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FORENSIC LAW IN INDIA

By

Syed Zainul Hasan Rizvi, IV year of LL.B.(Hons.) from Unity P.G. and Law College Lucknow.


Concept of Forensic Science

The word forensic is derived from the Latin word Forensic” which means forum, In Rome forum was a meeting place where the civic and legal matter was discussed by those with public responsibility. Forensic medicine is usually associated with the detection of violent crimes. Medical Jurisprudence or called forensic science is that branch of science which teaches the application of every branch of medical knowledge to the purpose of the law. Its aim which it has in common with, all other sciences is the elucidation of truth. Hence its limits are on one hand requirement of law and the second-hand whole range of medicine. It embraces those questions which affect the civil and social rights of the individual as well as cases of injuries to the person and bring the medical practitioner in contact with the law. Andrew Duncan established forensic medicine on a systematic basis in Britain. He stated the following as uses of forensic medicine. The criminal uses included are detection of rape, murder abortion, infanticide.


The other two sections are stated as:-

1. States of mind- Madness, idiotism

2. Pregnancy- Concealed, pretended.

3. Parturition- Concealed, pretended, retarded, and pre-mature.

4. The firstborn of twins.

5. Disease- Concealed, pretended, imputed

6. Age duration of life


The subjects investigated before the Courts are:-

1. Impotence- general, relative, curable & incurable.

2. Sterility- curable, absolutely curable, relatively curable.

3. Uncertainty of sex.

4. Diseases preventing cohabitation – venerable disease and leprosy.

Use of Forensic Science

To trace the beginning of Medical Jurisprudence it is necessary to go back to the dawn of civilization. In Egypt, the physician who departed from the principles of treatment laid down in the sacred Hermetic books answered with his head for the death of his patient. Today in all civilized countries right to practice medicine is subject to the law. Forensic evidence, as secondary evidence, corroborates the primary evidence and helps judiciary in delivery of justice [1]


1. Forensic Biology /DNA- Apart from fingerprint analysis; DNA profiling is the other most common technique in criminal investigation. DNA being unique to an individual as fingerprint helps forensic practitioners to identify the unidentified person or to eliminate suspects from a list of accused. The biological evidence most commonly used for DNA profiling includes blood, saliva, semen, skin, urine hair. DNA has been used for paternity determination by Indian court since 1991[2]


2. Forensic Odontology- It helps in identification of victims when the body is left in an unrecognizable state. This is achieved through an examination of their teeth, the alignment and overall structure of the mouth. Usually applied in a criminal investigation for bite mark analysis. Forensic medicine involves collection and analysis of medical samples to draw interference of facts admissible in the court of law.


3. Forensic Toxicology- Forensic Toxicology involves the analysis of biological samples to check the presence of toxins and drugs. This branch of forensic science is of prime importance in road accidents poisoning and sexual violence. The toxicology report is aware of the nature of substances present in an individual about an incidence. James Marsh an expert chemist firstly applied this art of forensic science.


4. Forensic Anthropology- It deals with the examination of compromised human remains or skeletons to help determine the age, height, gender, and ancestry. It also helps to establish the time since death by identifying and examining injuries if any.

Admissibility of Forensic Science in Indian Court

Section 3[3] of the Indian Evidence Act 1872 defines evidence as that which the court of justice is permitted by law to take into consideration for making clear or ascertaining the truth of the fact or the point of issue. Even section 322(1) of the Cr. P.C states that the word evidence means all statements and facts which have been disclosed by inquiry and is not restricted to deposition recorded by Magistrate. Section 44 and 45 of the Indian Evidence Act 1872 gives a brief about the admissibility of the forensic report in the courtroom.


The ingredients of Section 45 and 46 are as follows:

1. That whenever the court feels necessary will put faith on skilled individuals who have technical and field knowledge about the facts so discussed in the case.


2. That the court will rely upon the report presented by the official or expert who has concluded his results through various techniques with bona fide intention.


3. That whatever evidence which appears irrelevant to the court but seems relevant by the opinion of the expert will be given relevance because of such opinion.

Case laws within which justice was rendered solely hoping on the forensic report

In the case of Mukesh and ors. Vs State of Delhi[4] the accused was acquitted of the charge of dowry and was saved from the false allegations of a wife who said she had been subjected to dowry cruelty and has been poisoned whereas the forensic report clearly shows that there was no poison in her stomach after conducting the tests of Toxicology and ballistics. Also within the case of Kishan Chand Vs State of Himachal Pradesh[5], the accused was tried for the offence of committing rape of a child between 10-12 years and was convicted for the offence by the of the assistance of forensic reports by experts corroborated with the circumstances.


The techniques used by the RFSL of Mandi were DNA profiling, Benzidine test, Gel-diffusion technique and Acid Phosphatase test. In Dipanwita Roy v. Ronobroto Roy[6] to uphold the decision of the family court and the high court allowing DNA test for determining not only the paternity of newborn child but also to conclusively testify the veracity of accusations of infidelity levelled by the husband in the divorce petition filed in the family court under section 13 of the Hindu Marriage Act, 1955. The apex court was, therefore, firm in holding that proof-based on DNA test would be sufficient to dislodge a presumption under section 112 of the Indian Evidence Act. In Rudresh Rudrachari v. State of Karnataka[7], the issue was whether a court can order the conducting of scientific tests like DNA as contemplated under section 53A of the Code of Criminal Procedure, 1973 (Cr. PC) or is it strictly limited to the request by a police officer not below the rank of sub-inspector to refer a case to the medical practitioner to conduct DNA. The High Court of Karnataka further observed: The primary duty Court is to ascertain the truth. Thus it’s not correct to say that Court or Magistrate cannot direct or order the accused of medical examination as contemplated under Section 53 and 54 of the Code

Conclusion

The hallmark of a democratic and progressive society is Fairness in the administration of justice. The investigating officer (IO) in India is created solely chargeable for evidence collection to help the court in pursuit of truth for the delivery of justice. The scientific evidence helps to bring fairness in the investigation and helps in corroborating other evidence during the trial.

Since 1897, India has been using a fingerprint for classification of the records of criminals. Forensic science contributes to solving crimes through investigative activities like finding missing persons, and profiling criminals, determining the reason for death, identifying suspects, the first tool of medical speciality has always been the autopsy. Indeed, DNA has played a vital role in strengthening the rights of the unmarried mother and her child especially those belonging to marginalized sections of society who suffered sexual exploitation under various compelling circumstances including the deceitful promise of marriage. Still, the vital issue remaining unaddressed is that, until the putative father gets social acceptance and legal recognition, merely determining the putative father by DNA doesn't confer any right to the mother and therefore the child. The society should accept both social father and putative and law accordingly modify that position, mere DNA test cannot help the likes of Rohit Shekhar to enjoy legal validation of being the legitimate son of Narayan Dutt Tiwari.

[1] Jitendra N. Bhata, “A Profile of Forensic Science” (2003) 8 SCC ( Jour) 25.

[2] Kunhiraman v. Manoj, II (1991) DMC 499.

[3] Interpretation clause. —in this Act, the following words and expressions are used in the following senses, unless a contrary intention appears from the context: — “Court”. —“Court” includes all Judges 1 and Magistrates, 2 and all persons, except arbitrators, legally authorized to take evidence. “Fact”. —“Fact” means and includes—

(1) Anything, state of things, or relation of things, capable of being perceived by the senses;

(2) Any mental condition of which any person is conscious. Illustrations

(a) That there are certain objects arranged in a certain order in a certain place, is a fact.

(b) That a man heard or saw something is a fact.

(c) That a man said certain words is a fact.

(d) That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.

(e) That a man has a certain reputation is a fact. “Relevant”. —One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts. “Facts in issue”. —The expression “facts in issue” means and includes— any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows.

(1)all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;

(2) [All documents including electronic records produced for the inspection of the Court], such documents are called documentary evidence. “Proved” .—A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. “Disproved”. — A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. “Not proved”. — A fact is said not to be proved when it is neither proved nor disproved. 7 [“India”. — “India” means the territory of India excluding the State of Jammu and Kashmir.] 8 [the expressions “Certifying Authority”, 9 [electronic signature], 9 [Electronic Signature Certificate], “electronic form”, “electronic records”, “information”, “secure electronic record”, “secure digital signature” and “subscriber” shall have the meanings respectively assigned to them in the Information Technology Act, 2000 (21 of 2000).]

[4] Criminal Appeal No. 399 of 1997 | 20-04-2009

[5] Mukesh and ors. Vs State of Delhi, Delhi High Court, 15th December 2014. Crl. A. No. 784 of 2008

[6] 2014 SCC Online SC 831: (2015) 1 SCC 365.

[7] 2014 (3) Crimes 575 (Kant.); 2014 (4) Kar LJ 442: 2014 (4) KCCR 3405