CHAPTER-4

EVOLUTION OF EXPERT OPINION IN CRIMINAL LAW AND

USE OF SCIENTIFIC TECHNIQUES

4.1 INTRODUCTION

"Culibet in sua arte perito est Credendum"1

Our modern society is more dynamic and everything is undergoing a rapid

change.2 With the progress of Science and technology, crimes have become more
complex in nature. It is of common knowledge that it is the rule of Law to curb
offences and bring the guilty to justice. Therefore, this situation has inevitably led to
the need of associating Scientific evidence and testimony of Expert in Criminal
Trials and prosecutions. Some Scientific principles, Laws, theories are so well
established that the court may take judicial notice of them, without the introduction
of expert evidence. As the Scientific basis for expert evidence moves away from the
clearly proven and generally accepted areas of sciences, there the courts are called
upon to examine the evidence and determine its reliability and hence it admissibility.

The ancient world did not have standardized forensic practices, which assist
criminals in escaping punishments. Criminal investigation and trials relied on forced
confessions and witness testimony. However, ancient sources contain several
account to techniques that fore shadow the concepts of forensic science that is
developed countries.3

In criminal investigation, trials are primarily concerned with Forensic

Science materials. It embraces all branches of science and applies to Law.
Originally, all the techniques were borrowed from the various scientific disciplines
like chemistry, medicines, surgery, biology and mathematics. But in the past few

1
Credence should be given to one skilled in his peculiar profession" referred by Sir Edward Coke,
Institutes of the Law of England or a comment upon Littleton at p. 125 quoted in Herbert Brown,
A Selection of Legal maxim 572 (T&J.W. Johnson 1854).
2
"The Role of Forensic Science in the Investigation of Crime". The Indian Journal of Criminology
and Criminalistics Vol. XXIX Issue No.1 Jan-April 2008, p. 1.
3
Schafer, Elizabeth D (2008) "Ancient Science and forensic" in Ayn Embarseddon, Allan D. Pass
(eds). Forensic Science. Salem Press p. 40 ISBN 978-1-58765-423-7.

145
years, it has developed not only its own techniques but also its own branches, which
are more or less exclusive domain of forensic science.4

Forensic science in today's world is an advanced scientific technique which

is used in criminal and civil investigation it is capable of answering important
questions and forms an integrated part of Criminal Justice System.

Therefore, the concept of forensic science is a new in India. It's the

application was known to Indians as "Trija" and introduced centuries ago. Its
detailed Literature was written over 2300 years ago in the Kautilya Arthashasthra.5

Forensic science plays an major role in assisting the courts in reaching the
conclusion by providing them objective evidence possible. Such evidence can be
pivotal in crimes, where usually only the perpetrator and victim are present, and are
certain of what happened. Forensic science describes the science of associating
peoples, places and things involved in criminal activities. These scientific disciplines
assist in investigating and adjudicating Criminal and Civil cases.6

Forensic science has now become one of the Limbs of Judicial system. There
is urgent and widespread need for the application of forensic science in the Criminal
Justice delivery system. The society is undergoing drastic social changes. India has
changed from a colonial nation to a democratic republic. Therefore, Forensic science
has become indispensable in the dissemination of Justice because of the failure of
the old order, reliability of its tools and techniques and the ever availability of the
wherewithals of its assistance. It has to be utilised on a much larger scale that is
being used in our criminal justice system today, if it is to serve the society
effectively.

The expert witness performs two primary functions; first , scientific function
of collecting and evaluating the evidence and the second , is the forensic function
which is to communicate the opinion and its bases to the judge and jury. In Criminal
case, especially based on circumstantial evidence, forensic science plays a pivotal

4
Dr. B.R. Sharma, "Forensic Science in Criminal investigation and Trials" (Universal Law
Publishing Co. New Delhi, 4th Edn.)
5
Nivedita Grover, Isha Tyagi, Development of forensic science and criminal prosecution in India,
International Journal of Scientific and Research Publications, Vol. 4 Issue 12, Dec. 2014.
6
http://researcherclub.org/2014/09/importance-of-forensic-science-in-law-astudy -/Visited on
12.02.2015.

146
role which helps in the identifying the suspect and to ascertaining the guilt or
innocence of accused.7 Emerging new types of crimes and their level of
sophistication, the traditional methods and tools have become outdated which is
necessary of strengthen the forensic science for crime detection.8

Forensic Science and Other States

In India, there is an adversarial system of Justice Medical Evidence is

admitted only, when the expert gives an oral evidence under oath in the court of
Law. Forensic Law is law which is not in force in India. While they are not
conversant with Foreign Law, Opinion of experts on foreign Law are therefore
allowed to be admitted. Foreign law must be proved like a fact. 9 Again, in the case
of Khoday Gangadara Sah v. A Swaminanda Mudalik & Ors,10 The judgment of the
highest tribunal of that country is the best evidence. Such binding judgments should
be the bible of a judge and there should not be any deviation.

In OMA @ Omprakash & Another v. State of Tamilnadu,11 it was held that

expert evidence qua a Law of Land cannot be admitted where a particular law is the
law of the Land. It is the duty of courts themselves to interpret the law of the land
and apply it and not to depend on the opinion of witnesses, however learned they
may be. It would be dangerous to delegate their duty to witnesses provided by either
party. The opinion of skilled witness cannot be received when the inquiry relates to a
subject which does not require any peculiar habits or course of study to qualify a
man to understand it.

4.2 DEFINITION OF EXPERTS

According to Dictionary Meaning, "Expert is a person who is skilled in any

art or science”.
12
According to Black Law Dictionary "Men of science educated in the art
or person possessing special or peculiar knowledge, acquired from practical

7
http://legal_dictionary, the freedictionary.com/ scientific + evidence (visited on 21.01.2015).
8
Dharam Deo Yadav. State of UP 2014(3) RCR (Cr) 396 2014 (3) All. L.J. 122.
9
Balkrishna Das Aggarwal v. Radha Devi & Others AIR 1989 All 133.
10
AIR 1926 Mad 218.
11
Yashpal Chand Jain, "Thumb impression identification and expert evidence", Ch.6 Expert
testimony and their evidence" , p. 120.(Bright Law House, New Delhi,).
12
Garner B.A. (Editor), Black Laws Dictionary, (7 th Edn, West Publishing Co. 1999).

147
expertance. "In simple words, the person who is skilled or a specialist in any subject
is known as an expert of the said subject.13

According to Powell, "An Expert witness is one who has devoted time and
study to a special Branch of Learning and this, is especially skilled on the points on
which he is asked to state his opinion. His evidence on such point is admissible to
enable the tribunal to arrive at a satisfactory conclusion.14

The US Supreme Court has defined an Expert as, "The term is generally
used to designate a person who possesses knowledge and experience not possessed
by mankind of General.15

The Madhya Pradesh High Court16 has described an Expert as

"An expert is one who has acquired special knowledge, skill or experience in
any science, art, trade or profession; such knowledge may have been acquired by
practice, observation or careful studies."

Expert Legal Definition A witness with a defined area of expertise.17

Foreign law

In R v. Abbey,18 Justice Dickson of the Supreme Court of Canada wrote,

"An expert opinion is admissible to furnish the court with scientific information
which is likely to be outside the experience and knowledge of a judge or jury."

In R v. Mohan,19 Justice Sopinka of the Supreme Court of Canada

wrote."Admission of expert evidence depends on relevance; necessity in assisting
the trier of fact; the absence of any exclusionary rule; (and) a properly qualified
expert.

13
www.wikipedia.com
14
Powell, Ejar, Medical Evidence and Gist on Non-Medical Evidence; Ch.II, 3rd Edn., Ashoka.
15
U.S. Farris v. Interstate Circuit, CCA Tex, 116 Fxt, 768; 31A CJS 524.
16
Collector, Jabalpur v. A.Y. Jehangir, AIR 1971. MP 32, S. 45 of IEA, 1872.
17
http://www.duhaime.org/Legal Dictionary/E/Expert witness.asp(visited on 7.5.2010).
18
R. v. Abbey, (1982) 2 S.C.R. 24
19
R. v. Mohan, (1994) 2 S.C.R. 9.

148
 In Pearce v. Ove Partnership Ltd20, Justice Jacob of the High Court of
Justice of England and Wales noted as "Most (but not all) expert witness belong to
some form of professional body or institute."

Thomas Woods aptly remarked, "The only reason that an expert is permitted
to give opinion evidence is because the facts, that form the basis of the opinion are
beyond the kin of the lay observer. Thus, in admitting expert opinion into evidence
and giving it weight, the court (to that extent) delegates, its fact finding function to a
witness. 21 "

Indian Law:

The court seeks the opinion of an expert. When the court has to form an
opinion, upon a point of foreign Law, or of science, or art, or as to identify
handwriting or finger impression, the opinions upon that point, of persons, specially
skilled in such foreign law; science or act, or in questions as to identity of
handwriting or finger impressions are relevant facts". Such persons are called
experts.22

The opinions of experts upon the question(a) whether the symptoms

exhibited by A commonly show unsoundness of mind, and (b)whether such
unsoundness of mind usually renders ,person incapable of knowing, the nature of the
acts ,which they do, or of knowing that what they do, is either wrong or contrary to
law, are relevant. (c) The question is, whether a certain document was written by A.
Another document is produced which is proved or admitted to have been written by
A. (d)The question whether the two documents were written by the same person or
by different persons, are relevant.

This section is an exception to the rule as regards the exclusion of opinion

evidence. Opinion of experts are relevant upon a point of (a) foreign Law, (b)
Science, (c) art, (d) identity of handwriting and (e) finger impressions.

20
Pearce v. Ove Partnership Ltd (2001) EWCH 455.
21
Wood, Thomas, S., Impartial Expert or Hired Gun: Recent Developments, 60 Adv. 205 (Mar
2002).
22
Section 45 of Indian Evidence Act.

149
 Therefore, an expert to be competent as a witness need not have acquired his
knowledge professionally, it is sufficient as far as the admissibility of the evidence
goes, if he had made a special study of the subject or acquired a special knowledge.

An expert is anyone with special knowledge, skill, experience, training or

education in a particular field or discipline that permits them to testify to an opinion
that will aid a judge or jury in resolving a question that is beyond the understanding
or competence of lay persons. An expert witness is an expert who makes his or her
knowledge available in a court to help it understand the issues of a case and reach a
sound and just decision.23

There is natural tendency on part of expert witness to support the view of the
person who called him. Experts usually are shown to be remunerated witness , who
makes making themselves available on hire, to pledge their own favour, of the
party paying them 24.

"Opinion Rule"

Witnesses are considered as fact reporting agents of the legal machinery and
their role in the adjudicating process, is to inform the Courts of Law. In the Law of
Evidence, 'opinion' means any inference from observed facts.25 However, in some
situations it will be difficult to distinguish between fact and opinion because there
are borderline cases in which the evidence of fact is mingled with the evidence of
opinion.

The witness is superfluous wherever inferences and conclusions can be

drawn by the Jury26. Expert evidence is an evidence given by experts who had some
special knowledge on matters not within the common knowledge of the Court. Court
can assume whether a particular person has a capacity to express an opinion from
the experience, he secured, by his habitual activities. or capacity.

23
http://www.sew.org.uk. (visited on 9.1.2014).
24
Gulzar Ali v. State of H.P. (SC) 1998 (2) RCR 571; CCJ 1998(2) 244.
25
Lewis Wolpert, 'What Lawyees need to know about Science" in Helen Reece (ed.) Law and
Science (Oxford University Press 1998) P. 289; MCL Emmerse, "The Understanding of
Technical education" 68. Austi. L.J. 875 "Science Court" 75 Mich. L. Rev. 1062.
26
Wigmore, Evidence (Chadbown rev. 1979).

150
 According to Lawson, "Expert is a person who has special knowledge and
skill in a particular calling to which enquiry relates27.

"Expert opinion" The Court interprets facts which have been established as
admissible evidence. It would appear that the opinion being preferred by the expert
was based upon facts which were contrary to those which had been put forward
earlier in the trial.28

It was held that an expert, in order to be competent as witness, need not have
acquired his knowledge professionally, it is sufficient, so far as the admissibility of
evidence goes, if he has made a special study of the subject or acquired experience
therein29. The opinion of a witness as a general rule is irrelevant if ipso facto it is
admissible in evidence.

The evolution of the concept of "Expertise' is one of the path breaking

achievements of the legal system. Expertisation involves an interaction between
different subjects. As the consequence of advances, in science and technology, there
has been an increasing necessity for the Court of Law, to rely on expert testimony.

4.3 IMPORTANCE OF EXPERT WITNESS

The use of expert testimony in the courtroom has become a common

practice. Experts, in the form of Medical doctors, appears to have been first called
upon to advice Judges at the old bailey. Some Six hundred years ago, but it was not
until around 1620, that a jury was furnished with the expert testimony for the first
time.30 It was a first challenge to an expert witness, testifying on behalf of the
defendant.31 However, in the later part of the 18th century, that the role of the expert
witness was finally shaped, as counsel came to participate more and more in
questioning and cross examining expert witness. In the twentieth century,

27
Lawson, Evidence, Rule 2, Section 440 as qu.oled in Johan Woodroffe and Syed Amir Ali, Law
of Evidence (16 Edn, The Law Book Co Pvt Ltd, 1996).
28
Dr. Robert N. Mole, "The Role and function of the Expert witness"
http://netk.net.ar/Reports/Expert witness. asp( visited on 3-3-2014).
29
1976 (LW (Cri) 38.
30
Expert testimony : "The Forensic psychologist as expert witness" 2007 Cr. L.J Jan 2007 Journal
p.17.
31
Landman S. of Wilches, Madmen and product Liability : A Historical Survey of the use of the
expert testimony, Behavioural Sciences and the Law 131-57 (1995).

151
psychology also came to be recognized as a valuable discipline in the administration
of Civil and Criminal justice.

Therefore, testimony by an expert witness can have a significant effect on the

outcome of a trial. Where parties to a dispute in a criminal trial, call their own expert
witnesses, the question may, then arise as to admissibility of their opinion as expert.

Mr. Cormick has given the best definition of Expert testimony as :

"To warrant the use of expert testimony then, two elements are
required. First, the subject of the inference must be in business or
occupation, as to be beyond the ken of the average layman, and
the second one, is having a special in skill or knowledge and
appear to give his opinion or inference for truth 32

Virtually, all the cases require scientific expertise or technical knowledge

need expert witnesses and their testimony. Areas of the expert evidence is generally
set out in the three forms as required:

(1) Pure opinion of expert evidence.

(2) Scientific expert.

(3) Non scientific evidence.

An expert is not a witness of fact .His evidence is really of an advisory

character. It is the duty of an expert witness is to furnish scientific criteria for testing
the accuracy so that, judge may be able to conclude the case. Expert evidence, is
only as piece of evidence and weight to be given to it has to be judged along with
others. Evidence of this nature is ordinarily not conclusive. Such evidence as
substantial is not taken into consideration ,unless corroborated by other evidences.

In Sri Chand v. Smt. Ram Rati Devi33 ,when the court permits the evidence of
an expert to be brought on record, on a technical matter, it does not abdicate its
function to judge for itself, whether the opinion of expert is correct or not on a
matter in issue. The question of whether a witness is an expert is a question of fact

32
L.R.C. Haward, "Forensic Psychology Ch. 19 Expert Evidence p. 166-167 (University of
Survey, Batsford Academic and Educational Ltd, London ).
33
AIR 1980 All 294.

152
for the judge. A particular or special knowledge of a subject that has been acquired
through a Scientific study or experience can qualify a witness as a expert.34

In Ranjit Singh Brahmajeet Singh Sharma v. State of Maharasthra35, the

Apex Court held that, "the admissibility of a result of scientific test , will depend
upon its authenticity." Therefore, importance of expert witness is to aiding a Judge
to determining the extent of liability, which may vary due to such testimony that
imposed on an offender. Expert witness have an advantage of a particular skill or
training since Judges are not properly equipped to draw inferences from facts in
certain technical matters. Expert evident is sought most obviously in disputes
regarding detailed scientific or technical knowledge.

The purpose of an expert opinion is primarily to assist the court in arriving at

a final conclusion. Such report is not binding upon the court where the eye witnesses
and other prosecution evidence are trustworthy, have credence and are consistent
with the eye version given by the eye witnesses, the court will be well within its
jurisdiction to discard the expert opinion. In such case, court has to critically
examine the basis, reasoning, approach and experience of the expert ,to come to a
conclusion as to which of the two reports can be safely relied upon.36

4.4. SCOPE OF EXPERT OPINION

As per Section 50 in Order to admit any evidence under the Indian Evidence
Act, ie (1) The person must be proved to have special means of knowledge; (2) (a)
the opinion alone is evidence; (b) the opinion as expressed by conduct only is
evidence; or in other words, (i) conduct only can be given in evidence; (ii) from the
conduct given in evidence, the court is to see whether it is the result of any opinion
held by the person; and (3) the opinion which is relevant must be the one as to the
existence of the relationship. The opinion may be of a member of the family, or an
outsider, it is enough if he has his special means of knowledge on the subject.37

34
Cattermole, G.A; The Psychologist as an Expert witness, in M. Nixon (ed.), issues in
psychological practical (Melborne: Longman Cheshire, 1984) (SC) (H).
35
2005 Cr LJ 2533 (SC) (H).
36
Dayal Singh v. State of Uttrakhand 2012 (3) RCR (Cal) 949.
37
Dalip Kumar Jha v. State of Punjab 2015 (1) RCR (Cri) 1 (P & H).

153
4.5 ADMISSIBILITY AND CREDIBILITY OF AN EXPERT OPINION

An expert is not a witness of fact. The Court, normally looks at an experts

evidence given by him with a greater sense of acceptability, but it is equally true
that the courts are not absolutely guided by the report of the experts, especially if
such reports are perfunctory and unsustainable. The purpose of an expert opinion is
primarily to assist the court in arriving at a final conclusion but such report is not an
conclusive one. This court is expected to analyze the report, read it in conjunction
with the other evidence on record and then form its final opinion as to whether such
report is worthy of reliance or not.38

An expert's opinion is admissible to furnish the court a scientific opinion

which is likely to be outside the experience and knowledge of a Judge.39 This kind
of testimony, however, has been considered to be of weak nature and expert is
usually required to speak, not of facts, but of opinions.

In State (Delhi Administration) v. Pali Ram40 , where the Court held that no
expert would claim that he could be absolutely sure that his opinion was correct,
experts depend to a great extent upon the materials as put before him and the nature
of question put to him."

It was held that the value of expert opinion rest on the facts on which it is
based and its competency for forming a reliable opinion. The importance of an
opinion is decided on the basis of the credibility of the expert and the relevant facts
supporting the opinion so that its accuracy can be cross checked.

In Musheer Khan @ Badshah Khan & Anr. v. State of Madhya Pradesh41, it

was held that the word 'admissibility' has very rarely been used."

The infirmity of expert evidence consists in this that it is mostly matters of

opinion and is based on facts detailed by others or assumed facts or opinion against
opinion and experts are selected by parties calling them. Expert evidence is
however, of value in case where the courts have to deal with matters beyond the

38
Tomaso Bruno v. State of U.P. 2015 (1) RCR (Cr) 678 (SC).
39
Tika Ram & Anr v. Daulat Ram & Ors 2013 (14) CCC 788 All P. 791.
40
AIR 1979 SC 14.
41
2010 (1) Apex Court Judgments 570 (S.C.); 2010(1) Criminal Court Cases 737 (SC) :AIR 2010
SC 762.

154
range of common knowledge and they could not get along without it, in matter of
scientific knowledge or the facts have come within the personal observation of
experts."

Experts usually come with a bias on their minds to support the cause in
which they are embarked, little weight will be in general attached to the evidence
which they gave, unless it be obviously based on sensible reasoning. 42"

In Mt. Titli v. Alfred Robert Jones43, the court was observed." The opinion of
an expert by itself maybe relevant but would carry little weight with a court unless it
is supported by a clear statement of what he noticed and on what he based his
opinion. But, the court see all the materials which induced him to come to his
conclusion, so that court, although not expert, may form its own judgment on their
materials.” An admissibility of the expert evidence as an exception is being
summered when tendered the expert evidence is as given below44 :-

- It must be demonstrated that there is a field of specialized knowledge and;

- that identified aspect is of special training study or experience;

- which wholly or substantially based on the witness expert knowledge;

- Based on 'observed' facts

- 'Assumed or accepted facts' identified and proved.

The subject matter of an expert testimony must form a body of knowledge or

experience which is sufficiently organized or recognized to be accepted as a reliable
body of knowledge or experience.45

In Ratnabai v. Belarmine Joseph 2014 (4) RCR (Civil) 426 (Mad), It was
held that Section 243 of Cr.P.C provides a valuable right to the petitioner / accused
to examine defence witnesses. If the Petitioner / Accused desires to examine an
expert and to obtain his opinion in a given matter in issue, then the opinion of such
an expert is admissible in evidence as 'relevant facts' under Section 45 of Indian
Evidence Act.

42
Taylor, The Law of Evidence" p. 1344 Para 1877.
43
AIR 1934 All 273.
44
Makita (Austrialia Pvt. Ltd. v. Sprowles (2001) 52 NS WLR 705.
45
R. v. Bonython Case (1984) 38 SASR 45 at [467] .

155
 In Purshottam Lal v. State of M.P AIR 1980 SC 1873 , there was a clear
contradiction between medical testimony and the alleged eye witness on this vital
fact. The High Court brushed aside the evidence "the opinion of the doctor on this
aspect of the matter is merely an opinion and not a fact found by him".

Further, Smt. Manorama Servastava v. Saroj Srivasta46 , the Allahabad high

court held that the positive assertion by one expert that signature on will is that of
testator. No positive inference by him that signature is not genuine opinion of first
expert accepted. An expert opinion become admissible in evidence, as it furnishes
the court with scientific information which is likely to be outside the experience and
knowledge of a Judge. Therefore, if on the proven facts available on record of the
case, if a judge can form his own opinion of such facts and can draw reasonable
conclusions based thereon without the help of an expert, the, the opinion of an
expert is unnecessary. The fact that an expert witness has impressive qualification or
achievements does not by itself make his own expertise of matters of human nature
and behaviour, within the limits of normality, any more helpful to a Judge without
the facts in controversy are otherwise proved in the matter. It is, therefore, all the
more important to note that the exercise for securing the expert opinions should be
permitted, for clearing the doubts, if any that the evidence leaves behind.

In Om Parkash v. Baijnath Singh (Dead )and Tika Ram & Anrs represented
by Lrs v. Daulat Ram & Anr,48the decision of the Apex court in this case held that
47

Expert evidence is only a piece of evidence and external evidence. It has to be

considered along with other pieces of evidence. An expert opinion is admissible to
furnish the Court a scientific opinion which is likely to be outside the experiences
and knowledge of a Judge. This kind of testimony however, has been considered to
be of very weak nature and expert is usually required to speak, not to facts, but to
opinions.

In Ramesh Chandra Aggarwal v. Regency Hospital Ltd & Ors,49 held out
that the first and foremost requirement for an expert evidence to be admissible is that
it is necessary to hear the expert evidence. The scientific question involved is

46
AIR 1989 All 17.
47
2013 (3) Civil CC 325 (All);
48
2009 (3) Apex Court Judgment 602 (SC) .
49
2013 (4)Civil CC 78 (All) .

156
assumed to be not with the Court knowledge. The other requirements for the
admissibility of expert evidence are:-

(i) that the expert must be within a recognized field of expertise

(ii) that the evidence must be based on reliable principles, and

(iii) that the expert must be qualified in that discipline

4.6 KINDS OF EXPERT WITNESSES

4.6.1 Medical Opinion

Life as undergone tremendous changes due to the advance of medical

science. The triumph of medical science is seen everywhere in the way of justice and
administration of justice wither it is civil or criminal. According to the great social
and political thinker Bertrand Russel-"Science has changed the face of
administration of justice. It has suspended the skies of evidences, measured the
truthfulness of witnesses and wrested from the criminals many hidden realities".

The criminal administration of the scope and ambit of medical science is not
only limited to human body, medicines and other phenomenon but also extended to
the chemical innovations, investigations, technical analysis, new methodologies
etc.50

In a Criminal trial, the judge has to rely on the knowledge and opinion of
certain experts. So, medical evidence is a part of the expert opinion. Expert
opinions are within the purview of the law of evidence under Section 45 and
Section 46 of Indian Evidence Act.

4.6.1.1 Importance of Medical Evidence

Medical evidence play crucial role in determining various forms of the
crimes perpetrated against the human body. Medical evidence is only corroborative
evidence and it is not a substantive evidence. Medical evidence consists of doctor’s
report of examination, report of the ballistics firearm or fingerprints experts or of
the chemical examiners. The doctors or other experts give oral evidence. The

50
Namrata Shrey “Role of Medical Science in Criminal Administration” Cr.L.J 2006 Vol. 3.
Journal 235.

157
Medical evidence adduced by the prosecution has great corroborative value. It
proves that the injures alleged would be the cause of death.51

The expert evidence given by a medical person aids the court in concluding
the actual reasons of commission of crime. Evidence of death can be obtained
through post mortem report. It becomes helpful in deciding the guilt of the accused.

Witness is not to give his impressions as to state the facts from which he
received them and leave the judge to draw his own conclusions 52. Courts have
always taken the doctors as witness of truth. Even, where a doctor has disposed in
court. 53 The doctors version as to the time of rape and that of prosecution, there is a
gap of some hours. Medical Evidence would not be rejected on that ground alone.
His evidence is to be carried with the conviction of the accused.54If there is doubt
regarding the statement of doctor then the direct evidence is accepted. The opinion
of doctors evidence should not be taken as contradictory.
4.6.1.2 The Value of Medical Evidence in Criminal Trials
Norman J. Observed:
‘The evidence of a medical man, or other skilled witness, however
eminent as to what he thinks or may are may not have taken place
under particular combination of circumstances, however
confidently he may speak, is ordinarily a mere matter of opinion.
Human Judgment is fallible55.
In Naginder Bala V. Sunil Chandra56, The trial judge change to the jury57 was as
follows:-
When a medical witness called is as an expert he is not a witness
of fact. Medical evidence of an expert is evidence of opinion, not
of fact. Where there are alleged eye witnesses of physical violence
51
State versus U.P. V. Mustaq Alam (2007) 11 SCC 215; Jabir V. State of Haryana (2002) 10 SCC
324;2003 SCC (Cri.) 1443; 2003 Cri. L.J 826; Sunil Chandra V. State ; AIR 1954 Cal 305;
However, it is not always necessary to discredit oral testimony if it conflicts with medical
evidence. It depends on the quality of the respective evidence.
52
Dr. Avtar Singh, Principal of Law of Evidence,( Central Law Publication, Allahabad,18th Edn.,
2010).
53
Mayur V. State of Gujarat, A.I.R 1983 SC 66; 1982 Cr. L.J 1972.
54
Partap Mishra v State of Orissa AIR 1977 SC 1307.
55
Queen V. Ahmed Ally 11 Suth WR CR 25.
56
AIR 1960 SC 706; 1960 Cr..L..J 1020.
57
It should be noted that jury system has been dispensed within India. However, the principle
enunciated in this order still holds validity.

158
 which is said to have caused the hurt, the value of medical
evidence by prosecution is only corroborative. It proves that the
injuries could have been caused in the manner alleged and
nothing more. The use which the defense can make of medical
evidence, or any medical evidence which the defence might itself
choose to bring, is to prove that the injuries could not possibly
have been caused in the manner alleged and thereby discredit the
eyewitness. If you believe the eyewitnesses, then there is no
question of having it supported by medical evidence, , no question
of further considering the medical evidence arises at all. The only
question in that case when you consider the medical evidence is to
test the eyewitnesses version as to whether any of the particular
injuries shown in the report can be caused in the manner alleged
by the prosecution. But if you don’t believe the eyewitnesses, then
consideration of the medical evidence in any manner, became
unnecessary”.

The value of medical evidence is caused in the manner alleged only

corroborative relating the injuries. The defence uses medical evidence to prove that
the injuries could not possibly be caused in the manner alleged so as to discredit the
eyewitnesses. Testimony of the eyewitnesses cannot be thrown out merely on the
58
ground, of alleged inconsistency between it and the medical evidence. The
evidence of a medical expert is merely an opinion, which needs corroboration to the
direct evidence in the case.59

4.6.1.3 Expert Witness in Medico-Legal Cases

The Indian Medical Council Act, 1956 states that no person other than a
medical practitioner, enrolled on a state medical register, shall be entitled to give
evidence, at an inquest or in any court of law, as an expert. A medical practitioner is
neither a prosecution witness nor a defence witness, is only an expert witness even
though, he frequently a pairs on the prosecution witness. Medical witness is to be

58
Solanki Chimanbhai Ukabhai V. State of Gujrat AIR 1983 Cr.L.J 882; (1983) 1 Crimes 625.
59
Chimanbhai Ukabai V. State of Gujrat AIR 1983 SC 484; 1983 Cr.L.J 822.

159
tendered within the limits of the science were to assist the court in determining the
truth. So, it may or may not favour the prosecution of the party calling him.60

The Supreme Court held that a medical witness is to assist the court is not a
and the evidence given by him is of advisory character given on the basis of
examination. 61

The question to the expert witness relating to the matter to conclude on the
technical aspects of the case. Those judgment can be based on the opinion of
medical experts. Once the expert opinion is accepted, it is not the opinion of the
medical officer but of the court.

Expert evidence alone will not convince the Court beyond reasonable doubt
unless the same are corroborated the former relating to the injuries, wounds, post
mortem etc.

When a medical person is called as an expert, he is not to witness the facts,

because his evidence is not direct evidence on how an injury in question was done.
He gives his opinion only on probabilities..

4.6.1.4 The Importance of Medical Evidence over judicial precedence -

There are a plethora of judgments to substantiate the opinion of medical

evidence. In serious offences committed against women, such as rape, murder and
dowry burning, the role of medical evidence becomes crucial. It is true that the post
mortem report by itself is not the substantive piece of evidence, but the evidence of
the doctor conducting the post mortem can by no means be prescribed to be
significant.62 It is a settled principle that opinion given by medical witness need not
be the last word on the subject. It can be tested by the court.

It is natural that in the course of his professional duties, he engages in

examination of injuries on the body of a person raped, sodomy, assault, poisoning,
suicide, hanging to observe and certify persons regarding their sanity or insanity.63

60
Mathiharan K, Emergency Medicare: Its Ethical and legal aspect, National Medical Journal of
India, Vol. 17, No.1, January/February, 2004, 31-34 at p.33.
61
Madan Gopal Kakkad V. Naval Dubey 1992 (3) SCC 204 para 34 at pp. 221-222; 1992 SCC
(Cri) 598.
62
Vijay Pal V State Of Delhi 2015 (2)RCR(Crl)557.
63
Dr. P.K. Bhattacharaya (1988), ‘Medico Legal Companion, p.276 , (Allahabad Law House,2nd Ed.)

160
Medical Evidence to be used as Corroborative Evidence

Direct evidence has to be taken into consideration as a primary proof of the

evidence. Whenever, oral evidence is given Medical Evidence should support it. The
significance of the evidence of the doctor lies vis-a- vis the injuries appearing on the
body of the deceased person, have corroborative evidence available on record from
the other prosecution witnesses. When there are inconsistencies in the oral and
medical evidence, the whole case set by the prosecution becomes suspicious, and
then conviction of the accused becomes unsafe.

As direct evidence is inevitable to prove the offence beyond reasonable

doubt. Opinion evidence gets secondary importance. Both direct evidence and
opinion evidence should, coordinate with each other, only then the case of the
prosecution, becomes stronger and the possibility of conviction of the accused
increases. There is no dispute that the value of the medical evidence is only
corroborative. The use of medical evidence to prove, the injuries could not discredit
the eye witnesses.

DNA technology can revolutionize the Criminal Justice System. The

investigating officer collect DNA samples with the help of medical practitioners
from the person accused of rape64.

4.6.1.5 Veracity of Medical Evidence

Veracity of a medical witness is not merely to check upon the testimony. It

is also an independent testimony relating to facts, apart from the other oral
evidence.65 Eye witness armed with stick but the injuries were not defected as blunt
in nature. It was found that presence of the accused at the spot was improbable.66

The medical evidence is usually an opinion evidence67. His evidence does

not prove or disprove the prosecution case.68. The Supreme Court observed that if a
doctor has deposed in Court, his evidence has to be appreciated like the evidence of

64
Section 53A Cr.P.C.
65
Smt. Majindra Bala Mehra V. Sunil Chandra Roy, AIR 1960 SC 706.
66
Sivanmoorthy V. State 2010 (12)SCC 29; 2012 (1) RCR (Criminal) 317.
67
Duraipandi Thevar V. State of Tamil Nadu, AIR 1973 SC 659: 1973 Cr. L.J. 602.
68
Stephen Seneviratne V. Kind, AIR 1936 P.C. 289 at p. 298. 299 : (1936) 37 Cr.L.J 963 Anant
Chintaman Lagu V. State of Bombay, AIR 1960 C 500 at p. 523: 1960 Cr.L.J. 682.

161
any other witness. There is no irrebuttable presumption that a doctor is always a
witness of truth." 69

The Supreme Court further observed that "Medical expert's opinion is not
always final and binding." 70 The nature of the injuries and other relevant evidence,
assist the court to come to its own conclusion.71 The prosecution can use the medical
Evidence in contrast to corroboration and it is to be criticized by the prosecution.72
Where the opinion of a medical witness is contradicted by another medical witness
both of whom are equally competent to form an opinion. The court should normally
accept the evidence of the medical witness whose evidence is corroborated by direct
evidence73 and whose testimony accords with the prosecution version.74

Conflict between the direct evidence and the medical evidence in respect of
prosecution case, constitutes manifest defect.75 The ocular account of the occurrence
was falsified by the medical evidence76.In the case of Jalandhar Mondal v State of
W.B ,the court held that accidental death or strangulation by more than one person
.Injuries suffered by the deceased were fracture of cornea thyroid of bone of both
sides fractures on rib. The court opinion such injuries shown that it is not the
accidental death nut same was caused by the manual strangulation by two or more
than on person.77

If direct evidence of the witnesses to the occurrence is satisfactory and

reliable, it cannot be rejected on hypothetical medical evidence. 78When a witness
alleged that such and such person assaulted the victim with a spear, then it is to be
understood that the spear was used to pierce or puncture the body of the victim.79
When witnesses depose only about the use of weapon, such as sword, spade or

69
Mayur V. State of Gujarat AIR 1983 SC 5: 1982 Cr.L.J. 1972.
70
Awadhesh V. State of M.P AIR 1988 SC 11588: 1988 Cr.LJ. 1154 (Para 10).
71
Brij Bhukhan V. State of U.P., AIR 1957 SC 474: 1957 Cr.L.J. 591.
72
Ashrafi, V. State of UP 2013 (6) RCR (Criminal) 1582.
73
Piara Singh V. State of Punjab, AIR 1977 SC 2274: 1977: Cr.L.J. 1941.
74
Makhan V. State of Gujarat, AIR 1971 SC 1797: 1971 Cr.L.J. 1310.
75
Piara Singh v State of Punjab, AIR 1977 SC 2274: 1977 Cr.L.J 1941.
76
Purshottom v. State of M.P., AIR 1980 SC 1873: 1980 Cr. L.J. 1298: 1980 Cr. L.R. (SC) 668.
77
2011(5)RCR (Crl)779 SC.
78
Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484: 1983 Cr.L.J. 822: (1983) 1
Crimes 625 (SC); Punjab Singh v. State of Haryana. AIR 1984 SC 1233: 1984 Cr. L.J. 921: 1984
(1) Crimes 859; see also Arjun v. State of Rajasthan, 1995 Cr. L.J. 410 (SC): AIR 1995 SC 2507.
79
Mayappa Dhondanna Padeade v. State of Maharashtra, 1961 SCC (Cri.) 790: AIR 1981 SC
173) Hallu v. State of MP, AIR 1974 SC 1936: 1974 Cr, L.J. 1385.

162
Gandasi, normal presumption is that the sharp side of the weapon was deployed. If
witness testifies that the blunt side of the weapon was used, there would be no
question of assuming that sharp side was used. In the instant case, the accused was
alleged to have assaulted with Gandasi, in post-mortem examination, an abrasion
was found. The prosecution witness deposed that the accused used the blunt side of
the Gandasi and his believed. The accused was convicted on the charge of murder.80
Doctors to assess how far it is applicable, to the facts of the particular case.81
Exceptional cases referred to in the textbooks of Medical Jurisprudence cannot be
relied against positive and clear evidence of the case before the Court.82

Where the eye-witnesses account is found credible and trustworthy, medical

opinion pointing to alternative possibilities is not accepted as conclusive. The
evidence must be tested for its inherent consistency and the inherent
improbabilities.83 The medical officer stated that the injuries found on the body of
the deceased could be the result of either two shots or even more than two shots, but
the evidence of eyewitnesses clearly showed that there were two shots. The Supreme
Court held that there was no inconsistency between the medical evidence and the
ocular evidence and the inconsistency deposed by the medical officer was merely a
probability and it was not fatal to the prosecution case.84

In a case where death is due to injuries or wounds caused by a lethal weapon,

it is always the duty of the prosecution to prove by expert evidence that it was likely
or at least possible for the injuries to have been caused with the weapon with which
and in the manner in which they are alleged to have been caused. In that case it was
found doubtful whether- the injuries which were attributed to the accused were
caused by a gun or a rifle. It seemed more likely that they were caused by a rifle than
a gun and yet the case of the prosecution was that the accused was armed with a gun
and in his examination it was definitely put to him that he was armed with the gun.
The Supreme Court held that it was only by the evidence of a duly qualified expert

80
Gurmej Singh v. State of Punjab, AIR 1992 SC 214.
81
Kusa v. State of Orissa, AIR 1980 SC 559; 1980 Cr.L.J. 408, Bhagwandas v. State of Rajasthan,
AIR 1957 SC 589; 1957 Cr.L.J. 889, Sunder Lal v. State of M.P., AIR 1954 SC 28, 1954 Cr.L.J.
257, Pratap Misra v. State of Orissa, AIR 1977 SC 1307: 1977 Cr.L.J. 817.
82
Baldev Raj v Smt. Urmila Kumari Miglani, AIR 1979 SC 879 1979 SCC (Cri) 875.
83
State of U.P. V. Krishna Gopal, AIR 1988 SC 2154.
84
Maghar Singh V. State: of Punjab, (1987) 2 SCC 642.

163
that it could have been ascertained whether the injuries attributed to the accused
were caused by a gun or a rifle and such evidence alone could settle the controversy
as to whether they could possibly have been caused by a fire arm used at such a
close range as was suggested in the evidence.85

The Court is in error when it substitutes its own opinion resting on

conjectural premises for that of the medical experts, regarding the nature of the
inflicting weapon.86It cannot be laid down a general proposition that in the absence
of determination of blood group the find of human blood on the weapon or garment
of the accused is of no consequence.87 The report of the doctor must be filled in the
Court. The contents of the report contained in the affidavit of another person are not
admissible in evidence.88.

In Mani Ram V. State of U.P,89

If the evidence of the prosecution witness is totally by inconsistent with the

medical evidence this is most fundamental defect in the prosecution case and unless
this in consistency is reasonably explained, it is sufficient not only to discredit the
evidence but the entire case.

In Malay Kumar Ganguly V. Sukumar Mukherjee.90

‘Medical science is a difficult one. The court for the purpose

of arriving at the decision on the basis of the opinion of
experts must take into consideration. The opinion must be
based upon a person having special skill or knowledge in
medical science. It could be admitted or denied whether such
an evidence could be admitted or how much weight should
be given thereto, lies within the domain of the court.’

The medical opinion is merely of advisory nature. It is based on the

observations made by the medical officer of the body of the injured and the corpse
after the occurrence has taken place.

85
Mohinder Singh v. State, AIR 1953 SC 415; 1953 Cr.L.J. 1761.
86
State of U.P. v. Shankar, AIR 1981 SC 897: 1981 Cr.L.J. 23 1981 A.L.J.9.
87
Khujji v. State of M.P., 1991 Cr.L.J 2653 (SC).
88
Mohd. Ikram Hussain v. State of U.P., AIR 1964 SC 1625: 1964(2) Cr.L.J. 590 at p.598.
89
(1994) 2 SCC 289 (292). 1994 Cr.L.J 3848.
90
AIR 2010 SC 1175.

164
4.6.2 Dog Tracking Evidence

Investigation of Criminal Cases is also facilitated by use of trackers dogs,

where other evidences are not helping in determining, the guilt of the accused.
During investigation of criminal cases, some of which may not have an apparent
proof of guilt, the police takes assistance of tracker dogs for detection of crime. In
recent times, investigating agencies often use the services of tracker dogs91.

In Babu Magbal Shaikh V. State of Maharashtra92

The Learned Single Judge of High Court analyzed the value, utility and
admissibility of tracker dog evidence. The tracker dog had helped the police in
recovering the bag, clothes of the accused and also led the police to the house of the
accused. Evidence in criminal cases, and in particular ones, where the charges are
serious, undoubtedly must pass the dual test of absolute reliability and infallibility.
Tracker dogs cannot be influenced, is something strongly in its favour, and this
imports this class of evidence, a special blend of acceptability. It is now universally
acknowledged that in detecting drugs, where every other form of human ingenuity
and gadgets are capable of being eluded, it is virtually impossible to avoid detection
by this mode. This has been found to be most reliable and fool proof.
4.6.2.1 Admissibility of Dog Tracking Evidence

In Abdul Razak V. State of Maharashtra93, it was held by the Supreme Court

that tracker dog’s evidence, cannot be likened to the types of evidence accepted
from scientific experts.

Dog tracking evidence is admissible in England and in criminal trials, it is

often used by the prosecution. The learned judge held that it is scientifically
accepted that dogs are rated as extremely intelligent animals and some of their
sensibilities are very highly developed extremely reliable.

Further, held in Abdul Razak case94 the court held that any general rule with
regard to tracker dog evidence or its significance or its admissibility as against an

91
http://www.cfba.co.uk/ witness-information.html( visited on 13-05-2014).
92
1993 Cri LJ 2808; P.R. Thakur “Dog tracking evidence is admissible and relevant provided it is
reliable” 2010 CR.L.J Journal.
93
1970 Cri.L.J 373: AIR 1970 SC 283.
94
Ibid.

165
accused held by way of obiter that the tracker dog's evidence cannot be likened to
the types of evidence accepted from scientific experts describing chemical reactions,
blood tests and the action of bacilli, because the behavior of chemicals, blood
corpuscles and bacilli contains no elements of conscious volition or deliberate
choice.

The evidentiary value of the division bench of the High Court of Bombay in
Pandian Kanappan Nadar V. State of Maharashtra,95 the Evidentiary value of Dog
Tracking evidence as admissible under Section 3 of the Indian Evidence Act, 1872.
In this case, apart from other evidence, the 'chappal' and knife were found near the
place of incident which had been wrapped in paper to preserve original scent. The
identification parade in respect of the said articles had been held within 24 hrs. After
smelling 'chappal' and knife, the tracker dog immediately picked up the two accused
from amongst pick in the parade. It was held that the evidence provided by the dog
was sufficient to link those two items with the accused.

In some of the old English cases, the dog tracking evidence was sought to be
treated as being of a very low evidentiary value, on the solitary ground that the dog
could not enter the witness box.

Therefore, the dog tracking evidence is to lend completed, clinching and

conclusive corroboration to the material that is on record. It was observed that
judicial notice must be taken of the facts that the training skills and special qualities
that are found in the police dogs are now universally being recognized as living of
such as high caliber that in cases such as detection of explosives, drug, etc......., they
are found superior and more effective than the most sophisticated instruments.

In Bhadran V. State of Kerela,96 the court discussed the evidentiary value

and admissibility of dog tracker evidence. The tracker dog brought by the police
moved up to the house of the accused after smelling a beedi stump lying on the floor
of the room in which dead body was found. The dog brought for the purpose was a
trained animal. It was contented on behalf of the state that the circumstance so
emerged provided a valuable link.

95
1993 Cri .L.J 3883.
96
1975 Cri. L.J 676.

166
 The bench analyzing such evidence by observing, that the utility of tracker
dogs in crime detection is on the increase as their use has been yielding profitable
clue to crack down culprits in many a crime. It was once thought that human liberty
should not depend upon canine sensibilities due to inherent drawbacks. One of them
is the liability to subjects is the evidence to cross examination. There is possibility
of dog misjudging the smell or mistaking the track. But recent trends shows that
specialized kennels and imparted with special training are capable of leading
investigation and there by detectives to make a breakthrough in investigation.

In both the cases, the Supreme Court verdict that in Abdul Razak97 and also
the decision of the Ld Single Judge of High Court of Bombay in Babu Magbul
Shaikh98, the bench were of the views that evidence relating to movements of tracker
dogs cannot be rejected as inadmissible and in appropriate cases, it is open to the
court to consider it. The reliability of the testimony of persons who manned the dogs
and those who witnessed the movement and conduct of the animals.

The court did not find any evidence of expects that the police dog reached
the house of the accused. The bench was not disposed to rely on the said items of
evidence in the absence of other necessary assurance to convince it of its
acceptability99.

In State of U.P. V. Ram Balak and another, the two Judge Bench of the
Supreme Court held that in a Criminal case evidence purportedly collected using a
sniffer cannot form the basis for convicting an accused. The conviction, if any on the
basis of this leads given by a sniffer can at best be relied upon if other circumstances
evidence corroborate it.

The U.P Government had filed an appeal in the apex court challenging the
acquittal of the respondents, to who had earlier been sentenced to death by the
Session Courts for the Gangrape of a girl, relying upon the tracking down of the
accused by a sniffer dog and certain extra judicial confession made by the
respondent. The H.C. of Allahabad set aside, the conviction acquitted the accused on
the reasoning that the circumstances evidence including the evidence of the police

97
Supra 93.
98
Supra 92.
99
Supra 96.

167
dog was not sufficient to uphold the conviction. The Apex court, however, after
discarding the other circumstances evidence like alleged presence of the accused at
the scene of evidence extra judicial confession made to some villagers, observed that
no reliance can be placed exclusively on the evidence of dog tracking, The Apex
court, however, clarified that evidence of a sniffer dog can be considered by courts
of order circumstantial evidence is found to be reliable and corroborative100.

The Bench referred to the decision in R.V. Montgomery,101 case in which

was held by the court of criminal appeal that evidence of the constable who handled
the dog on its and reported the dog reactions was properly admitted. The court did
not regard its evidence as a species of hearsay but instead the dog was described as
“tracking instrument” and the handler was regarded as reporting the movement the
instrument, in the same way that a constable in traffic case might have reported on
the behaviour of his speedometer.

Therefore, it can be said that like in Medu Sekh V. State,102 that evidence of
dog tracking even if admissible is not of much weight. While dog being an
intelligent animal with proper tracking may help the police in unearthing a crime,
proper care should be taken by which there as discrepancy as to scenting which, the
dog pounded upon the respect identification by dog is meaningless.103

Its reliability depends upon acceptability testimony of persons who manned

the dog and those who witness his movement and conduct.104 Evidence of dog
tracking is admissible under Section 45 IEA, however, of not much weight due to
present State of Scientific Knowledge.105

Evidence of dog tracking can furnish a valuable clue in the investigation of

case and therefore, it is a case based on circumstantial evidence. It goes without
saying that such evidence has to be proved in accordance with law and the same has
to be reliable and acceptable. It has to pass though judicial scrutiny like other
evidence. However, it is not sound to link the tracker dogs evidence to the types of

100
Supra 93.
101
1866 NI 160.
102
1972 Cri LJ 362 (Orissa).
103
Jit Singh V. State of Punjab,1988 Cri. L.J 39 (Punjab).
104
Supra 6.
105
Mal Singh V. State of Rajasthan,(1995) II Crimes 511(R.A.J) (DB).

168
evidence accepted from scientific experts. In India, the use of use polices dog is
relevant fact of investigation and this evidence can be led in the court though
handler and the investigation officer. Though evidence produced by the dog should
be regarded as scientific, it should never be taken as proof of guilt of the accused
unless corroborated by some other evidence.

Dog tracking evidence now a days if tracker dog is a tainted one and has the
necessary skill and talent to detect crime, such as evidence may be treated as
evidence of high celebrate. The value of the dog tracking evidence is that its lends
clinching and conclusive corroboration to the material on record.

4.6.3 DNA Analysis

Science and law are two distinct profession that are increasingly co-mingled
as technology develops. DNA sometime called the building block or genetic
blueprint of life, was first discovered by the Scientists Frances H.C. Crick and James
D. Walson in 1953. The first foremost or legal application of DNA testing occurred
in 1986 in England by Sir J. Jeffery in the famous Collin’s case. Since then, DNA
technology has rapidly evolved; DNA technology had such a dramatic impact on
crime detection and such has been magnitude of its success.

DNA means ‘De-Oxyibo-Nucleic Acid’ which is found in all bodily fluids,

tissues etc. It is found in every single cell of a person’s body and each cell has
identical DNA. The DNA technology focus on unique properties of an individual’s
Genetic code. In India, the DNA evidence and standards for its admissibility are in
its infant stage Indian Judicial system has only less experiences in handling DNA
evidence in Civil and Criminal cases. There is no legislation dealing with the issues
on DNA evidence and its admissibility. The Apex Court has put the opinion of DNA
expert under Section 45 of the Indian Evidence Act without evaluating its relevance
in the Indian content. DNA entered the Indian legal system in 1988. It is a matter of
pride that in India the first use of DNA evidence in paternity trial was in Kerala in
1988 during the maintenance case of Manoj that was from the very next year of its
first admission in United States. Forensic science, as a scientific discipline,
functioning within the parameters of the legal system not only provides guidance in

169
criminal and civil investigation but also supplies the courts accurate information
about all the attending features of identification of criminals.

DNA technology, as a latest tool of forensic Science, is the by-product of

modern genetic science. The said science established the belief that the pattern of
chemical signals i.e. the genetic structure which may be discovered with the DNA
molecule in the cells of each individual, is unique and different in every individual.

The discovery of modern genetic science can be used in identification of

criminal in criminal cases by analyzing various objects, recovered on the crime spot
like any body fluid, hair root, saliva, fibres etc which are associated with the crime
and accurately linked to the perpetration of the crime. Actually, this technology is
utilized as a new form of circumstantial evidence, which is placed on a higher
footing than the direct and ocular evidence because of its objectively, scientific
accuracy, infallibility and impartial character.

Foreign DNA analysis, means an identification process in which the unique

genetic code of an individual that is carried by the individual DNA is compare to
genetic code carried by DNA found in human bodily substance samples obtained by
a law enforcement agencies in the existence of the Law enforcement agency is
investigative function.

Before the beginning of the 21st century, DNA evidence has come out into its
own and plays decisive role in criminal cases. Whether assessed under Daubert or
the older Frye Standard, theories underlying DNA evidence and many techniques
for analyzing DNA samples, and statistical analysis that come with it, have been
approved by courts across the country and described in many reference works and
new techniques of analysis have appeared.

In trials, Crime like battery or homicide, the forensic DNA use is usually
involve proving that a "crime sample" typically comprised of blood found at the
scene, matches a "defense sample", typically blood drawn from the defendant.

Therefore, DNA technology has proved to be a valuable investigative tool

which has helped to exonerate the innocent and to bring those responsible for serious
crimes to justice.

170
4.6.3.1 Meaning of DNA

DNA test means Deoxyribonucleic acid. DNA structure varies among each
individual. It necessarily happens to be a basic genetic material in all living humans.
It carries a genetic code which can be used for proving human character, body
characteristics, behavior etc. DNA can be found in the human body and samples
from semen hair, blood, flesh can establish a DNA matching with the DNA of
another human being.

DNA Technology is the blessing of science and it is serving the human being
without any discrimination. The evolution of DNA technology from the laboratory
to the forensic science; a science applied to legal or courtroom purposes, has
involved scientific and legal era of the mankind on the scientific side, DNA testing
technology developed from relative obscurity.

According to Oxford Dictionary, DNA means Deoxyribonucleic acid, a

substance present in nearly all living organisms at the carrier of genetic information,
and typing consisting of a very long double stranded chain of sugar and phosphate
group cross linked by pairs of organic based"106.

It is a chemical structure that forms chromosomes. A piece of chromosomes

that dictates in particular trait is called gene. Structurally, DNA is a double helix two
strands of genetic material spirited around each other. Two analysis techniques are
more often used in forensic DNA analysis. These are commonly known as RFLP
and PCR analysis.

(1) RFLP ANALYSIS (Restriction fragment length Polymorphisms)

The first method for finding out genetics used for DNA profiling involved
RFLP analysis. DNA is collected from cells, such a blood sample, and art into small
pieces using a restriction enzyme. This generates thousand of DNA fragments of
differing sizes as a consequence of variation between DNA sequence of different
individuals.

106
Oxford Dictionary, P. 419.

171
(2) PCR ANALYSIS (Polymerase Chain Reaction)

This process mimics the biological process of DNA replication, but confines
it to specific DNA sequences of interest. With the invention of the PCR technique,
DNA profiling took huge strides forward in both discriminating power and the
ability to receive information from a small samples.

NEED OF A DNA:

DNA technology has proved to be a worthy investigative tool for releasing

the innocent citizens and bringing form the person responsible for serious crimes.
The motive of establishing forensic DNA databases was to develop investigative
leads for solving crime and usually was the purview of "Criminal Justice Agencies
for Law enforcement identification purpose"107

A law on DNA data become admissible as evidence in judicial proceeding

and handling of DNA testing, and use of this information by law enforcement
agencies and others is regulated. Today, DNA testing labs are unregulated and lack
uniform testing protocols and procedure in the absence of legal framework, a
database can be prepared and maintained. It depends on the government as to what
kind of information it wants included in the data base-be it information on only
convicted persons, suspects or all those jailed. If the database is to includes all those
in custody then the DNA profile of acquitted individual will have to be deleted, as
done in some countries. A DNA profiling law is supposed to codify everything and
set procedures for collection, safety, use and access of DNA samples and data.

4.6.3.2 DNA Evidence In Criminal Cases

In this scenario, advent of DNA matching and identification evidence has

become new feather in the cap of investigating and prosecuting agencies. These
agencies in collusion with a section of scientific community are propagating and
publishing that positive DNA evidence is the conclusive proof of guilt of the
accused, and there is no need for any corroborating evidence.

107
DNA identification Act of 1994, codified at 42 U.S.C. 14132.

172
 In criminal or for that matter in civil cases, wherever the situation requires
identification DNA techniques are being applied world over. the few popular cases
which used DNA profile are- Rajiv Gandhi case, Premananda Swami case and
Tandoor case of Delhi etc. in India and American cases were Blue dien Clinton-
Lawineky case, and O.J. Simpson case etc.Whenever DNA evidence is produced
before a court following interpretations may be likely results.

(i) That there was insufficient material (Lower amount of DNA in sample,
degraded or contaminated sample) to arrive at a conclusion, or,

(ii) That the DNA profile of two samples show, they have come from different
sources, or

(iii) That there is a probability that both the sample have originated from the
same sources, viz. the accused, or

(iv) That whether the inculpating (iii) DNA evidence is corroborated with other
evidence produce by the prosecution, or

(v) That whether the inclupating DNA evidence contradieds any evidence
produced in defence by the accused.

The first two interpretations of the DNA report are of no consequence for
either of the parties. In case, the report (and evidence) shows the match (iii) and
inculpability of the accused, the reponsibility of court in interpreting and
appreciating DNA evidence enhances. Guidelines are needed to specifically assess
how common or rare is the DNA profile in question with general population, what
processes were used in making those drawbacks and shortcomings, what were the
probabilites that the expert has reached correct or incorrect conclusion based on give
data.

4.6.3.3 Admissibility of DNA Evidence as Per Early Stage

Indian courts hold, "The identification is hundred percent precise, experts

opinionas such DNA. DNA test gives perfects identity and admissible in
evidence108. In the early stages, they US Courts for admissibility of DNA evidence

108
Pantangi Balarana Venkata Ganesh V/s St. of A.P., 2003 Cr. L.J 4508 at 4517 (AP).

173
applied the standard fixed in Frye Case.109 This case was always considered where
DNA and other scientific evidence has to be evaluated for admissibility. This test
was commonly called 'Frye Standard.'110The first question of frye standerd asks a
court to determine is- whether the scientific evidence in question has gained general
acceptance in the particular field to which it" belongs. DNA evidence as infallible
and as such it could not be proved as generally accepted by scientific community
before courts of law, thus they cleverly attacked the Frye Standard. Due to pressure,
Rules of Evidence were amended in US and Rule 702 came into existence. Courts
were made to follow the new rules. They succeeded in 1993 when the US Supreme
Court had modified the Frye Standard concluding that for a scientific evidence to be
admissible it must (a) be shown to be scientifically valid and (b) it must be relevant
to at least one issue in the case.111

Following the Frye case, another American court noted that three pronged
test are needed to determine. Whether DNA evidence adduced should be admitted:

(i) Is there a theory, which is generally accepted by the scientific

community, which supports the conclusion that DNA forensic testing
can produces reliable results.
(ii) Are there techniques that currently exist that are capable of
producing reliable results in DNA identification and which are
generally accepted among the scientific community.

4.6.3.4 Existing Provisions Relating To DNA Evidence

There are various existing enacted provision which control and guide DNA
evidence at the investigation and trial stages. Apart from those enactments and
legislations, the law laid down and interpretations attributed to legislated words,
phrases and whole subject matter contained in section of these existing legislations
related to the scientific, medical and forensic evidence and experts are also relevant.

Following provisions of legislated law are in existence, which are related

with DNA evidence-

109
Frye v United states, 293F 2d 1013 (DC Cir 1923).
110
Thompson, "Evaluating and Admissibility of New Genetic identification Tests: Lessons from
DNA War." 84 J. Crim. L and Criminology (1993) 22, 26.
111
Daubert V. Marrel Dow Pharmaceauticals US 579 (1993) at 592.

174
 Sec 3 and 4 of Indian Evidence Act, 1872define words which could be
helpful in determining whether DNA evidence in a particular case is relevant or not.
It is the discretion of prosecution in a criminal case to 'prove' a 'fact', but the right
and power of the court to accept or reject it on the basis of its relevancy,
admissibility or its evidentiary value is a descreation of court, which if taken away
through legistalor would be disastrous in case of DNA evidence, because it is always
an opionon and that too is based on prbability.

D. Raju. J., has observed that:

"Courts dealing with Criminal cases at least

should constantly remember that there is a long
mental distance between may be true and must be
true and this basic and golden rule only help to
maintain the vital distinction between conjectures
and conclusion to be arrived at, one that touch
stone of a despassionate judicial
scrutiny………………. as well as quality and
credibility of evidence brought on record".112

His Lordship has pointed out two very important propositions to courts while
dealing with criminal cases: first being, there is long mental distance between 'may
be true and must be true' and second being, while making a scrutiny judicially of
evidence adduced, it must be dispassionate scrutiny . The DNA match evidence
based on probabilities could be put on the conjectural category and, cannot in any
way attain 'must be true' status.

For appreciating evidence in a case based on circumstantial evidence (as is

normally the case where DNA evidence is used), their Lordhip observed," One
circumstance by itself may not unserringly point to the guilt of the accused. It is the
cumulative result of all circumstances which could matter.” Hence, we are not
inclined to cull out one circumstance (evidence) from the rest for the purpose of
giving a different meaning to it.113Though, there is no specific DNA legislation

112
Ashish Bathan v. State of M.P., 2002 Cr. L.J 4676 (SC).
113
Gade Lakshmi Mangraju v/s State of A.P., 2001 Cr .L.J 3317 at 3322 (SC).

175
enacted in India. Section 53114 and Section 54 CrPC provided for DNA tests implied
such other tests which the registered medical practitioner thinks necessary in a
particular case; sand they are exclusively used in determining complex criminal
cases. When the person is arrested on a charge of committing an offence of rape , the
examination will efford evidence.

In Krishan Kumar Malik V. State of Haryana115, it was held that after insertion of
Section 53-A in 1996 it has been necessary for prosecution to go in for DNA test in
rape and such like cases, facilitating the prosectuion to prove its case against the
accused still resorted to this procedure of getting the DNA test or analysis and
matching the semen of the appellant with that found one the undergarments of the
prosecutrix.

While examining the accused by the medical practitioner, the court issue directions
to the police officer to collect sample from the accused and conduct DNA test for the
116
purpose of further investigation uder Section 173(8) and and Section 293 (4) (e)
117
of the Criminal Procedure Code.

114
Section 53: Examination of Accused by Medical Practitioner at the Request of Police Officer:
(1) When a person is arrested on a charge of committing an offence of such a nature and alleged
to have been committed under such circumstances that there are reasonable grounds for believing
that an examination of his person will afford evidence as to the commission of an offence, it shall
be lawful for a registered medical practitioner, acting, at the request of a police officer not below
the rank of sub-inspector, and for- any person acting in good faith in his aid and -under his
direction, to make such all examination of the person arrested as is reasonably necessary in order
to ascertain the facts which may afford such evidence, and to use such force as is reasonably
necessary for that purpose.
(2) Whenever the person of a female is to be examined under this section, the examination shall
be made only by, or under the supervision of, a female registered medical practitioner.
Explanation. – In this section and in sections 53A and 54,-
(a) “examination” shall include the examination of blood, blood stains, semen, swabs in case of
sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of
modern and scientific techniques including DNA profiling
Section 53-A Examination of Person Accused of Rape by Medical Practitioner: –
when a person is arrested on a charge of committing an offence of rape or an attempt to commit
rape and there are reasonable grounds for believing that an examination of this person will afford
evidence as to the commission of such offence, it shall be lawful for a registered medical
practitioner employed in a hospital run by the Government or by a local authority and in the
absence of such a practitioner within the radius of sixteen kilometers from the place where the
offence has been committed by any other registered medical practitioner, acting at the request of
a police officer not below the rank of a sub-inspector, and for any person acting in good faith in
his aid and under his direction, to make such an examination of the arrested person and to use
such force as is reasonably necessary for that purpose.
115
2011(3) RCR (Crl) 589 (SC).
116
Sec 173 (8) Cr.P.C.
117
Section 293(4) (e) Cr.P.C.

176
 Apart from these provisions Section 45 of the Indian Evidence Act, is more
important so far as the admissibility of DNA evidence is concerned Section 45 deals
with the opinion of experet118:

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 impressions the opinions
upon that point of persons specially skilled in such foreign law, science or art, or in
questions as to identity of handwriting or finger impressions are relevant facts. Such
persons are called experts. Section 293 of Cr.P.C, use the document of certain
scientific experts as authentic for examination the opinion of scientific experts
formulated by the government experts is accepted the as evidence of the government
scientific report. 119

As per the Law Commission Report of India, in 185TH REPORT on the

review of the Indian Evidence Act, by JUSTICE M.J. RAO Chairperson discussed
Section 45,45A, 45B as:

OPINION OF EXPERTS REPORTS SECTION 45:

Section 45 of the Report did not refer to opinion or type writing or usuage of trade
or technical terms or identity of persons or animals

118
Section 45 of Indian Evidence Act.
119
Section 293 of Cr.P.C, Reports of Certain Government Scientific Experts. (1) Any document
purporting to be a report under the hand of a Government scientific expert to whom this section
applies, upon any matter or thing duly submitted to him for examination or analysis and report in
the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or
other proceeding under this Code.
(2) The Court may, if it thinks fit, summon and examine any such expert as to the subject-matter
of his report.
(3) Where any such expert is summoned by a Court and he is unable to attend personally, he
may, unless the Court has expressly directed him to appear personally, depute any responsible
officer working with him to attend the Court, if such officer is conversant with the facts of the
case and can satisfactorily depose in Court on his behalf.
(a) (4) This section applies to the following Government scientific experts, namely:-
any Chemical Examiner or Assistant Chemical Examiner to Government;
(b) the Chief Controller of Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director Deputy Director or Assistant Director of a Central Forensic Science Laboratory
or a State Forensic Science Laboratory;
(f) the Serologist to the Government.
(g) any other Government Scientific Expert specified by notification by the Central Government
for this purpose.

177
SUPPLY OF COPY OF EXPERTS REPORT SECTION 45 A:

This section has been inserted to emphasize that, the expert, even if called by
a party, has a duty to the court and shall address his opinion to the court ,rather than
to the party who nominated him.

PROCEDURE TO PROVE FOREIGN LAW AND COURTS POWER SECTION

45-B:

This section has been inserted that , the party has to give notice to the
opposite side and the court is permitted to look into material not submitted by the
party and decision of the court shall have to be treated as a decision on a question of
law.

4.6.3.5 DNA and Self Incrimination:

In Selvi V. State of Karnataka,120 the Supreme Court held that the taking and
retention of DNA samples which are in the nature of physical evidence does not
face Constitutional hurdles . However, if the DNA profiling technique is further
developed and used for testimonial purpose, then such uses in the future could face
challenges in the judicial domain. Hence, the use of material samples such as DNA
for the purpose of identification does not amount to a testimonial act for Article
20(3) of the Constitution.

Refering to the case of Thogarani Alias K Damavanti V State of Orissa121,it

was held by the Apex Court 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-à-vis the
rights under Article 20(3) and 21 of the Constitution of India in obtaining evidence
tending to confirm or disprove that the accused committed the offence concerned.

However, in the Sharda V. Dharmpal case, referred by full bench of

Supreme Court in order that passing of such an order by the court is not be in
violation of the right of personal liberty under Article 21 of the Constitution. Justice
Malimath Committee recommended that DNA expert being included in the list of
Expert under Section 295(4) of the Cr.P. C, 1973. Section 53, 53-A, 54 of Cr.P. C is

120
2010 AIR 1974.
121
2004 Cr.L.J 4003.

178
not violative of Article 20(3) of the constitution which permits protection against
self incrimination under Section 156 and Section 174 of the Cr.P. C. Thus , Justice
Malinath Committee report also recommended for amendment of Section 482 of the
Cr.P.C, 1973 and Section 4 of the identifications of prisoner's Act, 1927 on lines of
Section 27 of Prevention of Terrorism Act, 2002 (POTA) in following words:

"Every court shall have inherent power to make

such order as may be necessary to discover truth
or to give effective order under this codew or to
prevent abuse of the process of the court or
otherwise to secure the ends of Justice."

SECTION 112 OF THE INDIAN EVIDENCE ACT:

"Birth during marriage, conclusive proof of

legitimacy. The fact that any person was born
during the continuance of a valid marriage
between his mother and any man, or within 280
days after its dissolution, the mother remaining
unmarried, shall be conclusive proof that he is
the legitimate son of that man, unless it shown
that the parties to the marriage had no access to
each other at any time when he could have been
begotten".

The maxium Pater estquem nuptial demonstrant' applicable to Section 112

of Indian Evidence Act which means, the father is he, whom the nuptial indicates
has gained a sturdy legislative recognition which resulted in its formulation. In the
case of Buckley V. Rice Thomas122 (as quoted by M. Jagannadha Rao, Chief Justice,
Kerela High Court, as he then was, in 1993 (i) KLT 19 Justice Sauders held, "…… if
matters arise in our law which concerns other sciences or faculties to which it
concerns. This is an honourable commendable thing in our law. Each human being
has a unique DNA pattern which is acquired by inheriting it from the biological
parents. It is so identificable as it carries great similarities to their molecular

122
(1554 ) 1 Plowden 118.

179
structure and their genetic code. It is for these reasons that a DNA test is utilised as
it can conclusively determine a biological relationship".

In Banarasidass v. Teeku Dutta and another123, has concluded by the

Hon'ble Court that DNA test is not to be directed as a matter of routine course and
can be directed only in deserving case.

The Division Bench of the Delhi high Court in Rohit Shekar V. Naranyan
Dutt Tiwari,124 held that, Mr. Narayan Dutt refused to accept the identity of a lady ,
to whom the petitioner Rohit Shekhar was born consequently, paternity of Rohit
Shekhar was denied by Mr. Tiwari. The DNA Test was resisted and the plea that
absence of any valid marriage between the lady and Mr. Tiwari, would preclude Mr.
Shekhar from claiming to be a son therefore, neither could a DNA test be ordered
nor can Mr. Tiwari be ordered to give his blood samples.

The interests of Justice are best served by ascertainment of the truth and
there must be few case where the interests of children should to be best served by
the suppression of truth. Scientific evidence of blood groups has been available since
the early part of this century and the progress of serology has been so rapid that in
many cases certainty can be reached in the ascertainment of paternity. Mr. Tiwari
appealed to the Apex Court.The Delhi High Court upheld observations of the Apex
court;

"We may further observe that the injunction

directing DNA testing falls in the category of
an order in aid of disposal of the sliet and
deciding the rights of the parties to the suit ie
the right asserted by the appellant to have
such DNA testing done and the right asserted
by Respondent 1 to not submit there to. Once
such rights has been adjudicated by the suit
court and the appeal there against had been
dismissed and the application for stay having

123
2005 (1) Apex Court Judgment 717 (SC) ; 2005(2) Civil Court Cases 235 (SC); 2005(4) SCC
449.
124
FAO (06) No. 547/2011 decided on 24.4.2012.

180
 been rejected by the Apex Court, it was not
open to the suit court to again entertain the
said question. If such practices were to be
permitted, it will have dangerous
consequences. It is rarely that the entire suit is
decided by the same judge. If it were to be
permissible for each successive judge
presiding over a court to take a different view,
it will not only lead to the litigants and the
counsel urging the same issues repeatedly
each time on change of roaster but also be
contrary to the rule of Law".

In Shri Jitendra N. Bhatt. Judge, Gujrat High Court,125 reads thus:

"In Western countries, DNA test and profile is now widely employed. In a
country like ours, such a test and profile may, emphasise systematic programme and
scientific planning ought to be started for the use of DNA test and profile. In many
developed countries, DNA test, genetic testing techniques and "RACMIZATION"
testing based on systematic examination of teeth and bitemarks has proved to be
very useful. No doubt, " RACMIZATION" technique is currently used in Japan and
Germany. It has potential to replaced the traditional method which took into account
of eruption and/or fusion and falling sequence of teeth".

The corollary is that the burden of the plaintiff husband should be higher
than the standard of preponderance of probabilities. In Kamti Devi and another V.
Poshi Ram,126 wherefrom the following observation made by this court, were sought
to be highlighted:

"Section 112 itself provides an outlet to the party

who wants to escape from the rigour of that
conclusiveness. The said outlet is, if it can be
shown that the parties had no access to each other
at the time when the child could have been
125
(2003) 8 SCC (Journal) 25.
126
2001(1) Apex Court Journal 386(SC): AIR 2001 SC 2226.

181
 begotten the presumption could be rebutted. In
other words, the party who wants to dislodge the
conclusiveness has the burden to show a negative,
not merely that he did not have the opportunity to
approach his wife but that she too did not have the
opportunity of approaching him during the
relevant time. Normally, the rule of evidence in
other instances is that the burden is on the party
who asserts the positive, but in this instance the
burden is case on the party who asserts the
negative".

In the case of Sham Lal @Kuldeep V. Sanjeev Kumar and other127, wherein it was
interlia held as under:-

"Once the validity of marriage is proved then there is strong presumption

about the legitimacy of children born from that wedlock. The presumption can only
be rebutted by a strong, clear, satisfying and conclusive evidence. The presumption
cannot be displaced by mere balance of probabilites or any circumstance creating
doubt. Even the evidence of adultery by wife which through amounts to very strong
evidence, it, by itself, is not quite sufficient to repel this presumption and well not
justify finding of illegitimacy if the husband has access”. Again, In Namdeo
Babsaheb Korde & Anr v. Babsaheb@ Babarao Ramakrishna Korde & others128 ,"It
is said that for ascertaining the truth and to avoid evading of the clutches of law,
respondents needs to undergo DNA test. Ultimately, in the eyes of law, truth which
is divide, must surface. No loss or harm of any nature would be caused to him.
When medical science can act in aid of law, courts must allow truth to prevail."

In Dipawita Roy v. Ronobroto Roy129, held that DNA testing is the most
legitimate and scientifically perfect means, which the husband could use, to establish
his assertion of infidelity. This should simultaneously be taken as the most authentic
rightful and correct means also with the wife, for her to rebut the assertions made by

127
2009(12) SCC 454.
128
2015 (2) CCC 25.
129
2015(1) CCC 93.

182
the respondents husband, and to establish that she had not been unfaithful,
adulterous or disloyal. If the appellant wife is right, she shall be proved to be so". In
Riyas v. Hassena@Vasida130, it was held that petitioner committing with
respondents only one occasion. Respondent became pregnant and gave birth to the
child. Petitioner denied the paternity. Petitioner can refuse to undergo DNA test.
Court can direct him to undergo such a test. However, petitioner did not make
effective denial of the specific instances of intercourse, in his counter statement.
Petitioner liable to pay maintenance. When such a specific denial is not there, and
when the revision petitioner could not in any circumstance consent for a scientific
test, the court will have to accept the evidence of the lady on facts.

In the case of Bhabani Prasad Jene V. Convenor Secretary, Orissa State

Commission for Women @ Anr131, held that in a matter where paternity of a child is
in issue,before the court, the use of DNA is an extermely delicate and sensitive
aspect. There is apparent conflict between the right to privacy of a person not to
submit himself forcibly to medical examination and duly of the court to reach the
truth, the court must exercise its director only after balancing the interest of a parties
and on due consideration whether for a just decision , DNA is eminently required.
Section 112 Indian Evidence Act, the test of 'Eminent need'to determine whether it
is not possible for the court to reach the truth without use of such test.

In Kamti Devi V. Poshi Ram case, Section 112 of the IEA raises a conclusive
presumption about the paternity of a child born during the subsistence of a valid
marriage, which itself provides an outlet to the party who want to escape from the
rigor of the conclusiveness132.

DNA Test revealed that child was not born to the husband, the
conclusiveness in law would remain unrebuttable. This may look hard from the point
of view of the husband who would be compelled to bear the fatherhood of a child of
which he may be innocent.

Therefore again it should be referred the case of Rohit Shekhar case pointed
out that in DNA testing is to determine parternity order of DNA testing should not

130
2015(1) RCR (Civil) 55 (Kerala).
131
AIR 2010 SC 2851.
132
AIR 2001 SC 226.

183
be made in a routine manner. A disreation for DNA Testing can be issued only after
the test of eminent need is satisfied. Further,if dispute over the paternity of child
court directing the alleged biological father to give sample of DNA profiling.
Defendant did not comply with the order of the court . Court has no power to
compell or to direct forcible drawing of sample. There can be no rule that in every
refusal adverse inference may be drawn. Held ,it constituted wilful and wrongful
refusal. The court held that:-

(i) It would be possible for adverse inference to be drawn from a refusal,

regardless of whether the refusal occurred before or after the making of the
direction.
(ii) The presumption of paternity would follow upon a refusal by an adult
person. The burden of proving that he is not be father of the child has to fall
on the person refusing to give the specimen. Such a presumption can be
rebutted only by clear and convincing evidence.
(iii) Evidence would be evaluated by the court and an appropriate inference with
regard to the unreasonable refusal of the person to submit to DNA profiling
would be required to be drawn at that stage. Analysis of the 185th Report of
Law Commission against the inclusion of DNA identification under Section
9 and DNA experts Under Section 45 IEA.

In March, 2003, the Law Commission of India, headed by Justice M.

Jagannadha Rao submitted its 185th report on the review of the Indian Evidence
Act,1872.The Commission under Section 9 discussed the admissibility of DNA
identification. From very initial stage itself ,the Commission was relutant in
including DNA identification Evidence .

Today, Scientific advancement gives certainty to the issues Confronting

before the legal system in almost all phenomena of the real world.DNA evidence
revolutionized the criminal justice system over the past nineteen years. It also
became a great helping hand of the law enforcement machinery in identifying
criminals without any third degree methods. Within a short span of time, the legal
system understand that the technique has the high prospective in supplying accurate
regarding the complicated identity of the suspects and victims in criminal trials.

184
 DNA test is a boon in Criminal Administration of Justice. DNA test as
evidence of identity has come to be recognised in our Judicial system. Its
applicalulity depends upon case to case. DNA is an exact science, it use in evidence
has its concerns, which aggrarate in Indian scenario where collection of evidence is
shrouded with lack of romptness and conduct of medical test always remains under a
question mark .Although DNA has accomplished a great deal in opening up forensic
evidence, its full potential is to identify perpetrators and exonerate people falsely
convicted has yet to be realsed. Despite many challenges and techniques is unique in
the way that it is a power of DNA profiling to exclude the innocent that is its
greatest value to the society.

4.6.4 Narco Analysis Test or Truth Serum Test

"Narco Teneture Se Ipsum Accusare"133

The Doctrine of presumption of innocence is still considered as a cardinal

principle of Criminal Jurisprudence. As per this doctrine, a person shall be presumed
innocent unless proved guilty. The Principle of Criminal Jurisprudence finds place
in Constitution of India as one of the most important fundamental Right ie Right
against self incrimination and has been incorporated in Article 20 (3) of the
Constitution.

Narco Analysis test is a psychotherapy test which conducted with patient in a

sleeplike state induced by barbiturates or other drugs. Early in the 20th century,
physicians began to employ scopolamine along with morphine and chloroform
which induce to state a sleeplike during childbirth. Scopolamine was known to
produce sedation and drowsiness confusion and disorientation, incoordination and
amnesia for events experienced during intoxication.134

In the year 1922, it occurred to Robert House, a Dallas Texas Obstetrician

that a similar technique might be employed in the interrogation of suspected
criminals, and he arranged to interview under Scopolamine two prisoners on the
Dallas Country Jail whose guilt seemed clearly confirmed. Under the drug, both men

133
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 accused of.
134
Selvi & Others v. State of Karnataka (2010) 7 SCC 263.

185
denied the charges on which they were held and found not guilty. 135 It is to
concluded that the while this test patient 'cannot create a Lie'. This test as truth
serum' first appeared in the news report of Robert House experiment in 1932 and
thereafter is known as "Father of Truth Serum."136

Basically, this term derives from the Greek Word 'Narke' meaning
anesthesia which refers to the diagnostic and psychotherapeutic technique which
employs psychotropic drugs. particularly barbiturates, which act as Central Nervous
system depressants by virtue of which a wide spectrum of effects are produced
ranging from mild sedation to anesthesia.137

For Truth Serum test, drugs are Seconal, Hyposcine, Sodium Pethathol,
Sodium Amytal.138 The Nacro analysis test is conducting by administering 3 grams
of Sodium Pentathol or Sodium Amytal dissolved in 3000 ml of distilled water
depending upon the person is sex, age, health and physical condition and this
mixture is administered intravenously alongwith 10% of dixtrose over a period of 3
hours with the help of Anesthetist. The rate of administration is controlled to drive
the accused slowly into a hypnotic substance. The effect of this bio-molecules
results of an individual is the evident as the drug depresses, which control nervous
system, lowers the blood pressure and slow the heart rate, which results in a lack of
inhibition. Then, the subject is interrogated by the investigating agency in the
presence of the doctors. The revealtions made during this stage is recorded in videos.
Then ,the report is prepared what is used and influenced of drugs whole is
purportedly deprived of his self control and will power to manipulate his answer.139

The underling theory is that a person is able to Lie by using imagination. In

this test, the subject imagination is neutralized and reasoning faculty affect by
making him semi-conscious. The subject is not in a position to speak up on his own

135
Ibid.
136
Ibid.
137
http://www.ukessays.com/essays/law/examining-the-legal-technique-of-Narco-Analysis (visited
on 8-7-2014.)
138
http://www.ukssays.com /essaep/psychology/narco-analyse-and-brain-mapping(.visited on 18-9-
2014).
139
State of Andhra Pradesh v. Smt. Inapuri Padma & Ors. 2008 Cr. L.J 3992 (Para 14).

186
but can answer specific and simple questions. In this state, it become difficult for
him to lie and his answers would be restricted to facts he is already aware of.140

Nacro Analysis test for criminal investigation is a valuable technique,

which would profoundly, affect both the innocent and the guilty which hasten the
cause of justice.141 The procedure is helpful in finding out the facts relating to an
offence, it should be used and utilized and the Court should not obstruct the conduct
of the exercise.142 This investigating process can be undertaken during custodial
interrogation which leads to sort the mystery regarding the crime, and carried out to
find the truth.143 It is a step in aid of investigator. It may be regarded as scientific
tool of interrogation and raises regarding basic human rights and their reliability.

Person not consenting for Narco Analysis test cannot be forcibly subjected to
it. It is the violation of Article 20 (3) and Article 21 of the Constitution.144 If the
invasion of the person of the accused is permissible, the principle should be
applicable to Narco Analysis test and Brain mapping test also.145 The Right of
silence was recognised as a significant fundamental right. In the Cr P C, the
legislature has guarded a citizen, right against self-incrimination.146 Section 161 (2)
of the Code of the Criminal Procedure Code states that the person is bound to
answer truthfully all questions, put to him by a police officer, other than questions to
answers which would have a tendency to expose that person to a criminal charge,
penalty or forfeiture.

In State of Bombay v. Kathi Kathu Qghad,147 it was decided by Eleven bench

Judge which pointed out that the Article 20 (3) is directed against self-incrimination
by the accused person. It relates to convey the information based upon personal
knowledge of the person and statement based on controversial in nature. Section 25
of the Indian Evidence Act also provides that no confession made to a police officer

140
Ibid .
141
Ibid.
142
Abhay Singh v. State of UP 2009 Cri. L.J 2189.
143
http://www.ncbi.nlm.nih.gov/pmc/articles/pmc3171915/visited on 8-7-2014 (Referred to Dinesh
Dalmia v. State Cr .L R.C. No. 259 of 2009)
144
Mahesh v. State of Maharashtra, 2011 (1) RCR (Crl) 305 (Bom) Aurangabad.
145
Abhay Singh v. State of U.P, 2009 Cri .L.J. 2189.
146
Rajesh Punia, "Narco Analysis – Investigation tool or torture? 2009" Cr. L.J Vol I Journal p.20.
147
1955 (2) SCR 225.

187
should be proved as against a person accused of any offence148. This provision was
made because the law makers were of the view that the police may extract the
confession by using third decree method, and as such, no, confession made to police
officer was made admissible. Section 27 of the Evidence act only that part of
confessional statement made before the police by the accused is admissible which
resulted in the discovery of fact and the rest exculpatory part of the statement cannot
be proved in trial149. Section 313 of the Code of Criminal Procedure empowers that
the court to examine the accused, but no oath shall be administered to the accused
when he is so examined150. Further, Section 313 (3) of the Code of Criminal
Procedure that accused shall not rendered himself liable to punishment by refusing
to answer such question or by giving false answers to them. Section 315 of Cr P C151

148
Section 25 of IEA . Confession to police officer not to be proved.—No confession made to a
police officer, shall be proved as against a person accused of any offence
149
Section27 IEA How much of information received from accused may be proved.—Provided that,
when any fact is deposed to as discovered in consequence of information received from a person
accused of any offence, in the custody of a police officer, so much of such information, whether
it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be
proved.
150
Section 313of the Cr.P.C. Power to examine the accused:
(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any
circumstances appearing in the evidence against him, the Court-
(a) may at any stage, without previously warning the accused, put such questions to him as the
Court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is called on
for his defence, question him generally on the case: Provided that in a summons- case, where the
Court has dispensed with the personal attendance of the accused, it may also dispense with his
examination under clause (b).
(2) No oath shall be administered to the accused when he is examined under sub- section (1).
(3) The accused shall not render himself liable to punishment by refusing to answer such
questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such inquiry or trial,
and put in evidence for or against him in any other inquiry into, or trial for, any other offence
which such answers may tend to show he has committed.
151
Section 315of Cr.P.C ,Accused person to be competent witness.-
(1) Any person accused of an offence before a Criminal Court shall be a competent witness for
the defense and may give evidence on oath in disproof of the charges made against him or any
person charged together with him at the same trial:
Provided that-
(a) he shall not be called as a witness except on his own request in writing;
(b) his failure to give evidence shall not be made the subject of any comment by any of the
parties or the Court or give rise to any presumption against himself or any person charged
together with him at the same trial
(2) Any person against whom proceedings are instituted in any Criminal Court under section 98,
or section 107, or section 108, or section 109, or section 110, or under Chapter IX or under Part
B, Part C or Part D of Chapter X, may offer himself as a witness in such proceedings:
Provided that in proceedings under section 108, section 109 or section 110, the failure of such
person to give evidence shall not be made the subject or any comment by any of the parties or the
Court or give rise to any presumption against him or any other person proceeded against together
with him at the same inquiry.

188
is also an enactment for the accused person. These provisions represents the basic
value of a civilized society and so are given paramount importance.152

4.6.4 .1 Admissibility of Narco-Analysis test

The Mallimath Committee Report on reforms of Criminal Justice system has

recommended active participation of the accused in the investigation of offences.153

In Rojo George v. Deputy Superintendent of Police,154 the Hon'ble high court

in, this case held that the criminal started to use very sophisticated and modern
techniques for committing the crime. The conventional method of investigation and
questioning to the Criminals will not be successful for solution and there is need to
utilise the scientific techniques. In Santokben Sharmabhai Jadeja v. State of
Gujarat,155 the court held that all possible alternatives there was no possibility to
find out the truth or nab the Criminals, so the requirement of such test is necessary.

The Nithari Killer Case where the accused Surinder Kohli and Mohinder
Singh Pandir were subjected to narco analysis test. Various confessional statements
were made by the accused under the effect of the drug, and even name of the persons
he murdered.

The decision of the Supreme Court in the R..M. Malkani Case ,156in which
the police play and active role to steal the evidence which fails to Criminal Justice
System. Referring to this case, the Hon'ble Court in Navjot Sandhu v. N.C.T. of
Delhi ,discussed that illegality of the evidence is not taken into the consideration at
all.

Therefore, it can be said that the admissibility of this test is not 100%
accurate but it help the courts to arrest the real culprits and pushed them behind the
bars. Recently in the Geetika Suicide case, the accused Gopal Kanda is ordered to be
conducted the Narco Analysis test.

152
Dr. Hari Dutt Sharma, "Narco Analysis test-violative of Doctrine of self incrimination" 2009 Cr.
L.J (Vol 4) Journal 273.
153
Caesar Roy, "Narco Analysis test – Information of individual fundamental rights and its value as
Evidence" 2009 Cr. L.J. Journal 69.
154
AIR 2010 SC 1974.
155
2008 Cr. L.J. 3992.
156
R.M. Malkani v. State of Maharashtra AIR 1973 SC 157; 1993 Cri. L.J 238.

189
 The apex court said that the Narco analysis test has acquired a life of its own.
It is increasingly knocking at the door of Courts and finding ready acceptance as a
device to get at the truth during police investigation, through its scientific basis and
value are under strong challenge.157 Therefore, the analysis and admissibility of
Narco analysis test depends upon the corroborative evidence collected by the
investigation authorities.

4.6.5 Polygraph or Lie detector test :

A polygraph test or the Lie detector test is an instrumental measurement

which records the physiological responses relating to the blood pressure, pulse,
respiration and skin conductively which the subject is asked and to answers a series
of questions for the theory of false answer. The theory behind the polygraph test is
that a culprit is righteously caught while getting the results from the measurement of
hyper arousal state. This test was examined by the U.S federal government as
polygraph examination which also referred as the a psycho-physiological deception
of detection test. National Human Rights Commission has also published the
guidelines in the year 2000 for the Administration of polygraph test relating to
violation of human Rights.158

This was the one of the technique in the 21st century which gained the
exorbitant significance. This test was invented in the year 1921 by John Augustus
Larson. Several others technologies are also used in the field. Instead of Lie
detection; the term polygraph is more common. It is an electronic device designed to
explore people who are telling lie. This test is conducted in the way of three
technical aspect in three different phrased:-

1. The relevant-irrelevant technique.

2. Controlled question.

3. Backster techniques.

The expert prepares a set of questions in the different logs as irrelevant

question, relevant questions, controlled question and then the comparison of these

157
Malak Bhatti, "Loss of Justice for Sake ................ in the Light of Article 20 (3)? 2009 Cr. L.J
203 (Journal).
158
National Human Rights Commission Guidelines, 2000.

190
question will be diagonized about the case provided the information collected from
the investigation officer and the suspected person. The basis objective of this test is
to mitigate the possibility on the part of the subject which could be triggered by
unexpected questions to found the deception in the case.

Early devices for this test includes as 1885, invention of Ceaser Lombrosso
who used the metrometer of blood pressure, then the American scientist Galvanic
skin response to examine the prisons war. But in the year, 1915, Marston Makenzia
self proclaimed," as a father of the polygraph."

In India, the rules seems to be changing though of late, there is enormous

reliance being placed by the court on the ultra modern techniques .This test has been
inadmissible at the experimental stage. But as per the regulative provisions Section
162, and Section 313 of Code of Criminal Procedure, Section 25 of the Indian
Evidence Act159 and Article 20(3) of the Constitution discussed the present
difficulties in the way of acceptance of polygraph test evidence against the accused.
Section 25 of the Evidence Act explains that the person against whom evidence is
sought to be led in criminal proceeding, whether or not he was so when he made the
statement. The test proves it as alleged to have made it.160

In Noormohmed Jamalbhai Latiwala v. State of Gujrat161, it was held by the

Hon'ble Court that the detection of white collar crimes, the state authority has the
investigation through the ultra modern techniques such as lie detection test which
challenge the validity of Article 20(3) of Constitution. But again, in the Ram
Chandra Reddy case,162 the Hon'ble Court held that the test does not result in
making any incriminating statement by accused but this test is violative Article
20(3) of the Constitution if taken without the consent of the suspect. But again
referred to this case, a contrary opinion was come out in Ashisth Bathan v. State of
Madhya Pradesh,163 which resulted as this test, the accused was acquitted with the
result of great shadow of doubt on the Credibility and the truthfulness of the

159
Section 25 IEA .
160
Batuk Lal, "The Law of Evidence" p.131.(Central Law Agency, Allahabad, 15 Edn.)
161
Batuk Lal, "The Law of Evidence" p.131(Central Law Agency, Allahabad, 15 Edn).
162
Ram Chandra Reddy v. State of Maharasthra 2004(1) Bom CR(Cri) 657.
163
AIR 2002 SC 3206.

191
technique. In Nandini Sathpathy v. P.L. Dani case164, the Hon'ble Apex Court
expressed his view that the acquittal of the person depends upon the facts and
circumstances of the case. The Apex Court in this case includes all the persons who
have been suspected of an offence.

The National Human right commission has given the guidelines for the
Administration of polygraph test in 2000 relating to Lie Detector test are as below:–

(1) It should not administered without the consent of the accused.

(2) The accused person voluntarily access to the test.

(3) The consent should be recorded before a judicial magistrate.

(4) The accused should be appear with his Lawyer and then court clearly
mentioned that this test includes the 'confessional' statement to the
magistrate.

(5) The magistrate shall consider all factor relating to the detention
includes the length of detention and the nature of interrogation.

(6) The recording of this is done by the private agency in the presence of
accused lawyer.

(7) All the narrative statement during the test relating to an offence must
be taken on record and submit to a court.

Therefore, irrespective of many provisions of the National Human Right

Commission, for the applicability of this test and reliability. Section 45 of Indian
Evidence act in Amended with the implementation of modern technique.165 Recently
in Bhanwari, murder case, CBI has evaluating the case with the help of polygraph
test.

4.6.6 Handwriting expert

An expert, therefore within the meaning of the IEA is a person who has a
special knowledge and skill in the particular subject to which the enquiry relates,

164
AIR 1978 SC 1025.
165
The Polygraph test : Towards Progress or Regress? International Journal of Applied Research
and Studies Vol. 2 Issue 11 (Nov. 2013).

192
and the opinion of the handwriting expert is relevant when the court has to form an
opinion as to identity of a disputed handwriting or signature.166

The term 'expert' as applied to a witness has a special significance and no

witness is permitted to express his opinion unless he is an expert within the terms of
the Section.167 The Section does not refer to any particular degree or standard of
Study or experience that would qualify a person to be an expert.

"An expert in order to be competent witness need not have acquired his
knowledge academically. It is sufficient so far as the admissibility of his evidence
goes, if he has made a special study of the subject, or acquired a special experience
therein."168

It can be therefore be safely averted that any person who has made it his
business to study a particular subject thoroughly and has acquired a definite
knowledge in the branch in which he offers his opinion is an expert within the
meaning of Section 45 of the Indian Evidence Act.

"An expert is one who has acquired special knowledge and skill in any
science. His pinion based on observations or experiments is relevant in cases where
questions relating to his science arise."169

"If the opinion of the handwriting expert is found by a court to be honest and
reliable, after subjected it to the recognized tests evidence that the evidence of
indifferent witnesses whose motives are often mixed and whose powers of
observation and recollection are very faulty. The observation of the expert are far
more careful and guided by scientific knowledge and skill which, where they exist
must be duly appreciated."170

166
M.K. Mehta, "Identification of Handwriting and Cross Examination of Experts”( N.M. Tripathi
Pvt. Ltd., 4 Edn 1970).
167
Ram Dass v. Secretary of State : 1930 A.I.R. Allahabad.
168
United States Shipping Board v. The Ship "St. Albars"587. A.I.R. 1931 P.C. 189 : 128 Ind. Cas.
441: 1930 Allahabad 587.
169
Nagireddy A. v. State : Andhra Pradesh (1958), 1 An. W.R. 178 (1968) M..L..J. (Cri) 131.
170
Devi Prasad and another v. State : A.I.R. 1967, Allahabad.

193
 “Opinion of one expert is not to be given preference simply because he is
better qualified than the other. In such cases the opinion has to be valued on the
basis of the reasons given by the experts than on their qualification."171

Handwriting is a useful test of identity experiments and observation having

disclosed the fact which contain the general principles and question pertaining to the
reliability of genuineness of handwriting172 under Section 47 of the Indian Evidence
Act, it is only the opinion of person specially skilled in questions relating to the
identity of handwriting, which is relevant in nature. It is therefore, for the party, who
produce an expert shall have a requisite skill.173 In R v. Silverlock174, it is a solicitor
who acquired with a knowledge of handwriting amount to testify an expert. It may
be provide that witness need not be an expert for this matter but not expert opinion
may be received in accordance with the principles.

An expert is no more than a person passing peculiar skill and knowledge

upon the subject matter which is required as per the opinion.175 The Supreme Court
in one of his statement discussed that without examining the expert as a witness, no
reliance can be placed on his opinion.176 An expert given a particular document is in
the handwriting which is signed by particular person and while compared this, it
results in the conclusion with opinion.177 The equality of his opinion would depend
upon the sounded reasons. No hard and fast rule can be laid down in that behalf for
the merit of the case.178 In Ram Chandra v. State of U.P.,179 the Apex held that it is
unsafe to treat expert handwriting opinion as sufficient basis for conviction which is
relied upon and supported by the internal and external evidence. The court again
pointed out in the case of Ishwari Prasad v. Md. Isa180, in which it was held that
expert evidence of handwriting can never be conclusive as after all, it is opinion
evidence. This case again pointed in the year 1964 by the Hon'ble Supreme Court
which observed that the expert evidence as to handwriting being opinion evidence

171
Panna Lal v. Bhabhut Singh and Others. A.I.R. 1962, M.P.L.J. 127.
172
M.Monir, "Law of Evidence" Vol. I, Universal Law Publishers, P. 1016.
173
Chet Ram v. Jogi Ram, 127 IC 368, 1930 L. 386.
174
[1894] 2 QB 766.
175
Lawson 'Expert and opinion Evidence', 2nd Edn., 153.
176
State of Maharasthra v. Damu, A.I.R. 2000 SC 1691.
177
Sir Rupert Cross and Nancy Wilkins, "Law of Evidence” London Butterworths, 4 Edn, 1975.
178
State of Maharasthra v. Sukhdeo Singh AIR 1992 SC 2100 (2116).
179
Ram Chandra v. State of UP AIR 1957 SC 381.
180
AIR 1963 SC 1728.

194
can rarely, if taken place the substantive evidence which is desirable to be
considered whether it is direct evidence or circumstantial evidence.181

Therefore, in case of comparison is made it should be admitted as alleged

and the comparison in open court be held and opinion of expert on handwriting are
useful in so far as the appearance which can be supported by the judge.182

Evidence must always be received with great caution than the opinions of
183
handwriting experts. The Court as a matter of prudence and caution should
hesitate or be slow to base it finding solely upon the observation or comparison of
Handwriting ,which provides a decisive weight or influence of its decision.184

In Chamkaur Singh v. Mithu Singh 2014 (1) CCC 389 (P&H) at p. 391 ,in
this case it was pointed out that ordinarily, signature & handwriting of a person who
is alleged to have signed or written document in question can be proved (i) by
calling a witness who wrote the document (ii) by admission of a person whom the
document is tendered and (iii) by calling a person as witness who saw the document
being written/ signed.

The first two methods are excluded as the scribe of the questioned
documents is an interested party. Third method is not feasible as more often there is
no eye-witness who will be only seeing the writing or signing of the documents and
have no other role to play regarding the said document.

Section 45, 47, 67, 73 of the Indian Evidence act are relevant to determine
the questions, as arise in the present petition, which read as under :-

“When the court has to form an opinion upon a point

of foreign Law, or of science, or art, or as to identify
of handwriting or finger impressions, the opinion
upon that point of persons specially skilled in such
foreign law, science or art, or in questions as to

181
Shashi Kumar v. Subodh Kumar AIR 1964 SC 529.
182
Sir Manmatha N. Mukerji.4 Trial by Jury and Misdirection" p. 533 (Eastern Law House,
Calcutta, 1937).
183
Sarkar' Law of Evidence', p. 510.(Wadhwa &Co., Nagpur ,11 Edn, 2008.)
184
Ajay Kumar Parmar v. State of Rajasthan 2012 (4), RCR (Cr) 617.

195
 identity of handwriting or finger impressions are
relevant facts. Such persons are called experts.”185

When the court has to form an opinion as to the person by whom any
document was written or signed, the opinion of any person acquainted with the
handwriting of the person by whom it is supposed to be written or signed that it was
or was not written or signed by that person is a relevant fact186.

If the document is alleged to be signed or to have been written wholly or in

part by any person, the signature or the handwriting of so much of the document as
is alleged to be in that person handwriting must be proved to be in his
handwriting187.

In order to ascertain whether a signature, writing or real is that of the person

by whom it purports to have been written or made any signature, writing or real
admitted or proved to the satisfaction of the court to have been written or made by
that person may be compared with one which is to proved, although that signature,
writing or seal has not been produced or proved for any purpose188.

The fundamental problem with the expert opinion on handwriting is the non-
scientific nature of expert opinion on comparison. While comparing handwriting
samples, number of variables are compared. The variable on which the experts base
their opinion are only evidence of some tendencies which can also be affected by
numerous extraneous factors, such as state of mind, haste, self conscious,
intoxication, etc.

Although, the evidence of handwriting expert is a weak type of evidence yet

the court has power under Section 73 of the Act to examine the handwriting itself.

In Barinder Kumar Ghose & Ors. v. The Emperor,189 it was held by the
Apex Court as under :

185
Section 45, Opinion of Experts.
186
Section 47. Opinion as to Handwriting when relevant.
187
Section 67- Proof of Signature and Handwriting of a person alleged to have signed or written
document produced.
188
Section 73 Comparison of Signature, writing or real with others admitted or proved.
189
XIV CWN 1114 at p. 1117.

196
 "A document may be used in evidence for the purpose of
affecting some with knowledge of its contents regardless of
whether the contents are true or false, or for the purpose of
proving the truth of that which it contains. But at the same time, a
statement whether oral or written can be used, against a person
to prove the truth of the matter stated, if, as against him, it can be
regarding as an admission. But ,the facts must be proved by
virtue of which it can be regarded as an admission."

Section 293 of Cr.P.C. is not applicable to the report of handwriting expert.

The handwriting may be proved on admission of the writer and the evidence of a
witness in whose presence he wrote. This is a direct evidence and if it is available,
the evidence of any other kind is rendered unnecessary. Besides this, three methods
are to be the taken into consideration. First, handwriting of a particular individual
who familiar with the handwriting of a person. Second, the comparison of the
handwriting to scrutinize it. Third ,it must taken in the presence of the court.

4.6.7 Fingerprint Expert

The Science of comparison of Fingerprints has developed to a stage of

exactitude. It is quite possible to compare the impression taken from fingerprints of
individuals with the disputed impressions provided they are sufficiently clear and
enlarged photographers are available. The courts can themselves examine the
impressions.190

There is no rule of law that a conviction cannot be based on the sole

testimony of a Fingerprint experts.191The science relating to finger print analysis
and comparison have developed to such a height that today it is admitted as an exact
science and leaves no room for doubt or mistake. So, the these that opinion evidence
of an expert can never be acted upon unless substantially corroborated by other
evidence is not well supported by any rule of law or rule of prudence specially in
respect of Fingerprint expert.192

190
Re Govida Reddy, AIR 1958 Mys 150; 1958 Cri. L.J 1989.
191
The State v. Karu Gope, AIR 1954 Pat 131: 1954 Cri .L.J 201.
192
Padmanana Mahapatra v. State of Orissa, 1983 Cri. L.J (NOC) 283 (Ori).

197
 Court must satisfy itself about the correctness of the conclusion of
Fingerprint expert by comparison of prints.193 It is duty of the court to scrutinize the
evidence of a finger print expert by comparing the prints himself.194

Sir William Hershel, first advocated the use of Fingerprinting in the

identification of Criminal suspects. The identification of criminals through
fingerprints was the break though in the scientific investigation of crime. The
importance of fingerprints in criminal investigation is unique and permanent in
nature. The Investigating officer got the finger impressions of the suspected person
know the surface of the commission of crime. In Mohd Khan v. State of
Rajasthan,195 it was held by the Hon'ble Court held that the suspicious
circumstances relating to an offence can be sort out with the genuineness of the
specimen fingerprint. Again, it was held that the reliability of the finger print
evidence is this case as glass on which finger print of the accused was found, seized
ten days thereafter and while accused was in custody. There is a possibility of
tampering and fabrication of evidence. Fingerprint evidence could not be relied upon
for basing conviction.

In Ammuni v. State of Kerala196, the Supreme Court observed that

importance of Fingerprints evidence relating to the earlier photograph were not clear
to enable the expert to come to any definite conclusion, and therefore it was doubted
whether the subsequent photographs were the original fingerprints. As laid down,
there is no precise rule for the qualification of the person possess to be able to
depose as an expert in the examination of fingerprints.

In Sunil Chowdhary v. Arup Kumar Ghosh,197 the Division Bench of

Calcutta High Court observed that the Opinion of a Handwriting expert, unlike that
of a fingerprints expert, is generally of a frail character and that its fallibilities had
been quite often noticed. The Supreme Court in Thiruvengadam Pillai v.

193
State of M.P. V. Sitaram Rajput, 1978 Cri. L.J 1220 (MP).
194
In re. Bhasyakaracharyulu, AIR 1960 AP 164: 1960 Cri .L.J 315.
195
AIR 1997 SC 2960.
196
Ammuni v. State of Kerala (1998) 2 SCC 301.
197
Sunil Chowdhary v. Arup Kumar Ghosh AIR 2006 Calcutta 109.

198
Navaneethammal,198 it was held that disputed Fingerprints is smudgy, vague or very
light, the court should not hazard a guess by a casual perusal.

In Prakash v. State of Karnataka 2014 (3) RCR (Cr) 744 (SC),199 it was held
that taking of Finger prints of accused. It would be eminently desirable that
fingerprints were taken under the orders of a magistrate. There was possibly of
police fabricating evidence and to avoid an allegation for such a nature. This would
equally apply to the creating evidence against a suspect. In this case of murder,
accused did not give Fingerprints voluntarily, but perhaps unwittingly and in what
seems to be deceitful manner. The entire exercise of identification of accused from
Fingerprints is shrouded with mystery could not be given any credence. Therefore, it
can be concluded while saying that expert evidence on Fingerprint verification ranks
higher than that on signature comparison as fingerprints are not subject to vagaries
and inconsistent in nature. It is advisable that expert for examining fingerprints as
same involves a scientific study and forensic analysis which court is incapable of
undertaking independently.200

4.7 185th LAW COMMISSION REPORT

The Indian Evidence (Amendment Bill, 2003) has reviewed the Indian
Evidence Act inserted Section of 45A , 45B and substituting the Section 50, 73
and 112, 148A, 154, 155A and 157A of the principal act by adding the proviso with
the explanation.

Opinion as to relationship, when relevant Section 50:

Opinion expressed by conduct is evidence of relationship under this section.

This proviso however stated that such opinion shall not be sufficient to prove a
marriage in proceeding under Section. 494 Indian Penal Code. The proviso is
amended and is put in general Language to say that opinion by conduct is not
sufficient proof of such marriage civil or criminal proceeding.

198
2008 (5) SCJ 18.
199
Prakash v. State of Karnataka 2014 (3) RCR (Cr) 744 (SC).
200
Anapalli Bhaskar & Ors V. Gudy Venkateswarlu & Ors 2014 (1) Civil Court Cases 587 (A.P.)

199
Comparison of signature, writing or seal with others admitted or proved
Section 73:

The Court can compel any person present in court to court to will any words or
figures for comparison. Subsection (4) now inserted restricts this power in criminal
cases unless cognizance of the offence is taken by the court.

Section 112 contained only a single exception, namely, non-access to prove a person
is not the father. But, having regard to development in science and changes in law in
other countries-impotent, blood test Analysis. DNA analyzis are brought in as other
exceptions. But, at least two tests conducted in each type of test must have led to an
inference that the male is not the father. (If the samples or DNA match, there cannot
be an inference that the male is the father).

Accused person not to be asked certain questions Section 148A:

This section is new and is incidental to Article 20(3) of the Constitution of India,
even where the accused offers under Section 315 Cr. P.C to give evidence. He
cannot be asked if he has committed other offences except in four specific
limitations mentioned in the section, In the third exception, it is specifically stated
that question can asked in regard to character but not of the prosecution.

Hostile witness Section 154:

There is a lot of controversary about the Evidence of Hostile Witnesses.

Recommendations have been made in 178th Report of Law Commission as to
recording statements under Section 162 of the Code of the Criminal Procedure by
magistrates at least where punishment is above 10 years. Subsection (2) is proposed,
accepting the judgment of the Supreme Court that nothing in this section shall
disentitle the party so permitted (to cross examine his own witness) to rely on any
part of the evidence of such witness.

Impeaching the credit of accused while examine him as witness Section 155A.

This section is new and covers cases where the accused offers himself as a witness
under Sec. 315 Cr.P.C, 1973 and he cannot be asked question about offences other
than the one charged or that he is of bad character.

200
Establishing Credit of Witness by Independent Evidence Section 157A:.

This is a new provision and fills a gap in the Act. It permits a party to adduce
independent evidence to establish the credit of a witness which is impeached
notwithstanding anything in Section 153 of the Evidence Act which excludes
evidence to contradict answers to question testing veracity of a witness.

In all, the Commission has come out with review of the provision left in 69th
Report with an appreciable task and these provisions are to be implanted in order to
render futile trials which faced the problems in the existing law for the criminal
justice system.

4.8 CONFLICT BETWEEN MEDICAL EVIDENCE AND OCULAR

EVIDENCE

Oral evidence has to get primacy and medical evidence is basically

opinionative. It is only when the medical evidence specifically rules out the injury as
claimed to have been inflected as per the oral testimony, then only in a case, the
court has to draw adverse inference. In Gangadhar Behera and others State of
Orissa201, The Hon 'ble court Pointed out in this case that it would be appropriate to
deal with the place that ocular evidence and medical evidence are at juncture. It
would be erroneous to accord undue primacy to the hypothetical answers of medical
witnesses to exclude the eye witnesses account which had to be tested independently
or not, treated as the "variable" keeping medical evidence as the "constant".

Similarly in Shyam v. State of M.P.,202 the Court held that:(i)

Overdependence on such opinion evidence, even if the written is an expert in the
field to check mate the direct testimony given by an eyewitness is not a safe mode
adoptable in Criminal case (ii) Medical evidence can be used to repel the testimony
of eyewitness only if it is so conclusive as to rule out even the possibility of the
eyewitness's version to be true.

Ocular evidence would have primacy unless, it is established, that oral

evidence is totally irreconcilable with medical evidence. The ocular testimony of a

201
Gangadhar Behera and others State of Orissa ,2003 SSC (Cri) 32 (2003) 1 Cr.L.J SC 41;
(2003) 1 Crimes 28.
202
2007 (2)RCR (Cr)62(SC).

201
witness has evidentiary value vis- a- vis medical evidence. If medical evidence
marks the ocular testimony improbable, that becomes a relevant factor in the process
of evaluation of the evidence. However, where the medical evidence goes so far that
it completely rules out all possibility of ocular evidence the ocular evidence may be
disbelieved. 203

Medical Evidence revealed that shot had hit the head of humerus, which got
punctured and signs of wounds were slightly below from right to left. On the basis of
direction of the movement of the pellet inside the victim as found by doctor, it
cannot be said that there is an inconsistency between Medical Evidence and Ocular
Evidence. 204 If there is a contradictions between medical evidence and the ocular
evidence then oral evidence prevails only when the medical evidence is
irreconcilable. In Sudo Mandal @ Diwarak Mandal v State of Punjab205, the Court
acquitted the Accused on following ground:-

I. Medical evidence showed there was only one head injury. Eye witness stated
that four accused person implicated injuries with silver scale wooden log,
iron bar and brick that it showed there was no eyewitness and the witness has
been planted by investigation agency.
II. Evidence of the eye witness that he got the deceased admitted in hospital and
went to his native village to bring money not believed. The witness was
brother of deceased.
III. Deceased remained in hospital for four days and FIR lodged when the
deceased deed.

In the case of Gajoo v. State of Uttrakhand206, it held that while appreciating

the variation between the medical evidence and ocular evidence, primacy is given to
the oral evidence of the witness again, in the case Kuria v State of Rajasthan,207 if
there is a contradiction between two, expert where it is totally irreconcilable with the
medical evidence oral evidence has privacy. In Bhakion @Bakul Boroh v State of

203
Rakesh v. State of M.P. (SC) 2011(4)RCR(Cri)355; Abdul Sayeed V. State of M.P. 2011(1) RCR
(Cri) 550 (SC)
204
Lallan Chaubay v State of UP 2011(5)RCR (Cr) 161 (SC).
205
2011(2) RCR (Cr) 543 (P&H) (DB).
206
2012(4) RCR (Cr) 921.
207
2012(9) SCALE 42.

202
Assam,208 it held that accused convicted and sentenced to life imprisonment
conviction sought to be quashed on the ground that as per medical evidence there
was no mark of sexual violence on the genital organs of the body. Contention not
tenable. It was held that there is no reason to disbelieve the version of eye witness
which was corroborated by other witness. But, in Rakesh v State of Haryana,209 it
was held that while recording History patient, doctor noted that it was accidental fire
while cooking food which had caused the burn injuries. It was viewed that
categorical statement by deceased in her dying declaration to the contrary, reference
made by doctor while recording history of patient would not affect prosecution

In Sunil Kundu v State of Jharkhand,210 it was held by the Supreme Court

ocular evidence has precedence over medical evidence but medical evidence be
relied upon, where testimony of eye-witness was tainted and improvements were
made by the witnesses in the court.

In Kailash v State of M.P,211 it was held that when oral evidence is found to
be inconsistent with the medical evidence the question of relying upon one or more
other would depend upon the facts and circumstances of each case No hard and fast
rule can be laid down therefore. In Khamban Raja Reddy b. Public Prosecutor, High
court of A.P.212 , the Court pointed out that the medical evidence believed in
preference to ocular evidence. Prosecution version that accused lifted a stone
weighing 20/30 Kg and dropped on the head of deceased who was sleeping.
Evidence showed that accused had been crippled by polio, could not life the heavy
stone. As per medical evidence, no depressed injury was found on head nor there
was oozing of blood from ear and mouth of deceased. Ocular evidence not believed.
Conviction of accused set aside.

In Ram Dhari v State of Haryana,213 as per medical report there was only
one head injury. PW is deposed that all the accused inflicted one head injury each.
They contradicted their previous statements. Conviction set aside. The Hon 'ble

208
2013(9) RCR 769; 2013(3) Recent Apex Judgment (R.A.J.) 144.
209
2013 (2) Crimes (SC) 250; 2013 (3) RCR (Cr.) 568.
210
2013 (2) Crimes (SC) 220; 2013 (4) SCC 422.
211
2007(1) RCR (Cr) 230 (SC).
212
2006(4) RCR (Cr) 459 (SC).
213
2006(3) RCR (Cr) 85 (P & H) (DB).

203
Court pointed out in Bali Singh v State of U.P,214 it was held direct ocular evidence
supported by dying declaration and corroborated by medical evidence. No challenge
to dying declaration made by deceased. Trial court as well as the High Court
accepted this evidence and based their finding on the same. In Abdul Sayeed v State
of Madhya Pradesh215, It was that the witness cannot be able state as how many
injuries and in what manner the same had been caused by the accused. In such a fact
situation, discrepancy in medical evidence and ocular evidence is bound to occur.
However, it cannot tilt the balance in favour of the accused though the ocular
testimony of a witness has greater evidentiary value vis-a vis medical evidence.
When medical evidence makes the ocular testimony improbable, that becomes a
relevant factor in the process of the evaluation of evidence. However, the medical
evidence goes so far that it completely rules out all possibility of the Ocular
evidence being with, the ocular evidence may be disbelieved.

In a criminal trial, a witness is often pitied against the medical evidence

where the witness only has the memory-recall to his aid, whereas the medical expert
is fitted with all the post-incident analysis along with scientific apparatus at his
command.

In Darbara Singh v State of Punjab216, the Hon'ble Court gave the verdict
that unless the oral evidence is totally irreconcilable available is totally
irreconcilable with the medical evidence, the oral evidence would have primacy. In
the event of contradictions between medical and ocular evidence, the ocular
testimony of a witness will have greater evidentiary value vis-à-vis medical evidence
and when medical evidence makes the oral testimony improbable, the same become
a relevant factor in the process of evaluation of such evidence. It is only when the
contradiction between the two is so extreme that the medical evidence completely
rules out all possibilities of the ocular evidence being true at all, that the ocular
evidence is liable to be disbelieved. In Dilranjan @ Manga v State of Haryana,217
the court held that the statement of witnesses has to taken as a whole and not by pick
and choose, which is favourable to one of the parties. Scrutiny of statement when

214
2006(2) RCR(Cr) 234 (SC).
215
2011 (1) RCR(Cr) 550 (SC).
216
2014(3) RCR (Criminal) 362.
217
2014(4) Cri.CC 138; 2014 RCR (Cr)935(DB).

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there is conflict between ocular and medical evidence the primacy is to be given to
ocular evidence and the medical evidence is only an opinionative nature.

However, where the medical evidence goes so far that a completely rules out
all possibilities of the ocular evidence being true, the ocular evidence may be
disbelieved.
4.9 ADMINISTRATION OF JUSTICE RELATING TO EXPERT
WITNESS

Criminal law and the administration of criminal justice are fast developing
and we needs to keep up with these developments. The law is not and cannot be
static. It must change with the changing needs.218

Thus, for the administration of justice, it is duty of a judge to test the

credibility and its evidentiary value of the report of the expert with reference to
internationally accepted text, to satisfy judicial conscience , that caution is required
to be observed, cross check to be carried out, pitfall’s to be avoided.219 The courts,
normally looked upon the expert evidence with a greater sense of acceptability, but
as the courts are not absolutely guided by the reports of experts especially, when it is
perfunctory and unsustainable. The Courts are meant to enforce the rule of law and
not to pass the order or direction which are contrary to what has injected by law.
Section 327 of the Cr.P.C, explained that the Criminal Court is held for the purpose
or trying into the offence which shall be deemed to be in open court. An expert
witness is a professional expertise in his area. Effect of his evidence cannot be
undermined .Evolution of technology, use of scientific techniques in criminal
investigation and their deposition of the expert witness has secured and ensured the
victim of the better opportunites of justice coming his way rather than only
dependence on the statements of witnesses to the scene of crime. Though not
conclusive on matters that an expert deposes, and opinion is the crucial conclusion
for the administration of Criminal Justice System.

218
Karnail Chand v. State of Punjab, 2011 (4) RCR (Cr) 527
219
S.J.Chowdhary v.CBI,2010(6)RCR(Cr.)3099.

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