Introduction:

In a significant ruling, the Kerala High Court, led by Justice A. Badharudeen, recently addressed a crucial legal issue involving DNA profiling in a case where the accused and the victim are siblings. The case, titled XXX v. State of Kerala, dealt with allegations of rape and aggravated penetrative sexual assault under the Indian Penal Code (IPC) and the Protection of Children from Sexual Offences (POCSO) Act. The court’s decision to allow DNA profiling, despite the familial relationship, sets a legal precedent in cases involving sexual crimes within families. The accused was charged under Sections 376 and 376(3) of the IPC and Sections 5(j)(ii) and 6(1) of the POCSO Act, with allegations of impregnating his 14-year-old sibling.

The petitioners, the accused and the victim, sought to quash the collection of their blood samples for DNA profiling, arguing that the samples were taken without proper consent, thus violating their fundamental rights. However, the court dismissed their petitions, stating that DNA profiling was a legally permissible part of the investigation under the provisions of the Criminal Procedure Code (CrPC) and the newly introduced Bharatiya Nagarik Suraksha Sanhita (BNSS) of 2023.

Petitioners’ Arguments:

• Counsel for the Accused’s Contentions:

The accused, represented by Advocates Prabhu Kn, Manumon A, Dinesh G Warrier, Jayan Kuttichakku, and Suresh C, argued that the case against him was based on assumptions and intuitions made by the police. His primary objection was the forced collection of his blood sample without his consent or approval from a jurisdictional court. It was contended that since the accused was the victim’s sibling, the DNA profiling would be detrimental to both their interests if the results were positive.

Additionally, the defense argued that the forced collection of blood samples without substantial evidence or reasonable cause violated the accused’s fundamental rights under Articles 14 and 21 of the Indian Constitution, which guarantee equality before the law and the right to life and personal liberty. The counsel also emphasized the potential emotional and social consequences of a positive DNA result for both the accused and the victim, arguing that such evidence should not be admissible against them.

Counsel for the Victim’s Contentions: Similarly, the victim, represented by the same legal team, sought to quash the seizure of her blood samples. She argued that her sample was collected under coercion and without the necessary court approval. The victim’s counsel claimed that the collection process violated her constitutional rights, particularly her right to privacy and bodily integrity, as protected under Article 21.

The legal team argued that the sample collection subjected the victim to further trauma and was conducted without regard for the sensitive nature of the familial relationship between her and the accused, aggravating the situation.

Respondents’ Arguments:

• Prosecution’s Stance:

The State of Kerala, represented by Public Prosecutor M.P. Prasanth and Advocates Manumon A and Rebin Vincent Gralan, argued that the collection of blood samples was crucial for the investigation. They contended that DNA profiling was necessary to establish the relationship between the accused and the child carried by the victim, providing substantial evidence regarding the alleged rape.

The prosecution pointed out that the collection of biological samples is legally permissible under Sections 53 and 54 of the CrPC, which allow for the medical examination of an accused at the request of a police officer. They also referenced similar provisions in the newly enacted Bharatiya Nagarik Suraksha Sanhita (BNSS) of 2023 under Sections 51 and 52, reinforcing the legality of the procedure.

Furthermore, the prosecution refuted the petitioners’ claims of constitutional rights violations, asserting that the rights to privacy and bodily integrity do not override the need for justice in serious crimes like rape and sexual assault, especially when the accused and the victim are siblings.

Court’s Judgement:

After hearing arguments from both sides, the Kerala High Court delivered a critical verdict. Justice A. Badharudeen ruled that DNA profiling of the accused is legally permissible, even if the accused and the victim are siblings. The court noted that neither the Criminal Procedure Code (CrPC) nor the Bharatiya Nagarik Suraksha Sanhita (BNSS) provide any exceptions regarding DNA profiling based on familial relationships.

The court emphasized that the allegations against the accused involve serious offenses under Sections 376 and 376(3) of the IPC, as well as Sections 5(j)(ii) and 6(1) of the POCSO Act. Given the gravity of the allegations, DNA profiling was deemed essential to establish the facts of the case. The court dismissed the petitioners’ objections, stating that Sections 53 and 54 of the CrPC provide clear legal provisions for collecting such samples during an investigation.

Justice Badharudeen further referenced Sections 51 and 52 of the BNSS, 2023, which mirror the CrPC’s provisions regarding the examination of the accused and the collection of biological samples. The court concluded that DNA profiling was necessary in this case, and familial relationships do not provide immunity from such legal procedures.

Finally, the court observed that the DNA profiling report, submitted in a sealed cover, would play a critical role in determining the guilt or innocence of the accused. The court dismissed the criminal miscellaneous petitions filed by the accused and the victim, allowing the investigation to proceed based on the collected DNA samples.