THINK FORENSIC: IMPORTANCE & ROLE OF FORENSIC EVIDENCE

By- Vikalp Sharma

With the rapid increase in the development of science and technology, it posed several challenges in diverse areas. However, it has played a crucial role in the field of law, and decision making and DNA is a clear case that has taken the legal system.

Truth has been always been a hallmark in the criminal justice system. Both science and law totally different subjects combined together to ensure a fair process to get justice.

DNA or Deoxyribonucleic acid is the building block for the human body; virtually every cell contains DNA. The DNA in people’s blood is the same as the DNA in their saliva, skin tissue, hair and bone, etc.

Importantly; DNA does not change throughout a person’s life.Scientific evidence enables the investigators to identify individuals from their DNA. The first case where DNA fingerprinting technique was used was in Sarbah v. Home Office, Ghana Immigration case in 1985 where genetics expert Alec Jeffreys used the DNA evidence to prove and establish the relationship between mother and son[1].

The DNA test provides the perfect identity and is admissible[2]. The admissibility of DNA evidence in the Court must be accurate, preserve and with proper documentation.

In India, there is no specific legislation which provides guidelines to adapt scientific methods such as DNA as its evidence, however Section 53 of Code of Criminal Procedure, 1973 authorises the police officer to get a help from medical practitioner in good faith for the investigation, however this Section does not enable a complainant to collect blood, semen etc. for bringing the criminal charges.

DNA test has played a crucial role in getting justice. In India there was case of a veteran congress leader ND Tiwari to undergo DNA test.

In the case, Rohit Shekhar has claimed to be the biologic son of the ND Tiwari, however, Mr. Tiwari was reluctant to undergo the test and stated that it would be the violation of his privacy rights, would cause public humiliation. Supreme Court rejected this point and said the test would be in sealed envelope so there is no point of getting humiliated.

Legal Position

The uses of forensic technique in India have to pass a threefold test which is:

  1. Constitutional validity: The constitutional validity of such a test can be challenged on the basis of Article 20(3), which provides that no person shall be compelled to be a witness against oneself. In-State of Bombay v. Kathi kalu[3], it was held that giving the specimen and information for forensic examination is just like providing relevant facts within the meaning of Section 9 and 11 of the Evidence Act and it does not fall under the parameter of evidence against oneself.
  2. Absence of Concrete Legislation: Presently, in India, there is no legislation to govern issues of admissibility of DNA evidence or forensic evidence, although there is some Section which governs scientific technique such i.e. Section 53, 54, 53(A), 164(A)of CrPC to certain extend. Thus, it is totally left on judicial discretion either to allow DNA tests or to deny.
  3. Evidentiary value of DNA or forensic information: General rule says that the opinion of a person having skills and knowledge in a particular field shall be admissible, thus the experts determine fact and furnish the information to the judicial officer. In Madan Gopal Kakkad v. Naval Dubey and Anr[4], it was held that the opinion of an expert is admissible. Although such proof is not conclusive but can be useful.

Judicial Cases

Gautam Kundu v. State of West Bengal and Anr[5]: It was held: “That courts in India cannot order blood test as a matter of course; Wherever applications are made for such prayers in order to have a 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 a sample of blood for analysis.”

Krishna Kumar Malik vs State of Haryana[6]: The Apex Court in a rape case observed, now after the incorporation of Section 53(A) in CrPC, brought to our notice by learned counsel for the Respondent-State, it has become necessary for the prosecution to go in form DNA test in such type of cases, facilitating the prosecution to prove its case against the accused.

Grey Area

In 2009, Satish Raj and Sabarish Raj were the twin brothers. One of them was the culprit however, both were taken into custody for drug trafficking.

The Brothers got acquitted and released by High Court on the sole reason that authorities could not determine which one of the two was in possession of the drugs.

Justice Datuk Zaharah Ibrahim described this case as a unique one and said that “although Satish Raj and Sabarish Raj looked alike and had identical DNA which made it difficult to differentiate between them, however, there was no doubt that one of them was the culprit. It is difficult for the authorities to determine the evidence or DNA in the case of identical twins.

Suggestions

  1. Well-equipped laboratories to be formed;
  2. Specific legislation should be passed with providing guidelines;
  3. National DNA database to be created;
  4. Proper training is to be provided to the investigative agencies;
  5. National commission to be created; and
  6. Amend existing provisions.

[1]Rana Saad, Discovery, development, and current applications of DNA identity testing (Feb. 2 2018)

[2]Pantangi Balarama Venkata Ganesh v. State of Andhra Pradesh, (2003) CRLJ 4508 AP

[3]State of Bombay v. Kathi kalu, AIR 1961 SC 1808.

[4] Madan Gopal Kakkad v. Naval Dubey and Anr, 1992 AIR SCW 1480.

[5]Gautam Kundu v. State of West Bengal and Anr, AIR 1993 SC 2295.

[6]Krishna Kumar Malik vs State of Haryana, (2011) 7 SCC 130.

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