Open Access Research Article
A JUDICIAL REVIEW OF DNA AS EVIDENCE – A CASE COMMENT ON HARISHCHANDRA SITARAM KHANORKAR V. STATE OF MAHARASHTRA
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Article Details
A JUDICIAL REVIEW OF DNA AS EVIDENCE
– A CASE COMMENT ON Harishchandra
Sitaram Khanorkar v. State of Maharashtra
Authored By - Ravani Ukti Nayudu
BACKGROUND
DNA, or deoxyribonucleic acid[1],
is the hereditary material in humans and almost all other organisms. An
important property of DNA is that it can replicate, or make copies of itself.
This is critical when cells divide because each new cell needs to have an exact
copy of the DNA present in the old cell. Except for identical twins, no two
people have the same DNA.
The relevance of DNA to crime lies in
the identification of victims and criminals. The following details, which are
included in the brochure published by the Directorate of Forensic Services[2],
help to explain its position in the criminal justice system.; DNA evidence
is playing a significant role in sexual assault and child abuse cases
throughout the country, to convict the guilty as well as to exonerate the
innocent…DNA is a blue print of life. It remains same in all body cells of an
individual throughout his/her life. Therefore, DNA evidence collected from a
crime scene can be used to link a suspect to a heinous crime.
Considering the fact that DNA
evidence is fundamentally biological and has the potential to significantly
assist the Indian criminal justice system, it is still regarded to be only
supporting evidence. Under Indian law, the admission of DNA evidence is deemed
to be corroborative rather than conclusive. However, there has been a change in
the global outlook on DNA evidence, where it is now viewed as a major scientific
advancement which aids in exoneration of persons from wrongful conviction. This
perspective has been developed and is progressively implemented by the
Innocence Project, which is a nonprofit legal organisation headquartered at New
York, The United States of America.
This outlook has been recently
acknowledged by the Hon’ble High Court of Bombay, and it has been talked about
in a recent Bar & Bench article[3] headlined
DNA test has ability to exonerate wrongly convicted and to identify guilty:
Bombay High Court. According to the piece, in addition to the victim’s
testimony, the court also accepted scientific evidence in the form of DNA reports
as reliable proof of the guilt of the accused.
The paper will discuss on the facts
leading to the case, the role of DNA evidence in forming the case and an
analysis of the legal position of DNA evidence.
CASE DETAILS
|
CASE TITLE
|
Harishchandra Sitaram
Khanorkar v State of Maharashtra
|
|
CASE NUMBER
|
Cr.A.No. 470 of 2019
|
|
DATE OF THE ORDER
|
December 15 2022
|
|
JURISDICTION
|
Hon’ble High Court of
Judicature at Bombay, Nagpur Bench
|
|
CORAM
|
|
|
AUTHOR OF JUDGEMENT
|
Hon’ble Justice Urmila
Joshi-Phalke
|
|
APPELLANT
|
Harishchandra Sitaram
Khanorkar
|
|
RESPONDENT
|
State of Maharashtra,
through Police Station Officer, Police Station Hudkeshwar, Nagpur
|
|
COUNSEL FOR APPELLANT
|
|
|
COUNSEL FOR RESPONDENT
|
Shri M.J. Khan,
Additional Public Prosecutor
|
|
ACTS AND SECTIONS
INVOLVED
|
Section
376(2)(f)(j)(i)(n) of the Indian Penal Code
|
FACTS OF THE CASE
The facts of the case will be studied
under the following categories;
- Incidents leading to the crime
- Police Procedures and Investigation
- Background of Appeal
I.
Incidents leading to the crime
- The mother of the victim was working as a domestic help
in the house of the accused, who she used to treat as her brother. Her
daughter (the victim) was staying along with the family of the accused.
She further stated that after her second marriage, the daughter continued
to stay with the accused.
- On 28-11-2013, the daughter came to her home complaining
of abdominal pain. She called the accused and the three rushed to the
hospital. It was discovered there that the daughter was 7 months
pregnant.
- She inquired about it with her daughter, and it was revealed
that when she was in ninth grade, the accused forcibly engaged in sexual
intercourse with her; this engagement occurred 3 to 4 times, as a result
of which she conceived and subsequently delivered a child. Bal Kalyan
Samiti was handed custody of the child.
- On 02-12-2013, the mother had lodged a report at
Hudkeshwar police station and subsequently became an informant to the
case.
II.
Police Procedures and Investigation
- The police registered the offence against the accused as
Crime No.370/2013.
- After registration of the crime, the Investigating
Officer visited the alleged spot of the incident and drew the spot
panchnama.
»
He
collected the blood samples of the victim and her child, and the accused in a
DNA kit and forwarded it for medical examination.
»
Along
with this, he collected the medical report of victim.
- After completion of investigation, the officer submitted
the charge sheet against the accused.
III.
Background of Appeal
- The learned trial court framed the charge vide Exhibit
6.
- On the basis of the evidence presented, the court found
that the prosecution's case was solid and found the accused guilty of the
following offence;
·
Section
376(2)(f)(j)(i)(n) of the Indian Penal Code and sentenced to imprisonment for
life and to pay fine of Rs.25,000/- in default to simple imprisonment for a
period of one year.
ISSUE
The paper will explore one specific
issue in depth, namely the admissibility of DNA evidence. Going forward, only this
specific issue will be used to advance the discussion.
ARGUMENT OF APPELLANT
·
The
victim told the Medical Officer that she was in a romantic connection with a boy
named Rajan. The said relationship may have contributed to the pregnancy.
»
In
this regard, the accused cannot be found guilty only on the basis of DNA
evidence.
ARGUMENT OF RESPONDENT
·
The
victim's testimony, which is well-collaborated by the medical evidence and DNA
report, demonstrates that the accused was the one who had engaged in sexual
intercourse with the victim which resulted to her pregnancy.
OBSERVATIONS OF THE COURT
The following analysis will document
the court's observations made during the case hearing.
1. Apart from the testimony of the
victim, the prime evidence on which prosecution relied upon is the scientific
nature in the form of DNA report.
2. The victim further testified that after
registration of the crime, blood samples of hers and of her child were taken.
·
The
Investigating Officer testified that he obtained the DNA kit from the forensic
lab and forwarded the victim as well as the child for obtaining the blood
samples, and of the accused in a sealed condition and forwarded the DNA kits to
Chemical Analyzer along with the requisition letter. He also received the DNA
report which he filed on record along with the charge-sheet.
3. On examination of the Assistant
Chemical Analyzer, the following facts were revealed;
·
On
05-12-2013, he received the requisition letter along with the DNA kits. Prior
to that, requisition was received for obtaining the DNA kit from Hudkeshwar
police station.
·
On
06-12-2013, the DNA kits containing the samples were received at the office and
were duly sealed along with the forwarding letter and dentification forms.
·
The
DNA analysis was performed using the PCR (Polymers Change Reaction) test, and
16 distinct tests were performed, the entire procedure of which was detailed by
the examiner during cross-examination.
»
He
collected DNA from blood samples and used the PCR method to amplify it. He used
electro phoresis on a genetic analyzer to obtain an electro pherogram, and then
compared the profiles and completed the report.
»
As
per the DNA report, the accused and the victim are identified as the biological
parents of the child that the victim gave birth to.
4. The court rejected the appellant's
contention that the victim had a romantic relationship with Rajan by pointing
out that she was living with the accused, who had apparently driven her to the
hospital. Given these facts, it is possible that the accused made up the
incident in order to protect himself.
5. The DNA evidence, which was regarded
as scientific expert evidence and proven by the prosecution, reinforced the
victim's testimony.
·
On
05-12-2013 itself, the victim, new-born baby and accused were referred to the
Medical Officer for obtaining of their blood samples, which is established by
exhibits 82-84, being the identification forms prepared by the officer.
»
On
the very next day (06-12-2013), the samples were forwarded to Forensic Lab for
analysis.
·
The
evidence proves that the analyser performed the said DNA examination using the
PCR test, and based on the results, he concluded that the accused and the
victim are the biological parents of the child who was born to the victim
HOLDING & DECISION
The court in its finality held that,
- We do not find any reason to interfere with the impugned
judgment even on the point of quantum of sentence.
- Considering all these factors no case for acquittal as
well as for lessor punishment is made out. The appeal is devoid of merits.
Decision – The Criminal Appeal was dismissed
by the Hon’ble High Court.
ANALYSIS AND CONCLUSION
As previously noted, DNA evidence is
admissible under Indian law, however it is seen as more corroborated evidence
rather than definitive evidence.
This holding was adopted in the
recent cases of Abbas Asmat Ali[4] and
Swamy B.[5],
in which the accused was charged with raping and impregnating a child, and DNA
tests revealed that the blood samples of the accused and foetus did not match. The
holding was strongly supported by the following argument: the DNA test
cannot discredit the victim's account of how the accused forcedly performed
sexual actions on her.
In this regard, it is important to
take note of the statement made by the Honourable Supreme Court in the case of
Krishna Kumar Malik[6], which
is referenced in the case of Sunil v. State of Madhya Pradesh (2016) as
follows;
A positive result of the DNA test
would constitute clinching evidence against the accused if, however, the result
of the test is in the negative i.e. favouring the accused or if DNA profiling
had not been done in a given case, the weight of the other materials and
evidence on record will still have to be considered.
The legal position[7] of
DNA examination may be summed up as follows;
DNA test may be performed during an
inquiry by the police if they believe it will provide proof that the crime was
committed. This proof may then be presented during a trial as expert testimony.
Based on his expertise and subject knowledge, the expert must persuade the
court of the mode of conduct, authenticity, and accuracy of the findings. The
Court may form an opinion based on the findings, which it may then accept if it
seems likely in light of other evidence.
However, in the case at hand, even
though the DNA report favoured the victim, the court's observations on the
value of DNA evidence should be noted. The information that follows is excerpts
taken from the judgement in discussion;
… the DNA testing has an
unparalleled ability both to exonerate the wrongly convicted and to identify
the guilty. It has the potential to significantly improve both the criminal
justice system and police investigative practices. Modern DNA testing can
provide powerful new evidence unlike anything known before DNA technology as a
part of forensic science and scientific discipline not provide any guidance to
investigation but also supplies the Court accurate information about the
tending features of identification of criminals…
The court also cited the case of Mukesh
and another Vs. State (NCT of Delhi), where the Hon’ble Supreme Court noted
the importance of DNA evidence. The court stated that,
“216. 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 party of the statutory scheme. Section 53A relates to the
examination of a person accused of rape by a medical practitioner.
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
must. (Emphasis supplied by us)”
Despite this positive development,
there needs to be a determined effort made to incorporate DNA evidence into
legal proceedings as it is still underappreciated.
Some of the reasons why the judiciary
cannot securely depend on DNA evidence are discrepancies or illogical
conclusions, inadequate samples, incorrect preservation techniques, excessive
examination delays, instrument malfunctions, etc. which have been identified as
substantial barriers to relying on DNA evidence in court.
But one major factor that can be
cited is the general underappreciation of DNA evidence. It has occasionally
been observed that the Courts quickly disregard DNA results in the presence of
other evidence. Therefore, the court will give greater importance and weight to
the parties' behaviour, motivations, discrepancies in their claims, etc. than
to scientific findings.
Altering this perception is necessary
in order to improve and strengthen the criminal justice system in India. As
stated in the above-mentioned publication of the Directorate of Forensic
Sciences; Properly collected biological samples from crime scene will result
in sufficient amount of DNA that can be compared with reference sample
confirming the presence or absence of a suspect at the scene of the crime.
This necessitates two crucial
actions; the first may be directed at the infrastructure, where steps may be
taken to provide thorough training for handling DNA examination procedures,
while the second may be directed at the legal community, where sufficient
awareness and understanding may be fostered among them in order for them to
understand the specifics of DNA technology.
These actions, together with those
that are related to them, can help appreciate the genuine probative value of
DNA reports.
[1]
[2]
accessed 6 July 2023
[3] Narsi Benwal, ‘[Rape cases] DNA
test has ability to exonerate wrongly convicted and to identify guilty: Bombay
High Court’ Bar and Bench (16 December 2022)
accessed 5 July 2023
[4] Press Trust of India, ‘DNA Test In
Rape Case Corroborative, Not Conclusive Evidence: Bombay High Court’ NDTV (30
July 2022)
accessed 7 July 2023
[5] Sucheta Sarkar, ‘Karnataka HC | In
sexual assault cases, DNA report favouring the accused will not automatically
absolve such accused of the offences so alleged’ SCC Online Blog (11 October
2022)
[6] Krishna Kumar Malik v State of
Haryana (2011) 7 SCC 130
[7] A part of viewpoints are inspired
from the following source; Dipa Dube, ‘Determining the Applicability of DNA
Evidence in Rape Trials in India’ (2014) 2(1) SSRN
accessed 6
July 2023
Article Information
A JUDICIAL REVIEW OF DNA AS EVIDENCE – A CASE COMMENT ON HARISHCHANDRA SITARAM KHANORKAR V. STATE OF MAHARASHTRA
Authors: Ravani Ukti Nayudu
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/07/11
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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