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Negative DNA test not conclusive evidence that rape did not occur: Bombay High Court

Bombay HC held that a DNA test ruling accused out as the biological father of the child is not conclusive evidence that the rape did not occur

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While refusing bail to a rape accused, the Bombay High Court held that a DNA test ruling him out as the biological father of the child is not conclusive evidence that the rape did not occur, but may only be used as corroborative evidence.

Reiterating a Supreme Court decision, the Court noted that while a positive DNA result would constitute clinching evidence against the accused, if the result is negative, the other information on record must still be reviewed independently.

Thus, even if a DNA test on a pregnant rape survivor excludes the accused, it was held that this cannot be conclusive evidence that the rape did not occur.

As a result, Justice Bharati Dangre refused to accept the accused's argument that his DNA tests did not match that of the foetus and so he should not be linked to the survivor's rape.

"It is not in dispute that the evidence of DNA analysis can be used for the purpose of corroboration. The DNA test excludes the applicant as the father of the child, but that does not discredit the victim who has reiterated in her statements (recorded under section 164 of CrPC) that he forcibly committed sexual intercourse with her. There is no reason to disbelieve the testimony of the victim who has narrated the act of sexual assault upon her at the instance of the applicant. The DNA test cannot be said to be the conclusive evidence regarding a rape, but it can only be used as a corroborative evidence," the judge said in her order passed on July 26.

The Bench was concerned with a bail application filed by Abbas Asmat Ali, who was arrested by the Navi Mumbai Police for allegedly raping and illegally threatening a 14-year-old girl who worked as his children's nanny.

According to the prosecution case, the accused asked the victim's mother to send her daughter to his house during the COVID-19 lockdown to look after his children. He and his wife promised the victim that she would be paid an adequate monthly amount.

The victim's mother accepted and sent her as a nanny. After a few days, the accused's wife had to go out of  station, leaving the children with the victim. The accused then used the circumstance by forcing himself on the victim. He allegedly raped the girl for ten days straight and threatened her with serious implications if she informed anyone.

The incident came to light after the victim was taken to the clinic for severe stomach pain and it was discovered that she was pregnant.

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