Evidential Value of DNA Evidence: - A Judicial Approach

Law of Evidence Project

On

Evidential Value of DNA: A Judicial Approach

Submitted to:

Ms. Vinita Tripathi

Faculty of Law of Evidence

Submitted by:

Ankita Ratre
Roll no. 23

Semester 7th, Section B

B.A. LLB (Hons.)

Submitted on:
October 23 ,2019

HIDAYATULLAH NATIONAL LAW UNIVERSITY

Uparwara Post, Abhanpur, New Raipur (C.G.) – 492002

 Evidential Value of DNA Evidence: - A Judicial Approach

DECLARATION OF ORIGINALITY

I, Ankita Ratre, have undergone research of the project work titled “Evidential Value of
DNA: A Judicial Approach”, as a student of Law of Evidence. I hereby declare that this
Research Project has been prepared by the student for academic purpose only, and is the
outcome of the investigation done by me and also prepared by myself under the supervision
of Ms.Vinita Tripathi, Faculty of Law of Evidence, Hidayatullah National Law University,
Raipur. The views expressed in the report are personal to the student and do not reflect the
views of any authority or any other person, and do not bind the statute in any manner.

I also declare that this Research Paper or any part, thereof has not been or is not being
submitted elsewhere for the award of any degree or Diploma. This report is the intellectual
property of the on the part of student research work, and the same or any part thereof may not
be used in any manner whatsoever in writing.

Ankita Ratre
Roll. No. 23
Semester 7th, Section B

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 Evidential Value of DNA Evidence: - A Judicial Approach

CERTIFICATE OF ORIGINALITY

This is to certify that Ankita Ratre, Roll Number 23, student of Semester 7th, Section B of
B.A.LL.B.(Hons.), Hidayatullah National Law University, Atal Nagar (Chhattisgarh) has
undergone research of the project work titled “Evidential Value of DNA: A Judicial
Approach””, in partial fulfillment of the subject of Law of Evidence. Her performance in
research work is up to the level.

Place: Atal Nagar ………………………… ……………………………

Date: 14.10.2019 Ms. Vinita Tripathi

(Faculty- Law of Evidence)

Hidayatullah National Law University, Atal Nagar, Chhattisgarh

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 Evidential Value of DNA Evidence: - A Judicial Approach

ACKNOWLEDGMENT

I feel highly elated to work on the project “Evidential Value of DNA: A Judicial
Approach” The practical realisation of the project has obligated the assistance of many
persons. Firstly, I express my deepest gratitude towards Ms. Vinita Tripathi, Faculty of Law
of Evidence, to provide me with the opportunity to work on this project. Her able guidance
and supervision in terms of her lectures were of extreme help in understanding and carrying
out the nuances of this project.

I would also like to thank The University and the Vice Chancellor for providing extensive
database resources in the library and for the internet facilities provided by the University.

Some typography or printing errors might have crept in, which are deeply regretted. I would
be grateful to receive comments and suggestions to further improve this project.

Ankita Ratre
Roll. No. 23
Semester 7th, Section B

III
 Evidential Value of DNA Evidence: - A Judicial Approach

TABLE OF CONTENTS

Declaration of Originality I
Certificate of Originality II
Acknowledgments III

Introduction 1
Research Methodology 3
Problem of the Study 3
Rationale 3
Objective 3
Review of Literature 4
Hypothesis 4
Nature of the Study 4
Chapterization 4
Time Limit 4
Contribution 4
Limitation of the Study 4

Concept of DNA Evidence 5

DNA Evidence and Privilege against DNA Evidence 9
Judicial Attitude towards Evidentiary Value of DNA 16
Procedure for Collecting DNA Evidence 19
Investigation 22
Court’s Power 24
Conclusion 26
Recommendation 27
Referance 27
 Evidential Value of DNA Evidence: - A Judicial Approach

CHAPTER I: INTRODUCTION

The criminal investigation commences when the police comes to know of the commission of
a crime. The Code of Criminal Procedure, 1973 classifies offenses into two groups,
cognizable offenses and non-cognizable offenses.

Cognizable offenses are generally heinous offenses like murder, rape, kidnapping, etc.,
whereas non-cognizable offenses are not serious in nature. In case of cognizable offenses, the
police have power to start investigation without the order of Magistrate, while in non-
cognizable offenses the investigation is started on the order of Magistrate. The police can
arrest a person for the commission of cognizable crime without a warrant but cannot do so in
case of non-cognizable offenses.

Information given to the police officer with regard to the commission of cognizable crime
should be in writing and in case it is given orally, it should be reduced into writing and this
report is called the First Information Report. The First Information Report is a very important
piece of evidence and its objective is to start the investigation of a case. The functions of the
police are detection and investigation of crime, arrest of the offender and the collection of
evidence against those who are prosecuted in court of law. While collecting biological
evidence in a crime spot for DNA analysis, the investigator should be aware of important
issues involved in the identification, collection, transportation and storage of DNA evidence.

In case, the DNA evidence is not initially identified it cannot be collected later on. Like that,
if the DNA sample is not properly preserved it may become contaminated or destroyed.
Properly preserved DNA sample can be tested even after many years. Samples may be taken
from the body of suspect either with his own consent or on the basis of an order made by the
police officer or by a court order. Samples may also be taken from volunteers with their
informed consent. For example, samples are likely to be taken from volunteers where the
person is victim of a crime or a relative of a missing person.

The primary function of the police officer is investigation. The other important function of
the police officer is in the prosecution of an offender. In the conduct of the prosecution the
duty of the police is to place all the relevant 90 materials before the court of law. While
presenting the DNA evidence by the prosecution in trial, the expert witness is required to
explain the details of DNA analysis in lay terms and also clear doubts raised by the defense

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 Evidential Value of DNA Evidence: - A Judicial Approach

counsel during cross examination. Next, the defense counsel may call the witnesses in favor
of the accused in order to prove the innocence of accused and then the prosecution may cross
examine the defense witnesses. After the completion of trial, the judiciary is required to
evaluate the evidence and frame appropriate directions.

In this chapter, the researcher has analyzed some landmark cases which have already been
decided by our Indian Judiciary. For that, the case laws have been divided into 5 categories.
They are:

1. Maintenance cases,

2. Rape and Murder cases,

3. Murder cases,

4. Unnatural offenses and Murder case, and

5. Assassination case.

Here, it is analyzed and portrayed how our Indian Judiciary is evaluating DNA technology.

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 Evidential Value of DNA Evidence: - A Judicial Approach

RESEARCH METHODOLOGY

Problem of the Study

The concept of DNA Evidence is simple and elementary, as distinct from other evidences that
is complex, sophisticated and technical. DNA evidence is a powerful tool in criminal
investigation and prosecution, but it must be used with care. It should never be oversold in
court, and it should only ever be considered in light of other available evidence. Another
consideration is that people shed DNA at different rates. DNA is found in bodily fluids, such
as blood, semen, and saliva, but we also lose microscopic pieces of skin and hair on a regular
basis. Some people lose DNA more quickly than other ,if they have a skin condition

Rationale of the Study

DNA (deoxyribonucleic acid) is a code that programs how we will develop, grow, and
function. Humans are thought to have DNA that is 99.9% identical, but the remaining 0.1%
makes us individuals, marking us out as unique. The fact that humans and chimpanzees have
just a 1% difference in their DNA further highlights how meaningful a small difference can
be. Generally, the more closely related we are to someone, the more similar our DNA will be
to theirs.

Objective

The objectives of this project are:

1. To study the concept of DNA Evidence

2. To discuss the DNA Evidence and Privilege against Self Incrimination
3. To study the Judicial Attitude towards evidentiary value of DNA
4. To discuss the Procedure for Collecting DNA Evidence
5. To study the Investigation of DNA Evidence
6. To study the Court’s Power relating to DNA Evidence

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 Evidential Value of DNA Evidence: - A Judicial Approach

Review of Literature

1. Law professor Liz Hefferman, on British Journal of Criminology ,Genetic

Policing: The Use of Dna in Criminal Investigations by Robin Williams, Paul
Johnson Exclusion, Vol. 48, No. 5, september 2008, pp. 699-701 (3 pages) :-

“The increasingly prominent role played by forensic science in the administration

of criminal justice is due in no small measure to the meteoric rise in DNA
profiling”.

2. Don J. DeBenedictis, on American Bar Association ,DNA Report Raises

Concerns: Study backs genetic evidence, but questions reliability of labs,
statistics, Vol. 78, No. 7 ,july 1992, p. 20 (1 page)

“Telling a jury it is implausible that anyone besides the suspect would have the
same DNA test results is seldom, if ever, justified,”

Nature of the Study

The present analysis paper is analytical, descriptive and supported non-empirical study.
Qualitative knowledge was generated to check the analysis hypothesis. The study was
conducted on secondary sources like books, journals, e-sources, theories and relevant
provision with determined case laws.

Chapterization

1. This project has been divided into 4 chapters. Chapter 1 comprises of Introduction and
Research Methodology. Chapter 2 includes the concept of DNA Evidence. Chapter 3
deals with DNA Evidence and Privilege against Self Incrimination. Chapter 4
concludes this project Judicial Attitude towards evidentiary value of DNA. Chapter 5
includes, Procedure for Collecting DNA Evidence. Chapter 6 deals with the
Investigation of DNA Evidence. Chapter 7 includes Court’s Power relating to DNA

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 Evidential Value of DNA Evidence: - A Judicial Approach

Evidence and last Chapter 8 concludes Conclusion ,Recommendations and

Bibliography.

Hypothesis

DNA fingerprinting isn't completely reliable and also the fault surrounding it makes it
untrustworthy.

Time Limit

It took me roughly 10-15 days to complete this project in its entirety.

Limitation of the Study

One limitation is related to misconceptions about what a DNA match really means. Matching
DNA from a crime scene to DNA taken from a suspect is not an absolute guarantee of the
suspect's guilt. Instead, forensic experts prefer to talk about probability. For example, they
might make a statement like this: The chance is 1/7,000 that an unrelated person would by
chance have the same DNA profile as that obtained from the evidence. Combine that
statistical analysis with other evidence, and you can see how prosecutors can make strong
cases against a suspect.

Even more troubling are cases of DNA fraud -- instances where criminals plant fake DNA
samples at a crime scene. In 1992, Canadian physician John Schneeberger planted fake DNA
evidence in his own body to avoid suspicion in a rape case. Planting fake DNA obtained from
someone else is only part of the problem. Scientists at Nucleix, an Israeli company, recently
reported that they could, with access to profiles stored in one of the DNA databases,
manufacture a sample of DNA without obtaining any tissue from that person.

Nucleix has developed a test to distinguish real DNA samples from fake ones, with the goal
of selling the test to forensic laboratories. But taking these extra precautions to ensure the
validity of its results will only slow down busy labs even more. In fact, forensic casework
backlogs are becoming a serious problem.

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 Evidential Value of DNA Evidence: - A Judicial Approach

CHAPTER II: CONCEPTS OF DNA EVIDENCE

Concept of DNA

DNA is deoxyribonucleic acid, which is a double stranded long molecule and appears like a
twisted rope ladder or double helix. Alternating phosphate and deoxyribose sugar units
comprise the sides of the ladder, while the connectors of the ladder are composed of bases
known as adenine (A), thymine (T), Guanine (G) and Cytosine (C). DNA is essentially made
up of amino acids and it is matched with the so-called bases which provide the key to
determining the genetic blueprint. Each and every cell in the human body has a sample of the
DNA. Each human nucleus contains almost 5 pictograms of DNA and an average human
being contains about 250 grams of DNA. For DNA fingerprinting the desired quantity is in
micrograms. DNA can be extracted from a wide range of sources, including samples of hair,
cigarette butts, blood, razor clippings or saliva. Thus it is relatively easy to obtain samples,
which can then be tested in a laboratory to determine any genetic relationships that may be
present.1

Where does DNA come from?

DNA is made up of one half of our biological mother’s DNA and one half of our biological
father’s DNA. 50% of our DNA is passed down to our biological children. It is this that
ensures DNA is unique, and allows for accurate testing of parentage and direct descendants
through a DNA paternity test.2

What is DNA evidence?

DNA evidence is playing a larger role than ever before in criminal cases throughout the
country, both to convict the guilty and to exonerate those wrongly accused or convicted. This
increased role places greater importance on the ability of victim service providers to
understand the potential significance of DNA evidence in their clients’ cases. In forensic
DNA analysis continue to have a tremendous impact on the criminal justice system. The

1
"DNA pioneer's 'eureka' moment". BBC News. September 9, 2009. Retrieved April 1, 2010.
2
DNA Extraction - an overview | ScienceDirect Topics". www.sciencedirect.com. Retrieved 2018-11-08

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 Evidential Value of DNA Evidence: - A Judicial Approach

positive side of this revolution is that it offers enhanced opportunities to convict the guilty
and exonerate the innocent.

DNA, sometimes called the building block or genetic blueprint of life, 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. The pattern of the
compounds that constitute the DNA of an individual life-form determines the development of
that life-form. 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.3

DNA analysis was first proposed in 1985 by the English scientist Alec J. Jeffreys. By the late
1980s, it was being performed by law enforcement agencies, including the Federal Bureau
ofInvestigation (FBI), and by commercial laboratories. It consists of comparing selected
segments of DNA molecules from different individuals. Because a DNA molecule is made up
of billions of segments, only a small proportion of an individual's entire genetic code is
analyzed. In 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. DNA technology makes possible the
study of human variability at the most basic level—the level of genetic material, DNA.
Previous methods using blood groups and proteins have analyzed gene products, rather than
DNA itself. In addition to providing more direct genetic information, DNA can withstand
environmental conditions that destroy proteins, so old, badly degraded samples of bodily
fluids still can provide abundant information. If the array of DNA segments (markers) used

3
Use of DNA in Identification". Accessexcellence.org. Archived from the original on 2008-04-26. Retrieved
2010-04-03.

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 Evidential Value of DNA Evidence: - A Judicial Approach

for comparison is large enough, the probability that two unrelated persons (or even close
relatives, except identical twins) will share all of them is vanishingly small.

The techniques for analyzing DNA are already very powerful; they will become more so. If
the array of DNA markers used for comparison is large enough, the chance that two different
persons will share all of them becomes vanishingly small. With appropriate DNA test
systems, the uniqueness of any individual on the planet (except an identical twin) is likely to
be demonstrable in the near future. In the meantime, the justification for an inference that two
identical DNA profiles come from the same person rests on probability calculations that
employ principles of population genetics. Such calculations are, of course, subject to
uncertainty.

DNA analysis is only one of a group of techniques that make use of new and increasingly
sophisticated advances in science and technology. Some of the subjects involved are
epidemiology, survey research, economics, and toxicology. Increasingly, the methods are
technical and statistical, as with forensic DNA analysis. The issues are at the interface of
science and law, and involve the difficult problem of accommodating the different traditions
in the two areas.

The value of DNA evidence

DNA is a powerful investigative tool because, with the exception of identical twins, no two
people have the same DNA. Therefore, DNA evidence collected from a crime scene can be
linked to a suspect or can eliminate a suspect from suspicion. During a sexual assault, for
example, biological evidence such as hair, skin cells, semen, or blood can be left on the
victim’s body or other parts of the crime scene. Properly collected DNA can be compared
with known samples to place a suspect at the scene of the crime. In addition, if no suspect
exists, a DNA profile from crime scene evidence can be entered into the FBI’s Combined
DNA Index System (CODIS) to identify a suspect anywhere in the United States or to link
serial crimes to each other. The effective use of DNA as evidence may also require the
collection and analysis of elimination samples to determine the exact source of the DNA.

Elimination samples may be taken from anyone who had lawful access to the crime scene and
may have left biological material. When investigating a rape case, for example, it may be
necessary to obtain an elimination sample from everyone who had consensual intercourse

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 Evidential Value of DNA Evidence: - A Judicial Approach

with the victim within 72 hours of the alleged assault to account for the entire DNA found on
the victim or at the crime scene. Comparing DNA profiles from the evidence with elimination
samples may help clarify the results.

Uses of DNA testing

In criminal context such test can be required following sexual assaults, for example, to
identify the father of a child conceived as a result of an alleged assault. Similarly, this test can
be used to confirm that the two individuals are genetically related in cases involving
concealed births, abandoned children, child swapping or infanticide. DNA Test is very useful
in civil litigation involving claims by an estranged partner for financial support and
maintenance of a child.4

4
"Gene Technology — Page 14". Txtwriter.com. 1987-11-06. Archived from the original on 2002-11-27.
Retrieved 2010-04-03.

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 Evidential Value of DNA Evidence: - A Judicial Approach

CHAPTER III: DNA EVIDENCE AND THE PRIVILEGE AGAINST SELF-INCRIMINATION

The discovery of genetic fingerprinting with its high specificity and extraordinary probative
properties highlights the question of the scope of the privilege against self-incrimination. The
fact that the public would probably see DNA fingerprinting as harder to fabricate, as more
objective than a verbal statement, it may also mean it is more difficult for the individual to
refuse and for his refusal to be seen as legitimate. Fear, anxiety, embarrassment, and anger,
rather than guilt, may account for non-cooperation in supplying a bodily sample just as they
may account for silence.

The suspect may be apprehensive regarding how the test is conducted and more importantly,
how accurate it is, especially if he does not understand what the test involves or lacks
confidence in the testing procedures and controls.

The question that now comes to mind is whether or not it is legal for the courts to ask the
accused to supply a sample of his DNA for the analysis. What is of concern here is that does
forcing the accused to provide a sample of his DNA amount to a violation of the protection
against self-incrimination? Also, if the accused refuses to give the sample then does that
mean that an adverse inference will be drawn against him?

In the case of Goutam Kundu v. State of W.B23, there was a question of disputed paternity.
The Court held that 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.

The constitutionality in taking a fingerprint was challenged in the case of State of Bombay v.
Kathi Kalu Oghad. The Supreme Court held that Article 20(3) of the Constitution gives
protection to a person not to be a witness against himself. However, "to be a witness" is not
equivalent to "furnishing evidence" in its widest term and significance. Giving thumb or
finger impression or exhibiting parts of the body by way of identification are not included in
the expression "to be a witness". Being a witness has been interpreted to mean imparting
some sort of knowledge in testimony. From this it appears that there will be no constitutional
restriction on the collection of samples for DNA analysis.

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 Evidential Value of DNA Evidence: - A Judicial Approach

CHAPTER IV: JUDICIAL ATTITUDE TOWARDS EVIDENTIARY VALUE OF INDIA

 MAINTANANCE CASE

In recent times, the paternity of a child is raised in maintenance cases. The paternity
of a child is decided through DNA technology. Since there is no marriage between
the parties, the judiciary cannot raise the presumption under Section 1125,252 of the
Indian Evidence Act, 1872. In such a situation, the judiciary resolves the problem
through the use of DNA technology to identify the biological relationship of child
with the person. Sometimes, the marriage is subsisting but the parties are in
separation and the non-access between the husband and wife can be proved through
the use of DNA technology.

Kunhiraman v. Manoj.6

This was the first case relating to the admission of DNA Technology. Based on the
false promise of marriage, the respondent Kunhiraman had sexual intercourse with
the petitioner‘s mother Vilasini. This resulted in her pregnancy. She gave birth to a
child, Manoj. Afterwards, Kunhiraman denied all facts and changed his attitude to
marry her. So, she filed a maintenance claim for his child under Section 125 of the
Criminal Procedure Code, 1973 before the Chief Judicial Magistrate, Thalassery.

In the absence of a legal marriage between Vilasini and Kunhiraman, the Court found
it difficult to apply Section 112 of the Indian Evidence Act, 1872. Therefore, the
Court found that the legitimacy of the child Manoj could be established only through
scientific evidence. For that the Court ordered for DNA test to Manoj, Kunhiraman
and Vilasini. The DNA test was conducted by the Centre for Cellular and Molecular
5
Section 112: Birth during marriage, conclusive proof of legitimacy- The fact that any person was born during
the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days
after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of
that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he
could have been begotten.
6
2) KLT 190, Also available at Dinkar, V. R, Justice in Genes (Evidential Facets of Forensic DNA
Fingerprinting), Asia Law House, Hyderabad, 1st Edition 2008, P.166-167

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 Evidential Value of DNA Evidence: - A Judicial Approach

Biology (CCMB), Hyderabad. The report of DNA test confirms Kunhiraman and
Vilasini were the biological parents of Manoj.

The Court again appointed expert to get a opinion regarding the reliability of the
technique and the capacity of the scientist who conducted the test. For that, the Court
examined Dr. Umadathanm, the medicolegal advisor to the Kerala Police. He
produced certain scientific articles on DNA
fingerprinting to show that the technique was a valid one. Relevant portion of his
deposition was as follows:
“DNA profile study is considered as conclusive method for
determining the paternity and maternity of an individual. Except in the
case of identical twins possibility of the persons having the same.”

When both the parties are married, the court will follow Section 112 of Indian
Evidence Act, 1872. In this case, the parties are not married but they have a physical
relationship. Owing to such relationship, the child was born. The court relies on DNA
technology in order to protect the victim as well as the child. In this critical situation,
the court follows the scientific expert opinion under Section 45 of the Indian
Evidence Act, 1872. Here, the DNA technology protects the victim and the innocent
child.

 RAPE AND MURDER CASE

After the advent of DNA technology, the accused is easily identified in rape and
murder cases. In rape cases, the biological samples recovered from the victim can be
used as a strong circumstantial evidence to prove the guilt of the accused among the
other circumstances. In some cases, the victim may become pregnant. The sample
collected from the foetus may be compared to the sample collected from the accused
through DNA technology. It clearly establishes the identity of the accused if he has
committed rape. In rape with murder cases, once the prosecution establishes the rape
count, they can easily put the offender for murder. On some occasions, the victim

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 Evidential Value of DNA Evidence: - A Judicial Approach

may die but she becomes pregnant at the time of his death. The identity of the
accused can be revealed through the use of DNA technology by comparing the foetus
sample with the suspect if he has really committed. Sometimes, the accused after
committing murder in order to escape from the murder charge may have buried the
dead body of the deceased. The identification of the dead body can be traced with the
help of DNA Technology.

Kamalananda and Others v. State of Tamilnadu7

This case relates to the rape of 13 orphan girls of ashram and murdering a disciple,
Ravi who tried to reveal the misdeeds of Swami Premananda and other devotees of
ashram. One of the ashram girls lodged a complaint against the accused Swami
Premananda for rape and sexual harassment. All the victim girls were medically
examined. In the medical examination, the thirteen victim girls were found
accustomed to sexual intercourse. Among them, one of the victim girls namely
Aruljothi, was found pregnant. She requested for termination of her pregnancy. The
Court directed the doctors to conduct abortion and to collect the samples of aborted
foetus including the blood sample of accused. The DNA report confirmed that Swami
Premananda was responsible for the product of conception of aborted foetus beyond
reasonable doubt.

The trial court convicted Swami Premananda along with 6 accomplices. The main
accused Premananda was awarded double life imprisonment.

 MURDER CASE

Sushil Sharma v. State of N.C.T. of Delhi8

This was the first criminal case decided with the help of forensic science. This is
famously known as Naina Sahni murder case. In this case Shusil Sharma murdered his

7
2005 (5) SCC 194; Borrowed from http://www.saibaba-x.org.uk/28/Swami_Premananda
Indian_Gov‘t_CBI.html,http://www.lawexaminations.com/index.php?option=com_k2&view =item&id
=39:important-judgment-3eItemid=236
8
(2014) 4 SCC 317

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 Evidential Value of DNA Evidence: - A Judicial Approach

wife at home by firing bullets. 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 his
worker Keshav Kumar attempted to burn her in a tandoor. Police arrested Keshav
Kumar, Sushil Sharma and three other persons. While arresting Sushil Sharma, Police
recovered Sharma‘s revolver and blood-stained clothes and sent them to forensic
laboratory. They also took blood sample of Sahni's parents, Harbhajan Singh and
Jaswant Kaur. The samples were sent to DNA laboratory. The DNA report confirmed
that the charred body is that of Naina Sahni who is the biological offspring of Mr.
Harbhajan Singh and Jaswant Kaur.

This case is based on circumstantial evidence alone. Here, the DNA evidence plays an
important role in identifying the charred body of the deceased Naina Sahni. The court
considers the DNA evidence as one of the circumstances to prove the guilt of the
accused.

The Supreme Court opines that there is no doubt in the chain of the above
circumstances and it is complete and unerringly points to the guilt of the appellant.
The established circumstances are capable of giving rise to inference which is
inconsistent with any other hypothesis except the guilt of the appellant. The
prosecution has, therefore, proved that the appellant alone has committed the murder
of the deceased. The Court confirmed the convicted the accused for life
imprisonment.

 UNNATURAL OFFENSES AND MURDER CASE

Anil Alias Anthony Arikswamy Joseph v. State of Maharashtra9

The case is concerned with a gruesome murder of a minor boy aged 10 years after
subjecting him to carnal intercourse and then strangulating him to death. The post-
mortem report confirmed the offense. Immediately, the accused was arrested. The

9
(2014) 4 SCC 69

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 Evidential Value of DNA Evidence: - A Judicial Approach

accused was sent for medical examination and the blood sample was taken. The
blood sample of the accused, samples collected from the anal smear of the deceased
during post-mortem and the half pant (Barmuda Pant) of the accused which contains
semen stains were sent to Forensic Science Laboratory, Mumbai for DNA analysis.
The DNA report matched.

In this case, the unnatural offense which was committed by the accused against the
child had clearly been established by DNA evidence and Medical evidence.

The Supreme Court after examination of all the evidences on record sentenced him a
further period of thirty years, without remission, in addition to the sentence already
undergone, rather than death sentence.

 ASSASSINATION CASE

State of Tamil Naidu v. Nalini and Ors10

This is famously known as Rajiv Gandhi Assassination case. Rajiv Gandhi, who was
a former Prime Minister of India, was killed by a suicide bomber. The prime culprit
was killed herself and consequently, most material evidences were destroyed in the
massive explosion. Moreover, dead bodies of the victim as well as of the assassin
were dismembered beyond recognition. DNA tests helped in matching dismembered
parts of the bodies of the victim and assassin.

A charge of conspiracy for offenses under the Terrorist and Disruptive Activities
(Prevention) Act , 1987 (TADA), Indian Penal Code (IPC), Explosive Substances
Act, 1908, Arms Act, 1959, Passport Act, 1967, Foreigners Act, 1946, and the Indian
Wireless Telegraphy Act, 1933 was laid against 41 persons, 12 of whom were already
dead having committed suicide and three absconded. Prosecution examined 288
witnesses and produced numerous documents and material objects. Statements of all
the accused were recorded under Section 313 of the Code of Criminal Procedure
(Code). They denied their involvement. The trial court found them guilty of the

10
1991 SCC (3) 87

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 Evidential Value of DNA Evidence: - A Judicial Approach

offenses charged against them. The trial court convicted twenty-six accused persons
and convicted them to death penalty.

Aggrieved by the said judgment, all the accused persons preferred an appeal before
the Supreme Court. Supreme Court upheld conviction of all and confirmed capital
sentence for four of the accused, modifying the punishment to imprisonment for life
and other terms for the rest. On 18th February, 2014, Supreme Court commuted the
death sentence of three of the accused.

In this case DNA evidence was used as one of the circumstantial evidence to link the
criminal with a crime as well as to identify the victim and accused.

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 Evidential Value of DNA Evidence: - A Judicial Approach

CHAPTER V: PROCEDURE FOR COLLECTING DNA EVIDENCE:

As technology advances, forensic scientist’s square measure able to analyze smaller and
smaller biological samples to develop a DNA profile. As an example, if someone touched
associate object or weapon, skin cells might are left behind. It will even be collected from a
victim’s skin or bruises wherever they were handled roughly. Low-level DNA samples is also
useful once examining evidence wherever it might be tough to retrieve fingerprint, such as
rough-textured surfaces on gun handles or automobile dashboards.

To compare the victim’s or suspect’s DNA profile to the recovered crime-scene DNA, the
laboratory can got to have their familiar biological samples obtainable for a side-by-side
comparison. These familiar samples square measure known as reference samples. In some
jurisdictions, a DNA sample is habitually taken from associate arrestee throughout the
method of booking and procedure. However, this is often associate evolving space of law and
states vary in their laws governing the gathering of DNA from arrestees. Forensic
investigators will analyze the biological samples to get a DNA profile of the individual(s) that
the samples came from. There are also databases of DNA profiles that investigators can use
to identify suspects by comparing the database information to the DNA profile obtained from
the biological evidence.

The storage of biological evidence for DNA testing includes the following, Biological
evidence ought to be allowed to air dry before packaging however ideally, it ought to be
adorned up in a very clean dry area, away from direct daylight, Biological evidence ought to
be packaged in paper baggage and paper breaths, and permits the item of evidence to remain
dry. Plastic baggage doesn’t breath, and might cause wetness and mildew to grow on the
evidence, that successively will have a negative result on DNA testing. Biological evidence
ought to be keeping underneath laboratory conditions as obtainable resources allow - or in a
very cool, dry climate, freed from wetness. Place liquid things in assortment tubes and
refrigerate.

It is necessary that biological evidence be properly collected and preserved because it will
simply degrade once exposed to heat or wetness. Storing evidence in cool environments is
preferred; but, analysis has shown that temperature conditions square measure appropriate for
storing dried stains as long because the wetness is controlled. Liquid samples ought to be
transported in cold or insulated containers.

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 Evidential Value of DNA Evidence: - A Judicial Approach

CHAPTER VI: INVESTIGATION

The Identification of Prisoners Act, 1920 enables the Investigation Officers to collect finger
print impressions, foot-print impressions from the suspect. Sec. 5 of the Act empowers for
magistrate to order a person to be measured or photographed. Here measurement means and
includes finger impressions and footprint impressions. But this Act does not empower a
Magistrate to order a person for collection of his X-ray photography or ultra- sonography in
case the suspect swallows an important material which may be a property of theft or other
material which is necessary for the purpose of investigation. This Act also remains silent for
collecting other body fluids from the body of the suspect such as blood, semen, urine etc. for
DNA analysis.

In this respect sections 53, 53A, 311A and 313 of the Code of Criminal Procedure, 1973,
are relevant:

1. Examination of arrested person by medical practitioner at the request of police officer

- (Section 53)
1) When a person is arrested on a charge of committing an offence
of such a nature and alleged to have been committed under such
circumstances that there are reasonable grounds for believing that an
examination of his person will afford evidence as to the commission of
an offence, it shall be lawful for a registered medical practitioner,
acting at the request of a Police Officer not below the rank of Sub-
Inspector, and for any person acting in good faith in his aid and under
his direction, to make such an examination of the person arrested as is
reasonably necessary in order to ascertain the facts which may afford
such force as is reasonably necessary for that purpose.
2) Whenever the person of a female is to be examined under this
section, the examination shall be made only by, or under the
supervision of, a female registered medical practitioner.

2) In this section and in section 53A and 54 of CrPC:

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 Evidential Value of DNA Evidence: - A Judicial Approach

a) "Examination" shall include the examination of blood, blood stains, semen,

swabs in case of sexual offences, sputum and sweat, hair samples and finger
nail clippings by the use of modern and scientific techniques including DNA
profiling and such other tests which the registered medical practitioner thinks
necessary in a particular case.
(b) "registered medical practitioner" means a medical practitioner who possesses and
medical qualification as defined in clause (h) of section 2 of the Indian Medical
Council Act, 1956 (Act No. 102 of 1956) and whose name has been entered in a State
Medical Register.

DNA testing is so advance that if the blood is disintegrated the DNA remains stable unless it
is burnt by fire.

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 Evidential Value of DNA Evidence: - A Judicial Approach

CHAPTER VII: COURT’S POWER

Ordinarily the Court have quite enough power todirect the parties to undergo medical test, or
give sample of blood for DNA test. But, in a case Honb'le Supreme Court has held that-

The Courts in India cannot order blood test as a matter of course;

1) Wherever applications are made for such prayers in order to have roving inquiry, the
prayer for blood test cannot be entertained;
2) 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;
3) 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;
4) No one can be compelled to give sample of blood for analysis. In Sharda v. Dharam
Pal, the question for consideration was whether a party to the divorce proceeding can
be compelled to a medical examination in this regard. The Apex Court held that:
5) A matrimonial court has the power to order a person to undergo medical test.
6) Passing of such an order by the Court would not be in violation of the right to
personal Liberty under Article 21 of the Constitution of India.
7) However, the Court should exercise such a power if the appellant has a strong prima
facie case and if there is sufficient material before the Court. If despite the order of
the Court, the respondent refuses to submit himself to medical examination the Court
will be entitled to draw an adverse inference against him.11

Amarjit Kaur v. Har Bhajan Singh12

The court observed that section 112 of the Evidence Act was enacted at a time when the
modern scientific advancements with deoxyribonucleic acid (DNA) as well and ribonucleic
acid (RNA) tests were not performed. A genuine DNA test is said to be scientifically
accurate. But even that is not enough to escape from the conclusiveness of presumption of

11
Sharda v. Dharampal, A.I.R. 2003 S.C. 3450.
12
(2003) 10 S.C.C. 228: 2003 (2) A.I.C. 427 (S.C.).

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 Evidential Value of DNA Evidence: - A Judicial Approach

law about the legitimacy of the child. Under section 112 of the Act for example if a husband
and wife were living together during the time of conception but the DNA test revealed that
the child was not born to the husband, the conclusiveness in law would remain irrefutable.

Kanti Devi v. Poshi Ram13

The Supreme Court held that although DNA evidence is scientifically accurate, it cannot be
accepted in determining the paternity dispute on the ground of public policy. The Supreme
Court, by this decision, encouraged the law makers to strictly adhere to the conventional,
unscientific, ineffective and biased system of justice.

State of Uttar Pradesh v. Amaramani Tripathi14

DNA fingerprinting also ensured that former Uttar Pradesh Minister Amarmani Tripathi was
sentenced to life for the murder of Madhumita Shukla. "The poetess was six months pregnant
when she was found dead in Lucknow. The CBI preserved the foetus and sent a sample for
DNA testing." The investigation agency has relied upon DNA test reports as evidence to
adduce paternity.

The courts have also dealt with two related issues:

i. Whether it would amount to violation of right to privacy under Article 21?

ii. Whether it would amount to violation of Article 20(3) and would lead to self-
incrimination?

K. Venkataraman, J. Veeran v. Veeravarmalle15

A suit by child for declaration that she is legitimate child born to her parents i.e., Petitioner
and second respondent her mother. The Court directed father to undergo DNA test. It cannot

13
A.I.R. 2001 S.C. 2226
14
A.I.R. 2005 S.C. 3490
15
A.I.R. 2009 Mad. 64

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 Evidential Value of DNA Evidence: - A Judicial Approach

be said to be affecting his fundamental right and is not violative of his right to personal
liberty enshrined under Art.21 of Constitution. Mother having remained ex parte. There is no
question of compelling her to undergo DNA test arises. DNA Test performed on petitioner
father alone will prove that petitioner is father without any test conducted on mother.

Aarushi Murder case was sabotaged by DNA tempering. The Centre for DNA Finger
Printing and Diagnostics (CDFD) in Hyderabad has told the CBI that Aarushi's vaginal swabs
were substituted with samples of an unidentified woman and the investigating agency now
believes that there was a conspiracy to destroy evidence in the double murder case. The apex
court asks CBI about the case.

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 Evidential Value of DNA Evidence: - A Judicial Approach

CHAPTER VIII: DNA LEGISLATION IN CONTEXT OF INDIA

The latest position in India is that there is no specific law on one subject of DNA evidence
but DNA testing has got legal validity in 1989. In India, Kunhiraman v. Manoj, was the first
paternity dispute which required the DNA evidence. The courts are taking DNA evidence as
an expert's opinion like forensic experts, ballistic expert, biological expert, chemical expert;
document writing expert, lie detector, and expert serological expert toxicological expert etc.

The Government of India and Law Commission have also woken up and Indian
Parliamentary Affairs Board has set up an Advisory committee to give a comprehensive
report on all aspects of DNA testing. The Law Commission in its 185th report has also
recommended the inclusion on DNA testing in the Indian Evidence Act by amending its
section 112. In majority of cases involving disputed paternity the petitioner faces financial
difficulties or sometimes he is not capable of spending money for the required or desired
DNA test in order to prove his claim. The Kerala Woman Commission assists such persons as
it gets DNA test conducted at Rajiv Gandhi Centre of Biotechnology, Thiruvanthupur at the
cost of Commission.

The 185th Report of the Law Commission of India states that law of evidence is likely to
undergo radical changes with standardization of new technologies. The judge would find
himself (or herself) in a difficult situation if he/she is unable to appreciate the probative value
of new standards and concepts of evidence. In modern world the technology of DNA
fingerprinting has been accepted method of proving the paternity and other disputes of
similar nature. The modern technologies of genetics and reproduction are solving many
complicated questions of fact. With the invention of new technologies and due to new
researches in the field of science, radical changes are taking place in 21st century in
understanding human behavior. These changes are not\ due to social sciences but due to
advancement of biological science. The DNA fingerprinting is such a revolutionary step in
the related field. Law is primarily concerned with the human behavior and its study.

Parliament of India had passed the Code of Criminal Procedure (Amendment) Act, 2005,
which is assented by President of India on 23rd June, 2005 as Act No. 25 of 2005. It seems
that Government of India is fast thinking on the accuracy of DNA profiling and its
authenticity and reliability. Some provisions have been added by Explanation to section

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 Evidential Value of DNA Evidence: - A Judicial Approach

53(2). It is related to examination of accused by medical practitioner at the request of Police

Officer. The blood, semen, saliva, etc., of accused person(s) can be examined by medical
practitioner.

The DNA Profiling Bill of 2007, which is pending in Parliament, is expected to be

considered and become a law sometime in the near future, perhaps even in legislative session
2009-10. If this were to happen, all convicted criminals across the country will have to
undergo mandatory DNA tests. The bill also aims to achieve standards for laboratories, staff
qualifications, training, collection of body substances, custody trail from collection to
reporting and a data bank. The Bill also makes provisions for a DNA profiling board, which
will comprise scientists, administrators and law enforcement officers. At present in India,
there are around 90,000 cases which need a DNA study, and the irony is that there are just 16
forensic labs across the country with DNA profiling ability. The bill has also kept in mind the
growing threat of terrorism across the world. A provision to share data with other countries
also finds a mention in the bill. Once the bill is passed by Parliament, the first thing that
would be set up is a DNA data bank. This will comprise the index of suspects, convicts,
missing persons and unidentified dead persons. All the labs across the country will have to
contribute to the bank.

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 Evidential Value of DNA Evidence: - A Judicial Approach

CONCLUSION

DNA test is a strong boon in criminal administration of justice, but in civil cases the socio
economic condition and the peculiarity in our country declare this test against of human
dignity especially of child and woman. But the inherent power of courts in civil matters
Sec.151 C.P.C. 1908 should prevail for the sake of justice, truth, and dignity of innocent
person and transparency of judicial administration. So DNA technology can be used in the
matters of human dignity, human right & human relationship, it should be an essential part of
Indian judiciary and for that purpose we are eagerly waiting for an appropriate legislation in
the name of The DNA Profiling Bill 2007 which is stating the infrastructure, standards,
quality-control with assurance obligation of DNA laboratory, information, composition,
qualification of DNA profiling board & it's members, function and most important
establishment of DNA data Bank. This bill comprehensively covers the wide field of DNA
regarding criminal case, that why the name of Bill is DNA profiling Bill 2007, but it would
be more fruitful if it contains certain provisions for the dignity and privacy of all the citizens.
Thus this bill should be DNA and Dignity Bill.

The justice administration system needs to assimilate the scientific advancements of genetic
profiling and develop procedural techniques for harnessing the emerging juridical challenges.
The significant paradigms of DNA fingerprints cannot be left alone to the courts to adjudicate
with temporary tailor made solutions. Therefore in matters of disputed paternity, the
legitimacy or illegitimacy of the child cannot be determined solely by Section 112 of the
Indian Evidence Act, 1872. DNA technology can conclusively establish the truth in such
disputes and therefore should be resorted to without any hesitation. It is to be borne in mind
that when Section 112 was being drafted even the discovery of DNA was not contemplated
and therefore this section should be amended. An ideal solution could be to provide another
outlet apart from the proof of non-access (as discussed earlier) to be provided in the form of
evidence of DNA test to rebut the conclusive proof provision in Section 112.

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 Evidential Value of DNA Evidence: - A Judicial Approach

RECOMMENDATIONS

The researcher suggests the following to improve the effectiveness of DNA evidence,

1. The procedures in forensic laboratory shall be regulated.

2. A commission shall be formed to control the procedure relating to the
gathering of deoxyribonucleic acid evidence and observance its effectiveness.
3. A particular legislation shall be created because the absence of statutory
recognition makes the deoxyribonucleic acid evidence unreliable based on the
recommendation of the commission.
4. Proper training shall be given to investigating authority regarding the
collection of DNA evidences.

BIBLIOGRAPHY

Books

1. D.D.BASU, The Law of Evidence

2. The Code of Criminal Procedure Act, 1973
3. The Evidence Act ,1872

Internet Sources

1. www.academia.org
2. www.legalserviesindia.com
3. www.jstor.org
4. www.indiankannon.org
5. www.manupatrafast.com

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