INTRODUCTION
Before putting into words the term ‘scientific evidence’, it is imperative to identify the
concepts “Evidence” and “Science”. The term ‘evidence’ means “anything by which any
alleged matter of fact is either established or disproved”. Whatsoever makes the controversial
thing apparent and clear in the court of law is evidence. Where the question is whether the
explosion took place before a fire occurred. The noise of the explosion and its flash are
evident of it. Persons who saw the flash or heard the noise can give evidence of the fact of the
explosion. Evidence can be two forms technically i.e. oral and documentary, additionally;
electronic records can be produced as evidence including video conferencing
. If the happening of a fact is recorded on anything apart from human memory, that record is an
evidence of the happening. Evidence can be defined as any material which tends to persuade
the court of the truth or probability of some fact asserted before it
.
According to Webster dictionary, evidence is that which is legally submitted to a competent
court or tribunal as a means of ascertaining the truth or otherwise of an alleged matter of fact
under investigation.
Section 3 of Indian Evidence Act, 1872 defines evidence as "Evidence" means and includes
(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 document including electronic records produced for the inspection of the Court,
such statements are called documentary evidence”;
The section has not defined the term evidence in real sense but is rather a statement of what
the term evidence includes, namely oral account of the happening of a fact given by those
who have personally witnessed the happening and any document in which happening of the
fact is recorded. Section 3 is just a statement of kinds of evidence. It tells us that evidence is
of two types: - Oral and Documentary but this does not mean that there can be no other type
of evidence. As for instance if a judge inspects scene of occurrence it is regarded as evidence.
State of Maharashtra v. Praful B. Desai (2003) 4 SC 601
Supreme Court has made it clear that where the
evidence offered comes within the meaning of its definition, the court can act and need not to
concern itself with the method by which it was obtained.
MEANING OF SCIENTIFIC EVIDENCE
“The Latin term ‘scientia’ gave the birth to the term science, which means knowledge. It is a
systematic enterprise that builds and organizes knowledge in the form of testable
explanations and predictions about the universe.”
New oxford advanced learner’s dictionary defined science as the understanding about the
composition and behaviour of the both natural as well as physical world, relying on the data
that one can prove.
Scientific Evidence may be defined as fact or opinion evidence that purports to draw on
specialized knowledge of science or to rely on scientific principles for its evidentiary value.
In simple terms, scientific evidence is evidence used in courts and which is arrived at by
scientific or technical means.
Application of science in law is commonly known as Forensic Science. The area of its
application is quite wide and comprehensive.7 Forensic science has been defined as the
application of the principle of medicine to the purpose of law. Forensic medicine deals almost
entirely with crimes against the persons, in which medical examination and evidence are
required. Forensic science is mostly an exercise of common sense, combined with the
application of knowledge and experience already acquired in the study of other branches of
medicine, surgery, obstetrics, etc. Its aim is to find out the truth. Its particular field of activity
is judicial investigation, both civil and criminal. In all the cases of crimes, eg: murder,
suicide, assault, sexual offences, traffic accident, poisoning etc, the help of medical
practitioner is sought by the police.
The word ‘forensic’ is derived from a Latin term ‘forensis’, which means ‘of the forum’. In
Rome, forum was the meeting place where civil and legal matters were discussed by those
with public responsibility. Forensic science is the application of natural sciences to matters of
Satyendra K. Kaul and Mohd. H.Zaidi, “ Narcoanalysis, Brain Mapping, Hypnosis and Lie Detector Tests in the law. In practice, forensic science draws upon physics, chemistry, biology, and other
scientific principles and methods. It is concerned with the recognition, identification,
individualization, and evaluation of physical evidence. Anatomy, physiology, medicine,
surgery, chemistry, physics and botany lend their aid as necessity arises, and in some cases,
all these branches of science are required to enable a court of law to arrive at a proper
conclusion on a contested question affecting life and property.
HISTORICAL BACKGROUND: ORIGIN AND
DEVELOPMENT OF SCIENTIFIC EVIDENCE
Scientific Evidence is not of a recent growth. Several of the old codes contain matters of
Forensic medicine interest, though the mention of such subject is on the whole meagre.
However, references have been found in Vedas, in the code of Manu, in the Puranas and early
Greek writers.
Although our ancestors did not know the Forensic Science in its present form, scientific
methods in one way or the other seem to have been followed in the investigation of crime. Its
detailed reference is found in Kautilya’s ‘Arthashastra’, which was written around 2300 years
ago. Indians studied various patterns of papillary lines thousands of years ago. It is presumed
that they knew about the persistency and individuality of fingerprints, which they used as
signatures. The Indians knew for long that the handprints, known as the ‘Tarija’ were
inimitable. The use of fingerprints as signatures by illiterate people in India, introduced
centuries ago, was considered by some people as ceremonial only, till it was scientifically
proved that identification from fingerprint was infallible.
The ancient world lacked standardized forensic practices, which aided criminals in escaping
punishment. Criminal investigations and trials relied on forced confessions and witness
testimony. However ancient sources contain several accounts of techniques that foreshadow
the concepts of forensic science that is developed centuries later, such as the "Eureka".
Sir William Herschel was one of the first to advocate the use of fingerprinting in the
identification of criminal suspects. While working for the Indian Civil Service, he began to
use thumbprints on documents as a security measure to prevent the then-rampant repudiation
of signatures in 1858. In 1877 at Hooghly (near Calcutta) he instituted the use of fingerprints
on contracts and deeds and he registered government pensioners' fingerprints to prevent the
collection of money by relatives after a pensioner's death. Herschel also fingerprinted
prisoners upon sentencing to prevent various frauds that were attempted in order to avoid
serving a prison sentence.
In 1897 a Fingerprint Bureau was established in Calcutta (Kolkata), India, after the Council
of the Governor General approved a committee report stating that fingerprints should be used
for the classification of criminal records. In 1968, the Ministry of Home Affairs, Government
of India, set up a Forensic Science Laboratory for Delhi Police and the Central Bureau of
Investigation under the administrative control of the Central Bureau of Investigation. This
laboratory now provides expert opinion on various aspects of Forensic Science concerning
crime investigation.
In the 19th century, it was discovered that almost any contact between a finger and a fixed
surface left a latent mark that could be made visible by a variety of procedures (e.g., the use
of a fine powder). In 1894 in England the Troup Committee, a group established by the Home
Secretary to determine the best means of personal identification, accepted that no two
individuals had the same fingerprints—a proposition that has never been seriously refuted. In
1900 another committee recommended the use of fingerprints for criminal identification.
Fingerprint evidence was first accepted in an Argentine court in the 1890s and in an English
court in 1902. Many other countries soon adopted systems of fingerprint identification as
well.
SCIENCE VIS-A-VIS LAW
With the advancement and technological development, whole universe is undergoing a
change. Every aspect of life is now-a-days being governed by scientific inventions and
discoveries so scientific knowledge has made inroads in legal sphere as well. For example, if
a patient is terminally ill, can he/she be given liberty to commit suicide through the assistance
of a doctor. If not, to what extent can medical technology assist in reducing the risk of dying
in severe pain. Here, science and law are interdependent on each other. Both science and law
in the world of today touch each other at various points. Law regulates science and people
dedicated in its research likewise the latter helps law in dissemination of justice.
Nations across the globe are embracing the scientific techniques. It can be safely said that the
crime, in one form or the other, was present from time immemorial, similarly, the
investigation and detection of crime is also of same age as of crime. With the advancement of
science and technology, the criminals have adopted new methods and techniques for
committing offences, and science has also helped the investigation agencies in their efforts to
nab the criminals or real culprits. Investigators are not lagging behind. The ways of
interrogation of criminals by using third degree methods are now giving way to new scientific
methods of investigation. Courts too have witnessed the widespread introduction of numerous
scientific evidentiary techniques and breakthroughs providing potentially valuable
investigative tools.
The scientific investigation forms an important chain in establishing what is known as
‘corpus delecti’ or the body of the offence.
11 Investigators have been taking assistance of
science in cracking the case. Science has been part and parcel of Indian Legal System.
The scientific test about age as a result of epiphysis of the bones is held to be most
trustworthy.
12 In Harpal Singh v. state of H.P13 , age of a girl was in question. Radiologist
after examination of the girl found that she was about 15 years of age and this was
corroborated by an entry in the admission register in the government school wherein the girl
was a student, which was proved by the Headmaster, and by a certified copy of the relevant
entry in the birth register.
In State of Tamil Nadu v. Rajendran14
, the wife was found dead in a hut which had caught
fire. But the medical evidence showed that wife died due to asphyxia as a result of
strangulation and not on account of burn injuries. Later, in trail court came to the conclusion
that it was husband who strangulated his wife a thereafter set hut on fire. It is important to
note that usually with death blood disappears from heart but the heart in asphyxia,
specifically right chambers, is always found full of dark venous blood.
NEED OF SCIENTIFIC EVIDENCE
Crimes have gone through scientific and technological development but for their
investigation, agencies are still following old procedures the outcome of which is not enough
and not up to the mark of satisfaction. Moreover, it is still based on the old procedures which
involve extreme mental and physical torture resulting to a gross human right violation.
In criminal investigation use of Forensic Science is the need of the modern times. In India,
the investigation and crimes and prosecution of criminals are not up to the mark. Even in
heinous crimes large number of criminals could not be prosecuted and end in acquittal as a
result of which number of criminals as well as crimes are increasing day by day. These
frequent acquittals are mainly due to obsolete techniques of investigation which leave many
loopholes. The 3rd degree methods used by investigating agencies in British period are not
acceptable to the new generation of crime investigating agencies, judges and public at large.
There is urgent and wide spread need for the application of forensic science in criminal
investigation. A large percentage of the murder trials, ultimately, end in acquittal and these
frequent acquittals also embolden the criminals. And the reason behind this is improper
handling and managing of the investigation. Investigation must result in finding the truth and
gleaning of the evidences which can be perceived by the judicial systems objectively in the
direction of finding the truth. Investigation in detection of crime is an important step in the
administration of justice; hence investigation must be prompt, fair and impartial.15
Now-adays the ‘eye-witnesses’ upon whom our judiciary mainly rely has become a rare
species, the reasons shown are threat and fear. Due to old age procedures investigating
agencies are not able to collect sufficient evidences. Besides, crimes are so well planned and
efficiently committed by using technology that hardly any evidence or clue is available on the
crime scene.
Furthermore, these scientific techniques can swap atrocities in police custody. Custodial
deaths, torture are widespread in our country. For hardly a day passes without the news of
police atrocities, torture and brutality being reported.
Supreme Court also articulated in D. K. Basu v. State of West Bengal18 , enforcing agencies
must act within the bounds of law and there is need for developing scientific methods of
investigation and interrogation of accused as custodial deaths and torture is nothing but a
blow at the rule of law.
The need for the application of science in criminal investigation has arisen from the following
factors:
Social Changes: The society has changed from a colonial subject race to a democratic
republic. Sizeable industrial complex has sprung up. The transport facilities have been
revolutionized. There is a growing shift from a rural society to an urban one. These changes
have made the old techniques of criminal investigation obsolete. In the British days the police
was so much feared that once it had laid its hands upon an individual, he would ‘confess’ to
any crime, he may not have even known. The fear is vanishing now. The use of ‘third degree’
techniques used in those days does not find favour with the new generation of police officers
and judges.
Hiding facilities: The quick means of transport and the high density of population in cities
have facilitated the commission of crimes. The criminal hide himself in a corner of a city or
move away to thousands of miles in a few hours. He, thus, often escapes apprehension and
prosecution.
Technical knowledge: The technical knowledge of an average man has increased
tremendously in recent years. The crime techniques are getting refined. The investigating
officer, therefore, needs modern methods to combat the modern criminal.
Wide field: The field of activities of the criminal is widening at a terrific rate. Formerly, the
criminals were usually local, now we find that national or international criminal is a common
phenomenon. Smuggling, drug trafficking, financial frauds and forgeries are other fertile and
ever expanding fields.
Better evidence: The physical evidence evaluated by an expert is objective. If a fingerprint is
found at the scene of crime, it can belong to only one person. If this person happens to be the
suspect, he must account for its presence at the science. Likewise, if a bullet is recovered
form a dead body, it can attribute to only one firearm. If this firearm happens to be that of the
accused, he must account for its involvement in the crime. Such evidence is always
verifiable.
KINDS OF SCIENTIFIC EVIDENCES
Supreme Court recognized the requirement, the necessity of scientific investigation in Som
Prakash v. State of Delhi 20th. Law Commission also emphasized on the need of training of
Police officers in using scientific methods of investigation.21 The present study is concerned
with the commonly used techniques in India to adduce scientific evidences, Narco-analysis,
Polygraph and Brain Mapping. Innovation of forensic tools like Narcoanalysis, Brain-
mapping and Polygraph tests have proved to be the momentous progress of forensic science in the 21st century.
Kinds of Scientific Evidences are:
FINGERPRINTS ANALYSIS
Finger Prints are something which is left over on anything touched and they cannot be
covered up because human fingerprints are unique, difficult to alter, and durable over the life
of an individual, making them suitable as lifelong markers of Human Identity. Fingerprints
can be readily used by police or other authorities to identify individuals who wish to conceal
their identity, or to identify people who are incapacitated or deceased, as in the aftermath of a
natural disaster. Without prints there would be no evidence at a crime scene that lasts long
enough without disappearing.
Identification of Prisoners Act, 1920 - The main objective of this act is to provide legal
authority for collecting of measurements relating to finger impressions, footprints,
photographs of the person accused or suspected of any offence. Before the enactment of this
Act, taking of finger impressions of criminals and suspected criminals is void of legal
sanction. But now it has validated the taking of finger impressions and measurements as
mentioned under Sec 3.
It explains that every person who has been convicted of any offence punishable with rigorous
imprisonment for a term of one year or upwards shall give his measurements to be taken by a
police officer. The term measurements include finger impressions also. The Act also makes it
compulsory to destroy the measurements on discharge or acquittal by any court.
Sec 4 of the Act says about taking the measurements of non - convicted persons and it says
that any person who has been arrested for an offence punishable with rigorous imprisonment
for a term of one year or upwards shall allow his measurements to be taken.
Under Sec 5, the magistrate can direct any person to allow his measurements for the purpose
of carrying out the investigation.
DNA
One case which brought the DNA controversy to the fore was the rape and murder of
Priyadarshini Mattoo45. At trial, the prosecution case relied on the DNA test of the vaginal
swab, which was positive.
DNA testing was also used to prove that former Asom Gana Parsihad Minister Rajendra
Mushahary had raped a women twice and made her pregnant, and therefore was the
biological father of the woman’s child46 .
Also, in reaching to the late Rajiv Gandhi’s murderer Dhanu, DNA testing of his mutilated
body was very helpful. Similarly, terrorist attack on WTO building on 9/11 n New York and
recognition of the main accused Atta was also confirmed by DNA test. DNA is an organic
substance i.e. chemical basis of life which is there in every cell in the human body except
Red blood cells. This organic substance combining with proteins forms the chromosomes, a
thread like structure, responsible for carrying the genetic character from one person to its
offspring. This test can help us to determine whether a particular patch of blood, semen, hair,
etc. found from the scene of occurrence of crime or from the body of the criminal or victim
belongs to the accused person or victim or not. Besides the above samples it can also be
detected from the saliva, body fluids, bones, wine, body organs and even form charred,
damaged mutilated remain of a body.
Restriction Fragment Length Polymorphism (RFLP), PCR Analysis Polymerase chain
reaction, STR Analysis Forensic evidences in Criminal Trial, Mitochondrial DNA Analysis,
Y-Chromosome Analysis are DNA analysis techniques that are used.
Mukesh and Another v. State (NCT of Delhi) and Others.
The Appellants were convicted and sentenced to death for the gangrape and murder of the
prosecutrix. Along with other evidence, the prosecution relied on DNA evidence to convict
the appellants. While confirming the conviction and sentence, the Supreme Court discussed
the importance of DNA evidence.
The Court noted that India, like several other countries, is increasingly relying upon DNA
evidence. It further emphasised on the importance of such evidence by referring to Sections
53A and 164A of Code of Criminal Procedure, 1973 which relate to examination of a person
accused of rape and a victim of rape respectively to hold that DNA profiling is now a part of
the statutory scheme. After referring to various precedents, the Court held that a DNA report
deserves to be accepted unless it is absolutely dented. In case the DNA report is rejected, it
must be established that there had been no quality control or quality assurance. A DNA report
should be accepted if there is no error in sampling and no indication of tampering of samples.
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. Forensic evidences in Criminal Trial: Need of the Hour 12 5. Efforts should
be taken to create more awareness among general public, Prosecutors, judges and
police machinery.
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.
FORENSIC ODONTOLOGY
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.
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.
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. Some of the samples used in Forensic Pathology are Urine, Blood, Hair sample,
Oral fluid and other bodily fluid.
NARCO-ANALYSIS
Narco-analysis is a form of psychotherapy and an effective aid to scientific interrogation. It is
a process whereby a subject is put to sleep, or into a state of half consciousness by means of
dosage of scientific drugs and then interrogated. The effect of drugs is that it makes the
subject relaxed and he/she becomes susceptible to suggestions. The subject becomes
communicative and can easily tell the truth. It is said that after its use the subject loses
inhibitions but does not lose his/her self-control and if he/she does not want to disclose
anything he/she may do so. This statement is not correct. The person actually loses self-
control.
Drugs used for the tests are commonly known as Truth Serum. Generally, the drug called
“Barbiturates” or “Sodium Pentothal” is used for conducting narcoanalysis test. It is also
known by the name of “Penthol Sodium” or’ Thiopental” or “Thiopentone”.
Every test is video graphed. How the subject was given dosage, what questions were put to
him, what was his response, each and every minute detail is recorded while conducting the
test. Along with the video the whole procedure is also recorded on an audio tape. Disposable
syringe and distilled water is used for the purpose of conducting the test. The drug which is to
be used while conducting test is to be mixed with distilled water.
Narco analysis may be used in following purposes—
1. For Medical purposes—Narco analysis has been used in mental health cases for
diagnosing habiliment. In medical field Narco analysis is used—
(i) for restoring speech to mute persons
(ii) in case of amnesia, for reviving memory, and
(iii)for expression of suppressed or repressed thought or conflict
2. In criminal investigation.—Narco analysis is now being used in forensic field also.
Narco analysis test should be used only in the cases where large interest of society is
involved. Narco analysis is usually used in cases of terrorism, crimes that are well
organised, serial killings, in cases where no evidence is available etc.
The advantage of Narco analysis is that this technique is helpful in saving the innocents from
prosecution and eliminating the use of third degree method. In addition, 45 it has been used
as a time saving device in criminal cases with the help of Narco analysis by a trained and
skilled psychiatrist.
POLYGRAPH
Polygraph is another important scientific tool of investigation. Polygraph is popularly known
as lie detector and sometimes referred to as psycho- physiological detection. It is an
instrument which measures and records physiological actions of human body as for instance
blood-pressure of the subject, his pulse rate, respiratory system, skin conductivity while the
subject is asked questions relating to the crime and he answers them. The polygraph tests
measures all the natural changes caused by autonomic nervous system during questioning.
The autonomic nervous system changes are beyond reasonable control of an individual and
hence autonomic nervous system response changes transpires when the subject tries to tell a
lie. The polygraph is an instrument that records certain physiological changes in a person’s
body going through the questions in an effort to get hold of the truth or deception.24
The principle behind the polygraph technique is that the suspect fears detection of lie and
creates in the subject an emotion of fear which consequently results physiological changes
which are captured by various instruments. Polygraph test is basically based on the theory
that generally a person telling a lie becomes nervous and shaky. Due to this position
physiological changes occur in the person’s body24 .
In polygraph test subject is asked a series of question. These questions are controlled
questions. Some questions are asked generally even though the answers to them are already
known. For instance name and address of the subject. While answering these questions no
change transpires. After this, relevant questions are asked and if the subject tries to lie
physiological changes takes place. Physiological changes may crop up in shape of increased
or decreased blood pressure, change in pulse rate or heartbeats, sweating, dryness of mouth,
etc. These changes are far from the reasonable and practical control of subject thus whenever
subject tries to lie polygraph machine apprehends the lie.
It was held by the court in Ramchandra Reddy and Ors. v. State of Maharashtra25
,
“In this test the polygraph is taken which gives this reaction and an expert would then
explain these reactions in the court which would be his .reading of the polygraph from
which would flow his conclusion which are to be admitted or not admitted by a Judge on
appreciation of the statement and the objections raised thereto”
24 Bhargava Mitra, “The Lie Detector, its validity as scientific evidence and its legal status in U.S. and India”, Cr.
Generally polygraph test is conducted in three stages -The pre-test interview, The chart
collection or examination proper and, The post-test-interview
The result of the test is obtained on a chart known as polygram. The following changes are
noted carefully, suppression in respiration and increase of blood pressure after the reply,
decrease in blood pressure, behavior breathing, slowing of pulse rate and the course of blood
pressure.
Polygraph does not directly detect whether the person is speaking truth or is deceiving but the
examiner carefully analyses the pattern of arousal responses and on that basis veracity of the
individual is inferred. This inference or assessment is called ‘diagnosis’ of truthfulness or
deception. In India, since 1974 at Central Forensic Science Laboratory, New Delhi more than
3000 polygraph tests have been conducted.
BRAIN- MAPPING
Brain Mapping is also known as Late Positive Complex. One is made to sit in evoked
potential recording machine and is shown objects relating to crime scene or is made to hear
sounds pertaining to crime site. The sensors from his head pick the event related potentials in
the form of Brain Mapping only if the person has been at the site of crime. The accuracy of
Brain Mapping is almost 100%.
Brain Mapping is a response of the brain to a stimulus which is shown to the subject. As soon
as it recognizes the stimuli it sends the reaction within 300 milliseconds of seeing the stimuli.
If the person is attentive to the stimuli its response would be the fastest. If more time is taken
for making decision the more time is spent for the responses. When the brain recognizes a
person or a sound, it produces a precise electric wave which is called P300. In this test
sensors are attached to the head of the subject and the subject is seated before a computerized
monitor. The sensors catch the electrical activity in the brain and record P300 wave, which is
produced only if the subject has some correlation with the pictures shown to him and the
sounds which he is made to hear.26
The “Truth Detector” is based on the functions of brain. Every event is stored in the brain and
when the same or similar event is shown to person the brain responses and response is
recorded through computer. Through Brain fingerprinting it can only be known that the
person was present or not at the place of occurrence. Only proof of his presence, inferences
cannot draw that he has committed the alleged offence. According to Mr. A.A. Samdani, Ex
Judge and Mr. Sharique Rizvi, Associate Prof. Indian Institute of Information and
Technology, “information present” does not always mean that suspect is guilty.27 It is
possible that the subject has been a witness to the crime or he or she has already read details
in newspaper or seen in media which has been imprinted in his or her mind.
Brain finger printing is a boon for investigating agencies. In a planned commission of crime
the physical evidences may vanish or made to vanish and sometimes it happens that no clue
of the criminal acts is found. The investigating agencies have to grope in dark in order to
catch a suspect. In such a case, the brain finger printing has prevented to be a boon in that
regard. In commission of crime the brain of the preparer is always with him while planning,
exciting and committing the crime. By this technique it is measured as to whether there is
crime related information stored in the brain of the suspect or not.
SCIENTIFIC EVIDENCE UNDER INDIAN LAWS
Admissibility of Scientific Evidence under Constitution of India, 1950
Article 20(3) : Clause (3) of Article 20 of Indian Constitution talks about self-incrimination.
In case of Pakhar Singh and anr. v. State
, "The word ‘witness’ must be understood in its
natural sense, i.e. as referring to a person who furnishes evidence. Indeed, every positive
volitional act which furnishes evidence is testimony". The statement or information given by
the accused to the police during investigation is evidence. Statements made under Narco
analysis do not fulfill the above three ingredients at the same time thus Narco analysis should
be outside the purview of Article 20(3).
In People’s Union for Civil Liberties v. Union of India29 Supreme Court held that a person
becomes witness only when he makes oral or written statements in or out of court relating to
any person who is accused of an offence. The giving of any sort of identification as for
instance impression of thumb or foot or palm or fingers or giving of specimen of hand-
writing is not at all covered under Article 20(3). Considering Brain-mapping and Polygraph
test, in these tests no statement is made, neither oral nor written. In polygraph test
physiological changes are gauged and in brain-mapping, brain impressions are measured, so,
these tests are not violative of Article 20(3).
Furthermore, Medical Examination of the accused is not barred under Article 20(3) even
drawing of blood samples, pubic hair etc. in the offence of rape, where prosecution has to
establish the guilt of accused beyond reasonable doubt is not held to be violative of Article
20(3) because right to fair investigation is a fundamental right, that no victim should be
derived to especially in a criminal case. It is humbly submitted that scientific evidence in
such a scenario would provide a great help to investigation authorities in exhuming the truth
from accused and establishing the guilt beyond reasonable doubt.
Article 21: Right to Life and Personal Liberty Article 21 is considered as the heart of the
Constitution. One of the important rights that came into existence by judicial interpretation is
right to privacy. Recently, it was held that right to privacy and confidentiality is not or
absolute right and could be reasonably curtailed.
In D.K. Basu v. State of West Bengal30 in the year 1997 Supreme Court expressed that there is
a need to develop scientific techniques and methods for investigation and interrogation of
accused as custodial deaths and torture is nothing else but a blow at rule of law. Nacro-
analysis, Brain-mapping and polygraph test is nothing but an efficient and scientific method
of investigation.
Right against inhuman treatment, use of third degree torture and custodial violence is
available to the accused only and with the help of these techniques, custodial crimes can be
completely eradicated. So, these methods or techniques should not be abrogated but made
part and parcel of investigations.
Admissibility of Scientific Evidence under India Evidence Act, 1872
The expression ‘evidence’ has been defined in Sec 3 of the Act which has been discussed in
chapter 2. The word ‘evidence’ signifies that state of being evident. All instruments by which
relevant facts are brought before court are included in the term ‘evidence’.31 Section 27 and
Section 45 of the Act is relevant, section 27 talks about disclosure statement and section 45
speaks about expert evidence.
Sec 27 -
It provides “Provided that when any fact is deposed to as discovered in consequences of
information received from a person accused of any offence, in the custody of a police officer,
so much of such information, whether if amounts to a confessions or not, as relates distinctly
to the fact thereby discovered, may be proved.”
This section simply lays down that when at trial evidence is led to the effect that some fact
was discovered in consequence of the information given by the accused of an offence in
custody of the police officer, so much of the information as relates to the facts discovered by
that information, may be proved irrespective of the facts whether that information amounts to
confession or not. Inculpatory statements are relevant if they are connected with the
discovery of facts.32 Essential requirement of sec 27 are:
1. Accused is in police custody.
2. Accused makes a statement.
3. Accused’s statement leads to discovery of a fact.
If all of above requirements are fulfilled then statement of accused is admissible even if it is
incriminating. If during the investigation of a crime by the police, accused person gives
information and in pursuance of such an information, discovery is made within the meaning
of Section 27 of the Evidence Act, such information and the discovery made as a result of the
information is admissible in the court of law even though it may tend to incriminate the
person giving the information, while in police custody.
The question whether Section 27 of the Evidence Act is unconstitutional because it offended
Article 14 of the Constitution was considered by the court in the case of State of Uttar
Pradesh v. Deomen Upadhyaya33. It was held by the Court that Section 27 of the Evidence
Act is not violative of Article 14 of the Constitution. But the question whether Section 27 of
the Evidence Act contravenes the provisions of clause (3) of Article 20 was not considered by
the court. The information given by an accused person to a police officer leading to the
discovery of a fact which may sometimes prove to be incriminatory has been made
admissible in evidence under Section 27 of the Evidence Act. If it is not incriminatory of the
person giving the information, the question does not arise. It can arise only when it is of an
incriminatory character so far as the giver of the information is concerned. It was further held
that if an accused person is giving the self-incriminatory information without any threat, that
will be admissible in evidence and that will not be hit by the provisions of clause (3) of
Article 20 of the Constitution for the reason that there has been no compulsion. It must,
therefore, be held that the provisions of Section 27 of the Evidence Act are not within the
prohibition aforesaid, unless compulsion had been used in obtaining the information. In
Jagroop Singh v. State of Punjab34 there was recovery of weapon of offence made in
pursuance of the disclosure statement of the accused and same was held admissible in the
court of law.
In Narayan Debnath v. State of Assam35, 66 accused made a disclosure statement to the
police. He stated that he has buried the dead body of the victim on the bank of a pond. Police
discovered the dead body from the bank of the pond and statement of the accused was held to
be admissible. In Magraj patodia v. R.K. Birla, it was held by the Apex court that discoveries
made by improper or illegal means would not be a bar to its admissibility if it is relevant and
its genuiness is proved. Similar view was expressed again by Supreme Court in Pushpadevi
M. Jatia v. M.L. Wadhwan36
, that where ‘evidence’ offered comes within the meaning of its
definition, the court can act on it and need not concern itself with the method by which the
evidence in question was obtained.
The test to be applied in considering whether evidence is admissible is whether it is relevant
to the matter in issue. If it is, it is admissible and the court is not concerned with how with
was obtained.69 Considering the view point of various law courts of India, it is safe to say
that section 27 of Indian Evidence Act, 1872 greatly facilitate evidence adduced by scientific
tools as it lays down that any information given or obtained in the process of investigation
which is confirmed by the finding of any object or fact is admissible in the court. Recovery
made even by undesired means is no bar to its use in court. If scientific techniques are taken
into consideration these are not at all illegal or unlawful. Once recovery is made with the help
of scientific tools and techniques, prosecution can easily establish the close link between
discovery of a material object and its us in the commission of an offence. Thus, use of Narco-
analysis polygraph and brain-mapping would greatly facilitate investigation authorities that
too in a scientific manner without requiring authorities to take resort to inhumane treatment.
Section 45: Expert Evidence Expert evidence has been incorporated in the Indian Evidence
Act under Sec 45.
It runs as: “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, the opinions upon that point of
persons specially skilled in such foreign law, science or art or in questions as to identity of
handwriting or finger impressions are relevant facts. Such persons are called experts”
Section 45 makes opinion of specially skilled persons relevant. In Bal Krishna Das v. Radha
Devi37, “an expert was defined as a person who by his training and experience has acquired
the ability to express an opinion”. The purpose of an expert opinion is primarily to assist the
court in arriving at a final conclusion. But expert opinion cannot form the sole basis of
conviction of accused, unless something inherently defective appears, court cannot substitute
opinion of an expert. In general, it may be said that there are two distinct classes of cases in
which expert testimony is admissible. In one class of cases, the facts are to be stated by the
experts and the conclusion is to be drawn by the courts. In the other group of case the experts
states the facts and gives his conclusion in the form of an opinion which may be accepted or
rejected by the courts.38
Originally, when this section was enacted words ‘finger impressions’ was not part of the
section. However, they were inserted in the year, 1899 and this insertion is sufficient to
indicate that the expression science or art therein is of wide import. It is presumed that
parliament intends the court to apply to an on-going Act, a construction that continuously
updates its working to allow for changes since the Act was initially framed. While it remains
law, it is to be treated as always speaking. This means that in its application on any date, the
language of the Act, though necessarily embedded in its own time, is nevertheless to be
construed in accordance with the need to treat it a current law.39
There cannot be any doubt that Indian evidence Act is an on-going act. Keeping in mind the
time when the said act was enacted, it should be updated timely so that it embraces all the
developments in its sphere.
Recently, it has been held by Supreme Court in Gajraj v. State (NCT) of Delhi40, that accused
can be convicted on the basis of conclusive scientific evidence. This scientific evidence may
be of any kind, be that mobiles phones, internet, DNA samples, etc. In everything technology
is involved, so these scientific techniques should be incorporated in criminal justice system
too.
In civil cases, accused can be compelled to undergo a scientific test as for instance DNA, and
if such person refuses to undergo, adverse inference is drawn against him but in criminal
cases accused cannot be compelled. It is humbly submitted that there should not be any
distinction in investigation techniques in civil and criminal cases. In civil cases where interest
of an individual is involved scientific tools are used whereas in criminal cases where interest
of society, faith of public in justice delivery system is involved, scientific methods are
ignored. This is shaking the core of criminal justice delivery system. It is now settled law that
nails of the accused can be taken for utilization during investigation even if the accused does
not agree to the same. If that invasion of the person of the accused is permissible, the same
principle should be applicable to Narco-analysis, Brain-mapping and polygraph test.41
Moreover, Narco-analysis, brain-mapping and polygraph can be conducted on any person
who is not an accused or witness. This means in such circumstances, results of these tests are
admissible in court of court of law vide sec 27 or section 45. The permission of court is
required if investigation authorities want to subject accused to these tests and if accused
consents then authorities can conduct these test. This appears to be arbitrary. If accused has
committed a crime obviously, he will not consent. Investigation is hampered with such
decisions of Apex Court. If given an option, accused will never consent for giving DNA, hair,
nail samples, finger impressions etc. and if investigation authorities can extract all these
without the consent of accused, consent should not be given so much of importance in Narco-
analysis, Polygraph and Brain-mapping.
These tests are always conducted by experts who are especially skilled in this field so they
should treated normally under section 45 as other expert evidence. These scientific tests are
like taking MRI or C.T. scan. The scientific value have to be evaluated only during the course
of trail.42 These are neutral type of evidence and must not be discarded.
Sec 73 of IEA any person is compelled to give his/her fingerprints on orders from the court.
The Supreme Court has given special mention that this section isn’t a violation of their
fundamental rights.
Scientific Evidence under Code of Criminal Procedure
In this regard section 39, section 53 and section 161(2) are worth mentioning.
Section 39 CrPC Provides a duty on a person, aware of any offence, to furnish information
regarding the offence committed.43 Breach of duty under this section is made a punishable
offence under section 176 and section 202 of Indian Penal Code for which imprisonment may
be awarded which may extend upto 6 month and fine may also be imposed upto Rs. 1000.
A recent amendment in 2005 is positive and protective towards the recognition of scientific
tests. Sec 53 empowers the investigative agencies to take recourse to an efficient and
scientific method of investigation. Under this section medical examination of accused can be
done at the request of police officer and this would be part and parcel of investigation process
only. This could be done even after framing of the charge by the court. In fact, under see 53-
A specifically DNA test has been included. The expression ‘such other tests’ used in the
Explanation to the amended Sec 53 of CrPC should be interpreted in such a way as to include
within its ambit the Narco-analysis, polygraph and brain mapping. The examination of the
person has been defined by an inclusive definition and the use of words “shall include” in the
explanation in the CrPC suggests that all the modern and scientific techniques are included in
it. There is no reason of excluding narco-analysis, polygraph and brain mapping from its
scope. Thus, the term examination of a person in terms of Sec 53 CrPC takes within its ambit
the examination of a person by way of narco-analysis, polygraph or brain mapping test as
these are modern and scientific techniques.
It has also been held in Anil A. Lokhande v. State of Maharasthra44 by Supreme Court that for
the purpose of collecting evidence person of accused can be examined. For this purpose both
internal and external examination of his body can be done. If necessary some organs inside
the body may also be examined.
Another provision relevant with the topic of research is contained in Section 161(2) of
criminal procedure code. Section 161 lays down the procedure of examination of witnesses
by police. Section 161(2) states that every person is bound to answer all the questions put to
him by a police officer, other than the questions having tendency to expose that person to a
criminal charge, penalty or forfeiture. Indirectly he has a right to remain silent so that he may
no incriminate himself. However, Supreme Court held in peoples Union for civil liberties88
Supreme Court held that right to silence defeat all the purposes of examination of accused
and no longer it shall be a right.
Sec 293 of CrPC lists some Government Scientific Experts for the admissibility of expert
opinion in the court of law. The expert is examined as a witness for his/her opinion to be
valid after cross examination.
Role of National Human Rights Commission
National Human Rights Commission has always worked for the protection of the basic
human rights available to every human being. Human rights have been defined in Section 2
(d) of the Protection of Human Rights Act 1993 as "rights relating to life, liberty, equality
and dignity of the individual guaranteed by the Constitution or embodied in the International
Covenants and enforceable by courts in India". The modern techniques of investigation are
considered as blatant violation human rights. These tools of investigation are considered as
torturous techniques. There is no specific statutory law on the use of narco-analysis,
polygraph and brain mapping in India. The interpretation is given by the courts differently in
different cases. Some judicial decisions are in favour of using these techniques and some are
critical. They are not in favour of utilization of such tools in investigation. However, in
absence of legislation National Human Rights Commission has laid down certain guidelines
that are to be observed while conducting these tests. The guidelines given by National Human
Rights Commission are as follows:
(1) “No lie detector tests should be administered except on the basis of consent of the
accused. An option should be given to the accused whether he wishes to avail such
test.
(2) If the accused volunteers for a lie detector test, he should be given access to a lawyer
and the physical, emotional and legal implication of such a test should be explained to
him by the police and his lawyer.
(3) The consent should be recorded before a Judicial Magistrate.
(4) During the hearing before the Magistrate, the person alleged to have agreed should be
duly represented by a lawyer.
(5) At the hearing, the person in question should also be told in clear terms that the
statement that is made shall not be a "confessional" statement to the Magistrate but
will have the status of a statement made to the police.
(6) The Magistrate shall consider all factors relating to the detention including the length
of detention and the nature of the interrogation.
(7) The actual recording of the lie detector test shall be done in an independent agency
(such as a hospital) and conducted in the presence of a lawyer.
(8) A full medical and factual narration of manner of the information received must be
taken on record.”
At present in India only the above stated guidelines are available that regulate the use of these
techniques. Even these guidelines were referred by the Apex Court in Selvi v. State of
Karnataka45, wherein the court ordered that these guidelines should be followed while
conducting narco-analysis, polygraph and brain mapping.
CASE LAWS
Vasu v. Santha and Others 46
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
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.
State v. Sushil Sharma47
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 Sahni’s 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 Sharma’s 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.
MK Thomas v. State of Kerala48
The Sister Abhaya Case is a case regarding the death of a Knanaya Roman Catholic nun who
on the day of her death had 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.
Dinesh Dalmia v. C.B.I
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.
Investigation has revealed that Sh. Dinesh Dalmia, the then Managing Director & Custodian
of properties, 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. n 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, sometimes it does not stand true on testing.
The High Court of Bombay in the case of Anmol Singh Swarn Singh Jabbal v. The State of
Maharastra50, the Court relied upon the DNA evidence and held up the life term for the
murder of a female engineer by her colleague. Another case of Anthony Arikswamy Joseph v.
State of Maharashtra51 the court relied on the scientific evidence of forensics of DNA
profiles where the accused was convicted and punished for the murder of a 10 years old
minor and subjecting him to the heinous offence of pederasty and then strangling him to
death.
Cases like these certainly are encouraging and should be indicators enough for us to look to
invest more and more in the field of forensic science and add teeth to our investigative
departments.
LANDMARK JUDGEMENT
Selvi v State of Karnataka52
FACTS:
In 2004, Smt. Selvi and others filed a criminal appeal followed by subsequent appeals in
2005, 2006 and 2007 and 2010 were taken up together by the Supreme Court through a
special leave petition.
The appeal highlighted the instances of how the individuals who were accused of a crime, the
suspects or witnesses involved in an investigation were being subjected to Narco-analysis,
Brain Electrical Activation Profile (BEAP), Functional Magnetic Resonance Imaging (FMRI)
and Polygraph tests without their consent.
QUESTION OF LAW INVOLVED:
1. Whether Narco-Analysis, Brain Mapping, FMRI and polygraph test used a method for
collecting evidence is a constitutionally valid method?
2. Whether it violates the Fundamental right of an individual against self-incrimination
under Article 20(3) of the Indian Constitution and Section 161(2) of the Criminal
Procedure Code, 1973?
3. Whether the administration of any of such techniques is an unjustified intrusion into
the Right to Privacy and Personal liberty under Article 21 of an individual?
HELD:
It was held by the Hon'ble three judge bench of the Supreme Court that no individual
should be forcibly subjected to any of the techniques in question, whether in the pretext
of investigation in criminal cases or otherwise. Such a practice would amount to an
unwarranted intrusion into the personal liberty of an individual.
However, the court also pointed out that voluntary administration of the said techniques shall
be valid provided that proper safeguards are followed. The bench further elaborated that even
when the subject has given his consent to undergo any of these tests, the results of such tests
52 AIR 2010 SC 1974
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cannot by themselves be admitted as evidence because the subject does not exercise his
conscious control over the responses during the test. However, any information or material
that is subsequently discovered with the help of voluntary administered test results can be
admitted, in accordance with Section 27 of the Evidence Act, 1872.
The Court placed reliance on the guidelines published by the National Human Rights
Commission for the Administration of Polygraph Test (Lie Detector Test) on an Accused in
2000. The court held that these guidelines should be strictly adhered to and similar safeguards
should be adopted for conducting the `Narco-analysis technique' and the `Brain Electrical
Activation Profile' test.
Thus, this judgment rendered the practice of narco-analysis, brain mapping, FMRI and
polygraph test to be unconstitutional and void in the eyes of law. The judgement is one of its
kind which deals primarily with an all new aspects related to privacy and right against self-
incrimination protected by Article 20 (3) of the Indian Constitution.
CRITICAL ANALYSIS OF THE JUDGEMENT
The judgement begins with a full-fledged description of the concerned different kinds of test
mentioned herein, their uses, and limitations and last but not the least its standing in front of
the eyes of law. Justice Balakrishnan in his judgement has taken into reflected foreign
precedents applicable to these tests before reaching to a conclusion. The reason for using
foreign cases is due to absence of substantial case laws or statutes that expressly deal with
this topic. Each of these test were scrutinized in relation to its constitutionality in different
constitutions especially that of U.K. and U.S. courts which have persuasive value in the
Indian Courts. There were high court cases which had justified the use of such tests however
The Supreme Court rejected these arguments. The High Courts had used various arguments
to uphold the constitutionality of narco-analysis and other tests under Article 20(3). For
example, the Karnataka High Court equated the compulsion requirement of Article 20(3)
with ‘duress’ involving serious physical harm or threat, and found that the mild pain from the
administration of an injection necessary to induce the narco-analysis test did not reach the
requisite level of hurt to constitute compulsion. Using a similarly narrow view of
‘compulsion’, the Madras High Court53 found that because compulsion generally means using
physical or other so-called third degree methods of interrogation, even though a subject may
53 Dinesh Dalmia v State, 2006 Cr LJ 2401
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be forced to undergo narco-analysis in the first place, the statements made during the
resulting tests themselves are voluntary. Further, the High Courts of Karnataka, Bombay54
and Delhi found that the administration of narco-analysis itself could not violate Article 20(3)
because statements could not be known to be incriminating until after the administration of
the test. However these judgements mentioned above were considered to be too mechanical
and baseless and as quoted “given without application of mind” by the Supreme Court. It was
landmark initiative by the bench to hold the tests of this nature unconstitutional. It came off
as major blow to investigating agencies, when the Supreme Court held the use of narco-
analysis, brain-mapping and polygraph tests on accused, suspects and witnesses without their
consent as unconstitutional and violation of the ‘right to privacy’.55
The judges said: “The compulsory administration of the impugned techniques violates the
right against self-incrimination. The test results cannot be admitted in evidence if they have
been obtained through the use of compulsion. Article 20 (3) of the Constitution [No person
accused of any offence shall be compelled to be a witness against himself] protects an
individual’s choice between speaking and remaining silent, irrespective of whether the
subsequent testimony proves to be inculpatory or exculpatory.” The Bench said: “Article 20
(3) aims to prevent the forcible conveyance of personal knowledge that is relevant to the facts
in issue. The results obtained from each of the impugned tests bear a testimonial character
and they cannot be categorised as material evidence.” Further it was notified in the judgement
that “In their considered opinion that subjecting a person to the impugned techniques in an
involuntary manner violates the prescribed boundaries of privacy.” The Bench held that if
these techniques were used compulsorily if would violate Article 20 (3). The Bench made it
clear that even when the subject had given consent to undergo any of these tests, the test
results by themselves could not be admitted as evidence because “the subject does not
exercise conscious control over the responses during the administration of the test. However,
any information or material that is subsequently discovered with the help of voluntary
administered test results can be admitted, in accordance with Section 27 of the Evidence
Act.”
In the Indian context, Article 20(3) should be construed with due regard for the inter-
relationship between rights, since this approach was recognised in Maneka Gandhi v. Union
54 Ramchandra Reddy v. State of Maharashtra, 2004, AII MR (Cr) 1704
55 Indiankanoon.com, visited on 22nd Jan, 2021
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of India56. Hence, the judges have examined the `right against self-incrimination’ in respect
of its relationship with the multiple dimensions of `personal liberty’ under Article 21, which
include guarantees such as the `right to fair trial’ and `substantive due process’. Undoubtedly,
Article 20(3) has an exalted status in our Constitution and questions about its meaning and
scope deserve thorough scrutiny. Section 161(1) of CrPC empowers the police officer
investigating a case to orally examine any person who is supposed to be acquainted with the
facts and circumstances of the case. It is to ensure the citizens’ cooperation during the course
of investigation, they cannot override the constitutional protections given to accused persons.
The scheme of the CrPC itself acknowledges this hierarchy between constitutional and
statutory provisions in this regard. Not only does an accused person have the right to refuse to
answer any question that may lead to incrimination, there is also a rule against adverse
inferences being drawn from the fact of his/her silence. At the trial stage, Section 313(3) of
the CrPC places a crucial limitation on the power of the court to put questions to the accused
so that the latter may explain any circumstances appearing in the evidence against him. It lays
down that the accused shall not render himself or herself liable to punishment by refusing to
answer such questions, or by giving false answers to them. It is evident that Section 161(2),
CrPC enables a person to choose silence in response to questioning by a police officer during
the stage of investigation, and as per the scheme of Section 313(3) and Proviso (b) to Section
315(1) of the same code, adverse inferences cannot be drawn on account of the accused
person’s silence during the trial stage.57
CONCLUSION AND SUGGESTIONS
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
56 1978 AIR 597
57 Indiankanoon.com, visited on 22nd Jan 2021
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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
The scientific techniques are not new to India. Investigating agencies have been using these
tools since years, however, Law is silent on the use and admissibility of scientific evidence.
This is the reason that judgmental law is available both in the favour of use of scientific
techniques as well as against the use of scientific tools in investigation. It is unfortunate that
Narco-analysis, Brain-mapping and polygraph techniques are questioned now and then. In
fact not only questioned but are sometimes regarded as in human and cruel techniques that
the when science has become part and parcel of Indian Law Courts. From finger printing to
asphyxia, to everything is dependent on science. There are number of cases where conviction
is awarded on the sole basis of scientific evidence which is commonly referred as medico-
legal evidence.
To remove this repugnancy some suggestions are respectfully submitted by the research as
follows:
(1) A policy should be formulated where expressly narco-analysis, polygraph and brain
mapping should find clear mention and provisions should be made for the future
developments also so that future scientific techniques may find room in the statutory
law of the country and aid in investigation, collection of evidence that may lead to
justice.
34 | P a g e
(2) The explanation attached with the Section 53, Section 53-A and Section 54 should be
given wider possible interpretation. The techniques narco-analysis, polygraph and
brain mapping should be included in the phrase ‘modern and scientific techniques’ in
light of the rule of “ejusdem generis”.
(3) The current scenario in the country is that narco-analysis, polygraph and brain
mapping is valid if the test is done with the consent of the subject undergoing the test
but it cannot be done without the consent. The researcher respectfully submits that
there should be no demarcation between voluntary and involuntary undergoing of
techniques. It makes no sense that a particular technique is invalid because the subject
did not consent and the same technique is valid when it receives the consent of the
subject.
(4) There is separation of powers in India. The functions of the three organs legislative,
executive and judiciary are endowed with the powers to exercise in the fields assigned
to them. The judiciary should not interfere in the field of investigation as the
permission of the court is not required in investigation under Section 156(1) of the
Code of Criminal Procedure. It is the demanded by the courts of law that investigating
agencies should use modern techniques in investigation for complete eradication of
custodial violence. However, when authorities make use of modern and scientific
techniques, courts bans the use. While delivering the judgments courts must also keep
in mind the hurdles faced by the authorities in the field of investigation. Judiciary
should encourage the investigating authorities to use the modern tools of investigation
in constitutional manner. The use of narco-analysis, polygraph and brain mapping 149
should not be discarded altogether by the judiciary rather judiciary should peep deep
into the problems of investigating agencies in solving cases where no piece of
evidence is available.
(5) The government should formulate a policy wherein the investigating authorities be
given training in such a way that they can make use of modern and scientific tools of
investigation in a more skillful manner. Questions are raised regarding the science
behind narco-analysis, polygraph and brain mapping and their use so if the
investigating authorities will get specialized training to utilize these tests it would help
in extraction of truth in a more efficient manner. This will also help in further
improvement of scientific techniques.
(6) The use of narco-analysis, polygraph and brain mapping should be made admissible
and permitted as these are sophisticated techniques of investigation. The utilization of
35 | P a g e
narco-analysis, polygraph and brain mapping in interrogation process can help in
curbing the problem of custodial torture, violence and deaths. The foremost right of
every detainee is the preservation of the basic and natural human right which is
violence free environment even if the person is in lawful custody. A person should
always be treated with respect and his dignity should be maintained at every stage.
These techniques should be allowed because these are in consonance with the
preservation of human rights.
(7) There are certain guidelines laid down by the National Human Rights Commission
however, they do not provide complete guidance. These guidelines are silent on many
important issues. Moreover, they are exclusively regarding the administration of
polygraph test. No regulation or assistance is available in the country regarding the
procedure to be followed in the administration of narco-analysis and brain mapping
tests. Though these tests have been conducted in a number of high profile cases till
date.
(8) The rule of harmonious construction should be applied while dealing with the
interpretation of the laws prevalent in India regarding the relevancy and admissibility
of narco-analysis, polygraph and brain mapping, so that all the questions can be put to
rest that are being raised as to the validity of these interrogation techniques. By
adopting harmonious construction the courts can help the investigating agencies to
take benefit of said techniques and get fruitful results. An effort should be made to
blend the use of these tests with the existing laws in such a manner that no questions
are raised as to its constitutional validity.
(9) An Act should be passed by the legislature which should exclusively deal with
evidence obtained by the narco-analysis, polygraph and brain mapping and alike
techniques. The Act should contain precise definitions of all the terms such as
scientific evidence, scientific techniques, investigation, scientific expert witness,
scientific examination, tools of investigations, etc. The Act should contain rules as
well as guidelines regarding the use of scientific and modern techniques specifically
for the narco-analysis, polygraph and brain mapping so that all the confusion
regarding the use of scientific techniques be eradicated forever. These are some
suggestions humbly submitted by the researcher to make the administration of
criminal justice system in India more flawless.
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BIBLIOGRAPHY
Books
Avtar Singh, “Principles of the Law of Evidence”, Allahabad: Central Law Publications,
22nd edition, 2016
Batuklal, The Law of Evidence, Allahbad, Central Law Agency, 22nd Edition, 2018
Bare Acts
Indian Evidence Act, 1872
The Constitution of India, 1949
Code of Criminal Procedure, 1953
Online Websites
http://www.legalserviceindia.com
https://www.lawctopus.com
https://blog.ipleaders.in
https://indiankanoon.org
https://shodhganga.inflibnet
Articles
Arvindeka Chaudhary, Admissibility of Scientific Evidence under Indian Evidence Act 1872
