Not self-incrimination, says Kerala HC, Legal News, ET LegalWorld – Legal Firms


KOCHI: Asking a rape accused to undergo a DNA test does not violate the constitutional right against self-incrimination, the Kerala high court said while upholding a lower court’s order.

In the judgment, justice Kauser Edappagath said the privilege of Article 20(3), which says no accused person shall be compelled to be a witness against himself, is only applicable to testimonial evidence.

The court considered a petition filed by Das alias Anu, son of George, of Nadukani Lakshamveedu Colony of Konnithazham in Pathanamthitta challenging the order of Additional Sessions Court-I (Special Court), Pathanamthitta.

After considering the plea, the high court said, “Drawing DNA samples from the body of an accused in a criminal case, especially in a case involving sexual offence, will not violate his right against self-incrimination protected under Article 20(3) of the Constitution. The right against self-incrimination is just a prohibition on the use of physical or oral compulsion to extort testimonial evidence from a person, not an exclusion of evidence taken from his body when it may be material.”

Further, the court said there is no testimonial compulsion in the process of taking a sample of blood by a qualified and registered medical practitioner. In no case could it be said that by this process, the accused is forced to tender evidence against himself or is being compelled to be a witness against himself, the court held. Police have got enough power, under section 53A CrPC to send the accused to a qualified medical practitioner for the purpose of taking samples, the court said.

Examination of the body of the accused is contemplated as an aid to the investigation to ascertain facts that may afford evidence as to the commission of the offence under investigation, the court added.

(The victim’s identity has not been revealed to protect her privacy as per Supreme Court directives on cases related to sexual assault)


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