Sri Halappa @ Harthal Halappa vs The State Of Karnataka on 27 May, 2010

[Cites 18, Cited by 0]

Karnataka High Court

Sri Halappa @ Harthal Halappa vs The State Of Karnataka on 27 May, 2010

Equivalent citations: 2010 CRI. L. J. 4341, 2010 (3) AIR KANT HCR 934, (2011) 1 KANT LJ 362, (2011) 2 CURCRIR 73, (2010) 3 KCCR 2221

Bench: C.R.Kumaraswamy

 VVI"'*-Bangaioi e.

 

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIs THE 27*" DAY OF MAY 2010

BEFORE

THE I-iON'BLE MR. JUSTICE C.R. KUMARASWAMY'--fj_~V--.'.,:  _

CRIMINAL PETITION NO.2458/2019-»   
BETWEEN: 4' I H

Sri Halappa @ Harthai Haiappa
S/O Hiriya Nayaka,

Aged about 49 years,

R/O Harenahaiii, Sorab taluk,.»- 
District - Shimoga '    

(MLA Shorab taiuk).  --PETITIONER

AND:

The State of Kai-n41ataVka'; _ V'
Deputy Sup_erinterrdeVrIt_ 

Of_PO|ice, ,,   A I
Cyber, Crime Police StatiO'h;"COD,
Bangalore 

Rep.' spy Eu i;ii:¢Taié§ri5?seI¢LI:o r,
High COu'rt_of 'Ka"rr__Iaf;a'ka,
I' '  RESPONDENT

_iiIII'i;(:Vai_.:_'siri P.M."i\_!awaz, Addi. State Public Prosecutor)

"'--IThi»s."Criminal Petition is filed under Section 482 of the

 Of Criminal Procedure praying to set aside the Order dated
  p21..V5.2Oi1O passed by the III Addi. Civil Judge (Jr.Dn.) and JMFC,
 Si:.irn'Oga in Crime NO.106/2010. .

/
2'

ix'



This Criminal Petition coming up Admission this day-,,jthe
Court made the following.  

ORDER

This Criminal Petition is filed under Section--...;iV82'~.:Qf.Vthe"

Code of Criminal Procedure praying to set a'si.d'e th§e'»orde"rV:'d.at*ed 21.5.2010 passed by the III Add|.VCixr_i| Judge' (Jr.Dn.}.i.'an,dVV_i.iV!FC,aid' Shimoga in Crime No.106/2010.

2. Though this matter inias iistiedv fo:r"'afdm'i'ssion, with the consent of the iearnesdjvcouniseifor t'h.e"'i'r)_etiti_ofner as well as the learned Addl. State:_"Pd"b'|'i3c._ :P'ro.'se'c-La_tlo.r,"ftiii-5 matter is heard on merits.

3. The primary' fa'cts"of»~the. case are as under:

3.1"._§\/i'nobanaEga..rV:Police Station, Shimoga have registered avncase i\i:o'.«--1.06/2010 against the Accused Nos.1 to 3 for the oif'fen'ces "pi'i'i3.i.srri.é'ij'i.e under sections 376, 341, 342 and 506 read withfsecvtiionv of the Indian Penal Code. Accused No.1 is ﬂthe'"p.etitiao.nerVVin this criminal petition. 3.2 The complainant has lodged a complaint before the Station House Officer, APMC Yard Police Station, Shimoga,"-._The Contents of the complaint are as under:

3.3 That complainant was a housewife anci"'isi:ma'r»ried to "

Sri Venkatesh Murthy who is a businessmarg"'by;' pro_.fe.ss'ionV.f... husband was active in commue'1i'it'ly._V actiivihie-s. hers' husband belong to Ediga community_,_4_i:V":-Accused.No,1': isvvalso from the same community and he""-S.s3:"a_Apt-oiit::iCia'r'i_'Lb'lr'>"p.rofession. He is attached to BEP political part'y~a.rjd 'member of the Karnataka Food and Civit Supplies. life is for about seven years and has visited than one occasion. During those visitbfhne haVdV'br_e:av'l<fast, lunch etc. with her and the other n1'emhe.:si':Vor rg'm,aI%y.

_3'.§i_ cn.2ei,1z.2oo9 at about 8.00 pm. Accused No.1 1v.VVl""~-vcralied on one of his mobile phone bearing ~Lino:9i4494975gi:4 from his mobiie phone bearing No.9-448496009 4:'--'.V.an.d"ixniorrrted him that he would be coming to their house for Her husband asked her to prepare the dinner for guests ex who would be coming home. Around 10.08 pm. AccuseVd'=i\lo.1 catled her husband once again and confirmed that he§;{io'u:i4.d~'...'beV' visiting his home in the next 10 minutes. Around'i'.__i0.5V:»Sf'o;rn{ Accused No.1 came to their house inja""'c'ar. g_ alighted from the car in front of their hofusekatnd t»hr:3gCa.r=|ei't.'t~bé'~, piace. Thereafter the Accused No.1~»..a§h»d her h-usbianyd "dinner it together and were chatting Vt'i!.l_§bou't" that time, Accused No.1 informed her too late for him to return to the the has kept his belongings and back in their house for the nightHaVndi...tVh'_aE~«_;lfljée §iaiiii<ffbaci< to the Inspection Bungalow onz'-th"e'« early"ilihgioiilrsﬁf.next day. Her husband as a good host,_readiEy'ag'reed same and asked him to stay in thief"n.ight:...':and-A».preparedthe guest room for his stay. Her husba_.n'ti_.g'aveffa;ivi/hite_j..dhoti to Accused No.1 and took him up to :7f"-~tii.e guest_froom..f_":;, 'Herself and her husband retired to their bed ...l.f'_j'rfoo___m~».and sl"e,ot~. At about 3.30 a.m. Accused No.1 has called gVhu"sba'.n'd with his name from the first floor and her husband . .'i,}ii'en:t_»to.ithe first floor to attend on him. Accused No.1 informed V"if.._Thie.r..'husband that he is suffering from diabetes and hypertension EM' and that he has left behind the tablets in the Inspection Bungalow and requested her husband to go and secujregthe same. Accused No.1 has even pretended to be very on the verge of collapse. Her husband fearinghfo"r..:he.ai~th _ A safety of Accused No.1, has come dovvhﬂilalnd' .se.eing«.heru has just pulled up their bed room and wentout loc<'il,ng"the door to fetch tablets from the Inspe'cti'o»n Bungalows she was completely unaware of Tall, these_'de${e\l"o~pments"1as she was fast asleep. Accused No.1, afterf'd:isvpatchl.ng»__'her husband to secure medicine, q,ui'et;ly"sne_aked7in'to:°her_b.éd room and came on to the mosquito net. She was sleeping covered with a petty-coat.

Accused N_0._1g ,_climbe1d".oVn";to the bed initiated sex with her. Asrs'i1eA sleepy, s'u'dden|y sensed that the person who is her husband and immediately tried to V7H'-v'withdraw._,:hersel--f1'froV.m his clutches. Accused No.1 then gagged 'r-l7.j',,*.ver_'mouth and? strongly over--powered her and committed an act She got a shock and was in complete confusion VEs'i"n.c'e_s'ne was unaware of her husband having gone out of the 'house. Accused No.1 after raping her, released her and immediately she started to scream and tried to push Accused No.1 out of the bed. Accused No.1 was still trying toy-"r-eysist the same. She then heard someone waiking in from V. 3.5 Comp|ainant's husband who had Inspection Bungaiow to fetch medicine, ;'has"cai.V|ed .peo'pie? in the Inspection Bungalow for about 5 t4o..6i'minutes; and not heard any response from a'nyb»ody at V'I"nsV;V:V>Ve<:tion Bungalow, he immediately.:to.é.the'VVhiouse being worried about the heaith of theiiegttuééd .-i\.i.ivi<v;)".u1'..I'V\~.bi'_i.'_hinking that he could shift him to;~ia"««g:i\gg£:yi,irsih._g gi-idime» nearby to their house. Whiie .he:r$hsJsb'and has entertained a doubt as to why Accus'e_di\iVo.Vi to go and fetch the medicine instead of.just~ cailirig=V.his_'_'st:=aff over the phone and asking them ' bur' o\.tey -- '-- .

"3._x6.."-.i'i;h'a'i:f:..co=m.piainant's husband who waiked into the Vwhougse and who heard the screams of the complainant, rushed to .1 --..bVed..jr.oor'rt-and switched on the Eight. He too was shocked at the "caf'»Accused No.1 on her bed. She immediately informed Aher: husband of the obnoxious acts committed by the Accused er' 10 recording and also photographs of the Accused No.1. Accused No.1 was not cooperating with the investigatingg"4*agency, Therefore the investigating agency is unable to 1' investigation and collect the materials"'«menti.:onle'd._V.aVb'ove';« Therefore the investigating agency has f'i.l_ed before the learned JMFC.

7. The accused has this requisition before the triai Court and the-'co»ntents_of_ yr'e:-guisition reads as unden 7.1 submitted by the complainant and pubic hair sample etc. is not maintal.nab|ei"' ..ap'b.Iica'tion lacks bonafides and there is VjustAlfi'eatio.i7: in zaAsking"f"orV samples without first making out a strong Accused No.1. The complainant Police on the basilsof some inference, seeking blood and pubic hair .l_lfsam'p-ile of t'he* Accused No.1 is not only untenable but also too. The alleged fact that the Police have found ':so'nie'v_stains on the ciothes and that the Investigating Officer to find out that by whom such stains were caused cannot <>ix 11 be the ground for the complainant to seek samples of bloo--d«._and hair. It is unfair on the part of the complainant biood samples and hairs of the Accused No.1 to"i.arr:i:yeV°at conclusion that to whom aiready coi|ect€::'dMha'i'rsg_ whom the stains were caused by. Such a'.ro:vi_ng en'quAi'i",I 'wi'th'o~uVt'~. there being a strong case against"tsh.é-l,accused 'is_"'un"ne'cessary V apart from it being iliegai. is"'no"thing but an intrusion in to the privacy and violation of the right to personaiiwlggipiiaertigr Article 21 of the Constitution of complainant seeking samples of the legal precedent.

At present, the" out that the story so built up thVe"~vai_i'eged and her husband is a total f:alvs'evhoo:ic.j.§":' Eromggthellcompivaint averments also it could be seen that' there which are sufficient to fix the first

7.Vl""--~ivaccused' for avn.'offaVnce punishabie under section 376 of Indian ~i.l7.j'i?ena.3, Code" _ it is not logicaily and legaiiy correct in asking the to furnish the blood, hair samples etc. to trace out . 7'a~:;f;to who might have caused such aileged stains on the dhoti *et.c.' It is nothing but asking the accused to furnish self 12 incriminating evidence which is impermissible in law. It ,is---_not even revealed by the experts that whether examination could be conducted and the resuit be'"'o:bt.aqirne'd"i not from the samples that are said to havellbeen 'coli;ectéo_ Poiice. In the absence of such re;3ortsV4,'iit:'istotally' the complainant to coliect the samipllies atxthiﬁ"'poinVt"#oVi"'time. This is aiso so because the.co.n1plaint"V'is'jf'iVlVed._Aafteryythévjiapse of 131 days from the date of the'al-iegediiriVcid.§i«,i.'§ijd therefore it is not possibie to say§~vt'h:at:y1' wouid reveal any positive com-plainant. In the absence of t'h'e"'v§ictim immediately after the alleged incident, the accused to furnish samples does at .'7:.'2_, :tot.al«ly premature stage to ask for the samples of the bio.od--,__«pu'bic_v._hai'r'"etc and until the triai of the case is over F_anri unless t'he"cogent material evidence is tendered by the 4: .:A¢Unjp:lair.ant before the Court, the samples cannot be ordered to As this is politically motivated case and as every inch 3"".__Vlof..:th'e"lcase is fabricated and tailored by the persons who are €L/ 14 8.2 The trial Court has observed that admittedly the offence alleged against the accused is rape. The offence is one among the heinous offences as it is the offence...V3gg:ai.nst womenfolk. Section~53A of the Code of Crimina{WPr'«o'celdV'i;rite"i_ casts a duty upon a registered Medical Practitioner v hospital run by the Government to examine:-atpiersonarreslted the charge of committing rape,.»'wh.ereV"there are'}{ea_son§able.:":s. grounds for believing that an exarn"i'«nati.on of person will afford evidence as to the cvo---m:r'n_iss_ioi:iiofwselchl offence. But in the instant case, the mat.eri.aij.availgable v'o.n""'record ciearly discloses N:':c)'~V.»i:.'has'._'no'tlVconsented for taking his blood samples. by a Medical Practitioner.

It is the con_tention V_of.tVh-eli'eaVrn:ed counsel for the Accused NO.1 inftiie Court th'at"t'i'ie'Vaccused has intentionally refused to give' samples of his blood, as the accused 'l"»._.N0.1 wlasiandv.i.s'u_nt£er the apprehension that once he allows to bloocl'1~ samples, there is every possibility of he being *._'_:fa«!.sellyi.ifn't*|icated in this case. Merely under the guise of 'vu'a-ppirehénsion, the accused cannot escape from subjecting 'fisV.:_A"'hinfiself to medical examination when the facts and 5/ 16 arise. The entire burden of coliecting the materials in connection with the alieged crime of accused is upon the investigating agency. The blood samples and other SaVmtp_l:'eisV of the accused are required for the investigating agenc_\_,{_"'i:'o' _ to whether the materials collected during a_re'~. related to the accused or not. It is bgetween the" £nvesti'g,_ati:}g Officer and the registered Medicaf.Pi*a_ctitlone'r workirig': unitiui» to decide whether such examination' is ess'e_nlt'iai coliect evidence in respect of theloffence o;fv.rap_e,.""~il3ut in the instant case, since the accused has...--ref_use'dAto g'ive"*corisent for taking his biood formed an opinion that the facts and' of the case warranted the Investigatmg Oxfficexr application before the Court. ajri'(:.gr tiije.i°s;e:_i%..liéirturrisitlaricesi it cannot be said that the accused for giving his biood samples and hence is vio'fativev.of'li5iV:'tic|e 20(3) of the Constitution of India. The

-4.l.l'_:'f£:'.itl'l'..C0Urt has'1--also heid that it is very appropriate and deserving 4:-i'cas'eV'_to _give such a direction to the Accused No.1. The decisions . the iearned counsel for the Accused No.1 are entireiy rdifferent with that of the facts and circumstances of this case. 17 8.5 The trial Court has also reiied on the decision of this Court in the case of H.M. PRAKASH @ DALI .VS. THE STATE OF KARNATAKA reported in ILR 2004 KAR 2637 wherein this"Cgourt has clearly heid that Criminai Court can make a blood test of the accused under Section 53 of Procedure depending on the facts and to find out the guilt or innocence of direction is not vioiative of fundamental right .gu'atant"eeVdVVunder if the Constitution. The tria.l"'Court."has' Vfurtjh*e_r obsé'rved that the investigation of this case is stiil-i.undVe'r' process,,fti_:e Investigating Officer has:v'lcolVl'ecte'd:v to the material aspects invoVl've:d«'.in regard to the facts and circumstances feepéng in view the concepts of favilrtrial»-andairivestigfaltifonof this case, the trial Court felt that it is for the Court to make an order directing ' V-«the accused to.'suﬁaj:;ect himseif to the examination as sought for the Investigating officer. Such scientific tests are just and ifﬁnecess~a_rv"'g.«for proving the guiit as weil as innocence of the Va-ccguserii. Mere apprehension on the basis of surméses in the ﬁr//.

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11. Learned counsel for the petitioner invited the attention of this Court to Section~53 of the Code of Criminal Procedure. He has also invited the attention of this Court to Section.<.3 eofthe Identification of Prisoners Act, 1920. Learned counseif..'1'o.r__V5t:h:e«_ petitioner relies on Article-20(3) of the CMonstituti~o-n. V. submits that the Accused No.1 cannotabe coirripeili.ed.' blood sampie. I-ie aiso relies on*th__e Su'pr_eme C.o'i:i'rt:rVuiin_jigs.Cline'2 support of his contentions and submitslthpat the accuséad cannot be compeiled to give the «bzljoo'd"._sam'pl--e*,a'nd consent of the accused is necessary._ Learneid.c-ounpsel "fo.rV"t--he'"' petitioner aiso reiies on Manual written by Dr. K.S. Narayan of Forensic Medicine, !Vi.R. Medicai C:o|_iegel,"~GVuibar.ga;._s"~~«"';rhe attention of this Court was invited oVi"V't'i'Te"above Medico~|egai manual wherein while'dealinvg._awitl1o_'examination of the accused, it is observed C 5._..t.hat theconsventiilofiizthe accused should be taken and it shouid be _._l.l'_jje>.<_piained to__°i-iim that the resuit of the examination may go Kxaig a'i--nst_»hi'i_n. 5;/' 20

12. Learned Addl. State Public Prosecutor for the respondent -- State has invited the attention of this Cpoiuéirtto Order--143O of the Police Manual (1965) wherein it _ during the investigation of offence of rape, bloods--sarnpieiioif the accused can be taken. He further suiprnitsuitfhatpthey. sampie of the blood for grouping='th__e sarrieig' to coiirripavre tally with the stains found on the sevivied' articieg. the person of the victim.

13. The points that a'ri.se_:for'V-.rriy 'c'0.ns'i'.de'ration in these proceedings are: H

(i) Whe_ther~ -'petitioner - Accused No.1 is requiiredi' to sampie from him and for su_b_jectiin'g t'he_s,anA1"e to"vDNA test ?

(ii:-)e. the'con_se.rit of the petitioner ~ Accused No.1 is if taking samples of his pubic hairs and also if -(for otjtav'iiii,r.-g--:'his voice samples and photographs ? the order passed by the trial Court is sustainabie in law or not?

'fr.i4i;'~...eMy"answers to the above points are as under for the "_i-.VfQi--i.¢wii'ig reasons. {ﬂy 21

15. The three ingredients that must co--e><ist before the protection of Artic|e--20(3) can be claimed are as und_erf-

(i) It is a right availabie to a person':'a'c'cused'=:o'f an if offence'.

(ii) It is a protection against 'compui.sio'n_'. 'to b'e_i'awi'tne'ss'.f"~

(iii) It is a protection against 'cornpuisigon' "r"esuriti'ng in'V his giving evidence fagainsgt___h'im_seif'.

16. In the case of ,PA:i<HA.vf{ fSIi\£'G.i4£"~:'..';V,\Z4S. THE STATE reported in AIR 19_5$ffj;1P»r\LJi~i.jiE;B 29¥x4,.:_th,e':'Vi3unj~ab & Haryana High Court has held ais.,V.un_d'ejr: ' I if

21. The"coi'1sti'tuVtAie:onai"e~i.rnrnu'nity is not violated by compeliinga yvi't'n_e"ss up and Show his face for tire egpurposefof' identification. He can be ordered to'-',e.,$disceiV.os'e,. a "t'e"i'i"--"taie scar, for purpose of his ' Similarly, the finger prints, foot prints, .p,?§:.m 'V"p'ri"nts,;,'"photographs of the accused, for pu'rpos___es -enfcornparéson with those found at the V scene the crime, do not iose their probative A character, whether they have been obtained fhénvoiuntariiy or voluntarily.

I In principie, resort to compuision requiring the accused to exhibit his body for purposes of g//. .

22 establishing identity is not objectionabie, because by doing so he is not being forced to give faise testimony. in fact he does not testify at ail and the-'''--.., physicai facts which are noticed speak themseives. Neither fear nor hope, neither *' nor cajoling can make any difference to .the_j"f.iVng--e'r._ i prints or other physicai peculiarities. ._

27. In Novak V. Districtcoflf'-Co|urnJ:!i,ia:," ' Atiantic Reporter (2a) 88 ('P._):,"*~..the V'defen.dyavnt"*--,vva'sif prosecuted for driving an A,a.uftom'o.pi|e funderfghe inﬂuence of intoxicati'r'i--g."j,iiquor.,V--_VI't"~was'~he|d that his constitutional right was not offering in evidence the _record of ana_i'ysi.s"o.f'_«specimen of urine tai<en:¥__fro_n--". after his arrest. In similar cE.r_cumSta_nees,. of blood specimen from a driver ofV'an_';.aLj't_ornobi|e for finding aicohoiic co_nfen:t_s uwas'=-.no,t Considered violative of co.n:stitSiJtEo.nVa«i..V rights not to be compelied to give te.stiniverjry'against himself, vide People v. Tucker, 193' Pavcififcfiféeporter (2d) 940 (946-947) (Q); and State-.v}a:Cram, 164 Am LR 952 (R).

if 30. In India, Section--5 of the identification of '"P!ri's'oners Act 33 of 1920, provides ~» ﬁx 23 "If a Magistrate is satisfied that, for the purpose of any investigation or proceeding under the.____ Code of Criminal Procedure, 1898, it is expedient direct any person to ailow his measureme_n't's*«.fo~r.._:

photograph to be taken he may make anV__o'i=derf;tVoi' % that effect and in that case the pe'rso-n,to~'_,wh,o:rn order reiates shail be produced or~.sha'_'Ii ~attend'~a:t time and place specified in .the__ order__a'nd shaVi'!'VVaa:|'|_ow . his measurements or photograipVhi»to be"taV.ken,= asvythe case may be, by a police officier:--..",_:'-- _ '2 Provided that no"'oirder.y_sh,ai| directing any person to be A,ph.ot--og'raAp.,he'd'~.'Ve§€ig;e'pt by a Magistrate oﬁ~'tr':'e.,,,f!'rst:z:iass~:}':

Prov;id'e';fji,.,tu"r't_3jer',_;t_hatgno'jo:rd,e'r shail be made under7,_thi_s* the person has at some time Abeen connection with such investigation or pf:oceed'i"nVgs."

S.6 of this Act, it is permissible to use gait'j~rn'ea:ns--7' necessary to secure the taking of rr.easure.mien'ts or photograph in case of resistance or refusaifl Such resistance or refusal to ailow the tai<i_ng'"'of measurements or photograph is also an it 'offence under 3186 of the Indian Pena! Code. 6/-

24

32. Medical examination without consent for ascertaining insanity, existence of contagious disease.___ for purposes of segregation of the person, or disea~s_je-«._,b_l'~..

in general, the making of a blood test to as_cér'ta.in..._i_V'7 paternity or blood test or urine anal_yisi.§ ascertaining alcoholic content, or-i'f'in-diipngfyof_,v,scar_ other physical peculiarity for purp'oses_"o~fV other scientific aids requiring coopeiationiiowf.':4t_he':; accused for ascertaining his inndcenc-e,lsphlallli have to be placed under C'.Ol'i'St.i'Vl;1Jl."iVV'0!1_¢':lI b'ari',--.ii»v'hich could never have been theliintierztiéonfiobflthe framers of the Constitution. '

17. In'i'th'e"ca:'se cﬁifiiggii.i§i'.~.,,i?rRAi{A'sHi'@ DALI .vs. THE STATE or KARNATAKA ..re'portié'ciii.;,iii:_i;R.:i2~oo4 KAR 2637, this Court has held as under: L if (8-if' c:--oN~sji"ITu*r1'o'N" OF INDIA - ARTICLE 21 -- Qprdievirvudirecting the accused to subject himself test is, whether violative of the fvuncialmental right guaranteed under -- HELD --

"TVifi'ere is nothing brutal or offensive or shocking if in taking the blood sample under the protective if eye of law -- The constitutional mandate does not say that no person shall be deprived of his right or personal liberty under any iv/..

25 circumstances. On the contrary, if such deprivation of right or personal liberty is in accordance with the procedure established law,' the same does not violate Articie 21 Constitution of India. A A V (C) CONSTITUTEON or INDIA bARTI.C'LE--::};3""a:§ VIOLATION OF -- Whethezﬂan»:(§yI'd.er._di4yrectI'ng.V_Lr:,__ii' taking of blood sample fron'i.__ti':_e. accusedrv f'or»jV DNA analysis in violatillci-«r.-i""o.f_yArticle 20(3): of'ti'1e constitution of India___4_l:""----.,:_ --!-_iEL[.)" Mere examination of'a""~pers.;von§.'a"ird_stvaidng of" blood sample in itself'-lis _a:rj'-.AA_'.:i.n'c_riminating circumsta_nce_ and V-cannot be said that.by:.,'m:§:r_g .tak_iri.g of. bloloicfslample of an :'a_ccused,i"'.cheiV"isl"-compeiied to be a witness against i'ii.|fha'--e'i--f an order wiil not _ _offen'd» avgaianst AIl.s_rtic"|e 20(3) of the Constitution.

18..«§.]in the casaof SLJBBAYYA GOUNDER .\/S. BHOOPALA re'porte'd-. in A%:ey1s'59_% Madras 396, the Horfble Madras High Court has 'compulsory taking of urine and blood samples from an a"ccu'sed' not hit by Article 20(3) as it is not testimonial 3/ 26

19. In Digest (Cases and Materiais) on Evidence Act, 1872 (First Edition --- 1993) by Arshad Subzwari at page~68 it is stated as under:

"Denial of tape~recorded voice:~ Gne who deni_e.:s'the'V:--.,:if r.- f tape--recorded voice and ordered by Court his tape-recorded voice for identif'i'cat'i'onabut to do so, adverse inference couid»,be'_'_'ta'i<en~.against:""i:--..,f'A him (1970 iViad.LW crI.271),"i'_ V i'

20. Section 53(1) of the Cod,e.«o,fv«Cr'itninai 'Pro_ce,dfure reads as under: A ' S3.(1) When a: p_erscgn is" :1g;rres.t;e.d charge of comnjdivttiingri suchiiaviynature and aileged to have been such circumstances that thereafrey r'eas'o,nab'i'*e'grounds for believing that an 4ej:X'aijijin&<1.VtiOifiVV of his person wiii afford evidence as t0..f_,_'F,~emmm;55i5n""o'f"an offence, it shail be Iawfui for ' regvi.ster'e.d"' medicai practitioner, acting at the ~re'g.ti«es't~'éVoif.__oo'Iice officer not beiow the rank of sub- insipect'oi',.a'nd for any person acting in good faith in his airjfand under his direction, to make such an AeS<a--mination of the person arrested as is reasonably 'Anecessary in order to ascertain the facts which may 'V ~.----afford such evidence, and to use such force as is reasonably necessary for that purpose.

ﬁr' 28

(i) the name and address of the accused and the Derson DY whom he was brought}

(ii) the age of the accused; _ _

(iii) marks of injury, if any, on the perso.n'_:'o.f accused; dmhdi v'_ iJ»VV, V"

(iv) the descriﬁtion of materiiiﬁl iif'r'0,,m-

person of the accusedfor Di\I'A iprofii'i'n'gA~;i._'a--vnd.

(v) other materiai parti"cu_iV'aa'sVV in: '---reas:ona,bie detaii. , _ ,

(vi) The report shali state,.§pVrec:i:sie.!y.:the reasons for each. ¢oncl,u'si'on:'arr'i\(ed u it

(vii) The time of .:_'co,mxm'e-n'cement and shali also be

(viii) The iVr'éeg'isteired~_::rn..edicaI practitioner shail, 'w_ithou't'V._dei,a'y:_,"'*«--ior'i}iiard the report of the A inifestigathi'-ng°.oii'icer, who shali forward it to ikthxe MaAg'ist..r_ate referred to in Section 173 as the documents referred to in ciause o'f~.s:ub--section (5) of that section.

seqion 53-/-\ is new, added by the Code of Criminai V' -._,_::;_v4it~.'.V§5rocedu.re.:','CAmendment Act), 2005 (25 of 2005). It provides for '7a~d,etaii?ed medica! examination of a person accused of an offence 'i*,:'oif_,4rape or an attempt to commit rape by the registered medica! %i.»/"

23.2 DNA (Dexyribo Nucleic Acid) is an organic substance i.e., the chemical basic of life, which is found in in the human body except red blood cells, which lose-it maturity. This organic substance comb'iJning'w_ith prolte'ir_is_l'oVrms. the chromosomes, a thread like strur;tirre, re'spoi'isible»,cfolr'-..g carrying the genetic character rrom--,§ne person: 'to:.'itsV"i-Qflllfsprings it DNA is a double helical spiral~struc~tii're!fj;rj'g"aa,,ADNA'rnolecule four nitrogen bases are present Thymine (T), Cystocine (C) and §Gua:n'_ine together as A=T and c=o,: by a bond called hydrogen bo'lnd.l' bases on the helical structure is variation in these sequences is different.fromb°anV_oth.e.i- which helps the scientists to s,e.:qu"e,hceAsHlahdlyidentify the gene and the person. DNA' _t.e'st,i_n'g re..pre4sen"ts an extraordinary enhancement in solving 'Vl"'r--.rn,any crime. related mysteries with greater

-4_l.l'_;a.ccur.acies. test can help to determine whether a particular 4:~-'.Vpa.tch"_of_gblood, hair, and semen wrapped cloths found from the 'sic-e,n'e of occurrence of crime or from the body of the criminal or belongs to the accused person or victim or not. Besides, g,?/ ¥.»~"' 34 1430. The determination of blood groups may prov.e"'---._ to be of invaluable help in the detection of CBSGS.

26. I have carefully perused the fotlilowAing'a_4' felled upon by the learned counsel for the pet'i«tioners.

1. In the case of GURMEET KAun1.vs,'LAl<rl+vil'm0pE:irg smsn AND ANOTHER in cRL.M1sc.No.;2io.ji{:.o{"o._E 2009"'di'sposed of on 3.8.2009, Punjab & Ha'ryana's.lfif'i»gi;'1 has observed as under:

Gurmeet §' :nj.a;'r-tied" wvonjlan who already had a she should have got herself .AnﬁedVlVc.a'l:'l«y e><a'm_l_i1.ed for the injuries which were eruc':i'alVto.Vv'det.elrrnine«whether she has been subjectedlllt-o%sexua_l Indeed Gurmeet Kaur's case: was thuat~--..sheé,had suffered these injuries. Al"Medica2i""l:'e>{'anjination would also have helped the __'Mesd'i'ca:l:fQff§VCe_r"_j.to take vaginal swabs for DNA test Mala would have helped to determine and establish the.4"id.ei9itity".Vof the rapist(s). In the absence of such J'deufiniteieorroborative evidence, it would have been Vhpdiéffioult to convict the respondents. 43 ~-*?;/ 35 This ruling will not come to the aid of the petitionei"'~--since the question whether the consent is required for blood sample of the accused has not been above decision.

2. In the case of AMRIT SINGH .vs. STATE'-or PUl\E;§A'B ivei:':§rted~--., in (2006) 12 scc 79, the Hoiyplelsrtgaprenie.gjourt. i{'a§'i'iielld as it unden

19. Mr. Aggarwal has alsoldrvawn .a;tthe_ntion to a suggestion made to boys aged about 10 years field from outside areas;:_u_"';.'_]ii an had' committed the crime,3'd'she"wotildIflihaizle'idefinitellv cried out but the appellant," lmowri to her was a person of<t4rlust.V° seen to be hoiding the aPP§"i'ian.t's fin'Ge._t.' "It clear that she was ailured by "V"«.,the\:t...'apipiellant tolaccompany him to his own field 'ivh'ichA "wa's_"n:ea~r his house. We, however, do not wi'th;»g--.th'e"contention of the leaned counsel for the"'4--.Sta__'te-.t«hat in this case, the provisions of the V __"-».Identifi.c_a1~tion of prisoners Act will have any A_ {faAApVp'iication. The provisions of the said Act may not lb-eltiltra vires the constitution but it cannot be said to applicable in a case of this nature. It cannot be said to be an area which is contemplated under the u '

3. In the case of SABUR HOS AIN BIWAS BENGAL AND OTHERS reported in..~2{}DE3 cjrl_i,"j'=i18'3.,_j;thei V' 36 Act. The appellant had a right to give or not to give"-.g sample of his hair. He could not have been witness against himself a ainst his wiil.

Calcutta High Court has observed asvLi4ndse'r:..:' Even it is assumed for the sal<,e"-of argumentl't,ha't;'t'i'le DNA test becomes favourable__'_to.:ti:--e_ pet'iti«-oner that would not amount to '.4_a'hsol'.vding'oAvtiiinitofy the charge under Section 376 of the ICPCCt'be'cau_.s:e'*thei'_trial Court will have to con:s'id_er thezbasis of the evidencel"of. b;r'o;sec'utr'i>§ an"ci"o:"§other witnesses, if any if the"evil-d:en,celi,gf*..the prosecutrix and/or of any otheizwitnesSeS:.Su:b'b.o'rtE'ng in the prosecutrix are founci, ,by th'eV_:Vtrial'- Court. sufficient to indicate that

-'W.._offe_n<:e_._f:un_deruSect.éon 376 of the 113C has been »com_Vmitted~.b'y~.the petitioner then the result of the .tes4t"--«.b:V_yiitvslelf would be of no avail. Contra, if the._4'_oral.-evitielnce of the witnesses including that of prosecultsfix are found to be not sufficient to hold the 's».,p'eltii-tionler guilty of the charge of rape, then the 'zesult of the DNA test even if it wouid go to establish paternity will equally be of no avail. Therefore it at 5;, vs sTAt_e oewlestlfc 37 is not a deserving case where DNA test should be"--._ held.

4. In the case of GOUTAM KUNDU VS. STATE OF WEST.BV'E__N'C:i.§L~.' reported in (1993)3 scc 418, the Hon'ble Suprerne cigars:

held as under: _ M ' Legitimacy of child born dur,ingj".ll'1ai*ri'.a'g:ié' C V' Presumption regarding - Bloéod grgotiaping to determine parentage if OFdi'Elé'i'i,|y permasslpiléita it rebut. Court will also consideir---th'e-.e'ff.ect of'orderi§ng the blood test on the"4-.statué--s tj;i'3ut'rci-ejvichild and the character of thegmother c:an"l§jev._c'ompe|Eed to give sampl§e*o.fV'gi3loo§d for.:'.anatlAvséjs.xfgojn'facts held, pI'aYer«i"O'l" r'r€.a'de aoy"'aVppelIant--husband to avoid VV1payrTie.nt'V'.of..A:'rnga'a"ntena'nce under Section--125 Code ofCriminalvv.PVro'c*ed'i;~renot allowed. the presigiit case, the accused is involved in the off-ence~.o'l' of Indian Penal Code and we are not exan*l§n_ifigvp«the7p_a_re~Cn'tage. Further in the case of SHARDA .VS. V".:--gg..VDVHARMA'l5ALfépollrted in 2oo3 AIR scw 1950, the Hon'ble Court has held that Gautam Kundu's decision 'SCC 418} is not an authority for the proposition that Cun.dV'e'r"no circumstances the Court can direct that blood tests be 3/, 38 conducted. It having regard to the future of the child, of course, sounded a note of caution as regard mechan~icai_"piaissijng, of such order. In some other jurisdictions, it that, such directions should ordinariiy be made ;ts,"i,_,:, .. V' the chiid. Therefore Gautam E,<u_ndu's'---Ahfruling «not. appiicabie to the facts and circumst'a'in..ces of th'e..o'resen't';Ecase.

28. Learned counsei forthe gﬁetiltioiievr'-h_as.7~a|so drawn the attention of this tog Sectiionisk and 6 of the Identification of reads as under:

3. faking etc. of convicted persons.' has been, -

(a) A,.Convi'c'ite:ci vof offence punishable with .---__rigoirfouisiiinfiprisonment for a term of one year or .u;pwai'd:_s=orriof. any offence which wouid render him Ai"'5iVa'b_i_e,1 punishment on a subsequent con..victi'o L' 44 (b) ' Qvrdered to give security for his good behaviour _ ':"»,:UAt'i'd~Qul' Section 118 of the Code of Criminai Procedure, t:{8'9s"'(5 of 1898) oef 39 shaii, if so required, allow his measurement anti"-., photograph to be taken by a Police Officer in"

prescribed manner.

4. Taking of measurements, etc;"of«nor-Q-_,~con§}ic't_ed-ft persons. - Any person who has':.,be':eri~'iyarresteoi connection with an offence .DunishaVb!.e'"withxrigoroyus imprisonment for a term of year"~or"tupwards shali, if so required a poi'icefo'fficer, a'|'i'ow-'his measurements to be ta'ke'n--.in-the}prescribed manner. Karnataka Amen_dment....«~.:._:1~n'i.ts, a"p'p|i'ca'ti~o'n to the State of Kafr_nataka,_for€,S.ect_i'onv"'-4'"substitute the foilowing: 'I V "4. Taking.ifnofsgpmeasurements or photographs of unconvicted pe'rsVon_s.. -rim, person, »~

(a) Whoihasi been¥.a'r're'sted in connection with an offe«ii1cei'~ puniishi-abiepp.under Section 96 of the ﬁPo_i_ice Act, 1963, or in connection with an o'f_f_e'nce_"fp_uni's'haihie with rigorous imprisonment for a tern': of onei._\,='iear or upward or in connection with an offence"'*fVor'"the commission of which on a second or V. ,,""su,,i:sec;uent occasion enhanced penalties have been x"'.,,pro\r'i-ded for under any law for the time being in i force; or 5/ 40

(b) In respect of whom direction or order under"-._» Section 54 or 55 of the Karnataka Police Act has been made, Shali if so required by a police officer,_..al'l_owVvhis measurements or photographs toWb'e«.ral:_en.yi.n:"tl_1e"~7 prescribed manner."

6. Resistance to the taking o'f-v.measure'm_eiits;= S (1) If any person who,.underl--this-_Act_ is re'qu.i.re.d§ to allow his measurement-sTo_r 'épLhoptog'i=a[ph"ito be taken resists or refuses to ailoiyi same, it shail be lawftil use igill to secure the taking " _V ' VRies':i:~s£ancVe to allow taking of measiiiremenAts~_~Qr___phototj'i'aph under this Act shall be deemed=to* Section 186 of the Indian Perm %C'ode 1le;5lo,.

Sections 3, 4 and 6 of the Identification of also relying on the ruling of the the case of AMRIT SINGH .VS. STATE OF 'reported in (2006)12 SCC 79, it is the contention of the counsei for the petitioner that without the consent of the ' Aceuseld No.1, the sample of blood cannot be drawn from him. 41

30. In this connection, a reference may be made~"'to a decision of the Hon'bie Supreme Court in the case SATPATHY .vs. P.L. DANI reported in AIR 1978 sc jw.iie§eei&i_y'c at paragraph-53 the Hon'bie Supreme C;5urt"has 'held eu_n:der':

53. We hoid that Section 1=r3i1"---epnabiiieisiithe p'oi'iAc§.e...ctQ"

examine the accused duringfvinvestioatioin.'V': iT§he prohibitive sweep of A'"rt.ii_cIe _2iO'(3)--:';goes' baci<"to"the stage of poiice interro'4_cjat.i'on'e._:§'i'»Vr1of'*fj:;;ies:L'contended, commencing in_=Court,'or'.'Iy:;"A the provisions of: 'aS"e--etiion 161 (1) substantiaiiy co'»{_e'rit-hej"s'ame..area,~so far as police investig'att'io.n.s'j;'.arel;~eoh--cerned';'*~~~i«'"ihe ban on seif- accusation ' 'to siience, while one investigatioiiiirior way, goes beyond that case_.and p"rotects'-theiiaccused in regard to other "V.__Aoff.e_:r§i:C3,.sA.~Banding"o.r...irn'1minent, which may deter him v_oiu.h-tary__disciosure of criminatory matter. We read 'compeiied testimony' as evi»ci:_ence.'p"r:ocVured not mereiy by physicai threats or vio!erice'g_ but by psychic torture, atmospheric pres_sure, environmental coercion, tiring V_ _ Wnterrogatory polixity, overbearing and intimidatory .Vi"'--_yV_methods and the iii<e -- not iegai penaity for vioiation. So, the iegai periis foliowing upon refusai éx' 42 to answer, or answer truthfully, cannot be regarded.---._ as compulsion within the meaning of Article The prospect of prosecution may lead to__;'_:l'e'ga'i~V--..i_i_5 tension in the exercise of a constitutional _ri_g'h't.,. but then, a stance of silence is runninglla 'ca.lcu.l'ated:'risl<.: On the other hand, if there is any;"mo;5f_'ec~of subtle or crude, mental or physical, d"ir_ect or i.intfirect, but sufficiently substantial, by tVhe_po.licenianV for obtaining information from"ancacausedlstronely suggestive of guilt)' /it -Jcompelled testimony', violative of/irtici'e 2.oi53 petitioner that blood of Accused No.1 without his consent is 20(3) of the Constitution of India. a'cce:pt the contention of the learned pvetitionerllllolecause testimonial compulsion means subjle'cti'n'g itl1~e:"'a.ccti:se:d to produce any documentary evidence or VViylwrlecordiragahis__"sta«t'ement relevant to the points involved in the .. , theﬁinstant case, this is not being done, but sample of V"g:'th_'e._lb-l,oo*d-'twill be taken from the Accused No.1/petitioner for it sub'jec*ting it to DNA test to tally with the blood or semen found if"

43

on the clothes of the accused as well as the victim. S.ec.tion 53(A) of the Code of Criminal Procedure deals with e_>ga_iniVna't~i.oiix of person accused of an offence of rape by Practitioner. It indicates that at the re;-juAest"Qf'--«a not beiow the rank of a Sub--Inspe.ctor, V4ttie".IYiedicayi'v_¢Prar:tition~eVr'~. with good faith makes such an e'xa'r'nination._Vo'fr:.thejarVrested V person and use such force.as...«_is for that purpose. Cr.PC 2005) was introduced by the inlorderﬁtoi_"o.y.erfcome the difficulty in conducting ,exa'l-:fni'i'iation of blood, blood stains, seme'fn',"swa.bs oflhsvekuzal offences, sputum and sweat; clipDin9s by the use of modern and scilentific..tecAhniciues including DNA profiling and 'wghictiwtheregistered medical practitioner thinks necesslary'=iri'«._a-éveariticular case. As stated earlier, this '""~"avmendm_e1nt 'brought to overcome the difficulty of the "-«3fjprQ_SeCuting" agency to detect the serious offence of rape. This 1"--.xS€Z'Cgxt'if)Ar'.~ _gi_sfnot ultra vires of the Constitution. Drawing of the "r.V%b"%o;o_d___5sample for the purpose of civil proceedings without the V";'consent of the party is not desirable. But drawing of the blood 44 sample for detection of the offence of rape whereig'n"*.uthe investigating agency has to establish its case beyond..~«reaso'iia'b:le.g doubt, cannot be termed as violative of Articleg'f2'D(3)A_1foff the Constitution. The offence of rape is ser'E«ou'1sA it is an offence against the societyVat_"|arge---,Fu.

32. It is the contention of Bf learned counsel for the petitioner consent of the accused, the blood sarnple accused for the purpose of c:o"unsel»Vii'for the petitioner relies on Identificati-o'n;»"_of.'VPris:on.'e2fs" Acts"; 1920 in support of his contention. "on the ruling of the i~lon'b|e Supreme Court'ti_r.1 the ':o:_'fow'4il\JMRUT SINGH .vs. STATE or P7tiNqAB_..tig-ooiieteo fifnviV.tV{fa1ogo}3)12 scc 79 in support of his "'3_3"..._In"'thi_s.__c'o;'rinection, a reference may be made to the following'.t'Noi'-.VdeCi'slons:

tne case of Scmerber .vs. California, 15:... Ed 2o 908 " asitism (1966) it is held as under:

31/ 45 "Does compulsory blood test amount to violation of this right ?

In the United States of America,_..._ compulsorybiood test was chailenged on following grounds:

1. It amounted to deprivation of.p.ro_perty'"withotiti due process of law.

2.

himself. _ g V

3. It amounted to violationy_..of'r~.t_h'e._g rig.ht«.agaVi_rist unreasonable search_es and The Court decided by majo_rit'y'lthal-_~«..no-ff!ifidamentaI right was violated.'--_ It compelled the accusedto be w'é--tnessga'gai'nst " '

35. inthegases-lpriismeoi: BOMBAY .vs. KATHI KALU reported in AI'F<.._i'9i61lS.C"1..8Qi3";'-~:l§'$e'nch of 11 I-ion'b|e Judges Apex Court' has held" asulnder:

(15) _4'In_view of these considerations, we have come'to*the%Vfoll'_owing conc|usions:--

(1V).'Ai.i_i»i:accused person cannot be said to have bee4n..c"om.p4elled to be a witness agaénst himself V .c,Vlsim_p|yV'because he made a statement while in police

-,ic'u--st.o'dy, without anything more. In other words, the mere fact of being in police custody at the time when "the statement in question was made would not, by E 5/4 of the 46 itself, as a proposition of law, lend itself to the"-

inference that the accused was compelled to the statement, though that fact, in conjunctio.ré'_:wwith'jv. -1- other circumstances disclosed in eviden.c.ev_4_ﬂi.n'Ia. particular case, would be a relevantic'o'nsiderat§o'n«.in"V' an enquiry whether or not the ac64"S7éd"iivbeiiréclih....h§d"i'i.i:"'«.x:iA been compelled to make thev'iVm--,n_ugned staVtemen;t....i_

2. The mere questioninigh"o'fVs.:;jnVV'vaccused"person by a police officer!' 'hr_esu'3a.tVifr1ig7 _voiuntarY statement, which ma:y""ult:imVate'!y' to be incriminator}/;_'V c.o:mpiulsion'. V.

3. w'itlj.i5§'s.?:f_is"'-snot equivalent to 'furnishi'n"g ex;/'i1:d1e'n:¢:e". iri'-'iVt's. 'wAid'e'st- significance; that is to sash as ,e>n'o.t:'c'merely making of oral or written statements":b'ut_4'a«--l_s'o"broduction of documents or giving mat_eri~a.ls w'hich" may be relevant at a trial to the g.u.i.!.t«or innocence of the accused. thumb impressions or foot or paim or fingers or sp»ecimen"§,wsritings or showings parts of the bociy. byf way of identification are not included 2 inisthe expression 'to be a witness'.

" 5. 'To be a witness' means imparting at"'»; __isinowiedge in respect of relevant facts by an oral i/.

47 statement or a statement in writing, made or given~'"--._ in Court or otherwise.

6. 'To be a witness' in its or.dV_inar-gi.j"'--~..:'*' grammaticai sense means giving oral tes.t!m_o"nyV . Court. Case iaw has gone beyondAAith'i's ._stric-t' iiVt'eraI'V* interpretation of the expression wh'irch7.'rr1'ay a wider meaning nameiy, bea_r'rng testirnony*inC._oti_rt:V or out of Court by a person of'an_iioVi'fen:ce, orally Orin writing. . it .

7. To bring the'4'stat'en1.ent' within the prohibitEon_*of Art';'2'G(3A)p,V"theC accused must havein an accused person at the_:ti'mﬁe':he. rtheVsta'tement. It is not enough"t't'i»a.t:h;e' shfouid"--be-c'on1e"ra»n"§accused, any time after the staten§e:n.it'hasvbteen' rnade.

36. the 4a'bove.o'--eci'sioh, the i-ion'b|e Supreme Court has f-u'rti'ier as under: H """

_ xxxx xxxx It has to be noticed however tbja_t..r1Art.20(3) does not say that an accused persognshaiii not be compeiled to be a witness. It says that such a person shati not be compelfed to be .wf£tness against himself. The question that arises therefore is : Is an accused person furnishing Vwevidence against hémseif, when he gives his 9 23¢"

specimen hand writing, or impressions of his fingers',§g:""», palm or foot? The answer to this must in our be in the negative.

33. xxx xxx xxx The evidence of_~'s'p~ecimen '- handwriting or the impressions; Of_4'Li,'Ié;_ person's fingers, paim or foot, wii'ii.__in'criminat_e 'him,' K only if on comparison of t'i3..ese._ with certaiiri 'otrier. handwritings or certain other:imiprevssioins,i_identity between the two sets .g§'~..,/3.Sta_bVI'is_hed,_ .,'i3'y,themvsAeives, these impressions or i the" do not incriminate the4_a'c.cused"'eV~;/entend to do so. That is that giving these impressions the accused person"'doesidnotii:ifurni'sh"-evidence against himself. So, is compeiled to give a specimen.handwiritinig _4o"r--impressions of his finger, paIm.--or fo'ot,.,it~~.vn1ay be said that he has been "V"«.._Acorfnjpe|ie:d to be"av----witness. It cannot however be »s;aid__that.,iie"h__as been compelied to be a witness i"'ag'é.i_n?st'vii'i-njsaiifx' This view, it may be pointed out, does not any way militate against the poiicy underiying the 'C"_i*i.,i|_e"'against "testimoniai compuision". We have ' aiready discussed above. There is little risk, if at ail, it "in the investigator or the prosecutor being induced to 6/ 49 lethargy or inaction because he can get such? handwriting or impressions from an accused persrin'.--i..f"~«.V"'-- For, by themselves they are of little or 'V' assistance to bring home the guilt of an_..acAc'u.sed:.' . Not is there any chance of the a'clcus"edi_ to the investigator into wrong chanr';.els.'_A'b'y fu'rnishVi'iiQ_ false evidence. For, it is be'yond his'v.pow.er'to}a'lt.er the ridges or other characteristics of his'-hand palm or finger or to alter'~..the_r'f'c'haractVe'r.istics V"of"'his handwriting.

37. Appiyirigf arincipa'é:s in the above mentioned decisi::o.ns}44_"og:b'ta§Vi"r;'irig:':t_i:.et'biooigl sample of the accused will not incrilvmin_'a'te of the blood cannot be altered. fifhée be subjected to chemical examinatiéon' a.lon'gwith"other 'materials seized viz., apparels of victim. Only on comparison with semen. a-"ndyl found on the apparels of the accused or 'the victim, if__"thei*"result is positive, then only it will incriminate :ac.cugsed.'=--~'This being the position, it is difficult to say that the blood sample for the purpose of detection of if rape is violative of Article 20(3) of the Constitution of "1 {Q/' 50 India. Though the learned senior counsel relying on the diecision of the Hon'bie Supreme Court in the case of AMRIT STATE OF PUNJAB reported in (2006) 12 SCC_.7_9i_'--po'in.ted that consent of the accused is necessary Sample, but in the case of STATE _oi= Bo'ivieAi¥ .VS:Ji<ZA"fHI 'i3<A'Lu'=_ reported in AIR 1961 sc 1808, aelnohiroi 11V"~H_oVri'b°|e.'}iudges of the Supreme Court answered accused person fi_irni'shing evidence he gives his specimen hand wri"tii'ig}:-'or lfingers, palm or foot" in the iarger Bench has not been overruivlhedll is contrary decision of the larger Benchvvllprgevaiis' of the smaller Eench. As stated earlierf Vpnncipies laid down in the above d'fe_tisi.o'ns'l,l::bid.o:d dr'awnhfro'ni'the accused wiii not incriminate him unles-Sllltheléytestor the DNA test gives a positive finding. privi»i.ege_in.c_iu'.ded in Articie--20(3) of the Constitution of India _..lC'.j'rriay'-robe an hi__n*drance to investigation of crime. Though Articie Constitution of India appears to have an undesirable 7eifeVct_ the social interest and that in the detection of crime of 'rape, the Court has to baiance between the interest of the Q}.

51 society at large as weli as the essentiai rights of the citizens. For this, clear understanding of the fundamental law of this country is necessary. Though this privilege is consideredi..Vby some as an impediment in the way of investigationgjiustice__jw-ill' _ not perish if there is an orderly inquiry. it procedures and the competence of the:;'exi5errts.' should remain open to inquiry. vi_nl-this case, they:'iny'e.stVigatingdiv agency has requested the Magistrate__t'o..permitthelm toidraw the biood sample of the accused*--iorAt«he%.j.ypurp.ose"of DNA test. In other words, the blood. sampl'e'v»isfsougjht lyievdlrawn under the authority ofra compulsion or coercion of the investivligatingl it

38. {in recording is concerned, the maywrecord the voice sample. But it may not1be:Vte_rmeldj~~aVS i:Sf'ta:tement of the accused and the narration by "._x""t'tie accused ywiii.lVe~= recording the voice sample should not pertain syubjiect" matter of the crime. If these safeguards are A"._°ta'i<.er.~..Vwhile recording the voice sample, the essential rights of accused will be protected.

rJ/ 52

39. Examination of the accused includes taking"..of.._it~he photographs, taking sample of pubic hair etc. i- the photographs, sample of pubic hai_r_...fr.o_m the"bo'dy'x"0f_},ttiie accused may not amount to vio|ation1'_'_'o~fV tihe"'s'afegVu*a,r;o»s:

envisaged in the Article 20(3) of ttie_V:vC.ov'nst'it'ution

40. Though in the instant ca,sie',VVthere-»i.i_s 5 deiia.y..iEn lodging the complaint, but the staternent of, ciearly indicates that without consent-,{;: intercourse with her. Evengthe_«.aippa_reis_Vi-of"~.the'_accused as weil as victim have been ﬂpainvchanama. This has been subjected to for discovering the traces of blood, senjeinggetcf' ,_:VT?'i~0..EJgAH. for the investigating agency to the bliioodwsiample of the accused is required for inve'stigatioin.,,fe..if "n'ot.,"_i.~however taking into consideration of the :',_x*ilacts and,Circumistainces of the case, particuiariy seizure of the "-fa-Vpp__a-reis ofth-e victim as weil as the accused, in my view, the of the accused may be required for ascertaining 7tl*i'e.,_tri.ith of the prosecution version as weli as the defence version, The contents of the First Information Report indicates €..»«"""

53

that accused used to threaten the husband of the V--';ri.ctim. Therefore in my view, it is necessary to have the the accused for comparison.

41. One of the contentions that=,__has~sbleeny1u.rcj'ed"'VbiyAthe learned senior counsel Sri Ravi B..»i\i-aik isllthat b|oo'd'i'séamVpVle;'lmyaypiv be misused and there may be falslewaccusatifontlby using DNA database. In our country,'~r._tf|1ere._ is; security of the data or to prevent any unaLI.t-hori'sed- _a.gen"c_y;'fr1r)m obtaining the information. ._.co.n'strained.V jto' Vre"f;er Modi's Medical Jurisprudence' and quote some of the the learned counsel for the petitioner raiseldua database may be misused. Theppobsert/:ati_ons m'a'de,:,__a_tét:pages--55O to 553 in iVlodi's Medical J.uri_spr;udenc.ev4'an:d.A.ViE"o_xico|ogy are as under:

iif'oi$iA.oaita'bg;gé§"lvis~a--vis Civil Ricihts:

There.' stillremain concerns about the technology's m"*,n:po.tentEa'l.. impact on civil rights of the accused Vii'?-suspect. For instance, what degree of probable ' cause must law enforcement officials demonstrate before a judge can order a DNA blood test on an ix 54 uncooperative suspect? Also, can police officiafs use--.__ previously collected samples for other purposesiffw_"*.._ _they suspect an individual committed a -1- These questions begin another debate about_w'hethlerl'g_ DNA should be stored in a dat:.abiase.fo'.r potle'nt_ial'5? future use. Many worry about that may develop and t-he..__pos'si,bilii:y l_:fa_lsg accusation without a probablelvcause. A 1 The forensic scientuists gi.v'i'ti':iVtn* Europe have "long seen the advantages of £)rlA-- through good ciiscussionand ahgohoid cg.g_gl,l"of'..cVo"mp'romise, a level of harmonlisationlihas been realchediwhich would allow for tineTiexlc-l1'a.nge-..j;of"infornjattion. Networked databa"s"esworuldwlé:fi:n'al{e,:i't easier to identify criminals whoitaEe..g4'res'p*o_n"'sible for crimes in other countriesxtiut the different' criminal justice systems which .purre'nt.ly"e§<ist'- are unlikely to make this a '~ _Area'l_ity the near' 'futu're.

D,l\lAﬁi.prof_iling raises several serious ethical ":ss'u_es;"'ip'e.,rha.ps" the most severe of these is the esAtaiblisV_hm_e§nt of DNA databases. These databases '<._conta'm_Amillions of DNA samples and have only tfarecentlyﬂ emerged in the last five years or so, The major advantages that these databases have is that _,y_if}applied to the whole nation, these databases may someday help solve murders, find missing children, i/.

55 identify crash or war victims of even acquit innocent men from jail. However, these databases can be seen to have serious ethicai dilemmas, which cannote be overiooked. Currentiy in India, there are c"-

national iaws that govern the use and app|icationio--.1,,_'* i" A DNA sampies; databases can be set up by_-irnsu:ran'ce - companies, business corporatghilons,'«even~.__':th,e._:" government. One can therefore,_ see the,i1.i,1ge"--,:"'~.. ethicai dilemma this is creaizedi'-...,V V _ V __ The American governmlent p,asse'c'i* in 1991 that ailowed on/§"*sam_~p'I'eVs" ﬁe-..taken"'i1u'ring investigations of unsoive#d.r_'ca's-ems' ii'fro.rn--.convicted offenders. The_'insurari'ce" com.pe:n.i_es employers aiso set' up.fr;-1,eik"iawn"databasesf In UK, the 1995 Criminal J--u'stice=A-ct'ia,|lo.wed the police to take non- intimate'usampies"for,_ analysis from anyone suspyected of,_:'com'mittin§ a recordable offence (in ge:iérai_._,terms th'i'srneans a crime which couid attract »aV'cusii:od'i«al'sentence). If the person if found guilty, A"'i:h'e__Ql\i'A:"p.rVofi',l'Vei"can stay on the database forever and fuAr»t.,hermore,j,h shouid new technoiogy become availahllle, the sample can be re--tested using the new xv":f..sy'stem.V" If the person is acquitted, however, the "r_esu~l't must be removed from the database. The __reasoning behind the UK decision came from statistics which showed that the vast majority of @< 56 men found guilty of sexual assaults had previo.uiS'_""a._ convictions for more minor crimes. Thus a who sets out to be a serial rapist could be de-ni:edV.hVi:s:" ambition because he would be iJd.entifiecJ"'fr'ornf.ti'iev'_',V database after the first assault.

In other European countries', more re:S.tri'crtive legislation is envisaged whereby p'é."s_ona_|V'=profi"l'es can only be entered into a dat_a"b.a_se._y_if the'--inVdivVi_dual is convicted of a serious«. offence," *i..y_i"n_iGermany, the samples for analysis are-.'prov'i'd:ed_.~..aiiojny'rnously to the laboratoriesy' wyhergeas' the .jre.s'u.ltirig";«EViNA profiles are entereyd,§'«...' :'with_.-V name, into the database. advantage of prevent'in"g tiz.ef"DN2i_"'s'aVrnple, it provides a very for the scientist to operate.'ég_'In V o'thé'if;.u:ﬁsdi"ctions, there are legal decisions w'ni.ch*~'will' make the databases less In Ho'll"a"mi," a sample for DNA processing 'ﬁElﬁ_gOiiI'yQl:)e)ﬂ"'iZEJ'i<€ﬂ if it helps to prove the case. i"'T_h"e.refo'i'e§;'..,,i_f al.:;'suspect admits to a sexual offence, no saAmpleV_iis taken and no personal profile is entered 'ginto the database.

.:u?The ethical dilemma that this creates is that l people may not be aware that their personal and "medical information can be bought and sold without 5/ '57 their consent. For example, it may weil be the case that in future, anyone can gain access to these databanks thereby raising huge privacy and ethicVa'i,:'_'"'~i issues. Without controis, DNA databanks couAl.d__'44'bVe:'-'fu- used to launch broad sweeps for criminal si--i'spec.ts"5" 3 and to expose personal secrets toempi_.o'y'e"rs:'j-and insurers. The future of these da,taba_sge.js; however owing to the vast gamount of controv'ers:y i that surrounds them and the..__se_rious' ethicAai'.:is'::=.ues that arise as a resuit. One___:cfan_ be hopeful that increased government --.i_nfi=erv~'ent.ioin'i..a~nvd'*«.reguiation is only a step away.

While th'ere"x'h'a-so been some debate concerr'eiiVngr"wth'e._fstorage of genetic profiles which might, in .'VEv|."l'€t:'1"viJV1ZVl.':i.'g_tA§.;'.9'i'0Vid€' more information than was iptev'ious_|y'~.t'h'o~ught, the whoie subject of stoiri.i-pg' DNA'"~-~res__uits has become emotive. v:'Legiisiatiions"~for the security of the data couid be i--..e'nrac'te.dftro" pr-ev.ent any unauthorised agencies from ob-taining.'tihelinformation. Wide--ranging fingerprint Q databasesfnave been in use around the worid for a it iong time and fears about their misuse are generaliy ~.yun.fo_:unded. Ali of these issues were debated at a meeting in Germany where it was generaiiy agreed scientists that use of comprehensive DNA E/, 59

43. The triai Court has carefully examined the requisition as well as the objections statement of the accused andHa!,_l:ow_ed the application filed by the prosecution for obtai:ii*i'i'n'g"....'|jioatj~~.% sample, public hairs etc. of the accused No.3...~--...A4_:The'd~l.::finainlg recorded by the trial Court on this é2,pp|i:c§_§i;;.oiii..>is.'so4und.'_'Va.r§d.' proper.

44. For the reasons stated Point Nos.1 and 2 in the negative and affirmative. This Criminal Petition filed. liable to be dismissed.

'.i+usi:nnynsr9éunonis dmnﬁssed.

'K Edie:

§ué§§

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