Telangana High Court: In a petition filed by a convict under Section 528 read with 432 of the Nagarik Suraksha Sanhita, 2023 (‘BNSS’) , seeking permission to undergo a second DNA test by offering fresh blood samples, to be compared with those earlier drawn and preserved by the prosecution, the Division Bench of Moushumi Bhattacharya*, J., and B.R. Madhusudhan Rao, J. allowed the same taking into account the risk, the convict is willing to take at the age of 80. The Court held that an accused person has a continuing right to defend himself/herself and a conviction cannot extinguish this right.
Background
The petition before the Court arose from the conviction of the accused for offence under Section 5 read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and was sentenced to rigorous imprisonment for Life and a fine of Rs.10,000, which was solely based on the results of a DNA test conducted during the trial. The convict sought permission to undergo a second DNA test, offering fresh blood samples to be compared with those previously drawn and preserved by the prosecution, in order to establish his defence and prove his innocence.
The Additional Public Prosecutor submitted that the prosecution would not suffer any prejudice if a second DNA test were permitted. It was also pointed out that the convict had not raised any objections to the DNA report during the trial. However, it was admitted that the letters dated 11-10-2021 and 22-10-2021, which may have been relevant to the DNA evidence, were not marked as exhibits during trial proceedings.
The DNA test report had used the term “conclusively” in stating that the convict was the biological father. However, true conclusiveness in DNA testing can only be claimed when the tests do not match, thereby eliminating a biological relationship. In the present case, the language of the report and procedural gaps warranted a closer examination.
The convict further argued that 100 grams of tissue from the right femur bone of the foetus had been handed over to the Investigating Officer, despite the fact that a DNA test requires only a microscopic quantity. This, according to the convict, raised doubts about the procedure adopted and prompted the request for a second test.
Issue
Whether the convict has made out a case of procedural lapses in the conduct of the first DNA Test or Whether the conclusions in the DNA Test Report give rise to unanswered questions.
Analysis and Decision
Considering that the convict continues to remain under the cloud of conviction, the Court observed that 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. The Court noted that a conviction does not extinguish this right, especially when the doubt pertains to the veracity of a crucial piece of evidence. Also, the Court held that the need to dispel any possibility of foul play is of utmost importance where the life and liberty of a convicted person is involved.
The Court noted that even if there is an iota of doubt as to the sanctity of the procedure or the correctness of the evidence, the accused should be given an opportunity to disprove the earlier result. The Court held that the questions asked on behalf of the accused in relation to the DNA Test Report are sufficient to warrant a second examination.
Further, the Court referred to Mutltukumar v. Superintendent of Police, 2019 SCC OnLine Mad 32750, and stated that 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.
The Court took into consideration the extreme risk taken by the convict in requesting a second DNA Test at the age of 80. The Court viewed that no person would take that risk unless there is certainty of the outcome of the second test. This fact alone persuaded the Court to allow the application.
Therefore, the Court permitted the convict to take a second DNA test by offering fresh blood samples. Further, the Court allowed 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 convict regarding the manner of conducting the previous test.
[X v. State of Telangana, 2025 SCC OnLine TS 515, decided on 27-06-2025.]
*Order by: Justice Moushumi Bhattacharya
Advocates who appeared in this case :
For the Appellant: P. Krishna Prakash
For the Respondent: M. Rama Chandra Reddy (APP)
Buy Protection of Children from Sexual Offences Act, 2012 HERE
