The Bombay High Court has observed that the DNA report can be challenged only on the ground of possibility of tampering of the blood sample of the accused, at any stage.
Justice V. M. Deshpande observed thus while considering an appeal filed by a man convicted by the Trial Court in a minor-rape case. The Trial court, among other evidences, also relied on the DNA report which stated that the accused was biological father of aborted fetus of victim.
One of the contentions raised on behalf of the accused was that, there was no reason for the medical officer to preserve the aborted fetus, in absence of registration of offence against anybody. The court said:
"In my view, though at that point of time, offence was not registered, preservation of fetus in a sealed condition is not unnatural, especially when Doctor was knowing that operation has been done on a minor unmarried girl. Therefore, if by way of precaution Dr. Gadhe (PW10) has preserved the aborted fetus, she cannot be accused of violating anything. On the contrary, it shows that Doctor's presence of mind and her commitment towards her duty."
The court also observed that the doctor in her evidence, had disclosed what technology she applied for obtaining DNA from both; the aborted fetus and blood sample of the accused. The court also noted that the technology applied by the Assistant Chemical Analyser was not at all challenged by the accused. The court said:
"By now, in view the law laid down by the Hon'ble Apex Court in Mukesh & Anr. vs. State For NCT Of Delhi & Ors; reported in 2017 (6) SCC 1, the DNA report or scientific method to determine the paternity or sexual assault is firmly established. The only challenge for it can be set up that there occurred tampering with the blood sample of the accused at any stage. If something is on record to show that there was a possibility of tampering of the blood sample of the accused then only there could be some room for suspicion about DNA report. But, it will have to be judged from the facts of each case."
The court then dismissed his appeal, observing that there was no contention taken that at any point of time or at any stage, there was tampering with the blood sample of the accused.