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Forensic evidences in Criminal Trial: Need of the Hour

Introduction:

Indian Evidence Act is uniform Evidence Act for whole of India, In India, law regarding
evidence is uniform in both Civil and criminal cases, the degree of proof required may be
somewhat different in civil and criminal cases but mode of giving evidence is govern by
same legislation. So far as criminal jurisprudence in India is concerned doctrine of onus
probandi is in the field and therefore One shall be presume innocent till his crime is
proved not only proved but proved beyond reasonable doubt, this principle of Onus
probendi is recognized under chapter of the Evidence Act which has restricted use of
forensic science in criminal trials in India. It is very difficult to say anything beyond
reasonable doubt so far as techniques of ascertaining fact with the help of forensic
science is concerned. But with the passes of time modern techniques developed in the
field of Forensic science are capable of ascertaining facts somewhat beyond reasonable
doubt. In this background it is more appropriate to conduct a study in the recent
Judgments of Supreme Court of India to see the change in the approach and attitude of
Judiciary in appreciating forensic evidences in Criminal cases.
Method: This paper is prepared by applying doctrinal method of research, researcher
have relied on the material collected from reliable sources like, Law Commission reports,
Decisions of Supreme Court of India and other High Courts in India, Legislations of the
Parliament and state legislatures.

1. Law and forensic science in India

Criminal Procedure Code and Indian Evidence Act 1872 are the parent procedural laws
which govern criminal trials in India, while Criminal procedure Code prescribes the
procedure from the point of taking cognizance of crime by appropriate judicial
Magistrates till the delivery of final order of Conviction or acquittal or any appropriate
1

Adarsh M. Dhabarde, Assistant Professor (Law), Government Institute of Forensic Science, Nagpur.

Electronic copy available at: http://ssrn.com/abstract=2111995

Forensic evidences in Criminal Trial: Need of the Hour

order looking into the fact of the case. Indian Evidence Act is limited in its scope of
leading evidences in civil or criminal cases either by the prosecution or defendant,
applicant or respondent. Act also deals with kind of evidences and relevancy of any fact
which can be brought as evidence in any case.
Section 452.:Opinions of experts.- When the Court has to form an opinion upon a point of
foreign law, or of science, or art, or as to identity of handwriting [ or finger impressions]3,
the opinions upon that point of persons specially skilled in such foreign law, science or
art, [ or in questions as to identity of handwriting]4 [or finger impressions]5 are relevant
facts. Such persons are called experts.
Section 46: Facts bearing upon opinions of experts.- Facts, not otherwise relevant, are
relevant if they support or are inconsistent with the opinions of experts, when such
opinions are relevant.
Section 47:Opinion as to hand- writing, when relevant.- When the Court has to form an
opinion as to the person by whom any document was written or signed, the opinion of
any person acquainted with the handwriting of the person by whom it is supposed to be
written or signed that it was or was not written or signed by that person, is a relevant fact.
Thus the ingredients of section 45, section 46 and 47 highlights that:
1) The court when necessary will place its faith on skills of persons who have technical
knowledge of the facts concerned.
2) The court will rely the bona fide statement of proof given by the expert concluded on
the basis of scientific techniques.
3) The evidence considered irrelevant would be given relevance in eyes of law if they are
consistent with the opinion of experts.

The Indian Evidence Act 1872, Section 45.

Ins. by Act 5 of 1899, s. 3. For discussion in Council as to whether" finger impressions" include" thumb
impressions," see Gazette of India, 1898, Pt. VI, p. 24.
4
Ins. by Act 18 of 1872, s. 4.
5
Abid. F.note 1.
3

2
Electronic copy available at: http://ssrn.com/abstract=2111995

Forensic evidences in Criminal Trial: Need of the Hour

4) The Court may rely on the opinion of a person acquainted with the handwriting of
another person when such handwriting is in question.
In addition to above provisions under Indian Evidence Act, Criminal procedure Code also
provide for testimony of a medical practitioner which also call for reproduction here,
Sec. 536 deals with examination of the accused by medical practitioner at the request of
police officer if there are reasonable grounds to believe that an examination of his person
will afford evidence as to the commission of the offence.
Sec. 54 of the Criminal Procedure Code, 1973 further provides for the examination of the
arrested person by the registered medical practitioner at the request of the arrested person.

Further after passing of Information technology Act 2000, Indian legal system has
recognized forensic evidences categorically and specifically
Amendments to the Indian Evidencee Act 1872 are amended by schedule-II relevant
portion is reproduced here as under:
1. In the definition of "Evidence, for the words "all document produced for the
inspection of the Court", the words "all documents including electronic records produced
for the inspection of the Court" shall be substituted.
2. After section 47, the following section shall be inserted, namely:- "47A. Opinion as to
digital signature when relevant.- When the court has to form an opinion as to the digital
signature of any person, the opinion of the Certifying Authority which has issued the
digital signature Certificate is a relevant fact"

Once electronic evidences form part of the term Evidence, Indian Judicial system
introduced more and more reliance on Forensic science as there is no other way out to
prove the authenticity of such electronic record.

Code of Criminal Procedure 1973, Section 53.

Forensic evidences in Criminal Trial: Need of the Hour

This is the legislative record of India recognizing participation and reliance of forensic
science in Criminal Trials.

2. Some interesting uses of Forensic Science in Criminal trials:

1. Forensic Identification (DNA tests)

2. Forensic Entomology
3. Forensic Odontology
4. Forensic Pathology
5. Forensic Toxicology
2.1. Forensic Identification (DNA tests)
There are different tests based on DNA to ascertain different fact some of them are
discussed in brief here.
2.1.1 Restriction Fragment Length Polymorphism (RFLP)
RFLP was one of the first applications of DNA analysis to forensic investigation. With
the development of newer, more efficient DNA-analysis techniques, RFLP is not used as
much as it once was because it requires relatively large amounts of DNA. In addition,
samples degraded by environmental factors, such as dirt or mold, do not work well with
RFLP.
2.1.2 PCR Analysis
Polymerase chain reaction (PCR) is used to make millions of exact copies of DNA from a
biological sample. DNA amplification with PCR allows DNA analysis on biological
samples as small as a few skin cells.
2.1.3 STR Analysis

Forensic evidences in Criminal Trial: Need of the Hour

Short tandem repeat (STR) technology is used to evaluate specific regions (loci) within
nuclear DNA. Variability in STR regions can be used to distinguish one DNA profile
from another.
2.1.4 Mitochondrial DNA Analysis
Mitochondrial DNA analysis (mtDNA) can be used to examine the DNA from samples
that cannot be analyzed by RFLP or STR. Nuclear DNA must be extracted from samples
for use in RFLP, PCR, and STR; however, mtDNA analysis uses DNA extracted from
another cellular organelle called a mitochondrion. While older biological samples that
lack nucleated cellular material, such as hair, bones, and teeth, cannot be analyzed with
STR and RFLP, they can be analyzed with mtDNA. In the investigation of cases that
have gone unsolved for many years, mtDNA is extremely valuable.
2.1.5 Y-Chromosome Analysis
The Y chromosome is passed directly from father to son, so analysis of genetic markers
on the Y chromosome is especially useful for tracing relationships among males or for
analyzing biological evidence involving multiple male contributors.

2.2. Forensic Entomology

Forensic entomology is the application and study of insect and other arthropod biology to
criminal matters. Forensic entomology is primarily associated with death investigations;
however, it may also be used to detect drugs and poisons, determine the location of an
incident, detect the length of a period of neglect in the elderly or children, and find the
presence and time of the infliction of wounds. Forensic entomology can be divided into
three subfields: urban, stored-product and medico-legal/medico-criminal entomology.
2.3 Forensic Odontology

Forensic evidences in Criminal Trial: Need of the Hour

Forensic dentistry or Forensic odontology is the proper handling, examination and
evaluation of dental evidence, which will be then presented in the interest of justice. The
evidence that may be derived from teeth, is the age (in children) and identification of the
person to whom the teeth belong. This is done using dental records or ante-mortem (prior
to death) photographs. Forensic odontology is derived from Latin, meaning forum or
where legal matters are discussed. The first forensic dentist in the United States was Paul
Revere who was known for the identification of fallen revolutionary soldiers.
The other type of evidence is that of bite marks, left on either the victim (by the attacker),
the perpetrator (from the victim of an attack), or on an object found at the crime scene.
Bite marks are often found on children who are abused.
Forensic dentists are responsible for six main areas of practice:

Identification of found human remains

Identification in mass fatalities

Assessment of bite mark injuries

Assessment of cases of abuse (child, spousal, elder)

Civil cases involving malpractice

Age estimation.

2.4. Forensic Pathology

Forensic pathology is a branch of pathology concerned with determining the cause of
death by examination of a cadaver. Forensic pathology was first recognized in the USA
by the American Board of Pathology in 1959. The autopsy is performed by the
pathologist at the request of a coroner or medical examiner usually during the
investigation of criminal law cases and civil law cases in some jurisdictions. Forensic
pathologists are also frequently asked to confirm the identity of a cadaver. Forensic
pathology is that branch of medicine which deals with the study of cause of death by
examination of a dead body at the request of a coroner during legal cases. In forensic

Forensic evidences in Criminal Trial: Need of the Hour

pathology the pathologist assist the criminal case by collecting and examining tissues
specimens under the microscope in order to identify the presence or absence of natural
disease and other microscopic findings such as asbestos bodies in the lungs or gunpowder
particles around a gunshot wound. The pathologist also Collects and interprets
toxicological analyses on bodily tissues and fluids to determine the chemical cause of
accidental overdoses or deliberate poisonings. Forensic pathologists also work closely
with the medico-legal authority for the area concerned with the investigation of sudden
and unexpected deaths.
2.5. Forensic Toxicology
Forensic toxicology is the use of toxicology and other disciplines such as analytical
chemistry, pharmacology and clinical chemistry to aid medical or legal investigation of
death, poisoning, and drug use. The primary concern for forensic toxicology is not the
legal outcome of the toxicological investigation, but rather the technology and techniques
for obtaining and interpreting the results. A toxicological analysis can be done to various
kinds of samples. The first comprehensive work on forensic toxicology was published in
1813 by Mathieu Orifila. He was a respected Spanish chemist and the physician who is
often given the distinction of "father of toxicology." His work emphasized the need for
adequate proof of identification and the need for quality assurance. It also recognized the
application of forensic toxicology in pharmaceutical, clinical, industrial and
environmental fields. Some of the samples used in Forensic Pathology are Urine, Blood,
Hair sample, Oral fluid and other bodily fluid.
3. Some Criminal Cases Solved By Forensics
3.1.Vasu vs Santha 1975 (Kerala)
In the above cases the court has laid down certain guidelines regarding DNA tests and
their admissibility to prove parentage.
(1) That courts in India cannot order blood test as a matter of course;
(2) Wherever applications are made for such prayers in order to have roving inquiry, the

Forensic evidences in Criminal Trial: Need of the Hour

prayer for blood test cannot be entertained.
(3) There must be a strong prima 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) The court must carefully examine as to what would be the consequence of ordering
the blood test; whether it will have the effect of branding a child as a bastard and the
mother as an unchaste woman.
(5) No one can be compelled to give sample of blood for analysis.
Further the court said Blood-grouping test is a useful test to determine the question of
disputed paternity. It can be relied upon by courts as a circumstantial evidence, which
ultimately excludes a certain individual as a father of the child. However, it requires to be
carefully noted no person can be compelled to give sample of blood for analysis against
his/her will and no adverse inference can be drawn against him/her for this refusal.
3.2. Tandoor Murder Case (1995) Delhi
This was the first criminal case in India solved by the help of forensics. In this case
Shusil Sharma murdered his wife at home by firing three bullets in to his wife Naina
Sahnis body. He killed his wife believing that she had her love affair with her classmate
and fellow congress worker Matloob Karim. After murdering his wife Sharma took her
body in his car to the Bagiya restaurant, where he and restaurant manager Keshav Kumar
attempted to burn her in a tandoor there. Police recovered Sharmas revolver and bloodstained clothes and sent them to Lodhi Road forensic laboratory. They also took blood
sample of Sahni's parents, Harbhajan Singh and Jaswant Kaur and sent them to
Hyderabad for a DNA test. According to the lab report, "Blood sample preserved by the
doctor while conducting the post mortem and the blood stains on two leads recovered
from the skull and the neck of the body of deceased Naina are of 'B' blood group."
Confirming that the body was that of Sahni, the DNA report said, "The tests prove
beyond any reasonable doubt that the charred body is that of Naina Sahni who is the
biological offspring of Mr. Harbhajan Singh and Jaswant Kaur." And finally Mr. Shusil
Sharma was found guilty with the help of forensic evidences.

Forensic evidences in Criminal Trial: Need of the Hour

3.3. Sister Abhaya murder case (1995) Kerala
The Sister Abhaya Case is a case regarding the death of a Knanaya Roman Catholic nun,
who was found dead in a water well in St Pius X convent in Kottayam, India, on 27
March 1992. She was 19 years old at the time of her death and was a member of St.
Joseph's Congregation for women under the Knanaya Catholic diocese of Kottayam,
Kerala in India. She was a pre-degree student of BCM College, Kottayam and was
staying in St Pius X Convent/Hostel at the time of her death. On the day of her death she
got up from sleep early at around 4 am to study for her exam, had gone down to the
kitchen of the hostel to get water from the refrigerator. Later her body was found in the
well outside the kitchen in the convent/hostel compound. Scientific investigation methods
such as polygraph tests, brain mapping/brain fingerprinting and narco analysis were used
to solve the case. Subsequently two fathers of the church were arrested.
3.4. Aarushi Talwar murder case (2007) Noida
On the morning of May 16, 2008, Aarushi Talwar (May 24, 1993 - May 15, 2008), the
14-year-old daughter of a successful dentist couple, was found dead with her throat slit in
her parents' home at Jalvayu Vihar in Noida, a posh suburb of Delhi. Suspicion
immediately fell on the family's live-in man-servant, Yam Prasad Banjade alias Hemraj, a
45 year old Nepalese national, who was found missing from the home. Immediately
declaring Hemraj as the prime suspect, the Noida police announced a reward for
information leading to Hemraj's apprehension and arrest. In addition, a police party was
dispatched to his hometown in Nepal, in hopes of apprehending him there. In this case
fingerprinting was applied and DNA was extracted from the clothes containing blood
stains. Also several fingerprints were found on the glasses of the house at the time of
murder. Several narco analysis tests were applies on Aarushis father on CBIs suspicion,
but after no evidence Aarushis father was acquitted. The final verdict of the Court on
this case is still pending.
3.5. Dinesh Dalmia v. C.B.I (2007)

Forensic evidences in Criminal Trial: Need of the Hour

The Central Bureau of Investigation (CBI) lodged a first information report against the
appellant and three companies registered and incorporated under the Companies Act,
1956 on a complaint made by the Securities and Exchange Board of India. Indisputably,
Appellant was named therein. He was, however, evading arrest. He had gone to the
United States. The learned Magistrate by an order dated 14.02.2005, on a prayer made in
that behalf by the CBI, issued a non-bailable warrant of arrest against him. Upon
completion of investigation, a charge sheet was submitted before the Magistrate in terms
of Sub-section (2) of Section 173 of the Code.
Investigation has revealed that Sh. Dinesh Dalmia, the then Managing Director &
Custodian of properties, including shares, of M/s. DSQ Software Ltd., fraudulently got
dematerialized un- allotted and unlisted share of DSQ Software Ltd. In the name of three
entities namely New Vision Investment Ltd., UK; Dinesh Dalmia Technology Trust and
Dr. Suryanil Ghosh, Trustee - Softechh Corporation and thereafter these shares were sold
in the market and the proceeds of sale of said shares were credited in the accounts of M/s.
DSQ Holdings Ltd., M/s. Hulda Properties and Trade Ltd. and M/s. Power flow Holding
and Trading Pvt. Ltd. and thereby dishonestly misappropriated and cheated investors
including existing share holders and obtained undue gain to the tune of Rs.
5,94,88,37,999/-. Thus, Sh. Dinesh Dalmia has committed fraudulent acts prima facie
disclosing commission of offences of cheating, breach of trust, forgery and using forged
documents as genuine by getting wrongful gain in the matter of partly paid shares.
This case is of our concerned because, in this case when Dalmia was arrested, and police
requested the court for detention of Dalmia for more days until enough evidences had
been collected in order to prove the charge. The court granted the detention and extended
the days for collecting the evidences. Meanwhile the CBI introduced Dalmia to narco
analysis test, in order to gain the truth behind the motive of crime, and at last they got
some evidences in oral from Dalmia. But after the narco analysis test was introduced,
several other issues regarding Fundamental Rights were raised by Dalmia; the first
amongst them was, right to self incrimination, which is the major critique of these
forensic tests. This case is not decided yet. This is a major critique of forensic science
that, some times it does not stand true on testing.

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Forensic evidences in Criminal Trial: Need of the Hour

Conclusion
There is a unanimity that medical and forensic evidence plays a crucial role in helping the
courts of law to arrive at logical conclusions. Therefore, the expert medical professionals
should be encouraged to undertake medico legal work and simultaneously the atmosphere
in courts should be congenial to the medical witness. This attains utmost importance
looking at the outcome of the case, since if good experts avoid court attendance, less
objective professional will fill the gap, ultimately affecting the justice. The need to
involve more and more professionals in expert testimony has been felt by different
organizations. The American College of physician's guidelines for the physician expert
witness emphasizes on broad physician participation in providing this much-needed
assistance to the legal system. The college believes that more doctors should serve as
experts as a component of their professional activities in order to meet the need for
medical testimony. This objective of greater expert participation can only be achieved by
addressing to the apprehensions that ponder the mind of medical professionals. In the
light of new developments in the forensic science, the home ministry, Govt. of India
constituted a committee under the chairmanship of Dr. Justice V.S Malimath to suggest
reforms in the criminal justice system. This committee suggested comprehensive use of
forensic science in crime investigation. According to the committee DNA experts should
be included in the list of experts given in section 293(4) of Cr.P.C, 1973.
Suggestions by Malimath committee:
1. Sec. 313 of the CR.P.C must also be amended so as to draw adverse inference against
the accused if he fails to answer any relevant material against him therefore, making it
easy for the law enforcers to use DNA tests against him.
2. A specific law should be enacted giving guidelines to the police setting uniform
standards for obtaining genetic information and creating adequate safeguards to prevent
misuse of the same.
3. A national DNA database should be created which will be immensely helpful in the
fight against terrorism.
4. More well-equipped laboratories should be established to handle DNA samples and
evidence.

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Forensic evidences in Criminal Trial: Need of the Hour

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

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Forensic evidences in Criminal Trial: Need of the Hour

References.
Books
Forensic Science in Criminal Investigation & Trials, B. R. Sharma, Fourth Edition,
Universal Law Publications.
Law Relating to Narcotic Drugs and Psychotropic Substances in India, R. P. Kataria,
Second Edition, Orient Publications.
Forensic Science in Criminal Investigation, Dr. Jai Shanker Singh, Unique Law
Publications.
Medical Jurisprudence and Toxicology, Moitra & Kaushal, Third Edition, Delight
Publications
Websites and Web Pages
http://insects.about.com/od/forensicentomology/f/CSItoxicology.htm
http://www.udel.edu/PR/UpDate/97/17/8.html
http://biologicalevidence.suite101.com/article.cfm/what_is_a_forensic_entomologist
www.francesfarmersrevenge.com/stuff/serialkillers/boden.htm
http://ses.library.usyd.edu.au/bitstream/2123/669/4/adt-NU20051101.22492201front.pdf
http://www.all-about-forensic-science.com/forensic-odontology.html
http://pjms.com.pk/issues/janmar08/pdf/teeth.pdf
http://new.trutv.com/library/crime/serial_killers/notorious/bundy/14.html
http://www.ncbi.nlm.nih.gov/pubmed/7018144
http://books.google.co.in/books?id=4VkXpNe9xLoC&dq=criminal+cases+solved+by+fo
rensic+pathology&printsec=frontcover&source=in&hl=en&ei=2fVyS5CONsIkAWr07CACg&sa=X&oi=book_result&ct=result&resnum=12&ved=0CC8Q6AE
wCw#v=onepage&q=&f=false
http://www.forensic-medecine.info/forensic-pathology.html
http://www.exploreforensics.co.uk/forensic-toxicology.html

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Forensic evidences in Criminal Trial: Need of the Hour

http://en.wikipedia.org/wiki/Sister_Abhaya_murder_case
http://www.santoshraut.com/forensic/forensicscinindia.htm
www.forensicentomologyindia.com/
http://speakindia.wordpress.com/2008/07/16/arushi-talwar-murder-case-finally-solved/

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