Failure To Conduct DNA Profiling In Rape Cases Not Fatal To Prosecution If Victim’s Testimony Is Corroborated By Medical Reports: Bombay High Court

The Court observed that Section 53A of the Code of Criminal Procedure, 1973 merely enables medical examination and collection of scientific evidence from an accused person and does not make DNA profiling mandatory in every prosecution for rape.

The Court was hearing a criminal appeal challenging the judgment of the Fast Track Special Court, POCSO, Panaji, Goa, convicting him for offences punishable under Sections 448, 354 and 376 IPC arising out of an incident involving digital penetration of the victim.

A Bench comprising Justice Ashish S. Chavan observed: “Dealing with the ancillary arguments on behalf of the Appellant, firstly, that the non-collection of material evidence i.e. DNA is fatal to the case of the prosecution, I find force in the submissions of the learned APP that Section 53(A) of Cr.P.C. is facilitative in nature and not mandatory and therefore, failure to conduct DNA profiling cannot by itself be treated as fatal to the prosecution case. This is more so, in the wake of the evidence of the victim corroborated by medical reports”.

Advocates Pradeep Sawaikar and Jay Sawaikar appeared under the Legal Aid Scheme for the appellant. Additional Public Prosecutor S. Karpe appeared with Advocates S. Gaonkar and S. Parodkar for the respondents.

Background

According to the prosecution, the victim was residing on the second floor of a building in Goa and operated a beauty parlour on the first floor. On the intervening night of 14.05.2023 and 15.05.2023, while she was sleeping in her bedroom, she sensed someone’s presence inside the room.

The victim stated that the assailant jumped on her bed, attempted to cover her face using a pillow and bedsheet, removed her pants and touched her private parts inappropriately while attempting to insert his fingers into her vagina.

Upon hearing her screams, the owner of the building and others rushed to the flat. The appellant was eventually apprehended from the balcony of the room. The victim identified him as a person who used to wash her car and do odd jobs in the locality.

Following investigation, the appellant was charge-sheeted and convicted by the Fast Track Special Court for offences punishable under Sections 448, 354 and 376 IPC.

Before the High Court, the appellant argued that the prosecution had failed to collect material scientific evidence, including DNA samples, finger swabs and fingerprints from the balcony wall, and therefore the prosecution's case was unreliable.

The appellant further contended that the evidence only disclosed an attempt to commit rape and not the offence of rape itself.

Court’s Observation

The Court extensively examined the testimony of the victim and noted that she had consistently narrated the incident in her complaint, statement under Section 164 CrPC and oral evidence before the Court.

The Court noted that the victim specifically deposed that the appellant attempted to insert his fingers into her vagina and continued assaulting her despite resistance. The Bench also relied upon the testimony of the owner of the premises, who had rushed to the flat after hearing the victim’s screams and found the appellant hiding in the balcony of the bedroom.

The Court held that the oral testimony of the victim inspired confidence and was corroborated by surrounding circumstances as well as medical evidence.

The Court examined the medical evidence led by the prosecution, including the testimony of the Senior Resident Doctor attached to the Department of Obstetrics and Gynaecology, Goa Medical College.

The Court noted that the medico-legal examination report specifically recorded evidence of vaginal penetration and corroborated the oral history narrated by the victim regarding the insertion of fingers into her vagina.

The Court observed: “The evidence of PW3 clearly establishes penetration by fingers co-relating to the medical finding of vaginal penetration.”

“…the very definition of the offence of rape includes penetration by fingers or ‘digital penetration’. The definition of the offence of rape does not stipulate any degree of penetration”, the Bench added.

Rejecting the appellant’s argument that the allegations disclosed only an attempt to commit rape, the Court referred to the post-2013 amended definition of rape under Section 375 IPC.

The Court observed that Section 375(b) IPC expressly includes insertion, “to any extent”, of any object or part of the body into the vagina, urethra or anus of a woman.

The appellant argued that despite the prosecution's case resting upon allegations of digital penetration, no swab or slide of the appellant’s fingers was taken, and no DNA evidence was collected.

Rejecting the contention, the Court accepted the submission of the prosecution that Section 53A CrPC is only enabling in nature and not mandatory. The Court observed that lapses or shortcomings in investigation cannot by themselves result in acquittal where trustworthy evidence otherwise establishes the prosecution's case.

The Court further held that the absence of DNA profiling could not override the direct evidence of the victim, corroborated by medical findings.

The appellant also attempted to raise doubts regarding his mental condition on the basis that the Investigating Officer had made inquiries regarding his IQ level during the investigation.

Rejecting the submission, the Court noted that no material whatsoever had been produced to establish unsoundness of mind or legal insanity under Section 84 IPC.

The Court further observed that even during his statement under Section 313 CrPC, the appellant did not raise any plea of mental illness.

Referring to the Apex Court’s decisions in State of U.P. Vs. Babul Nath (1994), Koppula Venkat Rao Vs. State of U.P. (2004) and Aman Kumar Vs. State of Haryana (2004), the Court concluded that “the complaint, the oral deposition of the victim and the corroborating medical evidence clearly establish the offence of rape committed by the Appellant against the victim”.

Conclusion

The Bombay High Court held that the prosecution had successfully established the offences punishable under Sections 448, 354 and 376 IPC beyond a reasonable doubt through the consistent testimony of the victim, corroborated by medical evidence and surrounding circumstances.

The Court rejected the appellant’s contention that non-collection of DNA evidence or other scientific material vitiated the prosecution's case and held that such investigative shortcomings cannot by themselves result in acquittal where reliable evidence otherwise establishes guilt.

Accordingly, the Court upheld the conviction and sentence imposed upon the appellant by the Fast Track Special Court.

Cause Title: Alfred Fernandes v. The State & Anr. (Neutral Citation: 2026:BHC-GOA:911)

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