NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

RANCHI

Research Paper on:

"DNA's Revolution in Criminal Investigation: Advancing India's Criminal
Justice System"

Supervised by: Submitted by:

Mr. Shubham Srivastava Abhijeet Anand
Assistant Professor Sem- I (LLM)
Roll no: LM238
 ABSTRACT

The present article conducts a hermeneutic research on DNA as a forensic technique. DNA is
an abbreviation of Deoxyribo nucleic acid. It’s an organic substance which is found in every
livingcellandgivesanindividualapersonalgeneticblueprint.Itcanbeextractedfromblood, saliva,
semen, hair, bones and other organs of the body. DNA technique now enjoys legitimacy all
over the world. This technique helps the identification of criminals on scientific lines.
However this technique requires great care and caution. DNA is essentially made upon
famino acids and it’s matched with so called bases which provide the key to determining the
genetic blueprint. Each and every cell in the human body has a sample of DNA. Presently,
there is no concrete law, specific law to govern the admissibility of forensic technique
however the courts of law derives the validity of forensic technique from various provisions
of CrPC and Evidence Act. The present article will examine the role of DNA in criminal
investigation and also analyses the increasing role of DNA identification in the Indian
Criminal Justice System. This paper also reflects the constitutional validity of DNA in
Criminal Justice System.

1
 INTRODUCTION

“We must be vigilant in our actions towards criminals and innovative

in our approach towards solving crime”

—Thomas Menino

With the development of science and technology, crime manifests itself in fresh ways
and more modern ways of carrying it out. Our criminal justice system's motto is to "prove the
accused's guilt beyond a reasonable doubt" and "protect the innocent from being wrongfully
convicted." Because of this, it is essential that the investigative procedures in our legal system
rely on contemporary technologies. Ballistics, digital forensics, DNA testing, narcotics
analysis, forensic anthropology, toxicology, pharmacology, voice analysis, speaker
identification, and other methods and techniques are used in forensic science. All of these
divisions are employed in the detection of different crimes, with DNA testing being one of
the most significant methods now in use.

Converting doubt into a reasonable assurance of guilt or innocence is the primary

purpose of scientific inquiry. On the one hand, the use of science in the criminal justice
system is crucial to convicting the guilty and protecting the innocent from unfair judgment.
But, because the use of these procedures is prone to human error, relying only on scientific
methodologies may have a negative impact on impartial research. Today's judicial system
frequently needs to cope with cutting-edge scientific information, which presents significant
legal issues. Many of these difficulties stem, at their core, from the fundamental distinctions
between the legal and scientific systems. Even if scientific evidence claims to be incredibly
exact, it is unjust to leave the legal system open to the possibility of ambiguity. Furthermore,
it is questionable if our judges and attorneys have the necessary knowledge to evaluate and
understand the evidence in order to draw just conclusions from specific circumstances.
Western nations have already established a jurisprudence that combines intellectual and
practical strength, and they have started using this method often to settle complex issues. India
is continuing employing this method more frequently than previously, despite disagreements
and arguments over the legitimacy of these tests among different societal segments. These
instruments have been widely accepted in the legal discourse. The scientific method similar to
DNA has become the most potent branch.

2
In instances like the assassination of Rajiv Gandhi and the Abdul Karim Telgiand Maumitrail
bombing, the legal system heavily depended on scientific instruments. The scientific testing that
the investigating authorities carried out enabled them to solve these instances. The argument
that a significant amount of assistance from the accused is necessary is the basis for discussions
and disagreements over these procedures. Such collaboration is frequently of an involuntary
character and may not always be consensual.

The legitimacy of these tests is not clearly established in our rulebooks, thus courts have
frequently encountered difficulties in evaluating these scientific evidences. While the courts'
verdicts are indisputable, the value of these evidences has been limited. They haven't been
utilized to support an accused person's conviction at first glance.

ADMISSIBILITY OF DNA IN INDIA

The potency and promise of DNA technology are still not well known in India. The
fact that this method isn't yet included in the Evidence Act is one of the main shortcomings in
this respect. The core tenet of evidence law is that witnesses should only declare facts that
they are aware of, and the court has the authority to establish opinions on any subject under
investigation. On occasion, nonetheless, the Court is unable to reach a decision on a matter
without the assistance of individuals who possess unique knowledge, expertise, or talent in a
field that goes beyond what most men have experienced. In such cases, the Evidence Act's
Section 45 permits conclusions formed from a collection of acts by very experienced
individuals to be entered as evidence.

DNA typing is considered an expert witness by the judiciary, and it may only be
accepted in accordance with Section 45 of the Evidence Act. India's current situation is
vacillating between two aspects. The legal community is unsure about DNA fingerprinting's
admissibility and applicability under the Indian Evidence Act of 1872, whereas forensic
agency personnel and the scientific community believe it offers a quantum leap in crime
detection. The question of whether a suspect, or for that matter anybody, can be forced to
give a blood sample for testing.1 The uncertainty also prevails about whether possible testing
would be considered a violation of Article 20(3) of the Constitution, which protects every
citizen from providing

1
Subhash Chandra Singh, DNA Profiling and the Forensic Use of DNA Evidence in Criminal Proceedings 53JILI
195 (2011).
3
self-incriminating evidence. It has become evident in recent years, through the ruling in at
least couple of important cases, that no individual can be forced to give blood samples under
the existing laws.2

Indian courts have acknowledged DNA experts' testimony. In contrast to the paternity
issue domain, whereby there appears to be some discussion within the criminal law sector,
Indian courts have quickly accepted DNA evidence. However, as of yet, no one has been
found guilty based just on DNA evidence.

One instance of the application of DNA profiling/fingerprinting evidence being used

to convict the accused persons can be seen in the case of Chandra Devi v. State of Tamil
Nadu.3 This sensational case involved the rape and murder of several teen age girls in the
Ashram of a god-man Premananda alias Ravi, by the god man and his accomplices.

In a lengthy judgment the Madras High Court considered 4 important questions:-

1. Whether the scientific community generally accepts the DNA evidence?

2. Whether the testing procedure used in this case is generally accepted as reliable, if
performed properly?

3. Whether the tests were performed properly in this case?

4. Whether the conclusion reached in this case is acceptable?

The court commented on the extent to which courts in the US have relied on DNA
analysis evidence in response to the first issue. The answers to the second, third, and fourth
questions were all in the positive, and the accused were found guilty on a number of counts
based on the testimony of DNA profiling specialists and other evidence.
However, in another case M.V. Mahesh v. State of Karnataka4, the Court acquitted the
accused, one of the grounds being that the requisite amount of DNA of high molecular weight
was not present so as to make the test results sufficiently conclusive and accurate. The Court
further went on to say that the DNA test was not a fool proof one and also commented on the
fact that there were no national standards set or established for DNA testing in India.

2
Ibid.
3
2003 Cri LJ 280.
4
1996 Cri LJ 771.
4
 Such scrutiny of the DNA testing procedure is commendable and any benefit of doubt
arising from malpractices or irregularities in the scientific processes involved ought to go to
the accused murder, rape, and kidnapping, offences against body or unsolved cases that were
previouslythoughtunsolvablemaycontainvaluableDNAevidencecapableofidentifyingthe
perpetrator.5

Ordering the test for DNA by court- the issue of taking biological sample of the subject is
a vital issue in forensic analysis since it may affect privacy or invade bodily integrity of a
person resulting in compromising with the rights to life with dignity. In Rudresh @
Rudrachari v. State of Karnataka6, The question was whether a court may mandate the
conduct of scientific tests like DNA as allowed by Section 53A of the Code of Criminal
Procedure, 1973 (Cr. PC), or if it was only restricted to requests made by police officers
ranking at or above the position of sub-inspector to refer cases to medical professionals for
DNA testing. The Karnataka High Court went on to say that the court's main responsibility is
to find the truth. Therefore, it is untrue to state that a court or magistrate cannot demand that
an accused person undergo a formal examination as permitted by sections 53 and 54 of the
code. In addition to Section73, there were two other provisions resting on the same principle,
namely Section165, Evidence Act and Section 54, The Code 1898 which between them invest
the Court with a wide discretion to call and examine anyone as a witness, if it is bonafide of
the opinion that this examination is necessary for a just decision of the case.7 Drawing of the
blood sample for the purpose of civil proceedings without the consent of the party is not
desirable. But drawing of the blood sample for detection of the offence of rape wherein the
investigating agency has to establish its case beyond reasonable doubt cannot be termed as
violative of Article 20(3) of the Constitution.

DNA EVIDENCE IN CRIMINAL TRIALS

Indian courts recognise identity established by DNA evidence. Any sample of tissue,
including blood or semen, can be used for DNA testing. These might be found at the crime
site or from witnesses. When a DNA test is done, a profile of the DNA is taken. DNA
profiling refers to the identification of particular parts of the DNA.

5
Subhash Chandra Singh, DNA Profiling and the Forensic Use of DNA Evidence in Criminal Proceedings53
JILI 195 (2011).
6
2014(3) Crimes 575 (Kant.); 2014(4) KarLJ 442: 2014(4) KCCR 3405.
7
Henry Roberts Jane Taupin and Tony Raymond, The Role of DNA Profiling in Criminal Investigation
https://pdfs.semanticscholar.org/ebee/75a0253132ff6ac72035752c0f917e918261.pdf.
5
The profile from the sample can be compared to a suspect’s DNA profile to see if they match.8

DNA typing has proved a boon for the defence as well as the prosecution in criminal
and civil litigation. The current utility of DNA analysis to the criminal justice system arises
from the comparison of DNA from two sources, such as DNA from a crime scene and DNA
from a suspect, to determine the relationship between those sources. DNA typing explicitly
recognizes the probabilistic nature of “matching” DNA sequences. Population genetics theory
derives probabilities of randomly matching DNA sequences across different reference
populations; no such statistical databases have been developed for the other forensic
sciences.9 Underlying the forensic sciences is the idea that people have unique physical
attributes, such as fingerprints, handwriting, and bitemarks. Such a claim is based on an
assertion that “nature never repeats”.10

DNA testing acknowledges the impossibility of providing an absolute identification

declaration and expressly depends on the existence of a database derived from the general
population in order to identify an individual. Thus, there is no solid scientific evidence to
support the claim that "nature never repeats." In the absence of evidence to the contrary, the
alternative hypothesis—that people share several traits—is more scientifically sound and
should be recognized by the courts instead of the theory without empirical basis..11

Malimath Committee Report on DNA Test

In respect of DNA test the Malimath committee report submitted that:

i. Section 313 of the Criminal Procedure Code has to be changed as well in order to hold
the accused accountable if he refuses to provide any pertinent information.so making it
simple for law enforcement to utilize DNA testing against him.

ii. A specific law should be enacted giving guidelines to the police setting uniform
standardsforobtaininggeneticinformationandcreatingadequatesafeguardstoprevent
misuse of the same.

8
Gajendra K Goswami , Forensic Law,
https://www.researchgate.net/publication/294646027_FORENSIC_LAWS.9
Ibid
10
Erica Beecher-Monas, Evaluating Scientific Evidence: An Interdisciplinary Framework for Intellectual Due
Process https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1071014.
11
Ibid.
6
 iii. A national DNA database should be created which will be immensely helpful in the
fight against terrorism.

iv. More well-equipped laboratories should be established to handle DNA samples and
evidence.

v. Efforts should be taken to create more awareness among general public, prosecutors,
judges and police machinery.

Some of the major observations by the Indian higher judiciary on DNA for advancing
justice during 2015 have been discussed in the following paragraphs. Ram Kishan v. State of
NCT Delhi12 was a case of kidnapping for ransom followed by murder of the kidnapped
person by hitting on head with a stone, where one of the accused was apprehended while he
was dropping the third ransom letter at the gate of the house of the deceased victim. The
forensic report of handwriting expert established the writing on ransom letter connecting it to
one of the accused. The decomposed dead body was recovered under section 27 of the Indian
Evidence Act 1872, and was identified by DNA match as that of the missing person. The
defense contended that absence of blood stains of the deceased on the seized pant and slippers
of the accused prove his innocence because if he had been hit with a stone by the accused in
the manner claimed by the prosecution, blood- stains would have been inevitable on his
person. The High Court of Delhi, after appreciation of entire chain of evidence, upheld the
conviction order of the learned trial court and dismissed the appeal. In State of Uttarakhand
v. Deepak Arya,13 a blind rape cum murder case of an eight years old girl child, the
prosecution theory was based entirely upon DNA evidence. Blood samples of several
suspects were collected and DNA profile of accused was found matching with the DNA
obtained from the vaginal wash and swab of the deceased victim. The judge was pleased to
hold the appellant accused guilty and considered the case within the category of “rarest of
rare”, for awarding a death penalty. The High Court of Uttarakhand relied upon the
observation of the apex court on in fallible

12
III (2015) CCR 72 (Del.): 2015 (3) Cri CC 456.
13
2016 (95) ALL CC 73: 2016 CriLJ 98: 2015 (3) N.C.C. 314: 2016 (1) UC 763.
7
Veracity of DNA profiling, as stated in the case of State of Uttarakhand v. Deepak Arya.14
Since the accused had lifted the naked dead body of the victim from the field and covered her
with his shirt hence he came in contact with the dead body. The moot question before the
court was whether accused was in touch with the victim when she was alive or he had
posthumously come in her contact? On this point forensic expert opined: The dead skin cells
can be a source of DNA. The body has its regular process to create the new cells and
discarding dead cells and in the circumstance there is a probability if the body is touched with
the other individual’s body, transfer of dead cells would occur to the body of other person.
The hairs without root are not useful for DNA test. The saliva contains DNA if sufficient
numbers of cells are present in saliva and again in the sweat, sufficient numbers of dead cells
are present, there remains a probability of DNA for test.

In Budha v. State of NCT Delhi,15 an appeal was preferred against the order of conviction
for life in a murder case based on reliable evidence including DNA matched with bloodstains
found on the clothes of the deceased and weapon used for offence which was recovered under
section 27 of the Indian Evidence Act,1872. The High Court of Delhi dismissed the appeal by
placing reliance on DNA report proving guilt of accused beyond reasonable doubt. Similarly,
in a case of kidnapping of a mentally and physically challenged 8 years old girl child from the
custody of her mother followed by rape and brutal murder by smashing her head, the trial
court convicted and awarded death sentence to the accused. DNA of the victim matched with
the blood samples collected from the clothes of the accused and blood-stains found on
motorcycle used for carrying the child. The prosecutrix of Rohit Bansal v. State of NCT
Delhi16 alleged her paramour and his friend of raping her on several occasions and
blackmailing with the photographs clicked at the time of committing rape. Eventually, once
the investigation's gear was put into action, an alleged rape photograph was found at the
accused's home.

Procedural Lapse on Collection of Samples

The Indian Supreme Court has also made decisions about the admissibility of evidence
gathered during investigations without adhering to the required processes outlined in the
criminal law.17 In State (NCT of Delhi) v. Navjot Sandhu,18 the court had opined that even

14
(2009) 14 SCC 607.
15
IV (2015) CCR 468 (Del.): 224 (2015) DLT 345.
16
2015 VI AD(Delhi) 566.
17
RM Malkani v. State of Maharashtra (1973)1SCC473.
8
If the evidence is illegally obtained, it is admissible. The appellant in Deepak Nanda v. State
(NCT of Delhi),19 challenged the integrity of chance fingerprints lifted from the scene of
crime of triple murder with house robbery. Signature and writing are excluded from the range
of section5 of the Identification of Prisoners Act, 1920 but finger impressions are included in
both section 73 of the Indian Evidence Act, 1972 and section 5 of the Act, 1920.

LEGISLATIVE FOUNDATION

The Human DNA Profiling Bill 2015 in India aims to create a national database of offenders,
including murders, kidnappers, and rapists. However, the proposed draft is facing criticism
for a number of reasons, including authorizing invasive methods of sample collecting and
being oblivious to privacy considerations. The 12-year-old draft was created by the
Department of Biotechnology in collaboration with the independent organization, the Center
for DNA Fingerprinting and Diagnostics (CDFD). However, global activist organizations
keeping an eye on the advancements in genetic technology, such as Gene Watch UK, the
Council for Responsible Genetics in the United States, and online groups like the Forensic
Genetics Policy Initiative (FGPI), claim that not enough protections are included into it.

Too large and sweeping- The proposed bill's visualization of the DNA databank shows six
categories, ranging from suspects to missing individuals. The final bill's offenders' index may
even include infractions that are considered minor, including those covered by the Motor
Vehicles Act. They possess boundless authority to broaden the range of individuals from
whom data is gathered. Any evidence handled by humans is prone to carelessness, intentional
deception, and mistake; the likelihood of mistakes increases with the amount of DNA
obtained.

Privacy problems unaddressed- According to Gruber and other opponents, the proposed
law does not address privacy concerns. This is especially true for those who are neither
suspects or criminals. The Schedule and definition of "volunteers" encompass a wide range of
innocent citizens, including children and the mentally incapacitated, while the definitions of
victim, offender, and suspect broaden the bill's application to a wide range of potentially
innocent people involved in the criminal justice system.

18
(2005) 11 SCC 600.
19
2015 Law Suit (Del) 5512.
9
 The best course of action would have been to adopt a privacy legislation prior to the DNA
bill, but that is unlikely to occur given the Attorney General's recent argument that the
Supreme Court's recent ruling did not establish a fundamental right to private.

Not set up to gather and preserve samples—DNA evidence is only as reliable as the
mechanism in place to manage it. Errors still happen, but earlier failures in the US and Europe
have led to stricter laboratory laws and improved control. DNA samples may get tampered
with or polluted if police officers are not taught to avoid contaminating evidence at crime
scenes and laboratories do not have adequate quality control.

No time restriction on profile retention- As they prepare to deliver the final draft of this
monsoon session of Parliament, the CDFD and the DoB are still finishing details. The team is
aware that there is currently no information on how long suspects' DNA profiles will be kept
in the database.

Evidence Value of the National Crime Investigation

The value of DNA evidence in criminal investigation is anticipated to play a greater role in
coming years. This scientific breakthrough contributed immensely in establishing the
involvement of a person in a crime or excluding a person falsely suspected. It has been
undergone a detailed scientific examination as no other scientific method of investigation has
proved its worth in terms of its accuracy. Like finger print evidence, application of DNA
evidence is also a best option for the prosecutors for the identification and apprehension of
most violent perpetrators and criminals. At the same time, DNA aids the search for truth by
exonerating the innocent. Advances in technology would definitely lead to novel use of DNA
evidence in criminal investigation and court trials.

The evidence that is brought before the court must be accurate, trustworthy, and competent to
assist the court in coming to a decision. In India, instances such as Priyadarshini Mattoo, Naina
Sahani, the assassination of Rajiv Gandhi, and N.D. Tiwari have been resolved either solely by
DNA testing or in conjunction with further supporting evidence. Although DNA testing has
been approved by several Indian courts, including the Supreme Court in a number of instances,
10
there is currently no explicit legislation in India that may offer the investigating agency and the
court precise directions, as well as the method to be followed in situations involving DNA is its
proof. Therefore, whether or not the DNA testing under Section 45 of the Indian Evidence Act,
1982 are accepted is up to the judges' discretion.

The Indian Evidence Act, 1872 and Code of Criminal Procedure, 1973 lack the
appropriate provisions to deal with the scientific tools as well as the forensic science related
issues. Due to which, an investigating officer faces lots of challenges in collecting evidences
involving modern mechanism to prove the accused person guilty. Section 53 of Code of
Criminal Procedure197320, authorizes a police officer to get the assistance of a medical
practitioner in good faith for the purpose of the investigation. But, it doesn’t enable a
complainant to collect blood, semen etc. for bringing the criminal charges against the
accused. The Cr.P.C. (Amendment) Act, 2005 introduced two new sections to the Cr.P.C. that
permit the investigating officer, with the assistance of medical practitioners, to get DNA
samples from the bodies of the accused and the victim in rape cases. These parts facilitate the
medical practitioner's examination of the accused person and the victim's the medical
examination, respectively. Previously, the admission of these evidences was left up to the
judges' discretion because the Supreme Court's and other High Courts' opinions in different
rulings remained somewhat at odds.
Judges do not deny the scientific accuracy and conclusiveness of DNA testing, but in
some cases they do not admit these evidences on the ground of legal or constitutional
prohibition and sometimes the public policy which we shall elaborate under the heading of
‘judicial approach’ at the end of this article.

The first paternity dispute in India, which was solved by DNA fingerprinting test, was
the case of Kunhiraman v. Manoj21 in the Court of the Chief Judicial Magistrate of
Thalassery. The Chief Judicial Magistrate held that: “according to Section 45 of the Indian
Evidence Act, the expert opinion is admissible, the DNA evidence is also a scientific
examination and opinion of expert in the matter of Cellular and Molecular Biology is
admissible just like opinion of chemical analyst or fingerprint expert”.22

20
Code of Criminal Procedure, 1973.
21
II (1991) DMC 499.
22
Lily Srivastava, Law and Medicine 131 (Universal Law Publishing Company, 2010).

11
The Delhi High Court established a precedent in 2008 when it accepted a child maintenance
action that had previously been rejected by a trial court, ruling that "the parentage of only a
DNA test can identify the kid (names have been kept private by the court for privacy
concerns). The petitioner's ability to avoid paying maintenance under section 125 CrPC for
this kid is contingent upon proving that the youngster is not the petitioner's biological son.
Responses to the verdict were diverse from many facets of society. It was criticized on the
one hand for being detrimental to the child's psychologically and praised on the other for
being justified in arguing that DNA testing should be permitted in child maintenance cases.

Before allowing DNA evidence to be admitted into evidence in criminal and civil cases alike,
the court must properly review the material. The court's acceptance of such evidence is
evident in the landmark ruling of the Supreme Court, which declined to reverse the High
Court's order requiring veteran Congress leader N.D. Tiwari to submit to a DNA test. Given
this Supreme Court ruling, it would be fascinating to watch how future decisions by other
Indian courts handle DNA evidence.

Since DNA testing was included in the judicial system, several industrialized nations
were compelled to amend their laws. As of right now, DNA testing has legal validity in India,
however there is currently no explicit law on the matter. This was stated in 1989.Section 112
of the Indian Evidence Act, 1872 contains provisions regarding child's parentage. It stipulates
that a child born in a valid marriage between a mother and a man within 280 days of the
marriage's dissolution indicates that the child belongs to the mother, unless there is proof to
the contrary. However, there is no specific provision covering modern scientific
techniques..23 DNA analysis is of utmost importance in determining the paternity of a child in
the cases of civil disputes. Need of this evidence is most significant in the criminal cases,
civil cases, and in the maintenance proceeding in the criminal courts under Section 125 of the
Cr.P.C. The Law Commission in its 185th report has also recommended the inclusion of DNA
testing in the Indian Evidence Act by amending its Section 112 which is as follows 24:
Aside from the single "on-access" exemption for confirmation of paternity under section
112, various exclusions including blood type testing and DNA have been proposed, albeit
under extremely strict guidelines.

23
Indian Evidence Act, 1872.
24
Law Commission of India, 185th Report on Review of the Indian Evidence Act, 1872 (March,2003).
12
Additionally, the benefit of the presumption of paternity in cases of those born during the
continuation of a marriage or within two hundred and eighty days of its dissolution is now
extended to children of voidable marriages where a declaration of nullity is obtained, as long as
those children are recognized as legitimate under their individual state laws.

LEGAL VALIDITY OF DNA TEST

The foundation of the criminal justice system is jurisprudential concepts that safeguard the
rights of suspects and accused. These include the freedom from coercion to reveal personal
information, the right to silence, and the prohibition on testifying against oneself in court. In
spite of this, the police have routinely employed intrusive techniques like narco analysis, brain
mapping, and polygraph tests—and, oddly enough, occasionally with the courts' consent.

The privilege against the self-incrimination enumerated under Article 20(3) of the
Constitution forbids against compelling any person to give testimonial evidence that would
likely incriminate him or her during a subsequent criminal case. Article 20(3) reads as “no
personal accused of any offence shall be compelled to be a witness against himself”.This
rights enables a defendant to refuse to testify at a criminal trial and privileges him not to
answer official questions put to him in any other proceeding, civil or criminal, formal or
informal where the answer might incriminate him in future criminal proceedings.

The right to silence has various facets. One is that the burden is on the State or rather
the prosecution to prove that the accused is guilty. Another is that an accused is presumed to
be innocent till he is proved to be guilty. A third is the right of the accused against self-
incrimination, namely, the right to be silent and that he cannot be compelled to incriminate
himself.
The Indian law states that no one can be forced to give a blood sample, so the courts
have frequently stated that they are unable to issue any orders for DNA testing or even blood
tests. Moreover, there have been numerous objections to such orders, with the main argument
being that they would violate the rights of the individual guaranteed by Article 20(3) of the
Indian Constitution. The Court has been facing questions on many occasions while dealing
with the cases related to DNA fingerprinting and Narco Analysis like Whether a suspect, or
for that matter anybody can be forced to give a blood sample for testing?, Whether such a
testing would be considered a violation of Article 20(3) of the Constitution of India, which

13
protects every citizen from providing self-incriminating evidence?, and Whether an order
forcing an individual for DNA testing would be violation of his right to privacy? And if the
person refuses to undergo himself/herself to such test whether adverse inference or
presumption can be drawn by the Court?
These questions lead to fiery debates in the Supreme Court and finally the Court tried
to define as to how much an accused can be made to reveal and how much he is protected
against. It can be seen from many pronouncements of the Supreme Court as given below that
its approach towards directing the scientific examinations is not consistent and varied case by
case.
In the case of Gautam Kundu v. State of West Bengal25, the Supreme Court expressed
its unwillingness in allowing application of DNA technology in resolving paternity
determination. The prayer for establishing legitimacy and maintenance by a child through
blood test was rejected by the Court. The Court decided that in order to refute the
presumption deriving under Section 112 of the Evidence Act, there must be a compelling
prima-facie evidence that the husband must show non-access. A substantial body of evidence
can overturn this assumption rather than a mere balance of probability. The Court then went
on to establish the following rules pertaining to the acceptance of blood tests as means of
establishing paternity:
(1) That the courts in India cannot order blood tests as a matter of course.
(2) Whenever applications made for such prayers in order to have roving inquiry, the prayer
for blood test cannot be entertained.
(3) There must be a strong prime facie case in that the husband must establish non-access in
order to dispel the presumption arising under section 112 of the Evidence Act.
(4) No one can be compelled to give the sample for analysis.

The Apex Court reiterated the same view in the case of Kanti Devi v. Poshi Ram26, herein it
held that although the DNA evidence is scientifically accurate, Based on public policy, it
cannot be accepted in resolving the paternity issue. It went on to say that the child's best
interests must always come first when ordering the DNA test to establish a child's paternity in
rare and worthy instances. A DNA test cannot always be ordered as a matter of course.
Excusable in certain circumstances.DNA testing should only be used when absolutely
necessary. It is proper for the Women's Commission to order DNATest.
25
AIR1993SC2295.
26
AIR2001SC2226.
14
 The Supreme Court by this decision encouraged the lawmakers to strictly adhere to the
conventional, unscientific, ineffective and biased system of justice.

However, the Supreme Court adopted a different approach in landmark judgment

delivered in 2003 in the case of Sharda v. Dharmpal2 7where the Supreme Court dealt with an
important and fundamental question that can courts compel persons to undergo medical
examinations against their will? In this case the contention of the respondent was that the
order of the trial court and the High Court to undergo the DNA test is in violation of her right
to personal liberty guaranteed under Article 21 of the Constitution of India and in the absence
of empowering provisions, the Courts cannot subject a party to undergo DNA examination
and it would violate his/her right to privacy. The Court while drawing an adverse inference
rejected these contentions and held that the right to privacy in India was an absolute. The
Court further stated that “It may be hard to reach a decision in the majority of these situations
if the responder refuses to have such a medical examination on the grounds that it infringes
upon his or her right to privacy or for a matter right to personal liberty as guaranteed by
Article 21 of the Indian Constitution. It might negate the very basis for divorce's
admissibility.

In the aforementioned case, the Court established the idea that the right to personal liberty
guaranteed by Article 21 of the Indian Constitution is not absolute and that the Court may
form an unfavorable conclusion in the event that there is a compelling initial case and
adequate documentation in the file. It is essential to note that undertaking medical tests, such
as DNA testing, should not be viewed as cruel, immoral, or a denial of personal liberty
provided that the established legal procedure is followed. Furthermore, it cannot be deemed a
breach of Article 21 of the Indian Constitution. Similarly, Supreme Court reiterated its
position recently in Criminal Appeal No.24 of 2014 (parties’ name is kept anonymous by the
Court) stating that “truth must triumph” is the hallmark of justice. 1 The Supreme Court
acknowledged the need for modern science and its impact on India's justice delivery system
while hearing a criminal appeal filed by a husband challenging his wife's claim of
maintenance under Section 125 of the Cr.P.C. by accepting paternity DNA testing as the final,
conclusive proof for determining matters pertaining to paternity disputes, which is crucial in
deciding appeals relating to maintenance and other reliefs to a petitioner wife. The Court

27
AIR2003SC3450.

15
Though Section 112 of the Evidence Act establishes a presumption for children born into
preexisting marriages, since the findings of such DNA Tests are scientifically reliable, this
presumption might be tested and overturned using DNA testing in order to determine
fatherhood children born into preexisting marriages. The Court went on to say, "...when there
is a conflict between a proof based on scientific advancement accepted by the world
community as correct and a conclusive proof envisioned under law, the latter must prevail over
the former."Following that, the spouse was released from the responsibility of providing child
support by the supreme court.

Numerous nations, including the US and the UK, have established or modified laws allowng
the use of DNA evidence to protect the innocent and punish the guilty. The DNA
Identification Act was approved in Canada and went into effect on June 30, 2000. This law
made it possible to establish a DNA database and modified the Criminal Code to provide
judges the authority to require blood or hair samples from those convicted of specific crimes
in order to construct DNA profiles. The National DNA Data Bank adheres strictly to the
DNA Identification Act's rigorous criteria and respects issues of genetic privacy.
in order to reduce the significant backlog of DNA samples taken from crime scenes and
convicted offenders, enhance and expand the capacity of federal, state, and local crime
laboratories for DNA testing, increase research and development of new DNA testing
technologies, and create new training programs for the collection and use of DNA evidence,
the Advancing Justice Through DNA Technology Act of 2003 was passed in the United
States of America.

As the technology progresses, undoubtedly the importance of DNA test would also
gather more attention and would have a vital role in solving the crimes both during the
investigation of crime as well as its trial in the Court. It would be imperative to have an
expert group to draw the guidelines on DNA testing as was done for Narco Analysis test. The
recommendations made in the 69th and 185th Law Commission Reports, with regard to the
amendments in Sec. 45 of Indian Evidence Act be implemented, which emphasizes that an
expert should submit a copy of his report to the parties and the report must contain reasons
for his opinion28.

28
LawCommissionofIndia,69thReportonIndianEvidenceAct,1872(May,1977).

16
 JUDICIAL APPROACH TO THE EVIDENCE LIKE DNA TEST AND ITS
ADMISSIBILITYDURINGCRIMINALTRIALSININDIANCOURTS -CASE
ANALYSIS

Having seen the evidentiary value and the constitutional validity of DNA the test, we
shall study few instances where the judiciary has either endorsed or negated this test. The
principles which the court seem to follow when it comes to DNA is that it not only permits
conduct of such DNA test but also permits its evidentiary value during trials subject to some
restrictions.

Bombay High Court in the case of Sadashiv Malikarjun Kheradkar v. Smt. Nandini
Sadashiv Kheradkar29, it was held that the Court has power to direct blood examination butit
should not be done as a matter of course or to have a roving inquiry. The Bombay High Court
even felt that there should be a suitable amendment by the Legislature and after noting that
nobody can be compelled to give blood sample, it was held that the Court can give a direction
but cannot compel giving of blood sample.

In Thogorani alias K. Damayanti v. State of Orissa30. the court noted that the only
restriction for issuing a direction to collect the blood sample of the accused for conducting
DNA test would be that before passing such a direction, the Court should balance the public
interest vis-a-vis the rights under Articles 20(3) and 21 of the Constitution in obtaining
evidence tending to confirm or disprove that the accused committed the offence concerned.

In the case of Mrs. Kanchan Bediv.Shri Gurpreet Singh Bedi31, the infant's paternity
was disputed, and the father fiercely fought the mother's request to undergo a DNA test,
claiming it would violate his rights.In his ruling, Hon. Vikramjit Sen J stated that: "It seems
hard to argue against the fact that the law, as it stands, does not anticipate any obstacle or
infringement of rights in ordering individuals to take a DNA test, particularly in cases where
the paternity of a child is in dispute for the purpose of granting maintenance." It was
additionally decided that presenting oneself for a DNA test does not constitute a breach of
rights in cases where the parenthood of a child is in dispute regarding the award of
maintenance.

29
1996(1)BomCR 454.
30
2004CriLJ4003.
31
AIR2003Delhi446.
17
Based on the ruling of the Honorable Supreme Court in the case of Geeta Sahav.NCTof
Delhi(DB) 2, a Division Bench of the Honorable Supreme Court directed that a DNA test be
performed on a fetus of a penetrating victim. The case of Goutam Kundu v. State of West
Bengal33, where it was decided that a woman "cannot be forced to give blood sample and no
adverse inference against her for this refusal," was distinguished by Hon. Vikramjit Sen J.

CONCLUSION

The country's socioeconomic growth has changed over the past ten years, which has also led to a
sophisticated criminal world and a sharp rise in crime rates. One of the investigators' most
difficult tasks is to piece together evidence that will conclusively establish the accused is guilty.
Due to their proven track record of success in convicting perpetrators of complex
socioeconomic crimes as well as their ability to uncover terror plots and provide evidence
against them, forensic science's scientific tools have proven to be very beneficial to
investigators, improving not only conviction rates but also crime control goals. The majority of
these tests don't provide 100% certainty, but they do assist the investigator in moving the case
forward rather than coming to a standstill. The court must strike a balance between the victim's
rights and the rights of the accused or suspect in order to fulfill the requirements of justice. In
Selvi's case, the Supreme Court issued a salutary judgment that, while rejecting any evidence
acquired from scientific tests, declared that any information or data that is later uncovered with
the use of volunteer provided tests can

As regards the DNA which stands independent to other scientific tool does not suffer
so much both in terms of evidentiary value during trial and any constitutional vires. DNA test
is widely used for establishing the paternity suits and sexual offences. In the case of rape,
generally the Court accepts the scientific test and also recognises that this test does not create
any constitutional denial of rights and in fact it is encouraged.

32
1999(1)JCC 101.
33
AIR1993SC2295..

18
The tests on the accused had several shortcomings, according to the researchers. According to
the author, if our system solves these shortcomings, then this test can be an effective weapon
in the arsenal of investigating agencies to bring justice be done. Some of the suggestions are
follows:-
 Lawmakers should take the required action to enact a consistent national legislation
governing the use of DNA testing and its admission in court proceedings. Because
investigative agencies and the lower judiciary operate in a state of confusion and doubt
when legislative recognition is lacking.

 To update current legislation to include measures for blood tests to provide DNA
profiling.

 To regulate procedures in forensic laboratories to improve the accuracy of their reports.

High quality standards should be followed by labs, which should also routinely take part
in proficiency tests, employ the splitting method, and implement standardized standards
for DNA testing.

 A national committee was established to oversee and control DNA profiling labs.
Procedures and acceptance of post-conviction DNA testing are incorporated into Indian
laws. DNA testing should not be done on a normal basis; rather, it should only be
suggested when information is pertinent to a particular crime under investigation. DNA
samples from suspects should only be taken with a judge's or magistrate's prior consent.

19