EVIDENCE LAW PROJECT

RELEVANCY AND ADMISSIBILITY OF SCIENTIFIC

EVIDENCES

SUBMITTED TO- DR.SABINA SUBMITTED BY- SALEENA GUPTA

B. A L.L.B (SEMESTER 7)

SECTION A

45/15
Page | 1
 ACKNOWLEDGEMENT

It is to be acknowledged that I am greatly thankful to my important people who have guided me in completing
this project. I am highly greatful to all them. First of all, I am thankful to the director, university institute of
legal studies, prof. rattan Singh for providing the department with a knowlegeable and educative environment in
the department. He had provided with such a knowledgeable faculty in the department and supporting teachers.

After that I am thankful to evidence law teacher, dr. sabina for her guidance and teaching on
the subject of evidence law. She had taught the subject with such a level of ease and management that the deep
essence of the subject is clearly understood by all her students. Because of her teaching, I am able to have a
wide mental attitude towards the study of this project and only because of that I could add valueable aspects in
this project.

I am also thankful to my friends and classmates who helped me to complete the project by
awareing me about all the mistakes I was going through this project. They have always helped mewhenever I
suufered any obstacle to move ahead with this project.

At the end I am thankful to most important part of my life that always support me not only in
this project but in every big and small projects of my life- my family. They have always built the moral spirit in
me and have always awakened to do whatever I can do. They have reposed faith in me and I never wish to go
beyond their faith.

Thanking you all!

SALEENA GUPTA

45/15

Page | 2
 TABLE OF CONTENTS

PARTICULARS PAGE NUMBER REMARKS

Objectives of the study 5

Introduction 6

What is scientific evidence? 6-13

 Concept of Narcoanalysis
 Concept of Brain Electrical Activation profile (BEAP) test 8-9
 Concept of Polygraph test 10
 Concept of Brain mapping 10-12
 Concept of DNA profiling 12
13

Admissibility of scientific evidences 14-17

 Admissibility of scientific evidence under indian evidence

act, 1872 14-16
 Whether the administration of these scientific techniques
violates the `right against self- incrimination' enumerated
in Article 20(3) of the Constitution? 16-17
 Other provisions dealing with scientific techniques 17

Analysis of Selvi v. State of Karnataka 17-18

Other cases related to the use of scientific evidences 18-19

Conclusion 20

Bibliography 21

Page | 3
 TABLE OF CASES

PARTICULARS CITATION PAGE NUMBER

Bal Krishna Das v. Radha Devi AIR 1989 All 133
CBI v. Santosh kumar Singh 2007 CriLJ 964
C.H. Shah Vs S.S. Malpathak and Ors (AIR 1973 Bom 14)
Dayal Singh v. State of Uttaranchal 2012(3) RCR (Criminal)
949
Dinesh Dalmia v. State of Maharashtra Cr. L.J. (2006) 2401
Gajraj v. state (NCT) of Delhi 2012 (1) R.A.J. 28

Jagroop Singh v. state of Punjab AIR 2012 SC 2600

Halappa v. State of Karnataka 2011 (7) RCR (Criminal)
29
Harjinder Kaur v. State of Punjab 2013(2) RCR (Criminal)
146
Harpal Singh v. state of H.P AIR 1981 SC 361
Narayan Debnath v. State of Assam 2010 CrLJ 275
Mahalakshmi v. State of T. N 2012(6) RCR (Criminal)
100
M.P. Sharma v. Satish Chandra AIR 1954 SC 300
Nandini Sathpathy v. P.L. Dani (1978) 2 SCC

Narayan Debnath v. State of Assam 2010 CrLJ 275

Pappuram vs State (2017) Crl. petition
rajastan high court

People’s Union for Civil Liberties v. Union of India AIR 2004 SC 456

Pushpadevi M. Jatin v. M. L. Wadhwan AIR 1987 SC 1748

Ranjitsingh Brahmajeetsingh vs State Of Maharashtra (2005)SCC 523

& Anr
Rohit shekhar v. Narayan.Dutt Tiwari & anr. 2011(4) RCR (Crl.) 307

Selvi v. State of Karnataka AIR 2010 SC 1974

State of U.P v. Boota Singh AIR, 1978 SC 1770

Page | 4
 OBJECTIVES OF STUDY

The present study is based on an attempt to find out the various forms of scientific techniques that are available
to use in detection of culprits and to find out truth of all the cases before the courts so that actual offender
should be identified with certainity and welfare to the society must be restored. Effort has been made to find out
the need of these scientific evidences in the present society. How the laws and judiciary express their attitude
over such techniques and what is the need for the future is a matter of discussion.

Some key points on which study of the matter has been focused upon are:-

 To find out the availability of various scientific techniques available and useful in crimes.
 To see the present status of such scientific techniques in India.
 To find out the need of such scientific evidences over other techniques.
 To see the relevancy and admissibility of scientific evidences for detection of crimes in India.
 To see the obstacles that blocks the use of these scientific techniques
 How the various provisions of evidence act and how judiciary view these techniques.

Page | 5
 INTRODUCTION
The technical knowledge of an average man has increased tremendously in recent years. The crime techniques are getting
refined.A large percentage of the murder trials, ultimately, end in acquittal and the reason behind this is said to
be improper handling and managing of the investigation. Besides, crimes are so well planned and efficiently
committed by using technology that hardly any evidence is available on the crime scene. As the advancement in
the technology has helped the victim to be protected from various new crimes like Cyber Crimes, similarly the
different sciences have helped in collection of evidences which in normal circumstances would be hard to
collect.

The attribute of Indian Criminal Justice System which follows the principle of ‘Guilt should be proved
beyond reasonable doubt’ can be achieved if equal reliance is made on the forensic evidences. Criminals are
getting sophisticated day –by –day. They take help of hi-fi technology in commission of crimes. They are taking
help of scientific technology to such an extent that within the time period of few seconds they remove
themselves from crime- scene and mostly with no- evidence at crime site.

Besides, crimes are so well planned and efficiently committed by using technology that hardly any evidence or
clue is available on the crime scene. They hardly leave any sort of inkling or evidence at the crime site or
otherwise and on the contrary country’s police and investigation agencies are still stuck on the long standing
tools, techniques for investigation of crimes. Criminals have become classy, sophisticated, hi-fi and are simply
cutting-edge as they are adopting new and enhanced techniques for commission of crimes.

The problem in India is that there is no law prevalent in the country that specifically deals with the scientific
evidence. When security, protection and justice to the society is in conflict with the rights of accused, obviously
first should get importance.1 The advancement of technology and the benefit arising out of these Sciences for
the help in the matter of investigation is noticeable.

When an offence is brought to the note of police, it is their responsibility to investigate into the matter to find
out who committed the crime, to ascertain the facts and circumstances, to collect and present whole set of these
to the court to find the accused guilty or not . It is the duty of the police to apprehend the wrongdoer and present
the case before the court of justice to meet the ends of justice. But this seldom happens in present scenario.
Police often use third-degree torture to extract information. In many cases they try to suppress the truth and
make out fabricated cases for many reasons as political influences or corruption to name a few.

The problem of Indian society is that there are many to defend the rights of accused but none to think about
victim. Law Commission also emphasized on the need of training of Police officers in using scientific methods of
investigation2

WHAT IS SCIENTIFIC EVIDENCE?

In order to understand the concept of scientific evidence, first of all it is mandatory to understand what ‘science’
and ‘evidence’ separately means.

1 Jitendra Mishra, “Custodial Atrocities, Human Rights and the Judiciary”, Journal of Indian Law Institute, vol. 47, 2005, p 508
2 14th Law Commission Report
Page | 6
The word ‘science’ means knowledge. It is a systematic study of facts with the use of experiments and
techniques. In simple terms, scientific evidence is evidence used in courts and which is arrived at by scientific
or technical means.3 According to Oxford dictionary meaning of science is “systematically organized body of
knowledge on a particular subject.”4

Evidence can be defined as any material which tends to persuade the court of the truth or probability of some
fact asserted before it. 5

According to Webster dictionary, “evidence is that which is legally submitted to a competent court or tribunal
as a means of ascertaining the truth or otherwise of an alleged matter of fact under investigation.”6

According to Taylor,” evidence means and includes all facts except arguments, which tend to prove or disprove
any matter, which are under inquiry in any judicial proceeding.”7

Section 3 of Indian Evidence Act, 1872 defines evidence as-

"Evidence" means and includes- (1) All statements which the Court permits or requires to be made before it
by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

(2) All document including electronic records produced for the inspection of the Court, such statements are
called documentary evidence”

The section has not defined the term evidence in real sense but is rather a statement of what the term evidence
includes, namely oral account of the happening of a fact given by those who have personally witnessed the
happening and any document in which happening of the fact is recorded.

In Pushpadevi M. Jatin v. M. L. Wadhwan8Supreme Court has made it clear that where the evidence offered
comes within the meaning of its definition, the court can act and need not to concern itself with the method by
which it was obtained.

Scientific evidence is evidence based on the expertise of professionals in the relevant area that has been
conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally
accepted in the profession to yield accurate and reliable results.9Science has been part and parcel of Indian
Legal System. Courts are dependant on science for deciding each and every case. In one form or other science is
aiding courts to reach at just pronouncements. In Harpal Singh v. state of H.P10 , age of a girl was in question.

3 Ishita Chatterjee, “Techno-legal aspects of Scientific Evidence”accessed on 26/10/18 at 12:10 pm

4

https://www.dictionary.com/browse/science

5 C.H. Shah Vs S.S. Malpathak and Ors (AIR 1973 Bom 14)
6 www.legalserviceindia.com
7 www.legaloctopus.com
8 AIR 1987 SC 1748
9 www.businessdictionary.com/definition/scientific-evidence.html

10 AIR 1981 SC 361

Page | 7
Radiologist after examination of the girl found that she was about 15 years of age and this was corroborated by an entry in
the admission register in the government school wherein the girl was a student, which was proved by the Headmaster, and
by a certified copy of the relevant entry in the birth register.

Most commonly used techniques in India to adduce scientific evidences are Narco-analysis, Brain Electrical Activation
Profile (BEAP) test, Polygraph and Brain Mapping, DNA, asphyxia, epiphysis. Narco-analysis is a kind of
psychotherapy which is conducted on a person by inducing by bringing that individual into semi-sleep with the help of
scientific drugs. The advantage of Narco analysis is that this technique is helpful in saving the innocents from prosecution
and eliminating the use of third degree method. In addition, it has been used as a time saving device in criminal cases with
the help of Narco analysis by a trained and skilled psychiatrist. Polygraph is popularly known as lie detector test. Brain
Mapping is one more valuable scientific tool for investigation of crimes with 100% accuracy. DNA, sometimes
called the building block or genetic blueprint of life, was first described by the scientists Francis H. C. Crick and James D.
Watson in 1953.

Concept of Nacroanalysis-
The term Narco-analysis is derived from a Greek word “narke” which means anaesthesia and is used to
describe a technique of diagnosing and giving the psychotherapy with the help of psychotropic drugs as Central
Nervous System. Depressants and by virtue of this they produce a wide spectrum of effects.11 These drugs are
nicknamed ‘truth drugs’ or ‘truth serum’. In narcoanalysis barbiturate induced state of excitation is created and
patient recalls forgotten and repressed conflicts, events and experiences. Generally, the drug called
“Barbiturates” or “Sodium Pentothal” is used for conducting narcoanalysis test. Every test is video graphed.
How the subject was given dosage, what questions were put to him, what was his response, each and every
minute detail is recorded while conducting the test. Along with the video the whole procedure is also recorded
on an audio tape

Dosage of Truth Serum-In normal condition 3gm of Truth drugs of barbiturate class like sodium pentothal,
sodium Amytal etc. is required for the test. 3gm of the drug is dissolved in 3000ml of distilled water.12

Precautions-

1. The test should be conducted in a well-lit room which is otherwise quiet.

2. Prior consent of the subject has to be obtained and the person subjected to the test should be given an option
if he or she wishes to avail the test.

3. The physical and emotional implication along with the legal implications of the test should be explained to
the subject by the lawyer accessing him or her or by the police that he or she submits himself or herself to the
test voluntarily.

4. The entire process should be videotaped.

5. The drug should be administrated so that a state between sleep and wakefulness is maintained. Caffeine
should be used to prevent the subject from going into deep sleep.

11 Caesar Roy, “Narco Analysis Test- Infringement of Individual Fundamental Rights and Its Value as Evidence”, Criminal Law
Journal, March 2009 p 69
12 selvi v. state of karnataka, www.indiankanoon.com accessed on 03/11/18 at 12:20 pm
Page | 8
6. Test should be conducted as per norms of the NHRC of India.

7. When the suspect’s speech began to slur ask him or her to count the number backward from 100. When
number begins to skip and intervals between the two speeches become long, questions may be asked.

8. After the procedure ends the suspect should remain on bed rest for about 5 hours.13

Effect of truth drugs-

1. After administration of truth drug suspect’s body becomes relaxed.

2 The drug blocks the impulses that usually pass through certain nerves and most subjects fall asleep which
emerges later as semi-wakefulness.

3 Under the influence of truth drugs the suspect will necessarily share any information that is asked of them.14

Stages of descending into anasthesia-when the drug (sodium pentothal) is administered intravenously, the
subject ordinarily descend into anaesthesia in four stages, namely:

a) Awake stage
b) Hypnotic stage
c) Sedative stage
d) Anaesthetic stage

A relatively lighter dose of sodium pentothal is injected to induce the `hypnotic stage' and the questioning is
conducted during the same. The hypnotic stage is maintained for the required period by controlling the rate of
administration of the drug.15

Limitations of the `narcoanalysis' technique-

1. It does not have an absolute success rate and there is always the possibility that the subject will not reveal any
relevant information. Some studies have shown that most of the drug-induced revelations are not related to the
relevant facts and they are more likely to be in the nature of inconsequential information about the subjects'
personal lives.

2. While some persons are able to retain their ability to deceive even in the hypnotic state, others can become
extremely suggestible to questioning. Subjects could also concoct fanciful stories in the course of the `hypnotic
stage'.

3. Since the responses of different individuals are bound to vary, there is no uniform criterion for evaluating the
efficacy of the `narcoanalysis' technique.

4. If the subject has been a drug addict or alcoholic his or her tolerance level will be high and he or she may
false state of semi-consciousness and can tell lies.16

13 www.legalserviceindia.com accessed on 28/10/18 at 11:00 am

14 selvi v. state of karnataka, www.indiankanoon.com accessed on 05/11/18 at 11:05 am
15 www.shodhganga.inflibment.com accessed on 30/10/18 at 7:40 pm
16 Accessed from selvi.v. state of karnataka AIR 2010 SC 1974
Page | 9
Concept of Brain Electrical Activation Profile (BEAP) test
It is a process of detecting whether an individual is familiar with certain information by way of measuring
activity in the brain that is triggered by exposure to selected stimuli. This test consists of examining and
measuring electrical wave forms emitted by the brain after it has absorbed an external event. The measurement
of the cognitive brain activity allows the examiner to ascertain whether the subject recognised stimuli to which
he/she was exposed. Test is conducted by attaching electrodes to the scalp of the subject, which measure the
emission of the said wave components. The test needs to be conducted in an insulated and air-conditioned room
in order to prevent distortions arising out of weather conditions.17 Much like the narcoanalysis technique and
polygraph examination, this test also requires effective collaboration between the investigators and the
examiner, most importantly for designing the stimuli which are called `probes'. Ascertaining the subject's
familiarity with the `probes' can help in detecting deception or to gather useful information.

Limitations of BEAP test-

1. An important objection is centred on the inherent difficulty of designing the appropriate `probes' for the test.

2. There is always a chance that a subject may have had prior exposure to the material probes. In case of such
prior exposure, even if the subject is found to be familiar with the probes, the same will be meaningless in the
overall context of the investigation. Such exposure could occur by way of reading about the crime in
newspapers or magazines, watching television, listening to the radio or by word of mouth.18

3. Another significant limitation is that even if the tests demonstrate familiarity with the material probes, there is
no conclusive guidance about the actual nature of the subject's involvement in the crime being investigated.19

Concept of Polygraph test-

It is an instrument which measures and records physiological responses such as blood pressure, pulse,
respiration and skin conductivity while the subject is asked a series of questions and answers them. The
polygraph measures physiological changes caused by autonomic nervous system during questioning. Polygraph
is a device that records simultaneously tracing of several different pulsations, as arterial and venous pulse
waves, and the apex beat of heart.20

According to Encyclopedia Britannica, “Lie Detector” is an instrument for recording physiological

phenomena (including blood pressure, pulse rate and respiration) of a human subject as he or she answers
questions asked by an operator.”21 Polygraph test is basically based on the theory that generally a person telling
a lie becomes nervous.

Some questions are asked generally even though the answers to them are already known. For instance name and
address of the subject. While answering these questions no change transpires. After this, relevant questions are
asked and if the subject tries to lie physiological changes takes place. Physiological changes may crop up in

17 selvi v. state of karnataka, www.indiankanoon.com accessed on 08/11/18 at 2:10 pm

18 www.legalserviceindia.com accessed on 05/11/18 at 4:30 pm
19 Accessed from selvi v. state of karanataka
20 Taber’s Medical Dictionary 17th edition, p.1553
21 Ranjitsingh Brahmajeetsingh vs State Of Maharashtra & Anr (2005)SCC 523
Page | 10
shape of increased or decreased blood pressure, change in pulse rate or heartbeats, sweating, dryness of mouth,
etc. These changes are afar from the reasonable and practical control of subject thus whenever subject tries to lie
polygraph machine apprehends the lie.

Techniques used under this test-

1. The relevant-irrelevant (R-I) technique

2. The control question (CQ) technique
3. Directed Lie-Control (DLC) technique

The control-question (CQ) technique is the most commonly used one. The control questions are irrelevant to the
facts being investigated but they are intended to provoke distinct physiological responses, as well as false
denials. These responses are compared with the responses triggered by the relevant questions. Theoretically, a
truthful subject will show greater physiological responses to the control questions which he/she has reluctantly
answered falsely, than to the relevant questions, which the subject can easily answer truthfully. Conversely, a
deceptive subject will show greater physiological responses while giving false answers to relevant questions in
comparison to the responses triggered by false answers to control questions.22

Scoring-

The scoring of the tests is done by assigning a numerical value, positive or negative, to each response given by
the subject. After accounting for all the numbers, the result is compared to a standard numerical value to
indicate the overall level of deception. The net conclusion may indicate truth, deception or uncertainty.

Triple stage test-

1. The pre-test interview

2. Proper examination

3. The post-test-interview

The subject is acquainted with the test procedure and the examiner gathers the information which is needed to
finalize the questions that are to be asked in the pre test interview. An important objective of this exercise is to
mitigate the possibility of a feeling of surprise on part of the subject which could be triggered by unexpected
questions. The polygraph examiner should be familiar with the details of the ongoing investigation. To meet this
end the investigators are required to share copies of documents such as the First Information Report (FIR),
Medico-Legal Reports (MLR) and Post-Mortem Reports (PMR) depending on the nature of the facts being
investigated. Pneumograph, the sphygmomanometers and electrode are attached to the body of subject in the
second stage. The subject is given a comfortable chair to sit in and the test is conducted in a vacant and calm
room with only the examiner.Questions are to be answered in ‘yes’ or ‘no’. After this test result is discussed
with the subject to know his response.23

22 Accessed from selvi v. state of karnataka on 08/11/18 at 11:52 am

23 Jcil.1syndicate.com accessed on 08/11/18 at 11:50 am
Page | 11
Polygram-The result of the test is obtained on a chart known as polygram. Changes in respiration and increase
of blood pressure, pulse rate etc.are noted carefully.

Limitations of polygraph test-

1. In asking the question no science is involved and it wholly depends upon the expertise of the examiner.

2. The test does not tell as to whether the subject is lying or not. Results only show about the physiological
changes

3. Many innocent people get nervous due to fear of police interrogation with all the insruments and machines
and secluded environment.

Concept of Brain Mapping-

In this test no questions are asked from the accused. is shown objects relating to crime scene or is made to hear
sounds pertaining to crime site. The sensors from his head pick the event related potentials in the form of Brain
Mapping only if the person has been at the site of crime. In this test sensors are attached to the head of the
subject and the subject is seated before a computerized monitor. The sensors catch the electrical activity in the
brain. The system does not require the subject speak at all and he in way continues to exercise his right to keep
silent. The suspect wears a special hair band with electronic censor that measure the EEG from several locations
on the scalp. The brain is centrally involved in every human action and records everything that human beings
do, including criminal acts.24

Systematic operation of instruments-

A special head band equipped with electronic sensors is attached to the scalp and the test is presented with a
series of relevant and irrelevant words, pictures, signs, bounds etc. and responses of the two different types of
stimuli is measurable to know whether the relevant material is known to the brain or not. If the brain is
confronted with the stimuli, which is already in its store it will emit p-300 at the rate of 300 mili seconds.

Limitations of this technique-

1. This test only ensures that the subject is present at the place of occurrence. However, it does not ensure that
the person concerned has committed that crime. He may be present at that place for any other purpose.

2. A person may be aware of the crime due to details published in media and the brain may store it. In that case
also there chance is that the innocent can also be found guilty.

3. This technique is only limited in use. It cannot be used to any person who had lost memory, old aged,
alcoholics, mentally retarded people etc.25

Concept of DNA profiling

24 http://www.indianjournals.com
25 Accessed from selvi v. state of karnataka on 28/11/18 at 4:30 pm
Page | 12
DNA is deoxyribonucleic acid, which is a double stranded long molecule and appears like a twisted rope ladder
or double helix. DNA is essentially made up of amino acids and it is matched with the so-called bases which
provide the key to determining the genetic blueprint. Each and every cell in the human body has a sample of the
DNA. Each human nucleus contains almost 5 pictograms of DNA and an average human being contains about
250 grams of DNA. DNA can be extracted from a wide range of sources, including samples of hair, cigarette
butts, blood, razor clippings or saliva. Thus it is relatively easy to obtain samples, which can then be tested in a
laboratory to determine any genetic relationships that may be present. DNA is made up of one half of our
biological mother’s DNA and one half of our biological father’s DNA. 50% of our DNA is passed down to our
biological children. It is this that ensures DNA is unique, and allows for accurate testing of parentage and direct
descendants through a DNA paternity test. no two individuals have the same DNA blueprint.26

Types of DNA testing procedures

1. Restriction Fragment Length Polymorphism, (RFLP)

2. Polymerase Chain Reaction (PCR)

Generally RFLP testing process requires larger amounts of DNA and for proper results the DNA must be
uncontaminated. Small amounts of DNA sample is not suited for RFLP testing whereas PCR testing require
smaller amount of DNA sample. However this test is highly sensitive test and the slightest contaminants at the
scene of crime can alter or influence the results.27

Procedure to conduct-Using highly sophisticated scientific equipment, first a DNA molecule from the suspect
is disassembled, and selected segments are isolated and measured. Then the suspect's DNA profile is compared
with one derived from a sample of physical evidence to see whether the two match. If a conclusive non-match
occurs, the suspect may be eliminated from consideration. If a match occurs, a statistical analysis is performed
to determine the probability that the sample of physical evidence came from another person with the same DNA
profile as the suspect's.28

Limitations of DNA profiling-

1. The results are never 100% accurate no matter how many times the test is repeated. However, the highest
probabilities are given in the results obtained through DNA testing.

2. DNA samples that are collected from the scene of the crime could have been tempered, morphed or removed
by the culprit.29

26 docs.manupatra.in accessed on 27/10/18 at 3:32 pm

27 http://jcil.lsyndicate.com accessed on 8/11/18 at 9:15 am

28 CBI v. Santosh kumar Singh (2007 CriLJ 964)
29 www.legalserviceindia.com accessed on 05/11/18 at 7:35 pm
Page | 13
 ADMISSIBILITY OF SCIENTIFIC EVIDENCE

In the different countries of the world provisions are contained that talks about scientific research and
development. Employees Polygraph Protection Act, 1988, is legislation in United States which regulates the use
of Polygraph test. It was common practice in America that employers used to subject the employees to
Polygraph test prior to employment. In England, scientific evidence is admissible if it is helpful to determine the
question of controversy.30

Admissibility of scientific evidence involves some important questions relating to basic rights that are available
to accused under various provisions of law in India. Major problem in India is that we always look at provisions
of law through the view-point of accused and we totally forget the pain, misery and trauma of a victim and
victim’s family.31

Various provisions of Indian statutes should be interpreted keeping mind the changed circumstances of India,
the advancement of crimes and criminals advancement of technology etc. Accused persons should not get
benefit for the simple reason that Indian laws are centuries old. Courts give decision based on benefit of doubt
in favour of accused.This practice of courts is creating dissatisfaction among masses. Rather than relying on
doubt in prosecution version courts must rely upon such scientific techniques which can give surity and put the
real culprit behind bars. Many laws speak about science and technology, need is just to given wider possible
interpretation.

Admissibility of Scientific Evidence under India Evidence Act, 1872

Section 27 of the Act provides that-

“Provided that when any fact is deposed to as discovered in consequences of information received from a
person accused of any offence, in the custody of a police officer, so much of such information, whether if
amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”

If some fact is discovered in consequence of the information given by the accused of an offence in custody of
the police officer, so much of the information as relates to the facts discovered by that information, may be
proved irrespective of the facts whether that information amounts to confession or not.32

Essential requirement of sec 27 are-

1. Accused is in police custody.

2. Accused person makes a statement.
3. the Statement of Accused must lead to discovery of a fact.
If all of above requirements are fulfilled then statement of accused is admissible.If during the investigation of a
crime by the police, accused person gives information and in pursuance of such an information, discovery is
made within the meaning of Section 27 of the Evidence Act, such information and the discovery made as a
result of the information is admissible in the court of law even though it may tend to incriminate the person

30 www.shodhganga.inflibnet.ac.in accessed on 27/10/18 at 7:30 pm

31 www.legalserviceindia.com accessed on 28/10/18 at 5:20 pm
32 http//:jcilsyndicate.com accessed on 30/10/18 at 2:30 pm
Page | 14
giving the information, while in police custody.if recovery of weapon of offence made in pursuance of the
disclosure statement of the accused, same can be held admissible in the court of law.33

In Narayan Debnath v. State of Assam34, accused made a disclosure statement to the police. He stated that he
has buried the dead body of the victim on the bank of a pond. Police discovered the dead body from the bank of
the pond and statement of the accused was held to be admissible.

So section 27 of Indian Evidence Act, 1872 greatly facilitate evidence adduced by scientific tools as it lays
down that any information given or obtained in the process of investigation which is confirmed by the finding
of any object or fact is admissible in the court. Once recovery is made with the help of scientific tools and
techniques, prosecution can easily establish the close link between discovery of a material object and its use in
the commission of an offence. These scientific techniques would greatly facilitate investigation authorities that
too in a scientific manner without requiring authorities to take resort to inhumane treatment.35

Section 45-it provides-“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 impressions, the opinions upon that point of persons specially skilled
in such foreign law, science or art or in questions as to identity of handwriting or finger impressions are
relevant facts.Such persons are called experts.”

Section 45 makes opinion of specially skilled persons relevant. In Bal Krishna Das v. Radha Devi,36 “an
expert was defined as a person who by his training and experience has acquired the ability to express an
opinion”.

The purpose of an expert opinion is primarily to assist the court in arriving at a final conclusion.37But expert
opinion cannot form the sole basis of conviction of accused. In general, it may be said that there are two distinct
classes of cases in which expert testimony is admissible. In one class of cases, the facts are to be stated by the
experts and the conclusion is to be drawn by the courts. In the other group of case the experts states the facts
and gives his conclusion in the form of an opinion which may be accepted or rejected by the courts.38

Originally, when this section was enacted words ‘finger impressions’ was not part of the section. However, they
were inserted in the year 1899 and this insertion is sufficient to indicate that the expression science or art therein
is of wide import. There can not be any doubt that Indian evidence Act is an on going act. Keeping in mind the
time when the said act was enacted, it should be updated timely so that it embraces all the developments in its
sphere.

In civil cases, accused can be compelled to undergo a scientific test as for instance DNA, and if such person
refuses to undergo, adverse inference is drawn against him39 but in criminal cases accused can not be compelled.
There should not be any distinction in investigation techniques in civil and criminal cases. In civil cases where
interest of an individual is involved scientific tools are used whereas in criminal cases where interest of society,
faith of public in justice delivery system is involved, scientific methods are ignored. This is shaking the core of
criminal justice delivery system.

33 Jagroop Singh v. state of Punjab AIR 2012 SC 2600

34 2010 CrLJ 275.
35 Shodhganga,inflibnet.ac.in accessed on 30/10/18 at 1:22 pm
36 AIR 1989 All 133
37 Dayal Singh v. State of Uttaranchal, 2012(3) RCR (Criminal) 949.
38 Mahalakshmi v. State of T. N, 2012(6) RCR (Criminal) 100.
39 Harjinder Kaur v. State of Punjab, 2013(2) RCR (criminal) 146.
Page | 15
In Gajraj v. State (NCT) of Delhi,40 it was held that accused can be convicted on the basis of conclusive
scientific evidence. This scientific evidence may be of any kind, be that mobiles phones, internet, DNA samples,
etc. In everything technology is involved, so these scientific techniques should be incorporated in criminal
justice system too.

Permission of court is required if investigation authorities want to subject accused to these tests and if accused
consents then authorities can conduct these test.41 This appears to be arbitrary. If accused has committed a crime
obviously, he will not consent. If given an option, accused will never consent for giving DNA, hair, nail
samples, finger impressions etc. and if investigation authorities can extract all these without the consent of
accused, consent should not be given so much of importance. These tests are always conducted by experts who
are especially skilled in this field so they should treated normally under section 45 as other expert evidence.

Whether the administration of these scientific techniques violates the `right against self- incrimination'
enumerated in Article 20(3) of the Constitution?

Clause (3) of Article 20 of Indian Constitution provides “No person accused of any offence shall be compelled
to be a witness against himself”.

`The right against self-incrimination' is now viewed as an essential safeguard in criminal procedure. Its
underlying rationale broadly corresponds with two objectives - firstly, that of ensuring reliability of the
statements made by an accused, and secondly, ensuring that such statements is made voluntarily. Investigators
could seek reliance on the scientific tests to extract information from a person who are suspected or accused of
having committed a crime. This also includes witnesses to aid investigation.42 Supreme Court had widened the
word ‘witness’ to comprise both oral and documentary evidence which is likely to support a prosecution against
him.43 This could serve several objectives, namely those of gathering clues which could lead to the discovery of
relevant evidence, to assess the credibility of previous testimony or even to ascertain the mental state of an
individual.
In the case of M.P. Sharma v. Satish Chandra44, it was held that “Article 20(3) is not applicable in cases
where any sort of recovery is made, be that an object or evidence, from the possession of a person.”

In Dinesh Dalmia v. State of Maharashtra,45 the Madras High Court ruled that “Narco-analysis testimony was
not by compulsion because the accused may be taken to the laboratory for such tests against his will, but the
revelation during such tests is quite voluntary”.

In the case of Nandini Sathpathy v. P.L. Dani,46 it was held that no one could forcibly extract statements from
the accused that have the right to keep silent during the course of interrogation or investigation.

The idea behind the protection against self-incrimination is to encourage a free atmosphere in which the accused
can be persuaded to come forward to furnish evidence in courts and be of substantial help in elucidating truth in
a case, with reference to material within their knowledge and in their possession. Anything caused by any kind
of threat or inducement by a person directed towards the accused or likely to be accused of any offence, which
causes him to act involuntarily and further the case against himself in any prosecution against him or which

40 2012(1) R.A.J. 28
41 Rohit shekhar v Narayan.Dutt Tiwari & anr 2011(4) RCR (Crl.) 307
42 www.shodhganga.inflibnet.ac.in accessed on 05/11/18 at 12:15 pm
43 Durga dass p 114
44 AIR 1954 SC 300
45 Cr. L.J. (2006) 2401
46 (1978) 2 SCC
Page | 16
results or is likely to result in the incrimination of that person qua any offence, is violative of the fundamental
right guaranteed under clause (3) of Article 20 of the Constitution of India.

In People’s Union for Civil Liberties v. Union of India47 Supreme Court held that a person becomes witness
only when he makes oral or written statements relating to any person who is accused of an offence. The giving
of any sort of identification as for instance impression of thumb or foot or palm or fingers or giving of specimen
of hand-writing is not at all covered under Article 20(3). Considering Brain-mapping and Polygraph test, in
these tests no statement is made, neither oral nor written. In polygraph test physiological changes are gauged
and in brain-mapping, brain impressions are measured, so, these tests are not violative of Article 20(3) .

State of U.P v. Boota Singh48, Apex Court held that if directions are issued to the accused to give his specimen
signatures and handwriting that does not amount to testimonial compulsion. Similar is the case with scientific
evidence because accused is just directed to undergo a test not to give a specific statement.

In Halappa v. State of Karnataka49 drawing of blood samples, pubic hair etc. in the offence of rape, where
prosecution has to establish the guilt of accused beyond reasonable doubt is not held to be violative of Article
20(3).

Taking of voice sample of the accused is also not violative of article 20(3). In case of Harjinder Kaur v. State
of Punjab50, it was held that “subjecting an accused to DNA test does not violate Article 20(3).”When courts
can compel an accused for DNA tests, to give specimen signatures, impressions, they should also be able to
subject accused to Narco-analysis, polygraph and other scientific techniques as these techniques would help in
efficient investigation.

Some other provisions dealing with Scientific Techniques-

Under Section 53 of criminal procedure code, medical examination of accused can be done at the request of
police officer and this would be part and parcel of investigation process only. The term examination of a person
in terms of Section 53 Code of Criminal Procedure takes within its ambit the examination of a person by way of
narco-analysis, polygraph or brain mapping test as these are modern and scientific techniques. Section 161(2)
states that every person is bound to answer all the questions put to him by a police officer, other than the
questions having tendency to expose that person to a criminal charge, penalty or forfeiture.

Analysis of Selvi vs. State of Karnataka

In Selvi v. State of Karnataka51, a three court bench of honourable Supreme Court examined in detail
involuntary administration of Narcoanalysis, Polygraph and Brain- Mapping and unfortunately held that
involuntary administration i.e. without the consent of the subject who is to undergo these tests, the
administration of Narcoanalysis, Polygraph and Brain mapping is unlawful, unconstitutional and therefore,
inadmissible in the court of Law.

In the year 2004 Smt. Selvi and others filed the first batch of criminal appeal followed by subsequent appeals in
the year 2005, 2006 and 2007 and 2010 were taken up together by the honourable bench of Supreme Court via
special leave petition on 5th May 2010. According to the complainant, on April 10, 2004, when she was

47 AIR 2004 SC 456

48 AIR, 1978 SC 1770
49 2011(7) RCR (Criminal) 29
50 2013(2) RCR (Criminal) 146
51 AIR 2010 SC 1974
Page | 17
returning along with her husband after having eatables in a bakery situated in front of L.L.T. College, around
8p.m. four persons kidnapped her husband in a maruti van. The very next day dead body of her husband was
found. Kavita named her parents and one family friend as suspects. There was no evidence available that could
help to solve the case. However, accused persons were subjected to polygraph and brain mapping. The accused
were not cooperative during the polygraph test and they tried to defeat the test. The police authorities sought
permission for conducting narco –analysis from the magistrate against the order of which accused persons
appealed before the Supreme Court.
In the special leave petition, hon’ble Supreme Court has analysed
Narcoanalysis, Brain-mapping and Polygraph in detail. Their origin, uses, limitations are studied. The court
explained these techniques in relation to self incrimination under article 20(3) of the constitution. That has been
provided in proceding parts of this project.Supreme Court provided that guidelines provided by the national
human rights commission should be strictly adhered to. These guidelines are:

(i)No Lie Detector Tests should be administered except on the basis of consent of the accused. An option should
be given to the accused whether he wishes to avail such test.
(ii) If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer and the physical,
emotional and legal implication of such a test should be explained to him by the police and his lawyer.
(iii) The consent should be recorded before a Judicial Magistrate.
(iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a
lawyer.
(v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall
not be a `confessional' statement to the Magistrate but will have the status of a statement made to the police.
(vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the
nature of the interrogation.
(vii) The actual recording of the Lie Detector Test shall be done by an independent agency (such as a hospital)
and conducted in the presence of a lawyer.
(viii) A full medical and factual narration of the manner of the information received must be taken on record.52

In this judgement the honorable apex court has given a very detailed study of the scientifc techniques and their
use without the consent of the sbjects. But the court had not even touched upon the premise of voluntary
administration of this scientific techniques.The Supreme Court left open the possibility for abuse of such tests
when it provided for a “voluntary administered test”

Other cases related to the use of scientific evidences

Samjhautha express blast case53-

In the narco-analysis interrogation of former SIMI chief and terrorist Safdar Nagori in 2008, he admitted on
tape that Samjhauta Express blasts; an explosion that killed 68 people on February 18, 2007, were carried out by
terrorists trained in Pakistan and named Abdul Razzak responsible.

Gauri lankesh’s murder case54-

52 NHRC guidelines taken from selvi v. state of karnataka, www.indiankanoon.com accessed on 28/10/18 at 2:24 pm
53 Accessed from www.timesofindia.com on 28/10/18 at 5:15 pm
54 Accessed from www.NDTV.ac.in on 28/10/18 at 5:30 pm
Page | 18
 In the murder probe of noted journalist-activist Gauri Lankesh, the first accused, KT Naveen Kumar, told the
sessions court that he is ready for a narco test. Naveen Kumar (37), who has been in police custody since
February, was asked by the Special Investigation Team probing the case to undergo a narco test, to which he had
agreed.it will be conducted soon.

Pappuram vs State55 case-

Petitioner requested for nacro analysis and brain mapping tests to be conducted on him.But his request was
rejected by rajastan high court as no such plea was raised during investigation or trial court so it was considered
as an afterthought only.

Court said that-“We hold that no individual should be forcibly subjected to any of the techniques in question,
whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an
unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the
impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Even when
the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as
evidence because the subject does not exercise conscious control over the responses during the administration
of the test."

Kathua Rape Case56-

Seven of the accused, produced in the court of District and Sessions Judge said they were ready to undergo
narco-analysis to prove their innocence. The seven men accused in the rape and murder of an eight-year-old
girl in Kathua pleaded not guilty of the crime and asked the district and sessions judge for a narco test. Six of
them, including a former revenue official, two police officers and a minor, are accused of keeping the little girl
sedated and without food in a small temple for days, raping her over and over and finally killing her. The trial is
still going on in the case.

Petlawad Blast case57

Recently in ‘Petlawad’, a small town in Madhya Pradesh, on 12th September, 2015, an explosion caused due to
illegally stored explosive detonated with LPG gas cylinders, which killed around 105 people. The prime
accused, Mr. Rajendra Kasawa was absconding since the blast and his family members, relatives and helpers
tried to hide or to abscond but were arrested later by the Special Investigation Team of Madhya Pradesh from
various places like Ratlam, Mumbai, and Shirdi. The SIT police believed that the accused was alive and so they
asked for the permission of the High Court for performing Narco test of Kasawa’s. Relatives, Wife and
Children. The High Court allowed the SIT to perform the Narco Test so that it can help in arresting the Prime
Accused. The SIT got the permission from High Court of Madhya Pradesh on 19th October,2015, for Narco
Test and Brain Mapping test on five people which included four family members of Kasawa but due to lack of
budget for conducting tests, the SIT did not performed the tests. DNA samples from four bodies were sent and
one of the samples matched with the DNA of accused.

55 (2017) criminal petition rajastan high court

56 Accessed from
https://www.indiatoday.in on 28/10/18 at 6:10 pm

57 Retrieved from http://www.outlookindia.com/news on 28/10/18 at 6:23 pm

Page | 19
 Conclusion
The big question that comes into mind is how investigation should be done? The issues arises in such a situation
is that torture should not be done to the accused in custody, however investigation should be done in efficient
manner so that guilty could be punished.

By the case of Nandani Satpathy v. P.L. Dani58 the Supreme Court of India has widened the scope of the
Article 20(3) to include "Right to Silence". The court further held that “the phrase ‘compelled testimony’ must
be read as evidence procured not merely by physical threats or violence but by psychic mental torture,
atmospheric pressure, environmental coercion, tiring interrogatives, proximity, overbearing and intimidatory
methods and like.”
In such a scenario is it possible to do efficient investigation. It seems as if all human rights are possessed only
by the accused. When crimes are done with use of technology and because of which many times criminals are
left to be caught due to use of such advanced methods where they even commit crimes sitting at homes, where
they commit murders by unique methods which leave no trace, where they commit robberies with smart
computer techniques etc. for the purposes of investigation, it could be easily detected that who is the culprit by
traces left on dead bodies like hairs, nails etc. locations of phones and criminals can be detected with scientific
techniques. The truth of all suspects could be gathered by scientific techniques.their samples could be matched
with traces left with the victim.In many cases these techniques are applied by investigators but with the consent
of the subject. When they himself agree to such scientific techniques only than they are performed on accused
persons.Although scientific techniques are able to ascertain facts with accuracy but these are very costly and are
not easily accessible. The results of these investigations are not fully reliable. In many investigations results
have been proved to be wrong and unsatisfactory. The judiciary had made its approach clear to restrict such
methods to voluntary decisions only.

The upcoming need in the use of these scientific techniques is a detailed piece of legislature with all the
safeguards attached to use these techniques. Till that time period these techniques can only be used with regard
to judicial verdict of voluntaryness.The guidelines to use these techniques must be strictly observed. But there is
urgent need for legislature to bring about certainity in this matter about use of these techniques and also
judiciary from time to time must give guidelines and recommendations to interpret the various provisions of law
including scientific techniques.

58 (1978) 2 SCC
Page | 20
 BIBLIOGRAPHY

BARE ACTS-

 The Code of Criminal Procedure Act, 1973

 The Constitution of India Act
 The Indian Evidence Act, 1872

WEBSITES-

 http://timesofindia.indiatimes.com
 www.indianexpress.com
 www.indianjournals.com
 www.legalserviceindia.com
 www.timesofindia.indiatimes.com
 www.indiankanoon.com
 http://jcil.lsyndicate.com
 www.shodhganga.inflibnet.com
 docs.manupatra.in
 http://www.outlookindia.com/news

ARTICLES-

 Anjaneya Das and Aarun Kumar, “Narcoanalysis and the Shifting Paradigms of Article 20(3): A
Comment of Smt. Selvi v. State of Karnataka”, Criminal Law Journal, March 2011
 Jitendra Mishra, “Custodial Atrocities, Human Rights and the Judiciary”, Journal of Indian Law
Institute, vol. 47, 2005, p 508
 Ishita Chatterjee, “Techno-legal aspects of Scientific Evidence”

REPORTS-

 14th Law Commission Report

Page | 21