‘It cannot be sole evidence to establish guilt’

This undated image shows a lab technician observing sample with microscope at Central Police Forensic Science Laboratory, in Kathmandu. Photo: Nepal Police

Kathmandu, September 30

Criminal lawyers have said that DNA test report cannot be the sole evidence to establish guilt even as questions have been raised over the process of DNA sample collection in Nirmala Panta’s rape and murder case and its reliability and accuracy.

On the one hand, there’s no law in the country that validates DNA test and related procedure, and on the other, the reliability of the DNA test report depends on several aspects such as how and when the sample was taken, what quantity of sample was taken, who took the sample and how it was stored and transported, criminal lawyers told THT.

Senior Advocate Krishna Prasad Sapkota, who specialises in criminal law, said if the person collecting the DNA sample was not honest or if the sample was contaminated, the report might not be accurate.

He said an expert opinion could not be decisive. “We also need to consider circumstantial evidences and see whether they corroborate the DNA test report,” said Sapkota. “If all other evidences are enough to settle a case, but the DNA test report suggests something else, the circumstantial evidences should be considered. The DNA test report is just an add-on.”

Moreover, the country does not have relevant laws validating DNA test or guiding related procedure.

Another Senior Advocate Lava Mainali, who also specialises in criminal law, said DNA test could be a part of investigation to identify clues or conduct interrogation, but it cannot be presented in the court because of the absence of relevant laws.

He said since there were procedures related to DNA sampling and testing, a law should govern the procedures, such as how to take the sample, who should  take it, how much of it should be taken and how to store and transport it.

“So how can the court reach a conclusion in a case just on the basis of the DNA test which has not been validated by the law?”  Mainali wondered. Other evidences also need to be considered, and the DNA test report cannot be the sole basis to establish guilt, he added.

There are also precedents in which the Supreme Court has rejected DNA test report.

A division bench of justices Sushila Karki and Balaram KC had in May 2010 rejected a DNA report presented in the court on the ground that the sample collection process was questionable. In the case of Rajiv Gurung versus Nita Gurung, the justices upheld that other evidences were enough to settle the case.

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