Utility of Forensic Science in Indian legal system

As a Course Work for continuous evaluation in the subject of Forensic

Science, Crime Scene Management and Criminology

-: SUBMITTED BY :-

Atik Lodha

VII Semester
BBA LL.B BATCH 2014-19

-: MODULE NAME :-
Forensic Science, Crime Scene Management and Criminology

-: SUBMITTED TO :-
Faculty of Law, Ms. Vrushti Patel

School of Law
Auro University, Surat, Gujarat- 394510
 Utility of Forensic Science in Indian legal system

There is urgent and widespread need for the application of forensic science in criminal
investigation. The present day, crime investigation, proceedings and prosecution of criminals,
is a sad story. A large percentage of the murder trials, ultimately, end in acquittal and thus,
not only a dangerous criminal goes free but huge amount of public money is also wasted.
These frequent acquittals also encourage the criminals.
Forensic Science in criminal investigations and trials is mainly concerned with materials and
indirectly through materials with men, places and time. The rise of using science as a means
to investigate criminal cases in recent years. Earlier, the courts relied on the non-scientific
evidence such as statements by eye-witnesses. Such evidence cannot be relied upon since its
validity cannot be tested.
It is also that, facts do not lie, men can and do, hence the importance of circumstantial
evidence more over oral evidence.
During criminal trials, evidence rules restrict both the content of evidence presented and the
manner that evidence can be presented during a trial. Evidence rules not only ensure the
smooth running of a criminal trial, but also, protect a defendants right to a fair trial.
Scientific evidence, such as DNA, fingerprints, ballistics, and other items, is regularly entered
during a criminal trials. As in case of Tandoor murder case the decision of the court against
Mr. Shusil Sharma who was found guilty with the help of forensic evidences through DNA
test, Priyadarshini Mattoo (Santosh Kumar Singh v. State thr. CBI), another case is
of Naina Sahani murder case (State vs Sushil Sharma), Rajiv Gandhi assassination
(State through superintendent of police CBI/SIT vs. Nalini and Ors.) the infamous Rajiv
Gandhi assassination case of 1992 using DNA and fingerprinting analysis and many more
cases1.

In 2005 the Criminal Code of Procedure, 1973 was also amended to allow for medical
practitioners, Section 53 as amended includes: "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 and such
other tests which the registered medical practitioner thinks necessary in a particular case"2.

However, with the use of science and technology such pieces of evidence can be used in
court. Usually, tests such as narcoanalysis, brain mapping and lie detectors are used to
confirm the truth of these pieces of evidence.

The question relating to admissibility of scientific evidence such as polygraph, narcoanalysis,

brain mapping and lie detectors etc., has to be tested according to Clause (3) of Article 20 of
the Constitution, which lays down: (3) No person accused of any offence shall be compelled
to be a witness against himself.

1
Anjali Srivastava, Singh & Associates, DNA Fingerprinting: Helping Hand In Solving Crime,
http://www.mondaq.com/india/x/278272/Crime/DNA+Fingerprinting+Helping+Hand+In+Solving+Crime
2
Anjali Srivastava, Singh & Associates, DNA Fingerprinting: Helping Hand In Solving Crime,
http://www.mondaq.com/india/x/278272/Crime/DNA+Fingerprinting+Helping+Hand+In+Solving+Crime
The Constitution of India has clearly stated that a person cannot be compelled to be a witness
against himself, and therefore, any statement given during the narcoanalysis test cannot be
considered evidence in the constitutional framework of the country.

But such tests generally dont have legal validity as confessions made by a semi-conscious
person are not admissible in court. The court may, however, grant limited admissibility after
considering the circumstances under which the test was obtained.

A few democratic countries, India most notably, still continue to use narcoanalysis.
Narcoanalysis is not openly permitted for investigative purposes in most developed and
democratic countries. Narcoanalysis was also used in the interrogation of Ajmal Kasab, the
main accused in the 26/11 attacks in Mumbai. In India, narcoanalysis came in the limelight
in famous cases:

Aarushi Talwar-Hemraj Double Murder Case3

The body of Aarushi Talwar was found in her bedroom in house No. L-32, Jalvayu Vihar,
Sector 25, Noida, on the night of 15-16.5.2008. In the first information report Dr. Rajesh
Talwar, her father pointed the needle of suspicion at Hemraj, a domestic help in the
household of the Talwars. On 17.5.2008 the dead body of Hemraj was recovered from the
terrace of the same house, i.e., house No. L-32, Jalvayu Vihar, Sector 25, Noida, where
Aarushis murder had also allegedly been committed.

While interestingly, the narcoanalysis of Rajkumar (Durranis house helper), Krishna (Rajesh
Talwars assistant) and Vijay Mandal, a.k.a Shambhu, and all three testimonies bear one
common link all said that they were with Hemraj at the Talwar residence that night, and
there were some drinks involved, and says that first Aarushi was killed, Hemraj was killed for
the reason that he had known about the murderer. After that they were released and set free
by the court and CBI.
All the findings from the crime scene raised suspicions as to whether the murders were
committed by Dr. Rajesh and Nupur Talwar. Therefore they were subjected to narcoanalysis
test to confirm their involvement in the crime. The CBI carried out narco-analysis test at the
Forensic Science Laboratory in Gandhinagar, Gujarat. However, the investigations drew a
blank.

No concrete evidence could be collected even after conducting the narco-test of the Talwar
couple that could help in further investigations in the case. The test was conducted to find out
if Nupur Talwar or Rajesh Talwar knew anything about the case, but they knew nothing
different about the murder of the teenage girl.

In this particular case, the results of the narcoanalysis were not admissible in court however,
two years after the analysis; the Supreme Court of India ruled it unconstitutional but let
investigators use the test results for leads during investigation in any crime.

3
Divyani Rattanpal, The Curious Case of Narco Tests in Aarushi-Hemraj Murder Mystery
https://www.thequint.com/news/india/the-curious-case-of-narco-tests-in-aarushi-hemraj-murder-mystery
Nithari Serial Killings4

The narco-analysis test of the prime accused in the Noida serial murder case Moninder Singh
Pandher was conducted. Pandher and Koli had been accused of serial killing of women and
children in Nithari village, in Noida, Uttar Pradesh. The Noida police had brought Pandher
and his servant Surendra Koli for forensic tests and both were probed on two angles. One was
what the accused wanted to say and the other was what the investigators wanted to know.

Kolis admissions during the tests indicated he used to rape and kill children as an ego-
satisfying habit as he was sexually deprived and feared that he was becoming impotent. Koli
also admitted to systematically chopping the bodies of the children, including minor girls,
and dumping them in the drain behind Pandhers house on several occasions.

The results of the test were not admissible as evidence in court but are designed to help police
with their investigation.

Conclusion

The Indian courts have emerged as the most powerful courts in the world with virtually no
accountability. But every institution even the courts go wrong. But the Courts cannot afford
to award judgments based on ethical and moral grounds, rather the bases should be purely
legal in character and on the facts and the circumstances of the case. The role of a judge is not
to read between lines but to offer a fair, just and reasonable interpretation of question of law
posed before it. Justice may not only be done but it must also seem to be done. In, Ms.
Priyadarshini Mattoo case5, while acquitting the accused reflects the disgracefulness of our
criminal justice system. This is one of the cases to have public dissatisfaction over the
breakdown of justice at the instance of high profile and influential accused Santosh Kumar
Singh, son of Former Senior IPS Officer J.P. Singh. Finally after a span of seven years, the
Delhi High Court did an exceptional job of awarding death sentence to Santosh Kumar Singh
thereby restoring the confidence of the general masses in the judiciary. The Delhi High
Court remarked that the findings of the Trial Court were perverse in nature. The view of the
Trial Court as regards the inadmissibility of the DNA test was not tenable in the eyes of law
in as much as the court ought to have accorded due and fair consideration to the reports
procured by the expert evidence at the instance of the CBI. The Delhi High Court ruled out
the reason given by the Trial Court of holding the CBI responsible for having acted in an
unjust and unfair manner. Hence, the Delhi High Court removed the accused from the
umbrella rule of benefit of doubt extended by the Trial Court. After that Supreme Court
upheld the conviction and reduced to 14 years of imprisonment.

There is urgent need for the application of forensic science in the criminal justice delivery
system. The principle of the Indian legal system is based on the fact that until proved guilty, a
person is innocent and an innocent cannot be convicted even if a 100s of criminals are set

4
Nithari killings: A timeline of the case so far
http://www.livemint.com/Politics/W3UVdT8AW4j8TLrlX1sElI/Nithari-serial-killings-A-timeline-of-the-case-
so-far.html
5 Santosh Kumar Singh vs. State through CBI (Ms. Priyadarshini Mattoo case)
http://www.legalservicesindia.com/article/article/case-comment-on-priyadarshini-matoo-case-644-1.html
free. The use of forensic science in a setting up proof has proven problematic for both judges
and attorneys because most of them are not technically trained. Much of the difficulty
encountered by courts when facing scientific evidence lies not in a lack of understanding the
underlying science.

The Legal System should work towards developments and advances that take place in science
as long as they do not violate fundamental legal principles and are for the good of the society.
The criminal justice system should be based on just and equitable principles. The widely
debated issue is of using narcoanalysis test in an interrogation in India. The extent to which it
is accepted in our legal system and our society is something, which is not clear. In a situation
where narcoanalysis is gaining judicial acceptances and supports despite being an unreliable
& doubtful science, we have to seroiusly think about its legality and constitutional validity
from human rights perspective.

And sec. 313 Cr.P.C must also be amended so as to draw adverse inference against the
accused if he fails to answer any relevant material against him therefore, making it easy for
the law enforcers to use forensic tests(DNA, Narcoanalysis, Brain mapping) against him as
suggested by Malimath Committee.