SOME CONFLICTING CASE LAW PROPOSITIONS ON DNA PROFILING

Depending on the individual facts and circumstances in different cases over lengths of time, varied views have emerged from the Apex Court vis-à-vis admissibility and credibility of DNA profiling as cogent evidence before Courts of law. Even though Medical Jurisprudence has immensely benefited the legal arena but the fact remains that DNA fingerprinting has no statutory recognition.

Ø  In Goutam Kundu v. State of West Bengal (1993) 3 SCC 418, the Supreme Court held “That courts in India cannot order blood test as a matter of course; wherever applications are made for such prayers in order to have roving enquiry, the prayer for blood test cannot be entertained. There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act. The Court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. No one can be compelled to give sample of blood for analysis.”

Ø  In Kamti Devi v. Poshi Ram (2001) 5 SCC 311, the Supreme Court held that under Section 112 of the Evidence Act, non-access between the man and the woman is the only way to raise the presumption against legitimacy and the DNA result was not given any weight.

Ø  In Sharda v. Dharmpal (2003) 4 SCC 493, the Apex Court held that

“1. A matrimonial court has the power to order a person to undergo medical test.

2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution.

3. However, the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him.”

Ø  In Banarsi Dass vs. Teeku Dutta, (2005) 4 SCC 449, it was held by the Court that even though the result of a genuine DNA test is said to be scientifically accurate but it is not enough to escape the conclusiveness of Section 112 of the Evidence Act. According to the Court if a husband and wife are living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain unrebuttable.

Ø  In Kamalanantha and others Vs. State of Tamil Nadu  (2005)5 SCC 194, in a case of conviction for rape of 13 Ashram girls and murder of one of its inmates, the reliance on reports of DNA tests on dead foetus to establish paternity to prove rape was sought to be dislodged in appeal on different grounds. Rejecting the challenge, the Apex Court upheld the veracity of the DNA reports which were held to be good testimony for convicting the accused.

A perusal of some of the decisions in the last 20 years quoted above indicates that in the absence of any statutory recognition to DNA as credible evidence, its acceptance may vary at the discretion of the Court trying a civil or criminal case. Hence, views vary on a case by case approach depending on the debated facts and circumstances which necessitate testing of credibility DNA evidence.

EXISTING STATUTES DEALING WITH MEDICAL EVIDENCE

• Several convictions have occurred in India where the scientific evidence (DNA) has been accepted under Section 45 of the Indian Evidence Act dealing with opinions of experts. The Courts have opined that medical evidence is only an evidence of opinion and is hardly decisive not being substantive evidence.

  
  

• Likewise Section 293 of the Code of Criminal Procedure (CrPC) deals with reports of certain Government scientific experts. Section 293(2) says that the Court may, if it thinks fit, summon and examine such expert as to the subject matter of his report. However, DNA finger printing and diagnostics is not specifically included amongst Government scientific experts mentioned in Section 293 (4) of CrPC which applies to specified government scientific experts.

  
  

• Section 53 of the Criminal Procedure Code provides some scope for the investigating officer to have the accused examined by a medical practitioner at the request of the police. This section too does not specifically say whether it would be applicable for DNA testing as well.

  
  

• To determine a child’s parentage there is a statutory presumption under Section 112 of the Evidence Act that any person born during the continuance of a valid marriage between his/her mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate child of that man, unless it can be shown that the parties had no access to each other at any time when that child could have been begotten. Now, DNA testing may be attempted to rebut the said statutory presumption arising under the Act, or to establish evidence in the circumstances where no presumption arises. However, in the absence of any legislation regarding the status of DNA evidence, it is the discretion of the Court whether to accept or decline such evidence, which may be brought on the record of the Court.