FORENSIC SCIENCE AND INDIAN EVIDENCE ACT: THE LEGAL SCENARIO

7.5 LAW OF EVIDENCE

SUBMITTED TO: - (DR.) HIMANSHU PANDEY

(ASSOCIATE PROFESSOR OF LAW)

SUBMITTED BY: - DEBARPITA PANDE

UG 2016-17

IV YEAR: - SEMESTER VII

MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

 TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 3
DEVELOPMENT OF FOREIGN SCIENCE IN INDIA ....................................................................... 4
PROCEDURE ............................................................................................................................... 5
LITERATURE REVIEW ............................................................................................................... 6
FINDINGS.................................................................................................................................... 7
CONCLUSION ............................................................................................................................. 9
SUGGESTIONS .......................................................................................................................... 10
BIBLIOGRAPHY ........................................................................................................................ 11
 INTRODUCTION

According to one definition, the word “forensic” means the application of scientific knowledge
to legal problems. The term “forensic science” refers to a group of scientific disciplines which
are concerned with the application of their particular scientific area of expertise to law
enforcement, criminal, civil, legal, and judicial Matters.

Forensic Science is application of science or scientific techniques to the law and to solve crime.
Forensic Experts, Forensic Scientists, Crime Investigators and Examiners applies forensic
science techniques to solve crime, examine & authenticate: evidences, suspected documents,
fingerprints, digital files etc…

The results of forensic related investigations are often detailed in a forensic report. These
reports are often used for several purposes, including billing, affidavit’s, and as proof of what
was found or not found. These reports are very important to a case. The expert opinions and
reports to various courts in India and abroad under section 45 of Indian Evidence Act, which
were highly appreciated, accepted and acknowledged for accuracy and expertise.1

Forensics include- the examination of scenes of crime, recovery of evidence, examination of

evidence, interpretation of findings and presentation of the conclusions or results reached for
use in court / justice.2

OBJECTIVE

 To find out the scope and admissibility of forensic report in Indian courts & to know about
the admissibility of DNA as evidence in court?
 Whether or not there been any Development in the Field of Forensic Law? and
 If there has been Development in the above Forensic Law, do these developments increase
the rate of conviction?

1
Evidentiary Value of Forensic Reports in Indian Courts, Himanshu Setia, Research Journal of Forensic
Sciences Vol. 4(6), 1-7, June (2016) <http://www.isca.in/FORENSIC_SCI/Archive/v4/i6/1.ISCA-RJFS-2016-
006.pdf> last accessed 11 November 2019.
2
Evidentiary Value of Forensic Reports in Indian Courts, Himanshu Setia, Research Journal of Forensic
Sciences Vol. 4(6), 1-7, June (2016) <http://www.isca.in/FORENSIC_SCI/Archive/v4/i6/1.ISCA-RJFS-2016-
006.pdf> last accessed 11 November 2019.
 RESEARCH METHODOLOGY

The methodology used in the present project relates to the usage of secondary data. Secondary
data being used shall be in the form of online databases and books written and published by
author’s experts in this area of Law.
DEVELOPMENT OF FOREIGN SCIENCE IN INDIA
Development phases of forensic science are as follows3:

 The first Chemical Examiner’s Laboratory was, therefore, set up for this purpose at the
then Madras Presidency, under the Department of Health, during 1849.
 Later, similar laboratories were set up at Calcutta (1853), followed by one each at Agra
(1864) and Bombay (1870). These laboratories were equipped to handle toxicological
analysis of viscera, biological analysis of stains of blood, semen, etc. and chemical
analysis of food, drugs, and various excisable materials to provide scientific support to
the criminal justice delivery system within their limited means. These laboratories also
provided analytical facilities to the neighbouring States and Union Territories
 The foundation of the Department of Explosives was laid when the first chief inspector
of explosives was appointed in the year 1898, with his headquarters at Nagpur. Later,
five regional offices at Calcutta, Bombay, Agra, Madras and Gwalior, and three sub-
offices at Shivkashi
 Institute named as Serology Department’ was established in Calcutta in 1910
 During the year 1915, a Footprint Section was established under the CID, Government
of Bengal, which helped the police authorities to identify criminals through the
examination of footprints collected from the scene of crime.
 1917, a Note Forgery Section was set up under the CID, Government of Bengal, to
undertake the examination of forged currency notes
 In 1930, an Arms Expert was appointed and a small ballistic laboratory was set up under
the Calcutta Police to deal with the examination of firearms
 During 1936, a Scientific Section was set up under the CID in Bengal and facilities
were created for examination of bullets, cartridge cases, firearms, etc., used in
committing crime

3
Sodhi J.S.; Kaur, asjeed (2005). ―The Forgotten Indian Pioneers Of Fingerprint Science‖. Current Science 88
(1): 185-191.
  The first state forensic science laboratory in India was established in the year 1952 at
Calcutta. This laboratory became fully operational in the year 1953
 The first Central Finger Print Bureau (CFPB) in India was established in 1905 at
Shimla.
 CDTS, Calcutta, a premier detective training school in India, was established during
1956 (Central detective training school at Calcutta),
 The first Central Forensic Science Laboratory was established at Calcutta during 1957.
To begin with, this laboratory was organized into four basic disciplines viz. Forensic
Physics, Forensic Chemistry, Forensic Biology and Forensic Ballistics.
 The Central Detective Training School, Hyderabad was established in 1964, on the
pattern of the CDTS, Calcutta, followed by another one at Chandigarh, during 1973.
 The Indian Academy of Forensic Sciences (IAFS) was established in the year 1960.
 The Institute of Criminology and Forensic Science (ICFS) was established in Delhi
during 1971 with the limited objectives of imparting training to the in-service personnel
and conducting research in Criminology and Forensic Science.

PROCEDURE
During an investigation, forensic evidence is collected at a crime scene, analyzed in a
laboratory and often presented in court. Each crime scene is unique, and each case presents its
own challenges. Complex cases may require the collection, examination and analysis of a large
amount of evidence.4

These cases may involve multiple forensic experts with backgrounds in biology, chemistry,
physics, computer science and other disciplines. These forensic scientists work separately to
analyse the evidence in a particular case.5

Forensic science is the use of science in the service of the law. Sciences used in forensics
include any discipline that can aid in the collection, preservation and analysis of evidence such
as6:

 Chemistry (for the identification of explosives),

4
Sodhi J.S.; Kaur, asjeed (2005). ―The Forgotten Indian Pioneers Of Fingerprint Science‖. Current Science 88
(1): 185-191.
5
Sodhi J.S.; Kaur, asjeed (2005). ―The Forgotten Indian Pioneers Of Fingerprint Science‖. Current Science 88
(1): 185-191.
6
Dr. Gopal Ji. Misra & Dr. C. Damodaran, ―Perspective Plan For Indian Forensics‖, Final Report presented to
the Ministry of Home Affairs Government of India, New Delhi.
  Engineering (for examination of structural design)
 Biology (for DNA identification or matching).

A forensic scientist is expert in any technical field and can provide an analysis of the evidence,
witness testimony on examination results, technical support and even training in his or her
specialized area.7

Analysis of forensic evidence is used in the investigation and prosecution of civil and criminal
proceedings. Often, it can help to establish the guilt or innocence of possible suspects. Forensic
evidence is also used to link crimes that are thought to be related to one another.

LITERATURE REVIEW
Chadda (2013) said that Forensic evaluation is an essential part of psychiatric practice. Forensic
psychiatrists play an important role in the society in assisting the judiciary in many complicated
cases. In India, forensic psychiatry work is undertaken mostly by the general psychiatrists.
Forensic psychiatric assessments are often associated with an element of anxiety or fear for a
young psychiatrist. The object of the paper is to enable the readers to learn about forensic
evaluations so that they can apply the same in real life situations. Some examples of the real‑life
questions taken from the court orders to a hospital regarding psychiatric assessment of an
accused person8:-

Whether the accused is suffering from a mental disorder; if yes, what is the nature of mental
disorder? Whether the accused is of unsound mind? Whether he can understand the proceedings
of the court and stand trial? Whether the accused was mentally ill to the extent that it led to
murder? And various examples of real life situations are mentioned in the paper. Assessment
areas include criminal responsibility, fitness to plead, issue of guardianship, assessment of
mental status, testamentary capacity and others.9

Sarkar (2006) in this paper makes an overview of the status and practice of forensic psychiatry
in India is given by the author. The old nature of mental health law, coupled with the criminal
justice system’s ignorance of underlying fundamental principles, affects thousands of MDOs.
There were many breaches of human rights and there is absence of access to legal help but
recently National Humans Commission of India is making lots of effort so that the rights could

7
Dr. Gopal Ji. Misra & Dr. C. Damodaran, ―Perspective Plan For Indian Forensics‖, Final Report presented to
the Ministry of Home Affairs Government of India, New Delhi.
8
Chadda R.K (2013), Forensic evaluations in psychiatry, Indian Journal of Psychiatry, pg. no 393-399.
9
Chadda R.K (2013), Forensic evaluations in psychiatry, Indian Journal of Psychiatry, pg. no 393-399.
not be violated and also with the efforts of judiciary, the author at the last concluding and
identifying the core areas that were required and needed to be changed.10

FINDINGS
DNA Testing: DNA is an abbreviation of Deoxyribo Nucleic Acid. It is an organic substance,
which is found in every living cell and gives an individual a personal genetic blue print. It can
be extracted from a whole variety of different materials like: Blood, saliva, semen, hair, urine,
body fluids, bones, body organs etc.11

DNA was discovered in 1869 by a Swiss scientist Frederick Micscher. Sir Alec. J. Jeffereys
discovered the use of DNA for forensic analysis in 1984.It was first used in England by the
police in the famous Enderby case involving two girls who had been raped and murdered.

The development of forensic DNA testing has expanded the types of useful biological
evidence. In addition to semen and blood, such substances as saliva, teeth, and bones can be
sources of DNA. These sources are expanding still further, as researchers explore the potential
of other biological substances, such as hair, skin cells, and fingerprints.

The Indian Scenario:

As per Section 45 of Indian evidence Act 1872- When the Court has to form and 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.12

Further as per Section 46 of Indian evidence Act 1872- it is stated that facts, not otherwise
relevant, are relevant if they support or are inconsistent with the opinions of experts, when such
opinions are relevant.

Thus the elements of section 45 and section 46 are highlights that:

 The court when necessary will place its faith on skills of persons who have technical
knowledge of the facts concerned.

10
Sarkar Jaydip & Dutt A.B (2006), Forensic Psychiatry in India: time to wake up, the journal of forensic
psychiatry & psychology, pg. 121-130.
11
National Research Council (US) Committee on DNA Technology in Forensic Science. DNA Technology in
Forensic Science. Washington (DC): National Academies Press (US); 1992. 1, Introduction
<https://www.ncbi.nlm.nih.gov/books/NBK234533/>.
12
Section 45, Indian Evidence act, 1872.
  The court will rely the bona fide statement of proof given by the expert concluded on
the basis of scientific techniques.
 The evidence considered irrelevant would be given relevance in eyes of law if they are
consistent with the opinion of experts.

Thus we see that expert evidence helps the courts to draw logical conclusions from the facts
presented by experts, which are based on their opinions derived by their specialized skills
acquired by study and experience. Hence, experts are routinely involved in the administration
of justice particularly in criminal courts.

DNA Technology in Indian Legal Scenario

Indian courts have time and again held that the evidence for proving non-access must be strong,
distinct, satisfactory and conclusive. DNA tests can be strong evidence as they are correct up
to 99% if positive and 100% if negative.

Indian courts have laid down certain guidelines regarding DNA tests and their admissibility to
prove parentage.

 That courts in India cannot order blood test as a matter of course;

 Wherever applications are made for such prayers in order to have roving inquiry, the
prayer for blood test cannot be entertained.
 There must be a strong prima facie case in that the husband must establish non-access
in order to dispel the presumption arising under Section 112 of the Evidence Act.
 The court must carefully examine as to what would be the consequence of ordering the
blood test; whether it will have the effect of branding a child as a bastard and the mother
as an unchaste woman.
 No one can be compelled to give sample of blood for analysis.

Crime Detection and DNA Technology

Though there is no specific DNA legislation enacted in India, Sec.53 and Sec. 54 of the
Criminal Procedure Code, 1973 provides for DNA tests impliedly and they are extensively
used in determining complex criminal problems.

Sec. 53 deals with examination of the accused by medical practitioner at the request of police
officer if there are reasonable grounds to believe that an examination of his person will afford
evidence as to the commission of the offence.
Sec. 54 of the Criminal Procedure Code, 1973 further provides for the examination of the
arrested person by the registered medical practitioner at the request of the arrested person. The
law commission of India in its 37th report stated that to facilitate effective investigation,
provision has been made authorizing an examination of arrested person by a medical
practitioner, if from the nature of the alleged offence or the circumstances under which it is
alleged to have been committed, there are reasonable grounds for believing that an examination
of the person will afford evidence.

Sec. 27(1) of Prevention of Terrorism Act, 2002 says when a investigating officer request the
court of CJM or the court of CMM in writing for obtaining sample of hand writing, finger
prints, foot prints, photographs, blood, saliva, semen, hair, voice of any accused person,
reasonable suspect to be involved in the commission of an offence under this act. It shall be
lawful for the court of CJM or the court of CMM to direct that such samples shall be given by
the accused person to the police officer either through a medical practitioner or otherwise as
the case may be.

CONCLUSION
There is a unanimity that medical and forensic evidence plays a crucial role in helping the
courts of law to arrive at logical conclusions. Therefore, the expert medical professionals
should be encouraged to undertake medico legal work and simultaneously the atmosphere in
courts should be congenial to the medical witness.

This attains utmost importance looking at the outcome of the case, since if good experts avoid
court attendance, less objective professional will fill the gap, ultimately affecting the justice.
The need to involve more and more professionals in expert testimony has been felt by different
organizations.

In the light of new developments in the forensic science, the home ministry, Govt. of India
constituted a committee under the chairmanship of Dr. Justice V.S Malimath to suggest reforms
in the criminal justice system. This committee suggested comprehensive use of forensic science
in crime investigation. According to the committee DNA experts should be included in the list
of experts given in section 293(4) of Cr.P.C, 1973.13

13
Committee on Reforms of Criminal Justice System, Ministry of Home affairs
<https://mha.gov.in/sites/default/files/criminal_justice_system.pdf>
 SUGGESTIONS
In, India, it is a common perception that lot of time and effort is required to record evidence
and therefore by enlarge members of the medical profession does not like to involve in medico
legal cases.

Some of the possible reasons put forward for this perception are:

 Undue time consumption;

 Repeated adjournments;
 Lack of work culture in the courts

If this above reasons were not found then the expert will more active to record the evidence
these are some the reasons why the experts are not showing real interest in the case.

Even though the sources are multiplying, the use of DNA evidence is currently limited because
much of what could be tested remains unrecovered and unanalyzed. The numbers are
increasing, but of all sexual assault convictions for which DNA collection is legislatively
mandated, samples were obtained from less than half of the individuals, and of the cumulative
number of DNA samples obtained, only 20 percent have been processed.

The reasons for the lag in evidence recovery and processing are scarcity of law enforcement
resources, lab backlogs caused by insufficient funding, and time-consuming and costly testing
methods. Given the deadlines imposed by the courts, it is not possible to analyze all the
potential evidentiary specimens submitted.

Some aspects of the justice administration that can be improved by the following measures:

 Discouraging routine summoning of doctors;

 Calling expert witness at pre-scheduled time;
 Recording expert’s testimony by alternative judicial officer in case of non-availability
of the presiding officer the court that summoned him.
 Amending provision of criminal procedures to have admissibility of the medical
records;
 Recording of experts’ testimony through video-conferencing.
 BIBLIOGRAPHY
Statutes:
 Indian Evidence Act, 1872.
 Code of Criminal Procedure, 1973
 Prevention of Terrorism Act, 2002

Books:
 Batuk Lal, The Law of Evidence (Central Law House, 2018).
 Jethmalani, The Law of Evidence: Commentary on Evidence Act, 1872 (Thomson
Reuters, 2013).

Articles:
 Chadda R.K (2013), Forensic evaluations in psychiatry, Indian Journal of Psychiatry.
 Kaestle Frederika A, Kitties Ricky A, Roth Andrea L, & Ungvarsky Edward J (2006),
Database Limitations on the Evidentiary Value of Forensic Mitochondrial DNA
Evidence, American criminal law review Volume 43.
 Merlino Mara L, Springer Victoria, Sahota Eric, & Haines Lori (2008), Meeting the
challenges of the daubert trilogy: refining and redefining the reliability of forensic
evidence, Tulsa Law Review.
 Sarkar Jaydip & Dutt A.B (2006), Forensic Psychiatry in India: time to wake up, the journal of
forensic psychiatry & psychology.
 Sodhi J.S.; Kaur, asjeed (2005). ―The Forgotten Indian Pioneers Of Fingerprint Science‖.
Current Science 88 (1): 185-191.

Government Reports:
 Dr. Gopal Ji. Misra & Dr. C. Damodaran, ―Perspective Plan For Indian Forensics‖, Final
Report presented to the Ministry of Home Affairs Government of India, New Delhi.
 National Research Council (US) Committee on DNA Technology in Forensic Science. DNA
Technology in Forensic Science. Washington (DC): National Academies Press (US); 1992. 1,
Introduction <https://www.ncbi.nlm.nih.gov/books/NBK234533/>.
 Committee on Reforms of Criminal Justice System, Ministry of Home affairs
<https://mha.gov.in/sites/default/files/criminal_justice_system.pdf>