Forensic Science & Criminal Justice System In India

Criminal justice forms part of the set of processes, bodies, and institutions that aim to secure or restore social control[1]. The latter may be defined as ‘the organized ways in which society responds to behavior and people it regards as deviant, problematic, worrying, threatening, troublesome, and undesirable’[2]. The administration of criminal justice primarily rests on police, prosecution, courts, and prisons. These four organs are engaged in the vital task of prevention, detection, prosecution, adjudication, and penalization of offenders in society. Effective criminal justice machinery ensures a safe and peaceful society. In fact, the entire existence of an orderly society depends upon a sound and effective criminal justice system[3].

Amongst the functionaries of criminal justice, the pivotal role is that of the Magistrates and courts. They are responsible for deciding the guilt or otherwise of the alleged offenders and determining the sentence. This process of deciding the culpability of offenders by courts is a complex one involving appreciation of facts and evidence and establishing the charge sought to be proved. In the task, they are assisted by a specialized investigative body, the police. The latter are entrusted with the significant task of detecting and investigating crimes for the purpose of apprehending the alleged offenders and bringing them to justice. Any investigation speaks only with evidence. Truth stands proud in a Court of Law only on the solid and sound foundation of evidence”.[4]

In the last few decades, the infusion of technology in crime investigation has been a major breakthrough in the process of advancement of criminal justice. Somewhere, the efficiency and effectiveness of the criminal justice functioning have come to be intertwined with the extent of the use of technological tools in crime investigation.

What is Forensic Science? 

The concept of forensic science is not a new one. In ancient India, a medical opinion was frequently applied to the requirements of the law. Sir William Herschel was one of the first to advocate the use of fingerprinting in the identification of criminal suspects. Fingerprint evidence was first accepted in an Argentine court in the 1890s and in an English court in 1902. Forensic evidence is a discipline that functions within the parameters of the legal system. Its purpose is to provide guidance to those conducting criminal investigations and to supply to courts accurate information upon which they can rely in resolving criminal and civil disputes.

Forensic science, an amalgamation of almost all faculties of knowledge, is an essential and efficient enabler in the dispensation of justice in criminal, civil, regulatory, and social contexts. It is defined as the application of science in answering questions that are of legal interest. Forensic science in today‘s world is an advanced scientific technique that is used in criminal and civil investigations, it is capable of answering important questions and forms an integrated part of the criminal justice system[5]. It includes all well-known techniques such as fingerprint analysis, DNA analysis, ballistic, firearms or explosive culture, etc. It helps to convict those guilty of a crime as well as can exonerate the innocent.

Role of Forensic Science in Crime Investigation 

Forensic science is one of the important aspects of criminal justice. Basically, it deals with the scientific examination of physical clues collected from the crime scene. Forensic science explains the identity (who) of the suspect who committed the crime. The evidence clearly indicates the type (what) of the crime committed. The circumstances speak out about the time (when) of the incident. The forensic evidence proves the location of the offense (where/crime scene). The forensic investigation finds out the modus operandi (how) of the offender. Lastly, establishes the motive behind the crime. The forensic investigators reconstruct the identity of the offender and the victim.[6]

During an investigation, the evidence is collected at a crime scene or from a person, analyzed in a crime laboratory, and then the results presented in court. Each crime scene is unique, and each case presents its own challenges[7]. Forensic science plays a vital role in the criminal justice system by providing scientifically based information through the analysis of physical evidence, the identity of the culprit through personal clues like fingerprints, footprints, blood drops, or hair. It links the criminal with the crime through objects left by him at the scene and with the victim or carried from the scene and the victim. On the other hand, if the clues recovered do not link the accused with the victim or the scene of occurrence, the innocence of the accused is established.

Forensic science, thus, also saves the innocent. After the emergence of DNA technology as the latest method of forensic science, it provides a tremendous amount of information to the investigating officers that enable them to find the criminal purely from evidence which he has left at the scene of crime[8].

Legal Provisions

In India, the application of forensic science to crime investigation and trial has to stand the limitation of law. The predominant questions therein are: viz.

-What is the constitutional validity of such techniques?

-To what extent does the law allow the use of forensic techniques in a criminal investigation?

-What is the evidentiary value of the forensic information obtained from the experts?

Articles 20(3) of the Indian Constitution provide that no person accused of any offense shall be compelled to be a witness against himself. Article 20(3) is based upon the presumption drawn by law that the accused person is innocent till proved guilty. It also protects the accused by shielding him from possible torture during investigation in police custody. Criminal law considers an accused as innocent until his guilt is established beyond a reasonable doubt. The Universal Declaration of Human Rights, Article 11, states: “Everyone charged with a penal

Article 20 (3) of the Constitution of India guarantees the fundamental right against self-incrimination and guards against forcible testimony of any witness. The fundamental right guaranteed under Article 20 (3) is a protective umbrella against testimonial compulsion in respect of persons accused of an offense to be a witness against themselves. The protection is available not only in respect of evidence given in a trial before Court but also at the previous stage. The protection against self-incrimination envisaged in Article 20 (3) is available only when compulsion is used and not against the voluntary statement, disclosure, or production of a document or other material[9]. This right has been taken to ensure that a person is not bound to answer any question or produce any document or thing if that material would have the tendency to expose the person to a conviction for a crime[10].

Sec. 73 of the Indian Evidence Act empowers the court to direct any person including an accused to allow his finger impressions to be taken. The Supreme Court has also held that being compelled to give fingerprints does not violate the constitutional safeguards given in Art. 20(3).[11]

There are questions ‘whether forensic evidence violates Art. 20(3) of the Indian Constitution’? In The State of Bombay v. KathiKaluOghad& Others[12], the court held that:

“Giving thumb impression, specimen signature, blood, hair, semen, etc. by the accused do not amount to ‘being a witness’ within the meaning of the said Article. The accused, therefore, has no right to object to DNA examination for the purposes of investigation and trial.”

The Bombay High Court in another significant verdict in the case of, Ramchandra Reddy and Ors. v.State of Maharashtra[13], upheld the legality of the use of P300 or Brain finger-printing, lie- detector test, and the use of truth serum or narco analysis.

In a 2006 judgment, Dinesh Dalmia v State[14] , the Madras High Court held that subjecting an accused to narco-analysis does not tantamount to testimony by compulsion. However, in a subsequent case, i.e., Selvi & Ors v. State of Karnataka & Anr.[15], the Supreme Court questioned the legitimacy of the involuntary administration of certain scientific techniques for the purpose of improving investigation efforts in criminal cases. In the above-mentioned case,[16] the Supreme Court held that brain mapping and polygraph tests were inconclusive and thus their compulsory usage in a criminal investigation would be unconstitutional.

The Code of Criminal Procedure, 1973 was amended in 2005 to enable the collection of a host of medical details from accused persons upon their arrest. Section 53 of the Criminal Procedure Code 1976 provides that upon arrest, an accused person may be subjected to a medical examination if there are “reasonable grounds for believing” that such examination will afford evidence as to the crime. The scope of this examination was expanded in 2005 to include “the examination of blood, blood-stains, semen, swabs in case of sexual offenses, sputum and sweat, hair samples and fingernail 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.[17]

However, the provision inserted through an Amendment in 2005 is limited to rape cases only. This section also does not enable a complainant to collect blood, semen, etc, for bringing criminal charges against the accused; neither does it apply to complain cases[18].In similar lines, Section 164A Code of Criminal Procedure, 1973 provides for the medical examination of a woman who is an alleged victim of rape within twenty-four hours and such examination includes the DNA profiling of the woman. Both the sections authorize any medical practitioner within the meaning of Sec. 2(h) Indian Medical Council Act, 1956 to collect a DNA sample.

The question lies as to whether every medical practitioner is capable to collect and preserve DNA evidence. It is a well-known fact that DNA evidence is entirely dependent upon the proper collection and preservation of samples. Any simple mistake or unawareness can contaminate the sample and the contaminated sample is of no use.

Under the Indian Evidence Act, 1872, a forensic report is considered as “opinion” tendered by an expert. An expert may be defined as a person who, by practice and observation, has become experienced in any science or trade. He is one who has devoted time and study to a special branch of learning and is thus especially skilled in that field wherein he is called to give his opinion20[19]he real function of the expert is to put before the court all the materials, together with reasons which induce him to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials[20]. The credibility of an expert witness depends on the reasons stated in support of the conclusion and the tool technique and materials, which form the basis of such conclusion[21]. However, the court is free to disagree with the conclusions drawn by the expert and rely on other evidence for the purpose of the decision.

The National Draft Policy on Criminal Justice Reforms[22] has suggested that the Indian Evidence Act needs 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.

Restrictive use of Forensic Evidence in the Indian Legal Scenario

The most important function of scientific investigation is to convert suspicion into reasonable certainty of either guilt or innocence. However, till recently, the courts had to rely heavily on non-scientific evidence because of the non-availability of proper technologies. There is a study of 2011 that shows that only in 47 cases in the Supreme Court and different High Courts; DNA has played an important role. Out of these, 23.4% of decisions were given by Delhi High Court alone. Furthermore, DNA evidence had been used in merely 4.7% of murder cases and 2.3% of rape and murder[23] In yet another study of rape cases over the decade, the author has indicated that there has been an increased reliance by Indian courts on forensic evidence and DNA over the years, even though the figures are abysmally low and concerted efforts are needed to include scientific evidence in all criminal matters, where applicable.[24]

The area of forensic science in India has, yet, not been fused. Many a time, neither the judge nor the lawyer nor even the police appreciate fully, the advances or the extensive, promising potentialities of the science and the fusion of new technologies, methodologies, modalities, and research. Multitask and multi-professional nature of forensic science need an inter-professional approach, which is, many a time, lacking[25].

The Committee on Reforms of Criminal Justice System[26] also indicated that the present level of application of forensic science in crime investigation is somewhat low in the country, with only 5-6% of the registered crime cases being referred to the FSLs and Finger Print Bureau put together. There is an urgent need to bring about a quantum improvement in the situation, more so, when the conviction rate is consistently falling over the years in the country and the forensic evidence, being clinching in nature, can reverse the trend to some extent. The reasons for the reluctance of courts to use forensic evidence in criminal investigations are various.

Mismanagement of physical evidence, including improper collection, preservation, non-collection of clue evidence, non-maintenances of a chain of custody, as well as the delayed dispatch of physical evidence for scientific analysis has been repeatedly commented upon by the courts. Not sending an accused for medico-legal examination, non-lifting of fingerprints by the I.O or when the bloodstained mortal object had been sent for chemical examination without covering the same by a wrapper immediately after the seizure of the same then it’s obvious that court would reject the report[27]. Sometimes scientific evidence suffers from some kind of technical lacunas such as non-mention of blood group in Serologist’s report[28], tests were not done meticulously[29], no supportive data were provided by the Expert along with report[30], delayed examination of exhibits at the laboratory[31], etc.

Delayed examination of exhibits at the laboratory can turn the merit of a case into a negative version. The delayed examination of biological, serological, and viscera exhibit in poisoning cases puts a big question mark on the authenticity of the evidence. The putrefaction of such exhibits can generate alcohol in the exhibits, on long-standing, and may also not permit the detection of poison and conclusive serological results; likewise, in cases of drunkenness, the blood alcohol or urine alcohol negative samples may test positive for the presence of alcohol due to self-generation of alcohol on the putrefaction of samples[32]. Sometimes, it is not possible for the Autopsy Surgeon to clarify the mode of death[33].

Forensic case data, thus, is still poorly integrated into the investigation and crime analysis process, despite evidence of its great potential in various situations and studies[34].

Constraints faced by allied subsidiaries

Modern techniques of investigation are an area still unknown to the police. They are not taught about them. The police are accused of investigating crimes by using traditional methods and techniques[35]. It has been maintained that improper scientific knowledge with the investigation officer, the first respondent to the crime coupled with improper handling of the scene of the crime, may either contaminate the samples required to be tested or destroy the evidentiary value, which could be obtained on proper lifting, sealing, forwarding to the Expert/Laboratory for examination. Therefore, the association of Forensic Experts with the police investigation right from the beginning and their effective liaison with the Medico-legal Expert can contribute very significantly and sometimes decisively, to the solving of the crime[36].

In India, a serious concern is also about the independence of forensic labs and their self-regulation. The state and central forensic science laboratories are under the direct administrative control of the law enforcement authorities. The State and Union Territory Forensic Science Laboratories is either directly functioning under the respective Home Department or through police establishments[37]. Forensic science institutions are part of the police setup and therefore, cannot maintain absolute independence at all levels[38].

Forensic labs lack the necessary manpower and infrastructure. They are staff served. Sometimes proper infrastructure and equipment are missing. They lack proper funding also. Surprisingly, there is also a lack of coordination between these two wings, i.e. forensic expert and police.

Conclusion

In the Indian scenario, there has been an increased emphasis on the use of such technologies in criminal investigation and trials. The Commissions appointed on reforms of criminal justice have reiterated that the infusion of technology in crime detection can help the system to function efficiently. The relevant laws have been amended from time to time to make way for use of forensic technologies in crime investigation and trial. Yet, it may be said that there are existent flaws in the laws which need to be addressed. The courts are also reluctant to rely on scientific evidence due to their restrictive approach, or certain inherent defects in the evidence as produced

In courts which deter them from relying on it entirely. The main motto of the criminal justice system is to provide fair justice. Undoubtedly, forensic evidence is more authentic than ocular evidence. Forensic science being scientific evidence is a boon for the criminal justice system. We have to overcome the existing flaws to step forward.

Rahul Raj,

Central University of South Bihar

   

[1] Francis Pakes (Ed), Comparative Criminal Justice pg. No.1( Routledge, Oxon, 3rd Edition/2015).

[2] David Shichor, The Meaning And Nature Of Punishment, (Waveland Press, Inc. 2006).

[3] Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, Volume I,   2003.

[4] U. S. Misra, CBI-The Role & Challenges 13 NPAJ Vol. 57 (1 (2005).

[5] IshaTyagi and Nivedita Grover, Development of Forensic Science and Criminal Prosecution-India, , 2 IJSRP Vol.4 (2014).

[6] N. B. Narejo, M. A. Avais, Examining the Role of Forensic Science for the Investigative-Solution of Crimes, 252 SURJ (SCIENCE SERIES) Vol. 44(2) 2012.

[7] Forensic Sciences, National Institute of Justice, Office of Justice Programs, http://www.nij.gov/topics/forensics/pages/welcome.aspx, (last visited on 21.10.2020).

[8] Jyotirmoy Adhikary, DNA Technology in Administration of Justice, (LexisNexis, Butterworths, 2007)

[9] 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 21.10.2020).

[10] McDougall, Justice Robert, The Privilege against Self-incrimination: a time for reassessment, Paper presented at New South Wales Bar Association, 18 October 2008

[11] Gaurav Aggarwal, Smart Study Series Forensic Medicine &Toxicology 73 (ELSEVIER A division of Reed Elsevier India Private Limited, Gurgaon Haryana), 2009).

[12] AIR 1961 SC 1808, 1962 SCR (3) 10.

[13] 2004 All MR (Cri) 1704.

[14] 2006 Cri. L. J 2401

[15] AIR 2010 SC 1974.

[16] ibid.

[17] Overview and Concerns Regarding the Indian Draft DNA Profiling Act, Council for Responsible Genetics, http://www.genewatch.org/uploads/f03c6d66a9b354535738483c1c3d49e4/India_DNA_Bill_Memo_2.0.pdf, (last visited on 19.10.2020).

[18] Supra, Note, 8.

[19] Pragati Ghosh , Evidentiary Value of Expert Evidence under Indian Evidence Act, 1872, http://www.shareyouressays.com/119180/evidentiary-value-of-expert-evidence-under-indian-evidence-act-1872,   (last visited on 10.12.2020)

[20] S. C. Parakh, ‘Expert Witness’ 421 IJA Vol.55 (2011).

[21]Prof. (Dr.) B. P. Tiwari, Evidentiary Value of Expert Opinion, 23 IIRRJ Vol. IV (2012).

[22] Report of the Committee on Draft National Policy on Criminal Justice, Ministry of Home Affairs, Government of India, July, 2007.

[23] Dr. Nirpat Patel, Vidhwansh K Gautaman, ShyamSundarJangir, The Role of DNA in Criminal Investigation- Admissibility in Indian Legal System and Future Perspectives,15-21 IJHSSI Vol. 2 (2013).

[24] Dipa Dube, ‘Determining the Applicability of DNA Evidence in Rape Trials in India’, Vol. 2 (1), IJSSR, 2014.

[25] Justice Jitendra N. Bhatt, A Profile of Forensic Science in Juristic Journey, http://www.ebc- india.com/lawyer/articles/2003v8a4.htm (last visited on 22.10.2020).

[26] Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, Report, Volume 1, March 2003.

[27] A. Dutta, R. C.Arora,and Dr. P.C. Sarmah, Analysis of Problems related to Forensic Examination in Offences against Human Body and Need for Auditing, Vol.LVIII (3),IPJ& pg. no.10-11(2011).

[28] Kasha Beharav. State of Orissa, AIR 1987 SC 1507.

[29] Himanashu Pahari v.State, (1986) Cri. L.J. 622.

[30] Mahmood v. State of U.P., AIR 1976 SC 69.

[31] Mahavir Singh v.State, Cri. Appeal No. 498/2007, decided on 22.5.09.

[32] ibid.

[33] Enamul Haque v. State of West Bengal, CRM 17348 of 2010 & AST 1114 of 2010.

[34] Olivier Ribaux, Simon J. Walsh and PierreMargot, The contribution of forensic science to crime analysis and investigation: Forensic intelligence, 171-181 FSI vol.156 (2006).

[35] James Vadackumchery, The Police, the Court, and Injustice, 97 (APH Publishing Corporation, New Delhi, 1997).

[36] The forensic use of bio-information: ethical issues, Nuffield Council on Bioethics, http://nuffieldbioethics.org/wp- content/uploads/The-forensic-use-of-bioinformation-ethical-issues.pdf (last visited on 19.10.2020).

[37] V. R. Dinkar, ‘Forensic Scientific Evidence: Problems and Pitfalls in India’, 79-84, IJFSP Vol. 3 (2015).

[38] Peerzada Yasir Latif Handoo, Forensic Science: A Boon to Criminal Justice, Administration with Special Reference to State of J&K.,53 JIARM Vol.1 (2013).

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