The Delhi High Court has ruled that a negative DNA match is not fatal to the prosecution’s case when there is credible testimony that the accused used a condom during the sexual assault. Justice Neena Bansal Krishna dismissed the appeal of Ram Kuber, upholding his 12-year rigorous imprisonment sentence for the rape of a 13-year-old girl, terming the lack of forensic evidence “comprehendible” in light of the survivor’s statement.
The High Court adjudicated on Criminal Appeal No. 109/2025 against a judgment delivered by the Additional Sessions Judge (ASJ). The appellant, convicted under Section 376(2)/506(II) of the IPC and Section 6 of the POCSO Act, argued for acquittal primarily on the ground that his DNA profile did not match samples collected from the survivor.
Rejecting this plea, the High Court affirmed the lower court’s decision, emphasizing that the survivor’s statement under Section 164 Cr.P.C.—where she explicitly mentioned the use of a condom—adequately explained the absence of the accused’s biological trace.
Background of the Case
The prosecution’s case dates back to July 2018. The survivor, a 13-year-old girl with an amputated left hand, was residing with her maternal grandmother. The appellant, a neighbor and truck driver, allegedly lured the child to his home on the pretext of offering her meat.
The survivor testified that the abuse continued for eight days. She stated that the accused threatened to kill her with his truck if she disclosed the incident. The crime was discovered on the night of July 18-19, 2018, when her grandmother (PW5), aunt (PW3), and a neighbor (PW6) found her inside the appellant’s house.
Arguments on DNA and Forensic Evidence
The Appellant’s Defense The defense counsel heavily relied on the Forensic Science Laboratory (FSL) report. They argued:
- DNA Mismatch: The DNA profile of the appellant did not match the biological samples (vaginal swabs/smears) collected from the victim.
- No Biological Link: The absence of the accused’s semen or biological material on the victim’s body or clothes should lead to an inference of innocence.
- Inconclusive Findings: The medical expert was unsure if the hymen was ruptured, and the defense argued this benefit of the doubt should go to the accused.
The State’s Submission The prosecution countered that:
- Survivor’s Testimony: The survivor had clearly stated in her statement recorded before a Magistrate (Section 164 Cr.P.C.) that the accused “used a condom.”
- Corroboration: While the DNA did not match, the FSL report did confirm the presence of human semen on the victim’s swabs, supporting the fact that sexual assault had occurred, even if the specific source could not be biologically linked to the accused due to the barrier used.
The Court’s Analysis
On the “Condom Angle” and DNA Evidence Justice Krishna specifically addressed the defense’s reliance on the negative DNA report. The judgment noted:
“It is significant to note that the Prosecutrix in her Statement under Section 164 Cr.P.C. had stated that the Appellant had used the condom, which becomes a significant aspect to explain the non-presence of semen or matching of DNA of the Appellant, with that of the Prosecutrix.”
The Court further observed that given the time gap between the incident (around 3:00 AM) and the medical examination (around 2:00 PM the next day), combined with the use of a condom, the inconclusive FSL report was “quite comprehendible” and did not discredit the prosecution’s case.
On the Reliability of Testimony
The Court reiterated that the testimony of a victim of sexual assault does not require mechanical corroboration if it is inspiring confidence. The minor discrepancies in the child’s statement were dismissed as natural for a 13-year-old. The Court found her testimony consistent with that of her grandmother and the independent neighbor who caught the accused at the spot.
The Decision
The High Court held that the “overwhelming evidence”—comprising the ocular testimony of the survivor and the witnesses who found her in the accused’s house—far outweighed the technical absence of DNA evidence explained by the use of a condom.
The appeal was dismissed, and the conviction stands confirmed.
