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DNA FINGERPRINTING

INTRODUCTION
It has long been the ambition of the Forensic Science to be able to identify the
origin of the samples of blood, body fluids or tissues, with the same degree of
certainty as to the owner, as dactylography.

The arrival of DNA fingerprinting has revolutionalised the concept of

identification and helped realize the ambitions of forensic investigation in
achieving pin point accuracy.

The discovery of DNA fingerprinting revolutionized criminal identification and

forensic science. Just like ink fingerprints, DNA fingerprints are unique to every
individual and can be used as legal evidence in court to prosecute or defend
alleged criminals.DNA fingerprinting thus undertakes the heavy task of
identifying a person uniquely. In paternity cases, DNA finger printing
technology can be used to identify or rule out persons as biological parents of
a child. Even Dhanu and Sivarasan, the assassins of the late Prime Minister of
India, Mr. Rajiv Gandhi, were identified by DNA profiles.1 However, the
development of this technology has given rise to a number of ethical debates
including whether a person can be forced to give a DNA sample for analysis
and who should gain access to such personal information. Also, the concept of
a DNA database raises questions about personal privacy and civil rights,
although it could be a key contributor to genetic research. Scientists are
consistently finding new ways in which the applications of DNA can be
expanded.2

WHAT IS DNA FINGERPRINTING?

The structure of DNA (deoxyribose nucleic acid) was first discovered by Dr
James Watson and Francis Crick in 1953. By employing the basic structure of
DNA fingerprinting many complicated legal problems have been resolved.

1
Editorial, Sciential, August 1995, Vol 9, No. 8, p 1.
2
Ganguly’s, Medical Jurisprudence and Toxicology, Drivedi Law Agency, pg..- 285.
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When adequate number of DNA patterns, in two unrelated individuals are

compared, the chances of complete similarity are 1 in 300 billion, i.e., half the
population of the world.

DNA or deoxyribonucleic acid consists of four nitrogenous bases- adenine,

thymine, cytosine, guanine and phosphoric acid arranged in a regular
structure. It is a polymer of nucleotides, which are the units strung together to
form a DNA strand. The backbone of a DNA strand is formed by a sugar base
component and a phosphate group. The DNA molecule is composed of two
DNA strands coiled in a double spiral (helix).

DNA identification analysis, identity testing, profiling, fingerprinting typing, or

genotyping refers to the characterization of one or more relatively rare
features of an individual’s genome or hereditary makeup. Every human, lower
animal and sexually reproduced plant has a characteristic phenotype or
physical appearance because each possesses a unique hereditary
composition.3

STRUCTURE OF DNA

3
Modi's Medical Jurisprudence and Toxicology, K. Mathiharan and Amrit K Patnaik, LexisNexis, Buttersworth,
pg. 310.
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PROCEDURE
In DNA typing, the DNA from samples like blood, semen, hair etc is cut into
fragments of sequence patterns using a specific enzyme. The fragments are
separated into bands by gel electrophoresis and then the DNA pattern is
transferred to a nylon membrane to which a radioactive probe is added. An X-
ray is then taken. From any sample in that particular fragment length, the
bands from the same source are the same. This individualization is utilized for
comparison. The developed X-ray film shows the, DNA bands. They are often
matched, with the suspect. If they match, we can say that the person for the
specimen is identified and its individuality established. Thus, it is now possible
to connect the blood, semen, tooth, hair from the crime scene or from a body
to a particular individual.
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COLLECTION OF SAMPLES
The possible locations of DNA from which the samples can be collected are as
illustrated in the following table:

4
http://www.mondaq.com/india/x/278272/Crime/DNA+Fingerprinting+Helping+Hand+In+Solving+Crime on
5th October 2017 at 4:04 p.m.
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CONTRIBUTION OF DNA FINGERPRINTING

The development of DNA fingerprinting allowed for faster and more accurate
identification of suspects in criminal investigations. For example, blood found
at the scene of a crime contains white blood cells that contain DNA (red blood
cells don’t have a nucleus and consequently don’t contain any DNA). Forensic
scientists can then take a sample of the blood, isolate the unique section of
DNA and perform electrolysis to make a DNA fingerprint. All tried and
convicted criminals have their DNA fingerprints in a database so they can be
easily identified if they re-offend However, there may be more than one set of
DNA at a crime scene. For example, the victim may have bled, the criminal may
have left hair behind and there could be traces of people’s DNA left from days,
months or years before the crime from sneezes or sweat. Apart from the
samples taken from the scene, forensic scientists have to take samples directly
from the victim, any suspects, and anyone who frequented the crime scene
before the crime occurred in order to rule out the innocent people. Also, any
police officers, detectives or forensic scientists who enter the scene of the
crime have to takes special precautions so that they do not contaminate the
area with their DNA. Unfortunately for the victims, defense attorneys can use
the argument of contaminated DNA samples in court.

The contribution of forensic science on the administration of justice is

indispensable. In the present millennium winds of forensic storms are blowing
over the horizon of criminal justice all over the world. Orthodox methodology
of Crime- detection has now been obsolete. The application of DNA technology
has heralded a new dimension in the administration of justice. DNA
fingerprinting is a unique technique for criminal identification and Crime
detection. It is equally applicable to both wings of justice, civil and criminal.
The primitive method of identification of an accused by eye- witnesses is now
not necessary in many situations. It can be done by DNA Test. The marvels of
DNA- technology are so powerful that it totally exempted many innocent
accused persons from the gallows in USA as they had been declared innocents
by DNA test. Also in appropriate cases many justified offenders had been
punished). Its application has also minimized delay in the administration of
justice.
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An ordinary fingerprint is a reliable technique in crime detection but DNA

fingerprinting is much more reliable, because ordinary fingerprints are not
always available in the crime scene, as shrewd criminals commit crimes by
using hand gloves.

In Gangadharappa v. Basvaraj,5the plaintiff instituted a title suit against his

father claiming for partition and separate possession of his share in the
Coparcenary properties. The defendant’s father opposed the petition on the
ground that the plaintiff was not born to him. The defendant filed an
application under Order 26 Rule 10-A of the Code of Civil Procedure along with
Section 151 for appointment of a commissioner for conducting blood- test and
genetic finger print test of the plaintiff for ascertaining whether he is his son.
The petition was opposed by the plaintiff on ground of Article 20(3) of the
Constitution of India and the petition of the defendant for conducting DNA
fingerprinting was rejected. When in revision the matter came up before the
Hon’ble High Court of Karnataka, it ordered for appointment of Commissioner
for the purpose of genetic finger printing.

IMPACT OF DNA FINGERPRINTING

It is the certainty and accuracy of a DNA test result that provides the many
benefits of DNA testing. The fingerprinting and profiling that is carried out for a
DNA test helps to identify people.

5
AIR 1996 Kar 155.
6
DNA Fingerprinting: An Introduction,Lorne T. kerby, Oxford University Press, New York,pg. 66
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DNA fingerprinting has enormous impact on the administration of justice:

 For identification purpose:

In many heinous crimes, the offenders leave the cadaver by severing the head
of the victim on the crime- spot, leaving on the spot the head- less corpse; very
often it becomes difficult to identify a dead body without head. In such a
situation DNA test can solve the problem. These types of incidents very often
happen on a railway track. Particularly in the remote villages, in committing
murder, the dead- body is kept hidden inside a deep pond for long days. The
dead- body being non- traceable for long days undergoes decomposition in the
water and the fishes and other aquatic creatures eat the human flesh resulting
unworthy of identification of the decomposed body. In such a situation DNA
test can solve the mystery.

 For baby- exchange cases and paternity cases:

In many parts of India there is illegal practice of new- born baby exchanging in
the Hospitals. The real biological parents are deprived of their original babies.
Generally, a female baby is exchanged with a male boy. The mother is deprived
of her original baby. This is a cheating of the worst kind. Such type of practice
is prevailing in different parts of India. But DNA test in such situations, has
solved the mystery. Who is the actual real mother of the disputed baby can be
ascertained by DNA test.

The Hon'ble Supreme Court's acceptance of Delhi High court judgment of

ordering Veteran Congress Leader N.D. Tiwari to undergo the DNA test is very
important from the viewpoint of the admissibility of such evidence. In this
case, Rohit Shekar has claimed to be the biological son of N.D. Tiwari.7

 Rape cases:

In rape cases, DNA has enormous applications. Immediately after the

commission of rape, if the vaginal swab is collected and sample sealed and
semen collected from the accused and both the samples are examined in
the DNA laboratory, the reality can be ascertained.

7
Rohit Shekhar vs Shri Narayan Dutt Tiwari & Anr., (2012) 12 SCC 554.
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DNA fingerprinting has been used to solve many cases such as Santosh
Kumar Singh v. State thr. CBI8, she was a 25-year-old law student who was
found raped and murdered at her house in New Delhi in 1996. In the year
2006, the Delhi High Court found Santosh Kumar Singh guilty on both
counts of rape and murder.

 Murder cases:

In murder cases, DNA fingerprinting technique may be used for detection of

the culprit who has committed murder. Different types of trace elements may
be available in the crime spot such as blood, hair roots etc. In many cases
blood- stained clothes of the victim may be recovered from the possession of
the accused or the blood- stained weapon, sword, bhojali, dagger etc. may be
recovered from the possession of the accused. All these elements are valuable
materials for identification of the accused.

 For General identification of Criminals:

Identification of a criminal and connecting it with crime is the paramount

purpose in a criminal trial and DNA technology serves this purpose. Very often
criminals leave on the crime spot many elements inadvertently like blood, hair,
skin cells and many other genetic evidences, if these are collected and
compared through VNTR Patterns with the DNA of a criminal, he can be
spontaneously identified.

8
( 2010 ) 9 SCC 747.
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 For detecting innocence of suspects;

DNA technology is not only helpful for crime detection and identifying
criminals, it is also helpful for exonerating many innocents from the trap of
malafide criminal prosecution.

 Personal identification:

DNA fingerprinting has an outstanding characteristics for identifying a person

amidst millions of people. The DNA method is far better than dog tags, dental
records and blood typing strategies. 9

There should be no shame in errors made by well- meaning jurors, because

human error is inevitable.10

DNA FINGERPRINTING AND INDIAN LAW

As such there is no specific provision or provisions relating to DNA test under
the Indian Laws but there are certain provisions in Acts and Codes which deal
with the use of DNA technology for administration of justice. The new waves of
technology have entered the society and the Laws of a Country are bound to
change due to the revolutionary scientific changes as it is a very popular say
that ‘Law is dynamic and not static”.

DNA analysis is also of utmost importance in determining the paternity of a

child in the cases of civil disputes. Need of this evidence is most significant in
the criminal cases, civil cases, and in the maintenance proceeding in the
criminal courts under section 125 of the Code of Criminal Procedure, 1973.
Also, the Hon'ble Supreme Court's acceptance of Delhi High court judgment of
ordering Veteran Congress Leader N.D. Tiwari to undergo the DNA test is very
important from the viewpoint of the admissibility of such evidence. In this
case, Rohit Shekar has claimed to be the biological son of N.D. Tiwari.11 It

9
Debashish Moitra and Dr. Rakesh Kaushal, Medical Jurisprudence and Toxicology, Delight Law Publishers,
pgs.- 313, 314 and 315.
10
Article of DNA Fingerprinting- A Legal Perspective by Abhijeet Sharma reported in 2004 CrLJ Journal Section
at page 142.
11
(2012) 12 SCC 554
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would be very interesting to see that how courts in India would allow the
admissibility of DNA technology in the future.

In furtherance of the above there are certain provisions in the Indian Evidence
Act, 1872 such as section 112 which reads as follows:

"The fact that any person was born during the continuance of a valid marriage
between his mother and any man, or within two hundred and eighty days after
its dissolution, the mother remaining unmarried, shall be conclusive proof that
he is the legitimate son of that man, unless it can be shown that the parties to
the marriage had no access to each other at any time when he could have
been begotten."

There is no doubt as to the existence of law in India for forceful extraction of

blood for DNA test which conclusively determines the paternity or maternity of
a child or of any person. The pronouncement in Gautam Kundu’s case12,
clearly states 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
enquiry, the prayer for blood test cannot be entertained; and
 No one can be compelled to give sample blood for analysis.

Supreme Court’s judgement under Article 141 of the Constitution of India

amounts to law and binding on all Courts of India. Courts in India are very
cautious in following DNA paternity testing as they feel that it may go
against the basic principles of Human Rights and Dignity as the order for
such test may interfere with the personal liberty of that person (Article 21
of the Constitution of India). Court also feel that such an order may violate
the right of an accused person protected under Article 20 of the Indian
Constitution.

Under Section 53 of Code of Criminal Procedure 1973, an investigating

officer with the help of a medical practitioner then by force of this decision
shall not be entitled to compel the accused for extraction of blood for the
purpose of criminal investigation from the body of the accused if necessary
situation arises. Hon’ble Kerala High Court already stated that there is no

12
1993 SCR (3) 917
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law in india enabling the Court to compel any person to undergo blood- test
as available in England.13But decision in Swati Lodha’s case,14 tells us that
taking of blood from veins of accused is not violative of Article 20(3) of the
Constitution of India.15

In 2011, however, Delhi High Court issued contempt notice to N.D.Tiwari

for his deliberate disobedience of its order to give blood sample for DNA
test to determine a youth's paternity.

Order 26 Rule 10A of Code of Civil Procedure deals with commission for
scientific investigation. The guidelines in Gautam Kundu’s case comes in
conflict with the spirit of Section 53 of CrPC for which an investigating
officer with the assistance a medical practitioner can collect materials from
the body of the arrested accused like blood, semen, urine etc. for the
purpose of DNA examination. In such is the position of law in India for
collection of blood, the purpose of investigation of criminal cases shall be
totally frustated and jeopardized as DNA test has a serious impact on
investigation of rape and murder cases and in many other cases.

A uniform DNA legislation in this regard is, therefore, urgently needed in

India. The Indian Evidence Act, Code of Criminal Procedure, Code of Civil
Procedure should be amended and new Sections should be inserted.

ADMISIBILITY OF DNA IN INDIAN COURTS

DNA fingerprinting is based on the principle that the genetic makeup of

every individual is different from the others and is unique and idiosyncratic
to an individual. DNA fingerprinting is the only definite, positive and
permanent identification method of a person as one’s DNA never changes
during one’s lifetime. But number of times even this robust piece of
evidence failed in the court of law because of the following reasons:

13
2000 CrLJ (Ker) 208.
14
1991 CrLJ (Raj) 939.
15
Supra note 7 at pg.- 311.
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(1) Because as according to the Indian law no one can be forced to give
blood sample for testing;16

(2) It has not yet been included in the Evidence Act. It is therefore, left to
the discretion of the judges whether the DNA tests under Section 45 of the
Indian Evidence Act is to be accepted or not;

(3) It has not been given the status of the “conclusive proof”;

(4) Many a times it has been contended that such a testing would be
considered as violation of Article 20(3) of the constitution, which protects
every citizen from providing self-incriminating evidence;

(5) Section 112 of the Evidence Act has not been appropriately amended in
light of the scientific developments;

(6) Because of the absence of any legislation on DNA fingerprinting

empowering the courts to give an order for conducting DNA fingerprinting;

(7) Because of the absence of guidelines for analyzing DNA fingerprints for
courts to accept this as evidence.

There is an urgent need for suitable amendments in the Evidence Act and
the enactment of legislation for DNA fingerprinting.

The development of DNA technology furthers the search for truth by

helping police and prosecutors in the fight against violent crime. Through
the use of DNA evidence, prosecutors are often able to conclusively
establish the guilt of a defendant.

In Frye v. United States,17it was held that scientific evidence would be

admissible only after the thing from which the deduction is made had been
sufficiently established to have gained general acceptance in the particular
field in which it belongs. This decision was the birth of what ultimately
became known alternatively as the Frye test or the general acceptance test.
The Frye test would, by the end of the 1990’s, become the majority test for
the admissibility of novel scientific evidence.

16
Gautam Kundu’s case.
17
293 F. 1013 ( D.C.. Cir 1923).
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“DNA Technology furthers the search for truth by helping police and
prosecutors in the fight against violent crime. Also enabling the
prosecutors to conclusively determine the guilt”.

The first case that seriously challenged a DNA profile’s admissibility was
People v. Castro,18the New York Supreme Court, in a 12-week pretrial
hearing, exhaustively examined numerous issues relating to the
admissibility of DNA evidence. Jose Castro was accused of murdering his
neighbor and her 2-year-old daughter. A bloodstain on Castro’s watch was
analyzed for a match to the victim. The court held the following:

 DNA identification theory and practice are generally accepted among

the scientific community.
 DNA forensic identification techniques are generally accepted by the
scientific community.
 Pretrial hearings are required to determine whether the testing
laboratory’s methodology was substantially in accord with scientific
standards and produced reliable results for jury consideration.

However, in Indian context, the awareness and the prospective of this

technique is still lacking, the major reason for which is that this technique is
still not a part of the Evidence Act. It is left to the discretion of the judges
whether the DNA tests under Section 45 of the Indian Evidence Act to be
accepted or not. The first paternity dispute in India (2000), which was
solved by DNA fingerprinting test, was the case No. M.C. 17 of 1988 in the
court of the Chief Judicial Magistrate of Telicherry (Thalassery). The Chief
Judicial Magistrate held that: “the Evidence of Expert is admissible under
Section 45 of The Indian Evidence Act, 1872. So also, the grounds on which
the opinion is arrived at are also relevant u/s 51 of The Indian Evidence Act.
PW4 is an expert in the matter of molecular biology and the evidence
tendered by him is quite convincing and I have no reason why it should not
be accepted. Just like the opinion of a chemical analyst, or like the opinion
of a fingerprint expert, opinion of PW4, who is also expert in the matter of
cellular and molecular biology, is also acceptable.”

18
(1985) 38 Cal.3d 301
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This verdict was challenged in the High Court but the High Court upheld the
verdict of the Telicherry Court stating that the results of DNA test by itself
could be deciding paternity.

Many times objections have been raised against the orders or applications
filed for conducting DNA tests on the ground that no one can be forced to
give his/her blood sample. In the case of Goutam Kundu v. State of West
Bengal & Anr.19 it was held that “wife cannot be forced to give blood
sample and no adverse inference against her for this refusal”.

In case of Mrs. Kanchan Bedi and Anr. v. Shri Gurpreet Singh Bedi20 where
the parentage of the infant was in question, and the application filed by the
mother for conducting DNA test was vehemently opposed by the father
contending that it would violate his rights, Justice Vikramjit Sen held that “it
appears to me to be difficult to resist that the law, as it presently stands,
does not contemplate any impediment or violation of rights in directing
persons to submit themselves for DNA test, especially where the parentage
of a child is in controversy for the grant of maintenance.” It was further
held that where the parentage of a child is in controversy for the grant of
maintenance, parties submitting themselves for the DNA test was not
violation of rights. He distinguished this case from Gautam Kundu’s case.

In a very important and recent judgment delivered in the Supreme Court of

India in the case of Sharda v. Dharmpal,21 where the core question was,
whether a party to a divorce proceeding can be compelled to a medical
examination. In this case an order for DNA test was opposed by the
Respondent on the ground that such an order violates his right to privacy.
The three Judge bench of the Supreme Court held that “If for arriving at a
satisfactory conclusion, 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 was also said that if despite an order passed by
the Court, a person refuses to submit himself to such medical examination,

19
2000 CrLJ (Ker) 208.
20
AIR 2003 Delhi 446
21
AIR 2003 SC 3450.
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a strong case for drawing an adverse inference would be made out. Section
114 of the Indian Evidence Act enables a Court to draw an adverse
inference if the party does not produce the relevant evidences in his power
and possession.

In the case of Rohit Shekhar vs Shri Narayan Dutt Tiwari & Anr.,22 it was
held that:

Reliability of the scientific evidence depends upon three factors:

 the validity of the underlying scientific principle ;

 the validity of the technique applying the principle ; and
 the proper application of the technique on a particular occasion.23

Therefore, there is no doubt regarding the admissibility of DNA Fingerprinting

in Indian courts provided it is corroborated.

22
(2012) 12 SCC 554.
23
https://indiankanoon.org/doc/170781909/ on 5th october 2017 at 3:13 p.m.
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CONCLUSION

Due to modern advancement of science and technology, the modus operandi

of committing crimes has been totally changed. The criminals are committing
crimes with the latest invention of science and technology. So, for combating
such types of crimes, the ordinary and obsolete methods of crime- detection
are not tenable in the present day circumstances. And for this reason DNA
Fingerprint becomes a blessing for the detection of crimes and in the
administration of justice.

There is a growing concern that this technology intrudes on an individual’s

right to privacy like never before, but there are plenty of other positives
stemming out of the work as well. Biologists use it to study genetics not only in
humans, but also in other species. Anthropologists use DNA fingerprinting to
study evolution in humans and their current global variation through millions
of years. A discovery that took Jeffreys just an instant is helping us trace back
through our own history.

Advancements and amendments are therefore needed to cope up with the

growing technology so that administration of justice is not frustrated and faces
a set back on this point.