Police cannot cancel POCSO case only on basis of DNA report favouring accused: Punjab and Haryana High Court

The Punjab and Haryana High Court recently observed that the Police cannot cancel a case of penetrative sexual assault under the Protection of Children from Sexual Offences (POCSO) Act only because of the DNA report favouring the accused. .Justice Harpreet Kaur Jeewan reasoned that when a minor victim has stood by the prosecution case in her statement under Section 164 of the Code of Criminal Procedure (CrPC) before the magistrate, the non-matching of DNA of accused with the vaginal swab would not rule out the offence.“Keeping in view the elaborate definition of the offence of penetrative sexual assault, non-matching of the DNA of the petitioner-accused with the vaginal swab of the victim and absence of human semen from the vaginal swab of a female victim would not rule out the offence of “penetrative sexual assault” wherein the minor victim had supported her version in a statement recorded under Section 164 Cr.P.C., given her history before the Medical Officer regarding sexual assault and there is a prima facie medical opinion by the doctor that the offence sexually abusing cannot be ruled out in the medical report,” the Court said..Justice Jeewan made the observations while rejecting the anticipatory bail plea of an accused in a rape case. The First Information Report (FIR) against the accused was registered in December 2022 on a 15-year-old’s statement that that 37-year-old accused, her neighbour, had forcibly taken her to the fields and raped her there. The Police told the Court the investigation had revealed that there was no link between the victim and the accused. It was also submitted that the DNA examination had exonerated the accused and thus, a recommendation was made for filing a cancellation report in the case..The Court noted that the DNA comparison report had been obtained merely on the basis of the requests of the brother and father of the accused. “As per the medico-legal report (Annexure R-1), the victim has given the history of sexual assault at a farm house on 04.12.2022. Four vaginal swabs were taken for DNA analysis and detection of spematozoa. The victim has supported her version in the statement recorded under Section 164 Cr.P.C. on 09.12.2022 before the Magistrate,” it found further..In this backdrop, the Court said the recommendation for cancelling the case was misconceived and contrary to the provisions of POCSO Act.It also referred to a Supreme Court ruling in which it was observed while a positive result of the DNA test would constitute clinching evidence against accused, the weight of the other material evidence on record would have to be considered in case the result favours the accused.“The offence alleged to have committed by the petitioner is grievous in nature where under Section 4 of the Act of 2012, the minimum punishment of 07 years has been prescribed which may extent to imprisonment for life. Merely, on the ground of the DNA examination report in favour of the petitioner, he is not entitled the per-arrest bail, especially keeping in view of the fact that he is a neighbourer of the victim, the age difference between the petitioner and the minor victim and there being prima facie no previous enmity between the petitioner and the victim,” the Court said as it rejected the plea..Advocate AS Manaise represented the petitioner.Advocate Himani Arora represented the State.Advocate Goldy Jakhar represented the complainant.