Successfully Challenging the Admissibility of Mitochondrial DNA Evidence
ISSUES RELATED TO ADMISSIBILITY OF FORENSIC EVIDENCE IN ...
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ISSUES RELATED TO ADMISSIBILITY OF FORENSIC
EVIDENCE IN INDIA: A LEGAL STUDY
SANYAM POKHRIYAL1 & SANTVANA SINGH2
ABSTRACT
The present study experimentally attempts to investigate the impact of Forensic Science in the
field of criminal investigation because of the recent increase in the crime percentage and not
exactly half of its prosecution and even less number of conviction has raised a question that what
isn't right with the criminal equity situation is it the criminal who has become extraordinary
brilliant that has commuting the wrongdoing and disappearing like wind or is it the failure on the
part of the investigating agencies who cannot lay their hands on the criminals. What is the
missing Lego of the riddle? The researcher's article's principal objective is to find out the missing
piece and analyze that when we have been bestowed with the latest scientific techniques of
wrongdoing detection, for what reason are we not making utilization of it. The methods consist
of Narco-analysis, Polygraph, Brain-mapping, D.N.A. Profiling, which is the burning subject
among individuals of the legal field. These methods are, as compared to the third-degree torcher
used by the police authorities, particularly humanistic, and the purported allegation which
considered these tests in humans according to the researchers are purposeless. One should
remember that there are several cases wherein the suspect was acquitted because of the benefit of
the doubt. And these techniques help in finding out the accurate picture behind the wrongdoing.
Through this research paper, the researcher wants to convey that these tests assist find with
outing the real accuse yet additionally helps in establishing the innocence of the suspects. And it
is about time to accept them into our criminal equity framework.
Keywords: Criminal Justice; Forensic Science and research; heinous crimes; Legal method
Evidentiary fee;
1 B.B.A.LL.B. (Hons.) X- SEMESTER(5TH YEAR) LAW COLLEGE DEHRADUN UTTARANCHAL UNIVERSITY DEHRADUN, UTTARAKHAND 2 B.B.A.LL.B. (Hons.) X- SEMESTER(5TH YEAR) LAW COLLEGE DEHRADUN UTTARANCHAL UNIVERSITY DEHRADUN, UTTARAKHAND
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INTRODUCTION
The criminal justice machine consists of a particular department or the assortment of strategies,
our gatherings, and establishments that intend to guard or re - establish the instrument of social
manipulate. Additionally it can be described as 'the established or set up tactics wherein society
answers to good behaviors and individuals it sees as abnormal, challenging, intimidating,
complicated and unwanted. 3 Principally, the force of evildoer value device unwinding on
policemen, accusation, courts, and detainment facilities. These four bodies are locked inside the
fundamental capacity of bar, fame, indictment, assertion, fine, or resisting of liable individuals in
the open arena. An unpracticed criminal value gadget guarantees a comfortable and tranquil
society. In truth, the entire means of a coordinated local area depends upon novel and effective
criminal value apparatuses.
DEFINING FORENSIC SCIENCE
Forensic Science utilizes the technological apprehends-the practice to the individuals unlawful
and civil legal advice enforced through the cops' corporations via evildoer value device. The
Forensic Science technique allows the utility of data and the approach of numerous methods of
technology to prison matters. For verification evaluation, it entails using more than one
discipline consisting of treatment, physical sciences, forensic science and science, profiling of
DNA strands, laptop technology, and tech. Notwithstanding instance, physical science is applied
to apprehend the outline of bloodshed; science allows us to install the idea of a nameless suspect,
and science licenses us to discover the chemical type of diverse tablets. Hence, the feature of
forensic technology in criminal prosecution and the prison device is frequently minimized and
relatively critical. 4
Inauthentic India, the reason for innovative technology of forensic data is certifiably noncurrent
as clinical musings have arisen as commonly utilized via necessities of each guideline. Sir
William Herschel demonstrates utilizing fingerprinting to recognize criminal suspects. Finger
impression evidence changed into first consistently in the court of Argentina in the Eighteen
3 Francis Pakes (Ed), Comparative Criminal Justice 1(Routledge & Oxon, 3rd ed. 2015). 4 N. B. Narejo, M.A. Avais, Examining the Role of Forensic Science for the Investigative-Solution of Crimes,
252 SURJ (SCIENCESERIES) Vol.44 (2)2012.
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Nineties and British court in the tear of 1902. Additionally, Forensic data confirmation is a field
that molds following the boundaries of the Indian prison gadget. The trademark offers a course to
those steering illegal investigations. It shows magistrates/judges a decision about the
extraordinary data. At this point, they can have a total recollect in recognizing hooligan and
common debate and is additionally advantageous in improving the cheat including ordinary
occasions.
In addition, the era of the Forensic age is the technology to be certain all capacities of realities.
This essential and capable valuable guide advances all administration of fairness conceivable in
unlawful, public, governmental, and societal surroundings. It offers packages of an era in
responding to criminal significance questions. In present occasions, Forensic technological
knowledge is an exceptionally advanced medical approach that is applied in criminal and civil
investigations; it's miles able to answer essential questions and paperwork and protected a
portion of unlawful justice mechanisms. It incorporates all famed strategies before-mentioned as
fingerprint evaluation, DNA evaluation, ballistics, firearms, subculture. It allows convicting
those responsible for the wrongdoing as well as can pardon the harmless. 5
FORENSIC SCIENCE IN LAW IMPORTANCE
The expression 'forensic' includes the foundations inside the Latin phrase 'forenses,' suggests the
conversation board. A conversation board expressed a public area where legal court occurrences
and discussions were kept in early Rome. Hence, the beginning and meaning of 'criminological
age' components close connection with the criminal contraption. Criminological Science contains
gathering, ensuring, and surveying evidence appropriate for arraigning a blameworthy party
inside the Court of guideline. Consequently, the product program of legal, mechanical data inside
the criminal value device is a detailed picture.
Forensic verification is utilized globally to convict and vindicate the defendant. Consequently,
forensic age laboratories have spread up wherever two or three years. In truth, unequivocal
demonstrations have been ordered inside the US, Canada, and Australia to improve forensic
5 Justice U.C. Shrivastava, Immunity from Self-Incrimination under Art. 20(3) of the Constitution of India,
JJTRI, U.P., http://ijtr.nic.in/articles/art19.pdf (last visited on 8.2.2016).
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offerings. Addition in forensic laboratories may ensure that wrongdoings are identified with
more critical realities, and in this manner, conviction expenses can develop. Such demonstrations
are an excellent accentuation on time-green and eminent administration of crime locations.
LEGAL PROVISIONS SUSTAINING CRIMINAL INVESTIGATION
India with its advanced forensic technology software understands that misconduct inquiry and
prosecution have to endure the catch 22 situation of regulation.
Essentially steady with Articles 20(3) of the Indian Constitution, no man or woman involved in
any offense will persuade pressured to be a spectator for himself. Article 20(3) is primarily
looked upon the conjecture drawn via a law that the accused character is harmless until proven
responsible. It shields the involved via defensive him from the feasible ache/savagery of studies
for the duration of the arrest. Unlawful regulation considers a person as inoffensive till his
offense is confirmed past considerably less exceptionally priced dilemma. The Universal
Declaration of Human Rights, Article 11, "Right to the presumption of innocence" states that
"Anyone filled with a punitive offense holds the legitimate to be considered harmless till
confirmed accountable consistent with the order in a federal trial at which he guarantees critical
to defend. 6
Article 20(3) of the Constitution of India guarantees essential right towards self-incrimination
and guards towards persuasive testimony of any witness. Under Article 20(3), the crucial
legitimate confidence is a shielding umbrella in opposition to testimonial compulsion to
recognize oldsters accused of an offense to be a witness towards themselves. Notwithstanding,
the safety is now not handiest in identifying confirmation given in a trial earlier than Court; also,
at the past level. The protection within the course of self-incrimination envisaged in Article 20(3)
is to be had excellent simultaneously as compulsion is used and no longer toward voluntary
declaration, disclosure, or production of a document or excellent material. This legitimate has
been taken to ensure that a person isn't always fine to answer any question or produce any
6 Universal Declaration of Human Rights, United Nations High Commissioner For Human Rights
(last visited on 9.2.2016).
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document or detail if that fabric needs to open the individual to conviction for a criminal offense.
7
Sec. 73 of the Indian Evidence Act offers authority to the Court to direct any individual and an
accused to allow his finger impressions to be taken. The Supreme Court has also held that being
forced to offer fingerprints does not violate the constitutional safeguards given in Art. 20(3).
There are many questions as to whether forensic verification violates Art. 20(3) of the Indian
Constitution or not? In The State of Bombay v. Kathi, Kalu Og had and Others; the Court held
that thumb impact, specimen signature, blood, hair, semen, and so forth the accused does no
more vast quantity to "being a witness" in the that means of the stated Article. The accused,
along these lines, has no appropriate thing for DNA examination for the features of investigation
and trial.
The Bombay High Court, in any other massive verdict inside the case of Ramchandra Reddy and
Ors. v. State of Maharashtra8 upheld the legality of using P300 or Brain fingerprinting, lie-
detector take a glance at, and the utilization of fact serum or narco assessment. The Court
sustained a particular court order granting SIT to conduct scientific tests at the accused in the
fake stamp paper rip-off, which incorporates the primary accused, Abdul Karim Telgi. The
verdict besides maintained that the proof procured under the impact of truth serum is also
admissible.
In a 2006 judgment, Dinesh Dalmia v. State, The Madras High Court9 sustained that governing
an imputed narco-assessment isn't equivalent to grounds through constraint. In any case, in a
subsequent case, i.e., Selvi and Ors v. State of Karnataka and Anr, the Supreme Court wondered
the legitimacy of the involuntary management of excellent medical strategies to enhance studies
endeavors in criminal occasions. In the above-stated case, the Supreme Court held that idea
mapping and polygraph checks were inconclusive, and in this way, their obligatory usage in an
illegal study may be unconstitutional.
7 Universal Declaration of Human Rights, United Nations High Commissioner For HumanRights
(last visited on 9.2.2016). 8 AIR 2004AllMR (Cri) 1704. 9 AIR 2006 Cri.L.J 2401
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The Code of Criminal Procedure, 1973 has gotten amended in 2005 to facilitate gathering a
gaggle of medical data from accused people upon their arrest. Section 53 of the Criminal
Procedure Code 1976 offers that an accused individual may be subjected to a scientific exam
upon arrest if there are "considerably less expensive grounds for believing" that such exam can
have enough cash verification as to the wrongdoing. The quantity of this assessment changed
into extended in 2005 to encompass "the exam of blood, blood-stains, semen, swabs in case of
sexual offenses, sputum and sweat, hair samples and fingernail clippings with the aid of using
cutting-edge and scientific strategies at the side of DNA profiling and such special assessments
which the registered scientific practitioner thinks vital in a particular case.
Under The Indian Evidence Act, 1872, the forensic report appears like a "conviction" tendered
by specialists. A professional may be described as a person who, with the beneficial asset of
exercise and commentary, has to turn out to be experienced in any technological know-how or
his vicinity of knowledge. He is a person who has dedicated time and know-how to a unique
branch of getting to know and is therefore in particular master in that challenge in which he is
known as to provide is professional judgment. 10
LIMITED USE OF FORENSIC EVIDENCE IN INDIAN LEGAL SCENARIO
The maximum essential characteristic of forensic investigation is to trade doubt into valuable
facts of both blame or innocence. Nonetheless, until currently, the courts needed to depend
carefully on the non-medical evidence because of the non-availability of appropriate
technologies. 11 The test is done in 2011 via Supreme Court, and Hugh court indicates quality
multiple times; DNA has achieved a critical characteristic. Out of these, 23.4% of picks were
given utilizing the manner of Delhi High Court without help from anyone else. Moreover, DNA
evidence was being used in reality 4.7% homicide times and 2.3% rape and homicide. In yet
every other have a glance at of rape instances during the last decade, the author has shown that
there was a delayed dependence by Indian courts on legal evidence and DNA as the years
10 Report of the Committee on Draft National Policy on Criminal Justice, Ministry of Home Affairs, Government of
India, July, 2007. 11The Role of DNA in Criminal Investigation- Admissibility in Indian Legal System and FuturePerspectives,
15-21IJHSSI Vol.2 (2013).
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progressed, even however the figures are wretchedly low and deliberate endeavors are expected
to include scientific evidence in all hoodlum subjects, in which material.
Although, the field of forensic technological knowledge in the country isn't mixed. So usually,
neither the arbitrator nor the jail professional nor even the police pressure appreciates the
advances or the massive, promising potential outcomes of the technological know-how and the
aggregate of the latest generation together, methodologies, modalities, and research. This
multitasking and multi-master technique of forensic era wish an inter-professional method is
undoubtedly are lacking for often. 12
HINDERENCES FACED BY ALLEDGED AUXILIARY
Present-day strategies of criminal research are such domain names that are probably unidentified
to the police pressure because they may not be skilled and trained about them. The police are
blamed for investigating wrongdoings with the valuable asset of using similar vintage, traditional
strategies and techniques. It has been maintained that unsuitable medical mastery with the
research official, the primary respondent to the wrongdoing coupled with beside the factor
behavior of scene of the wrongdoing, also can each contaminate the samples required to be
examined or wreck the evidentiary cost, so you may be obtained on appropriate lifting, sealing,
forwarding to the Expert/Laboratory for the exam. Consequently, an association of Forensic
Experts with the police investigating agency directly from graduation and their compelling
liaison with the Medico-criminal Expert can contribute drastically and now and again to
determine the wrongdoing. 13
Forensic laboratories lack critical human assets and infrastructure. They are staff served. At
times legitimate infrastructure and equipment are lacking. They lack adequate funding besides.
Surprisingly, there can be a lack of coordination, a couple of the wings of the one, i.e., Forensic
expert and police stress.
12 EnamulHaque v.StateofWestBengal, CRM17348 of 2010& AST1114of2010. 13 OlivierRibaux, SimonJ.Walshand PierreMargot, The contribution of forensic science to crime analysis and
investigation: Forensic intelligence, 171-181 FSI vol.156 (2006).
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The Committee on Draft National Policy on Criminal Justice Report features that steering,
accreditation, modern day setting, professionalism and studies, and development of Forensic era
need to get genuine interest in the insurance framework.
Moreover, the Malimath Committee advocated that more excellent nicely-resourced laboratories
should be installed to address DNA samples and evidence. In addition to the exact standard that
needs to be enacted, they gave pointers to the police placing uniform requirements for attaining
genetic information and producing sufficient safeguards to save you abuse. Lately, Justice Verma
Committee laid down the need for appropriate garage and protection of DNA samples, especially
in sexual assault times. 14
LATEST COURT HEARINGS
Here are a number of the highly present day-day instances in which the Court has depended on
forensic proof and given verdict with the aid of considering this piece of evidence.
In Krishan v. State of Haryana15 , the Trial Court, considering the statistics and times of the case,
more mainly counting on the FSL document convicted the appellant below Sec. 376 and Sec.
506 of IPC.
Division Bench of this Court, after referring to numerous governments on DNA generation 16,
explicit method used for checking out and the scientific upgrades made international over found
that the Courts across the world that encompass in India have been placing heavy reliance on
DNA results. It became located " Over a period, the generation of DNA sorting out has made
tremendous strides and completed sophistication maximum essential to consequences that could
regularly be used both for inclusion or exclusion on the accused.
SOME LANDMARK JUDGMENTS IN FORENSIC SCIENCE INVESTIGATION
In criminal times, mainly based primarily on circumstantial proof, forensic science performs an
essential feature, which may assist in establishing the evidence of a crime, identify the suspect,
14 V.R.Dinkar, ‘Forensic Scientific Evidence: Problems and Pit falls in India’,79-84,IJFSP Vol.3(2015). 15 (2014)13SCC574. 16 R/CR.A/224/2012
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and ascertain the accused's guilt or innocence. One of the leading sports of the Investigating
Officer at the crime scene is to do a thorough search for ability proof that has a probative rate
within the crime. Investigating Officer may be guarded in opposition to capability infection of
physical proof, which could expand on the offense display completely the assembling, stuffing,
and forwarding. Proper precaution desires to be taken to preserve evidence and additionally
towards any try to tamper with the material or inflicting any infection or harm."
In fun occasions relying on clinical evidence along with DNA profile and oral bits of evidence,
the charged were indicted and rebuffed with an absence of presence sentence and outstanding
through the Sessions Judges, for terrible murder older around ten years after exposing the
miscreant to carnal intercourse after which strangulating him to the death toll.
In the Nitish Katara murder case17 , the detection of the deceased sufferer becomes challenging
because of the availability of handiest a small detail of un-burnt palm with palms. Additionally,
the DNA profile helped identify the frame stays via matching the DNA profile with the parents
of the deceased, which allowed the High Court of Delhi to uphold the accused's conviction.
In Sushil Mandal v. The State18 represented through CBI, the petitioner, father of the deceased
boy, challenged the findings of DNA profiling. The departed boy fell on the adolescent cusp of
common infatuation with a university lady. The parents of each were cautioned with the aid of
university manage for keeping tests on them. Later, the boy has become found reportedly
lacking, and, after every week, a wholly decomposed unidentified frame has become fished out
from a lake. The petitioner claimed not to figure out the body remains and garments of his
missing son. He desired a habeas corpus petition in the immoderate Court accusing the daddy of
the female and praying the excessive Court for guidance the studies thru the Central Bureau of
Investigation (CBI). The DNA test of the body remains matched with the genetic profiles of the
mother and father (the petitioner and his accomplice) of the deceased. The terrific skull
imposition takes a look at moreover installed hyperlinks among the dead and the recovered
frame.
17 AIR 2014 (5) SCC 509 18 (2014) 4 SCC 69.
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But the petitioner refused to deliver the reality located through those clinical exams on one
pretext or the opportunity even though DNA takes a look at changed into repeated for his delight.
The apex courtroom positioned reliance on clinical assessments at the aspect of DNA profiling
for human identification and, for this reason, closed the trouble.
In Anmolsingh Swarnsingh Jabbal v. The State of Maharastra,19 The Bombay High Court upheld
the existence period, relying upon DNA proof, in addition to different pieces of evidence, for the
murder of a more younger girl engineer with the valuable resource of her colleague in a case of
one-sided love.
In each other case of brutal rape and unnatural sexual act with a 12 month female toddler
residing in a slum dwelling changed into investigated through Delhi police and DNA profiling
modified into used to link the culprit with the dreadful act of sexual violence. After examining
the focused evaluation of the child's testimony and numerous methodologies, the Court reviewed
legal study findings based totally upon DNA reports and one-of-a-type evidence and held the
accused responsible and set apart acquittal order passed thru the trial court.
In some other case, the utilization of DNA innovation cleared the way to prosecute and convict
the transgressor to the death toll, responsible for kidnapping and killing after the assault of a ten-
year old school lady through the method of vehicle cart main impetus and tossing the carcass of
the casualty in a mobile channel.
THE MAJOUR CHALLENGE WHILE PRESENTING SUCH EVIDENCE
There is an extended-fame issue of presentation and paying attention to forensic cases as a civil
or convict proceeding. It changed into argued that judges have the strength to make the
frequently emotional determinations that outcome in forensic confirmation being widespread and
removed. They may even have a fashionable tendency to manual one element's evidence over the
opportunity. An enthusiastic talk arose, culminating in a notable agreement that judges could
compel Daubert to law breaker and civilize one after the other. Many researchers say that
experimental and technical evidence is more probable for use to hoodlum instances in favor of
the authorities and rejected from civil occasions where defendants deliver it. Accordingly, there
19 2014 SCC Online Bom 397:2014 (2) BomCR (Cri)361: MANU/MH/0352/2014
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has been a need for professionals to test the credibility of forensic technological information
provided in courts.
Such inconveniences are also treated in Rule 702. It only calls for "master. Through information,
capacity, work out, analyzing, and training" specialists. Typically, a good-sized amount of
training and enjoyment is wanted to be deemed a legitimate master in any location. The
numerous forensic professions follow one-of-a-type training plans, the majority of these provide
in-residence schooling, tests, and sensible surveys, similar to persevering with training. When
schooling examiners for interrogation in a court, oral presentation training, similar to debatable
court information (simulated court intending), may be beneficial.
The character who provided the laboratory report and takes credit for taking a glance at its
anything but a record will commonly act because the court professional. The defendant may
additionally flip to their non-public specialists to counter this evidence, and each party is a hassle
to that Court's degree of competence (Frye, Daubert, Law 702). People that seem like master
witnesses want to apprehend a manner to answer to such questions. Regardless, it's far essential
to take a gander at whether the forensic verification is admissible is handiest as an awful part as
the select presiding the case.
MORE RECENT REFORMS
The National Academies Study 2009 (NAS Report) referred to all forensic technological
documents companies as obligatorily licensed. Recommendation 7 of the NAS record states that
everyone laboratories and facilities (public and private) want to be certified and that defined and
diagnosed worldwide necessities at the facet of the ones issued through the International
Organization for Standardization (ISO) should be taken into consideration at the same time as
figuring out accreditation standards. Forensic generation vendors also can assume a want for
them to be commonplace through felony schooling agencies, even now not just in motion.
Accreditation of the wrongdoing laboratory is, thus, one manner of conveying to the Court that
checking out techniques study high requirements.
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CONCLUDING OBSERVATIONS
To conclude the research paper, the researcher wants to present his opinion that with the latest
scientific advancement in Forensic Science, we should accept the newly developed methods of
truth detection with safeguards in the criminal justice framework.
The psychiatrist and investigators of various civilized countries and Nations consider
narcoanalysis, brain mapping, and polygraph tests to be unsafe and unreliable. In any case, when
we talk about the Indian context, it's anything but entirely banned in India; explicit barriers need
to be passed, similar to permission of the Court to conduct such a test. The consent of the suspect
is to be taken prior to performing this test. Thusly, it cannot be done at the desires of the
investigating Agencies or the political authority.
They were investigating agencies using the third-degree torcher technique to obtain the
information related to the offense from the suspects independent of his blame. In contrast, these
scientific techniques resemble a regular medical procedure that a person undergoes and neither
causes pain nor harshness. Now it is for the reader to decide which approach to convey truth is
inhuman.