In a significant ruling, the Bombay High Court while refusing bail to a rape accused held that a DNA test ruling him out as the biological father of the child is not conclusive evidence that the rape did not occur, but can only be used as corroborative evidence [Abbas Asmat Ali v. State of Maharashtra].
Reiterating what was held in a Supreme Court judgment, the Court held though a positive DNA result would constitute clinching evidence against the accused, if the result is negative, the other material available on record will still have to be considered independently.
Thus, even if a DNA test on a pregnant rape survivor excludes the accused, it cannot be conclusive evidence that the rape did not occur, it was held.
Justice Bharati Dangre, therefore, refused to accept the contention of the accused that his DNA tests didn’t match with that of the foetus and, thus, he shouldn’t be linked with the rape of the survivor.
“It is not in dispute that the evidence of DNA analysis can be used for the purpose of corroboration. The DNA test excludes the applicant as the father of the child, but that does not discredit the victim who has reiterated in her statements (recorded under section 164 of CrPC) that he forcibly committed sexual intercourse with her. There is no reason to disbelieve the testimony of the victim who has narrated the act of sexual assault upon her at the instance of the applicant. The DNA test cannot be said to be the conclusive evidence regarding a rape, but it can only be used as a corroborative evidence,” the judge said in her order passed on July 26.
The Bench was seized of a bail application filed by one Abbas Asmat Ali, who was arrested by the Navi Mumbai Police for allegedly raping and criminally intimidating a 14-year-old girl who worked as a nanny to his children.
As per the prosecution case, the accused had requested the victim’s mother to send her daughter to his house to look after his children, during the COVID-19 lockdown. He and his wife assured that the victim would be given an appropriate amount per month.
The victim’s mother agreed and sent her to work as a nanny. After a few days, the accused’s wife had to go out of station, and the children were left with the victim. The accused then took advantage of the situation and forced himself on the victim. He allegedly raped the girl for 10 continuous days and threatened her of dire consequences if she disclosed the same.
The incident came to light after the victim was taken to a doctor due to severe pain in her stomach and it was learnt that she was pregnant. She then narrated her ordeal to her mother and subsequently an FIR was lodged at the Nerul Police station against the accused.
In her order, Justice Dangre noted that both the victim as well as her mother had in their statements given under Section 164 of the Code of Criminal Procedure, reiterated the facts and stuck to their versions.
“Since in the present case, the victim girl is firm in her version that the applicant had forcibly committed sexual intercourse with her, he shall be subjected to trial and merely because the DNA exclude him to be the biological father of the child, do not deserve the applicant’s release on bail,” Justice Dangre opined.
The Court referred to judgment of the Supreme Court in Sunil v. State of Madhya Pradesh which had held that though a positive DNA result would constitute clinching evidence against the accused, a negative result would not automatically absolve the accused.
The Court, therefore, held that there wasn’t any reason to doubt the statements of the victim at this stage. It also took into account the precarious situation of the family of the victim and said that there is every likelihood of the victim and her family being pressurized by the applicant.
In view of this, the Bench dismissed the bail application.
Advocate Nelson Rajan PV appeared for the applicant, while Advocate Ameeta Kuttikrishnan represented the victim. Additional Public Prosecutor AA Takalkar appeared for the State.