Gauhati High Court
Ashabul Hussain vs The State Of Assam And Anr on 14 November, 2025
Author: M. Zothankhuma
Bench: Michael Zothankhuma
Page No.# 1/7
GAHC010202942024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./323/2024
ASHABUL HUSSAIN
S/O. LALCHAN ALI, R/O. KHORAGAON MAJPARA, P/S. JOGIGHOPA, DIST.-
BONGAIGAON, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM.
2:LIYAKAT ALI
S/O. LATE ACHAN ALI
R/O.- KHORAGAON MAJPARA
P/S.- JOGIGHOPA
DIST.- BONGAIGAON
ASSAM
PIN-783388
Advocate for the Petitioner : MR H R A CHOUDHURY, MR. A AHMED,MR. I U CHOWDHURY
Advocate for the Respondent : PP, ASSAM,
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BEFORE
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON'BLE MRS. JUSTICE MITALI THAKURIA
ORDER
14-11-2025 (M. Zothankhuma, J) Heard Mr. I. U. Choudhury, learned counsel for the appellant and Ms. S. H. Borah, learned Additional Public Prosecutor.
2. This appeal is against the judgment dated 09.09.2024 and order of sentence dated 10.09.2024 passed by the learned Special Judge (POCSO), North Salmara, Abhayapuri in Special (P) Case No. 13(J)/2018 under Section 6 of the POCSO Act for which the appellant was sentenced to undergo Rigorous Imprisonment for life with fine of Rs.50,000/-, in default, to undergo Simple Imprisonment for 6 (six) months.
3. The Paper book has been prepared and provided to the learned counsels for the parties.
4. One of the issues raised by the appellant is that he is not the father of the child born to the victim girl. On the other hand, the victims' case is that the appellant is the father of the child.
5. The learned APP and the learned counsel for the appellant submit that they would like to have a DNA test done on the child and the appellant, to confirm whether the appellant is the father of the child or not.
6. In view of the stand taken by the counsels for the respondent that the DNA test should be conducted, to determine whether the appellant is the father of the child, we are of the view that DNA test/Profiling should be done.
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7. 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 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.
8. 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.
9. 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. In our country also like several other developed and developing Page No.# 4/7 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.
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."
10. In the case of Pattu Ranjan Vs. State of T.N, reported in AIR 2019 SC 1674, the Supreme Court has held at paragraph No. 52 as follows:-
"52. Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on the facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party."
11. 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 also held that being an opinion, the probative value of such evidence has to vary from case to case."
12. Section 53A(2)(iv) Cr.P.C, which is equivalent to Section 52 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) Page No.# 5/7 Cr.P.C, which is equivalent to Section 184 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.
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. The above cases show that there is no bar or restriction in having a DNA profiling of an accused in a case of rape. In the present case, not only is there an allegation of rape against the appellant, but the appellant has been accused of being the father of the child born due to the rape inflicted by the appellant. It is quite clear that DNA profiling of the appellant could prove whether the appellant was the father of the child born to the victim. As Section 53A Cr.PC Page No.# 6/7 allows for examination of a person accused of rape through DNA profiling on the request of a Police Officer not below the rank of Sub Inspector, there can be no bar or restriction on this Court to pass a direction for DNA profiling of the appellant or the child, which would conclusively prove whether the appellant was the father of the child and thus further prove the question whether any rape had been committed on the victim by the appellant. On the other hand, a negative test report may not be conclusive proof that rape had not been committed, which would depend on the facts and circumstances of each case.
16. In the case of Crl. Appl. No. 73/2023 (Sudip Biswas @ Bura Vs. State of Assam and Another), the Division Bench of this Court, vide its judgment dated 22.09.2025, had also taken into consideration the DNA test report which showed that the appellant/accused was not the father of the child. As a DNA test/Profiling would prove whether the appellant was the father of the child born to the victim, we are accordingly of the view that the learned Trial Court should take steps for conducting the DNA test/Profiling of the appellant and the child of the victim.
17. Accordingly, in terms of the Section 391 CrPC, we direct a DNA test/Profiling of the appellant and the child, to be done by the learned Trial Court by way of additional evidence.
18. The learned Trial Court shall ensure that all precautions are taken at the time of taking samples from the above persons and making sure the samples are not compromised in any manner.
19. The learned Trial Court shall also ensure that the person/institution conducting the DNA test/Profiling shall ensure that the testing procedure is not compromised in any manner. The DNA test report shall thereafter, be considered Page No.# 7/7 by the learned Trial Court, who shall thereafter give a report with regard to the same to this Court along with the TCR.
20. In view of the reasons stated above, Registry to send back the TCR to the learned Trial Court, who shall ensure that the DNA test/Profiling is done within a period of 8 (eight) weeks from today.
21. List the matter on 09.01.2026.
JUDGE JUDGE Comparing Assistant