Some legal nuances about the code of criminal procedure
Ashok Bhan
Srinagar, Publish Date: Nov 6 2017 12:31AM | Updated Date: Nov 6 2017 12:31AM
Code of Criminal procedure and Indian Evidence Act were enacted at a time, when the modern scientific advancement and DNA tests were not even in contemplation of Parliament or Legislature. World wide it is proven that the results of DNA test, if conducted in conformity with modern and latest protocol on the subject is scientifically accurate.
There is an urgent need to incorporate some provisions in the Indian Evidence Act, 1872 and Code of Criminal Procedure, 1973 to manage science and technology issues. The Role of DNA in Criminal Investigation… ? DNA Profiling and Indian Legal System -To make sure that modern technologies can be used effectively, there is an urgent need of specific legislation which would provide the guidelines regulating DNA testing in India.
There is no specific provision under Indian Evidence Act, 1872 and Code of Criminal Procedure, 1973 to manage science, technology and forensic science issues. Due to lack of having any such provision, investigating officers have to face trouble in collecting evidences which involves modern mechanism to prove the accused person guilty.
Section 53 of Code of Criminal Procedure1973 authorizes a police officer to get the assistance of a medical practitioner in good faith for the propose of the investigation. But, it doesn’t enable a complainant to collect blood, semen etc for bringing the criminal charges against the accused. The amendment of Cr. P. C. by the Cr. P. C. (amendment) Act, 2005 has brought two new sections which authorize the investigating officer to collect DNA sample from the body of the accused and the victim with the help of medical practitioner.
Perspective on Admissibility of DNA in Indian Legal System
Its use as evidence in criminal investigations has grown in recent times in Indian legal system. DNA testing has helped law enforcement, identify criminals and solve difficult crimes. On the other hand, DNA supported evidence helps in proving that many convicted people are actually innocent.
The introduction of the DNA technology is being perceived to pose serious challenge to some legal and functional rights of an individual such as “Right to privacy”, “Right against Self-incrimination”. And this is the most important reason why courts sometimes are reluctant in accepting the evidence based on DNA technology. Right to Privacy has been included under Right to Life and Personal liberty or Article 21of the Indian Constitution. Article 20(3) provides Right against Self- Incrimination which protects an accused person in criminal cases from providing evidences against himself or evidence which can make him guilty.
Among many new tools that science has provided for the analysis of forensic evidence is the powerful and controversial analysis of deoxyribonucleic acid, or DNA, the material that makes up the genetic code of most organisms. DNA analysis, also called DNA typing or DNA profiling, examines DNA found in physical evidence such as blood, hair, and semen, and determines whether it can be matched to DNA taken from specific individuals. DNA analysis has become a common form of evidence in criminal trials. It is also used in civil litigation, particularly in cases involving the determination of Paternity of Identity.
The global criminal law jurisprudence acknowledges DNA as a conclusive and accurate evidence in trials to pronounce a person guilty or innocent. In eighty five Countries DNA evidence is treated as the clinching and conclusive. As such no need to rely on other pieces of evidence unlike India, where it is a piece of evidence to be corroberated by other pieces of evidence.
The admissibility of the DNA evidence before the court always depends on its accurate and proper collection, preservation and documentation which can satisfy the court that the evidence which has been put in front it is reliable. There is no specific legislation which is present in India that can provide specific guidelines to the investigating agencies and the court, and the procedure to be adopted in the cases involving DNA as its evidence. Moreover, some provisions allow examination of person accused of rape by medical practitioner and the medical examination of the rape victim respectively. But the admissibility of these evidences has remained in a state of doubt as the opinion of the Supreme Court and various High Courts in various decisions remained conflicting. Judges do not deny the scientific accuracy and conclusiveness of DNA testing, but in some cases they do not admit these evidences on the ground of legal or constitutional prohibition and sometimes the public policy.
Many developed countries have been forced to change their legislation after the introduction of the DNA testing in the legal system. There are certain provisions which are present in the Indian Evidence Act, 1872 such as section 112 which determine child’s parentage and states that a child born in a valid marriage between a mother and a man within 280 days of the dissolution of the marriage, and the mother remaining unmarried shows that the child belongs to the man, unless proved otherwise but again no specific provision which would cover modern scientific techniques. DNA analysis is of utmost importance in determining the paternity of a child in the cases of civil disputes. Need of this evidence is most significant in the criminal cases, civil cases, and in the maintenance proceeding in the criminal courts under Section 125 of the Cr. P. C. But it has been held by the Supreme Court on several occasions that Right to Life and Personal Liberty is not an absolute Right. In Govind Singh v. state of Madhya Pradesh, Supreme Court held that a fundamental right must be subject to restriction on the basis of compelling public interest.
DNA (Deoxyribonucleic acid), is broadly termed as building the genetic blueprint of life. It was first described by the scientists Francis H. C. Crick and James D. Watson in 1953. Crick and Watson identified the double-helix structure of DNA, which resembles a twisted ladder, and established the role of DNA as the material that makes up the genetic code of living organisms. DNA is the same in every cell throughout an individual's body, whether it is a skin cell, sperm cell, or blood cell. With the exception of identical twins, no two individuals have the same DNA blueprint.
DNA analysis for a criminal investigation, using highly sophisticated scientific equipment, first a DNA molecule from the suspect is disassembled, and selected segments are isolated and measured. Then the suspect's DNA profile is compared with one derived from a sample of physical evidence to see whether the two match. If a conclusive non-match occurs, the suspect may be eliminated from consideration. If a match occurs, a statistical analysis is performed to determine the probability that the sample of physical evidence came from another person with the same DNA profile as the suspect's. Juries use this statistical result in determining whether a suspect is guilty or innocent.
Supreme Court dismissed the Delhi High court’s decision ordering N.D. Tiwari to undergo the DNA test is very important from the viewpoint of the admissibility of such evidence. In this case, Rohit Shekhar has claimed to be the biological son of Tiwari, but He was reluctant to undergo such test stating that it would be the violation of his Right to privacy and would cause him public humiliation. But Supreme Court rejected this point stating when the result of the test would not be revealed to anyone and it would be in a sealed envelope, there is no point of getting humiliated. Supreme Court further stated that we want young man to get justice; he should not be left without any remedy. It would be very interesting to see that how courts in India would allow the admissibility of DNA technology in the future.
International Perspective on Admissibility of DNA in Criminal Justice System -
English Case;-
A fifteen year old school girl, Lynda Mann was abducted in Narbourough, England. The next day, her body was discovered raped and murdered. Three years later, another young woman met the same fate near Lynda’s resting place. Richard Buckland was arrested and confessed to the second murder only. An untested technique was applied; ‘genetic fingerprinting’ through DNA analysis. Surprisingly, there was no match in either murder, so the test was repeated. Ultimately, Buckland was proven innocent. As to why he confessed, he claimed he had been pressured by police.5,500 men from the local area were then tested. Colin Pitchfork persuaded a friend to test in his place, but when he bragged about fooling the investigators, he was overheard and reported. His genetic profile matched the semen samples from both girls, and in 1987 he became the first murderer convicted by DNA.
American case;-
*Illinois Governor George Ryan applied DNA testing to death row inmates in 1998 and found 13 of the 25 could be exonerated by the results. He immediately put a moratorium in executions. The resulting study recommended 85 ways to prevent the death of innocents, with DNA testing at the core.
In Texas, Roy Criner was sentenced with circumstantial evidence to 99 years for the rape and murder of a 16 year old girl. Years later, he submitted to DNA testing which excluded him from being the contributor of genetic material found on the girl, but he remained in prison because the majority of the appeals judges had no confidence that DNA evidence would have weight over witness testimony. After a reporter found additional evidence that implicated another person, Criner was finally set free.
*In the 1950s, Anna Anderson claimed that she was Grand Duchess Anastasia Nikolaevna of Russia.
In the 1980s, after her death, samples of her tissue that had been stored at a Charlottesville, Virginia hospital following a medical procedure were tested using DNA fingerprinting, and showed that she bore no relation to the Romanovs.
*In 1986, Richard Buckland was exonerated, despite having admitted to the rape and murder of a teenager near Leicester, the city where DNA profiling was first discovered. This was the first use of DNA finger printing in a criminal investigation.
*In 1987, genetic fingerprinting was used in criminal court for the first time in the trial of a man accused of unlawful intercourse with a mentally handicapped 14-year-old female who gave birth to his baby.
*In 1987, Florida rapist Tommy Lee Andrews was the first person in the United States to be convicted as a result of DNA evidence, for raping a woman during a burglary; he was convicted on November 6, 1987, and sentenced to 22 years in prison.
*In 1989, Chicago man Gary Dotson was the first person whose conviction was overturned using DNA evidence.
*In 1991, Allan Legere was the first Canadian to be convicted as a result of DNA evidence, for four murders he had committed while an escaped prisoner in 1989. During his trial, his defense argued that the relatively shallow gene pool of the region could lead to false positives.
*In 1992, DNA from a palo verde tree was used to convict Mark Alan Bogan of murder. DNA from seed pods of a tree at the crime scene was found to match that of seed pods found in Bogan's truck. This is the first instance of plant DNA admitted in a criminal case.
*In 1993, Kirk Bloodsworth was the first person to have been convicted of murder and sentenced to death, whose conviction was overturned using DNA evidence. *In 2001, Wayne Butler was convicted for the murder of Celia Douty. It was the first murder in Australia to be solved using DNA profiling.
*In March 2003, Josiah Sutton was released from prison after serving four years of a twelve-year sentence for a sexual assault charge. Questionable DNA samples taken from Sutton were retested in the wake of the Houston Police Department's crime lab scandal of mishandling DNA evidence.
* In March 2009, Sean Hodgson who spent 27 years in jail, convicted of killing Teresa De Simone, 22, in her car in Southampton 30 years ago was released by senior judges. Tests prove DNA from the scene was not his. British police have now reopened the case.
Indian;-
*In India Priyadharshini Mattoo, case the DNA evidence was discounted by trial court to acquit the accused,The Delhi High Court in appeal relied mainly on DNA evidence and other circumstantial evidence,found accused as guilty. As a rare of rare case High Court awarded Death Sentence to the accused.The author of this article appeared for CBI (Prosecution) as a special Senior Counsel.
*In Nirbaya"s case DNA evidence was treated as clinching along with other pieces of evidence to award death sentence to the accused.
*In N D TIwari case The Supreme Court directed him to under go DNA test to reach a finding on the claims of his biological son.
*In Arushi Talwar case the crime scene was mutilated and investigation came to be dubbed shoddy and botched up DNA evidence could not be the clinching one.
There are many more cases of Conviction and innocence based on DNA evidence.
THE URGENT NEED IS TO SENSITISE THE LAW MAKERS TO INCORPORATE PROVISIONS IN CrPC AND EVIDENCE ACT TO MANAGE SCIENCE AND TECHNOLOGY ISSUES IN INVESTIGATION OF CRIMES AND TRAILS
(Ashok Bhan is Senior Advocate Supreme Court of India)
