Forensic Evidence in Courts

EVIDENTIARY VALUE OF SCIENTIFIC AND FORENSIC
TECHNIQUES OF INVESTIGATION: A CONSTITUTIONAL ANALYSIS
A
DISSERTATION
Submitted to Amity University, Lucknow in partial fulfillment of the requirement
for the Degree of Master of Law (LL.M)
(2020-21)
Supervised by: Submitted by:
Dr.Tapan Kumar Chandola Sanjeev Verma

Assistant Professor (Law) Enrol No. A8101820230
Amity University, Lucknow LL.M.
Amity University Lucknow

2021
Dr. Tapan kumar Chandola Date:
Assistant Professor of Law Place: Lucknow
Amity University
Lucknow
SUPERVISOR’S CERTIFICATE
This is to certify that the Dissertation Entitled “Evidentiary Value of Scientific and
Forensic Techniques of Investigation: A Constitutional Analysis” submitted to Amity
University, Lucknow , in partial fulfillment of the requirements for LL.M. One Year
Course, Second semester, is an original and bona-fide research work carried out by
SANJEEV VERMA under my supervision and guidance. The work is fit for evaluation.
Dr.Tapan Kumar Chandola
i
Date:
Place: Lucknow
CANDIDATE’S CERTIFICATE
I, the undersigned, hereby solemnly declare that the Dissertation titled: “Evidentiary
Value of Scientific and Forensic Techniques of Investigation: A Constitutional
Analysis” submitted to Amity University, Lucknow, in partial fulfillment of the
requirements of the LL.M., One Year Course, Second semester, is an original and bona-
fide research work of mine. I hope that this work will be helpful in enhancing the
knowledge of readers and framing of the policies in the future course. All the information
declared hereby is true to best of my knowledge.
Sanjeev Verma
LL.M
Enrol No:A8101820230
ACKNOWLEDGEMENT
No work is complete with solo endeavor, neither is mine. This research would be
incomplete if I do not acknowledge and thank all concerns who have been instrumental in
the successful completion of this project.
I would like to convey my sincere thanks and gratitude to my parents for giving me a
chance to study in this prestigious university where I can pursue and enhance my
knowledge. It is because of their support that I could do this research which is of much of
a debate in India.
I would also like to specially acknowledge the support, guidance and help rendered by
my supervisor Dr.Tapan Kumar Chandola, Assistant Professor, Amity University,
Lucknow. It is through her support that I could understand the subject and thereby
analyze the researched area. The guidance given by her and the suggestion proposed by
her are the backbone of this research for which I will be indebted to her forever.
Further, I would like to acknowledge the help provided by the library staff of Amity
University, Lucknow, Uttar Pradesh in collection and finding the correct and reliable
sources which I have incorporated in this research which ultimately leads to the
completion of this research.
I would like to thank all my friends who have helped me during the course of the
research and their support has also been instrumental in the completion of this research.
Lastly, I would like to thank God Almighty for blessing me with good health without
which I would not be able to complete this research.
SanjeevVerma
LL.M.
Enrol No:A8101820230
Table of Contents
SUPERVISOR’S CERTIFICATE.................................................................................................................i
CANDIDATE’S CERTIFICATE.................................................................................................................ii
ACKNOWLEDGEMENT............................................................................................................................iii
TABLE OF CASES......................................................................................................................................vii
CHAPTER -1 INTRODUCTION.................................................................................................................1
Introductory.....................................................................................................................................1
Objective of the study......................................................................................................................3
Significance of the study...................................................................................................................3
Research Questions..........................................................................................................................4
Research Methodology.....................................................................................................................4
Scope and Limitation of the Study....................................................................................................4
Hypothesis........................................................................................................................................5
CHAPTER -2 MEANING, CONCEPT AND HISTORY OF FORENSIC SCIENCE............................6
Meaning and Concept of Forensic Science.......................................................................................6
Historical Background.......................................................................................................................7
Role of Forensic Science in Criminal Investigation............................................................................9
Advantages and Disadvantages of Forensic Evidence over Conventional Evidence.......................10
Advantages..................................................................................................................10
Disadvantages..............................................................................................................12
CHAPTER-3 FORENSIC SCIENCE: CONSTITUTIONAL AND LEGISLATIVE MEASURES....14
The Constitution of India................................................................................................................14
Article 20(3): Protection against Self- Incrimination.......................................................................14
Article 20(3) and Psychoanalytic Tests...........................................................................................18
Article 21: Right to Life and Personal Liberty..................................................................................21
The Indian Evidence Act, 1872........................................................................................................25
Section 45: Opinion of Experts.......................................................................................................25
Section 47: Opinion as to Handwriting, when relevant.................................................30
Admissibility of Evidence under S. 47, 65 and 67 of Indian Evidence Act, 1872.............................30
Section 47A: Opinion as to digital signature when relevant.................................................31
Section 65B: Admissibility of Electronic records..........................................................32
The Code of Criminal Procedure, 1973...............................................................................32
Role of National Human Rights Commission.......................................................................37
CHAPTER 4 FORENSIC TECHNIQUES AND THEIR ADMISSIBILITY.........................................40
Narco Analysis................................................................................................................................40
Origin 41
Process 42
Relevancy and Admissibility in the Indian courts............................................................................44
Brain Mapping Test........................................................................................................................45
Origin 46
Process 47
Relevancy and admissibility in the Indian courts............................................................................48
Polygraph test................................................................................................................................49
Origin 49
Process 49
The questioning technique..........................................................................................50
Relevancy and admissibility in Indian courts..................................................................................51
National Human Rights Commission guidelines in relation to administration of lie
detector test...........................................................................................................................51
DNA Test.........................................................................................................................................52
Origin 53
Process 54
DNA Test in Paternity issues...........................................................................................................56
Human DNA Profiling Bill................................................................................................................58
Handwriting....................................................................................................................................60
Principles of handwriting.............................................................................................60
Types of handwriting...................................................................................................61
Process 62
Relevancy and Admissibility in the Indian Courts...........................................................................64
Fingerprints....................................................................................................................................65
Kinds of fingerprints.....................................................................................................66
Different characteristics of fingerprints..........................................................................................66
Origin 67
Process 67
Database for fingerprints................................................................................................................67
Footprints.......................................................................................................................................68
Relevancy and Admissibility in the Indian Courts...........................................................................70
Ballistics..........................................................................................................................................72
Relevancy and admissibility in the Indian courts............................................................................72
Skull Super Imposition....................................................................................................................74
Voice Analysis...................................................................................................................76
Process.......................................................................................................................77
Relevancy and Admissibility in the Indian courts.......................................................77
Admissibility of tape-recorded conversations............................................................78
Competency of the police to record the voice without the Identification of Person. 79
CHAPTER -5 CONCLUSION AND SUGGESTIONS.............................................................................81
Conclusions Drawn.........................................................................................................................81
Problems with forensic techniques................................................................................................81
Problems relating to Forensic Science and the Investigation Agencies........................82
Legal problems relating to Forensic Science and Evidence..........................................83
Suggestions.....................................................................................................................................85
Bibliography....................................................................................................................................................x
Articles........................................................................................................................................x
Books..........................................................................................................................................x
Statutes......................................................................................................................................xi
Web Resources..........................................................................................................................xii
Table of Cases
A.K. Gopalan v. State of Madras........................................................................................33

Abhay Singh v. State of U.P...............................................................................................39
Alamgir v State (NCT Delhi)...............................................................................................74
Amitbhai Anil Chandra Shah v. Centrla Bureau of Investigation.......................................36
Anil A. Lokhande v. State of Maharasthra.........................................................................47
Anil Kumar v Turaka Kondala Rao.....................................................................................64
Arun Gulab Gavali v State of Maharashtra & Ors.............................................................55
Bal Krishna Das v. Radha Devi...........................................................................................38
Bala Prasad v state of Bihar..............................................................................................87
Baldev Singh v State of Punjab.........................................................................................44
Balkrishan v State of Maharashtra....................................................................................26
Baswarajaswami, In Re......................................................................................................75
Bharati Tamag v Union of India........................................................................................90
Bhulakiram Koiri v State....................................................................................................80
Brij Mohan v State of Uttar Pradesh..................................................................................83
CBI V Abdul Karim Telgi & Ors...........................................................................................55
Chanan Singh v Emperor...................................................................................................82
Collector, Jabalpur v. Ahmad.............................................................................................37
D.K. Basu v. State of West Bengal.....................................................................................35
Dayal Singh v. State of Uttaranchal...................................................................................38
Dharam Deo Yadav v State of Uttar Pradesh....................................................................66
Dinesh Dalmia v State 2006...............................................................................................59
Dipanwita Roy v Ronobroto Roy........................................................................................68
District Registrar and Collector v. Canara Bank.................................................................34
Doe v Suckermore..............................................................................................................41
Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Others...................33
Gade Lakshmi Mangaraju v State of Andhra Pradesh......................................................78
Gajraj v. State (NCT) of Delhi.............................................................................................38
Ganesh Gogei v State........................................................................................................79
Ganpatrao Khansera v Vasantra Ganpatro.......................................................................41
Gurbaksh Singh Bains v. State of Punjab...........................................................................36
Haria v Manakchand..........................................................................................................42
Haricharan v. State of M.P................................................................................................35
Harjinder Kaur v. State of Punjab......................................................................................39
Isar Nonia v Karinam Pandey............................................................................................75
Ishwari Prasad Misra vs Mohammed Isa..........................................................................75
Kalawati v H.P. State..........................................................................................................31
Kamti Devi v Poshi Ram.....................................................................................................67
M.P. Sharma v Satish Chandra..........................................................................................26
Maghar Singh @ Magha v. State of Punjab......................................................................46
Maha Singh v State............................................................................................................44
Mahalakshmi v. State of Tamilnadu..................................................................................38
Maneka Gandhi v. Union of India......................................................................................33
Marari Lal v. State of Madhya Pradesh.............................................................................74
Metro Asylum D v Hill........................................................................................................40
Miss Hardevi Malkani v State............................................................................................42
Mohammed Zahid v state of Tamilnadu...........................................................................86
Mohan Lal v. State of Punjab.............................................................................................36
Mohanlal v Ajit Singh.........................................................................................................81
Mohinder Singh Pandher & Ors v CBI................................................................................55
Mst. Lahani v Bala.............................................................................................................42
Munn v. Illinois...................................................................................................................33
Mylaswami Goundan, In Re...............................................................................................81
Nilabeti Behara v State of Orissa.......................................................................................87
Nandani Satpathy v. P.L. Dani...........................................................................................26
Nandlal Wasudeo Budwaik v Lata Nandlal Badwaik.........................................................68
Nilesh Dinkar Praskar v State.............................................................................................90
Parmanand Katara v Union of India..................................................................................85
People’s Union for Civil Liberties v. Union of India............................................................27
Ponnuswami v Kalyanasundra...........................................................................................42
Pratap Mishra v State of Orissa...................................................................................86, 87
Pritam Singh v State of Punjab..........................................................................................79
Pyara Singh v Jagtar Singh.................................................................................................75
R V M’Naughten.................................................................................................................40
R. Rajagopal v. State of Tamil Nadu..................................................................................34
R.M. Malkani v State of Maharashtra...............................................................................89
Rakesh Bisht v CBI..............................................................................................................89
Ram Jethmalani v. Union of India......................................................................................35
Ram Singh v Col. Ram Singh..............................................................................................89
Ramachandra Reddy v State of Maharashtra...................................................................58
Ramanlal Rathi v State......................................................................................................75
Ranjan Dwivedi v. C.B.I......................................................................................................36
Ravjappa v Nilkanta Rao....................................................................................................75
Oomayan, In Re..................................................................................................................79
Paramban v Mammudu.....................................................................................................80
Ritesh Sinha v State of Uttar Pradesh..........................................................................29, 89
Rohit Shekhar v Narayan Dutt Tiwari................................................................................68
Romesh Chandra Aggarwal v Regency Hospital................................................................40
S. Rajendran v. State..........................................................................................................38
SalimBhai Abdul Gaffar Shaikh v State of Gujarat............................................................55
Selvi v State of Karnataka..................................................................................................29
Shamsher Singh v State of Haryana..................................................................................87
Shangara Rain v Emperor..................................................................................................81
Sharda v. Dharmpal...........................................................................................................35
Shashi Kumar Banerjee v Subodh Kumar Banerjee...........................................................75
Siddharam Satlingappa Mhetre v. State of Maharasthra.................................................33
State of Andhra Pradesh v Smt Inapuri Padma & ors.......................................................32
State of Bombay v Kathi Kalu Oghad................................................................................31
State of Gujarat v. Shamlal...............................................................................................28
State of Madhya Pradesh v Mishrilal................................................................................83
State of Maharashtra v. N.E & P. Co.................................................................................26
State of Rajasthan v Taran Singh......................................................................................84
State of U.P v. Boota Singh................................................................................................28
State of U.P. v Sant Prakash..............................................................................................44
State v Kam Gape..............................................................................................................80
State v Kanhu Chara Barik.................................................................................................82
State v S.J. Chaudhary.......................................................................................................40
State, NCT of Delhi v Navjot Sandhu.................................................................................90
Subash Ramkumar Bind v State of Maharashtra..............................................................84
Usufalli v State of Maharashtra........................................................................................29
V. Shekhar v. State of Karnataka,......................................................................................35
CHAPTER -1
INTRODUCTION
Introductory
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. Police utilize
forensic and scientific tools & techniques to detect a crime, reconstruct the crime scene,
identify the alleged offender and establish vital links; the courts, on the other, take
account of these physical Evidences, otherwise infallible, and determine with enhanced
accuracy the innocence or guilt of the offender. Somewhere, the efficiency and
effectiveness of the criminal justice functioning has come to be intertwined with the
extent of use of technological tools in crime investigation1.
With the advancement in science and technology, or we can say ‘scientific era’, the
scientists have tried and experimented many methods to aid in investigation of crime. The
aim of such search is to find out short-cut direct methods, which may produce quick
results on one hand and on the other hand which may disguise inefficiency of
investigating agency. The importance of forensic science to criminal law lays its potential
to supply vital information about how a crime was committed and who committed it2.
The science that has put man on the moon and mars is also trying to help the mankind in
stemming the increasing tide of crime rate. In order to achieve the primary objective of
forensic science in criminal investigations which is identifications of the criminal with
certainty, so that it can help the courts in administering justice has developed various
techniques in the name of lie detector/Polygraph, Brain Mapping, narco-analysis and
many more3.
1
Chakraborty, Manisha “Applicability of Forensic Science in Criminal Justice System in India” Available
at vips.edu/wp-content/uploads/2017/07/Forensic-Science.pdf (Last Accessed on 14.04.2018)
2
Setia, Himanshu, “Evidentiary Value of Forensic Reports in Indian Courts” Research Journal of Forensic
Sciences , Vol. 4(6), 1-7, June (2016) Available online at: www.isca.in, www.isca.me (Last Accessed on
14.04.2018)
3
Jand, Sarita “Forensic Science and Law” New Era Publications, Faridabad, First Edition, 2017, p-9
1
Forensic science is a discipline that functions within the parameters of the legal system.
Its purpose is to provide guidance to those conducting criminal investigation and to
supply to courts accurate information upon which they can rely in resolving criminal and
civil disputes.
Forensic Science and forensic scientists generate data, reports and opinions that all can be
used as Evidence, but only if the court allows such Evidence to be admitted in the first
place. How this decision is reached is a critical aspect of forensic science. The Evidence
part of the concept of forensic science refers to a distinct set of procedures that are unique
to the litigation process.4.
Forensic science involves the application of scientific theory accompanied by laboratory
techniques involving a wide variety of traditional academic natural sciences, such as
anthropology, DNA analysis etc. Increasingly, circumstantial proof presented in criminal
trials comes in the form of forensic Evidence5.
The researcher has attempted to discuss in detail about the various modern as well as
conventional scientific techniques, how they have evolved over the time and also the
manner in which they are being used in the investigation of the crime. The dissertation
work majorly focused on the relevancy and admissibility of these techniques as they have
become instrumental in detecting the crime and as well as in the process of investigation
of the crime.
The researcher has briefly discussed about the history of forensic science and how it have
developed over the period of time. The researcher has also dealt with the constitutionality
of the scientific and forensic tools of investigation and also with the other legislations
pertinent thereto. The advantages of the forensic science over the conventional Evidence
along with the role of forensic science in criminal investigation have also been discussed
in the dissertation.
The dissertation also discusses the legislative measures or statutory provisions pertaining
to Forensic Evidence under the Indian Law such as Constitution of India, Indian
Evidence Act and Code of Criminal Procedure. The process and working of various
scientific
4
James, Stuart; Bell, Suzanne “Forensic Science: An introduction to Scientific and investigative
techniques” CRC Press, Taylor and Francis Group, Fourth Edition, 2014, p-25
5
Ibid
techniques and an analysis of evidentiary value i.e. relevancy and admissibility of such
techniques has also been discussed in the dissertation work. And in the end the researcher
would write up the ‘Conclusion’ which would recapitulate the nodal points of the
discussion followed by humble suggestions.
Objective of the study

The present literature-based Dissertation is being worked out to:
(1) Describe and catalogue the kinds of forensic Evidences collected at the crime scene.
Probe the reasons as to why the role of forensic science in Indian criminal justice
administration is still at rudimentary stage even though since last few decades, a
tremendous technological advancement in scientific era has been made.
(2) Track the use of forensic Evidence collected from the crime scene in the criminal
justice system.
(3) Identify which form of forensic Evidence contributes most frequently in successful
case outcomes.
Significance of the study

The study is conducted to analyze the admissibility and relevancy of forensic Evidence in
the Indian Courts. With the rise in use of science and technology, the ways of committing
the crimes have also changed, thus it became more important for the investigating agency
to bring in the use of science in law.
At present, the Indian Criminal Justice System has many lacunas pertaining to the
scientific techniques used to establish guilt of the accused and collecting Evidence. The
study signifies the use of forensic techniques in law, opinion of the courts on their
admissibility, problems faced and further suggestions and recommendations to the same.
Research Questions
(a) What is the constitutional validity of techniques used in forensic science?
(b) To what extent does the law allow the use of forensic techniques in crime
investigation?
(c) Are the techniques used in the Criminal Investigation relevant and admissible in the
courts of law?
(d) What is the evidentiary value of the forensic information obtained from the experts?
(e) Whether Forensic science has been really helpful in protecting the human rights in the
contemporary society?
Research Methodology
 Method
The research methodology adopted is doctrinal keeping in mind the conceptual,
theoretical and evaluative aspects of the topic.
 Sources of Data
Secondary sources of information inclusive of textbooks on Forensic Science,
Handwriting, Narco- Analysis and Brain Mapping have been referred to by the
researcher. Various Articles from the web sources, newspapers, journals and magazines
have been accessed. Also online legal databases such as All India Reporter, Supreme
Court Cases etc have been used from the RGNUL Library. In this project, study will
basically be limited to the topic selected for the project. No other related studies or
sources will be discussed in the dissertation as such.
Scope and Limitation of the Study

The study focuses on analysis of the use of forensic science in law. The scope of the
study is wide and it incorporates relevancy and admissibility of forensic science in
developed nations like USA and UK. Due to paucity of time, researcher was only able to
study and make a doctrinal research with the help of available books, journals, Articles,
case laws and other sources. The researcher was limited by time to conduct the interviews
and to observe the procedure followed by the courts in relation to forensic Evidences.
Moreover the scarcity of time limited the researcher to go into depth of each investigation
technique.
Hypothesis
The Relevancy and Admissibility of Forensic Science in India has always been a matter
of great concern. Even after so much advancement in scientific techniques and their
admissibility in developed countries like USA and UK, India still does not fully justify
admissibility and relevancy of forensic Evidence. Scientific Techniques are being used
for investigation of crime but their admissibility still lacks statutory backing in most of
the cases. Therefore the hypothesis can be forwarded with the observation that Scientific
Evidences can play a very vital role in the administration of criminal justice.
CHAPTER -2
MEANING, CONCEPT AND HISTORICAL BACKGROUND OF

FORENSIC SCIENCE
Meaning and Concept of Forensic Science

The word “Forensic” is rooted from the Latin ‘Forensis’. It means ‘relating to Court of
Law or of Public Debate or Discussion’. In other words, it concerns with legal
proceedings in the Court of Law in the shape of Evidences. The Evidence may be
achieved from the scientific or forensic examination. It is recognised as persuasive
Evidence to prove guilt or innocence of a person. The person who performs such
examination is called Forensic Expert or Forensic Scientist6.
According to ‘Oxford Companion of Law’ authored by David M. Walker, “Forensic
Science” means a branch of science concerned with the application of those bodies of
knowledge to legal purposes, particularly to eliciting and interpreting facts which may be
of significance in legal inquiries. “Forensic Science” deals with such matters as weapons
and ballistic, explosives and examination of altered documents etc.7
“Forensic Science” is also known as “Pobulic Science” or “Criminalistics” in United
States of America. In France, it is known as Criminalistique’” and in Germany, it has got
a nomenclature of “Kriminalistik”.8
Forensic Science is the application of various scientific method and principles to
investigate civil and criminal Actions which are of interest to the legal systems. All the
clues collected from the crime scene are analyzed by forensic scientists in a forensic
laboratory and are converted into Evidence worth producing in the courts of law. Physical
Evidence may include body fluids like blood and saliva, hair, impression of shoes and
6
7
Sharma, BR, Scientific Criminal Investigation, Universal Publishing Co. Pvt. Ltd., Delhi, Edition 2006,
p-12
8
types, fingerprints and footprints etc. all are valuable Evidences. Forensic science can be
applied in civil cases to provide for the validity of signatures and handwriting9.
Forensic Science uses the basic principles of all physical and natural sciences and has
evolved many domain of its own for example, Ballistics, Handwriting, Fingerprint,
Computer, Brain Mapping, DNA, Narco-analysis, and Polygraph etc. The basis sciences
are associated with forensic science in the name of Forensic Biology and Serology,
Forensic Chemistry, Forensic Physics, Toxicology, Odontology, Forensic Psychology,
Forensic DNA, Cyber Forensics which all provide a full prove scientific aid to criminal
justice system10.
In criminal investigation, use of forensic science is the need of the modern times. In
India, the investigation of rime and prosecution of the criminals who have committed the
crime are not up to the mark. Even in heinous crime, large no of criminals could not be
prosecuted and also the conviction rate is low as a result of which crimes as well as
number of criminals are increasing day by day. The frequent acquittals are also mainly
due to the obsolete techniques of investigation which leave many loopholes. Moreover
the means of transport and the high density of population have facilitated the escape of
the criminals after the commission of crime. Also the criminals are using the science as
the technical knowledge of an average man has increased tremendously in recent years.
The investigating officer needs scientific and forensic methods to combat the modern
scientific criminals11.
Forensic Science helps the criminal justice system in providing leads to the investigation,
establishing whether the scene is real or fake, locating hidden clues and also proper
samples for comparison and establishing the sequence of events. Last but not the least; it
helps the innocent by de-linking him with the clues, from victim or from the scene of the
crime.
Historical Background
Crime in some form or the other has existed since the beginning of human race. With the
advancement in science and technology, the concept of crime as well as the methods
9
Supra Note 6 at p-56
10
Supra Note 6 at p.13
11
Kaul, Satyendra; Ziadi, Mohd “Narco-analysis, Brain Mapping, Hypnosis, Lie Detector Tests in
interrogation of Ssupects” Alia Law Agency, Allahabad, 2009, p-18
adopted by criminals in commission of crimes has undergone a phenomenal change. On
one hand the intelligent criminal has been quick to exploit science for their criminal Acts
while on the other hand the investigator is no longer able to rely on age old art of
interrogation and methods to detect crime12.
Forensic Science developed in the legal system very fast in 19 th and 20th Century. Before
that, only oral testimony was available for deciding cases and for imparting the justice.
However such witnesses were not always available as some of them turn hostile,
unwilling or unobservant. There was need for impartial Evidence which could be relied
upon. Much awareness and enthusiasm has been created by Sir Arthur Conan Doyle,
whose character Sherlock Holmes has solved criminal cases with the help of science and
his colleague Watson. It encouraged and stimulated general public and investigators to
adopt scientific methods to solve crimes13.
The “Eureka” legend of Archimedes can be considered an early account of use of
Forensic Science. In this case, by examining the principles of water displacement,
Archimedes was able to prove that crown was not made of gold and it was fraudulently
claimed14.
Despite common misconceptions, forensic investigation has been practiced, in one form
or another, for thousands of years. Before the discovery and impact of DNA in the early
1980s, the advent of fingerprinting in the early 1800s and even before photographs were
used in the late 1800s to capture images of killers on a victim's eyeballs, as was the case
during the investigation of the world's first documented serial killer, Jack the Ripper,
criminal investigators were using the science of forensics to solve crimes15.
In ancient times, the manner of death was naturally assumed by where and how the
victim had been found. For example, a man found in a body of water would
naturally have
12
Raut, Santosh, “Development of Forensic Science through Ages” Available at
http://www.santoshraut.com/forensic/forensichistory.htm (Last Accessed on 16.04.2018)
13
14
Sharma, BR, Forensic Science in Criminal Investigation & Trials, Universal Law Publishing Co. Pvt
Ltd. 2014, 5th Edition, Reprint 2007, p-8
15
Article titled “A Brief History of Forensic Investigation” Available at
https://www.universalclass.com/Articles/law/history-of-forensic-investigation.htm (Last Accessed on
16.04.2018)
drowned, while a man found lying broken and bloodied along the side of a road would
have naturally fallen and possibly been dragged by a horse16.
After World War II there was a sudden spurt in crime rate due to large scale availability
of firearms. Further due to mobility and documentation, organised and white collar crime
proliferated. Western countries had to mobilize scientific aids to combat the growing
menace. These factors contributed towards establishing a chain of forensic laboratories in
U.K., USSR and Commonwealth countries17.
The application of science and technology to the detection and investigation of crime and
administration of justice is not new to India. Although our ancestors did not know
forensic science in its present form, scientific methods in one way or the other seem to
have been followed in the investigation of crime. Its detailed reference is found in
Kutilya’s ‘Arthashastra’ which was written about 2300 years ago. Indians studies various
patterns of papillary lines thousands of years ago. It is presumed that they knew about the
persistency and individuality of fingerprints, which they used as signatures18.
Originally, the criminal justice delivery system profoundly depended on the testimony of
eyewitness to the crime. The dependence on “eyewitness” did not prove to be effective,
as they were found to turn hostile, many a time due to threat to life or lure of money,
hence it lacked reliability. The crime investigators then resorted to “third degree
methods” for examination of the suspect to reveal the truth, which, due to the cultural
change and values accepted generally, were considered cruel, as many innocent people
also suffered inadvertently. In the meantime, lot of scientific research and development
took place, and it was then visualized that modern scientific techniques could provide
quick solution to the majority of problem of human being, and therefore, crime
investigation of “forensic science” got evolved19.
Role of Forensic Science in Criminal Investigation
Forensic science is that piece without which the puzzle of a criminal investigation is
incomplete. Without the application of forensic science, criminals can never be convicted
16
17
Supra Note 2
18
Tewari, RK, “History and Development of Forensic Science in India 2000” Available at
http://www.jpgmonline.com/Article.asp?issn=00223859;year=2000;volume=46;issue=4;page=303
19
Supra Note 2, pg 11
unless an eyewitness is present. While detectives and law enforcement agencies are
involved in the collection of Evidence, be it physical or digital, it is forensic science that
deals with the analysis of those Evidence in order to establish facts admissible in the
court of law. Thus in a world devoid of forensic science, murderers, thieves, drug
traffickers and rapists would be roaming scot-free20.
The duties and responsibilities of a forensic scientist in a criminal investigation is crucial
as it involves the careful examination of an Evidence while ensuring that it is not
tampered with. A diverse pool of forensic scientists and forensic tools go into the
investigation of a criminal act21.
For instance, forensic pathologists are skilled at determining the cause of a death by
performing autopsies. An autopsy helps establish the cause and manner of death through
the examination of body fluids and tissues. Forensic Scientists analyze physical Evidence
(fingerprints, blood, hair etc.) collected from the incident scene to identify suspects.
Additionally, forensic professionals use image modification tools to search for criminals
absconding from the law for a long time. This tool enables them to digitally age a
photograph to understand how the individual would look on aging22.
Advantages and Disadvantages of Forensic Evidence over
Conventional Evidence
Advantages:23
(i) Advancement in the Field of Science
With the advancement in use of science and technology in commission of crime, the use
of scientific techniques in detection of crime has become vital. Moreover, globalisation
has had a large impact on the use of science in law. With advanced globalization, a
person is not even aware of his neighbourhood thus it becomes difficult to locate the
criminal and witnesses. Therefore use of science in law becomes essentially important.
20
“Forensic Science Plays a Pivotal Role in the Legal System” Available at https://ifflab.org/the-
importance-of-forensic-science-in-criminal-investigations-and-justice/ (Last Accessed on 14.04.2018)
21
Tewari, RK “Application of Forensic Science in Criminal Justice Administration in the Developing
Countries” The Indian Police Journal 1999, p 78-83 (Last Accessed on 14.04.2018)
22
Supra Note 7
23
Retrieved from http://shodhganga.inflibnet.ac.in:8080/jspui/bitstream/10603/6648/8/08_introduction.pdf
(ii) Hostile Witnesses
Witnesses are the most important link or a criminal investigation. In conventional
investigation procedure, the whole case lies on the statement of witnesses. Due to certain
factors such as, coercion, undue influence, threat, personal interests etc. witnesses turn
from their path of telling the truth. As Thomas Paine states '...when a man who is
honestly mistaken hears the truth, he will either cease being mistaken, or cease being
honest24. Thus when witnesses turn hostile, scientific investigation comes to the rescue of
investigating agencies. Though forensic science is a science of probability, it is
considered more authentic as to the hostility of witnesses as the retracted statement made
by the witness loses its value.
(iii) No Witnesses
In some cases, there are no witnesses. This happens when the crime is committed in a
secluded place, e.g., rape of a woman in the four walls of her house, murder of a man late
night on a secluded road. In such cases, scientific investigation becomes all the more
helpful to restructure and reconstruct the occurrence of crime and locating the criminal.
(iv) Biasness
‘A person says or speaks whatt he thinks to be the most favourrable at that point of time.'
This statement is true, especially where the mind of witnesses might be influenced by his
own biasness. For example, a witness may on seeing the condition of victim may recollect
the circumstances that though true may be inclined towards victim. Thus, in such cases
forensic science gives a balanced view of the occurrences.
(v) Fading of Memory
“Memory fades but documentary Evidence remains the same.”
The criminal Justice System in India works very slowly due to various reasons whereby
the Evidence of witnesses takes longer time. Thus, with every passing day witnesses tend
24
Nordby Jon J. and Bell Suzanne, "Justice and Science" in Stuart H James, Jon J. Nordby and Suzanne
Bell, Forensic Science-An Introduction to Scientific and investigative Techniques, CRC Press, Ed. 4th, P-3.
11
to lose a part of their memory. The forensic Evidence is saved in documentation form
which retains its authenticity for long time along with safe keeping.
(vi) Perjury
Perjury is the offence of willfully making a false or untrue statement under oath. This
might happen due to personal interest of the witnesses or under some interest of the
interested party. Perjury is one such offence which has at times taken toll on innocent
persons. Thus, forensic Evidence is more trustworthy as it does not in any way falsely
implicate an innocent person.
Disadvantages:
(i) Probability
The forensic science works on the principle of probability which states that the results of
forensic science give a probable value of accused’s guilt. Thus, it does not exactly
establish the guilt. Therefore, in case where there are eye-witnesses, the evidentiary value
of forensic Evidence is questioned.
(ii) Comparability
Forensic Science works on the basis of comparison. Thus, where there is no standard or
sample to be compared, the collected sample becomes of no use. Whereas in the
conventional Evidence comparison is not required, the only requirement is authenticity.
(iii) Circumstantial Evidence
Forensic Science consists of circumstantial Evidence. Thus, it works on the probable
thinking of the investigating officer and the Evidence collected can help in recollecting
the circumstances but do not draw a direct inference.
(iv) Reconstruction Theory
The forensic science emphasizes on the reconstruction of events and occurrences that
may have happened. Thus, sometimes there may be partiality and biasness towards the
victim or the accused based on the investigation done by the investigating officer. Also,
at times a certain crime may have different angles of reconstructing a theory which poses
questions on its evidentiary value.
(v) Wrong test results
Forensic Science is the science of using scientific techniques to find the criminals. Thus,
there may be times when the scientific technique may or may not be working properly.
This may happen due to wrong use of chemicals or improper time management or mixing
of test results or mistake of error etc. The wrong results may negatively affect a case and
thus question as to its credibility arises.
(vi) Loss of Evidence
Forensic Science works on the ‘Principle of Progressive Change’. Thus, there might be
times when due to delay in collection of Evidence or improper preservation of the crime
scene some important Evidence may be lost, also during transaction of the samples, some
samples may be lost which create gap in the theory of the investigating officer.
(vii) Tampering of Evidences
In some cases, the Evidence may be tampered with, by known or unknown persons and
this may lead to improper or wrong results.
CHAPTER-3
FORENSIC SCIENCE: CONSTITUTIONAL AND LEGISLATIVE

MEASURES
Forensic science is the application of scientific techniques for the investigation of crime.
With the changes in methods of commission of crime, changes have been made in legal
provisions too. The courts have interpreted statutes to incorporate use of forensic science
and new clauses have also been added. The chapter deals with the provisions laid down in
the constitution and few statutes related to forensic techniques and forensic Evidence.
The Constitution of India

The Constitution of India provides for the rights of the accused under Article 19, 20 and
21. It also proved free legal aid under Article 39A. The most debated among these is the
Article 20 (3) which is discussed below in detail. The admissibility of forensic Evidence
in court is based on the manner of collection of Evidence. India, being a follower of
adversarial system follows strict procedure while taking Evidence. Thus, infringing
privacy or taking incriminatory Evidence against the will of the person is violative of the
fundamental rights25.
Article 20 (3): Protection against Self- Incrimination

Clause (3) of Article 20 provides:
“No person accused of any offence shall be compelled to be a witness against himself. 26
This clause is based on the maxim ‘Nemo tenetur prodere accussar seipsum’ which
means that no man is bound to accuse himself.27
Clause (3) of Article 20 follows the language of the Fifth Amendment of the US
Constitution which lies down that
“No person shall be compelled in any criminal case to be a witness against himself.28”
25
26
Jain, MP “Indian Constitutional Law” LexisNexis, Seventh Edition, 2014 p-256
“The Constitution of India”, Universal Law Publications, Edition 2014
27
Prof. Narender Kumar, ’Constitutional Law of India’ Allahabad Law Agency, Edition 8, P. 298
28
Available at https://www.whitehouse.gov/about-the-white-house/the-constitution/
The clause embodies the general principle of English and American Jurisprudence,
according to which no person would be compelled to give testimony which might expose
him to prosecution for a crime.
The characteristic features of the Common Law Criminal Jurisprudence are that an
accused must be presumed to be innocent until the contrary is proved. It is the duty of the
prosecution to establish the guilt of the accused, and the accused need not make any
admission or statement against him or his own free will.29
In State of Maharashtra v. N.E & P. Co. 30 it was held that protection contained in Article
20(3) is available to every person. The term “Person” in Article 20(3) includes not only
natural individuals but also companies and incorporated bodies.
In M.P. Sharma v Satish Chandra31 Court laid down that protection under Article 20(3) is
available only if the following ingredients are present:
(i) It is protection available to a person accused of an offence.
(ii) It is a protection against compulsion to be a witness.
(iii) It is a protection against such “compulsion” as resulting in his giving of the
Evidence against himself.
The court also stated that a person “Accused of an Offence” means a person against
whom a formal accusation relating to the commission of an offence has been levelled,
which in the normal course may result in a prosecution.
In Balkrishan v State of Maharashtra32 Court held that “Formal Accusation” is ordinarily
brought into existence by lodging of FIR or a formal complaint to the appropriate
authority or court against the specific individual accusing him of the commission of
crime.
In Nandani Satpathy v. P.L. Dani33 the appellant, former chief minister of Orissa, was
directed to appear at the Vigilance Police Station, Cuttack, for being examined in
connection with a case registered against her under the Prevention of Corruption Act,
1947 and under Section 109, 161, 165 and Section 120-B of Indian Penal Code, 1860. On
the strength of this information report, investigation was commenced against her
(only a
29
30
Supra Note 2
AIR 1951 Bom 242
31
AIR 1954 SC 300
32
AIR 1981 SC 279
33
AIR 1978 SC 1028
suspect at that stage). Supreme Court in this case held that Section 160 (1) of Code of
Criminal Procedure, 1973 which barred the calling of women to the Police Station was
violated in this case.
Further it was held that Article 20(3) extended back to the stage of police investigation
not commencing in court only, since such enquiry was of accusatory nature and could end
in prosecution. It follows that the protection under Article 20 (3) is also available at the
stage of Police Investigation. Further right to remain silent guaranteed by Article 20(3) is
not limited to case for which the person is examined but extends to the other offences
pending or imminent, which may deter him from voluntary disclosure of incriminatory
matter. It was also held that the protection could be claimed by a suspect also.
It was also 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. However, Art.
20(3) can be waived of by a person himself. 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 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 India34 Supreme Court held that a
person becomes witness only when he makes oral or written statements in or out of court
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 handwriting is not at all covered under Article 20(3). For testimonial
compulsion it is essential that a person forwards his personal knowledge about happening
or non-happening of an event. The perfunctory practice of producing documents which
may throw light on any of the controversial points does not amount to self-
incrimination35. Considering Brain-
34
AIR 2004 SC 456
35
AIR 1961 SC 1808
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).
In State of U.P v. Boota Singh36, 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. It can be termed as a search
of the person being conducted by experts and in India search and seizures are not held
violative of Article 20(3) because it is not an Act of the accused but a third person is
doing that Act i.e. the police officer or an expert. An accused is obliged to submit to the
concerned authority be that police or investigating authority, and therefore, submission of
accused to the authorities cannot in any case amount to his testimonial Act37.
The protection contained in Article 20(3) is against “compulsion to be a witness.” In
M.P. Sharma v Satish Chandra38 Supreme Court gave a wide connotation to the
expression “to be a witness” so as to include oral, documentary and testimonial Evidence.
Court held that the protection contained under Article 20(3) covered not merely
testimonial compulsion in the courtroom but also compelled testimony previously
obtained from him. It would extend to any compulsory process for production of
evidentiary documents which were reasonably likely to support a prosecution against the
accused.
In Usufalli v State of Maharashtra39 it held by Supreme Court, that tape recording of
statements of accused is not violation of Article 20(3) even if the recording is done
without consent and knowledge of accused. This recording may be used against accused
but it would not attract Article 20(3) reason being there is no presence of compulsion
here.
It was held in Ritesh Sinha v State of Uttar Pradesh40 that if an accused is directed to give
his voice samples during the cause of investigation of an offence then there is no
violation of his right under Article 20(3).
36
AIR 2004 SC 456
37
AIR 1965 SC 1251
38
AIR 1954 SC 300
39
1968 SC 147
40
(2013) 2 SCC 357
Article 20(3) and Psychoanalytic Tests
The issue of involuntary administration of certain scientific techniques, namely Narco-

Analysis, Polygraph Examination and the Brain Electrical Activation Profile (BEAP) test
for the purpose of improving investigation efforts in criminal cases has received
considerable attention of the Supreme Court. Since it involves tensions between the
desirability of efficient investigation and the preservation of individual liberties, therefore
it is required to examine the implications of permitting the use of the impugned
techniques in a variety of settings.41
The issue was brought before a three judge’s bench of the Apex Court in Selvi v State of
Karnataka.42 The whole question required their lordships to spell out the scope and extent
of protective umbrella which finds place in Article 20 (3) which is commonly known as
“Right against Self Incrimination.” The court addressed itself to the historical origin and
rationale behind non-derogable guarantee contained in Article 20 and 21. Referring to the
precedents from Indian and Foreign Jurisdiction, Hon’ble Chief Justice K.G.
Balakrishnan speaking on behalf of the Apex Court drew conclusions which are stated as
following:
(a) Right against Self Incrimination and personal liberty are non-derogable rights; the
enforcement thereof is not suspended even during emergency.
(b) Right of police to investigate offence and examine any person do not and cannot
override constitutional protection contained in Article 20(3).
(c) The protection against self incrimination ensures reliability of statements made by
an accused and that they are made voluntarily.
(d) The protection is available even at the stage of investigation.
(e) This right protects the persons who have been formally accused as well as those
who are examined as suspects in criminal cases. It also extends to cover witnesses
who apprehend that their answers could expose them to criminal charges in the
ongoing investigation or even in cases other than the one being investigated.43
41
Kumar, Narender, “Constitutional Law of India” Allahabad Law Agency, Edition 8, P. 299
42
AIR 2010 SC 1974
43
S. 161(2) The Code of Criminal Procedure, 1973
(f) The law confer ‘on any person’ who is examined during an investigation, an
effective choice between speaking and remaining silent. This implies that it is for
the person being examined to decide whether the answer to a particular question
will eventually prove to be inculpatory or exculpatory.
(g) Article 20(3) cannot be invoked by witnesses during proceedings that cannot be
characterized as criminal proceedings. In administrative and quasi-criminal
proceedings, the protection of Article 20(3) becomes available only after a person
has been formally accused of committing an offence.
(h) In the circumstances where it is shown that a person was indeed compelled to
make statements while in custody, relying on such testimony as well as its
derivative use will offend Article 20(3).
(i) Statement having non-penal consequences is outside protective scope of Article
20(3), but the accused in that case, can invoke Article 21.
(j) Compulsory administration of the Narco- Analysis technique, as such amounts to
“testimonial compulsion”, and thereby triggers the protection.
(k) The test results of Polygraph and BEAP, Brain fingerprinting test amounts to
testimonial compulsions and therefore bar of Article 20(3) gets attracted to such
tests. Conducting DNA profiling of accused, expressly permitted by Section 53,
54 of the Code of Criminal Procedure, 1973 is not a testimonial Act and therefore
bar under Article 20(3) does not apply to the Act.
(l) Acts such as compulsory obtaining signatures and handwriting samples are
testimonial in nature, they are not incriminating by themselves if they are used for
the purpose of identification or cooperation with facts or materials that the
investigators are already acquainted with. Such Acts as such, do not amount to a
testimonial Act for the purpose of Article 23. Hence, taking and retention of DNA
samples which are in nature of physical Evidence, does not face constitutional
hurdles in the Indian context.
(m)That, subjecting persons to Polygraph and Brain Mapping tests involuntarily
amounts to forcible interference with persons mental processes and hence violates
the Right of Privacy as well as Article 20(3).
(n) The court as interpreter and protector of constitutional safeguards cannot permit
involuntary administration of Narco-analysis tests. At the same time, compelling
public interests in eliciting information that could help in preventing criminal
Activities in the future to combat terrorist Activities, insurgencies and organised
crime, it is however for the legislature to arrive at a pragmatic balance between
the open competing interests of “Personal Liberty” and “Public Safety”.
Further, the guarantee in Article 20(3) is against the compulsion to be ‘a witness’. In
State of Bombay v Kathi Kalu Oghad44 a bench of 11 judges held that: “It is well
established that Clause 3 of Article 20 is directed against self incrimination by the
accused person. Self incrimination must mean conveying information based upon
personal knowledge of the person giving the information and cannot include merely the
mechanical process of producing documents in court which may throw light on any of the
points in the controversy, but which do not contain any statement of the accused based on
his personal knowledge.”
Another component of Article 20 (3) is that it is a prohibition only against the
compulsion of the accused to give Evidence against him.
In Kalawati v H.P. State45 Supreme Court held that Article 20 (3) does not apply at all to
a case where the confession is made by an accused without any inducement, threat or
promise.
In State of Andhra Pradesh v Smt Inapuri Padma & ors46 Court by ordering a few
suspects to undergo an Narco-Analysis test held that the question of putting the test of
testimonial compulsion in case of suspects does not arise.
Another requirement of Article 20(3) is that there should be no compulsion on the
accused to give testimony against him. However, in Narco-analysis test, the question of
compulsion does not arise because the prior consent of the person who is supposed to
undergo such a test is always taken. In fact, the Supreme Court in State of Bombay v
Kathi Kalu Oghad47 held that there is no compulsion when a police officer, in
investigating a crime against a certain individual asks him to do a certain thing. The
fact that a person was in police
44
AIR 1961 SC 1808
45
AIR 1953 SC 131
46
2008 CrLJ 3992
47
AIR 1961 SC 1808
custody when he made a statement is not a foundation for an inference that he was
compelled to make the statement. The mere questioning of an accused by a police officer,
resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is
not compulsion.
Considering all these, we can easily conclude that Narco-analysis does not violate Article
20(3) to the extent that the person undergoing such a test is not compelled to do so; rather
it is done with the consent of the person who has full knowledge of such a test.
Article 21: Right to Life and Personal Liberty
Article 21 is considered as the heart of the Constitution. According to this,

“No person shall be deprived of his life and personal liberty except
according to the procedure established by law”.
The word ‘person’ in Article 21 is wide enough that it covers the citizens of the country
as well as the foreigners who come to visit India48.
The object of Article 21 is to preserve and protect certain basic human rights against
interference by the state. The framers of the Constitution followed the American model is
adopting and incorporating fundamental rights. Two rights are secured by Article 21:
1. Right to Life
2. Right to Personal Liberty
Both are most prized possessions of an individual. It was rightly observed by the Hon’ble
Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharasthra49, that
“the inner wage for freedom is a natural phenomenon of every
individual. Respect or life, liberty is not merely a norm of policy but
an essential requirement of any civilized state”
The Apex Court defined the term “personal liberty” immediately after the
Constitution came into force in India in the case of A.K. Gopalan v. State of
Madras50 as “an antithesis of physical restraint or coercion”.
48
2013(4) Recent Apex Judgement (409)
49
2011(1) RCR (Criminal) 126 (SC)
50
AIR 1950 SC 27
Later, in the year 1963, Supreme Court, speaking through Justice Subba Rao, defined
“Personal Liberty” as a
“Right of an individual to be free from restrictions or encroachment on
his person whether these are directly imposed or indirectly brought about
by calculated measure”51
In a landmark judgment Supreme Court expanded the scope of expression ‘personal
liberty’ and this happened in the case of Maneka Gandhi v. Union of India52 In this case
the Hon’ble Supreme Court held that
“The phrase personal liberty is of the widest amplitude and it covers a
variety of rights which go to constitute personal liberty”.
Thus, protection against arbitrary privation of ‘life’ no longer means mere protection of
death or physical injury, but also an invasion of the right to live’ with human dignity and
would include all these aspects of life which would go to make a man’s life meaningful
and worth-living53. Article 21 is repository of all human rights essential for a person. Life
means something more than mere animal existence 54, it includes right to food clothing,
shelter, decent environment and also the right to live in a clear city55.
One of the important rights that came into existence by judicial interpretation is right to
privacy. A new Constitutional jurisprudence is being laid down by the courts of law by
extending the horizon of Article 21 in India. The quest of privacy is an inherent instant of
all human beings. As a matter of fact it is a natural need of an individual to establish
individual boundaries with almost perfect seclusion. The Indian Constitution does not
guarantee the Right to Privacy expressly as a fundamental right. In our country the sole-
credit goes to the judiciary for recognizing the concept of privacy because neither the
Constitution nor any other statute in our country defined this concept. The right to
privacy is an essential component of right to life envisaged by Article 21. The right
however is not absolute and may be lawfully restricted for the prevention of crime,
disorder, or protection
51
AIR 1963 SC 1295
52
(1978) 1 SCC 248
53
Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Others (1981) SSC 608
54
Munn v. Illinois (1877) 94 US 113
55
Suo Moto v. State of Rajasthan AIR 2005 Raj 82
of health or moral; or protection of rights and freedom of others. In District Registrar
and Collector v. Canara Bank56, Supreme Court defined “Privacy” as:
“The state of being free from intrusion or disturbance in one’s private life
or affair. Right to privacy is an integral part of right to life, a cherished
Constitutional value.”
In R. Rajagopal v. State of Tamil Nadu57, Supreme Court held that right to privacy means
right to let alone.
This golden expansion of right to life and personal liberty has left right to privacy in a
state of perplexity. This is often misused by persons. Accused person frequently plead
that their right to privacy has been infringed. In Malak Singh v. State of Punjab58
petitioner’s name was included in the surveillance register by the police and he
considered this as violation of Article 21. It is appropriate to mention here that right to
privacy is not an absolute right. Irony is that often right to privacy is violated of an
accused and it is most of the times resolved in the favour of accused. In Selvi v. State of
Karnataka59 Supreme Court expressed that Narco-analysis, Brain-mapping and Lie-
Detector tests cannot be conducted on accused without accused’s consent, else it would
violate Article 21.
Researcher submits that fundamental rights are equally available to everyone, whether
that is accused or victim. While considering fundamental rights of accused, same rights
available to victim must not be forgotten. In Sharda v. Dharmpal60 Supreme Court held
that in case there is a conflict between fundamental rights of two parties, that right which
advances public morality would prevail.
Looking at things from accused’s point of view always is not correct. Recently, it was
held that right to privacy and confidentiality is not an absolute right and could be
reasonably curtailed61 and it is important that human beings should be allowed domains
of freedom that are free from public scrutiny unless they Act in unlawful manner62.
56
2005(1) SSC 496
57
AIR 1995 SC 264
58
AIR 1981 SC 760
59
AIR 2010 SC 1974
60
AIR 2003 SC 3450
61
Rohit Shekhar v. Naryan Dutt Tiwari (2001(4) RCR (Criminal) 307 (Delhi)
62
Ram Jethmalani v. Union of India, 2011(3) RCR (Criminal) 480 (SC)
In D.K. Basu v. State of West Bengal63 in the year 1997 Supreme Court expressed that
there is a need to develop scientific techniques and methods for investigation and
interrogation of accused as custodial deaths and torture is nothing else but a blow at rule
of law. Narco- analysis, Brain-mapping and polygraph test is nothing but an efficient and
scientific method of investigation. In India, where right to life is a fundamental right, a
sad picture of custodial crimes is also present. Custodial Rapes, Deaths, torture all violate
right to life which includes right to live with human dignity64.
There are thousands of cases of custodial torture, where accused implicated large number
of injuries for the purpose of extorting information regarding theft and eventually accused
die65. Newspapers are full of such unfortunate incidents. Custodial crime is violation of
fundamental rights subjecting an accused to undergo a scientific test is much better option
than to letting him face third degree torture. These tests are viewed as violative of
Articles 20(3) and 21 rather they should be taken as supportive of fundamental rights.
Right to speedy and fair trail is also a fundamental right available to both accused and
victim. In fact, if trail is not quick it cannot be regarded as reasonable, just or fair and it
would fall foul of Article 2166 and these scientific techniques help in speedy and fair trail.
The concept of fair trail and fair investigation is not only to be considered from the point
of view of liberty or right of accused only, the victim and the society also suffers where
investigation becomes a casualty67. It should be remembered that administering criminal
justice system is a two-end process, where granting justice to the victim is as imperative
and important as safeguarding the rights of an accused under Constitution68, but our legal
system is going in a direction which is making life extremely easy for criminals and too
rough, difficult and hard for citizens who obey law69.
Right against inhuman treatment, use of third degree torture and custodial violence is
available to the accused only and with the help of these techniques, custodial crimes can
63
AIR1997 SC 610
64
Haricharan v. State of M.P. 2011(2) RCR (Criminal) 330 (SC)
65
V. Shekhar v. State of Karnataka, 1991 CrLJ. 1100
66
Mohan Lal v. State of Punjab AIR 2013 SC 2408
67
Gurbaksh Singh Bains v. State of Punjab 2013(1) Law Herald 652
68
Amitbhai Anil Chandra Shah v. Centrla Bureau of Investigation 201393) R.A.J. 61
69
Ranjan Dwivedi v. C.B.I. 2012(8) SCC 495
24
be completely eradicated. So, these methods or techniques should not be abrogated but
made part and parcel of investigations.
The Indian Evidence Act, 1872
The Indian Evidence Act, 1872 lays down provisions for the relevancy and admissibility
of Evidence in court. The Evidence related to scientific techniques and electronic
Evidence are laid down in the Act. Where the Evidence given by export and related to
handwriting already existed, the provisions related to admissibility of electronic Evidence
for corporate it in 2005.
The present chapter discusses the Evidence on the opinion of export, Evidence related to
handwriting, electronic Evidence, Evidence related to digital signatures in detail.
Section 45- Opinion of Experts
“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 especially skilled in such foreign law, science or art, (or in questions as to
identity of handwriting) or (fingerprint impressions) are relevant facts. Such persons are
called experts”.
Section 45 of the Indian Evidence Act, 1872 lays down the definition of “Expert” and
provides that the opinion of the expert on the subject of foreign law, science or art is the
relevant facts. The provision lays down relevancy of opinion as to handwriting and finger
impressions. The word “Science” in the Section is interpreted to include scientific
techniques admissible in the court of law. The scope of Section 45 is wide enough to
include the scientific techniques such as Narco-analysis, Serology, Brain mapping, DNA
profiling etc.
‘Expert’
Section 45 states that the persons who give opinions on point of Foreign Law, Science or
Art are called Experts. Various other definitions have been laid down as under:
An Expert is one who has acquired special knowledge, skill and experience in any
science, art, trade or profession. Such knowledge may have been acquired by practice,
observation, research or careful study70.
Rogers defines an “expert” in any science, art or trade as one who, by practice and
observation, has become experienced there in. The term “expert” seems to imply both
superior knowledge and practical experience in the art or profession but generally nothing
more is required to entitle one to give testimony as an expert, than that he has been
educated in particular art or profession71.
In Collector, Jabalpur v. Ahmad72 the Court laid down the definition of “Expert” as “a
person in his capacity as commissioner and administrator of the municipality gaining
knowledge pertaining to the value of land in different parts of the city and house property
is entitled to be considered an expert on such matters”. Under this Section expert
Evidence is admissible when the court has to form an opinion upon a point of foreign
law, or of science or art as to identity of handwriting or finger impression. The Section
speaks of expert Evidence on matters of “science or art” and does not specifically
mention “trade or skill”. The phrase “science or art” shall not be construed in narrower
sense. All subjects in which peculiar skill, judgment, experience or special study is
necessary to the formation of an opinion are included in this.
Section 45 makes opinion of especially skilled persons relevant. In Bal Krishna Das v.
Radha Devi73, “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.74 But expert opinion cannot form the
sole basis of conviction of accused75, unless something inherently defective appears, court
cannot substitute opinion of an expert76. 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
70
Sarkar, Sudipta; Manohar VR,” Evidence” Wadhwa & Co, Nagpur, Edition XV, Vol- I, P-45
71
Greenleaf, Simon “A Treatise on the Law of Evidence”. Sixteenth Edition, Little, Brown And Company,
Boston (1899)
72
AIR 1971 MP 32
73
AIR 1989 All 133
74
Dayal Singh v. State of Uttaranchal 2012(3) RCR (Criminal) 949
75
S. Rajendran v. State 2011(4) Madras Law Journal (Criminal) 537
76
Mahalakshmi v. State of Tamilnadu 2012(6) RCR (Criminal) 100
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 courts77. 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. It is presumed that parliament intends the court to
apply to an ongoing Act, a construction that continuously updates its working to allow for
changes since the Act was initially framed. While it remains law, it is to be treated as
always speaking. This means that in its application on any date, the language of the Act,
though necessarily embedded in its own time, is nevertheless to be construed in
accordance with the need to treat it a current law 78. There cannot be any doubt that Indian
Evidence Act is an ongoing 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.
It has been held by Supreme Court in Gajraj v. State (NCT) of Delhi79, 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. 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 him80 but in criminal cases accused cannot be compelled. It is humbly submitted
that 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. It is now settled law that have and nails of the accused can be
taken for utilization during investigation even if the accused does not agree to the same. If
that invasion of the person
77
C.d. Field, “Expert Evidence”, Delhi: Delhi Law House, 4th edition, 2012, P. 1
78
Bennion, Francis, “Statutory interpretation” State v. S.J. Choudhary 1996 (2) RCR (Criminal) 721
79
2012(1) R.A.J. 28
80
Harjinder Kaur v. State of Punjab 2013(2) RCR (criminal) 146
of the accused is permissible, the same principle should be applicable to Narco-analysis,
Brain-mapping and polygraph test81.
Moreover, Narco-analysis, brain-mapping and polygraph can be conducted on any person
who is not an accused or witness. This means in such circumstances, results of these tests
are admissible in court of court of law vide Section 27 or Section 45. The 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. This appears to be arbitrary. If
accused has committed a crime obviously, he will not consent. Investigation is hampered
with such decisions of Apex Court. 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 in Narco-analysis, Polygraph and Brain-mapping.
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. These scientific
tests are like taking MRI or C.T. scan. The scientific value has to be evaluated only
during the course of trail82. These are neutral type of Evidence and must not be discarded.
Relevancy under Section 45

The words of Section 45 clearly state that Opinion of Expert is a relevant fact. It means
that the opinion on science, art and foreign law given by a person who is expert in the
field is relevant to be admissible before the court of law.
In State v S.J. Chaudhary83, the court stated that the opinion of persons especially skilled
in such foreign law, science or art or questions as to the identity of handwriting or finger
impression, called expert there in, are relevant facts. The opinion of such experts is
admissible in Evidence as relevant facts by virtue of Section 45 of the Indian Evidence
Act, 1872.
81
Abhay Singh v. State of U.P. 2009 G.L.J. 2189
82
Dinesh Dalmia v. State 2006 Cr. L.J. 2401
83
AIR 1996 SC 1491
In reference to the identification of voice, it has been held in R v Robb that if given by a
properly qualified expert, Evidence of voice identification is admissible, even if the
resulting opinion was based on a view held by a minority of the relevant profession84.
In Metro Asylum D v Hill85, and R V M’Naughten86 the court stated that medical men are
constantly allowed to give their opinions on such medical questions as to causes of
disease and death, effect of poisons, the nature of wounds, the conditions of gestation, the
proper treatment of complaints, the effect of hospitals upon the healthy conditions of
neighborhood and upon the sanity or conditions of mind of person.
Requirements of expert testimony
The Indian statutes do not provide for any specific guidelines for the requirements of the
expert testimony. The courts have taken different factors considering different facts but in
Romesh Chandra Aggarwal v Regency Hospital (2010) 87 the Supreme Court enumerated
the requirements for admitting expert testimony. These are:
(i) The expert must be within a specialised field of expertise.
(ii) Evidence must be based on reliable principles.
(iii) Expert must be qualified in that discipline.
It also illuminated the following factors on which expert testimony may be thrown out of
court would become in admissible.
1. The scientific finding in the question has no relevance with respect to issue in
question
2. Conclusions arrived by the expert or not based on scientific reasoning but
speculation.
3. Scientific process was not reliable for want of accuracy or want of better method.
84
Metro Asylum D v Hill, R v Robb, The Times, Feb 6, 1991 CA
85
R V M’Naughten 47 LT 29
86
10 CL&F 200
87
Civil Appeal No 5991 of 2002
Section 47: Opinion as to Handwriting, when relevant
Section 47 states that when a question arises as to who wrote a document or signed it, the
opinion of a person who is acquainted with the handwriting of the person in question, is
admissible88. For this purpose a person who has been the person while writing it or a
person who is in the habit of receiving documents written by the concerned person in the
ordinary course of business is competent to tender his opinion in Evidence. If the writer
himself is available his Evidence would be desirable, but in the absence of such person,
his writing maybe proved by the person acquainted with the same89.
In Doe v Suckermore90, The court stated that Section 47 of the Indian Evidence Act 1872
lays down one of the modes of proving signature or hand writing. It is seen from the
provisions of Section 47 that if a person has seen another person signing or writing a
document he can be said to be acquainted with his handwriting and so he is competent to
prove that it is in the handwriting and signature of that person. There is nothing in this
Section to indicate that to be acquainted with the handwriting of signature of a person, the
person in whose presence the signature or writing was made must be able to read such
signature or writing.
In Ganpatrao Khansera v Vasantra Ganpatro91, the court held that the handwriting of
person may be proved by calling a forensic expert qualified to express an opinion on the
disputed handwriting.
Admissibility of Evidence under S. 47, 65 and 67 of Indian Evidence Act, 1872

Under Section 65 of the Indian Evidence Act, 1872 Secondary Evidence admissible only
of the existence or the contents of document which is lost, but that the execution of the
document must be proved by primary Evidence as required by Section 67 of the Indian
Evidence Act, 187292.
88
The Indian Evidence Act, 1872, Section 47
89
Field, C.D.,”Expert Evidence- Medical and Non Medical” Revised by Rajesh Gupta, Edition IV, Delhi
Law House, P. 122
90
(1836) 5 A&E 703 at P. 731
91
AIR 1932 Bom 588
92
Supra Note 24
All that Section 67 requires is that writing or signature of the executant should be proved
to be his writing or his signature. It does not say that the signature must be proved by a
person who actually saw that person affixing his signature93.
In Haria v Manakchand,94 Mst. Lahani v Bala95 and Ponnuswami v Kalyanasundra96 it
was held that where direct Evidence is not available indirect Evidence of proof of
signature on a document can be given.
The Court laid down in R v Crouch97, where on an indictment for sending a threatening
letter, the only witness call to prove that the letter was in the handwriting of the accused,
was policeman who was sent by the inspector to the accused to pay him some money and
procure a receipt, in order that is to obtain knowledge of his handwriting by seeing him
write, his Evidence was rejected by Maule, J on the ground that “knowledge obtained for
such a specific purpose, and under such a bias is not such as to make a man admissible as
a quasi-expert witness”.
Further explanation in Miss Hardevi Malkani v State98 makes it clear as to when a person
can be said to be acquainted with the handwriting of another person. It is only when he
had seen that person write or when he has received document for purporting to be written
by that person in answer to document written by him or under his authority and addressed
to that person, or when, in the ordinary course of business, documents purporting to be
written by that person, have been habitually submitted to him.
Section 47A: Opinion as to digital signature when relevant
Section 47A which was added in 2000 as to provide for relevancy of expert opinion on
the genuineness of the digital signature and it lays down that the opinion of the certifying
authority which has issued digital signature certificate is relevant fact.
In addition Section 65A says that the contents of electronic records may be proved in
accordance with the provisions of Section 65B.
93
94
Ibid
AIR 1914 Nag 87
95
AIR 1922 Nag 227
96
AIR 1934 Mad 365
97
R v Crouch 4 Cox. Cr. Cas. 163; Best on Evidence, P.229
98
AIR 1969 All 423
31
Section 65B: Admissibility of Electronic records
Section 65B is an important Section providing for the admissibility of electronic records.
The computer holding the original Evidence does not need to be produced in court.
Computer output of the information stored in optical/magnetic media is deemed
document and can be produced in Evidence.
The conditions mentioned in this Section are satisfied in relation to the information and
computer in question and shall be admissible in any proceedings, without further proof
for production of the original. And the conditions are:
(a) Output was produced/ generated by computer when it was used regularly to
store/process the information; it was used for Activities regularly carried on
during the period.
(b) Output was by the person having lawful control over the use of the computer.
(c) It will have to establish that during the period, information was being regularly
feeded.
(d) That throughout the material period the computer was operating properly. During
that period if the computer was out of order, it has not affected the electronic
record and accuracy.
The Code of Criminal Procedure, 1973
The criminal justice system in India, apart from Constitution and Evidence Act largely
depend upon Code of Criminal Procedure and Indian Penal Code, 1860. The Penal Code
provides punishment and criminal procedure code ensures that the accused person gets
fair trial. Investigation plays a crucial role in the administration of criminal justice
system. It is one of the most important aspects of Criminal Procedure Code. The term
investigation has been defined is the Section 2(h) of the Criminal Procedure Code. It lays
down: "investigation includes all the proceedings under this Code for the collection of
Evidence conducted by a police officer or by any person (other than a Magistrate) who is
authorized by a Magistrate in this behalf”;
It includes all the proceedings for the collection of Evidence conducted by a police
officer or any person (other than a magistrate) who is authorized by a magistrate in this
behalf. It
was held in State of U.P. v. Sant Prakash99, that the main purpose of an investigation is
collection of Evidence and it must be conducted by a police officer or a person enjoying
the powers of a police officer or authorized by a magistrate in this behalf or a person in
authority. This definition given in code is not exhaustive 100. The arrest and detention101,
examination of witnesses, arrangement of raids 102 are integral part of investigation.
Investigation is the foremost and most important part of a criminal trial. An investigation
done in a fair manner will let no guilty escape.
A recent amendment in 2005 is positive and protective towards the recognition of
scientific tests. Sec 53 empowers the investigative agencies to take recourse to an
efficient and scientific method of investigation. Section 53 provides:
“(1) When a person is arrested on a charge of committing an offence of such a nature
and alleged to have been committed under such circumstances that there are reasonable
grounds for believing that an examination of his person will afford Evidence as to the
commission of an offence, it shall be lawful for a registered medical practitioner, Acting
at the request of a police officer not below the rank of sub-inspector, and for any person
Acting in good faith in his aid and under his direction, to make such an examination of
the person arrested as is reasonably necessary in order to ascertain the facts which may
afford such Evidence, and to use such force as is reasonably necessary for that purpose.
(2) Whenever the person of a female is to be examined under this Section, the
examination shall be made only by, or under the supervision of, a female registered
medical practitioner.”
Under this Section medical examination of accused can be done at the request of police
officer and this would be part and parcel of investigation process only. This could be
done even after framing of the charge by the court. In fact, under see 53-A specifically
DNA test has been included103. It provides:
99
1976 CriLJ 274 (All)
100
S.N. Misra, “The Code of Criminal Procedure, 1973”, Allahabad: Central Law Publications, 16th
edition, 2009, P. 10
101
Baldev Singh v State of Punjab 1975 G.L.J. 1662
102
Maha Singh v State 1976 AIR, 1976 SC 449
103
Sec. 53-A(2) (IV) Code of Criminal procedure, 1973
“Examination of person accused of rape by medical practitioner:
1. When a person is arrested on a charge of committing an offence of rape or an attempt
to commit rape and there are reasonable grounds for believing that an examination of
this person will afford Evidence as to the commission of such offence, it shall be lawful
for a registered medical practitioner employed in a hospital run by the Government or by
a local authority and in the absence of such a practitioner within the radius of sixteen
kilometers from the place where the offence has been committed by any other registered
medical practitioner, Acting at the request of a police officer not below the rank of a sub-
inspector, and for any person Acting in good faith in his aid and under his direction, to
make such an examination of the arrested person and to use such force as is reasonably
necessary for that purpose.
2. The registered medical practitioner conducting such examination shall, without delay,
examine such person and prepare a report of his examination giving the following
particulars, namely:-
(i) the name and address of the accused and of the person by whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of the accused for DNA profiling,
and”
(v) other material particulars in reasonable detail.
3. The report shall state precisely the reasons for each conclusion arrived at.
4. The exact time of commencement and completion of the examination shall also be
noted in the report.
5. The registered medical practitioner shall, without delay, forward the report of the
investigating officer, who shall forward it to the Magistrate referred to in
Section 173 as part of the documents referred to in clause (a) of sub-Section (5) of that
Section.”
Explanation attached to this Section lays down that, in this Section (Section 53 CrPC)
and in Sections 53A and 54,
“(a) "examination" shall include the examination of blood, blood stains, semen, swabs in
case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the
use of modern and scientific techniques including DNA profiling and such other tests
which the registered medical practitioner thinks necessary in a particular case:
(b)"registered medical practitioner" means a medical practitioner who possesses any
medical qualification as defined in clause (h) of Section 2 of the Indian Medical Council
Act, 1956 and whose name has been entered in a State Medical Register.”
The expression ‘such other tests’ used in the Explanation to the amended Section 53 of
Code of Criminal Procedure should be interpreted in such a way as to include within its
ambit the Narco-analysis, polygraph and brain mapping. The examination of the person
has been defined by an inclusive definition and the use of words “shall include” in the
explanation in the Code of Criminal Procedure suggests that all the modern and scientific
techniques are included in it. There is no reason of excluding narco-analysis, polygraph
and brain mapping from its scope. Thus, 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. In other words, there should be an acceptance that Section 53, Code
of Criminal Procedure provides statutory sanction for the narco-analysis, polygraph and
brain mapping and, said tests can be used as helping tools in the process of investigation.
In the case of Maghar Singh @ Magha v. State of Punjab104 it was held by the court that
consent of accused is not required in medico-legal examination of accused Section 53 and
53-A of criminal procedure code permit the investigation officer to arrest the accused and
if he finds that some Evidence could be made available from the body of the accused,
then he could get him medico-legally examined. Researcher submits here that Section 53-
A should not be combined only to DNA profiling specifically. No distinction should be
made between scientific techniques and sec 53 and 53-A should be construed to include
Brain- mapping, Narco-analysis and Polygraph test.
104
2012(3) RCR (Criminal) 94
It has also been held in Anil A. Lokhande v. State of Maharasthra105 by Supreme Court
that for the purpose of collecting Evidence person of accused can be examined.
For this purpose both internal and external examination of his body can be done. If
necessary some organs inside the body may also be examined. Another provision relevant
with the topic of research is contained in Section 161(2) of Code of Criminal Procedure.
Section 161 lays down the procedure of examination of witnesses by police.
“(1) Any police officer making an investigation under this Chapter, or any police officer
not below such rank as the State Government may, by general or special order, prescribe
in this behalf, Acting on the requisition of such officer, may examine orally any person
supposed to be acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer truly all questions relating to such case put to
him by such officer, other than questions the answers to which would have a tendency to
expose him to a criminal charge or to a penalty or forfeiture.
(3) The police officer may reduce into writing any statement made to him in the course of
an examination under this Section; and if he does so, he shall make a separate and true
record of the statement of each such person whose statement he records”.
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. Indirectly he has a right to remain silent so that he
may no incriminate himself. However, Supreme Court held in Peoples Union for civil
liberties case Supreme Court held that right to silence defeats all the purposes of
examination of accused and no longer it shall be a right.
It is submitted when there is availability of modern and advanced techniques of
investigation, there should be no hesitation in making such techniques part of Indian
criminal justice system especially when number of countries across the globe are taking
aid of scientific techniques as discussed in previous chapter. There is an urgent need to
check custodial torture, inhumane treatment, etc. These tools of investigation are soft
alternative to third degree torture.
105
1981 Cr.LJ 125(SC)
36
Role of National Human Rights Commission
National Human Rights Commission has always worked for the protection of the basic
human rights available to every human being. Human rights have been defined in Section
2 (d) of the Protection of Human Rights Act 1993 as "rights relating to life, liberty,
equality and dignity of the individual guaranteed by the Constitution or embodied in the
International Covenants and enforceable by courts in India". The modern techniques of
investigation are considered as blatant violation human rights.
These tools of investigation are considered as torturous techniques. There is no specific
statutory law on the use of narco-analysis, polygraph and brain mapping in India. The
interpretation is given by the courts differently in different cases. Some judicial decisions
are in favour of using these techniques and some are critical. They are not in favor of
utilization of such tools in investigation. However, in absence of legislation
National Human Rights Commission has laid down certain guidelines that are to be
observed while conducting these tests. The guidelines given by National Human Rights
Commission are as follows:
“(1) 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.
(2) 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.
(3) The consent should be recorded before a Judicial Magistrate.
(4) During the hearing before the Magistrate, the person alleged to have agreed should
be duly represented by a lawyer.
(5) 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.
(6) The Magistrate shall consider all factors relating to the detention including the length
of detention and the nature of the interrogation.
(7) The Actual recording of the lie detector test shall be done in an independent agency
(such as a hospital) and conducted in the presence of a lawyer.
(8) A full medical and factual narration of manner of the information received must be
taken on record.”
At present in India only the above stated guidelines are available that regulate the use of
these techniques. Even these guidelines were referred by the Apex Court in Selvi v. State
of Karnataka106, wherein the court ordered that these guidelines should be followed while
conducting narco-analysis, polygraph and brain mapping.
The case of scientific techniques especially Narco-analysis, Brian-Mapping and
polygraph, are held to be violative of fundamental rights, which themselves have no fixed
content. It is well established that new scientific technology is helpful in detecting lie,
crime and criminal, and it may be borne for criminal justice system. The courts in India
have yet not decided on its acceptability, but certainly this type of scientific test do
provide some Evidence or clue about the culpability of accused which may corroborate
other oral testimonies. The courts should approve the legal use of narco-analysis,
polygraph and brain mapping. Brain fingerprinting and lie-detector test is not statement
because it only discloses existence of knowledge about crime in brain though statement is
given in Narco- analysis test however it cannot be termed as involuntary.
The protection given by Article 20(3) gives protection from compulsory testimony that is
no one is to be compelled to be witness against himself. So, as long as, the person is not
compelled to give testimony protection of Article 20(3) is not available. Narco-analysis
test is a step in aid of investigation. It forms an important base for further investigation as
it may lead to collection of further Evidence on the basis of what transpired during such
examination. The use of above stated techniques is of particular relevance in the context
of terrorism related cases, conspiracy to commit murder and other serious offences where
the Investigating agencies do not have vital leads. The attempt of the courts should be to
expand the reach and ambit of the fundamental rights by process of judicial
interpretation. The fundamental rights have not been declared immutable, but these have
to be kept in conformity with the changing conditions. The Constitution has to be kept
young, energetic
106
AIR 2010 SC 1974
and alive107. If it is the duty of the judge to see no innocent is punished then he must also
ensure that no guilty man escapes. Both are public duties when security, protection and
justice to the society is in conflict with the rights of accused, obviously first should get
importance. Social security is more important the accused rights and moreover, these
techniques are not at all unlawful. They will just help in investigation, courts of law will
decide on that basis. It is respectfully submitted that by exaggerating rights of accused
obstacles should not be put into the way of scientific, efficient and effective investigation
into crime.
107
People’s Union for civil liberties v. Union of India AIR 2003 SC 2363
39
CHAPTER 4
FORENSIC TECHNIQUES AND THEIR ADMISSIBILITY

Narco Analysis
Narcosis is a state of stupor induced by drugs. The use of narcotics as a therapeutic aid in
psychiatry is believed to have a history dating back to the use of opium for mental
disorders by the early Egyptians. In 1936, Stephen Horsely, J introduced the term ‘Narco-
analysis’ for the use of narcotics to induce a trance like state in which the patient talks
freely and intensive psychotherapy may be applied. It was used with considerable success
in treatment of acute combat psychoneuroses during World War II108.
“Narco-analysis” is a process whereby a subject is put to sleep, or into a semi-somnolent
state by means of chemical injections and then interrogated while in this dream like
dream, or the process of injecting a ‘truth serum’ drug into a patient/ suspect to induce
him/her to semi-consciousness and then interrogating the patient/suspect. This process is
being utilized to enhance the memory of a witness109.
Narco-analysis is a mode of psychotherapy and is actually an aid to scientific
investigation. It is regarded as a useful or valuable asset to investigate and prevent crime
provided it is used with remote discretion only in inevitable cases where in all other non-
evasive devices or procedures of scientific interrogations have helped very little in
arriving at the state or character of being in relation to the fact110.
The human brain has three components:
(a) Memory
108
Kaul, K. Satyendra; Zaidi, H. Mohd., “Narco-analysis, Brain Mapping, Hypnosis & Lie Detector Tests
in Interrogation of suspect”, Alia Law Agency, p.429
109
Aiyer, Ramanatha’s Law Lexicon, Black’s Law Dictionary, Edition 8th, p.1049
110
Id at p-250
40
(b) Logical Reasoning
(c) Imagination
Memory is that component which saves all the things which a human mind perceives. It
tends to fade with time. Logical reasoning is that component of the brain that makes a
logical explanation to anything and everything. Imagination is that sub-conscious part of
the brain by which a man seeks to perceive things of his choice. By drugs our
imagination and logical reasoning are lowered111.
Stages on which nervous system works:
(a) Awake: This is the stage under which nervous system works without freely and
any influence.
(b) Hypnotic stage: At this stage the drug causes imagination and logical reasoning
inability. Truth drug which Acts to induce sleep is given to create this stage. This
is a state of altered consciousness, usually artificially induced, charActerized by
focusing of attention, heightened responsiveness to suggestions and commands,
suspension of disbelief with lowering of critical judgement, the potential of
alteration in perception, motor control, or memory in response to suggestions, and
the subjective experience of responding involuntarily.112
(c) Sedative Stage: Sedative is allaying Activity and excitement which is caused by
an agent that allays excitement. One which principally affects the brain is called
cerebral sedative113.
(d) Narcotic Stage: This stage is described in detail as below:
Origin
Word “Narco” is derived from the Greek word ‘narke’ which means numbness or
anesthesia. Earlier this technique was used as anesthesia only. In this technique drug is
administered intravenous to the subject so that the subject becomes less inhibited. It was
used as anesthesia in Europe. The drugs were administered to pregnant lady during labour
pain to relax them. Woman at this stage often made such comments which they would not
111
Maithil B. P. “Physical Evidence in Criminal Investigation and Trials”. 1st Edition, 2012, Selective and
112
Sceintific Books, Delhi, India, p-5
Donald ‘Medical Dictionary’ 28th Edition, p. 803
113
Id at p. 1301
41
have made otherwise. Drug was injection of morphil scopolamine. A doctor named as
Robert observed this and believed that drugs could be used to check if people were lying.
He administered the drugs in smaller doses to under trials in jail and almost half a dozen
of people were released in Texas on the basis of these tests. During World War II,
psychiatrists use the drug to deal into subject’s mind and to treat them war shocks.
During 1950s technique was used by central investigating agency of USA for aiding
terrorist investigation114.
Process115
Narco-analysis has utmost possibility of revealing the motive behind commission of
crime and also discovery of weapons used in the crimes. This analysis is used by experts
to extract the psychological truth. While police uses it as a tool of investigation, for crime
prevention and for the detection of crimes.
During Narco-analysis, subject’s inhibitions are lowered, in the hope that the subject will
more freely share information and feelings. The subject is injected with hypnotics like
sodium amytal etc. under the controlled circumstances of the laboratory. Because of
which the subject is put in a state of hypnotism.
3g of truth drug is dissolved in 3000 ml of distilled water and this mixture along with
10% of dextrose is injected intravenously to anti cubital vein in the body of the subject
over a period of three hours with the help of an experienced anesthetist. It is injected, in
normal conditions, 0.5 to 1 ml per minute till the subject becomes sedative. Truth drugs
or truth serum binds GABA (a neurotransmitter inhibitor) a chemical that occurs
naturally in the body forming a complex at beta site which exerts pressure over the
permeability of chloride irons116. Truth Drugs Act to increase the Action of GABA in the
brain. Thereby decreases nerve Activity in the brain which results in sleepiness, it may
also cause drowsiness the next day. Slurred speech is generally a symptom of semi-
narcotic state of patient.
Dosages may vary according to age, sex, health and physical condition of the subject as
different persons need different dosages of the drug. The drug depresses central nervous
114
B.B Nanda and R.K. Tiwari, “Forensic Science in India, A Vision for Twenty First Century” Select
115
Publisher, New Delhi, 2001
Dr. Subhas Chandra Singh, “The Truth About lies: Do Lie –Detector Work?”VII CriLJ161 (2007)
42
116
Maria Naples- Thomas P. Hackett’s The Amytal Interview: History and Current Uses
43
system (CNS) and makes the heart beat slower and Blood Pressure also lowers down.
When the person’s speech becomes slurred and he or she starts behaving in a cooperative
manner and becomes more talkative, it will be presumed that he or she is under full
control of the drug117.
The examiner satisfies himself by testing the patient’s eye-muscles with his fingers.
Needle is left in the vein of the patient and also for continued narcotic state further
administration of drug is necessary. Care is taken that only so much drug is administered
which may keep the patient in semi-awake state and he or she does not go in deep sleep
state. The drug is considered safe118. In this state, the questions are asked and answers are
audio and video recorded. Narco-analysis cannot be conducted without the consent of the
subject and order of the court119. There have been constant debates that sodium pentothal,
sodium amytal or scopolamine makes the subject powerless to keep from diverging the
required information. But it is not the complete truth. These drugs do relax the subject,
but researchers have found that in the number of cases subjects retained their ability not
to divert the facts and in some cases even false statements were made 120. But it has also
been said that these drugs have helped some persons who had totally forgotten the event,
regarding the events121.
However, it is not always necessary that truthful information is made available to the
interrogators. The drug reduces inhibition, increases loquacity (latin- lequaci) but 100
percent accuracy is not expected.
In India there is no legal precedent on the issue of narco-analysis. Narco-analysis has
raised several issues of legal importance, for example it’s admissibility in Evidence,
encroachment on personal liberty, test being Violative of Article 20(3) of Constitution of
India. It is also termed a psychological third degree method. However, export opinion has
been made admissible by virtue of Section 45 of Indian Evidence Act, 1872.122
117
T. Murali Krishna,” Polygraph test (Lie –Detector Test) and Truth Serum” available at
www.Polygraph.com Last visited on 05.04.2018
118
Muehlberger, C.W, “Police Service- Interrogation under Drug influence” Journal of Criminal law,
Criminology and Police Science, 42
119
Nair, Deepti, “Innocents have nothing to fear about Narco-analysis” Available at
https://www.telegraphindia.com/1040225/asp/atleisure/story_2929999.asp
120
Retrieved from www.netadoctor.co.uk Last accessed on 15 .04. 2018
121
“Polygraph test and its reliability” Available at www.ijars.in Last visited on 16.04.2018
122
“Polygraph Test And its Validity in India”, available at www.indiakanoon.com Last visited on
15.04.2018
Relevancy and Admissibility in the Indian courts
Narco-analysis test has been conducted in India on Godhra incident accused persons,123
on Abdul Karim Telgi,124 prime accused in stamp paper scam, in Arun Bhatt kidnapping
case of Gujarat125, on the Nithari serial killers of Nithari, Noida, Uttar Pradesh 126 on Selvi
127
Murugesan, a sitting MLA of Tamilnadu; on Mumbai police inspector Daya Nayak, on
naxalite Mallika, Abu Salem, a suspect of Bombay blast case, on Actress Prutty Jain,
Naresh Pardesi, suspects of Malegaon blasts, on R. Venkateswara Rao, prime accused of
Krushi bank scam; and on Nadeem Kashmiri in a fraud case.
In MP Sharma v. Satish Chandra128, fundamental rule of criminal jurisprudence, ‘right

against self-incrimination’ was questioned. Supreme Court observed and explained the
essentials of Article 20(3):
(a) It is right pertaining to person who is accused of an offence.
(b) It is the protection against compulsion to be a witness.
(c) It is protection relating to his giving Evidence against himself.
Supreme Court explained that this right is available only to accused i.e. person against
whom formal accusations have been made. It is also said that person against whom FIR
has been lodged and investigation is being conducted can also claim the benefit of Article
20(3).
In State of Bombay v. Kathi Kalu Oghad 129 an eleven judges bench observed that it is well
established that protection under Article 20(3) is available to accused. Supreme Court
said that self-incrimination must mean conveying information based upon personal
knowledge of the person giving information and cannot include merely the mechanical
process of
123
SalimBhai Abdul Gaffar Shaikh v State of Gujarat
124
CBI V Abdul Karim Telgi & Ors, 2005 Cri Appeal 523
125
Arun Gulab Gavali v State of Maharashtra & Ors 2006 CriLJ 2615 (Bom)
126
Mohinder Singh Pandher & Ors v CBI, 2007
127
Selvi v State of Karnataka (2010) 7 SCC 263
128
1954 SCR 1077
129
(1962) 3 SCR 10
producing material Evidence in the court does not contain any statement based on
personal knowledge of the accused. So basically distinction was drawn between personal
testimony and materials like is physical body substances and other physical objects.
Supreme Court further said that accused can be compelled to give blood samples and
fingerprint.
Moreover, objects are already there with investigation and agency and they’re asking the
comparison.
In Nandini Satpathy v P.L. Dani130, Supreme Court consolidated the position that
protection under Article 20(3) is available at pre trial stage also.
In Dinesh Dalmia v state of Madras131 the court allowed the use of narco-analysis in the
investigation. However, a safeguard was laid down that accused should be informed
about test and his consent should be obtained. In Selvi v. State of Karnataka132 the issues
were:
(a) Whether narco-analysis, polygraph, brain mapping are constitutionally valid or
not?
(b) Whether narco-analysis, polygraph, brain mapping are violative of Article 21?
(c) Whether narco-analysis, brain mapping, polygraph are violative of Article 20(3)?
The court held that narco-analysis, polygraph and brain mapping cannot be conducted
without the consent of the accused. These tests are violative of Article 21 as they violate
the right to privacy of an individual. The tests are direct infringes the privacy of the
individuals under the effect of drugs which render him incoherent to his logical reason
and one’s own control of mind.
Brain Mapping Test

Brain has been the centre of attraction of neuroscientists for decades. All Activities of
human body start from brain. It has been an important point in the invention of the lie
detecting equipments.
130
(1978) 2 SCC 424
131
2006 CrLJ 2401
132
(2010) 7 SCC 263
Brain Mapping is the latest scientific technique for measuring neural responses exhibited
after an object is shown to the subject or an external stimulus is present it to the subject. It
is the branch of neuroscience and deals with the study of neuroanatomy133.
Brain Mapping is the technique used to determine whether certain information is present
in the brain of a person or not. It is the scientific test by which guilty knowledge stored in
brain can be determined. It measures neural responses to images from crime scene. It is
now used to detect crimes and in countering terrorism related Activities. This is the
technology through which brain Activity can be scanned without the control of the
person’s logical reasoning and imagination134.
The brain mapping device was invented by US scientist Dr Lawrence A. Farewell for
identifying criminals and clear innocent persons accurately by measuring brain waves.
According to him centre of every Activity is brain and it not only plans Activities but
orders for its execution135.
Brain mapping is indeed a very helpful technique for the criminal justice system.
Origin
The Origin of brain mapping can be traced back to 1848 when electrical signals
emanating from the brains of animals were discovered. These were further researched till
1870s. For more than 50 years after that no significant work was done in this field. In
1929, oscillating electrical Activity coming from human scalp was recorded by Hans
Berger. Scientists and neuro-psychiatrists studied behavioral problems in children
through Electroencephalograph in 1930s. P – 300 and MERMER (meaning thereby, the
information is present in the brain of the subject) tests were first discovered to detect the
crimes136.
133
Bimaldeep Singh, “Scientific Techniques of Obtaining Evidence”, Law Journal of Guru Nanak Dev
University, Vol. XVII p 92
134
Kaul, Satyendra, Zaidi, Mohd. “Narco-analysis, Brain Mapping, Hypnosis & Lie Detector Tests in
interrogation of suspect” Alia Law Agency, p-188.
135
136
Supra 136 at p- 195
Process137
In brain mapping or p- 300 test, the suspect is first interviewed and interrogated to find
out whether is concealing any information. The Activation of brain for the associated
memories carried out by presenting list of words to the subjects. There are three types of
words in the list used to be mapping test:
Part I consists of neutral words, which have no direct relationship with the case.
Part II consists of probe words directly related to the case and suspected to elicit
concealed information, which all suspects have had opportunity to come to know during
the course of events related to the case.
Part III consists of target, which is not included in first two parts. The words in this part
are based on confidential findings which the suspect does not know.
The Recording of this test is done by acquiring the response to 32 channel E.E.G-ERP
Neuroscan coding system. It is carried out by asking the suspect to sit down and close his
eyes. The 32 channel electrodes are placed according to international system, and 32
discrete electrodes are placed over the scalp directly. While conducting this test twice by
presenting each word in three parts randomly, the suspected instructed to relax and listen
to the words presented in the auditory mode. The test does not expect any call response
from the witness. The conclusion drawn by the experts after the conduct of the test is to
indicate the possession of the knowledge about the relevant subject which is helpful in
the investigation and collection of Evidence. In this case it is also not direct relation of
the body138.
In Ramachandra Reddy v State of Maharashtra139, the court stated that it will be seen that
what is received at the conclusion of such test and whether it is indication of the fact that
the accused or the suspect does not have or is in possession of knowledge about the
subject on which he was questioned. Here, there is no verbal response from the witness.
Except touching the physique of the person but these tests do not involve version of the
body in ordinary sense of the term.
137
Supra Note 135 at p-210
138
Supra 136 at p-211
139
2005 (1) CCR 355
Relevancy and admissibility in the Indian courts
The admissibility of brain mapping in Indian court has to face prohibitive mandates of
Article 20(3) and Article 21 of the Constitution of India. Article 20(3) provides evidence
regarding self-incrimination while Article 21 deals with the right to privacy.
It been held in State of Bombay v. Kathi Kalu Oghad140, that taking thumb impressions or
fingerprints is not covered by Article 20(3) of the Constitution of India and is not self-
incriminating. Self-incrimination means that the accused compelled to give information
from his personal knowledge. In this regard, brain fingerprinting tends to incriminate the
accused and thus should be inadmissible in the court.
In Ramachandra Reddy v State of Maharashtra141 the court said that there is no hesitation
in holding that brain mapping tests can be administered to any accused or a witness.
There is no statement coming out of the involuntary tests, and the conclusions which
came out of such tests are not statement, the conclusions are not proved in any manner to
be even likely to be incriminating to the maker of it, the expert can very well depose as an
expert in relation to the test in court that the brain mapping of the accused or the witness
discloses existence of knowledge about the crime in the brain of those persons
undergoing the test. The protection under the Article 20(3) of the Constitution gives
protection from compulsory testimony, therefore, cannot apply to these two tests. The
court rejected all the contentions in relation to these tests.
It was held in Dinesh Dalmia v State142, the Article 20(3) of the Constitution of India
recognises the right of accused to be silent. The investigating officer came out with a
version that the accused has volunteered to undergo such a test which was disputed by the
accused then.
It was further held in Selvi v. state of Karnataka143 that compulsion under brain mapping
test is Valatie of Article 20(3) and the statement is inadmissible in the court of law and
can be used only as corroborative Evidence.
140
AIR 1961 SC 1808
141
2005 (1) CCR 355
142
2006 CriLJ 2401
143
(2010) 7 SCC 263
Polygraph test
Polygraph means “many writings”. This test is also known as “lie detector test” although
there is no scientific proof that it detects lie. This test works on the principle that our
body goes through changes when we stress to suppress the truth intentionally in situations
to save ourselves from the consequences of telling the truth like change in blood pressure,
heart beat etc.
The polygraph is based on the principle of psycho-somatic interaction of an individual.
This means that psychologically, a change takes place in a person who consciously hold
his feelings, which manifest into psychological changes in his Blood Pressure, pulse rate,
respiration and electrodermal responses. In other words a person after telling a lie gets
emotionally disturbed due to the fear of being detected. This disturbed the feelings and
gets deflected in the form of psychological changes. Hence, it is the fear of detection and
not the guilt which produces measurable psychological and physiological responses144.
Origin
The first attempt to develop a scientific instrument to detect truth or deception was made
as early as 1895 by Lambroso. It was basically designed to record Blood Pressure and
changes in the pulse rate. Later, Larsen and Leonardo Keeler independently designed
instruments with new features to make the instrument more versatile. John Reid, 1947,
further improved the instrument as well as the technique of administering the test. This
instrument is presently considered to be the most practical and effective scientific
instrument available for the detection of truth or deception145.
Process
The polygraph instrument
The polygraph is an instrument which essentially records changes in respiration, Blood
Pressure and pulse. Another unit for recording the galvanic skin reflection (GSR) or
electro-dermal response is also provided. A unit for recording muscular movements and
144
Nabar, B.S., “Forensic Science in Crime Investigation”. Aaia Law House, 3rd Edition, p-341
145
Id at p-340
pressures exerted by the subject’s body is an additional feature of modern polygraph
instrument.
The polygraph is a test attached to the subject under test in the following manner:
(i) One pneumograph tube, provided with a beaded chain, is fastened around the
chest and another around the abdomen of the subject to measure the variation
in respiratory pattern.
(ii) A blood pressure cuff, similar to the one used by physicians is attached to the
subject’s upper arm.
(iii) Electrodes are attached to the hand or index and ring fingers, through which a
weak electric current is passed to measure the galvanic skin reflex.
The subject is made to sit on a chair which records body movements and pressures146.
The questioning technique147
The polygraph examiner asks the subject certain questions with a gap of 15 to 20
seconds. The answers to the questions are expected in a ‘yes’ or ‘no’ form. Not more than
10 questions are put per set. The polygraph examiners practices three type of questioning
techniques:
(i) Irrelevant- Relevant questioning technique- In this technique several irrelevant
questions are framed which have no bearing on the case for involvement of
the subject in the crime under investigation. The relevant questions are
interposed between irrelevant questions which have a direct bearing on the
case, and are likely to draw stressed response from a guilty subject.
(ii) Control questions- These questions are interspersed among the relevant and
irrelevant questions. They do not directly relate to the crime under
investigation, but to a similar situation in which his answer may have a feeling
of concern with respect to either its truthfulness or its accuracy. This
questioning technique is quiet reliable.
146
Id at p-341
147
Id, at p- 341-342
50
(iii) Peak of tension questions- These are framed and some of the important details
of the offence in question are not made known to the subject. The test
questions in this case are framed in such a way that only one question will
have bearing upon the matter under investigation and all other coming close to
the guilty knowledge. The series of questions framed are first read to the
subject and later they are administered with instrument attached. During the
first reading, if the subject has no knowledge or information on the pertinent
question put to him then no tension is built up. But if he has the knowledge
then as the question approaches he is likely to experience the tension and
hence the term “peak of tension”.
Relevancy and admissibility in Indian courts

The results of polygraph test are not admissible in Indian courts. There are no provisions
in the Code of Criminal Procedure, 1973; Indian Evidence Act 1872, and the
Constitution of India to accept the results of polygraph test. Though, the police in India
use it as an aid to interrogation.
National Human Rights Commission guidelines in relation to administration of

lie detector test
The National Human Rights Commission (NHRC) had received a petition dated 12th
May, 1997 from Shri Inder P Choudharie, a resident of New Delhi. He alleged that he
was arrested by the police in connection with a murder and thereafter subjected to various
kinds of custodial torture for a period of 13 days police custody in Shimla, where he had
gone to attend the hearing of a civil suit. He added that he was illegally detained, tortured
and subject to ‘lie detector test’ without his consent after giving him a certain intravenous
drug. He sought an enquiry into the case by the CBI148.
As the complainant had also approached the High Court of Himachal Pradesh and later
the Supreme Court and without any success, the NHRC declined to intervene in the
matter. Subsequent review petition vide its order dated October 1999, the NHRC had
taken up the
51
148
Retrieved from http://nhrc.nic.in/disparchive.asp?fno=167 Accessed on 16. 04. 2018
52
issue of administration of the lie detector test. As the lie detector test, which was
administered to an accused was not regulated by the ‘law’ the NHRC was of the view that
some guidelines should be formulated for the purpose.
After careful consideration of the matter, the NHRC laid down the following guidelines
relating to the administration of the lie detector test.
(i) No lie detector test should be administered without the consent of the accused.
Option should be given to the accused as to the whether he wish to avail the
arrest.
(ii) If the accused volunteers for the test, he should be given access to a lawyer.
The police and the lawyer should explain the physical, emotional and legal
implications of such a test to him.
(iii) The consent should be recorded before a judicial magistrate.
(iv) During the hearing before the magistrate, the accused should be duly
represented by a lawyer.
(v) At the hearing, the person should also be told in clear terms that the statement
that is being made shall not be ‘confessional statement’ to the magistrate but
will have the status of a statement made to the police.
(vi) The magistrate shall consider all factors leading to the detention including the
length of the detention and nature of interrogation.
(vii) The Actual recording of the lie detector test shall be done in an independent
agency (such as the hospital) and conducted in the presence of a lawyer.
(viii) A full medical and factual narration of the manner of information received
must be taken on record.
DNA Test
Every cell contains genetic material known as chromosome which helps to study the
identity. Chromosomes contain a double helical structure call DNA (deoxyribonucleic
acid). The walls of DNA are made up of sugar phosphate and rings are made up of four
pairs ATCG (Adenine, Thiamine, Cytosine and Guanine). DNA analysis of body
substance
is powerful technology that is helpful to establish relationship between two individuals
living or dead149.
The Indian Evidence Act came into field in the year 1872, when there was no appreciable
development of progress in the scientific field, especially to find out the classification of
genes, its effect and correlation of the same genetically identical person. Now the medical
field is very much advanced and by having blood alone, the entire body system could be
scanned to detect the defect. DNA technology comes in handy as a latest tool of forensic
science, emanating from genetic science150.
The coded genetic information hidden in the DNA is unique for every individual. All
billions of cells in the human body come from the multiplication of a single one that is
formed by the fusion of the male sperm and the female ovum. Each cell has an equal
number of chromosomes from the father and the mother. The chromosomes in turn
contain DNA which encodes the person’s unique genetic make-up. Hence, a body can be
identified by a blood sample or even hair, sperm, muscle, nerve or tissue sample151.
The genetic science established the belief that the pattern of the chemical signals i.e., the
genetic structure which may be discovered with the DNA molecule in the cells of each
individual, is unique and different in every individual (except in monozygotic twins)152.
Compared to blood tests the odds of DNA fingerprinting going wrong are one in 30,000
million. The analysis looks for patterns in the samples which reflect the unique genetic
pattern of an individual. As a sequence of base pair constitutes the genetic code
responsible for inheritance, these are matched and paternity can be established153.
Origin
DNA (Deoxyribonucleic Acid) tests form a sophisticated new method to identify human
identity. This test was developed by Prof. Alec Jeffreys in 1985 in England and was later
accepted by the legal system as Evidence. It gained legal Valatie in India in 1989 in a
149
p-152
150
Yashpal Singh and Mohd Zaidi, “DNA Test in Criminal Investigation, Trial and Paternity Disputes”,
Alia Law Agency, p-65
151
Ibid at p- 81
152
153
Anil Kumar v Turaka Kondala Rao, 1998 Cri LJ 4279
paternity case. The fact that the DNA Evidence has been accepted universally proves that
this Evidence is very much attentive, reliable and accurate than other Evidences. In this
21st century such a advanced scientific Evidence is formerly known as DNA Evidence. It
is a powerful tool to detect facts and truth in civil and criminal cases. The DNA
fingerprinting is the latest branch of Forensic science. The DNA tests are conducted by
forensic scientists and their results are termed as export opinion. The DNA Evidence is
more persuasive to the court than any other Evidences such as Eye witness, Oral
Evidence, Circumstantial Evidence etc. because it is the biological facts which cannot be
tempered like other Evidences154.
Process
The DNA profiling technique involves a lengthy procedure155. Following are the steps
involved:
(a) Extraction and purification of DNA from specimen
(b) Defragmentation of DNA using “restriction enzyme”.
(c) Arranging the fragments on the basis of their length by agarose gel electrophoresis.
(d) Transfer of separated fragments to nylon membrane by “Southern blotting”.
(e) Hybridisation with the radio-Active labelled probe.
(f) Visualising the bands of DNA by autoradiography.
A brief procedure for DNA profiling is given below:
DNA is first extracted from a specimen by an elaborate chemical process. It is then mixed
with the special enzyme called “restriction endonucleases” which function as molecular
Scissors- a sort of biological told to cut the DNA at specific sites. The number and length
of the DNA fragments depends on where and how often the enzyme’s base sequence
occurs in the DNA specimen. This fragmentation in length as well as in number varies
from DNA specimen of one individual to another.
The technique of analysis is known as restriction fragment length polyphormism (RFLP).
The restricted fragments are then separated according to size using gel electrophoresis
154
Supra 154 at p- 145
155
Nabar, B.S. “Forensic Science in Criminal Investigation”, Asia Law House, Edition 3rd, p 351
technique. The fragments are put on a gel and an electric current is applied. The shorter
fragments move across the gel faster towards the positive pole than the longer fragments.
This separates the DNA fragments on the basis of their length.
The next step is to transfer the DNA fragments from the gel to a nylon membrane, the
process called as “Southern blotting”. This process fixes the DNA fragments to the
membrane firmly and in the same position. This is followed by hybridisation process.
Hybridisation involves bringing in contract a radioactive labelled probe, which is a
particular type of DNA molecule that binds specifically with its complimentary base
sequence present in the membrane. The probe bound fragments, being radioactive, can
then be recorded on an X-ray plate and this process is known as autoradiography. The X-
ray plate will show dark bands appearing very much like bar code. This, in nutshell, is the
process of DNA profiling. The comparison of the bands in the DNA profiles of different
specimen from the same individual will show similarity, whereas, DNA specimen of two
different individuals will show different DNA band profiles.
More recently, another technique known as Polymerase chained reaction (PCR) has been
developed for DNA profiling. This method is specially recommended where DNA is
insufficient for analysis or it is present in the specimen in a degraded form. This method
is particularly useful to profile a single strand of hair, by extracting DNA from hair for
follicle cells, attached to the root. The PCR method, which takes into account the
sequence variation in small Sections of DNA, can be used to build a computerised
database for more objective interpretation of the result156.

DNA profiling is one of the most reliable scientific techniques in finding the accused and
the paternity issues. It is admissible in the court under Section 45 of the Indian Evidence
Act. Section 53 and 54 of the Code of Criminal Procedure, 1973 provides for DNA
examination of the accused by the medical practitioner
157
In Dharam Deo Yadav v State of Uttar Pradesh (2014), Supreme Court has discussed
the importance of DNA. Supreme Court laid view regarding proper procedure in Lab and
156
Ibid
157
Criminal Appeal No. 369 of 2006
55
admissibility of DNA Evidence in the courts. It also states that Section 53 of the Code of
Criminal Procedure, 1973 lays down provision for the examination at the request of
police officer and it includes DNA profiling.
The courts have highly appreciated the use of DNA technique in criminal cases but while
discussing paternity issues, Section 112 Indian Evidence Act, 1872 lays down
presumption as to the father of the child and DNA profiling is not permissible in all cases
relating to paternity issues.
DNA Test in Paternity issues

The judicial system of India has had stringent views on the matter of usage of DNA tests
in paternity issues. Section 112 of the Indian Evidence Act, 1872 states that the birth
during marriage is a conclusive proof of the legitimacy of the child. This Section further
says that any person, who is born during the continuance of a valid marriage or within
280 days of the dissolution of marriage and the mother remained unmarried, shall be the
conclusive proof of his legitimacy and the man to whom the mother is married or was
married is the father. The only exception being that the parties must show that there was
no access to each other when the child could have been begotten158.
The Section is based on the maxim better is “pateris est quem nuptiae demonstrate”
which means that he is the father whom the marriage indicates 159. The question that arises
with the paternity issues is that of access and non-access between the parties. The courts
have laid down various judgments and the crux is always the same i.e. DNA test which
shall not be conducted as a matter of daily use but in cases where access is proved. The
criteria therefore, state that the access or non-access to each other most be proved by the
parties before taking into consideration the conducting of DNA tests160.
The apex court in Kamti Devi v Poshi Ram161 held that the party who wants to dislodge
the conclusiveness has the burden to show a negative, not merely that he did not have the
opportunity to approach his wife but, that she too did not have the opportunity of
158
Dr Avtar Singh, “Principles of the Law of Evidence” Central Law Publications, Twentieth Edition, 2013
at p-421
159
Monir, M “The Law of Evidence” Universal Law Publishing Co., New Delhi 2014 p- 365
160
Ibid
161
AIR 2001 SC 2226
56
approaching him during the relevant time. Normally, the rule of Evidence in other
instances is that the burden is on the party who asserts positive, but in this the burden was
on the party who pleaded negative. It is the sublime public policy that children should not
suffer social disability on account of the laches or lapses of parents. The court further
held that if there is access between the husband and wife then the conclusive proof under
Section 112 cannot be rebutted whatever be the result of the DNA test. It said that the
Section 112 Indian Evidence Act enacted at a time when the modern scientific
advancements with DNA as well as RNA tests were not even in contemplation of the
legislature. The result of a genuine DNA test is said to be scientifically accurate. But even
that is not enough to escape from the conclusiveness of Section 112 of the Act, For e.g. If
a husband and wife are together during the time of conception but the DNA test revealed
that the child was not born to be husband, the conclusiveness in law would remain
unrebuttable. This may look hard from the point of view of the husband who would be
compelled to bear the fatherhood of a child of which he may be innocent.
But even in such a case the law leans in the favour of the innocent child from being
bastardized if his mother and her spouse were living together at the time of conception 162.
The Court in Gautam Kundu v State of West Bengal163 gave the following guidelines:
1. That the courts in India cannot order blood test as a matter of course.
2. Weather, applications are made for such prayers in order to have roving enquiry,
the prayer for blood test cannot be entertained.
3. There must be a strong prima facie case in which the husband must establish non-
access in order to dispel the presumption arising under Section 112 of the Indian
Evidence Act.
4. The court must carefully examine as to what would be the consequence of
ordering that blood test, whether it will have the effect of branding a child as a
bastard and the mother as an unchastate woman.
5. No one can be compelled to give sample of blood for analysis.
162
Monir, M “The Law of Evidence” Universal Law Publishing Co., New Delhi, 2014, p-365
163
AIR 1993 SC 2295
57
The court in Nandlal Wasudeo Badwaik v Lata Nandlal Badwaik 164 the court held that the
non-access proved by the husband is further approved by the DNA report and thus the
order against him to pay the maintenance to the daughter of the wife was set aside. The
court stated that an innocent child may not be bastardised as the marriage between her
mother and father were subsisting at the time of her birth, but in view of the DNA test
report and the other observations the court cannot forestall the consequence. It is denying
the truth. “Truth must triumph” is the hallmark of justice.
In Rohit Shekhar v Narayan Dutt Tiwari165, the court ordered and compelled N.D. Tiwari
ready to give sample for DNA mapping on account of proved access between him and
Rohit Shekhar‘s mother. The result was kept secret for a long to which the Supreme
Court ordered to make out.
In Dipanwita Roy v Ronobroto Roy166 (2015) Supreme Court said that the matrimonial
courts have the power to undergo the DNA test but power should be exercised only if
there is a strong prima facie case. In this case the lady accused her husband of bigamy
with a woman. The child was born out of it. See she asked for DNA analysis of the child.
The court put down her request as the main concern was that the child may be declared as
illegitimate.
Human DNA Profiling Bill167

The human DNA profiling bill was first released in 2007 and then in 2012 again. The bill
was proposed by Department of Biotechnology. It provides for the national database of
DNA profiles, which will collect data from offenders, suspects, missing Persons,
unidentified dead bodies and volunteers. It will profile and store DNA data in criminal
cases like homicide, sexual assault, adultery and other crimes. The data will be restricted
and will be available only to the accused or the suspect. A person facing imprisonment or
death sentence can send a request for DNA profiling of related Evidence to the court that
convicted him. It has been provided that the DNA database shall be used for the
following purposes:
164
AIR 2014 SC 932
165
AIR 2011 SC 547
166
Civil Appeal No. 9744 of 2014 arising out of SLP (C) No. 5694 of 2013
167
Available at http://www.prsindia.org/downloads/draft-bills/
58
(a) Crime detection
(b) As an Evidence in judicial proceedings
It also lays down penalties for two types of offences:
(i) Any person who intentionally destroys, alters of contaminates the biological
Evidence shall be liable for punishment up to 5 years of imprisonment and
fine of Rs.5 lacs.
(ii) Any person who obtains DNA information through unauthorised means shall
be liable for punishment up to 1 year of imprisonment and fine of Rs.1 lakh.
The bill has been criticized for not addressing the concerns of privacy. The Citizens
forum for Civil Liberties has opposed the bill on privacy concerns and sent a complaint to
the National human rights commission of India in 2012. The A.P. Shah committee
presented a report and said that there should be safeguards to prevent illegal collection
and the use of DNA data. There should also be safeguards to prevent the proposed body
from misusing them. The report also suggested that there should be a mechanism by
which citizens can appeal against the retention of data. There should also be a mechanism
of appeal under which citizens facing the trial can request the second sample to be taken.
The samples must be taken after consent in case of victims and suspects. However,
samples can also be taken from crime scenes. The committee noted that although the bill
allows volunteers to submit samples, there is no proper procedure to obtain consent and
there is no mechanism under which volunteer can withdraw their data. The committee
proposed that before giving the data to a third party, the person must be notified and
consent must be sought, if the third- party is not an authorized agency. The report said
that purpose for which data is being collected should be specified, and the data should be
destroyed after the purpose has been served and the time frame has expired. The report
said that bodies collecting, analyzing and storing DNA data should be made to release an
annual report, detailing their practices trial and organizational structure168.
168
Amitabh Sinha “Understanding the new DNA tech Bill” Available at
http://indianexpress.com/article/explained/simply-put-understanding-the-new-dna-tech-bill-4776304/
August 01, 2017
Recently the government informed the Supreme Court that the bill is to be introduced in
the parliament in the coming Monsoon session169.
Handwriting
Handwriting of a person is his writing, maybe alphabets, words, signature, initials, digits
or figures written in some script or non script form. Further, the writing may consist of
signs, symbols, rubrics, lines etc. It is usually written with the hand. But some people
who are unable to write with their hands, use mouth or foot to hold the writing instrument
and create writings. Such writings are also called “handwriting” in handwriting
forensics170.
It is important Evidence in forgery (by copying writing of other or by charging his own
writing), wills, ransom letter, suicide note, and criminal intimidation.
Handwriting is that one aspect of an individual which keeps on evolving till the age of 15
years, it remains subtle and same till the person turns 60 and after that gradually changes
due to old age and other factors. Handwriting also depends on one’s writing pace, mood,
environment and the material on which it is being written. The technique of gaining
Evidence by handwriting is based on the following principles171.
Principles of handwriting172
(1) It is unique- Handwriting of a person is unique. It is due to the style, the slant, the
page and the way of holding a pen. The different moods and pen pressures also
make the handwriting pattern different from each other.
(2) It is comparable- Handwritings of a person can be compared with those of his
earlier writings or by making him writing again. Handwritings of two persons can
also be compared to differentiate.
169
https://thewire.in/government/dna-profiling-bill-to-be-introduced-in-parliaments-monsoon-session-
centre-to-sc May 01, 2018
170
Sharma, B.R. “Law relating to Handwriting Forensics”, Universal Law Publishing Co., 2012 Edition p-
14
171
Ibid
172
Ltd. 2014, 5th Edition, Reprint 2007, p-562
(3) It is based on the science of probability- The evaluation or compatibility of two
writings is on the probability of similarities and differences. A person or an expert
may give the probable answer of similarity and differences among the two
handwritings.
(4) Time variant- The handwriting of a person changes from the age of three, when he
starts writing and modifies till the age of 16, by which his hands are habitual with
the same pattern of writing and modifies till the age of sixteen, The handwriting
remains stable till the age of sixty, after which it tends to change due to age factor
etc.
(5) Perfect forgery is a myth- This is because no two handwritings even of the same
person can be same. There are natural variations in the writing because mine does
not function in the mechanical way. The factors which influence are mood, speed
or pace, fatigue, lack of care and attention, effect of intoxication, sudden deviation
of attention, variation due to motion (something written in a moving bus), age.
4.5.1.1 Disputed Documents

Disputed documents are also referred to as questioned, false, forged, suspect, challenged
or contested documents. The authenticity or validity of such documents is, rightly or
wrongly, questioned by one or more of the parties concerned with the document. The
beneficiaries profess it to be authentic and valid. Falsification of documents is a big
business. Hundreds of crores of rupees are lost to the con-artist every year in India. The
situation is worse in some advanced countries where the con-artist is also advanced173.
Types of handwriting
Certain types of disputed documents in the Indian courts are174:
(i) Will
(ii) Business documents (contract returns)
(iii) Financial documents (cheques)
173
Sharma, B.R. “Treatise on Handwriting Forensics”, Universal Law Publishing Co., 2012 Edition p-117
174
Ibid at p-122
(iv) Suicide notes
(v) Different types of letters (threat letter, suicide letter, Obscene letter, letter used
for blackmailing)
(vi) Property documents
(vii) False records
4.5.2.1 Grounds of dispute

The disputed documents are so called because they arises some ground of dispute to
which one party claims to exist and one party disagrees. The grounds of disputes which
usually arise are175:
1. Signature
2. Alterations in the document
3. Authorship of the document
4. Whole document is the spurious or fake
5. Date on document is disputed
6. Stamps and seal
7. Alteration of a receipt of multi-sheet document.
Process176
The evaluation process of handwriting is conducted by the handwriting expert or any
person acquainted with the handwriting. Two documents are required for the purpose.
(a) Question document:
The document on which the dispute has arisen that is the disputed document.
(b) Sample document:
The original writing of the suspect or the document purported to be written by him.
The given steps are followed while evaluating the two handwritings:
175
Ishita Chatterjee, “Techno-legal aspects of scientific evidence”, Allahabad: Central Law Agency, First
176
Edition, 2012, P- 34
Supra 175 at p- 191
(1) The question document is magnified and as well as simple document is magnified
five times to ascertain the adequacy of admitted document.
(2) The investigating officer prepares a 5 times enlarged photocopy of both disputed
and standard document.
(3) The investigating officer studies the natural variants in the handwriting and
evolves a master plan.
(4) He determines a range of natural variants.
(5) Observes records and assimilates individual handwriting characteristics from the
standard document.
(6) Fixes data bases for evaluation and comparison.
(7) Locates, generates and compares the corresponding and non-corresponding
characteristics.
(8) He takes photos and prepares illustration charts of prominent and easily
demonstrable Evidence.
(9) He prepares a comprehensive precise report by illustrating the-
(i) Matters or mismatches
(ii) Explain the characteristics through intelligible description
(iii) Gives reasons for his opinion
The comparison made by the export while evaluating the two handwritings is on the basis
of following characteristics:
(a) Style of writing
(b) Pen pressure
(c) Alignment- can be of word, letter and lines.
(d) Spacing between letters
(e) Particular description of letter
(f) Size of letter
(g) Legibility
(h) Any different marks on the pages of account books.
(i) Size of Paragraph and manner of writing
(j) Indent of paragraph.
(k) Use of Punctuation
(l) Use of slangs
Relevancy and Admissibility in the Indian Courts

The Evidence related to handwriting is admissible under Section 47 of the Indian Penal
Code. It has developed as science and requires opinion of the expert.
In Marari Lal v. State of Madhya Pradesh 177, Supreme Court stated that there is neither
rule of law, nor any rule of prudence which has crystallized into rule of law and Evidence
of handwriting expert must never be acted upon, unless substantially corroborated. It is
expedient to record a concurrence there with, though however, hasten to add that since
human judgment cannot be said to be totally infallible, due caution shall have to be
exercised and the approach ought to be that of care and caution. It is only upon probe and
examination upon which acceptability and creditworthiness of the same depends.
In Alamgir v State (NCT Delhi178), the court reiterated what was said in Marari Lal case
but added since human judgment is fallible, care and caution is to be exercised.
There is a new branch of science which is developing known as graphology – study of
personality with respect to handwriting has not attained the status of general acceptance.
Thus has not become tool of forensic science.
In Natabar Behara v Balakrishna Das,179 the court stated that scientific examination
means ascertainment by observation and experiment critically tested and systematized
and brought under a set of principles. Comparison of disputed signatures with the
admitted ones involves specialized skill based on study. It therefore, comes within the
scientific investigation and cannot be done by a layman without having the scientific
knowledge and specialization on the subject.
In Ravjappa v Nilkanta Rao180, the court stated that the science of calligraphy is not a
perfect science and the instances are not rare when even the best handwriting expert has
not been able to find out the forgery.
177
178
AIR 1980 SC 531
AIR 2002 SC 436
179
AIR 1987 Orissa 7
180
AIR 1962 Mys 53
In Pyara Singh v Jagtar Singh181, the court held that it is well settled that the science of
handwriting is not a perfect science. Therefore, Evidence of handwriting expert is
received with great caution.
In Baswarajaswami, In Re182, the court held that it is not necessary to examine the
handwriting expert in every case of disputed writing.
183
The court in Ishwari Prasad Misra vs Mohammed Isa held that Evidence given by
experts of handwriting can never be conclusive, because it is after all opinion Evidence.
In Shashi Kumar Banerjee v Subodh Kumar Banerjee184, “Court stated that expert
Evidence as to handwriting is opinion Evidence and it can rarely, if ever, take the place of
substantive Evidence. Before Acting on such Evidence it is usual to see if it is
corroborated either by clear or direct Evidence or by circumstantial Evidence.
In Ramanlal Rathi v State185, the court held that ‘A’ handwriting expert’s Evidence is of
very little value and the general signature with which the handwriting expert compare the
disputed signatures was merely regarded as genuine because ‘A ‘said it was genuine. The
Evidence of a person acquainted with the handwriting is much more valuable than that of
the handwriting expert.
In Isar Nonia v Karinam Pandey186, the court stated that it is not bound by the expert
opinion which is merely an Evidence in the case and that should be considered along with
the other Evidence and circumstances appearing in a particular case.
Fingerprints
Fingerprints are the oldest form of technique used for investigation. These are found
almost everywhere such as crime scene, weapons, vehicle, passage, dead body, victim
and other objects on the crime scene. These are easy to locate but can be destroyed easily.
The science of taking fingerprint Evidence is based on the following principles187:
181
182
AIR 1987 P&H 93
AIR 1967 Mys 210
183
AIR 1963 SC 1728
184
AIR 1964 SC 529
185
AIR 1951 Cal 305
186
AIR 1958 Pat 353
187
Ishita Chatterjee, “Techno-legal aspects of scientific evidence”, Allahabad: Central Law Agency, First
Edition, 2012, Pg. 155
(i) Principle of individuality: The fingerprints of each individual are unique. The
formation of fingerprints starts in the womb of the mother and they remain
intact till the death of a person. Fingerprints are the most unique feature of a
person, such that not even two identical twins have same fingerprints.
(ii) Principle of stability: The pattern of fingerprints never changes, it remains
same from the birth till the death of the person.
(iii) Principle of probability: The fingerprinting technique is based on the science
of probability. Though new techniques have been invented to examine these,
but the result is always based on probable value of matching point.
Kinds of fingerprints188
(a) Visible prints – are those which are visible to the naked eye. They are generally
made by fingers which are smeared in coloured substances like blood, paint.
(b) Elastic prints- are those which are made on materials such as soap, candle wax or
adhesive tape etc. these prints are to be photographed.
(c) Latent prints- are those which are formed due to sweat, moisture and various fatty
acids secreted by skin. They are also known as chance prints. These are based on
Locard’s principle of exchange. Taking of latent prints depends on the expertise
of the investigating officer.
Different characteristics of fingerprints

The four main characteristics of fingerprints are:
(a) Loop
(b) Circles
(c) Whores
(d) Composite
These are the different patterns made on the fingers by the ridges which are formed of
fatty acids, sweat and salts.
188
Origin
The science of fingerprints developed in India under the patronage of Sir Williams
Harshal. He was administrative officer in West Bengal. Although the use of fingerprints
has been there in ancient Egypt also but its traces in the jurisprudence were not
established until the middle of 19 century. In India fingerprints was widely used in
documents to establish the identity of maker. Sir William developed this technique
scientifically189.
Process
The fingerprint technique is based on the principle of compatibility. The print gained
from the crime scene is matched with that of the suspect. There are number of techniques
to lift the prints from the crime scene such as lifting the whole object, lifting by way of
tapes etc. The latent prints are lifted by the use of number of powders such as graphite,
coal, charcoal, lead carbonate etc190.
The fingerprint of the suspect is taken with the help of roller, glass slab and Ink. The ink
is the spread on the glass slab with the help of the rubber roller and the suspect is made to
give his impressions on the same. Precautions have to be taken while taking the
fingerprints of the suspect such as the hands and a glass slab should be clean, Ink should
be spread evenly on the glass slab, and even pressure must be applied by the suspect on
the sleep191.

The fingerprint technique is admissible in the Indian courts under Section 45 of the
Indian Evidence Act.
Database for fingerprints

The Identification of Prisoners Act, 1920 provides for taking of fingerprints at the time of
admission, if the accused is convicted. The fingerprints are taken on a column for 10
fingerprints and all details (name, case, special characteristics) are mentioned. All slips
are sent to state fingerprint Bureau then to the Central State Bureau. It was very
difficult to
189
Tewari, RK, “History and Development of Forensic Science in India 2000” Available at
http://www.jpgmonline.com/Article.asp?issn=00223859;year=2000;volume=46;issue=4;page=303
190
Ltd. 2014, 5th Edition, Reprint 2007, p- 265
191
Id at p-268
compare it manually so technology was developed in Germany. It is automated
computerized fingerprint recognition system. The system uses image processing and
better recognition technique to capable the code to match the fingerprints including
chance fingerprints. The computer uses pattern and such as Core and Delta and other
minute information for watching the fingerprints. The database is prepared to nab the
habitual offenders and for the identification of prisoners.
In Gade Lakshmi Mangaraju v State of Andhra Pradesh 192, Supreme Court said presence
of fingerprint on the crime scene is positive Evidence but absence of fingerprint is not
enough to foreclose the presence of person concerned at the scene. Hence, absence of
fingerprints is not a guarantee to the absence of person concerned at the crime scene.
Fingerprint Evidence is opinion Evidence. In R v De Georgia193, it was considered
necessary to have the testimony of an expert or other person competent to give an opinion
in a case where the identity of the accused was stabbed list by means of fingerprints.
Footprints
The science of identification of footprints is no doubt a rudimentary science and not
much reliance can be placed on the result of such identification. The track Evidence,
however, can be relied upon a circumstance which along with other circumstances, would
bring to the identity of the culprit though by itself it would not be enough to carry
conviction in the minds of the courts194.
It was stated in Pritam Singh v State of Punjab 195, that the Evidence of trackers and also
the fact that shoes were found in the house of the accused and the impressions made
thereby tallied with the mould’s prepared from the footprints on the spot were even
otherwise enough to establish the identity of the footprints point as that of the culprits.
In Re Oomayan196, the court held that experts in footprints are not recognised by the
Evidence Act, but there can be no doubt that a magistrate is entitled to take into
192
Criminal Appeal 58 of 2001
193
(1934) 3 W.W.R 374
194
p-444
195
AIR 1956 SC 415
196
AIR 1942 Mad 452
68
consideration the Evidence of a person, who has given a footprint and taken the footprints
of the accused and found that they are very similar. That Evidence is not, however,
sufficient to bring home the offence to the accused in the absence of further knowledge
regarding the differences between one foot and another.
It was held in Ganesh Gogei v State197 that Section 45 of Indian Evidence Act does not
include footprints within its ambit. Notwithstanding this omission, the Evidence of
footprint’s expert has been admitted with the qualification, that there should be other
Evidence to bring home the charge to the accused. The rule on the Point is that the
opinion of the footprint expert would not by itself suffice to base conviction on and the
rule has been applied to testimony of other experts including experts on fingerprints.
Considering that footprints as such are not included in Section 45 of the Indian Evidence
Act, it is expedient that the comparison of footprints may be made so that the judge and
jury could see for themselves to what extent the footprint in question coincide.
It was held in Pritam Singh v State of Punjab198 that the track Evidence, however, can be
relied upon as a circumstance which along with other circumstances, would point to the
identity of the culprit though by itself it would not be enough to carry conviction in the
minds of court.
In Re Paramban v Mammudu199, and the case of In Re Oomayan200 the word science
which has been defined in the Universal Dictionary of English language as great
proficiency, dexterity, skill-based on long experience and practice is sufficiently wide to
include the Evidence of an expert.
In the case of State v Kam Gape201, one item of Evidence against B was a blood stained
foot-print on a piece of paper. The prosecution had tried to prove that an impression of
his right foot taken by the prosecution tallied with the bloodstained foot-impression. The
question was considered by Patna High Court on merit without any reference to Section
45 of the Evidence Act. And expert had been examined in court who had given reasons
for identifying the enlarged photograph of the bloodstained footprint with the
impression of
197
AIR 1955 Assam 51
198
AIR 1956 SC 415
199
AIR 1951 Mad 737
200
AIR 1942 Mad 452
69
201
AIR 1954 Pat 131
70
right foot of the accused B. As against K, it was alleged that he led left an impression of
the left palm on the wall. The same export had given reasons for comparison of K’s Palm
impression on the wall with his specimen impression. Patna High Court accepted the
opinion of the expert as against K, again without any discussion of Section 45 of the
Evidence Act.
It was held in Bhulakiram Koiri v State202 that it is unsafe to base a conviction on the basis
of the expert’s Evidence alone regarding footprint or sole print. As considered in the light
of the observations made by the various authorities on the subject and in view of the
principles laid down in the different cases on the point, the science of foot-print or sole
print or off track Evidence appears to be still in an embryonic stage. It may have travelled
beyond the state of crude empiricism but has not yet reached the stage of an exact
science.
4.7.1 Relevancy and Admissibility in the Indian Courts

The opinion of a footprint expert is not admissible as Evidence. If the court is to make
any use at all of footprints impressions, it must be satisfied from a comparison of the
various footprints that they are those of the persons whom the export says they are. The
value of Evidence with regard to footprints is obviously very much less trustworthy than
Evidence with regard to fingerprints. In a fairly good impression of a finger or even in an
impression where only a portion of the finger is shown, there is a wealth of detail
available to the expert and to the court for comparison. One sees in a fingerprint number
of ridges and sweat pores situated along them. In examining a fingerprint therefore, one
not merely compares the general configuration of the finger and all the lines on it, but one
is able to study such my minute details as the bifurcations and junctions of the ridges and
the relative positions of those ridges of the sweat pores.
It was held in Mylaswami Goundan, In Re203 that a person who has made a study of the
prints made by the human foot is better qualified to notice points of similarity or
dissimilarity than one who has made no such study. He is able to lay these points before
the court and from his Evidence in the court drone its own conclusions.
202
37 CWN 467
203
AIR 1951 Mad 737
The court held in Mohanlal v Ajit Singh204, that there is no gainsaying in the fact that a
majority of fingerprints found at crime scenes of crime or partially smudged, and it is for
the experienced and skilled fingerprint expert to say Mark is usable as fingerprint
Evidence. Similarity, it is for a competent technician to examine and give his opinion
whether the identity can be established, and if so whether that can be done on eight or
even less identical characteristics in an appropriate case.
Oomayan, In Re205 the court held that in murder case before lying on the opinion of the
expert as to footprints found should form his opinion with regard to the identity of the
footprints found near the courts with the prints of the accused.
In Shangara Rain v Emperor206, the tracks which were measured three days after the
murder and were examined after some 12 days, would not be much use and the
peculiarities of the footprints would in all probability be obliterated by the physical forces
of nature. Furthermore it appears that close to the dead body, there was a big sheet of
water and it can be understood that the land near the water would be more or less
swampy and the tracks would soon lose their lines and shape.
The Court held in Chanan Singh v Emperor207 that identifications made at night during a
dacoity or when the people are terrorized are generally of very little value. The Evidence
also is not of much importance in this case, as he compared the admitted footprint of
Chanan Singh with the impression that was left on him of the footprints when he first
came to the spot. A Comparison like this made about two months after the occurrence,
where the original tracks were no longer preserved, cannot have much value. The court
held in State v Kanhu Chara Barik208, that the report of export is not conclusive proof.
Evidence of experts after all is opinion Evidence. The opinion is to be supported by
reasons. The court has to evaluate the same, like any other Evidence. The reasons in
support of the opinion, if convincing, make the opinion acceptable. There is no place for
ipso dixit of the expert. It is for the court to judge whether the opinion has been correctly
reached on the data available and for the reasons stated.
204
AIR 1978 SC 1183
205
AIR 1942 Mad 452
206
AIR 1932 Lah 557
207
AIR 1933 Lah 299
208
1983 Cr LJ 133
Ballistics
Ballistics is the study of firearms and explosives. The technique is used in the cases
where terrorist Activities are conducted and where the use of firearms has been made to
cause death or injury.
The Ballistic Expert tries to recognize identity of weapon and trajectory which helps to
know about placement of accused. Trajectory and the weapon that was used in the crime
are studied. The weapon usually leaves a mark on the bullet which helps in matching
both. The technique is used to know the kind of the fire arm used in the crime and also
the database related to weapons and firearms helps to locate the criminal. The trajectory
of the firearm helps in the construction of the crime scene209.
In scientific criminology the main principle of forensic ballistics is to establish whether a
given bullet or cartridge was used in a particular weapon. The scientific knowledge
during the past 30 years in this regard has advanced considerably. It is not possible not
only to tally cartridge fired with the gun used but a number of other important facts can
be decided though with varying degrees of probability210.
4.8.1 Relevancy and admissibility in the Indian courts

The admissibility of Evidence of opinion of Ballistic expert is used in the investigation
procedure. The courts require further Evidence to admit the ballistic report.
In State of Madhya Pradesh v Mishrilal 211 from the post-mortem report as noticed, one of
the witness described the injuries as gunshot and not from the pistol. It is strenuously
urged the counsel that the pistol uses bullets and not chhams. According to him, since six
chamms were found from the chest of the deceased, the shots were fired from the 12 bore
gun and not from the pistol. The appellants however contended that by desi katta, 12 bore
cartridges can also be filed. The prosecution has failed to obtain the opinion of ballistic
expert. The prosecution also did not explain as to whether in desi katta 12 bore cartridges
can also be
209
Dr BR Sharma, “Firearms in Criminal Investigation and trials” Universal Law Publishing Co, Third
Edition, 2002 at p- 91
210
Ibid
211
2003 CrLJ 2312
fired. In the absence of explanation by the prosecution, it is difficult to accept that a Desi
Katta 12 bore cartridges can be fired in the instant case. In the present case, a doubt has
been created as to whether a Desi Katta can also fire 12 bore cartridges, which has not
been explained by the prosecution. As already noticed, Ashok Kumar did not sustain any
injuries on his body. In the ordinary course of human conduct, when his father Mishrilal
is inflicted as many as five injuries which are stated to be dangerous to life, a son is
expected to intervene in order to salvage his father and in the process he would receive
injuries on his body. If he was present at the place of occurrence, the other two sons
Madhusudhan and Jamuna Prasad who were with the father Mishrilal receive simple
injuries. In the FIR lodged by the Mishrilal also, the presence of Ashok Kumar at the
place of occurrence was not mentioned. It is in these circumstances, the presence of
Ashok Kumar at the place of incident is not free from doubt. He must therefore be
entitled to the benefit of doubt.
In Subash Ramkumar Bind v State of Maharashtra 212, the ballistic experts report seems to
go a long way as regards the pistol and revolver recovered from the accused person‘s
possession. The report indicated that the bullets and pieces of bullets retrieved from the
body of deceased were fired from 9MM pistol and 38 calibre revolvers. Bullets and
empties seized under Panchnama exhibit from the sense of offence tallied with the bullets
and pieces of bullets retrieved from the body of the deceased and they were fired from the
9MM pistol and 38 calibre revolver.
In State of Rajasthan v Taran Singh213, the high court relied upon the Evidence of one of
the witnesses, the ballistic expert, from whose Evidence it is clear that it is not possible to
establish whether the firearm used in the attack as alleged by the prosecution was that or
not? This is because of the fact that the investigating agency has not recovered any
empties of the cartridges used in the killing the deceased. The ballistic expert’s Evidence
in this regard only shows that the injury suffered by the deceased could have been caused
from a 12 bore gun of similar nature.
In Ramanathan v State of Tamil Nadu214 the court held that there has been considerable
difference of opinion amongst investigators regarding the use of photograph in court for
212
(2003) 1 SCC 506
213
2004 CrLJ 654
214
AIR 1978 SC 1204
the purpose of illustrating the matching of the makings and while it may be that
microscope photographs, when taken with the due care and in the best of conditions, may
enable the Evidence to be placed on record in a visible form but it cannot be denied that
the court would not be justified in rejecting your opinion of an expert who has examined
the markings under the comparison microscope simply for the reason that he has not
thought it necessary to take the photographs. Where a witness has categorically stated
that he had compared the land and groove markings on the bullets under a comparison
microscope, and he did not think it necessary to take the photographs, it is not possible to
reject his Evidence. The court should consider the data and be convinced of the
correctness of the export opinion.
Skull Super Imposition
Skull superimposition is the technique used for identification of dead. This technique is
used when the skin and muscles have degraded, and only the bones remain intact. This
technique is conducted with the help of computers these days215.
In this technique photograph or probable victim is used to identify with the skull.
Photograph is enlarged to the size of skull and then it is compared with skull to identify
with victim. Identification is done with the help of measuring distance between eyes,
shape of eyes, shape of nose, placement of different organs, and distance between
different organs216.
The technique is used in India during inquest proceedings.
4.9.1 Relevancy and Admissibility in the Indian courts

The Evidence of medical experts either oral or documentary is often taken for the
determining the time of death, the nature of injuries and their causation, toxic effects and
their causation age, assault, rape, paternity and mental condition.
215
Chatterjee, Ishita, “Techno-Legal Aspects of Scientific Evidence”, Central Law Publications, Allahabad,
2012
216
Ibid
74
In State v SJ Chaudhary217, the Supreme Court held that there was a presumption of
updated construction hence every new technique, scientific advancement in any field was
well within the scope of expert in Section 45. The court held science or art in Section 45
of Indian Evidence Act, 1872 has to be very widely construed. The inclusion of finger
impressions in the Section after the Act was passed clearly showed the intention of the
legislator to expand the scope of expert Evidence.
In Parmanand Kataria v Union of India218, the court held that every doctor was bound to
provide medical aid to victims irrespective of the cause of injury. They could not take any
excuse and they should allow the law to operate. This judgement has overthrown all
barriers and the duty to provide medical aid in medico-legal cases is extended to private
doctors. The Court keeping in view of the apprehensions of the private doctor held that
the court should not summon medical professionals to give Evidence unless the Evidence
was necessary and if he was summoned he should not be made to wait inordinately.
Section 291 of the Code of Criminal Procedure, 1973 lays down that the medical officer
must be called upon to give Evidence on matters which have a bearing on the questions to
be decided by the court. Further, he must also be called upon to depose whether the
record made by him in post-mortem examination is true. If the medical officer deposes to
the truth of records made by him, the record itself may be treated as Evidence. If the
doctor is dead or not available for examination then the injury report or post mortem
report it admissible and relevant under Section 31 of Indian Evidence Act 1872. When he
is called upon to depose he will be examined in chief, cross-examined and re-examined if
necessary.
In Pratap Mishra v State of Orissa219, the court held that doctor’s Evidence was more
reliable than that of the extracts from medical books. The doctor’s attention had to be
drawn to the particular passages of the books. Otherwise the court could not draw any
adverse inference.
In Mohammed Zahid v state of Tamilnadu220 the doctor conducting post-mortem had
stated the cause of death as asphyxia and cerebral anoxia cumulative with the other
injuries. The defense on the basis of statements found to that effect in the
authoritative text books
220
AIR 1999 SC 2416
75
217
AIR 1996 SC 1491
218
AIR 1989 SC 2039
219
AIR 1977 SC 1307
220
AIR 1999 SC 2416
76
suggested that the doctor had wrongly concluded the cause of death. Doctor’s attention
was drawn towards passages from various authoritative forensic medicines textbook. The
doctor could not reasonably explain the conclusion drawn for the cause of the death. The
court held that insufficient weightage should be given to the Evidence of the doctor who
contracted the post-mortem as compared to the statements found in textbooks, but giving
weightage does not ipso facto mean that each and every statement made by the medical
witness should be accepted on its value even when it is self-contradictory.
The court in Shamsher Singh v State of Haryana221 held that when there is a conflict
between the medical Evidence and the ocular Evidence the prosecution case should not
be accepted, are of no help to him in this case. On deeper scrutiny of the Evidence as a
whole, it is not possible to throw deposit prosecution case as either false or unreliable on
the mere statement of the doctor that injuries found on the deceased could not be caused
by a sharp- edged weapon.
In Pratap Mishra v State of Orissa222, the court said medical jurisprudence is not an exact
science. Moreover, it is Evidence of opinion where as oral witnesses are stating facts, so
it’s upon the courts to weigh.
In Nilabeti Behara v State of Orissa223 Supreme Court held that the opinion of doctor is of
great weight but it can be discarded if there are sufficient and reasonable grounds for the
same.
In Bala Prasad v state of Bihar224 the court said that there is no universal rule in cases
where there is distinction between ocular and medical Evidence and it is for the court to
see.
Voice Analysis
Voice is the sound produced by the human beings which is articulated to form words and
convert into speech. Voice identification is a tool of forensic Evidence which plays
221
(2002) 7 SCC 536
222
AIR 1977 SC 1307
223
(1993) 2 SCC 746
224
AIR 2007 SC 1019
76
important role in cases such as ransom, extortion, blackmailing through phones,
corruption etc225.
Process
The process of identification of voice is done by two techniques.
(a) Listening
The easiest way to identify voices is by listening. Some people are specially trained to
identify voice by listening. Some people are not trained but may recognise the voice that
they have heard for a number of times.
This technique depends on the listener’s ability to recognise the voice. Listener’s ability
further depends on his familiarity with voice, number of utterance, absence of disguise226.
(b) Voice spectrograms
It is an instrument which converts into visual presentation of frequency and intensity

components. This instrument requires only a limited amount of utterance. When voice is
subjected to spectrographic analysis the sound energy is converted into electrical energy
which operates the stilus and stilus in return creates a trace in form of graph on paper.
The suspects are made to utter a word which is recorded and then it is subjected to
spectrographic analysis. The dispute sound is compared it with sample and analysis is
done on sample. Expert gives his opinion on probability227.

Voice analysis is admissible as documentary Evidence under Section 3 of the Indian
Evidence Act as oral evidence dispensed by witness in court. Voice and tape recorded
Evidence is relevant under Section 6 of Indian Evidence Act and under Section 7 of
Indian Evidence Act. It is admissible as contemporaneous recording. Voice analysis is
not hit by
225
231
Sharma, BR, Scientific Criminal Investigation, Universal Publishing Co. Pvt. Ltd., Delhi, Edition
2006, p-12
77
227
Ibid
78
Section 162 of Code of Criminal Procedure, 1973 and is admissible as corroborative
Evidence.
In State of Bombay v Kathi Kalu Oghad228, 1961 the Court laid down that if fact is not
specifically within the knowledge of accused then court may order accused to give
sample and it will not be violative of Article 20(3).
In Rakesh Bisht v CBI229, Delhi High Court held that if charges are framed then voice
sample can be taken only for establishing the identity. If there is exculpatory then it will
be hit by Article 20 (3).
In Ritesh Sinha v State of Uttar Pradesh230, question before the court was that whether
magistrate can order the accused to give his voice sample for purposes of investigation
under Code of Criminal Procedure, 1973. It was a two judge bench judgment and
dissenting views were given. So the matter was referred to a larger bench. Justice Desai
said that applying the test of Kathi Kalu Oghad’s case which was also followed in Selvi’s
case ordering voice sample is not violative of Article 20(3). Voice prints can be included
in the definition of the term ‘measurement’ as used in Identification of Prisoners Act,
1920 because voice print identification involves measurement of frequency and intensity
of sound waves so it will come within definition of ‘measurements’ in Identification of
Prisoners Act, 1920. Justice Alam gave dissenting view. He said law on voice analysis
should come from legislature and not from the court. It is in some manner violative of
Article 20(3). Law commission in 87th report has recommended that voice sample should
be included in definition of ‘measurements' but no amendment was brought in
Identification of Prisoners Act, 1920.
Admissibility of tape-recorded conversations

In R.M. Malkani v State of Maharashtra231, conditions were laid down for admissibility of
the recorded conversation. Two directions were issued by the court:
(a) Court will find out that it is genuine and free from any tempering and mutilation.
228
1962 SCR (3) 10
229
2007 SCC OnLine Del 13
230
(2013) 2 SCC 357
231
1973 (1) SCC 471
(b) Care and Caution is to be exercised by the court.
In Ram Singh v Col. Ram Singh232, Court laid down the following conditions for
admissibility of tape recorded Evidence.
(a) Voice of speaker should be duly identified by maker of record or others who
recognise his voice. If the maker of voice denies that voice is his then very strict
proof is required to see whether voice was really of the maker or not.
(b) Accuracy of tape recorded statement has to be proved by maker of the record by
satisfactory Evidence.
(c) Every possibility of tempering or eraser of part of voice must be ruled out
otherwise Evidence will become inadmissible.
(d) Recorded Cassette must be carefully sealed and kept in safe and of official custody.
(e) Voice of speaker should be clearly audible and not lost or distorted by other
sounds or disturbances.
(f) The statement must be relevant according to rules of Indian Evidence Act.
In Nilesh Dinkar Praskar v State233, Supreme Court said that tape recorded conversation
are document under Section 3 of Indian Evidence Act and not different from photographs
and are admissible in Evidence provided investigating agency take some stringent
measures.
(a) Voice of the person alleges to be speaking must be duly identified by maker of
record or others.
(b) Accuracy of what was actually recorded must be proved by the maker of record
by direct or circumstantial Evidence to rule-out tempering.
(c) It must be shown to be relevant to the case.
Competency of the police to record the voice without the Identification

of Person
Section 5 of the Indian Telegraph Act, 1985 read with rule 419 of the Telegraph rules,
authorizes the government (Central or state) or any other officer specially authorized in
232
1985 SCC (Sup) 611
233
2011 (4) SCC 143
this behalf, if he is satisfied that it is expedient in the interest and sovereignty of India,
Security of state, friendly relations, preventing incitement for commission of offence,
after recording reasons in writing may order that transmission may be intercepted.
In Bharati Tamag v Union of India234, Court said that test of admissibility lies in
relevancy unless it is expressly mentioned under the Constitution of India or Evidence Act
1872, any Evidence even if it is illegally obtained is not to be shut out.
In State, NCT of Delhi v Navjot Sandhu235, Supreme Court said that if telephonic
conversation is illegally obtained, caution has to be exercised by the court.
Conclusion
India has almost incorporated all the scientific techniques for investigation of crimes yet
the relevancy and admissibility of such techniques is still not a settled rule of law.
Various judgments have been given by the courts but only few techniques have reached
the stage of reliability and admissibility in the Indian courts.
234
235
(2013) 15 SCC 578
AIR 2005 SC 3820
80
CHAPTER -5
CONCLUSION AND SUGGESTIONS
Forensic Science indeed, is a boon for the Indian Legal System. Where, the changing trend
and globalisation has changed the notion of crime, forensic technology has helped in
investigating the toughest of these crimes where there have been no eye witness and only
the scientific technology comes to the rescue of investigating agencies and the judiciary.
In India, it is still at a growing stage. Many, statutory provisions have been interpreted in
the light of scientific technology and Evidence, some problems remain unattended.
Inspite of widespread application and admissibility of the scientific techniques in India,
there is no specific legislation regulating the procuring of Evidence and which can
provide guidelines for the judiciary. There is an urgent need of legislation on these
modern techniques and amendments in existing laws governing scientific Evidence. Also
there is need of proper training regarding forensic science to the investigating agencies.
Most important to consider is that there should be balance between the constitutional
rights and public interest so as to provide accountability and transparency to the cases.
The issues arising in the proper application of forensic science are as under:
Conclusions Drawn
Problems with forensic techniques
Forensic Science has some problem areas which are not taken care of and thus need to be
worked upon more with a view to enhance the field.
(i) Forensic is a science of probability, comparability and progressive change

The Evidence taken by the use of scientific techniques are based on the principles
of probability (it gives a probable stance of things that might have happened thus
is not an exact science), comparability it requires two like things to be compared,
in case of occurrence of any one the technique fails), progressive change (it means
that with the passage of time Evidence changes so its evidentiary value, thus
beyond certain time period it is of no use).
(ii) Lack of Scientific Research to support Disciplines
Once a technique is developed, the research altogether is stopped without
researching it to the perfection. DNA is the only disciple studied completely with
accurate results.
(iii) Cost issues
To conduct research, the major problem lies with the funding areas. As such,
governments are funding highly for nuclear weapons but not much in the field of
forensic science and law.
Problems relating to Forensic Science and the Investigation Agencies
(i) No Uniformity in Application of Forensic Science

There are no specific provisions and as such investigating agencies do not
apply or use forensic techniques in all the cases. This is also on their own wish
and whim.
(ii) Improper and Insufficient Sampling
The investigating agency lacks in expertise related to sampling and
preservation of Evidence, as such, most of the times Evidence is destroyed in
the process of improper sampling.
(iii) Lack of Expert Investigating Officers
The investigating agency in India is usually the police which does not have
any training or expertise in relation to forensic science and Evidence.
(iv) Tampering with Evidence
The principle on which forensic science is established require timely and
proper sampling and preservation of Evidence. Usually, Evidence is tampered
due to delay, and unauthorized access of crime scene by ordinary people.
(v) Ruthless treatment meted out to the victims

The victims of crime are treated ruthlessly by the investigating agencies such
as examination of rape victims.
Legal problems relating to Forensic Science and Evidence
(i) No uniformity in admissibility of Forensic Evidence:

Indian courts till date have no uniform application of Forensic Evidence and
as such the Indian judiciary lacks uniformity in Forensic techniques. Though,
Indian courts follow Daubert guidelines, but it lacks the use of technology as
in US.
(ii) Credibility of Ocular Evidence versus Forensic Evidence:
The courts give much higher credibility to ocular Evidence then forensic
Evidence in India. It is due to the fact that forensic Evidence is based on the
reconstruction theory and circumstantial Evidence whereas eye-witnesses
described the true account.
(iii) Improper Preservation of Evidence:
The court lacks in proper preservation of forensic Evidence, where, reports
and documents related to forensic Evidence are preserved easily, the Actual
Evidence is not properly preserved due to lack of knowledge of court
employees.
(iv) Problems in Paternity issues:
The most important issue dealing with DNA technique is that it is not used to
solve paternity issues. The courts view that this would affect the child but, in
another sense this violates the right and privacy of person not being the father
of the child. The courts have laid various judgements under Section 112 of the
Evidence Act, 1872 but remained quite on the violation of the rights of the
innocent man who is not the father of the child.
(v) Conflicting view on Voice Analysis and Tape-Recording Evidence:

Though Evidence related to handwriting and fingerprints appreciates to the
fullest, new techniques such as voice analysis and tape-recorded Evidence are
still conflicted on legal front.
(vi) Jurisdiction issues relating to Cyber Forensics and Digital Forensics:
Cyber forensics and digital forensics are new to the field of law. The field has
a lot of jurisdictional and extradition issues. Moreover, with the more number
of issues of particular computer, finding the criminal is difficult
(vii) Admissibility issues of Narco-analysis, Brain Mapping and Lie Detector
Test:
Where countries such as US have been using these tests to convict high end
criminals, Indian courts do not allow their use without the consent of the
accused which in most cases hampers the situation and the accused never
consents to the same.
(viii) Forensic Psychiatry:
A new branch of Forensic science is forensic psychiatry which requires
forensic experts to study the psyche of accused and suspected, this field is not
used in India and thus medical and legal insanity of Indian accused is done by
the psychiatrists.
(ix) Adversarial system:
The Indian courts follow adversarial system which does not let the judges do
their work in a proper ambit as the reconstruction of crime is made by the
prosecutor or the investigating agency.
(x) Problem of Forensic Labs:
The forensic experts in forensic laboratories required to test forensic Evidence
are very few in number. Till now there are only three Central forensic labs in
India established at Calcutta, Hyderabad and in Chandigarh which have
expertise in chemical, biological and physical Evidence respectively. And, not
all states have forensic labs. Thus there is a need to increase the number of
forensic lab and experts.
Besides these issues, the major issue relating to collection of Forensic Evidence is
corruption. It starts from the lowest level and reaches till the highest level. Besides this,
the statutory provisions do not clearly segregate the techniques and their evidentiary
value is.
Suggestions
The problems arising in the present scenario require major changes at an immediate level
to fill the lacunas in a short time frame. The suggestions to the issues relating to forensic
science are as such:
1. Scientific techniques should be brought into use once they attain complete
accuracy. The accuracy must not be challenged on the ground of probability. They
must be researched upon until they reach an unmatched reliability.
2. The central and state governments should make separate funds to aid the scientific
research and technology.
3. The central government shall make stringent laws and rules for the application of
forensic science by the investigating agencies.
4. The investigating agencies shall be given proper training as to preservation of
crime and collection of samples.
5. There shall be a separate branch of forensic science experts in every district to aid
the investigating agencies which shall be helpful to avoid tampering of the
Evidence at the crime scene.
6. The victims shall be treated by medical practitioners and involvement of
community must be made to help them overcome the wrath of the crime and to
help in the investigation purposes.
7. The courts must encourage use of scientific techniques which shall be helpful to
avoid delay caused by the oral witnesses and other related issues.
8. The court must consider forensic Evidence at par with ocular Evidence based on
its relevance and importance
9. The ambit of Section 53 of the Code of Criminal Procedure, 1973 should be
widened to include narco-analysis, brain mapping and polygraph tests.
10. Every court must have separate forensics cells for preservation of forensic
Evidence and the employment of experts in this regard shall be must.
11. The DNA Test shall be allowed in the issues related to paternity to avoid the
violation of a person‘s rights, though provisions relating to the legitimacy of the
child shall be refined. The character of the child should remain legitimate.
12. The voice analysis techniques should be included in the definition of
‘examination’ under Section 53 of the Code of Criminal Procedure, 1973. This
technique is helpful in corruption cases and also in terrorist related Activities.
13. Stringent treaties should be entered into by the government to overcome the
jurisdictional issues relating to cybercrimes and transnational organised crimes.
The number of cyber cells shall be increased in every state with expert staff.
14. The new branch of forensic psychiatry shall be introduced to understand the
psyche of a criminal and help in their reformation.
15. The Indian court should not shift from the basic adversarial system to inquisitorial
system. Judges shall be given more powers relating to investigation and enquiry
of the cases and not Act as mere umpires.
16. The state and central government shall increase the number of forensic labs to
curb the problem of delay in investigation and tempering of Evidence.
17. A complete statute relating to forensic techniques, process, staff, and admissibility
must be enacted for proper implementation.
18. Lastly, the public must be made aware of the use of forensic techniques in
investigation of crimes and also be aware of their rights pertaining to examination
as an accused or victim. This will help in avoiding destruction of Evidence at the
crime scene till the arrival of the investigating agencies.
Bibliography
Articles
 Chakraborty, Manisha “Applicability of Forensic Science in Criminal

Justice System in India”
 Dr. Subhas Chandra Singh, “The Truth About lies: Do Lie –Detector Work?”VII
CriLJ161 (2007)
 Muehlberger, C.W, “Police Service- Interrogation under Drug influence” Journal
of Criminal law, Criminology and Police Science, 42
 Nair, Deepti, “Innocents have nothing to fear about Narco-analysis”
 Raut, Santosh, “Development of Forensic Science through Ages”
 Setia, Himanshu, “Evidentiary Value of Forensic Reports in Indian Courts”
Research Journal of Forensic Sciences , Vol. 4(6), 1-7, June (2016)
 T. Murali Krishna,” Polygraph test (Lie –Detector Test) and Truth Serum”
 Tewari, RK “Application of Forensic Science in Criminal Justice Administration
in the Developing Countries” The Indian Police Journal 1999
 Tewari, RK, “History and Development of Forensic Science in India 2000”
Books
1. Chatterjee, Ishita, “Techno-Legal Aspects of Scientific Evidence”, Central Law

Publications, Allahabad
2. Field, C.D., “Expert Evidence- Medical and Non Medical” Revised by Rajesh
Gupta, Edition IV, Delhi Law House
3. Greenleaf, Simon “A Treatise on the Law of Evidence” 16th Edition, Little,
Brown And Company, Boston
4. James, Stuart; Bell, Suzanne “Forensic Science: An introduction to Scientific
and investigative techniques” CRC Press, Taylor and Francis Group, Fourth
Edition, 2014
x
5. Jand, Sarita “Forensic Science and Law” New Era Publications, Faridabad, First
Edition, 2017
6. Kaul, Satyendra, Zaidi, Mohd. “Narco-analysis, Brain Mapping, Hypnosis &
Lie Detector Tests in interrogation of suspect” Alia Law Agency
7. Maithil B. P. “Physical Evidence in Criminal Investigation and Trials”1st
Edition, 2012, Selective and Sceintific Books, Delhi, India
8. Misra, SN “The Code of Criminal Procedure, 1973”, Allahabad: Central Law
Publications, 16th edition, 2009
9. Monir, M “The Law of Evidence” Universal Law Publishing Co., New Delhi,
2014
10. Nabar, B.S. “Forensic Science in Criminal Investigation”, Asia Law House,
Edition 3rd
11. Nanda, BB, Tiwari, RK “Forensic Science in India, A Vision for Twenty
First Century” Select Publisher, New Delhi, 2001
12. Sharma, BR, “Firearms in Criminal Investigation and trials” Universal Law
Publishing Co, Third Edition, 2002
13. Sharma, BR, “Forensic Science in Criminal Investigation & Trials”, Universal
Law Publishing Co. Pvt Ltd. 2014, 5th Edition, Reprint 2007
14. Sharma, B.R. “Law relating to Handwriting Forensics”, Universal Law
Publishing Co., 2012 Edition
15. Sharma, BR, “Scientific Criminal Investigation”, Universal Publishing Co. Pvt.
Ltd., Delhi, Edition 2006
16. Sharma, B.R. “Treatise on Handwriting Forensics”, Universal Law Publishing
Co., 2012
17. Singh, Avtar “Principles of the Law of Evidence” Central Law Publications,20th
Edition, 2013
18. Singh Yashpal, Zaidi, Mohd “DNA Test in Criminal Investigation, Trial
and Paternity Disputes”, Alia Law Agency
Statutes
1. The Code of Criminal Procedure, 1973

2. The Constitution of India, 1950
3. The Identification of Prisoner’s Act, 1920
4. The Indian Evidence Act, 1872
5. The Indian Penal Code, 1860
6. The Information Technology Act, 2000
7. The Prisons Act, 1984
Web Resources
• http://www.westlaw.com
• http://www.jstor.org/
• http://www.manupatrafast.com
• http://www.scconline.com
• https://www.indiankanoon.org
• https://www.netadoctor.co.uk
• http://nhrc.nic,in/disparchive.asp?fno=167
• http://www.forensicsciencesimplified.org/legal/daubert.html
• https://www.universalclass.com/articles/law/types-of-evidence.htm

Forensic Evidence in Courts

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EVIDENTIARY VALUE OF SCIENTIFIC AND FORENSIC

TECHNIQUES OF INVESTIGATION: A CONSTITUTIONAL ANALYSIS

Supervised by: Submitted by:

Dr.Tapan Kumar Chandola Sanjeev Verma

Amity University Lucknow

Dr.Tapan Kumar Chandola

A.K. Gopalan v. State of Madras........................................................................................33

Objective of the study

Significance of the study

Scope and Limitation of the Study

MEANING, CONCEPT AND HISTORICAL BACKGROUND OF

Meaning and Concept of Forensic Science

FORENSIC SCIENCE: CONSTITUTIONAL AND LEGISLATIVE

The Constitution of India

Article 20 (3): Protection against Self- Incrimination

The issue of involuntary administration of certain scientific techniques, namely Narco-

Article 21: Right to Life and Personal Liberty

Article 21 is considered as the heart of the Constitution. According to this,

The Indian Evidence Act, 1872

Section 45- Opinion of Experts

Relevancy under Section 45

Requirements of expert testimony

Admissibility of Evidence under S. 47, 65 and 67 of Indian Evidence Act, 1872

Section 47A: Opinion as to digital signature when relevant

The Code of Criminal Procedure, 1973

FORENSIC TECHNIQUES AND THEIR ADMISSIBILITY

In MP Sharma v. Satish Chandra128, fundamental rule of criminal jurisprudence, ‘right

Brain Mapping Test

The questioning technique147

Relevancy and admissibility in Indian courts

National Human Rights Commission guidelines in relation to administration of

Relevancy and Admissibility in the Indian courts

DNA Test in Paternity issues

Human DNA Profiling Bill167

4.5.1.1 Disputed Documents

4.5.2.1 Grounds of dispute

Relevancy and Admissibility in the Indian Courts

Different characteristics of fingerprints

Relevancy and Admissibility in the Indian courts

Database for fingerprints

4.7.1 Relevancy and Admissibility in the Indian Courts

4.8.1 Relevancy and admissibility in the Indian courts

Skull Super Imposition

4.9.1 Relevancy and Admissibility in the Indian courts

(b) Voice spectrograms

It is an instrument which converts into visual presentation of frequency and intensity

Relevancy and Admissibility in the Indian courts

Admissibility of tape-recorded conversations

Competency of the police to record the voice without the Identification

CONCLUSION AND SUGGESTIONS

(i) Forensic is a science of probability, comparability and progressive change

Problems relating to Forensic Science and the Investigation Agencies

(i) No Uniformity in Application of Forensic Science

(v) Ruthless treatment meted out to the victims

Legal problems relating to Forensic Science and Evidence

(i) No uniformity in admissibility of Forensic Evidence:

(v) Conflicting view on Voice Analysis and Tape-Recording Evidence:

 Chakraborty, Manisha “Applicability of Forensic Science in Criminal

1. Chatterjee, Ishita, “Techno-Legal Aspects of Scientific Evidence”, Central Law

1. The Code of Criminal Procedure, 1973

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