Use Of Condom, Time Gap Can Explain DNA Mismatch In Rape Cases: Delhi High Court
The Delhi High Court has held that absence of DNA matching in a rape case is not fatal to the prosecution when surrounding circumstances, including use of condom by the accused and delay in medical examination, reasonably explain such absence.
Justice Neena Bansal Krishna thus dismissed the criminal appeal preferred by a man convicted for repeatedly raping a minor.
The bench observed,
“...pertinent piece of evidence was the FSL wherein the DNA of the Appellant, did not match that of the Prosecutrix. It is significant to note that the Prosecutrix in her Statement under Section 164 Cr.P.C. had stated that the Appellant had used the condom, which becomes a significant aspect to explain the non-presence of semen or matching of DNA of the Appellant, with that of the Prosecutrix.”
It added, “Additionally, the alleged act happened before 03:00 AM in the night of 18/19.07.2018, when the Complainant found the victim missing. The Nani and the family members of the victim called the Police at 14:09 PM and the Victim was taken to the Hospital at about 11:00 AM and MLC was made at 13:59 PM on 19.07.2018. Considering the time gap between the alleged incident and the time when the medical examination was conducted, the not matching of DNA and the inconclusive FSL Report is quite comprehendible and does not discredit the case of the Prosecution.”
The Appellant was convicted for repeated rape of a 13-year-old Prosecutrix over a period of seven days. He was caught by the maternal grandmother on the 8th day, who also was a witness to the incident.
He was sentenced to undergo 12 years rigorous imprisonment for offences under Section 376(2)/506(II) IPC and Section 5(1) punishable under Section 6 of POCSO Act, 2012.
Upholding the conviction and sentence, the Court held that the inconclusive DNA report could not discredit otherwise consistent and credible evidence led by the prosecution. It said,
“The testimony of the Prosecutrix thus, has to be taken as a whole. In the present Case, the testimony of the Prosecutrix not only has been consistent but she has withstood the test of cross-examination despite being a young child of the 13 years,” it said and dismissed the appeal.
Appearance: Mr. Adit S. Pujari, Advocate (DHCLSC), Mr. Bhavesh Seth, Advocate, Mr. Siddharth Kaushal, Advocate for Appellant; Ms. Manjeet Arya, APP for the State. Ms. Vrinda Bhandari, Advocate (DHCLSC) and Ms. Vanshita Gupta, Advocates for Respondent
Case title: Ram Kuber v. State
Case no.: CRL. A.109/2025