the above persons and making
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sure the samples are not compromised in any manner. The learned Trial Court
shall also ensure that the persons/institution which is going to conduct the DNA
test/profiling takes all possible precautions so that the entire testing procedure
is not compromised in any manner. The entire exercise should be conducted at
the earliest and preferably within a period of 2 (two) months from the date of
receipt of a copy of this order.
18. Send back the TCR.
19. As and when the result of the DNA test/profiling is received by the learned
Trial Court, the same shall be transmitted to this Court along with the Trial Court
records.
20. List this case on 15.12.2025.
JUDGE JUDGE
Comparing Assistant
