JUDICIARY AND FORENSIC INVESTIGATION

ABSTRACT:

INTRODUCTIONScience has been helpful for us in every aspect of our life like, education, health, agriculture, legal system etc. In the contemporary period, Science has helped the criminal justice system not only to provide justice in correct manner but has also helped in curtailing the crimes. When scientific knowledge is used, to investigate into a case and provide a reason for a crime, then this procedure of investigation is called as forensic science. Forensic science encompasses many different fields of science, including anthropology, biology, chemistry, engineering, genetics, medicine, pathology, phonetics, psychiatry, and toxicology. Dr. Carole Mccratney, a Reader in the School of Law, Northumbria University, defines Forensic Science, in her book Forensic Science and Criminal Justice[footnoteRef:1]: [1: Carole McCartney, Forensic Identification and Criminal Justice- Forensic Science, Justice and Risk, William Publication, 2006 ]

Forensic Science can be considered broadly as the application of natural and physical science to the resolution of legal conflicts, which is not only limited to the criminal courts, but also in civil matter Our country has undergone a drastic change and the crimes taking place in our society, in present time has forced us to rely on Forensic science and to provide remedy to the victim. It has become so much important that mere denial of the use of forensic science in criminal investigation itself amounts to violation of human rights.Earlier, when Forensic investigation was not known to the society, the police department would use 3rd degree technique to know what really happened, in the crime scene, or how it happened. There was time, due to lack of Forensic investigation, any accused, whether he has committed the offence or not, would be held guilty, with slight clue against him. The 3rd degree technique, which usually includes beating, torturing etc., by the police, also would sometime lead to death of accused and the witness and more than this, these techniques were violating the basic human rights.[footnoteRef:2] [2: B.R Sharma, Forensic Science in Criminal Investigation & Trials, Universal Law Publication, 4th Edition 2007.]

But with the introduction of Forensic investigation, we are now not only able to provide speedy justice but also, the famous quote of Voltaire, the historian, in his book Zadig, has been followed, which says: It is better to risk saving a guilty person than to condemn an innocent one.Forensic science serves the interest of justice by providing scientifically based evidence relating to criminal activity.[footnoteRef:3] With development, in the field of science, the investigations into the crimes have become very easy, for the criminal justice system. It has become so much helpful to the judiciary, to provide justice that before any case is taken by the court the forensic procedure has to be done, without which no further proceedings can take place. [3: Carole McCartney, Forensic Identification and Criminal Justice- Forensic Science, Justice and Risk, William Publication, 2006 ]

But this field of science, Forensic investigation, has always been limited to certain conditions and the judiciary, has tried to see to it that this form of investigation will not violate the basic fundamental rights, as mostly the investigation under Forensic science leads to breach of privacy and individual liberty. The Forensic science, in our legal system, is governed under, the Constitution of India, Code of Criminal Procedure, 2013, Indian Evidence Act, 1872 and Identification of Prisoners Act. The Constitution being the main governing body let us look at the position of Forensic investigation under it. The Constitution of India, under Article 20 (3) provides that, the person cannot be forced to become witness against himself. This leads to many questions like, does providing finger prints, DNA test, Narco analysis etc. would violate the fundamental right, protected under Article 20 (3). To these questions, judiciary has answered. Moreover the main focus would in furtherance to as to whether DNA Profiling and NARCO Analysis and its applicability.

DNA PROFILINGCorrect identification of crime and criminals has always been a challenge to the criminal justice system, but with the help of DNA tests or profiling, identification of clues has been very useful. Dr. B.R. Sharma, in his book Forensic Science and Criminal Investigation, on usefulness on DNA profiling, says[footnoteRef:4]: [4: B.R Sharma, Forensic Science in Criminal Investigation & Trials, Universal Law Publication, 4th Edition 2007, Pg. 1119]

DNA profiling is applicable to virtually all the body materials. They, as clues materials, are encountered in a variety of heinous crimes: murder, dacoit, encounters (fake or otherwise), hit and run case, assaults, rape and many other offences against an individual..It helps in linkage of crime, through materials, exchanged or deposited, as clue materials. Such are the benefit of DNA investigation.In one of the case, The State of Bombay v. Kathi Kalu Oghad and Others[footnoteRef:5], There were two issues before the Supreme Court of India: [5: 1961 AIR 1808, 1962 SCR (3) 10]

(1) Whether by the production of the specimen handwritings of the accused could be said to have been 'a witness against himself' within the meaning of Article 20(3) of the Constitution? and (2) Whether the mere fact that when those specimen handwritings had been given, the accused person was in police custody could, by itself, amount to compulsion, apart from any other circumstances which could be urged as vitiating the consent of the accused in giving those specimen handwritings? Answering these two issues, the Supreme court held that, to be a witness is not equivalent to 'furnishing evidence' in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt innocence of the accused. And, Supreme Court went onto say that giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression to be a witness. The Supreme giving reasons said, "To be a witness" means imparting knowledge in respect of relevant fact, by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation.

We can see how the Judiciary, in this case, has tried to give importance to forensic investigation, but with time, the position of Forensic science in legal system has developed and therefore judiciary has seen to it that the procedure, in forensic investigation, will not violate the fundamental rights protected in our constitution.

In Bombay High Court, in the case ofSadashiv Malikarjun Kheradkar v. Smt. Nandini Sadashiv Kheradkar and Another[footnoteRef:6], it was held that the Court has power to direct blood examination but it should not be done as a matter of course or to have a roving inquiry, it was also held that the Court can give a direction but cannot compel giving of blood sample. [6: 1996 (1) BomCR 454]

InThogorani alias K. Damayanti v. State of Orissa and Ors[footnoteRef:7].,the court noted that the only restriction for issuing a direction, to collect the blood sample of the accused for conducting DNA test, would be that before passing such a direction, the Court should balance the public interest vis-a-vis the rights under Articles 20(3) and 21 of the Constitution. While balancing this interest, the Orissa High Court, gave direction to follow the following considerations: [7: 2004 CriLJ 4003]

1. the extent to which the accused may have participated in the commission of the crime2. the gravity of the offence and the circumstances in which it is committed3. age, physical and mental health of the accused to the extent they are known4. whether there is less intrusive and practical way of collecting evidence tending to confirm or disprove the involvement of the accused in the crime5. The reasons, if any, for the accused for refusing consent.

The judiciary, in above two cases, has appreciated the fundamental rights, and before any procedure, the fundamental rights are put first. We can summarize these two judgments:1. To protect the privacy of the individual.2. Cannot compel anybody to follow the procedure of forensic investigation.But the judiciary has taken separate stand in Sharda v. Dharmpal[footnoteRef:8]case. In this case, we will be concerned with two issues, which were discussed by the Honble Supreme Court: [8: AIR 2003 SC 3450]

1. Can an order directing, a party to a divorce proceeding, to go through a medical examination would violate Article 21 of the Constitution of India?2. Power of the Court to direct a party to undergo medical examination.The Honble Court, answering these two issues said that, .the Court passes an appropriate order, the question of such action being violative of Article 21 of the Constitution of India would not arise. The Court having regard to Article 21 of the Constitution of India must also see to it that the right of a person to defend himself must be adequately protected.It is, however, axiomatic that a Court shall not order a roving inquiry. It must have sufficient materials before it to enable it to exercise its discretion. And further court held that, If despite an order passed by the Court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference would be made out Section 114 of the Indian Evidence Act also enables a Court to draw an adverse inference if the party does not produce the relevant evidences in his power an possession. And the Honble court, in its concluding judgement held that.Passing of such an order (of medical examination) by the court would not be in violation of the right to personal liberty under Article 21 of the Indian ConstitutionHowever, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him.In this case, the judiciary has narrowed down the concept of privacy and has held that, just based on privacy, the medical examination cannot be exempted, but there has to be proper reason for refusing to go through the medical examination. The judiciary has not only, in the present case, has tried to protect the fundamental rights, but has also seen to it that, the new scientific investigations, takes place, so that they might be helpful to the criminal justice system. For taking this middle path, by the judiciary, the only reason is that there are advantages as well as disadvantages, in DNA profiling. Advantages:1. Increased likelihood of finding assailants in criminal offences, especially violent and sexual assaults.2. Identification of victims, in mass terrorist attacks etc. Disadvantages:1. It violates fundamental rights, of right to privacy, especially when DNA profiles are taken from people, who have nothing to do with a particular criminal offence. 2. Sometimes, the finding of DNA tests, may lead to false implication of person in a crime and there are chances of error. 3. DNA tests, eventually might lead to certain illness and the tests might sometimes be misused. For the successful incorporation of the scientific techniques in our country, various scientific and legal reforms are required. There are many judgments which contradict with each, due to lack of proper legislation. The Judges are sometimes confused, whether to upheld the fundamental rights under Article 20 (3) or to rely upon the scientific investigations.The present 2012 draft Bill, based on Human DNA Profiling Bill 2007, is one of initiative taken by the parliament, to provide guidelines for DNA testing. The bill specifies the list of instances for human DNA test it also lays down the sources of collection, lays down guidelines for storage and destruction of biological samples, and also the standards and procedures for establishment and functioning of DNA laboratories and DNA Data Banks.

The current 2012 draft Bill is missing critical safeguards, which are essential protecting individual rights. For example, individuals are not permitted a private cause of action for the unlawful collection, use, or retention of DNA, and individuals do not have the right to access their own information stored on the database.[footnoteRef:9]These are significant gaps in the proposed legislation as it restricts the rights of the individual. It is unclear if DNA profiles from all the listed offenses will be stored on the database. If it is the case that the DNA profiles will be stored, it would make the scope of the database too broad. [9: Elonnai Hickok, Rethinking DNA Profiling in India, Vol- XLVII No. 43, October 27, 2012. ]

In conclusion, India could benefit from having a legislation regulating and harmonising the use and collection of DNA samples for crime-related purposes. The current 2012 draft of the Bill is a right step. The 2012 draft draws upon best practices from the US and Canada, but could also benefit from drawing upon best practices from countries like Scotland, who follow[footnoteRef:10]: [10: Ibid. ]

1. Limiting the scope of the DNA database to include only samples from a crime scene for serious crimes and not minor offenses.2. Requiring the destruction of DNA samples once a DNA profile is created. 3. Defining when a court order is needed to collect DNA samples.4. Defining when consent is required and is not required from the individual for a DNA sample to be taken.

NACRO ANALYSIS Narcoanalysis, used for the first time by a Dallas obstetrician in 1922, House concluded that a patient under the influence of scopolamine cannot create a lie ... and there is no power to think or reason [footnoteRef:11] and was coined by Horseley. [11: House, R. E. The use of scopolamine in criminology. Texas St. J. of Med., 1922, 18, 259.]

The basic principle is that the person under the influence of barbiturates, his imagination is controlled by leading him into semiconscious state which becomes difficult for the person to lie and his answers would be restricted to facts he is aware of.[footnoteRef:12]There are guidelines issued by NHRC regarding the method of using the Narco and the Magistrate is preferred to present and the police officers are not authorized to use it.[footnoteRef:13] Moreover in Selvi v. State of Karnataka,[footnoteRef:14] stating that experts or doctors are morewilling to cooperate with the police in investigation if there is an order of a Magistrate to that effect. However, the case does not stipulate the consent of the subject as a mandatory prerequisite for administration of the test. [12: Kumari, S. Kusuma, Narco Analysis Right to Self Incrimination vs. Public Interest, (2007) Cri LJ (June) pp. 137- 141, All India Reporter, Nagpur, 2007. p.138.] [13: Teena Thacker, UN Sees Narco-Analysis As Torture, http://www.expressindia.com/latest-news/UNSees-narcoanalysis-as-torture/321986/.] [14: (2004) 7 Kant LJ 501.]

It was first used in India in year 1936 by use of narcotics to induce trance like state in order to extract facts, whereas the first Narco analysis took place in FSL, Bangalore over an person who was associated in committing offences by Veerapan in 2001.[footnoteRef:15] And then in the Godhra carnage Probe 2002 followed by Abdul Karim Telgi case in Bangalore, Nithari Killings case, Mumbai blast Case then very recently it was in the lime light in the case of Arushi murder case where the Compunder and Several other suspects. This clearly shows that this has been used where the case is of public interest or large public outcry. Moreover we will be looking into stances where this Narco analysis has been helpful. [15: Bannur Muthai Mohan, Misconceptions About Narco-Analysis http://www.issuesinmedicalethics.org/151co07.html.]

Narco Analysis has basically been helped in granting Bail Applications, considering the judgment of a Sessions Court in Faizabad in Uttar Pradesh accepted the report of a narco-analysis test, stating that it is evidence which can be relied upon, to reject a bail application in respect of a murder case.[footnoteRef:16] [16: U.P. Court Admits Narco Report As Evidence, 20-01-2014, http://www.nerve.in/news:253500170205.]

NACROs Admissibility in CourtThe four High Courts wherein the admissibility is upheld are mentioned below:The Division Bench of the Bombay High Court in case ofRamchandra Reddy v. State of Maharastra[footnoteRef:17]; The Karnataka High Court in case of Smt. Selvi[footnoteRef:18] and Ors. v. State ; the Bombay High Court in case ofArun Gulab Gavali v. State of Maharastra[footnoteRef:19]; the Madras High Court in case ofDinesh Dalmia v. State[footnoteRef:20]; and the Andhra Pradesh High Court in case ofK. Venkateshwara Rao, S/o K. Vijaya Simha, Hydrabad v. State of A.P. Decided[footnoteRef:21]on 30th August, 2007 in Criminal Revision Application No. 1402 of 2006 have taken a view that by performing/conducting the Narco Analysis Test/Brain Mapping Test on the accused person, at the stage of investigation do not violate the constitutional protection guaranteed under Article 20(3) and 21 of the Constitution of India. In all the aforesaid cases, the Courts have also considered the need of such scientific tests by observing that it is a need for the day for such a scientific tests. [17: 2004 ALL MR (Cri) 1704] [18: Sup note-4] [19: 2006 Cr.L.J. 2615] [20: 2006 Cr.L.J. 2401] [21: 2007 Cr.L.J. 1402]

NARCOs CriticismArt. 20(3) which embody this privilege reads, No person accused of any offence shall be compelled to be a witness against himself.[footnoteRef:22] [22: Constitution of India]

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

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

When the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impression, the opinions upon that point or persons especially skilled in such foreign law, or of science, or art, or as to identity of handwriting or finger impressions are relevant.[footnoteRef:23] [23: Sect 45 of Indian Evidence Act, 1872]

However this section is silent on other aspects of forensic evidence that can be admissible in court in criminal proceedings.It has been held in the authority inNandini Satpathy v. P.L. Dani[footnoteRef:24]as follows:- [24: 1978 AIR 1025 1978 SCR (3) 608]

The phrase 'compelled testimony' must be read as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like - not legal penalty for violation. So, the legal perils following upon refusal to answer, or answer truthfully, cannot be regarded as compulsion within the meaning of Article 20(3).There for it clear that this particular authority cannot be used to third decree methods especially scientific tests to unravel mystery. Moreover in the case of Selvi[footnoteRef:25] it is clearly stated that NARCO is not admissible but it has to be looked whether it shall be admissible if corroborated. [25: (2004) 7 Kant LJ 501.]

Corroboration of NARCO evidence and its admissibilityIn many cases Court has held that the expert evidence may be taken into consideration if it is Corroborated.Corroboration is evidence tending to confirm some fact of which other evidence is given. Obviously the more corroboration is present, the easier it is to prove a fact. In Director of Public Prosecutions v. Kilbourne[footnoteRef:26] Lord Simon stated: [26: [1973] A.C. 729]

Corroboration is therefore nothing other than evidence which "confirms" or "supports" or "strengthens" other evidence ... It is, in short, evidence which renders other evidence more probable.In Raj Kumar v. State [footnoteRef:27] [27: [2005 CrLJ 1322 (J&K)].]

As a matter of fact courts do not ordinarily base their decisions on expert advice only, unless it is supported by other external and internal. The report of an expert witness if proved by its author can be taken into consideration unless the same is not corroborated by his statement before the Court.In M. Durga Pradesh, Special Assistant, Syndicate Bank v. State of A.P.,[footnoteRef:28] the Andhra Pradesh High Court observed as under:- [28: 2004 CrLJ 242]

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

Is there a need for NACRO test?

It is well established that the Narco when substantiated by Corroborated evidence it shall be admissible which is made clear through various precedents. But there are many circumstances when the Corroboration of evidence is not so easy. There are various numerous judgments there has been prominent debate in a case related to Scientific evidence where the latest and the most relied judgment of Selvi is emphasized and the judgment goes against the Scientific Test. Whether these needs to be changed since sea change in the social scenario, scientific criminal is abroad, cyber crime, the nacro analysis is rapid and certain.As per the Recommendations of of National Criminal Justice System Policy headed by Prof. N. R. Madhavanan the need of[footnoteRef:29] some changes such as - [29: Sharma, B. R., Scientific Criminal Investigation, 2006 Edition, Universal Law Publishing Co. Pvt. Ltd., Pg. 6]

The evidence Act may need to be amended to make scientific evidence admissible as substantive evidence rather than opinion evidence and establish its probative value, depending on the sophistication of the concerned scientific discipline. Scientific techniques and procedures used have to be validated by appropriate agencies and professionally recommended for acceptance as evidence.There is urgent need for integrated, planned and co-ordinated development of the forensic capabilities of those institutions if they were to make a difference with quality and quantity of criminal investigations and crime control strategies in the country. Criminal justice in the changed scenario demands it and the country with its growing economy deserves it.[footnoteRef:30] [30: Shashwat Bajpai Narco analysis and the Constitution available on www. indlawnews.com(visited on 15th september09)]

Moreover in the case of Santokben Sharmanbhai Jadeja v. State of Gujarat,[footnoteRef:31] the court has also focused on the merits of the Nacro and other scientific test such as: [31: 2008 Cri. L J 68]

The crime has been rapidly increasing for the past years and there is urgent need for other scientific test to speed the trail process and improve the efficiency.

he field of criminology has expanded rapidly during the last few years and the demand for supplemental methods of detecting deception and improving the efficiency of interrogation have increased concomitantly. Since Sect 161 of CrPC enable police to under such investigation and courts feels there that it is the duty of the person to help to find the culprit and without cooperation the task would be more difficult. Withholding such information cannot be traced to the right to privacy, which itself is not an absolute right.[footnoteRef:32] [32: State v. Dharmapal MANU/SC/0260/2003]

It is the statutory duty of every witness, who has the knowledge of the commission of the crime, to assist the State in giving evidence.[footnoteRef:33] [33: State of Gujarat v. Anirudha Singh MANU/SC/0749/1997]

Now-a-days there is large chaos since there are numerous pending criminal cases pending in the court due to lack of efficient evidence when all other alternative remedies are exhausted by the police or the investigation agencies. So there are situations when even the innocent is also being subjected to victim of law. SO when there is no other resort in investigation these should taken into consideration by the courts instead of looking for corroborating such evidence.

But when you refer to applicability of these tests in the scenario of crimes relating to terrorism, human danger it is well established it shall be taken as evidence.

The US investigation in 11th Sept 2003 allowed the use of NARCO on the accused Abu Zubayda where key confessions where made and considered as admissible evidence. In pursuance of this, it may be seen from a book entitled Confessions of a terrorist by Gerald Posner [2003] that US administration privately believes that the Supreme Court implicitly approved using such drugs in matters where public safety is at risk.[footnoteRef:34] [34: S.Malini & B.M.Mohan Forensic Science Laboratory, Bangalore, Narco Analysis, available on www.bprd.gov.in/rightreaddata/mainlinkfile/file1536.pdf (visited on 19th september09)]

CONCLUSIONCrime rates in our country have increased drastically over a period of time. New methods of committing offence like murder, rape, burglary etc. are been used by the offender and the old techniques of finding the reason of crime by the police is outdated and in present time is of no use at all, then during these kind of situations comes the role of Forensic science to play, which helps in the working of legal system and one of those forensic investigations, which is providing a great help is DNA test and NARCO Analysis.DNA tests, have helped the judiciary in providing the justice to the parties to a case. They have helped in providing justice to the rape victim in Goutam Kunduv. State of West Bengal & Anr[footnoteRef:35] and have also helped in solving the murder case, where it was first used inmurder trials in Virginia of Timothy Wilson Spencer, in the United States [35: (1993) 3 SCC 418.]

But DNA tests have also been criticised for violating the Fundamental rights and privacy of an individual. It has been said that these tests leads to wrong results, which leads to an innocent to be convicted and these test results are also been misused.With these pros and cons in DNA profiling there is an immediate need for a legislation, which will help the judiciary to take a proper stand in this regard. The legislation should not just aim at protecting the Fundamental rights but also strives to make best use of the scientific investigation.NACRO Analysis is where helpful in tracing the truth easily and efficiently but sadly the same evidence is not accepted in the court, the same is accepted when corroborated evidence is added. But the same shouldnt be the case since the crimes these days have been complicated and tons of cases are pending and people on the other hand are craving for justice, for these people out this would be efficient to provide speedy trail. The author is not against the principle that the persons shouldnt be compelled to give evidence against them or other, but here the point is regarding efficient remedy when there is no other resort to solve those cases. So, there should some amplified piece of recommendations to be followed before investigation as provided by NHRC and the some stipulations as to when such evidence can be under taken as evidence and to judge the admissibility.