Forensic Science in Criminal Investigation and Trial

Originally published by Manupatra

Shruti Rai Khanna and Aryan Singh Chouhan

ABC

Abstract:

In the ever changing time , what remains static is the law and the criminals took full advantage of backdated law by using advance technology to get away from the liability after committing crime and there Forensic Science acts as a torch that helps to secure justice. Forensic Science is a very useful tool in criminal investigation and trials , whose function is to identify that whether a crime has been committed or not and to analyze in what manner the crime has been committed and when was the crime committed and to help police identify who committed the crime for which there are several tools developed which includes instruments like that of Narcotics, DNA Profiling, Lie Detector Unit, Voice Analysis , Fingerprints, Scene of Crime, Photography, Computers ,etc. Several times the use of instruments of forensic science has been challenged in the supreme court alleging that it violates their fundamental right. This paper critically analysis the use of forensic science in investigation and its different techniques that are used to find the evidence.

Keywords- Narcotics, DNA Profiling, Lie Detector Unit, Voice Analysis , Fingerprints, Scene of Crime, Photography, Computers.

INTRODUCTION

When we discuss about the rights of the accused, it includes the requirement of having a fair, just and equitable procedure to be followed in the criminal cases.1 The judiciary recognizes, the significance of forensic-scientific tests administrated in form of brain mapping, narcoanalysis, polygraph tests.2 However, the tests shouldn’t be administered forcibly which would be an inhumane act since it would cause physical harm to the person on whom the test is being held.

During the various stages of trial proceedings and investigation, there arises the need to have the help of forensic sciences in order to bring out the details that are beyond normal examination administered by the police. In today’s time, forensic science techniques and technology has rapidly advanced, the DNA testing has helped earn many of the individuals who have been wrongly convicted to gain freedom. The science of forensic is also used to identify the victims of crimes. This thereby helps in identifying the body and hence reaching out to the rightful family members. The examination of victims and evidences through forensic science, helps in pinpointing the cause of death and the likelihood that the prime suspect committed the said crime.

There are various tools and mechanisms used to carry out the forensic examinations. Forensic science establishes the identity of the culprit through, personal clues like, fingerprints, footprints, blood drops, hair.3 The various tools and techniques used in the forensic science these belong to both classical and modern categories;

1. Measurement: The examination of evidences requires taking various measurements, and determination of dimensions including length, breadth, height, depth, angles, melting, etc.

2. Microscopy: A microscope is one of the most important tools of a forensic laboratory. It is a form magnifying lens.

3. Photography: The investigators and the ones concerned with the administration of justice are familiar with the photographs of the scene of occurrence and of the criminals.

4. Invisible Ray: The use of ultra-violet rays in criminal investigation makes a great impact in the whole proceedings.

5. Chromatography: All the forms including Column Chromatography, Thin Layer Chromatography, High Performance Liquid Chromatography are handy tools to identify and estimate clue materials even in sub-microgram quantities.

6. Electrophoresis: This is mainly used for colloidal or other materials majorly like inks, proteins, paints and pigments. Used for to study the blood and other proteinous matter.4

   
   

DNA profiling

One of the biggest problem that is faced in criminal investigation and in civil investigation is the identification of culprit and for this identification to most useful tools available in forensic science is the fingerprints and DNA profiling.

“The fingerprint tool was developed in the late 19th century, where as the DNA profiling is a modern invention .Fingerprint tool majorly identifies person from the fingerprint available and there are certain backdrops in this technology when we cannot identify the individual through this technology like when the body is mutilated and this problem is solved in DNA profiling technology.”5

The DNA profiling can identify a person from his own body cells like hair roots, semen, tissue, blood , etc and also the DNA of blood relatives of individual can be taken to help identify the individual in the case where the body is destroyed or there is a case of dead body.

In the DNA profiling technology the major body cells that are required

(i) “Blood- In a human body the white blood cells also called as the leukocytes contains the genetic information and that is why in DNA profiling white blood cells are connected it is the most used body cell used in DNA profiling, as in many criminal cases police finds blood, near the victim and police used that blood for DNA profiling to find the person who committed crime. For DNA sampling 20-40 ug/ml blood is collected.

(ii) Semen- Another important body cell collected for DNA profiling in semen. In semen the most important part collected for DNA profiling is the sperm head as it contains the information of the individual and if a person has person has vasectomy done then that persons semen would be without sperm head and in that case the DNA profiling would be unable to identify the person. This technology is commonly used in the rape cases, where to find that rape has been committed or not, DNA of semen is collected.”6

“One of the famous case of DNA profiling used in rape case is the Leicester murder case where in two girls were murdered and raped in same manner and the police caught Richard Buckland who was a 17 year old boy and during the investigation period he admitted to police that he committed a crime then later changed his statement and then the court ordered for the DNA test and in the DNA test it was revealed that the dna found in the body of girls was different from the DNA of the boy and thus he was acquitted by the court and that' s how DNA profiling helps the courts in identifying whether a person has committed a crime or not.”7

There are many more ways through which the DNA sample can be collected from the body cells like from saliva ,tissues ,bone marrow.

“DNA has helped a lot to the forensic science in identification of individuals as there are cases when the body were mutilated or and badly destroyed and it was hard to identify the person like in the case of killing of Punjab CM Beant Singh who was killed by human bomber and the human bomber was identified with the help of DNA profiling”8 .Also through the help of DNA profiling it is possible to know whether two persons are connected by blood or not,like in USA there a case of “Guru paramahansa yogananda who died in 1952, and in 1995 a man named Ben Erskine claimed to be his son and demanded the share in his property and for verifying the claims of Ben the court ordered to have DNA test of Ben with the brothers of Yoga Guru paramahansa who are living in India.The result of the DNA test clarified that Ben was not the son of Guru Parmahansa yogananda and he was an imposter who tried to acquire the property of Guru paramahansa through fraud.9

“The DNA profiling has helped a lot in identification of person in the criminal investigation but there are lot of issues raised against this technology wherein the main issue raised is that it hinders the privacy of individuals and to resolve this issue the government has introduced a bill called as the DNA technology (use and application) regulation bill, 2019 which was passed by the Lok Sabha on 8th January 2019 with the bill containing 61 sections.”10

The major highlights of the bill is that:-

1. the bill gives the provision for collection of DNA samples in criminal matters and in certain civil matters.
2. under the bill it is said that there should be a DNA regulatory board which should be the Central board for controlling the DNA labs who collect the DNA samples.
3. the bill asks for the written consent of people whose DNA is collected in criminal matter where the punishment for crime that has been framed is not more than seven years and if the consent is not granted by the individual then the investigating agency will need permission of magistrate to get the DNA sample.
4. if in the criminal matter the punishment for the crime that has been charged is more than seven years then there is no need to get the permission of individual whose DNA sample is collected . But no such clause of permission is required in the case of a civil suit and that is a major drawback of this bill
5. the bill also has the clause for formation of DNA data Bank at 2 level that is at the national and regional level given under section 25 of the the bill.
6. “the bill further says that the DNA data Bank needs to maintain the indices given in section 26 of the bill that contains a) crime scene index b) suspect index or under trials index c) an offender index d) missing persons index e) unknown deceased persons index.”11
7. “the bill also has the provisions that ensures that the privacy of the individuals is secured as given under section 32 of the bill which says that the DNA data stored in the DNA data Bank should be kept security and confidential. Further in section 33 of the bill , it is clearly mentioned that the purpose of DNA collection should be for identification of persons only.”12
8. “to ensure that the privacy is protected the bill also has the provision of penalties in chapter 8 wherein if the details are leaked by the person working in the DNA Bank or has the access to the DNA data Bank, then he can have a term of imprisonment for a period of maximum 3 years or fine till 1 lakh given in the section 45 of the bill.”13

So these were the major issues identified and solved in the bill. The bill is yet to be passed in the rajya Sabha and in India in the modern time we need a statute that regulates the DNA profiling as the DNA data contains some vital information of a person which needs a backing of legislation that should help the DNA institution to keep that that information safe.

The Narco Analysis Test

This part of paper will analyse the importance of narco analysis test in the field of investigation. The tool of narco analysis is the most common tool that is used by the investigation agencies when they do not find evidence to solve the case.

The Narco Analysis test is a technique that helps involves the use of drug sodium penthothal that brings the person on whom the drug is administered into the state of sleepiness . The drug is generally mixed with distilled water and is given in the period of 3 hours.And taking the drug the subject generally losses its proper conscious state of mind and then the investigating agency asks the question which is videogarphed and recorded as a evidence of the narco analysis test.

The Narco Analysis test has always been in controversy for all the wrong things. The major criticism of narco analysis test is that , it violates the protection against self incrimination, which is given in Article 20(3)14 of the Indian Constitution. Accordingly, the very basis for introducing Article 20(3) is that , there should be no forceful ways adopted by police against accused to prove his guilt and the forceful administration of Narco Analysis does violates the basic constitutional values.

Also there are some allegations that this narcos test also invades the body and disturbs the mental privacy .Further it is claimed that wrong administration of narcos can lead to serious health implication as in the narcos test sodium pentathol is used and if the quantity of sodium pentathol is used more than the person against whom it is administered can also go in coma , so there are serious health concerns connected with the narco analysis test.

And with the health concern it is also proved that the reliability of Narco Analysis test is not 100% , there are various cases when the accused after administering the sodium penthathol solution , gave false statement so the reliability of narcos is also verified.

In the case of Selvi vs State of Karnataka15 the supreme court held that the involuntary admission of Narcos does amount to violation of Article 20(3)16 . So though narcos helps in the investigation process but the negative side of this forensic tool is more than the positive aspects.

Judiciary View on use of Forensic Science Tools

There are several cases where the judiciary has decided the fate of use of forensic tools in investigation but in this research paper the researcher has list down the most important cases that has changed dynamics of use of forensic science :-

• State of Bombay vs Kathi kalu oghad and ors17.- This was one of the first case that put the issue of use forensic science as violation of article 20(3) . The main issue released in this case was that collection of fingerprints , thumb expression violets the fundamental right given under article 20(3) as it violates the protection against self incrimination. The court in case combined the application of section 73 of the evidence act which gives power to court to direct any person to give signature or writing for the comparison and section 5 of the identification of the prisoners act 1920 which gives the power to magistrate to get the accused or individual photographed or measured and after combining the sections the court held that the constitutional makers was also aware the technology and that it does not violate the article 20(3).

The court held that mere giving thumb expression would not amount to be a witness as this would not amount to be a incriminating statement and had a view that this would only help in improving the investigation. So in this case, the court had the view that giving thumb expression or handwriting could not make an accused witness against himself and thus it is not constitutionally wrong to take thumb expression or handwriting for investigation without answering on the point that what will happen when the thumb expression is taken forcefully.

•  Dinesh Dalmia vs State by Spe , CBI18 – In this case the petitioner Dinesh Dalmia was accused with charges of fraud of over 500 crore by selling shares of a company .The investing agency was not able to get the evidence against the petitioner so they requested the chief metropolitan judge for a Narco Analysis Test, Brain Mapping Test which the judge granted and therefore the petitioner filed a petition against that order claiming that it is violation of article 20(3) and it also is bad for the health of the petitioner . The court agreed that the accused has the right to remain silent but also held that since no use of force is being used against the petitioner , the right to remain silent is not violated by the investigating agency and the use of narcotics is not a violation of article 20(3).

Further the court held that the use of narcotics would not deteriorate the health of petitioner as it is a scientific test and held that since the investigating agency is not getting any clue against the petitioner , they are justified using the narcotics test on petitioner. Thus in this case also, the court held that administration of narcotics, is not the violation of fundamental right even though it is conducted against the will of the accused.

• Ram Chandra Reddy vs State of Maharashtra19- In this case the petitioner was accused under the violation of IPC and the Maharashtra Control of Organised Crimes Act(MCOCA) and the investigating agency asked the lower court for conducting Brain Mapping, Lie Detector and Narcotics Test on the petitioner against which the petitioner has filed the petition that it violates the Article 20(3) as there is a invasion against their body and they are forced to give statement against themselves.

The court here first looked how does the Brain Mapping , Lie Detector and the Narco Analysis Test is conducted . Brain Mapping according to court means a test where the accused would be hearing words in 3 sets and the subject does not need to answer any word but he will be under a 32 channel Neuro Scan Cording Channel and his brain activity would be recorded . Another test is lie detector test where there would be probes attached to body of accused and then the questions would be asked and the probes would analyse the heartbeat, blood pressure, heart rate to know whether the accused is lying or not. Third the Narco Analysis Test , in this test a serum would be given to drug the accused and then questions would be asked from the accused. The court viewed the constitutional debates based on Article 20(3)20 and held that the constitutional makers wanted to protect the accused from forceful statements and self incrimination but after seeing the use of brain mapping and lie detector test, the court held that both the tests does not force the accused to give statements that will lead to self incrimination and thus they can use these two tests and as far as the narco analysis test is concerned , the court held that , though it somewhat invades the body, protections are given in IPC and Evidence Act against the violation of article 20(3) and whether the narco analysis violates the principle of self incrimination or not will be known only after the test is conducted and thus the narco analysis test should also be conducted. Thus court in this case also held that there is no violation of Article 20(3) in administering the forensic science tests of Lie Detection, Brain Mapping and Narco Analysis.

• Selvi vs State of Karnataka21- This is a landmark supreme court judgment that was given on use of narco test against the will of accused , which is considered as a judgment on behalf of humanity vs technology . The court in 2010 heard the case where the main issue was whether compulsory and involuntary narco analysis test , brain mapping test violates the article 20(3) of the constitution. The court looked at various aspects before deciding the case , the first aspect that it violates the privacy of the accused. Now at time of this judgment the puttaswamy case was not there and at that time privacy was not a fundamental right but was only a part of Article 21, wherein the court held that , the forceful use of narco analysis on any person would mean that this would violate the mental privacy of the accused . Another aspect that the court listened was of the principle of due process of law , and the court had the view that since in the narco test , the accused is video graphed and recorded and if it is against the principle of due process of law , as the accused is confined in a place involuntarily , which also violates personal liberty as guaranteed under article 2122 and also video graphing it is against due process of law.

Though the court held that there are certain powers with the judiciary and police to violate the personal liberty as in the case of forceful medical examination but this involuntary administration of Narcotics would be violating that power. Thus after analyzing all these aspects the court held that the forceful use of narco analysis is unconstitutional.

CONCLUSION

With the emerging advanced technology and sciences, the use of Forensic Sciences in the Trial Proceedings and the Criminal Investigation, becomes extremely essential. The identification of victims and the culprits becomes easy, and with the help of the same, the problem of undue delay caused in the whole procedure also solves. There are circumstances of deadlock, where the investigating agencies find absolutely no clue, in such situations, the help of forensic science becomes important. However, involuntary administration of such tests, i.e., Polygraph tests, Brain Mapping, DNA Prints, etc. shouldn’t be enforced. This would be violative of Article 20(3) which is to protect the accused from self- incrimination. The article says that no accused should be forced to be a witness against his own self. Forced administration would incriminate this right.

Also read - Can Police Arrest You Even if You Have Not Committed a Crime? 

•  III Year , B.A.LLB(Hons), Institute of Law Nirma University.  III Year , B.A.LLB(Hons), Institute of Law Nirma University. 1 Maneka Gandhi v. Union of India , AIR 1978 SC 597.
  
• 2 Selvi v. State of Karnataka, AIR 2010 SC 1974.
• 3B.R. Sharma , Forensic Science in Criminal Investigation and Trial 12 ( 4th Edition, 2012). 4 Id at 22.
• 5 Id at 1118.
• 6 Id at 1129.
• 7 Killer breakthrough- the day DNA evidence first nailed a murderer , https://www.google.com/amp/s/amp.theguardian .com/uk-
• news/2016/jun/07/killer-dna-evidence-genetic-profiling-criminal-investigation(Last Visited- 11 March 2019, 10:40 PM).
• 8 Dna evidence “confirms” human bomb killed Punjab CM Beant Singh, http://www.indiatoday.in/magazine/indiascope/story/19951130-dna-evidence-confirms-human-bomb-killed-punajb-cm-beant-singh- 808031-1995-11-30. (Last Visited- 11 March 2019, 10:40 PM).
• 9 Supra 3 at 1119.
  
• 10 The DNA Technology(Use and Application) Regulation Bill, 2018 ,https://www.prsindia.org/billtrack/dna-technology-use-and- application-regulation-bill-2018 (Last Visited- 11 March 2019, 10:40 PM).
  
• 11The DNA Technology (Use and Application ) Regulation Bill , 2018 http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/142_2018_LS_Eng.pdf (Last Visited- 11 March 2019, 10:40 PM).
• 12 Id.
  
• 13 Id.
  
• 14 India Const. art. 20, cl. 3.
• 15 Supra 2.
  
• 16 Supra 14.
  
• 17 State of Bombay vs Kathi , AIR 2010 SC 1974. 18 Dinesh Dalmia vs State , CRI 2004 MHC 2410.
• 19 Ram Chandra Reddy vs State of Maharastra , AMC 2004 MHC 1704. 20 Supra 14.
  
• 21 Supra 2 .
  
• 22 India Const. art. 21.