SUBJECT FORENSIC SCIENCE

Paper No. and Title PAPER No.1: General Forensic Science

Module No. and Title MODULE No.33: Legal Standing of Forensic Science

Module Tag FSC_P1_M33

FORENSIC SCIENCE PAPER No.1: General Forensic Science

MODULE No.33 : Legal Standing of Forensic Science
 TABLE OF CONTENTS

1. Learning Outcomes

2. Introduction

3. Forensic Science at Investigation Stage: Permissibility and Extent

4. Evidentiary Value of Forensic Science

5. Summary

FORENSIC SCIENCE PAPER No.1: General Forensic Science

MODULE No.33 : Legal Standing of Forensic Science
 1. Learning Outcomes

After studying this module, you shall be able to know about-

 The significance of Forensic Science in legal viewpoint

 The constitutional intricacies of Forensic Science in fair trial
 The importance and evidentiary value of forensic science in criminal investigation

2. Introduction

Forensic Science involves examination and analysis of objects and substances that have
putative nexus with the crime and thereby provides vital links connecting the criminal to
the crime. Based on Locard’s principle of exchange the examination of physical evidence
left at the crime scene can assist in determining what might have happened at the crime
scene and who was and was not involved. It has immense contemporary significance in
the justice administration system of a nation as it involves evaluation and interpretation
of physical evidence collected from crime scene and therefore helps in location,
identification, recognition and individualization of victims and crime suspects. The
laboratory identification of a material, such as a controlled substance in a drug possession
case, semen in a sexual assault or a volatile liquid in arson, may assist in satisfying a
legal requirement for proving that a crime occurred. Autopsies at homicide scenes will
determine the cause and manner of death and if the death was accidental, suicidal, or
homicidal. It has the capability of providing information about the crime otherwise
unavailable to investigators and fact-finders. However, despite the immense utility of
forensic science to investigation, the contentious questions regarding its permissibility
during investigation and relevancy and admissibility during trial require special attention
as no technological advancement can be allowed to override the rights of accused to fair
trial. These questions can be answered by a careful analysis various provisions of
Constitution of India, 1950, Criminal Procedure Code, 1973, Indian Evidence Act, 1872
and The Identification of Prisoners Acts, 1920.

FORENSIC SCIENCE PAPER No.1: General Forensic Science

MODULE No.33 : Legal Standing of Forensic Science
 3. Forensic Science at Investigation Stage: Permissibility and Extent

The main purpose of investigation is to collect evidence by police. In modern times the
process by its very nature must enlist the services of several scientific disciplines.
Information relevant to the process comes to the police in different ways and in gathering
scientific evidence, different types of coercion may have to be applied. But then we are a
country governed by Rule of Law. Though there is no problem in collecting physical
evidence from crime scene and sending it for laboratory analysis but many a times to
obtain evidence from the person of accused person or for the purpose of matching the
samples obtained from crime scene the suspect/ accused need to submit him for various
tests at the behest of investigative agencies. Herein Article 20(3) and Article 21 of
Constitution of India which confer valuable rights against self-incrimination, right to life
and personal liberty including right to privacy, personal autonomy and right against
torture respectively on the person of accused person come into play. Therefore before any
forensic test can be ordered it must firstly, be authorised by an express provision so as to
satisfy the constitutional prerequisite of “due procedure established by law” and
secondly, the said provision of law providing for such forensic tests must stand the
scrutiny of the constitutional embargo. Various relevant provisions authorising some
specific or general form of forensic tests at the stage of investigation are as follows:
 Section 4, The Identification of Prisoners Acts, 1920 empower police officer to take
measurements of certain non-convicted persons; and Section 5 of the same law
permits photographs of an accused person to be taken for the purpose of
investigation. However the Act has a limited scope and as was deliberated in Ritesh
Sinha v State of UP it is highly doubtable whether measurements under the Act
would include voice samples.
 Section 53 of CrPC empowers examination of accused by medical practitioner at the
request of police officer and section 53A empowers examination of person accused
of rape by medical practitioner. Under this section examination includes the
examination of blood, blood stains, semen, swabs in case of sexual offences, sputum
and sweat, hair samples and finger nail clippings by the use of modern and scientific
techniques including DNA profiling and such other tests which the registered
medical practitioner thinks necessary in a particular case. In Kathi Kalu Oghad, the
prosecution adduced in evidence a chit stated to be in the handwriting of the accused.

FORENSIC SCIENCE PAPER No.1: General Forensic Science

MODULE No.33 : Legal Standing of Forensic Science
 In order to prove that the chit was in the handwriting of the accused, the police had
taken specimen signatures of the accused while he was in police custody.
Handwriting expert opined that the chit was in the handwriting of the accused.
Question was raised as to the admissibility of the specimen writings in view of
Article 20(3) of the Constitution. The High Court had acquitted the accused after
excluding the specimen writings from consideration. Conscious of the fact that the
taking of impressions or parts of the body of an accused person very often becomes
necessary to help the investigation of a crime the court gave a narrow interpretation
to the term “to be a witness” thus clearing the constitutional hurdle and paving the
way for use of such tests for purpose of investigation. But the problem comes with
the forensic tests or techniques not expressly mentioned in the said section. For
instance the question relating to voice samples as permissible under Section 53 CrPC
is pending adjudication before a three judge bench of Hon’ble Supreme Court of
India as in Ritesh Sinha v State of UP the two judge bench was equally divided on
the opinion. Also insofar as other prominent methods like Narcoanlaysis, Polygraph
Examination and Brain Electrical Activation Profile the Apex Court in Selvi and
others v. State of Karnataka reiterated the distinction between physical evidence and
testimonial acts and held only the former category as permissible under law. The
latter category is permissible only if they are voluntary and with express consent of
the person concerned. Court acknowledged that the substances mentioned in
Explanation (a) to Section 53 are examples of physical evidence and, hence, the
words “and such other tests” mentioned therein should be construed to include the
examination of physical evidence but not that of testimonial acts. It has been held
that the compulsory administration of the impugned techniques violates the ‘right
against self-incrimination’.
 Section 311A CrPC empowers the magistrate to order person to give specimen
signatures or handwriting to aid in investigation.

4. Evidentiary Value of Forensic Science

The purpose of investigation is to collect evidence. However, the entire evidence

collected by investigative agencies cannot be received in evidence unless and until it is
relevant i.e. the fact must be relevant under any of the Sections from section 5 to 55 of
the Indian Evidence Act. It is submitted that under section 7 and Section 9 of the Indian
Evidence Act the forensic techniques and its results can be considered to be relevant.
Section 7 makes facts which are the occasion, cause or effect of facts in issue as relevant.

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MODULE No.33 : Legal Standing of Forensic Science
 So this section makes physical evidence collected from crime scene and also struggle or
injury marks relevant as it is the effect of the crime. Further under Section 9 facts which
identity of anything or person whose identity is relevant, or fix the time or place at which
any fact in issue or relevant fact happened. Since the purpose of many forensic
techniques is to establish the link between victim, offender and place of crime they
become relevant under the before mentioned sections.

Also under section 45 of Indian Evidence Act, 1872 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 then the opinion of experts becomes relevant. For instance if the
question is whether the death of a deceased was due to ante mortem hanging or post
mortem drowning then the opinion of expert becomes relevant. So, forensic experts can
be called in the court to explain various nuances of scientific investigations and their
conclusions. In fact the term “science” appearing in section 45 has been given a wide
interpretation as is sufficient to include the opinion of a person especially skilled in the
use of typewriters and having the scientific knowledge of typewriters. In such cases the
expert in question needs to be made a witness in the trial proceedings because according
to Section 60 of Indian Evidence Act if the evidence refers to an opinion or to the
grounds on which that opinion is held, it must be the evidence of the person who holds
that opinion on those grounds. Such an expert witness can be cross examined by the other
party.

However, the duty of the expert is merely to assist the court in finding the truth and he is
no substitute for the Judge. An expert deposes and not decides. His duty `is to furnish the
judge with the necessary scientific criteria for testing the accuracy of his conclusion, so
as to enable the judge to form his own independent judgment by the application of these
criteria to the facts proved in evidence. A Court is not bound by the evidence of the
experts which is to a large extent advisory in nature. Generally the courts have followed a
cautious approach and have been reluctant to base conviction merely on basis of expert
testimony. The view occasionally expressed that it would be hazardous to base a
conviction solely on the opinion of an expert-handwriting expert or any other kind of
expert-without substantial corroboration is not, because experts in general, are
unreliable witnesses, but because all human judgment is fallible. The more developed
and the more perfect a science, the less the chance of an incorrect opinion.

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MODULE No.33 : Legal Standing of Forensic Science
 An expert opinion has to be tested by the acceptability of the reasons given by him.
Reasons for the opinion must be carefully probed and examined. All other relevant
evidence must be considered. In appropriate cases, corroboration may be sought. In cases
where the reasons for the opinion are convincing and there is no reliable evidence
throwing a doubt, the uncorroborated testimony of a handwriting expert may be
accepted. If the report of an expert is slipshod, inadequate or cryptic and the information
of similarities or dissimilarities is not available in his report and his evidence in the case,
then his opinion is of no use. It is required of an expert whether a government expert or
private, if he expects, his opinion to be accepted to put before the court the material
which induces him to come to his conclusion so that the court though not an expert, may
form its own judgment on that material. Indeed the value of the expert evidence consists
mainly on the ability of the witness by reason of his special training and experience to
point out the court such important facts as it otherwise might fail to observe and in so
doing the court is enabled to exercise its own view or judgment respecting the cogency of
reasons and the consequent value of the conclusions formed thereon. The opinion is
required to be presented in a convenient manner and the reasons for a conclusion based
on certain visible evidence, properly placed before the Court. Expert evidence can also be
used as corroborative evidence to support or rebut the prosecution story. An expert
report, duly proved, has its evidentiary value but such appreciation has to be within the
limitations prescribed and with careful examination by the Court. A complete
contradiction or inconsistency between the medical evidence and the ocular evidence on
the one hand and the statement of the prosecution witnesses among them on the other,
may result in seriously denting the case of the prosecution in its entirety but not
otherwise.

Under section 293 of CrPC the report of certain specified Government Scientific experts
upon any matter or thing duly submitted to him for examination or analysis can be used
in evidence without examining the author thereof. But a Court is not bound to accept and
act on a report as conclusive evidence of its contents. Evidence though relevant may still
be inadmissible in the Court of Law. In case of forensic science the inadmissibly of
evidence is inextricably intertwined with the method involved. With respect to the
evidence of sniffer dogs the courts have held it to be inadmissible In Dinesh Borthakur v.
State of Assam, (2008) 5 SCC 697, Supreme Court held “the law in this behalf, therefore,
is settled that while the services of a sniffer dog may be taken for the purpose of
investigation, its faculties cannot be taken as evidence for the purpose of establishing the
guilt of an accused.”

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MODULE No.33 : Legal Standing of Forensic Science
 In Selvi v State of Karnataka the apex court held that in case of narco analysis, polygraph
examination and the Brain Electrical Activation Profile even when the subject has given
consent to undergo any of these tests, the test results by themselves cannot be admitted as
evidence because the subject does not exercise conscious control over the responses
during the administration of the test. However, any information or material that is
subsequently discovered with the help of voluntary administered test results can be
admitted, in accordance with Section 27 of the Evidence Act.

In cases where the paternity of child is disputed though DNA techniques can be prove to
very useful but they are generally not receivable in evidence because of the conclusive
bar contained in Section 112 of Indian Evidence Act. Further DNA test cannot be ordered
without the consent of the subject in question .However, of late the courts have tried to
maintain a balance between the protection of a child from being bastardized and truth as
evidenced through scientific techniques. So proof based on a DNA test would be
sufficient to dislodge, a presumption under Section 112 of the Indian Evidence Act.

5. Summary
 Truth must triumph is the hallmark of justice and the truth can be established
through various forensic tests and therefore contribute immensely to justice
administration system.

 Notwithstanding the legislative disinterest and lacunas to keep law abreast with
modern science and technology the Courts have allowed such techniques to
become an integral part of investigation and also received the reports thereof in
evidence while not compromising the rights of an accused to fair trial.

 Despite the near accuracy of scientific reports the courts though have allowed the
scientific reports but have been reluctant to accept them as sole basis for
conviction and therefore seek corroboration.

 There is an urgent need to revisit the principles of contained in Indian Evidence

Act to give more weight to scientific results.

 The acceptance of scientific results as conclusive will not only ensure speedy trial
but also ensure that the accused do not take undue benefit of “lack of credible
evidence” as ground of acquittal.

FORENSIC SCIENCE PAPER No.1: General Forensic Science

MODULE No.33 : Legal Standing of Forensic Science