JUDICIARY AND FORENSIC INVESTIGATION

ABSTRACT:

INTRODUCTION
Science has been helpful for us in every aspect of our life like, education, health, agriculture,
legal system etc. In the contemporary period, Science has helped the criminal justice system not
only to provide justice in correct manner but has also helped in curtailing the crimes.
When scientific knowledge is used, to investigate into a case and provide a reason for a crime,
then this procedure of investigation is called as forensic science. Forensic science encompasses
many different fields of science, including anthropology, biology, chemistry, engineering,
genetics, medicine, pathology, phonetics, psychiatry, and toxicology.
Dr. Carole Mccratney, a Reader in the School of Law, Northumbria University, defines Forensic
Science, in her book Forensic Science and Criminal Justice1:
Forensic Science can be considered broadly as the application of natural and physical science
to the resolution of legal conflicts, which is not only limited to the criminal courts, but also in
civil matter
Our country has undergone a drastic change and the crimes taking place in our society, in present
time has forced us to rely on Forensic science and to provide remedy to the victim. It has become
so much important that mere denial of the use of forensic science in criminal investigation itself
amounts to violation of human rights.
Earlier, when Forensic investigation was not known to the society, the police department would
use 3rd degree technique to know what really happened, in the crime scene, or how it happened.
There was time, due to lack of Forensic investigation, any accused, whether he has committed
the offence or not, would be held guilty, with slight clue against him. The 3 rd degree technique,
which usually includes beating, torturing etc., by the police, also would sometime lead to death
of accused and the witness and more than this, these techniques were violating the basic human
rights.2
1 Carole McCartney, Forensic Identification and Criminal Justice- Forensic Science, Justice and Risk,
William Publication, 2006
2 B.R Sharma, Forensic Science in Criminal Investigation & Trials, Universal Law Publication, 4 th
Edition 2007.

But with the introduction of Forensic investigation, we are now not only able to provide speedy
justice but also, the famous quote of Voltaire, the historian, in his book Zadig, has been
followed, which says:
It is better to risk saving a guilty person than to condemn an innocent one.
Forensic science serves the interest of justice by providing scientifically based evidence relating
to criminal activity.3 With development, in the field of science, the investigations into the crimes
have become very easy, for the criminal justice system. It has become so much helpful to the
judiciary, to provide justice that before any case is taken by the court the forensic procedure has
to be done, without which no further proceedings can take place.
But this field of science, Forensic investigation, has always been limited to certain conditions
and the judiciary, has tried to see to it that this form of investigation will not violate the basic
fundamental rights, as mostly the investigation under Forensic science leads to breach of privacy
and individual liberty. The Forensic science, in our legal system, is governed under, the
Constitution of India, Code of Criminal Procedure, 2013, Indian Evidence Act, 1872 and
Identification of Prisoners Act. The Constitution being the main governing body let us look at
the position of Forensic investigation under it.
The Constitution of India, under Article 20 (3) provides that, the person cannot be forced to
become witness against himself. This leads to many questions like, does providing finger prints,
DNA test, Narco analysis etc. would violate the fundamental right, protected under Article 20
(3). To these questions, judiciary has answered.
Moreover the main focus would in furtherance to as to whether DNA Profiling and NARCO
Analysis and its applicability.

3 Carole McCartney, Forensic Identification and Criminal Justice- Forensic Science, Justice and Risk, William
Publication, 2006

DNA PROFILING
Correct identification of crime and criminals has always been a challenge to the criminal justice
system, but with the help of DNA tests or profiling, identification of clues has been very useful.
Dr. B.R. Sharma, in his book Forensic Science and Criminal Investigation, on usefulness on
DNA profiling, says4:
DNA profiling is applicable to virtually all the body materials. They, as clues materials, are
encountered in a variety of heinous crimes: murder, dacoit, encounters (fake or otherwise), hit
and run case, assaults, rape and many other offences against an individual..It helps in
linkage of crime, through materials, exchanged or deposited, as clue materials. Such are the
benefit of DNA investigation.
In one of the case, The State of Bombay v. Kathi Kalu Oghad and Others5, There were two issues
before the Supreme Court of India:
(1) Whether by the production of the specimen handwritings of the accused could be said to have
been 'a witness against himself' within the meaning of Article 20(3) of the Constitution? and
(2) Whether the mere fact that when those specimen handwritings had been given, the accused
person was in police custody could, by itself, amount to compulsion, apart from any other
circumstances which could be urged as vitiating the consent of the accused in giving those
specimen handwritings?
Answering these two issues, the Supreme court held that, to be a witness is not equivalent to
'furnishing evidence' in its widest significance; that is to say, as including not merely making of
oral or written statements but also production of documents or giving materials which may be
relevant at a trial to determine the guilt innocence of the accused.

4 B.R Sharma, Forensic Science in Criminal Investigation & Trials, Universal Law Publication, 4 th
Edition 2007, Pg. 1119
5 1961 AIR 1808, 1962 SCR (3) 10

And, Supreme Court went onto say that giving thumb impressions or impressions of foot or palm
or fingers or specimen writings or showing parts of the body by way of identification are not
included in the expression to be a witness. The Supreme giving reasons said,
"To be a witness" means imparting knowledge in respect of relevant fact, by means of oral
statements or statements in writing, by a person who has personal knowledge of the facts to be
communicated to a court or to a person holding an enquiry or investigation.
We can see how the Judiciary, in this case, has tried to give importance to forensic investigation,
but with time, the position of Forensic science in legal system has developed and therefore
judiciary has seen to it that the procedure, in forensic investigation, will not violate the
fundamental rights protected in our constitution.

In Bombay High Court, in the case of Sadashiv Malikarjun Kheradkar v. Smt. Nandini Sadashiv
Kheradkar and Another6, it was held that the Court has power to direct blood examination but it
should not be done as a matter of course or to have a roving inquiry, it was also held that the
Court can give a direction but cannot compel giving of blood sample.

In Thogorani alias K. Damayanti v. State of Orissa and Ors 7., the court noted that the only
restriction for issuing a direction, to collect the blood sample of the accused for conducting DNA
test, would be that before passing such a direction, the Court should balance the public interest
vis-a-vis the rights under Articles 20(3) and 21 of the Constitution. While balancing this interest,
the Orissa High Court, gave direction to follow the following considerations:
1. the extent to which the accused may have participated in the commission of the crime
2. the gravity of the offence and the circumstances in which it is committed
6 1996 (1) BomCR 454
7 2004 CriLJ 4003

3. age, physical and mental health of the accused to the extent they are known
4. whether there is less intrusive and practical way of collecting evidence tending to confirm
or

disprove the involvement of the accused in the crime

5. The reasons, if any, for the accused for refusing consent.

The judiciary, in above two cases, has appreciated the fundamental rights, and before any
procedure, the fundamental rights are put first. We can summarize these two judgments:
1. To protect the privacy of the individual.
2. Cannot compel anybody to follow the procedure of forensic investigation.
But the judiciary has taken separate stand in Sharda v. Dharmpal8case. In this case, we will be
concerned with two issues, which were discussed by the Honble Supreme Court:
1. Can an order directing, a party to a divorce proceeding, to go through a medical
examination would violate Article 21 of the Constitution of India?
2. Power of the Court to direct a party to undergo medical examination.
The Honble Court, answering these two issues said that,
.the Court passes an appropriate order, the question of such action being violative of
Article 21 of the Constitution of India would not arise. The Court having regard to Article 21 of
the Constitution of India must also see to it that the right of a person to defend himself must be
adequately protected.
It is, however, axiomatic that a Court shall not order a roving inquiry. It must have sufficient
materials before it to enable it to exercise its discretion. And further court held that,
8 AIR 2003 SC 3450

If despite an order passed by the Court, a person refuses to submit himself to such medical
examination, a strong case for drawing an adverse inference would be made out Section 114 of
the Indian Evidence Act also enables a Court to draw an adverse inference if the party does not
produce the relevant evidences in his power an possession. And the Honble court, in its
concluding judgement held that.
Passing of such an order (of medical examination) by the court would not be in violation of the
right to personal liberty under Article 21 of the Indian Constitution
However, the Court should exercise such a power if the applicant has a strong prima facie case
and there is sufficient material before the Court. If despite the order of the court, the respondent
refuses to submit himself to medical examination, the court will be entitled to draw an adverse
inference against him.
In this case, the judiciary has narrowed down the concept of privacy and has held that, just
based on privacy, the medical examination cannot be exempted, but there has to be proper reason
for refusing to go through the medical examination.
The judiciary has not only, in the present case, has tried to protect the fundamental rights, but has
also seen to it that, the new scientific investigations, takes place, so that they might be helpful to
the criminal justice system.
For taking this middle path, by the judiciary, the only reason is that there are advantages as well
as disadvantages, in DNA profiling.
Advantages:
1. Increased likelihood of finding assailants in criminal offences, especially violent and
sexual assaults.
2. Identification of victims, in mass terrorist attacks etc.
Disadvantages:

1. It violates fundamental rights, of right to privacy, especially when DNA profiles are taken
from people, who have nothing to do with a particular criminal offence.
2. Sometimes, the finding of DNA tests, may lead to false implication of person in a crime
and there are chances of error.
3. DNA tests, eventually might lead to certain illness and the tests might sometimes be
misused.
For the successful incorporation of the scientific techniques in our country, various scientific and
legal reforms are required. There are many judgments which contradict with each, due to lack of
proper legislation. The Judges are sometimes confused, whether to upheld the fundamental rights
under Article 20 (3) or to rely upon the scientific investigations.
The present 2012 draft Bill, based on Human DNA Profiling Bill 2007, is one of initiative taken
by the parliament, to provide guidelines for DNA testing. The bill specifies the list of instances
for human DNA test it also lays down the sources of collection, lays down guidelines for storage
and destruction of biological samples, and also the standards and procedures for establishment
and functioning of DNA laboratories and DNA Data Banks.

The current 2012 draft Bill is missing critical safeguards, which are essential protecting
individual rights. For example, individuals are not permitted a private cause of action for the
unlawful collection, use, or retention of DNA, and individuals do not have the right to access
their own information stored on the database.9 These are significant gaps in the proposed
legislation as it restricts the rights of the individual. It is unclear if DNA profiles from all the
listed offenses will be stored on the database. If it is the case that the DNA profiles will be stored,
it would make the scope of the database too broad.

9 Elonnai Hickok, Rethinking DNA Profiling in India, Vol- XLVII No. 43, October 27, 2012.

In conclusion, India could benefit from having a legislation regulating and harmonising the use
and collection of DNA samples for crime-related purposes. The current 2012 draft of the Bill is a
right step. The 2012 draft draws upon best practices from the US and Canada, but could also
benefit from drawing upon best practices from countries like Scotland, who follow10:
1. Limiting the scope of the DNA database to include only samples from a crime scene for
serious crimes and not minor offenses.
2. Requiring the destruction of DNA samples once a DNA profile is created.
3. Defining when a court order is needed to collect DNA samples.
4. Defining when consent is required and is not required from the individual for a DNA
sample to be taken.

10 Ibid.

NACRO ANALYSIS
Narcoanalysis, used for the first time by a Dallas obstetrician in 1922, House concluded that a
patient under the influence of scopolamine cannot create a lie ... and there is no power to think
or reason 11 and was coined by Horseley.

The basic principle is that the person under the influence of barbiturates, his imagination is
controlled by leading him into semiconscious state which becomes difficult for the person to lie
and his answers would be restricted to facts he is aware of. 12There are guidelines issued by
NHRC regarding the method of using the Narco and the Magistrate is preferred to present and
the police officers are not authorized to use it. 13 Moreover in Selvi v. State of Karnataka, 14 stating
that experts or doctors are morewilling to cooperate with the police in investigation if there is an
order of a Magistrate to that effect. However, the case does not stipulate the consent of the
subject as a mandatory prerequisite for administration of the test.

It was first used in India in year 1936 by use of narcotics to induce trance like state in order to
extract facts, whereas the first Narco analysis took place in FSL, Bangalore over an person who
was associated in committing offences by Veerapan in 2001. 15 And then in the Godhra carnage
Probe 2002 followed by Abdul Karim Telgi case in Bangalore, Nithari Killings case, Mumbai
blast Case then very recently it was in the lime light in the case of Arushi murder case where the
11 House, R. E. The use of scopolamine in criminology. Texas St. J. of Med., 1922, 18, 259.
12 Kumari, S. Kusuma, Narco Analysis Right to Self Incrimination vs. Public Interest, (2007) Cri LJ (June) pp.
137- 141, All India Reporter, Nagpur, 2007. p.138.

13Teena Thacker, “UN Sees Narco-Analysis As Torture”, http://www.expressindia.com/latestnews/UNSees-narcoanalysis-as-torture/321986/.

14 (2004) 7 Kant LJ 501.

15Bannur Muthai Mohan, “ Misconceptions About Narco-Analysis”
http://www.issuesinmedicalethics.org/151co07.html.

Compunder and Several other suspects. This clearly shows that this has been used where the
case is of public interest or large public outcry. Moreover we will be looking into stances where
this Narco analysis has been helpful.

Narco Analysis has basically been helped in granting Bail Applications, considering the
judgment of a Sessions Court in Faizabad in Uttar Pradesh accepted the report of a narcoanalysis test, stating that it is evidence which can be relied upon, to reject a bail application in
respect of a murder case.16
NACROs Admissibility in Court
The four High Courts wherein the admissibility is upheld are mentioned below:
The Division Bench of the Bombay High Court in case of Ramchandra Reddy v. State of
Maharastra17; The Karnataka High Court in case of Smt. Selvi 18 and Ors. v. State ; the Bombay
High Court in case of Arun Gulab Gavali v. State of Maharastra19 ; the Madras High Court in
case of Dinesh Dalmia v. State20; and the Andhra Pradesh High Court in case of K.
Venkateshwara Rao, S/o K. Vijaya Simha, Hydrabad v. State of A.P. Decided 21on 30th August,
2007 in Criminal Revision Application No. 1402 of 2006 have taken a view that by
performing/conducting the Narco Analysis Test/Brain Mapping Test on the accused person,
at the stage of investigation do not violate the constitutional protection guaranteed under
Article 20(3) and 21 of the Constitution of India. In all the aforesaid cases, the Courts have
16U.P. Court Admits Narco Report As Evidence”, 20-01-2014, http://www.nerve.in/news:253500170205.
17 2004 ALL MR (Cri) 1704
18 Sup note-4
19 2006 Cr.L.J. 2615
20 2006 Cr.L.J. 2401
21 2007 Cr.L.J. 1402

also considered the need of such scientific tests by observing that it is a need for the day for such
a scientific tests.

NARCOs Criticism
Art. 20(3) which embody this privilege reads, No person accused of any offence shall be
compelled to be a witness against himself.22

It also goes against the maxim Nemo Tenetur se Ipsum Accusare that is, No man, not even the
accused himself can be compelled to answer any question, which may tend to prove him guilty
of a crime, he has been accused of.

Section 45 of the Indian Evidence Act, 1872: It reads:

When the court has to form an opinion upon a point of foreign law, or of science, or art, or as to
identity of handwriting or finger impression, the opinions upon that point or persons especially
skilled in such foreign law, or of science, or art, or as to identity of handwriting or finger
impressions are relevant.23

However this section is silent on other aspects of forensic evidence that can be admissible in
court in criminal proceedings.
It has been held in the authority in Nandini Satpathy v. P.L. Dani24 as follows:The phrase 'compelled testimony' must be read as evidence procured not merely by physical
threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring
interrogative prolixity, overbearing and intimidatory methods and the like - not legal penalty for
22 Constitution of India
23 Sect 45 of Indian Evidence Act, 1872
24 1978 AIR 1025 1978 SCR (3) 608

violation. So, the legal perils following upon refusal to answer, or answer truthfully, cannot be
regarded as compulsion within the meaning of Article 20(3).
There for it clear that this particular authority cannot be used to third decree methods especially
scientific tests to unravel mystery. Moreover in the case of Selvi 25 it is clearly stated that
NARCO is not admissible but it has to be looked whether it shall be admissible if corroborated.

Corroboration of NARCO evidence and its admissibility

In many cases Court has held that the expert evidence may be taken into consideration if it is
Corroborated.
Corroboration is evidence tending to confirm some fact of which other evidence is given.
Obviously the more corroboration is present, the easier it is to prove a fact. In Director of Public
Prosecutions v. Kilbourne26 Lord Simon stated:
Corroboration is therefore nothing other than evidence which "confirms" or "supports" or
"strengthens" other evidence ... It is, in short, evidence which renders other evidence more
probable.
In Raj Kumar v. State 27
As a matter of fact courts do not ordinarily base their decisions on expert advice only, unless it is
supported by other external and internal. The report of an expert witness if proved by its author
can be taken into consideration unless the same is not corroborated by his statement before the
Court.
In M. Durga Pradesh, Special Assistant, Syndicate Bank v. State of A.P., 28 the Andhra Pradesh
High Court observed as under:25 (2004) 7 Kant LJ 501.
26 [1973] A.C. 729
27 [2005 CrLJ 1322 (J&K)].

The opinion of an expert in writing is the weakest and the least reliable evidence and that it is
not at all safe to base conviction upon the opinion of writing expert alone. Courts have refused to
act upon the evidence of expert unless it is corroborated by independent evidence. In a catena of
decisions, it was ruled by the Apex Court that it would be highly unsafe to convict a person on
the sole testimony of an expert. There fore the evidence of the expert (PW-33) who deposed in
Court basing on the opinion given by him earlier, cannot be said to be a conclusive proof. It is so
more particularly because of the fact that the said evidence is not corroborated by any
independent evidence.

Is there a need for NACRO test?

It is well established that the Narco when substantiated by Corroborated evidence it shall be
admissible which is made clear through various precedents. But there are many circumstances
when the Corroboration of evidence is not so easy. There are various numerous judgments there
has been prominent debate in a case related to Scientific evidence where the latest and the most
relied judgment of Selvi is emphasized and the judgment goes against the Scientific Test.
Whether these needs to be changed since sea change in the social scenario, scientific criminal is
abroad, cyber crime, the nacro analysis is rapid and certain.
As per the Recommendations of of National Criminal Justice System Policy headed by Prof. N.
R. Madhavanan the need of29 some changes such as The evidence Act may need to be amended to make scientific evidence admissible as
substantive evidence rather than opinion evidence and establish its probative value, depending on
the sophistication of the concerned scientific discipline. Scientific techniques and procedures
used have to be validated by appropriate agencies and professionally recommended for
acceptance as evidence.
28 2004 CrLJ 242
29 Sharma, B. R., Scientific Criminal Investigation, 2006 Edition, Universal Law Publishing Co. Pvt.
Ltd., Pg. 6

There is urgent need for integrated, planned and co-ordinated development of the forensic
capabilities of those institutions if they were to make a difference with quality and quantity of
criminal investigations and crime control strategies in the country. Criminal justice in the
changed scenario demands it and the country with its growing economy deserves it.30
Moreover in the case of Santokben Sharmanbhai Jadeja v. State of Gujarat, 31 the court has also
focused on the merits of the Nacro and other scientific test such as:
The crime has been rapidly increasing for the past years and there is urgent need for other
scientific test to speed the trail process and improve the efficiency.

he field of criminology has expanded rapidly during the last few years and the demand for
supplemental methods of detecting deception and improving the efficiency of interrogation have
increased concomitantly.
Since Sect 161 of CrPC enable police to under such investigation and courts feels there that it is
the duty of the person to help to find the culprit and without cooperation the task would be more
difficult.
Withholding such information cannot be traced to the right to privacy, which itself is not an
absolute right.32
It is the statutory duty of every witness, who has the knowledge of the commission of the crime,
to assist the State in giving evidence.33
Now-a-days there is large chaos since there are numerous pending criminal cases pending in the
court due to lack of efficient evidence when all other alternative remedies are exhausted by the
30 Shashwat Bajpai Narco analysis and the Constitution available on www.
indlawnews.com(visited on 15th september09)

31 2008 Cri. L J 68
32 State v. Dharmapal MANU/SC/0260/2003
33 State of Gujarat v. Anirudha Singh MANU/SC/0749/1997

police or the investigation agencies. So there are situations when even the innocent is also being
subjected to victim of law. SO when there is no other resort in investigation these should taken
into consideration by the courts instead of looking for corroborating such evidence.
But when you refer to applicability of these tests in the scenario of crimes relating to terrorism,
human danger it is well established it shall be taken as evidence.
The US investigation in 11th Sept 2003 allowed the use of NARCO on the accused Abu Zubayda
where key confessions where made and considered as admissible evidence. In pursuance of this,
it may be seen from a book entitled Confessions of a terrorist by Gerald Posner [2003] that
US administration privately believes that the Supreme Court implicitly approved using such
drugs in matters where public safety is at risk.34

34 S.Malini & B.M.Mohan Forensic Science Laboratory, Bangalore, Narco Analysis, available on
www.bprd.gov.in/rightreaddata/mainlinkfile/file1536.pdf (visited on 19th september 09)

CONCLUSION
Crime rates in our country have increased drastically over a period of time. New methods of
committing offence like murder, rape, burglary etc. are been used by the offender and the old
techniques of finding the reason of crime by the police is outdated and in present time is of no
use at all, then during these kind of situations comes the role of Forensic science to play, which
helps in the working of legal system and one of those forensic investigations, which is providing
a great help is DNA test and NARCO Analysis.
DNA tests, have helped the judiciary in providing the justice to the parties to a case. They have
helped in providing justice to the rape victim in Goutam Kundu v. State of West Bengal & Anr35
and have also helped in solving the murder case, where it was first used in murder trials in
Virginia of Timothy Wilson Spencer, in the United States
But DNA tests have also been criticised for violating the Fundamental rights and privacy of an
individual. It has been said that these tests leads to wrong results, which leads to an innocent to
be convicted and these test results are also been misused.
With these pros and cons in DNA profiling there is an immediate need for a legislation, which
will help the judiciary to take a proper stand in this regard. The legislation should not just aim at
protecting the Fundamental rights but also strives to make best use of the scientific investigation.
NACRO Analysis is where helpful in tracing the truth easily and efficiently but sadly the same
evidence is not accepted in the court, the same is accepted when corroborated evidence is added.
But the same shouldnt be the case since the crimes these days have been complicated and tons
of cases are pending and people on the other hand are craving for justice, for these people out
this would be efficient to provide speedy trail. The author is not against the principle that the
persons shouldnt be compelled to give evidence against them or other, but here the point is
regarding efficient remedy when there is no other resort to solve those cases. So, there should
some amplified piece of recommendations to be followed before investigation as provided by

35 (1993) 3 SCC 418.

NHRC and the some stipulations as to when such evidence can be under taken as evidence and to
judge the admissibility.