SC expounds Lapse or omission to carry out DNA profiling, by itself, cannot be permitted to decide the fate of a trial for the offence of rape [Read Judgment]

21 May 2022

By : Mehak

Supreme Court of India was dealing with the petition challenging the judgment passed by the High Court of Madhya Pradesh. SC stated that certainly, non-conduct of DNA profiling in terms of the provisions under Section 53A Cr.P.C., is a flaw in the investigation.

Brief Facts:

The appellant, who was to avuncularise being the cousin brother of victim’s mother, was found to have stripped, stuprated and strangled to cause her death. The incident took place on 19.9.2014. The victim was aged 8 years. The appellant, who is a convict - awarded with capital sentence, calls in question the common judgment dated 14.7.2016 of the High Court of Madhya Pradesh at Gwalior. Crime was registered at Police Station. The appellant was arrested on 20.9.2014. Upon culmination of the trial for offences punishable under Sections 364A, 376A, 376(2)(i), 302 and 201 of the IPC and Section 6 of the POCSO Act in Session Trial before the Court of IInd Additional Sessions Judge, conviction was recorded against him for the offences punishable under Sections 302, 376A, 376(2)(i) IPC and Section 6 of POCSO Act. Consequently, he was awarded death sentence on first two counts, subject to confirmation by the High Court and life sentence under the 3rd and 4th counts besides sentence of fine of Rs.2,000/- each, on all counts. As ordered under the said judgment, in respect of sentence of capital punishment, reference was made to the High Court of Madhya Pradesh. As per the common judgment, the High Court partly allowed the appeal.

Appellant’s Contention:

Learned counsel for the appellant submitted that there is no medical evidence pointing to the presence of the accused in the place of occurrence. It was contended that the clothes of the appellant allegedly recovered from his house were not sealed and therefore, the failure of the appellant to explain the presence of human blood and semen on his clothes recovered from his house, could not have been relied on as a circumstance against him. It was further contended that no DNA test was conducted to connect the appellant to the samples found on the body of the deceased and thereby Section 53A Cr.P.C., was violated. It was submitted that the conviction founded on circumstantial evidence is unsustainable on account of such glaring discrepancies, lacuna and the stated lapses on the part of the prosecution.

Respondent’s Contention:

Learned Counsel for the respondent submitted that the contention based on failure to comply with Section 53A Cr.P.C. is absolutely bereft of any basis or merits as after rightly construing the position of law under Section 53A Cr.P.C., the High Court had properly appreciated the remaining evidence to arrive at the conclusion that the prosecution had succeeded in establishing a complete chain of circumstances pointing to the guilt of the appellant alone. He drew Court’s attention to the other circumstantial evidence, relied on to enter conviction by the trial Court and the High Court to contend that taken together all those circumstances would form a complete chain pointing to the fact that the appellant alone is the culprit and that they are incompatible with any hypothesis of his innocence.

SC’s Observations:

The questions before the SC were whether the concurrent finding that the death of the victim was homicidal in nature calls for interference and whether the homicidal death of the victim amounts to murder or whether it falls either under Section 304(1) or 304(2)?

SC stated that conviction for the offence punishable under Section 302 IPC, consequent to the finding that the victim was murdered, is unsustainable and that if at all he is guilty of causing her death the offence attracted would only be under Section 304 IPC, a little later.

SC stated that certainly, non-conduct of DNA profiling in terms of the provisions under Section 53A Cr.P.C., is a flaw in the investigation. But then, the question emerged from the aforesaid indisputable position of not holding DNA profiling is whether the conviction of the appellant for the said offences, is liable to be set aside on that sole score.

SC opined that the lapse or omission (purposeful or otherwise) to carry out DNA profiling, by itself, cannot be permitted to decide the fate of a trial for the offence of rape especially, when it is combined with the commission of the offence of murder as in case of acquittal only on account of such a flaw or defect in the investigation the cause of criminal justice would become the victim.

SC referred Sunil vs. State of Madhya Pradesh where it was observed that a positive result of DNA test would constitute clinching evidence against the accused. But, a negative result of DNA test or DNA profiling having not been done would not and could not, for that sole reason, result in failure of prosecution case. So much so, even in such circumstances, the Court has a duty to weigh the other materials and evidence on record to come to the conclusion on guilt or otherwise of the appellant herein and that exactly what was done by the trial Court and then by the High Court, in the instant case.

SC opined that a different approach in re-appreciating the evidence would have defeated dispensation of justice, as in cases based on circumstantial evidence also it is not the quantity of the evidence that counts, but it is its quality.

SC stated that the right approach in cases of culpable homicide is to first find out whether the offence falls under any of the four clauses viz., clauses firstly to fourthly under Section 300 IPC. If it is so found, then the Court has to see whether the case is covered by any one of the five exceptions to section 300 IPC, which would make a culpable homicide ‘not amounting to murder’. SC noted, once it is found that the act falls under any one of the 4 clauses under Section 300 IPC, to bring it out of its purview it must be proved that it falls under any one of the five exceptions to Section 300 IPC.

SC Held:

After evaluating submissions made by both the parties the SC held that “thus, on a careful examination of the matter in its entirety, we do not find any perversity or manifest illegality with respect to the concurrent finding of the trial Court and the High Court that the appellant herein had committed offences punishable under Section 302 IPC, 376(2)(i) IPC and Section 6 of the POCSO Act. We are of the considered view that in handing down capital sentence what had weighed with the Courts are the horrendous feature of commission of crime and the hapless state of the victim.”