'Conviction Does Not Extinguish Right To Prove Innocence': Telangana High Court Permits POCSO Convict To Undergo Second DNA Test

Permitting a rape convict to undergo a second DNA test, the Telangana High Court said that a conviction does not extinguish an accused/convict's continuing right to defend themselves and present best possible evidence to prove their innocence, when there is a doubt on veracity of crucial evidence like a DNA report. The order was passed by a Division Bench of Justice Moushumi Bhattacharya and Justice B.R. Madhusudhan Rao in an application filed in an appeal challenging the 80-year-old man's POCSO conviction. The application was filed seeking to conduct a second DNA test on the convict who had been convicted under section 5 & 6 of POCSO and sentenced to rigorous imprisonment for Life. It sought for comparison of the fresh samples with the samples earlier drawn and preserved by the prosecution. “The challenge to the impugned judgment will be tested on its merits and the evidence placed before us. In the interregnum, we cannot be oblivious to the fact that the petitioner, being a 80-year-old man, continues to remain under the cloud of the impugned conviction based solely on the DNA Test result. An accused person has a continuing right to defend himself/herself which includes presenting the best possible evidence before the Court to prove his/her innocence. A conviction does not extinguish that right, particularly where a doubt regarding the veracity of a crucial piece of evidence has the potential of that evidence being discarded altogether. The need to dispel any possibility of fabrication or foul play is of utmost importance where the life and liberty of a person convicted of an offence teeters on the evidence (the DNA Report in this case),” the bench said. BackgroundThe appeal arose from a conviction in a POSCO case, wherein the appellant was convicted to life in prison on account of the DNA evidence found against him. The petitioner's name did not feature in the FIR dated 24.09.2021, it named only second accused as perpetrator.The appellant was the neighbour whose name was subsequently added based on the minor girl's statement before the Sub Inspector of Police and during the Medico-Legal Examination conducted by the Medical Officer. The appellant was convicted by the Trial Court solely on the basis of the DNA Test and the conclusion drawn therefrom was that he is the biological father of the foetus. The Trial Court also concluded that the DNA Test established that the accused had committed sexual assault on the victim.During the pendency of the appeal against conviction, the man filed an application seeking fresh DNA analysis on the ground of procedural irregularities. The prosecution did not oppose the application; however, it stated that the forensic evidence was conclusive and pointed towards the appellant.FindingsThe Bench said that the DNA report mentioned that it was a conclusive test. It observed, "It is important to remember that the only definitive conclusion which may be drawn in cases of paternity is when the DNA Test result does not match; in such cases, the identity of the person is not established. However, the contrary cannot amount to a 'conclusion': Kamti Devi Vs. Poshi Ram1". The court said that the questions asked on behalf of the accused in relation to the DNA Test Report are sufficient to warrant a second examination.The appellant had argued that a single test (DNA) requires only a microscopic quantity (0.5 to 1.0 nanograms of DNA). However the evidence of the P.W.9 (medical doctor) showed that 100 grams of tissue of the right femur bone of the foetus was handed over to the Investigating Officer. "None of the questions have been satisfactorily answered by the Prosecution. The gaps must be addressed to the Court's satisfaction, especially where the entire case of the prosecution rests on the findings in the DNA Report," it said. While, allowing the application, the Bench also noted:“We cannot also discount the extreme risk taken by the petitioner in requesting for a second DNA Test. It would indeed be a suicidal move on the part of the petitioner had the petitioner to subject himself to a second test and have the earlier DNA Report confirmed in the process. No person would take that risk unless he is certain of the outcome of the second test. This fact alone persuades the Court to allow the application.”Permitting the appellant to take a second DNA Test by offering fresh blood sample, the court also said that the second DNA Test to be conducted at the Centre for DNA Fingerprinting and Diagnostics CDFD, Uppal, Hyderabad, in view of the apprehension expressed on behalf of the petitioner with regard to the manner of conducting the previous test. "The petitioner shall be at liberty to approach the concerned Judicial Magistrate for appropriate directions on the Medical Officer for drawing fresh samples for conducting the second DNA Test. The DNA Testing process shall be completed within eight weeks from the date of receipt of a copy of this order. The petitioner shall bear the expenses...

'Conviction Does Not Extinguish Right To Prove Innocence': Telangana High Court Permits POCSO Convict To Undergo Second DNA Test

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