ISSUES RELATED TO ADMISSIBILITY OF FORENSIC EVIDENCE IN ...

VOLUME 4 ISSUE 3 MARCH 2021 ISSN: 2456-9666

JUS IMPERATOR www.jusimperator.org

ISSUES RELATED TO ADMISSIBILITY OF FORENSIC

EVIDENCE IN INDIA: A LEGAL STUDY

SANYAM POKHRIYAL1 & SANTVANA SINGH2

ABSTRACT

The present study experimentally attempts to investigate the impact of Forensic Science in the

field of criminal investigation because of the recent increase in the crime percentage and not

exactly half of its prosecution and even less number of conviction has raised a question that what

isn't right with the criminal equity situation is it the criminal who has become extraordinary

brilliant that has commuting the wrongdoing and disappearing like wind or is it the failure on the

part of the investigating agencies who cannot lay their hands on the criminals. What is the

missing Lego of the riddle? The researcher's article's principal objective is to find out the missing

piece and analyze that when we have been bestowed with the latest scientific techniques of

wrongdoing detection, for what reason are we not making utilization of it. The methods consist

of Narco-analysis, Polygraph, Brain-mapping, D.N.A. Profiling, which is the burning subject

among individuals of the legal field. These methods are, as compared to the third-degree torcher

used by the police authorities, particularly humanistic, and the purported allegation which

considered these tests in humans according to the researchers are purposeless. One should

remember that there are several cases wherein the suspect was acquitted because of the benefit of

the doubt. And these techniques help in finding out the accurate picture behind the wrongdoing.

Through this research paper, the researcher wants to convey that these tests assist find with

outing the real accuse yet additionally helps in establishing the innocence of the suspects. And it

is about time to accept them into our criminal equity framework.

Keywords: Criminal Justice; Forensic Science and research; heinous crimes; Legal method

Evidentiary fee;

1 B.B.A.LL.B. (Hons.) X- SEMESTER(5TH YEAR) LAW COLLEGE DEHRADUN UTTARANCHAL UNIVERSITY DEHRADUN, UTTARAKHAND 2 B.B.A.LL.B. (Hons.) X- SEMESTER(5TH YEAR) LAW COLLEGE DEHRADUN UTTARANCHAL UNIVERSITY DEHRADUN, UTTARAKHAND



INTRODUCTION

The criminal justice machine consists of a particular department or the assortment of strategies,

our gatherings, and establishments that intend to guard or re - establish the instrument of social

manipulate. Additionally it can be described as 'the established or set up tactics wherein society

answers to good behaviors and individuals it sees as abnormal, challenging, intimidating,

complicated and unwanted. 3 Principally, the force of evildoer value device unwinding on

policemen, accusation, courts, and detainment facilities. These four bodies are locked inside the

fundamental capacity of bar, fame, indictment, assertion, fine, or resisting of liable individuals in

the open arena. An unpracticed criminal value gadget guarantees a comfortable and tranquil

society. In truth, the entire means of a coordinated local area depends upon novel and effective

criminal value apparatuses.

DEFINING FORENSIC SCIENCE

Forensic Science utilizes the technological apprehends-the practice to the individuals unlawful

and civil legal advice enforced through the cops' corporations via evildoer value device. The

Forensic Science technique allows the utility of data and the approach of numerous methods of

technology to prison matters. For verification evaluation, it entails using more than one

discipline consisting of treatment, physical sciences, forensic science and science, profiling of

DNA strands, laptop technology, and tech. Notwithstanding instance, physical science is applied

to apprehend the outline of bloodshed; science allows us to install the idea of a nameless suspect,

and science licenses us to discover the chemical type of diverse tablets. Hence, the feature of

forensic technology in criminal prosecution and the prison device is frequently minimized and

relatively critical. 4

Inauthentic India, the reason for innovative technology of forensic data is certifiably noncurrent

as clinical musings have arisen as commonly utilized via necessities of each guideline. Sir

William Herschel demonstrates utilizing fingerprinting to recognize criminal suspects. Finger

impression evidence changed into first consistently in the court of Argentina in the Eighteen

3 Francis Pakes (Ed), Comparative Criminal Justice 1(Routledge & Oxon, 3rd ed. 2015). 4 N. B. Narejo, M.A. Avais, Examining the Role of Forensic Science for the Investigative-Solution of Crimes,

252 SURJ (SCIENCESERIES) Vol.44 (2)2012.



Nineties and British court in the tear of 1902. Additionally, Forensic data confirmation is a field

that molds following the boundaries of the Indian prison gadget. The trademark offers a course to

those steering illegal investigations. It shows magistrates/judges a decision about the

extraordinary data. At this point, they can have a total recollect in recognizing hooligan and

common debate and is additionally advantageous in improving the cheat including ordinary

occasions.

In addition, the era of the Forensic age is the technology to be certain all capacities of realities.

This essential and capable valuable guide advances all administration of fairness conceivable in

unlawful, public, governmental, and societal surroundings. It offers packages of an era in

responding to criminal significance questions. In present occasions, Forensic technological

knowledge is an exceptionally advanced medical approach that is applied in criminal and civil

investigations; it's miles able to answer essential questions and paperwork and protected a

portion of unlawful justice mechanisms. It incorporates all famed strategies before-mentioned as

fingerprint evaluation, DNA evaluation, ballistics, firearms, subculture. It allows convicting

those responsible for the wrongdoing as well as can pardon the harmless. 5

FORENSIC SCIENCE IN LAW IMPORTANCE

The expression 'forensic' includes the foundations inside the Latin phrase 'forenses,' suggests the

conversation board. A conversation board expressed a public area where legal court occurrences

and discussions were kept in early Rome. Hence, the beginning and meaning of 'criminological

age' components close connection with the criminal contraption. Criminological Science contains

gathering, ensuring, and surveying evidence appropriate for arraigning a blameworthy party

inside the Court of guideline. Consequently, the product program of legal, mechanical data inside

the criminal value device is a detailed picture.

Forensic verification is utilized globally to convict and vindicate the defendant. Consequently,

forensic age laboratories have spread up wherever two or three years. In truth, unequivocal

demonstrations have been ordered inside the US, Canada, and Australia to improve forensic

5 Justice U.C. Shrivastava, Immunity from Self-Incrimination under Art. 20(3) of the Constitution of India,

JJTRI, U.P., http://ijtr.nic.in/articles/art19.pdf (last visited on 8.2.2016).

http://ijtr.nic.in/articles/art19.pdf%20(last



offerings. Addition in forensic laboratories may ensure that wrongdoings are identified with

more critical realities, and in this manner, conviction expenses can develop. Such demonstrations

are an excellent accentuation on time-green and eminent administration of crime locations.

LEGAL PROVISIONS SUSTAINING CRIMINAL INVESTIGATION

India with its advanced forensic technology software understands that misconduct inquiry and

prosecution have to endure the catch 22 situation of regulation.

Essentially steady with Articles 20(3) of the Indian Constitution, no man or woman involved in

any offense will persuade pressured to be a spectator for himself. Article 20(3) is primarily

looked upon the conjecture drawn via a law that the accused character is harmless until proven

responsible. It shields the involved via defensive him from the feasible ache/savagery of studies

for the duration of the arrest. Unlawful regulation considers a person as inoffensive till his

offense is confirmed past considerably less exceptionally priced dilemma. The Universal

Declaration of Human Rights, Article 11, "Right to the presumption of innocence" states that

"Anyone filled with a punitive offense holds the legitimate to be considered harmless till

confirmed accountable consistent with the order in a federal trial at which he guarantees critical

to defend. 6

Article 20(3) of the Constitution of India guarantees essential right towards self-incrimination

and guards towards persuasive testimony of any witness. Under Article 20(3), the crucial

legitimate confidence is a shielding umbrella in opposition to testimonial compulsion to

recognize oldsters accused of an offense to be a witness towards themselves. Notwithstanding,

the safety is now not handiest in identifying confirmation given in a trial earlier than Court; also,

at the past level. The protection within the course of self-incrimination envisaged in Article 20(3)

is to be had excellent simultaneously as compulsion is used and no longer toward voluntary

declaration, disclosure, or production of a document or excellent material. This legitimate has

been taken to ensure that a person isn't always fine to answer any question or produce any

6 Universal Declaration of Human Rights, United Nations High Commissioner For Human Rights

(last visited on 9.2.2016).



document or detail if that fabric needs to open the individual to conviction for a criminal offense.

7

Sec. 73 of the Indian Evidence Act offers authority to the Court to direct any individual and an

accused to allow his finger impressions to be taken. The Supreme Court has also held that being

forced to offer fingerprints does not violate the constitutional safeguards given in Art. 20(3).

There are many questions as to whether forensic verification violates Art. 20(3) of the Indian

Constitution or not? In The State of Bombay v. Kathi, Kalu Og had and Others; the Court held

that thumb impact, specimen signature, blood, hair, semen, and so forth the accused does no

more vast quantity to "being a witness" in the that means of the stated Article. The accused,

along these lines, has no appropriate thing for DNA examination for the features of investigation

and trial.

The Bombay High Court, in any other massive verdict inside the case of Ramchandra Reddy and

Ors. v. State of Maharashtra8 upheld the legality of using P300 or Brain fingerprinting, lie-

detector take a glance at, and the utilization of fact serum or narco assessment. The Court

sustained a particular court order granting SIT to conduct scientific tests at the accused in the

fake stamp paper rip-off, which incorporates the primary accused, Abdul Karim Telgi. The

verdict besides maintained that the proof procured under the impact of truth serum is also

admissible.

In a 2006 judgment, Dinesh Dalmia v. State, The Madras High Court9 sustained that governing

an imputed narco-assessment isn't equivalent to grounds through constraint. In any case, in a

subsequent case, i.e., Selvi and Ors v. State of Karnataka and Anr, the Supreme Court wondered

the legitimacy of the involuntary management of excellent medical strategies to enhance studies

endeavors in criminal occasions. In the above-stated case, the Supreme Court held that idea

mapping and polygraph checks were inconclusive, and in this way, their obligatory usage in an

illegal study may be unconstitutional.

7 Universal Declaration of Human Rights, United Nations High Commissioner For HumanRights

(last visited on 9.2.2016). 8 AIR 2004AllMR (Cri) 1704. 9 AIR 2006 Cri.L.J 2401



The Code of Criminal Procedure, 1973 has gotten amended in 2005 to facilitate gathering a

gaggle of medical data from accused people upon their arrest. Section 53 of the Criminal

Procedure Code 1976 offers that an accused individual may be subjected to a scientific exam

upon arrest if there are "considerably less expensive grounds for believing" that such exam can

have enough cash verification as to the wrongdoing. The quantity of this assessment changed

into extended in 2005 to encompass "the exam of blood, blood-stains, semen, swabs in case of

sexual offenses, sputum and sweat, hair samples and fingernail clippings with the aid of using

cutting-edge and scientific strategies at the side of DNA profiling and such special assessments

which the registered scientific practitioner thinks vital in a particular case.

Under The Indian Evidence Act, 1872, the forensic report appears like a "conviction" tendered

by specialists. A professional may be described as a person who, with the beneficial asset of

exercise and commentary, has to turn out to be experienced in any technological know-how or

his vicinity of knowledge. He is a person who has dedicated time and know-how to a unique

branch of getting to know and is therefore in particular master in that challenge in which he is

known as to provide is professional judgment. 10

LIMITED USE OF FORENSIC EVIDENCE IN INDIAN LEGAL SCENARIO

The maximum essential characteristic of forensic investigation is to trade doubt into valuable

facts of both blame or innocence. Nonetheless, until currently, the courts needed to depend

carefully on the non-medical evidence because of the non-availability of appropriate

technologies. 11 The test is done in 2011 via Supreme Court, and Hugh court indicates quality

multiple times; DNA has achieved a critical characteristic. Out of these, 23.4% of picks were

given utilizing the manner of Delhi High Court without help from anyone else. Moreover, DNA

evidence was being used in reality 4.7% homicide times and 2.3% rape and homicide. In yet

every other have a glance at of rape instances during the last decade, the author has shown that

there was a delayed dependence by Indian courts on legal evidence and DNA as the years

10 Report of the Committee on Draft National Policy on Criminal Justice, Ministry of Home Affairs, Government of

India, July, 2007. 11The Role of DNA in Criminal Investigation- Admissibility in Indian Legal System and FuturePerspectives,

15-21IJHSSI Vol.2 (2013).



progressed, even however the figures are wretchedly low and deliberate endeavors are expected

to include scientific evidence in all hoodlum subjects, in which material.

Although, the field of forensic technological knowledge in the country isn't mixed. So usually,

neither the arbitrator nor the jail professional nor even the police pressure appreciates the

advances or the massive, promising potential outcomes of the technological know-how and the

aggregate of the latest generation together, methodologies, modalities, and research. This

multitasking and multi-master technique of forensic era wish an inter-professional method is

undoubtedly are lacking for often. 12

HINDERENCES FACED BY ALLEDGED AUXILIARY

Present-day strategies of criminal research are such domain names that are probably unidentified

to the police pressure because they may not be skilled and trained about them. The police are

blamed for investigating wrongdoings with the valuable asset of using similar vintage, traditional

strategies and techniques. It has been maintained that unsuitable medical mastery with the

research official, the primary respondent to the wrongdoing coupled with beside the factor

behavior of scene of the wrongdoing, also can each contaminate the samples required to be

examined or wreck the evidentiary cost, so you may be obtained on appropriate lifting, sealing,

forwarding to the Expert/Laboratory for the exam. Consequently, an association of Forensic

Experts with the police investigating agency directly from graduation and their compelling

liaison with the Medico-criminal Expert can contribute drastically and now and again to

determine the wrongdoing. 13

Forensic laboratories lack critical human assets and infrastructure. They are staff served. At

times legitimate infrastructure and equipment are lacking. They lack adequate funding besides.

Surprisingly, there can be a lack of coordination, a couple of the wings of the one, i.e., Forensic

expert and police stress.

12 EnamulHaque v.StateofWestBengal, CRM17348 of 2010& AST1114of2010. 13 OlivierRibaux, SimonJ.Walshand PierreMargot, The contribution of forensic science to crime analysis and

investigation: Forensic intelligence, 171-181 FSI vol.156 (2006).



The Committee on Draft National Policy on Criminal Justice Report features that steering,

accreditation, modern day setting, professionalism and studies, and development of Forensic era

need to get genuine interest in the insurance framework.

Moreover, the Malimath Committee advocated that more excellent nicely-resourced laboratories

should be installed to address DNA samples and evidence. In addition to the exact standard that

needs to be enacted, they gave pointers to the police placing uniform requirements for attaining

genetic information and producing sufficient safeguards to save you abuse. Lately, Justice Verma

Committee laid down the need for appropriate garage and protection of DNA samples, especially

in sexual assault times. 14

LATEST COURT HEARINGS

Here are a number of the highly present day-day instances in which the Court has depended on

forensic proof and given verdict with the aid of considering this piece of evidence.

In Krishan v. State of Haryana15 , the Trial Court, considering the statistics and times of the case,

more mainly counting on the FSL document convicted the appellant below Sec. 376 and Sec.

506 of IPC.

Division Bench of this Court, after referring to numerous governments on DNA generation 16,

explicit method used for checking out and the scientific upgrades made international over found

that the Courts across the world that encompass in India have been placing heavy reliance on

DNA results. It became located " Over a period, the generation of DNA sorting out has made

tremendous strides and completed sophistication maximum essential to consequences that could

regularly be used both for inclusion or exclusion on the accused.

SOME LANDMARK JUDGMENTS IN FORENSIC SCIENCE INVESTIGATION

In criminal times, mainly based primarily on circumstantial proof, forensic science performs an

essential feature, which may assist in establishing the evidence of a crime, identify the suspect,

14 V.R.Dinkar, ‘Forensic Scientific Evidence: Problems and Pit falls in India’,79-84,IJFSP Vol.3(2015). 15 (2014)13SCC574. 16 R/CR.A/224/2012



and ascertain the accused's guilt or innocence. One of the leading sports of the Investigating

Officer at the crime scene is to do a thorough search for ability proof that has a probative rate

within the crime. Investigating Officer may be guarded in opposition to capability infection of

physical proof, which could expand on the offense display completely the assembling, stuffing,

and forwarding. Proper precaution desires to be taken to preserve evidence and additionally

towards any try to tamper with the material or inflicting any infection or harm."

In fun occasions relying on clinical evidence along with DNA profile and oral bits of evidence,

the charged were indicted and rebuffed with an absence of presence sentence and outstanding

through the Sessions Judges, for terrible murder older around ten years after exposing the

miscreant to carnal intercourse after which strangulating him to the death toll.

In the Nitish Katara murder case17 , the detection of the deceased sufferer becomes challenging

because of the availability of handiest a small detail of un-burnt palm with palms. Additionally,

the DNA profile helped identify the frame stays via matching the DNA profile with the parents

of the deceased, which allowed the High Court of Delhi to uphold the accused's conviction.

In Sushil Mandal v. The State18 represented through CBI, the petitioner, father of the deceased

boy, challenged the findings of DNA profiling. The departed boy fell on the adolescent cusp of

common infatuation with a university lady. The parents of each were cautioned with the aid of

university manage for keeping tests on them. Later, the boy has become found reportedly

lacking, and, after every week, a wholly decomposed unidentified frame has become fished out

from a lake. The petitioner claimed not to figure out the body remains and garments of his

missing son. He desired a habeas corpus petition in the immoderate Court accusing the daddy of

the female and praying the excessive Court for guidance the studies thru the Central Bureau of

Investigation (CBI). The DNA test of the body remains matched with the genetic profiles of the

mother and father (the petitioner and his accomplice) of the deceased. The terrific skull

imposition takes a look at moreover installed hyperlinks among the dead and the recovered

frame.

17 AIR 2014 (5) SCC 509 18 (2014) 4 SCC 69.



But the petitioner refused to deliver the reality located through those clinical exams on one

pretext or the opportunity even though DNA takes a look at changed into repeated for his delight.

The apex courtroom positioned reliance on clinical assessments at the aspect of DNA profiling

for human identification and, for this reason, closed the trouble.

In Anmolsingh Swarnsingh Jabbal v. The State of Maharastra,19 The Bombay High Court upheld

the existence period, relying upon DNA proof, in addition to different pieces of evidence, for the

murder of a more younger girl engineer with the valuable resource of her colleague in a case of

one-sided love.

In each other case of brutal rape and unnatural sexual act with a 12 month female toddler

residing in a slum dwelling changed into investigated through Delhi police and DNA profiling

modified into used to link the culprit with the dreadful act of sexual violence. After examining

the focused evaluation of the child's testimony and numerous methodologies, the Court reviewed

legal study findings based totally upon DNA reports and one-of-a-type evidence and held the

accused responsible and set apart acquittal order passed thru the trial court.

In some other case, the utilization of DNA innovation cleared the way to prosecute and convict

the transgressor to the death toll, responsible for kidnapping and killing after the assault of a ten-

year old school lady through the method of vehicle cart main impetus and tossing the carcass of

the casualty in a mobile channel.

THE MAJOUR CHALLENGE WHILE PRESENTING SUCH EVIDENCE

There is an extended-fame issue of presentation and paying attention to forensic cases as a civil

or convict proceeding. It changed into argued that judges have the strength to make the

frequently emotional determinations that outcome in forensic confirmation being widespread and

removed. They may even have a fashionable tendency to manual one element's evidence over the

opportunity. An enthusiastic talk arose, culminating in a notable agreement that judges could

compel Daubert to law breaker and civilize one after the other. Many researchers say that

experimental and technical evidence is more probable for use to hoodlum instances in favor of

the authorities and rejected from civil occasions where defendants deliver it. Accordingly, there

19 2014 SCC Online Bom 397:2014 (2) BomCR (Cri)361: MANU/MH/0352/2014



has been a need for professionals to test the credibility of forensic technological information

provided in courts.

Such inconveniences are also treated in Rule 702. It only calls for "master. Through information,

capacity, work out, analyzing, and training" specialists. Typically, a good-sized amount of

training and enjoyment is wanted to be deemed a legitimate master in any location. The

numerous forensic professions follow one-of-a-type training plans, the majority of these provide

in-residence schooling, tests, and sensible surveys, similar to persevering with training. When

schooling examiners for interrogation in a court, oral presentation training, similar to debatable

court information (simulated court intending), may be beneficial.

The character who provided the laboratory report and takes credit for taking a glance at its

anything but a record will commonly act because the court professional. The defendant may

additionally flip to their non-public specialists to counter this evidence, and each party is a hassle

to that Court's degree of competence (Frye, Daubert, Law 702). People that seem like master

witnesses want to apprehend a manner to answer to such questions. Regardless, it's far essential

to take a gander at whether the forensic verification is admissible is handiest as an awful part as

the select presiding the case.

MORE RECENT REFORMS

The National Academies Study 2009 (NAS Report) referred to all forensic technological

documents companies as obligatorily licensed. Recommendation 7 of the NAS record states that

everyone laboratories and facilities (public and private) want to be certified and that defined and

diagnosed worldwide necessities at the facet of the ones issued through the International

Organization for Standardization (ISO) should be taken into consideration at the same time as

figuring out accreditation standards. Forensic generation vendors also can assume a want for

them to be commonplace through felony schooling agencies, even now not just in motion.

Accreditation of the wrongdoing laboratory is, thus, one manner of conveying to the Court that

checking out techniques study high requirements.



CONCLUDING OBSERVATIONS

To conclude the research paper, the researcher wants to present his opinion that with the latest

scientific advancement in Forensic Science, we should accept the newly developed methods of

truth detection with safeguards in the criminal justice framework.

The psychiatrist and investigators of various civilized countries and Nations consider

narcoanalysis, brain mapping, and polygraph tests to be unsafe and unreliable. In any case, when

we talk about the Indian context, it's anything but entirely banned in India; explicit barriers need

to be passed, similar to permission of the Court to conduct such a test. The consent of the suspect

is to be taken prior to performing this test. Thusly, it cannot be done at the desires of the

investigating Agencies or the political authority.

They were investigating agencies using the third-degree torcher technique to obtain the

information related to the offense from the suspects independent of his blame. In contrast, these

scientific techniques resemble a regular medical procedure that a person undergoes and neither

causes pain nor harshness. Now it is for the reader to decide which approach to convey truth is

inhuman.

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