DNA PROFILING OR FINGERPRINTING

Crime is as old as human civilization. The day, human beings civilized criminal behaviours were
defined. Social norms were settled for identifying what is in the interest of society and what is
harmful for societal well-being. For attaining this, it was needed that the people who do not
observe the societal norm of behaviour should be identified and punished by which, society be
made crime free. This gave birth to the processes of detection, investigation and administration
of criminal justice. In Twenty first century crime is posing greater challenge for the societal
existence and law enforcement agencies are unable in tackling this problem by resorting
traditional methods of investigation. Crime, particularly mass killing by terrorists, Naxalites and
other professional criminals are occurring without any check. Law enforcement agencies are now
finding it self unable to detect criminals, even if detected the rate of conviction is very poor due
to lack of evidence. Criminal law is losing its deterrent effect and common citizenery is losing
faith in law. Now citizens are much security conscious, always fearing of victimization resulting
into either surrendering to criminal elements or taking law into their hands for revenge or
security and thus furthering the problem of criminality.
The traditional evidences against accused have been eye witnesses, confessions and statement of
approvers. Eye witness has now become a rare species, the reason being due to the technological
development modus operandi of committing crime has changed and also now crimes is
committed in well planned manner. Even if the eye witness is available he changes his version of
statement day by day because the fear of criminal elements or corruption
Now a days the criminal elements are not feeling any kind of deterrence from the prevailing
criminal justice system and result is crime waves. This situation in criminal justice is needed to
be coped with immediately:
The days of the perfect crime are numbered. New Technological break
through in crime detection may soon render current police method obsolete. A
careful criminal cover up obvious clues by wiping away his fingerprints or

wearing shoes that make no distinctive marks. But nearly everyone leaves a
small perhaps microscopic-part of themselves behind, especially following a
crime of violence. And crime solving techniques now on drawing board or in
the experimental phase hold good.1
Evidentiary clues are always available at the site of every crime2 and science has progressed so
much that it can identify, compare and link even tiniest connecting clue found. Correct
identification of culprits, victims and mutilated, putrefied corpses has always been a legal, social
and emotional problem before the public, police and courts. The discovery of DNA
fingerprinting in the end of twentieth century has brought a sea change in the identification
scenario. DNA fingerprinting helps law enforcement agencies or courts to determine an
individuals involvement in a crime and settle dispute over paternity. It was developed by Sir
Alec Jeffreys, a Professor at the University of Leicester in United Kingdom in 1984.

1. Allan Dershowitz, Chicago Sun Times, 12 Aug., 1987.

2. Prof. Locard, over two centuries ago, given observation that in every case of crime or for
that
matter in any type of interaction between people or between animate or inanimate objects
there
will be some form of exchange of materials between the two, even if in traces. This is known as
locard principle of exchange. It is not possible that the criminal has not left the clues at the
crime site. The clue may be on the corpus delicti or may be from modus operandi. The clue
may
be insignificant, invisible, left there unmindfully or scanty. Gathering bits and pieces of clues
from the scene of crime or from the victim or from the accused and proper analysis thereof
world clearly identify the criminal and crime problem may be tackled.

DNA FINGERPRINTING
DNA fingerprinting also known as DNA testing, DNA typing, or Genetic fingerprinting is a
technique employed by forensic scientists to assist in the identification of individuals by their

respective DNA profiles.1 DNA profiles are encrypted sets of numbers that reflect a person's
DNA makeup, which can also be used as the person's identifier.2 A DNA fingerprint of an
individual remains same throughout his lifetime and further it is unique for every individual. This
serves as the basis of DNA fingerprinting. DNA fingerprinting is used for a variety of purposes
like criminal investigation or parental testing e.t.c.
Dr. Alec Jeffereys of the University of Leicester is known as the father of DNA fingerprinting.
DNA analysis was first introduced into policing in 1986 by UK police in a murder investigation.
DNA fingerprinting, has given police and the courts a means of identifying the perpetrators of
rapes and murders with a very high degree of confidence. 3 However, the admissibility of DNA
fingerprinting as evidence in the court of law is still a matter of debate. The arguments given
against this usually focuses on the misuse of such techniques and raises concerns over various
moral and ethical aspects of this particular technique.
Stages:
Collecting crime scene evidence requires extreme care and attention to detail. One mistake and
evidence may be damaged, tainted or inadmissible in a courtroom. Given how crucial DNA
evidence can be for determining innocence or guilt in a crime, its collection at a crime scene
must be performed to scrupulously high standards. Not only that, but DNA transport and storage
must be performed to similarly impeccable standards.
Pinpointing DNA Evidence at a Crime Scene
DNA evidence is literally anywhere imaginable when it comes to crime scene evidence
collection. The sources may be obvious or may be more obscure, which is why evidence
collection must be performed very carefully to ensure that none is missed. DNA evidence may be
found on the victim, particularly if the victim fought with the attacker or was sexually assaulted.
It may be found from saliva on something as seemingly unimportant as a discarded cigarette stub

1 http://en.wikipedia.org/wiki/DNA_profiling
2 http://en.wikipedia.org/wiki/DNA_profiling

3 http://goswamigk.indianscholars.org/2011/03/legal-issues-related-to-dnafingerprinting-in-criminal-justice-system/

found on the ground near the crime scene. In fact, consider that just one hair found at a crime
scene or on the victim can be enough to help convict the perpetrator of a crime.
Collecting DNA Evidence and Keeping it Safe
Not only must DNA evidence be found but it must also be collected in such a way as to preserve
the integrity of the DNA and preserve it for analysis. Generally, the most important pieces of
DNA evidence are assessed for analysis first and then others are sequenced as needed for further
information that can help the investigation.
When DNA crime scene evidence is collected, it has to be done very carefully because viruses
such as HIV may be present and could pose a threat to those performing the collection. In
addition, DNA need only be in a small sample to provide sufficient evidence, which means that
great care must be taken not to contaminate the sample during collection, transport and storage.
If a person simply sneezed on the DNA sample, this could contaminate the sample and render it
difficult to assess or even useless. Newer DNA scanning and analysis technology allows for very
tiny samples to be examined and any contaminants can destroy the accuracy of the sample,
particularly when the technology involves replication of the DNA.
Transporting and Storing DNA Collected at a Crime Scene
Finding DNA evidence and carefully collecting it is still only a small portion of the battle to
provide quality evidence. The sample must still be transported and stored in such a way that the
integrity of its structure is safeguarded. Any DNA evidence needs to remain dry and free of
moisture as well as stored at room temperature. After it is collected, it is typically stored in a
secure bag or envelope and sealed. It also receives an appropriate label and is transported in a
way that ensures it is securely monitored. If the DNA sample is properly collected, transported
and stored, it can then be analysed to provide potentially important results to investigators.
Evidence at a crime scene is important to finding the correct perpetrator of a crime and helping
to prevent an innocent person from being accused of a crime. If the DNA evidence is not
collected according to protocol or if it is contaminated and poorly transported or stored, it may
ultimately be useless for use as evidence in the case. If, however, the DNA evidence is properly
collected, it can be vital in guiding the direction and outcome of a case. As technology continues
to improve for analysing DNA, the basic rules of crime scene collection remain as important as
ever to keep a DNA sample safe and secure.
Forensic identification has revolutionised the way that criminal investigation occurs and has had
an enormous impact on the criminal justice system and many other important areas. In fact, the
term 'DNA' for many people is quickly associated with crime because the media regularly
describes DNA 'left at crime scenes' and used for identification purposes. But for many people,
the actual procedure itself is still a mysterious one that rarely receives much in-depth description

in non-technical terms. Not only that, but the applications can stretch far beyond just criminal
investigation.
Process of Forensic Identification
Virtually any organism can be identified through its DNA sequence, which is unique. While
identifying a species is one thing, identifying within species is very much an exact science and is
far more complicated. When it comes to identifying a person, a forensic scientist must use a
special scanner to view thirteen areas of DNA that are different from one person to another. This
information is then used to produce a DNA profile for that particular person. DNA profiles are
also known as DNA fingerprints - they are unique for each person with the exception of identical
twins.
Using DNA Forensic Identification
There are numerous ways that DNA profiles can be used for forensic identification. In fact, their
applications are not only vital for proving guilt, but also for proving innocence. DNA forensic
identification can allow for a potential suspect in a crime to be identified. This is why evidence
left at a crime scene can be so crucial, particularly when it is DNA evidence. DNA profiles can
also be used to show innocence, which is life-changing and even more so in cases where a person
was originally determined guilty but later released from prison solely on DNA evidence that
arose in the future.
Another interesting use for DNA in forensics is to closely link up an organ donor with a patient
intended to receive the organ. This matching system can help to provide a successful outcome
and reduce the chances of immunological rejection in the recipient. Still another useful aspect of
DNA is that organisms in the environment that cause pollution can be isolated and identified.
DNA profiles play an important role in identifying victims of crime, who may be unrecognisable
due to the nature of the crime or simply because the body is too badly decomposed for adequate
identification through other means. Yet another valuable use for DNA profiling is to establish a
familial connection in paternity cases. The use for DNA in forensics is seemingly endless and
some uses are even quite obscure. Many people are unaware that DNA can be used for cases
such as those involving prosecution of poachers, where DNA is used for identification purposes
for endangered or protected species in the wild. DNA can even be used for more local
identification purposes - as local as a household pet, in fact! DNA is becoming popular now for
determining a dog's pedigree, which can ensure that a veterinarian provides custom-tailored
health care for the family pet.
Effectiveness of DNA Forensic Identification
You may be wondering just how accurate this type of identification is, given that a mistake could
result in major consequences, particularly in instances of proving guilt or innocence in a crime.

DNA evidence needs to be used carefully and with common sense as well. This means that the
aspects of human DNA sequences that are most variable within humans should be utilised, for
example. If you think about evidence in a criminal investigation, you know that common sense
will dictate that one piece of evidence in itself is not necessarily very strong to point to a specific
perpetrator. If investigators knew that a footprint was left from a size eight shoe, this would not
be enough because many people have shoes of this size. If a piece of black hair were left behind
as well, the two pieces of evidence would be more helpful in narrowing down to a perpetrator.
Try to consider DNA evidence in that same light. A forensic scientist will investigate a DNA
sequence by looking for a match in specific bits of the DNA sequence. While one or even a
couple of matches are not that strong to indicate a match between two DNA profiles, four or even
better - five - are significantly stronger and can provide more confidence that there is an accurate
match between two profiles.
DNA is one of our most important tools in the field of forensics and new studies and research
will hopefully yield more applications for DNA profiling. It is also expected that current
techniques and applications with be further refined to provide an even greater level of accuracy.

DNA PROLIFILING PROCESS:

The very basis of the DNA fingerprinting process is that except for the identical twins DNA
sequences are unique in each and every individual. Though, 99.9% of human DNA sequences are
identical in every individual enough DNAs are different to help the scientists identify a person at
the exclusion of others. Further, an individuals DNA cannot be changed by him even through
operation. Thus, DNA prolifiling is permanent identifier of an individual by exclusion of all
others.
The DNA fingerprinting process starts by collecting some sample of individuals DNA. This
sample is usually referred as the Reference sample. The best method of obtaining a DNA
reference sample is the Buccal Swab in which DNA samples are collected from the inside cells
of mouth. The DNA samples obtained in such manner have less chances of being contaminated.
DNA samples can also be collected from blood, skin, hair, tissues or semen e.t.c. The technology
today has proved to be so powerful that even the blood-stained clothing of Abraham Lincoln was

used and the DNA analyzed for evidence of a genetic disorder called Marfan's Syndrome. 4
This reference sample is then analyzed through certain chemical reactions and the final patterns
are compared with the samples of another DNA to arrive at a particular conclusion.
At the very beginning the reliability of this particular method was challenged. It was argued that
the outcomes of DNA fingerprinting cannot be accepted as substantial evidences in the court of
law because they sometimes may produce faulty results either due to contamination of the
sample or due to faulty preparation procedures. Thus, it has been recommended to improve the
procedures employed in collection of reference samples and their tests.

APPLICATION OF DNA FINGERPRINTING:

1. It is currently employed in paternity disputes
2. Identification of bodies of soldiers killed in war.
3. To diagnose inherited disorders in both prenatal and newborn babies.
4. Biological Evidence to Identify Criminals: Where fingerprints are not available but
biological specimens are available like blood or semen stains, hair, or items of clothing at
the scene of the crime then these items may prove to be valuable sources of DNA of the
criminal.
5. Personal Identification - DNA maybe the best way to identify a person as all body tissues
and organs contain the same DNA type. The specimen required also is very small. In fact
the US army has been doing DNA fingerprinting of all its soldiers and has a huge
databank. The DNA method for personal identification is far superior to the dental
records and blood typing methods that were popularly being used.
6. Identify potential suspects whose DNA may match evidence left at crime scenes
7. Exonerate persons wrongly accused of crimes
4 http://www.medindia.net/patients/patientinfo/Dnafingerprinting_criminalcases.htm

8. Identify crime and catastrophe victims

9. Establish paternity and other family relationships
10. Identify endangered and protected species as an aid to wildlife officials (could be used for
prosecuting poachers)
11. Detect bacteria and other organisms that may pollute air, water, soil, and food
12. Match organ donors with recipients in transplant programs
13. Determine pedigree for seed or livestock breeds
14. Authenticate consumables such as caviar and wine
HISTORY OF DNA FINGERPRINTING: CASE LAWS

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, in the
same case as Buckland, British baker Colin Pitchfork was the first criminal caught and

convicted using DNA fingerprinting.

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.[46][47]

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 2004, DNA testing shed new light into the mysterious 1912 disappearance of Bobby
Dunbar, a four-year-old boy who vanished during a fishing trip. He was allegedly found
alive eight months later in the custody of William Cantwell Walters, but another woman
claimed that the boy was her son, Bruce Anderson, whom she had entrusted in Walters'
custody. The courts disbelieved her claim and convicted Walters for the kidnapping. The
boy was raised and known as Bobby Dunbar throughout the rest of his life. However,

DNA tests on Dunbar's son and nephew revealed the two were not related, thus
establishing that the boy found in 1912 was not Bobby Dunbar, whose real fate remains

unknown.
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.

How DNA Fingerprinting is done?

In DNA profiling process firstly, the DNA is isolated from cells or tissues of the body in which
the amounts of DNA found at the root of one hair is sufficient. After chemically extracting the
intact DNA from the sample restriction enzymes are used to cut DNA at specific places. The
DNA pieces are then sorted out according to size by sieving technique called electrophoresis in
an agarose gel. The DNA fragments are blotted from the gel onto a nylon membrane. This
process is known as Southern Blotting. On addition of radioactive or colored probe to the nylon
sheet a pattern called the DNA fingerprint is produced. The final DNA fingerprint is built by
using several probes (5-15 or more) simultaneously.
Where the samples are inadequate and the quality poor, this technique has been found to be less
satisfactory. Therefore, a new technology was developed to replicate the inadequate sample, by
synthesizing new DNA from the existing one to obtain sufficient quantities for analysis. This
technique is called Polymerase Chain Reaction (PCR) and the testing PCR is known as PCRSTR (Short Tandem Repeat). It can produce quick, valuable results with degraded specimens.
In India this technique is in its infancy. Centre for DNA fingerprinting and Diagnostics (CDFD),
Andhra Pradesh Forensic Science Laboratory (APFSL), Centre for Cellular and Molecular
Biology (CCMB), Rajiv Gandhi Centre for Biotechnology (RGCB) are the major institutes
where DNA fingerprinting is done.

DNA fingerprinting vis--vis Indian Evidence Act, 1872

Applications of DNA testing are now well established in developed countries [10]. In India, in
several cases, the judgment has been given either based on the results of DNA testing alone or
along with other corroborative evidence. Although DNA test has been accepted in many courts in
India, it has not yet been included in the Evidence Act. It is therefore, left to the discretion of the
judges whether the DNA tests under Section 45 of the Indian Evidence Act to be accepted or not.
The first paternity dispute in India [11], which was solved by DNA fingerprinting test, was the
case No. M.C. 17 of 1988 in the court of the Chief Judicial Magistrate of Telicherry (Thalassery).
The Chief Judicial Magistrate held that: the Evidence of Expert is admissible under Section 45

of The Indian Evidence Act, 1872. So also, the grounds on which the opinion is arrived at are
also relevant u/s 51 of The Indian Evidence Act. PW4 is an expert in the matter of molecular
biology and the evidence tendered by him is quite convincing and I have no reason why it should
not be accepted. Just like the opinion of a chemical analyst, or like the opinion of a fingerprint
expert, opinion of PW4, who is also expert in the matter of cellular and molecular biology, is also
acceptable.
This verdict was challenged in the High Court but the High Court upheld the verdict of the
Telicherry Court stating that the results of DNA test by itself could be deciding paternity.
Many a times questions have been raised before the courts in cases of DNA fingerprinting,
creating a hindrance to the investigating agencies, and they are: whether a suspect, or for that
matter anybody can be forced to give a blood sample for testing?, and whether such a testing
would be considered a violation of Article 20(3) of the Constitution of India, which protects
every citizen from providing self-incriminating evidence? And whether an order forcing an
individual for DNA testing would be violation of his right to privacy? And if the person refuses
to submit himself/herself to such test whether adverse inference or presumption can be drawn by
the court?
Justice Jagganatha Rao, Chief Justice of the Kerala High Court pointed the lacunae in this regard
in 1995 in a verdict of the paternity dispute. Justice Rao pointed out in his judgments two
facts [12]:
1. DNA testing is as yet not considered a conclusive proof under Section 112 of the
Evidence Act, and
2. Law has not been passed by the Parliament for such testing.
Section 112 uses the words, conclusive proof and refers to non-access as the sole
exception [13]. Therefore, as the language of the section stands, no other evidence is permissible
except non access, to prove that a person is not the father. This was held in several decided cases
and also by the Supreme Court in Kanti Devi vs. Poshi Ram [14]. That case concerned DNA
evidence but the Supreme Court refused to permit the evidence on the ground that except nonaccess no other evidence is permissible to prove that a person is not the father.
Judgment of the Supreme Court in 1993 also highlighted the fact that there is no provision in
Indian laws to force or compel people to undergo blood tests or any other
type of DNA testing [15].
Bombay High Court in the case of Sadashiv Malikarjun Kheradkar v. Smt. Nandini Sadashiv
Kheradkar and Another [16], it was held that the Court has power to direct blood examination
but it should not be done as a matter of course or to have a roving inquiry. The Bombay High
Court even felt that there should be a suitable amendment by the Legislature and after noting that
no body can be compelled to give blood sample, it was held that the Court can give a direction
but cannot compel giving of blood sample.

2.
3.
4.
5.

In Thogorani alias K. Damayanti v. State of Orissa and Ors. [17] the court noted that the only
restriction for issuing a direction to collect the blood sample of the accused for conducting DNA
test would be that before passing such a direction, the Court should balance the public interest
vis-a-vis the rights under Articles 20(3) and 21 of the Constitution in obtaining evidence tending
to confirm or disprove that the accused committed the offence concerned. In balancing this
interest, consideration of the following matters would be relevant:
1. the extent to which the accused may have participated in the commission of the crime;
the gravity of the offence and the circumstances in which it is committed;
age, physical and mental health of the accused to the extent they are known;
whether there is less intrusive and practical way of collecting evidence tending to confirm or
disprove the involvement of the accused in the crime;
the reasons, if any, for the accused for refusing consent.
In Mrs. Kanchan Bedi and Anr. v. Shri Gurpreet Singh Bedi [18], the parentage of the infant was
in question, and the application filed by the mother for conducting DNA test was vehemently
opposed by the father contending that it would violate his rights. Honble Vikramjit Sen J held
that: it appears to me to be difficult to resist that the law, as it presently stands, does not
contemplate any impediment or violation of rights in directing persons to submit themselves for
DNA test, especially where the parentage of a child is in controversy for the grant of
maintenance. It was further held that where the parentage of a child is in controversy for the
grant of maintenance, parties submitting themselves for the DNA test is not violation of rights.
He relied on the decision of the Honble Supreme Court in the case of Geeta Saha v. NCT of
Delhi (DB) [19], where a Division Bench of Honble Supreme Court had ordered that a DNA test
be conducted on a foetus of a rape victim. Honble Vikramjit Sen J distinguished this case from
the case of Goutam Kundu
v. State of West Bengal & Anr. [20], where it was held that wife cannot be forced to give blood
sample and no adverse inference against her for this refusal. In Ms. X v. Mr.Z & Anr. [21], a
single Judge of Delhi High Court had allowed a similar application and had directed that at the
cost of husband, the Pathology Department of All India Institute of Medical Sciences should
conduct the DNA test. The DNA test was to be conducted of a foetus.
In a very important and recent judgment delivered by the Honble Supreme Court of India in the
case of Sharda v. Dharmpal[22] where the core question was, whether a party to a divorce
proceeding can be compelled to a medical examination. In this case an order for DNA test was
opposed by the Respondent on the ground that such an order violates his right to privacy. The
three Judge bench of the Honble Supreme Court held that: If for arriving at the satisfaction of
the court and to protect the right of a party to the lis who may otherwise be found to be incapable
of protecting his own interest, the court passes an appropriate order, the question of such action
being violative of Article 21 of the Constitution of India would not arise. The court having regard
to Article 21 of the Constitution of India must also see to it that the right of a person to defend
himself must be adequately protected. It further held that if respondent avoids such medical
examination on the ground that it violates his/her right to privacy or for a matter right to personal
liberty as enshrined under Article 21 of the Constitution of India, then it may in most of such

cases become impossible to arrive at a conclusion. It was also said that if despite an order passed
by the Court, a person refuses to submit himself to such medical examination, a strong case for
drawing an adverse inference would be made out. Section 114 of the Indian Evidence Act
enables a Court to draw an adverse inference if the party does not produce the relevant evidences
in his power and possession.
The right of privacy under Article 21 was not absolute and such a direction could be given
looking to the conclusiveness of the DNA Test and its scientific accuracy [23]. If the applicant
has a strong prima facie case and there is sufficient material before the Court then it can order a
person to undergo DNA test and passing of such an order by the Court would not be in violation
of the fight to personal liberty under Article 21 of the Indian Constitution [24]. There is nothing
brutal or offensive or shocking in taking the blood sample for DNA test under the protective eye
of law. The constitutional mandate does not say that no person shall be deprived of his personal
liberty under any circumstances. On the contrary, if such deprivation of right or personal liberty
is in accordance with the
procedure established by law, the same does not violate Article 21 of the Constitution of
India. [25]

DNA Legislations in other countries

Canada has passed DNA Identification Act which became official on June 30, 2000 [26]. This
legislation allowed a DNA data bank to be created and amended the Criminal Code to provide a
mechanism for a judge to order persons convicted of designated offences to provide blood,
buccal or hair samples from which DNA profiles will be derived. The National DNA Data Bank
respects considerations of genetic privacy and follows strict guidelines as specified in the DNA
Identification Act. The biological samples collected from convicted offenders and the resulting
DNA profiles can only be used for law enforcement purposes. It assists law enforcement
agencies in solving crimes by:
Linking crimes together where there are no suspects;
Helping to identify suspects;
Eliminating suspects where there is no match between crime scene DNA and a DNA
profile in the National DNA Data Bank; and,
Determining whether a serial offender is involved
In Canada taking of a genetic sample without consent is held to be valid when the sample is
collected by a health care professional[27].
Advancing Justice Through DNA Technology Act of 2003 has been enacted in the United States
of America to eliminate the substantial backlog of DNA samples collected from crime scenes and
convicted offenders, to improve and expand the DNA testing capacity of Federal, State, and local
crime laboratories, to increase research and development of new DNA testing technologies, to
develop new training programs regarding the collection and use of DNA evidence, and for other
purposes [28]. By this Act imperative amendments have been made in DNA Identification Act of
1994 [29] and DNA Analysis Backlog Elimination Act of 2000 [30] Omnibus Crime Control and
Safe Streets Act of 1968 [31]. This Act also provides for the establishment of National Forensic

Science Commission which shall make specific recommendations to the Attorney General, as
necessary, to enhance the protections described in subparagraph (G) to ensure
1. the appropriate use and dissemination of DNA information;
2. the accuracy, security, and confidentiality of DNA information;
3. the timely removal and destruction of obsolete, expunged, or inaccurate DNA information; and
4. that any other necessary measures are taken to protect privacy.
Britain has Criminal Justice and Public Order Act, which provides for forcible testing of blood
samples.

Relevance of DNA Evidence in Sexual Offences

Section 3 of the Indian Evidence Act, 1872[2] defines evidence as that which a court of justice
is permitted by law to take into consideration for making clear or ascertaining the truth of a fact
or point in issue. As a general rule to the law of evidence, a witness is admitted to state only the
facts which he has seen, heard or perceived, and not the conclusions which he has formed on
observing or perceiving them. The function of drawing inferences from the basic facts is
necessarily judicial and must be performed by the Court. If a witness is permitted to state not
only the facts which he has perceived, but also state the opinion which he has formed on
perceiving them, it would amount to a delegation of the judicial function to him and investing
him with the attributes of a judge.[3]

However, the law makes a few exceptions to this otherwise stringent rule of evidence. One such
exception is Sec. 45 of the Indian Evidence Act[4] which admits what are known as expert
evidence, that becomes essential when the court is unable to form an opinion on certain
questions that require specialized skills or learning. Such evidence is always a class apart from
direct evidence, for they are mere opinions of the existing affairs.
Expert evidence, though, also taken in the fields of arts, language, handwriting, etc, is today
more increasingly used in the field of science, where the legal system faces itself with new and
profound challenges that require specialized scientific knowledge.[5] It is not disputed that the
law has always placed the evidence given by a direct witness at a higher level with great reliance.
But, in reality, they are rarely available to prove certain offences that take place in sly, as is the
case of sexual offences, which can be solved only by admitting scientific evidence and relying on
them. Moreover, unlike the testimony of a direct witness, scientific evidence is purely objective,
with only the degree of error varying, in an inverse proportion to the technological advancement.

The Role of DNA in Crime Detection

The Deoxyribonucleic Acid (DNA) had not very long ago, caused a flip in the scientific
community, resulting in hot controversies in the legal field, in part because of the almost obsolete
procedural rules for scientific evidence being used for the DNA admission as well, and in part,
because of the uncertainty that existed with regard to the credibility of the new found scientific
achievement. This is because, although the DNA at present falls under the category of expert
evidence, to be relevant only as an opinion under Section 45, it differs from the role which
traditional scientific evidence have played in crime detection, due to its unsurpassed objectivity
and reliance on material data.

This DNA evidence, plays an important role in all cases where the identification of an individual
is in issue, be it the deceased (victim), or the accused, whose identification is in question,
especially in violent crimes such as rape and murder. A point that needs to be clarified with
respect to the admission of this evidence, better done at the earliest, is that the evidence only
helps in identification of a person, and this identification is done only by tracing the sources of
two DNA samples that match.

However, in this front, the DNA evidence is without doubt relevant as a substantial piece of
evidence, and at times, has led to the exculpation of the accused persons from the suspect list on
the basis of the non- matching of the DNAs only,[6] though it might be insufficient for
inculpating him, for which further evidence like the necessary mens rea, circumstance of the
commission of the offence, opportunity and motive are also essential.

Scope
This article deals with the role of identification played by the DNA evidence, specially throwing
light in cases of sexual offences, where the identity of the offender is disputed, or needs further
proof. The first section of this article, deals with expert evidence in general as taken up by the
courts, while the second and the third sections focus on the evidentiary aspects of the DNA, the
care that needs to be taken before admitting them, etc. This paper concentrates more on the
probative value and relevance of the DNA evidence, since the technological advancement in this
field, and the increasing number of cases where the evidence is made use of, definitely call for a
clarification of the vagueness and uncertainty prevalent on this subject.

I.EXPERT EVIDENCE- AN OVERVIEW

It is an ancient rule of the common law that on a subject requiring special knowledge and
competence, evidence is admissible from witnesses who have acquired the necessary expertise
on that subject, either by study or practice. In such cases, the first issue that needs to be looked
into is the competency of the witness testifying. A judge has to necessarily satisfy himself
regarding the expertise of the witness on the subject in question, which in itself, is the foundation
of admitting his evidence under Section 45 of the Indian Evidence Act.[7] As a corollary, it is
necessary that the expert furnishes essential proof of his academic background, professional
training and experience in the subject, to enable the court to judge the competency of an expert.
[8]

This requirement flows from the very foundation of expert evidence, which is the witnesss
expertise on the subject, making his testimony relevant, even though he is not a direct witness. A
closer look at the law and the judicial inroads would show that this fundamental difference
between a direct witness and the evidence purely falling under Section 45 has been reiterated
time and again emphasizing on the special principles that apply to the latter.

Firstly, the real value of an experts evidence is the logical inference which he draws from the
facts at hand, based on valid and established grounds,[9] that he is bound to testify, in the
absence of which, it is difficult to place any reliance on an expert opinion.[10]
This is because, though the credentials of an expert are highly scrutinized, it is a fact that he
gives his evidence on the sole basis of his knowledge on the subject and not on his direct
experience or connection with the case. Even in cases where the expert gives his opinion after a
thorough analysis of the relevant fact materials, be it a handwriting expert who comes to a
conclusion after a thorough analysis of the handwriting before him or a pathologist who
examines a corpse to determine the cause of death, his evidence is not placed on par with the
direct evidence, since neither was the handwriting expert present when the document was
actually written, nor the pathologist present when the deceased died. Hence, the law has always
given, as it should also ideally give, some consideration to the zone of error that exists in science
knowledge and technology.

As arising from this feature of an expert testimony, is the probative value of an expert opinion,
which is always a trifle lesser than a direct or ocular evidence, and is also at times dependant on
the credibility that the latter commands.[11] Also, with reference to the various case laws that
exist on this point, it could be said that an expert evidence is also sometimes seen as something
which is a mere corroboration to the already existing evidence.[12] In cases where the existing
direct evidence is of the nature to command absolute reliance and the expert evidence runs
contrary to it, the latter is dismissed as unreliable and secondary, while in cases where the truth
value of the direct evidence needs to be arrived at, the value of the expert evidence tremendously
shoots up and used as a check on the former.[13]

The third and the last principle that courts follow when dealing with expert evidence, which is
also the most essential from the judicial perspective, is that, the expert evidence should never be
of the nature of usurping the judiciary of its power to decide a case. The judiciary has always
tried to draw a line of limit for an experts evidence, so as to differentiate between a mere
opinion on the existing state of affairs and a conclusion on the facts in issue, and being of the
nature to answer the ultimate question.[14] For instance, the law makes a good amount of
distinction between a statement that a person is intoxicated and a statement describing his level
of consciousness due to the alcohol consumption from which the judge infers his intoxicated
condition and to decide whether Sec. 85 of the IPC[15] would apply or not.

However, in view of the role of expert evidence in sexual offences, specially the evidentiary
value of the DNA results, as would be seen in the next section, these principles, do take a flip,
though not very absolutely. No doubt, DNA evidence still does not answer the ultimate question
of the guilt of a person, but they, in a way, deviate from the first and the third principles. DNA
evidence relies more on scientific and mathematical evidence than logical connectivity and arises
from factual inferences and hence, is not in most cases valued as inferior to direct evidence in the
eyes of the judiciary. At this junction, an analysis of the extent to which this evidence lies under
the general ring of expert testimony, or whether it actually it extends beyond it, and how, are
issues fundamental to the rule of evidence of the coming years and the following section has
purported to answer a few of them, with special focus on sexual offences.

II. THE ROLE OF EXPERTS IN SEXUAL OFFENCES

An offence under section 376, IPC needs two essential ingredients to be proved, which are the
completion of the act of sexual intercourse, and the use of force, proving which requires the role
of three kinds of experts- experts of the scene of crime, doctors and forensic experts. These
experts to answer the issues questions posed, primarily rely on two very established scientific
principles:
1.
The Law of Individuality, which says that every object, natural or man- made, has an
individuality, which is not duplicated in any other object. It is unique. Neither the nature has
duplicated itself, nor man can.
2.
The Locards Principle of Exchange, which reads, Whenever two entities come into
contact, there is an exchange of traces mutually.[16]

While the Lucards Principle forms the core of the job done by experts of the scene of crime and
medical examiners, so as to provide a triangular link between the suspect, crime and the victim;
the law of individuality forms the basis of forensic analysis, for the purpose of identification of
the accused, which is the core issue in most cases.

Forensic Experts And The DNA Test

The principle behind a DNA analysis, is the fact that the genetic make up of every individual is
different from others, and is unique and idiosyncratic to an individual, unless in the case of
identical twins.[17] The most recent breakthrough in the field of DNA analysis, is the DNA
fingerprinting,[18] the arrival of which has revolutionized the concept of identification, and
helped realize the ambitions of forensic experts in achieving a pin point accuracy.

DNA Fingerprinting
DNA fingerprinting is a four step process, generally known as Restriction Fragment Length
Polymorphism (RFLP)[19], involving the four stages of isolation, cutting, electrophoresis and
blotting of the DNA fragments extracted from the cells of the body, in order to strike a match,
which is declared when two distinct bands, one from each profile are within a bin, i.e. are within
a specific distance of each other on the radiograph. [20]

The only limitation that this process encounters is that it needs a substantial amount of DNA for
the ultimate result of banding to be achieved, which is not always possible with the minute traces
that are available to the forensic experts. This limitation has now been solved, by using a
Polymerase Chain Reaction (PCR) machine, the function of which is analogous to cellular
mechanisms of DNA replication. With the PCR, any biological sample whose DNA content is
too low or too degraded for the normal method of RFLP, can be made amenable to genetic
analysis, since it amplifies the DNA sequence a million fold, thereby generating enough DNA to
study and match. [21]

Match Probability
The identity of a person is ascertained by matching the DNA collected from the investigating
office, either from the scene of crime or the victimss body, to the DNA of the suspect, by the
process explained earlier. If the DNAs in both the samples match, it implies that the sources of
the two DNA samples are one, thereby connecting the person to the crime, in some way or the
other.

The fundamental feature of DNA fingerprinting is the probability of such matches arrived at. In
fact, the entire process of arriving at this match probability involves establishing two other
probabilities. The first probability to be established by the DNA expert is the probability, that a
person selected at random from the population would match the suspect's and the crime sample's
DNA pattern. The next probability is this source probability. This probability is distinguishable
from the random match probability, because it tells us as to what the chances are, for the suspect
to be the source of the crime sample DNA.

There might arise a doubt in the mind of the reader about the credibility of the DNA evidence,
due to it being a scientific technique based mere on probability. However, this doubt on the
veracity of the DNA evidence is unnecesitated, since there exists a strong distinction between
what the DNA experts call as mathematical probability, and the probability, as used in common
parlance. For instance, according to scientists, when the probability of the occurrence of any
event is less than 1/ 1010, it for all practical purposes is considered a zero. This is otherwise
known as the limit of Practical Identity.[22]

DNA in the Courts

DNA tests are broadly used at the investigative stages of a crime, and are relevant as evidence for
the identification of the accused, and in a few cases, even for the identification of the deceased
victim. They are important to either start off a case by providing a vital link, from which the
police could start their investigation, or as one of the circumstantial evidence pointing towards a
persons guilt.[23]
However, the DNA evidence identifying a person, though well accepted as accurate and reliable
in this function,[24] does not prove the guilt of a person by itself. It only answers the question of
whether the sample collected and tested belongs to a particular person.[25] For example, in an
offence of rape, a DNA fingerprinting would not answer whether a said person is the offender,
which needs both the identity of the person who had committed the act and the mode of its
commission (the element of lack of consent). It does not also show the identity of the person who
had committed the rape. It merely, shows that the biological materials collected from the scene of
crime or the body of the victim (the vaginal swab, etc) is from the person. The rest of the
inferences are made by the judge, who concludes on the ultimate issue by way of common
sensical analyses and by taking a holistic view of the other existing evidence.

The recent Priyadarshini Mattoos case, decided by the Delhi High Court has dealt with this
issue in detail and has held that DNA evidence is only a circumstantial evidence, to be read with
other evidence, to prove the ultimate guilt of a person, though its probative value is placed very
high, by virtue of its objectivity and compliance with the protocol standards.[26] The above case
involved the brutal rape and murder of a Delhi based student in 1996. The DNA collected from
the vaginal swab of the victim and the DNA of the accused resulted in a perfect match. But due
to certain doubts in the veracity of the contents of the sample tested, the trial court judge gave a
judgment of acquittal, though the other evidence in case pointed towards the accused. [27] The
judge had even made a statement that, he was acquitting the accused, by reason of doubt, due to
the possibility of the DNA sample having been tampered, though he knew that the accused was
guilty. The High Court later now put an end to this issue by holding that the DNA evidence has
to be read together with other evidence, and it is enough if all the evidence in totality prove the
guilt, and that the DNA evidence need not be looked into in isolation, for they answer only one
aspect of the issue of the offence.[28]

Errors in DNA Fingerprinting

Although, there is a consensus within the scientific community that DNA profiling[29] yields
results with a cent percent reliability, the procedure involved is not without its problems. At
every stage of the process of fingerprinting, errors due to improper handling have a high chance
of occurrence and can lead to false results.

The first problem that is encountered in DNA sampling, is the degradation of the samples to be
sent for DNA fingerprinting, which usually happens in large amounts, at the scene of crime itself.
The biological fluids are exposed to various chemical reactions, since they are left in the open,
and if left that way for a considerable amount of time, become useless.[30] Secondly, the
samples may also get contaminated, if left unattended and unsealed anytime before the DNA
analysis is done, by bacterial, viral or other non- human DNA, or at times, even by the accidental
mix up of the DNA samples with the blood or saliva of other persons. Such contamination would
make the DNA results impossible, since though an individuals DNA is unique to him, much of it
is common with the rest of the world, making the differentiation between two mixed DNAs with
absolute certainty very difficult.[31] For instance, if the blood sample of the victim and the
accused are collected in cotton swabs to be sent to the laboratory, and are not sealed separately, a
contamination of the samples is bound to happen resulting in the failure of the DNA test. Such
mishaps could be prevented only by creating an awareness among the investigation officers and
those handling the biological samples at later stages about their evidential value and the
precautions that need to be taken for the same.

Moreover, there are also cases where the samples are contaminated or replaced deliberately in
order to either falsely inculpate or convict the accused. It is in this regard that the issue of the
proof for chain of custody comes into play, which has been discussed in detail in the next
section on admissibility of the DNA evidence.

The third serious problem in ascertaining the DNA is one that directly arises from the very
process of DNA fingerprinting itself. Cutting the DNA into fragments, which is the second stage
in the process of RFLP needs great care and expertise. If the concentration of the enzymes is not
accurate, the result may be either too many or too few cuts, due to which the bands may not
match properly, since every extra cut would create an extra band on the autoradiograph, thereby
producing a different picture. However, unlike the two limitations discussed previously, the best
thing in such technical errors, as in the words of Dr. Lalji Singh, is that they would only result in
the non- matching of bands but never an accidental match to falsely lead to a persons
conviction.[32]

Protocols for standardization and proficiency testing to avoid such errors are already in place in
some developed countries in Europe and the United States of America. India, though has not
developed its proficiency on par with these countries, has similar approaches for the purpose of

quality assurance in DNA typing. As of now, it follows automation to reduce human error and to
increase the overall efficiency of forensic work.[33]

III. ADMISSIBILITY AND RELEVANCE

Though at present, the DNA evidence is relevant only as an expert opinion under Section 45 at
the discretion of the judge, it is an undisputable fact that it would fall more under the category of
data analysis than a mere opinion of an expert.

To start from the fundamental, expert witnesses may be of two kinds. The first class is those
witnesses who are called upon to give their opinion on a case, without possessing any personal
knowledge about the case. Their testimony is based solely on the hypothetical questions laid
down before them, answered on the basis of their general experiences of the past and with regard
to the other evidence of the case, used primarily for the judge to get an understanding of the
subject which is otherwise alien to him. Whereas, the experts who fall under the second category
give their testimony based on their personal knowledge of the facts coupled with their expertise,
thereby commanding greater credibility.[34] DNA experts fall into the second category, since
their work starts with the analysis of the existing materials. Having this in mind, the only
relevant issues that should arise for their admissibility, is whether the scientific method used is
reliable in general and whether the process undertaken in the case at hand, meets the specified
requirements.

Science and law have always been alleged to be poles apart, the former highly objective, and the
latter, completely based on subjective analysis and common sense. In such a situation, when
science and law collapse, there is a possibility of two different results. The judge who is
supposed to handle the scientific issue might either be too impressed with the scientific evidence,
to accept it without scrutiny, or might reject the evidence in totality by laying down a very high
standard of requirement. The Daubert test, as laid down in Daubert v. Merrell Dow
Pharmaceuticals, Inc.[35] is an American authority that deals with the general admissibility and
reliability of any scientific evidence, and provides a comprehensive criterion to be looked into
while admitting any evidence of this kind.[36]

The Daubert test[37] which while ensuring the reliability and objectivity of the scientific
method, also gives scope for the admission of relatively new scientific advancements and has
definitely been a landmark judgment.[38] The four guidelines laid down in Daubert have been
repeatedly used by the Indian courts, either expressly or impliedly for the admission of DNA
evidence.

In Chandra Devi v. The State of Tamil Nadu[39], the High Court of Madras went into the issue
of admissibility of DNA evidence in detail, and in its rather lengthy judgment laid down four
important questions that need to be considered before accepting the validity of a scientific
process used by an expert in arriving at a conclusion. The case involved DNA testing to prove
the paternity of the accused to an aborted fetus, as an evidence for rape. The contention of the
defense counsel was that, the DNA test was not an accepted science and that the method adopted
for DNA fingerprinting was not a valid and an approved one. The court first dealt with the
question of probable biases on the part of the DNA experts and concluded in the negative. It later
went into the whole process of DNA fingerprinting, its scope in other countries, and accepted the
DNA evidence after deliberating upon the following considerations:
Whether the DNA evidence produced is generally accepted by the scientific
community?
Whether the testing procedure used in the case is something which is
generally accepted as reliable, if performed properly?
Whether the tests were performed properly in the case?
Whether the conclusion reached in the case is acceptable?

The present practice of the courts in this regard has been to admit the DNA evidence in general,
since the DNA fingerprinting technique fulfills all the four criteria. Hence, the only issue that
needs to be proved mandatorily is the second requirement, which needs a case specific
compliance.

Chain of Custody

The second check which the courts lay on the DNA evidence, is whether the procedure adopted
for the test was conducted in a proper and reliable manner, according to the standards laid down
by the protocol. As laid down in M.V. Mahesh v. The State of Karnataka,[40] the DNA test, due
to the high amount of human handling involved, is not a fool- proof one, and it is hence essential
on the party producing the evidence to show the strict compliance with the standards of
protection and the safe guards needed.

The most important proof needed by the court to show this compliance, apart from several other
trivial issues, is the chain of custody, which involves proving the authenticity and integrity of
the sample tested. The chain of custody is the possession log, in which the every second
movement and location of the substance to be examined is recorded from the time it was taken
into possession of the experts, to the time it is produced before the judge, which needs to be
shown to prove the authenticity of the substance tested. In other words, the judge must be
convinced that, it was the same clue that was collected by the investigating officer, which was
examined by the forensic experts.

Proving the chain of custody has two main objectives, which are, to lay a proper foundation
connecting the evidence to the accused and to ensure that no tampering had taken place. The
most important case relating to the proof of chain of custody is the CBI v. Santosh Kumar[41] in
which the High Court of Delhi treated the chain of custody as a question of fact, to be
ascertained from the facts and circumstances of each case, which has been discussed in detail
before.

DNA as an Evidence Before the Court

The above two requirements for admissibility and the probative value of forensic evidence have
evolved over the years, by virtue of the various case laws decided on this issue. The very purpose
that these special tests were even brought for DNA evidence is a recognition in itself, of the
distinctive role played by it in crime detection. DNA evidence is accurate and objective beyond
question, on which basis, the court has even gone to the extent of ruling that the nonadmissibility of DNA evidence that complies with these requirements is perverse to justice,[42]
thereby making it an important and a substantial evidence, the non acceptance of which is a
wrong application of the procedural law of evidence.

DNA evidence, though is a circumstantial evidence and is to be read in conjunction with other
relevant evidence to prove the guilt of a person, as already seen in detail, is substantial visavis
the immediate function that it performs, which is tracing the source of the DNA collected to an
individual. As to how the DNA reached the scene of crime, at the hands of the investigation
officer are questions that would ultimately determine whether the person was the offender or not,
which are issues to be answered separate from the evidentiary aspects of DNA.

However, though this specific nature and the role played by the DNA evidence has been
recognized by the courts to some extent, there is still an absence of a common consensus with
regard to the relevance of DNA in criminal matters. There are still a few judges who see the
issues relating to DNA as highly challenging and give it a wrong evidential treatment as in the
Priyadarshini Mattoo case[43] discussed earlier. This anomaly arises only due to the absence of a
special provision in the Indian Evidence Act on the relevance and probative value of the DNA
tests. The present practice of admitting them only as an experts opinion evidence is definitely
not a practice consistent with time. It only leads to confusion and uncertainty. Associated with
this, is also the ignorance and inefficiency on the part of a few investigating officers who fail to
collect the valuable evidence for the DNA test, from the scene of crime, or do not subject the
victim to medical examination[44], which could be solved only by adopting standard norms
regarding the collection and handling of substances which might be used to determine the DNA.

The U.S has recently passed the Debbie- Smith Act, or the Justice for All Act, which lays down
the law regarding the collection of DNA samples from the whole population in the country, to be
stored in a data base, to search for matches as soon as a case of rape or murder comes at hand.
The Act also deals exclusively with the relevance of DNA evidence in various cases, its
probative value etc.[45] Though, a similar legislation is ideal in India,[46] it is not practical at
present, in view of the costs involved in that process and the time factor for drafting a new
legislation. The Indian government has however made a start by approving a DNA profiling
Advisory Committee which would work on the creation of a database of DNA of convicted
criminals.[47] What is welcome in this situation is a specific provision in the Indian Evidence
Act that would free the DNA evidence from the tag of an opinion evidence under Section 45, the
very less probative value of which is hindering the actual potential of the DNA evidence.

Suggestions for legal reforms in effective application of DNA technology in our country:
1. Section 53 of the Criminal Procedure Code provides some scope to the investigating officer to
have the accused examined by a medical practitioner at the request of the police. This section
does not specifically say whether it would be applicable for DNA test. It relates to examination
of the accused by a medical practitioner. This section never contemplates that the police officer
shall be entitled to collect semen, blood, saliva, hair root, urine, vaginal swab etc. for the purpose
of investigation personally by himself. For the purpose of crime investigation, Section 53 CrPC
should be more specific, clearer, more unambiguous, more meaningful, and more purposeful so
that an investigating officer may not face any difficulty for the purpose of crime investigation.
2. Under Section 293 CrPC the reports of certain government scientific experts can be used as
evidence in any enquiry, trial or other proceedings under the Criminal Procedure Code and he
need not be examined as a witness. But the entry for DNA fingerprinting and diagnostics is not
specific in Section 293(4) CrPC. Therefore, the expert has to give evidence in each case where a
report has been given. In view of the fact that DNA typing is an exact science, there is a
necessity to amend the provisions of the Criminal Procedure Code, to include the scientists of
this institute in Section 293(4) CrPC and to treat their reports as evidence. Otherwise it is
difficult for these experts to go around the country for giving evidence at every trial, in cases
where they are to give expert opinion.
3. In the line of the US DNA Identification Act of 1994, we have to make a specific DNA
legislation which would authorize to set up the combined DNA Index System (CODIS), which
consisted of three tiers of DNA data, namely, the Local DNA Index System (LDIS), which
consisted of information installed by the laboratories of the local police and sheriff departments,
then State DNA Index System (SDIS) which allowed the individual local laboratories to
exchange information throughout the State, and the National DNA Index System (NDIS) that
allowed States to share information between each other on a national scale. This infrastructural
set-up, laid down in the said legislation, will provide error-free result of DNA testing in our
country.
4. Under Article 245 of the Constitution of India, Parliament is legislatively competent to make
laws with respect to the Union agencies and institutions for professional, vocational or technical
training, promotion of special studies or research, or scientific or technical assistance in the
investigation or detection of crime and with respect to coordination and determination of
standards in institutions for higher education or research and scientific and technical institutions
(Entries 65 and 66 of the Union List)

Conclusion
After both sides present their evidence and argue their cases, judges must weigh what they have
heard and decide whether or not the accused person is guilty as charged. This can be difficult.
The evidence presented is not always clear-cut, and sometimes judges must decide based on what
a witness says they saw or heard. Physical evidence can be limited to strands of hair or pieces of
fabric that the prosecution must somehow link conclusively to the defendant. DNA fingerprinting
is a way of tying a person to the scene of a crime beyond a shadow of a doubt or more
importantly it could rule out suspects and prevent the wrong person from being locked up in jail.
Judges, Lawyers and forensic scientists need to be much better educated about the inferential
nature of DNA evidence. With well informed judges, lawyers and investigative people, the
probability for convicting innocent people will be minimized and the probability of convicting
guilty people will be maximized. It was observed by the 185th Law Commission Report that the
law of evidence is likely to undergo radical changes with standardization of new technologies.
The judge will be handicapped if he is unable to appreciate the probative value of new standards
and concepts of evidence. The entire technology of DNA fingerprinting is an accepted method of

proof today in contested parentage and similar disputes. Genetics and reproductive technologies
are throwing new light on several questions of fact in which ordinary inferences are no more
acceptable. It looks as though the 21st century will herald radical changes in our understanding
of human behavior through inventions in biological sciences rather than in social sciences.
Naturally, law, concerned with human behavior, has to mend fences with biology and biotechnology in more significant ways than hitherto before[34].
DNA evidence should be lauded nationally as the most reliable evidence known. Like the
fingerprint each person has a unique DNA fingerprint. Although the fingerprints can be altered
by surgery, but a DNA fingerprint cannot be altered by any known treatment. DNA profiling can
be done from almost every part of the body. So, DNA fingerprinting is rapidly becoming the
primary method for identifying and distinguishing among individual human beings. The
technique is new but it is much better than other identification techniques like fingerprinting and
picture ID which have their own limitations.
Like all new methodologies DNA typing will have to face legal challenges before the courts will
allow it into arena of evidence. The trier of fact will have to be convinced that the procedure is
both reliable and generally accepted by the forensic science community. There are many
challenges yet to be confronted with before DNA typing can be classified as a routine forensic
laboratory procedure. A number of questions have been raised questioning the reliability of DNA
evidence in the countries having legislations for DNA fingerprinting but at the same time the
conviction rate has also increased in those countries. DNA fingerprinting, if properly performed
is beyond any doubt which is there on the conduct of Indian police and Prosecutors because of
their history of fabricating and padding evidence. So, effective legal and administrative measures
must be taken to overcome this practice of investigating officers and to ensure that such a stout
piece of evidence is above board. The foundation of forensic science based on the premise
material objects will not lie becomes meaningless because material objects are made to lie by
certain men.
CDFD Director Seyed Ehtesham Hasnain said Local evidence can be removed or created but
DNA cant lie. DNA is very very robust. We can get enough DNA even from the burnt teeth. [35]
he also said that the rate of conviction has gone up significantly wherever DNA fingerprinting
has been taken as evidence in the court, [36]
The time for denial of admitting DNA evidence is over. We know that the present system has
identifiable flaws. Law has to grow in order to satisfy the needs of the fast changing society and
keep abreast with the scientific developments taking place in the country. Law must walk in
tandem with the evolutions science has made and thus take away evidence from the jugglery and
trivial objections of lawyers. As new situations arise the law has to be evolved in order to meet
the challenge of such new situations. Law cannot afford to remain static.

PARENTAGE
The majority of the forensic cases analyzed by DNA testing involve establishment of
paternity/maternity of the child or reverse parentage (for identity of the deceased). The analysis
is based on comparison of the results of biological evidence with reference samples (blood or
oral swab). Direct references like banked biological specimens preserved in medical or military
repositories are a valuable source for identification purposes. Alternatively, intimate items of an
individual, e.g., toothbrush, shaver, razor, etc. are good sources of DNA to establish the identity
of deceased, but their authentication and exclusiveness is often problematic. Any doubt regarding
the reliability of direct references will be detrimental for the case and may lead to false
exclusions. Further, passengers often travel with their toothbrushes, razors, etc., and these items
may not be available in an airline disaster.
Indirect references of close blood relatives of the person to be identified are usually desired for
establishing identity. A DNA profile for a multiplex of 15 autosomal short tandem repeat (STR)
markers is generated and obligatory alleles are compared with that of parents, siblings, or close
relatives for kinship analysis. Indirect reference samples of the following relatives are usually
preferred in a kinship case:

(a)

(b)

(c)

Either or both biological parents of the victim.

Spouse (biological mate) of the victim and their child/children.

Biological full siblings, sharing the same parent as victim.[1]

An inconsistency at two or more loci (considering the mutation rate of STRs) generally leads to
exclusion in a kinship case. Inclusion at all loci is statistically evaluated by calculating paternity,
maternity, or sibship indices. In the absence of close relatives, mtDNA or Y-chromosomal
markers are employed for establishing maternal or paternal lineage, respectively, by comparison
with distant relatives. In mass disasters, identification with reference samples from multiple
relatives is recommended to avoid false inclusions.[2]
The success of a DNA case not only depends on the authenticity of the reference samples but
also on the authenticity of the biological relationship of the donors with the person in question,

without which any comparison is futile. Often, the analysis in a DNA case is based on
assumptions that:

(a)

(b)

(c)

Monozygotic twins or close blood relatives are not involved.

Reference samples belong to the persons they are attributed to.

Donors of samples have the same biological relationship with the person in question, as
presumed.
However, such assumptions do not hold true in some exceptional situations and pitfalls should be
clearly understood while collecting or analyzing reference samples.
Go to:
Monozygotic Twins and Close Relatives
Monozygotic twins are derived from the zygote of one sperm and an ovum which splits into two
or more zygotes. Such twins cannot be differentiated with the conventional DNA typing
methodologies and a case involving them can lead to false inclusion. A few cases of sexual
assaults, involving monozygotic twins, in UK and USA have been solved based on other
evidences like tattoo marks and fingerprints.
Similarly, closely related individuals like parent/child or full siblings often share more obligatory
alleles than unrelated individuals and distinguishing them can be a difficult task in a parentage
dispute. If there is a possibility of involvement of close relatives in a case, the DNA profiles of
such relatives should be prepared, whenever feasible, for eliminating them from consideration.
[34] However, if there is no information about the involvement of close relatives in a case, it
may lead to complications. The following types of cases are sometimes difficult to examine with
the present multiplexes of 15 autosomal STRs loci:

Motherless paternity or fatherless maternity- deficiency cases.

(a)

(b)

(c)

(d)

Incest cases.

Full siblings impersonating as parent/child.[5]

Cases involving mutations.

Additional DNA markers help to differentiate closely related individuals or situations involving
mutations. Goodwin et al.[6] reported a case where 21 autosomal STR loci were required to
identify the true father between two brothers while determining paternity of a child. Advances in
epigenetics may help in differentiating monozygotic twins in future by exploiting the differences
that accumulate over a period of time.[7] Similarly, use of parent-of-origin specific DNA
methylation markers to identify the parental origin of alleles can help in the deficiency cases as
well as in cases involving close blood relatives.[8]
Go to:
Chimeras
A kidney transplant patient underwent HLA typing test to identify a suitable donor from among
her children. To her surprise, the results from her blood concluded that two out of her three sons
did not belong to her. While all three sons shared haplotype with the father, only one shared it
with the patient. Further investigations into her DNA from buccal mucosa, hair follicle, skin,
thyroid, and bladder, along with samples of close relatives, led to the discovery that she was a
tetragametic chimera - a mixture of two individuals, formed by the fusion of two zygotes in the
womb which grows as a single individual.[9]
A chimera is an organism having two or more different populations of genetically distinct cells,
originating from different zygotes. If different cells emerge from the same zygote, it is called
mosaicism. A chimera may be due to transfusion, transplantation, or inheritance. In the nonspontaneous form of human chimeras, the transplant or transfusion recipient has a mixture of
different organs or different blood, respectively, which is intentional. A person can be a
spontaneous chimera through inheritance, either by the free passage of blood between mother
and child or between child and child in the uterus. This free passage of blood may result in a
condition known as microchimerism. Forensic geneticists are aware of the complications that can

arise to transfusion or transplantation. However, the occurrence of a rare spontaneous

tetragametic chimera, formed by the merging of embryos in the uterus, can lead to a false
interpretation in the analysis of stain material in crime cases and in paternity testing because a
mixed pattern of different genotypes can be obtained in one individual.[10] Since in most of the
cases maternity is not in doubt, any discrepancy in the results should be checked by collecting
samples of different tissues from the mother. But if the father in a paternity case is a chimera,
with different genetic make up in sperm and blood cells, he can be falsely excluded by DNA
profiling. Though tetragametic chimerism is a rare event, its incidence is likely to increase with
the increase in accessibility to in vitro fertilization, as the embryos are in close contact.
Following are the scenarios where we may find conflict among biological parentage with the
social or legal parentage:
Adoption
Adoption of children is usually well documented and known. It is expected that such facts will
be disclosed at the time of collection of blood samples in a forensic case, should the need arise.
Similarly, details of step relationships are usually known and must be disclosed.
Assisted reproductive technologies (ARTs)
Children conceived through new reproductive technologies employing donor sperm, egg, or
gestational surrogates lead to different opinions regarding their social or legal parentage. A child
conceived by ART can have as many as five parents: a genetic father who donates sperm, a
genetic mother who provides the egg, a surrogate mother, and two parents who have no
biological connection to the child but who commission the other parties to start a family. ART
has introduced new definitions of parenthood: the genetic, the gestational (which is also
biological, but is different from genetic), and the social and nurturing. Most legal frameworks
place the rights of the gestational mother and/ or social parents above the rights of biological
donors, particularly if the donation has been anonymous. Anonymous donation may also lead to
the existence of several half-siblings who have no knowledge of one another.[11]
There are valid fears that fertility clinics, after having failed to help the woman conceive with her
husbands sperm, may inseminate her with frozen sperm without divulging the information to
appear successful. Dr. Cecil Jacobson, nicknamed the Babymaker or Sperminator, during
artificial insemination procedures at his fertility clinic, fathered a number of children by
fraudulently injecting his own sperm into his patients, instead of the sperm of the husband or of
an anonymous donor.
The Indian Council of Medical Research guidelines makes it voluntary on the part of ART clinics
(with the approval of the couple) to keep on record DNA fingerprints of the donor, the child, the
couple, and the surrogate mother. The information about the donors can be released when

specified and required for the legal purposes.[12] Instead of having a DNA profile for a limited
number of markers, the storage of biological samples of all persons contributing to the biological
formation of the child would be more meaningful from the medical as well as forensic point of
view in case of any eventuality in the future. A legal act is required to enforce mandatory
maintenance of such repositories of biological samples by ART clinics and for regulation of the
sector.
False paternity
In the situation of false paternity, the mother usually fails to disclose the information, fearing
social stigma or the embarrassment it can lead to. Establishing the identity of a child (missing or
deceased) born in this situation not only complicates the analysis of results but also raises ethical
questions regarding the reporting of the results. Similarly, establishing the identity of a
(deceased) father from, for example, the skeleton, employing indirect reference blood samples of
the wife and child will lead to false exclusion if the social father did not sire the child.
Child swapping
There may be situations where the donors do not know the truth about their biological
relationship with the child. This may happen when the child has been swapped at an early age
without the knowledge of the parents. Several cases of baby swapping in hospitals, inadvertently
or fraudulently, have been reported. Identification of the swapped child later by DNA using
indirect reference samples will give misleading results.
In an unusual case of paternity determination received in our laboratory, the blood samples of the
three were examined. The alleged father in the case did not share an allele with the child at six
autosomal STR loci. Surprisingly, the woman also did not share an allele with the child at seven
autosomal STR loci, showing maternity exclusion. Mitochondrial DNA analysis excluded her
having maternal lineage with the child and also excluded the possibility of a tetragametic
chimera. Due to the unexpected results, the court ordered a re-collection of the blood samples;
reexamination yielded identical results. If the possibility of fudging of samples is excluded, this
situation may be either due to:

(a)

(b)

Concealment of facts about the maternal origin of the child by the putative mother.

Child swapping.

In the latter scenario, though the complaint of the putative mother may be genuine, DNA
technology can not help her. Instead, DNA profiling results may lead to strained relations
between her and the child, adding to misery.
Legal Preference to Social Parentage
Indian courts have given more importance to social parentage than the biological one. Echoing
the maximPater est quem nuptiae demonstrant (the father is he whom the nuptials indicate),
Section 112 of the Indian Evidence Act, 1872, is based on the rule that the child born in wedlock
should be treated as the child of the man who was then the husband of his mother. The only
exception is when the husband proves that he had no access to his wife at the time of conception
of that child. The legislative concern is against illegitimatizing a child as he should not suffer
social disability because of the lapses of parents. The Supreme Court emphasized that Section
112 of the Evidence Act was enacted when DNA tests were not even in contemplation of the
legislature. The result of a genuine DNA test is said to be scientifically accurate, but even that is
not enough to escape from the conclusiveness of Section 112 of the Act, e.g., if a husband and
wife were living together during the time of conception but the DNA test reveals that the child
was not born to the husband, the conclusiveness in law would remain unrebuttable. This may
seem to be hard on the husband who would be compelled to bear the fatherhood of a child of
which he may be innocent, but even in such a case, the law leans in favor of the innocent child
from being bastardized, if his mother and her spouse was living together during the time of
conception.[1315]
DNA profiling is the most effective tool for justice in criminal and civil cases. The abovementioned exceptional situations are rare, but it is important that investigating officers, forensic
analysts, and members of the judiciary be aware of the necessity of obtaining authentic
biological (genetic) samples and of the problems that may be encountered.
Related case laws:
* Vasu vs Santha 1975 (Kerala)
* Gautam Kundu vs State Of West Bengal.
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.
Crime detection and DNA technology:
Though there is no specific DNA legislation enacted in India, Sec.53 and Sec. 54 of the Criminal
Procedure Code, 1973 provides for DNA tests impliedly and they are extensively used in
determining complex criminal problems.
Sec. 53 deals with examination of the accused by medical practitioner at the request of police
officer if there are reasonable grounds to believe that an examination of his person will afford
evidence as to the commission of the offence.
Sec. 54 of the Criminal Procedure Code, 1973 further provides for the examination of the
arrested person by the registered medical practitioner at the request of the arrested person. The
law commission of India in its 37th report stated that to facilitate effective investigation,
provision has been made authorizing an examination of arrested person by a medical practitioner,
if from the nature of the alleged offence or the circumstances under which it is alleged to have
been committed, there are reasonable grounds for believing that an examination of the person
will afford evidence.
Sec. 27(1) of Prevention of Terrorism Act, 2002 says when a investigating officer request the
court of CJM or the court of CMM in writing for obtaining sample of hand writing, finger prints,
foot prints, photographs, blood, saliva, semen, hair, voice of any accused person, reasonable
suspect to be involved in the commission of an offence under this act. It shall be lawful for the
court of CJM or the court of CMM to direct that such samples shall be given by the accused
person to the police officer either through a medical practitioner or otherwise as the case may be.

Forensic Cases: Colin Pitchfork, First Exoneration Through DNA

Author: Suzanne Elvidge BSc (hons), MSc - Updated: 7 October 2014 |

One of the keystones of forensic science is DNA testing. DNA (deoxyribonucleic acid) is the
genetic material present in every cell. Each individual has a Unique DNA Profile. There are even
a few differences between the DNA of identical twins.
A British scientist, Sir Alec Jeffreys, developed DNA profiling in the 1980s. DNA for profiling
can be extracted from samples of human cells found at a Crime Scene, including blood, semen,
skin, saliva, mucus, perspiration and the roots of hair, and Profiling can even be carried out on
old and dried out samples.
The case of Colin Pitchfork was the first murder conviction based on DNA profiling evidence
(there was a previous rape conviction based on this type of evidence).
The Exoneration
After going missing, Lynda Mann, a 15-year-old schoolgirl, was raped and murdered in the
grounds of Carlton Hayes psychiatric hospital in Narborough, Leicestershire, in November 1983.
Forensic examination of semen sample showed that it was a type found in only 10% of men, and
was from someone with type A blood. However, the police did not find a suspect.
In 1986, another 15-year-old schoolgirl, Dawn Ashworth, was similarly sexually assaulted and
strangled in the nearby village of Enderby, and semen samples showed the same blood type.
Richard Buckland, a local 17-year-old with learning disabilities who worked at Carlton Hayes
psychiatric hospital, had been spotted near Dawn Ashworths murder scene and knew unreleased
details about the body. In 1986, he confessed to Dawn Ashworths murder but not Lynda Manns.
Using Sir Alec Jeffreys new technique, scientists compared the semen samples with a blood
sample from Richard Buckland. This proved that both girls were murdered by the same man, and
also proved that this man was not Richard Buckland the first person to be exonerated using
DNA.

The Conviction
In 1987, in the first ever mass DNA screen, the police and forensic scientists screened blood and
saliva samples from 4,000 men aged between 17 and 34 who lived in the villages of Enderby,
Narborough and nearby Littlethorpe and did not have an alibi for murders. The turn out rate was
98%, but the screen did not find any matches to the semen samples. The police and scientists
expanded the screen to men with an alibi, but still did not find a match.
In August 1987, a woman overheard a colleague, Ian Kelly, boasting that he had given a sample
posing as a friend of his, Colin Pitchfork. Pitchfork had persuaded Kelly to take the test as he
claimed he had already given a sample for a friend who had a flashing conviction. The police
arrested Colin Pitchfork in September 1987, and scientists found that his DNA profile matched
that of the murderer.
Colin Pitchfork had previous convictions for flashing, and claimed that the murders had begun as
flashings, but the girls had run away, which had excited him.
In January 1988, Colin Pitchfork was sentenced to life imprisonment for the murders, and was
told he had to serve a minimum of 30 years.

HIGH- Profiled CASE OF PATERNITY TEST

James Brown, the Godfather of soul, was a highly influential figure who has left an indelible
mark in the history of music and whose unique and fluid style of dancing became his very
trademark. After his death in 2006, a number of paternity disputes arose and several alleged
people came forward claiming to be the children or have children of James Brown. The former
backup singer for Brown, Tomi Rae Hynie, has brought forward the paternity claim saying that
her 6 year old child is the biological son of the Godfather of Soul. Trustees handling all the
singers assets have denied the claims on the basis that the son and mother are not anywhere
included in the childs will; thus, given this dispute between the two parties, solving the issue
must rely on a DNA paternity test. The paternity test proved that Brown was the father and the
judge allocated a quarter of Browns trust to Rae Hynie.
Eddie Murphy (b 1961-), who has made a name as one of the greatest Hollywood comic actors
with films such as Doctor Dolittle, was in paternity dispute with British pop star Mel B. Melanie
Brown insisted the her daughter Iris, was the daughter of Murphy as the two stars had had a
relationship for a time. Murphy told reporters he would never acknowledge the child as his
unless a blood test proved otherwise. A DNA paternity test confirmed that Murphy was Iris
father; however, Melanie says that Murphy has not sought a relationship with his child and has
not contacted to see her. Murphy already has 7 other children and Iris is his eighth one. The
paternity test results will ensure Iris gets her rights as Murphys daughter

Obtaining DNA evidence is only a small part of the equation for proving a person's guilt or
innocence. In fact, any forensics analysis - from criminal evidence to resolving paternity disputes

- has DNA as a mere starting point. The true value lies in the outcome of DNA analysis, which
can be performed through one or more of many different techniques.
Polymerase Chain Reaction (PCR) Analysis
PCR analysis is a technique that allows technicians to create millions of precise DNA
replications from a single sample of DNA. In fact, DNA amplification alongside PCR can let
forensic scientists perform DNA analysis on samples that are as tiny as only a couple of skin
cells. In contrast to some other DNA analysis techniques, PCR analysis has the advantage of
analysing minuscule sample sizes, even if they are degraded although they must not be
contaminated with DNA from other sources during the collection, storage and transport of the
sample.
Restriction Fragment Length Polymorphism (RFLP)
RFLP is a technique that is not widely used now but it was one of the first techniques used for
DNA analysis in forensic science. Large sample sizes are needed for RFLP relative to newer
techniques - usually a sample would need to be approximately the size of a one-pound coin.
While that in itself may sound small, it is large relative to other techniques such as PCR analysis
that require only a few cells for successful sequencing. In RFLP, the different lengths of DNA
fragments are analysed. These fragments are from the digestion of a sample of DNA with a
restriction endonuclease enzyme. The enzyme chops DNA in a certain style - the restriction
endonuclease recognition site. Whether or not particular recognition sites are present will provide
different lengths of DNA fragments, which are then divided up through electrophoresis. DNA
probes then serve to hybridise the fragments through complementary binding.
Short Tandem Repeat (STR) Analysis
STR analysis works to examine individual areas in DNA. The differences from the collective
areas of one person to another can allow for distinguishing between individuals. In criminal
investigations, there are thirteen regions that are analysed and compared to establish profiles. In
fact, DNA databases used at the government level involve the sequence of these thirteen regions.
The chances of two people having the exact same thirteen regions is virtually impossible - likely
one in a billion. A common DNA joke is that a person's odds of winning the lottery are higher
than finding a perfect match for the thirteen regions.
Mitochondrial DNA Analysis
Mitochondrial DNA analysis works well on samples that are unable to be analysed through
RFLP or STR analysis. There are two kinds of DNA in the cell - mitochondrial DNA and nuclear
DNA. With other types of analysis, nuclear DNA is removed from the sample but with
mitochondrial DNA analysis, DNA is removed from the cell's mitochondria. Sometimes, a
sample can be old and will no longer have nuclear material in the cell, which poses a problem for
the other types of DNA analysis. With mitochondrial DNA analysis, however, mitochondrial
DNA can be removed, thus having important ramifications for cases that were not solved over

many years. This means that mitochondrial DNA analysis can be very valuable in investigations
for a missing person. Mitochondrial DNA will be the same from a woman to her daughter
because it is passed on from the egg cell.
Y-Chromosome Analysis
Since the Y chromosome passes from a male to his son, analysing genetic markers on a Y
chromosome can be of aid in identifying familial ties in males or for analysing any evidence
entailing many males. Another benefit of Y-chromosome analysis is to establish a family line
over many generations.
There are other types of analysis but these are some of the main traditional and current methods
used to analyse DNA. No doubt, new techniques will be developed that will be even more rapid,
successful and cost-effective.

Some Important Cases

State vs Sushil Sharma5

Among the many incidents that occurred in 90,s India and caught the attention of the nation and
the world was Tandoor Kand or Naina Sahni murder case. Naina Sahni a congress party worker
was shot dead by her husband Sushil Sharma a congress youth leader MLA.
He killed his wife by firing two shots from his pistol in his house on suspicion of her illicit
relationship with her co-worker. He then took the body to the restaurant called Bagiya and tried
to disposed off the body by chopping and burning it into the restaurant's tandoor (clay oven) with
the help of restaurant's manager. Two patrolling constables came to know about the incident
when they visited the place after seeing the smoke and getting smell of flesh burning. Manager
was arrested by the police and Sushil Sharma surrendered later on 10th July 1995 eight day after
the incident.
This incident grabbed the massive media coverage on being one of its kind. The in humanness
showed by him in disposing off the dead body and breach of confidence made it to the list of the
rarest of the rare case in the eye of law and he was sentenced to death in 2003 by the lower
court,the decision which was also upheld by the high court. He filed a petition in Supreme Court
against the verdict, the decision of which came today on 8th October 2013 which converted his
death sentence into imprisonment till death on the ground that Sharma didn't have a criminal
antecedent and there is a possibility of reform of him.
The verdict of The Supreme Court also confirmed that Indian judicial system believes in reform
i.e to kill the crime and not the criminal. Moreover it will give the message that one should think
5 2007 CriLJ 4008

twice before taking any action in the heat of the moment. He may be a big politician today had
he not committed the crime then,all his future was ruined because he had not controlled his anger
at that very instance.
Santosh Kumar Singh v. State6
The deceased, Priyadarshini Mattoo, a final semester student of the LL.B. course at Campus
Law Centre, Delhi University was residing with her parents in New Delhi. The appellant,
Santosh Kumar Singh had also been a student in the same faculty and had completed his LL.B.
in December 1994.
As per the prosecution story, the appellant had been attracted to the deceased and
eventhough he had passed out from the Law Centre in 1994, he had continued to visit the
campus even thereafter. The appellant harassed and intimidated the deceased and despite
her requests, did not desist from doing so.
The deceased thereupon made several complaints against the appellant in different Police
Stations during the year 1995 on which he was summoned to the Police Station and was
advised to behave properly and a Personal Security Officer was also deputed for the
security of the deceased. As there was no eye witness to the incident, the prosecution
placed reliance only on circumstantial and documentary evidence.

The trial court on the basis of findings held that the case against the appellant could not
be proved beyond reasonable doubt and acquitted him. The matter was taken in appeal to
the High Court. The High Court held all the circumstances as having been proved in
favour of the prosecution and reversed the judgment of the trial court and awarded a
death sentence.
The Supreme Court after going through the evidence reiterated that a false plea taken by
an accused in a case of circumstantial evidence can be considered another link in the
chain. It held that the onus to prove the circumstances relating to the injury and treatment
were within the special personal knowledge of the appellant. He could, therefore, not
keep silent and say that the obligation rested on the prosecution to prove its case.
It was also argued on behalf of the defence that the observation of the High Court that the
DNA test conclusively proved the involvement of the appellant in the rape was not
tenable as it appeared that the vaginal swabs and slides which were allegedly taken from
the dead body at the time of the post-mortem examination and the blood samples of the
appellant had been tampered with.But the Supreme Court after examining the evidence
did not agree with the defence argument.
It also rejected the argument that the primary allegations were of rape whereas murder
was a secondary issue in the facts of the case and that the proof of murder would depend
only on proof of rape. It held that there was very substantial evidence with regard to the
allegations of murder simpliciter. After discussing the relevant evidence on the point, it
held that assuming, therefore, for a moment, that there was some uncertainty about the
rape, the culpability of the appellant for the murder was nevertheless writ large and the
Trial Judge was absolutely wrong in ordering an acquittal.
Regarding the argument of appellant with regard to the propriety of the High Courts
interference in an acquittal appeal assuming the present matter to be a first appeal, it
6 2010

agreed that a judgment of acquittal rendered by a trial court must be given the greatest
consideration and the appellate court should be slow in setting aside that judgment, and
where two views are possible, the one taken by the trial court would not be disturbed. On
the contrary if the trial courts judgment was perverse, meaning thereby that it was not
only against the weight of evidence but was all together against the evidence, interference
was called for. In this case the High Court was alive to its limitation in such a matter and
while dealing with this argument first expressed its shock and observed that though
virtually all the findings were in favour of the prosecution, yet curiously, the decision had
been rendered in favour of the accused. The judgment of the trial court was accordingly
held to be perverse and against the evidence. The Supreme Court on the perusal of the
evidence held that the High Courts observations were justified on the facts of the case.
On the principle that all circumstances which were to be used against an accused in a
criminal case were to be put to him in his statement under Section 313 of the Cr.P.C.
failing which the said circumstance could not be taken into account, it held that though
few circumstances had not been specifically put to the appellant yet there had been no
prejudice to the appellant. The Court further held that the broad principle is that all
incriminating material circumstances must be put to an accused while recording his
statement under Section 313 of the Code, but if any material circumstance had been left
out that would not ipso facto result in the exclusion of that evidence from consideration
unless it could further be shown by the accused that prejudice and miscarriage of justice
had been sustained by him.
Finally on the sentencing part, defence successfully argued that the present case was not
one which fell in the category of the rarest of rare cases as several mitigating
circumstances with respect to the sentence were discernable. Here the High Court had
reversed an acquittal judgment based exclusively on circumstantial evidence. Also the
appellant was a young man about 24/25 of age on the date of incident and had been led
astray by the vagaries of youth and that after his acquittal in December 1999, he had got
married (in the year 2003) and a baby girl had been born to him. The Supreme Court
while reducing the sentence reasoned that the mitigating circumstances needed to be
taken into account, such as - the High Court has reversed a judgment of acquittal based
on circumstantial evidence, the appellant was a young man of 24 at the time of the
incident and, after acquittal, had got married and was the father of a girl child. Also there
was nothing to suggest that he would not be capable of reform. Though there were
extremely aggravating circumstances as well. Nevertheless as per the Supreme Court the
balance sheet tilted marginally in favour of the appellant, and the death sentence awarded
to him was commuted to life imprisonment.

On October 30, 2006, in CBI v. Santosh Kumar Singh , the Delhi High Court sentenced
the accused to death for the rape and murder of a law student on January 23, 1996. The
acquittal was turned into conviction by the High Court, amongst other grounds on the
basis of the DNA Test conducted in the case by The Centre for Cellular and Molecular
Biology, Hyderabad, which had clearly established the fact of rape even though the
surgeon who had conducted the post mortem had ruled out rape. The Supreme Court has
affirmed both the findings and the said sentence.

On December 6, 2005, in Nirmaljit Kaur v. State of Punjab , the Apex Court relying
exclusively on report dated August 30, 2005, for "DNA Typing Evidence For Establishing
Maternity" came to the conclusion that the child produced before the Court is not the real
child of the petitioner and that the petitioner's real child is in the custody of the
respondents elsewhere.

On September 26, 2005, in State of U.P. through CBI v. Madhumani Tripathi , the State of Uttar Pradesh
through CBI aggrieved by the orders passed by the Allahabad High Court releasing the accused on bail, filed
appeals before the Supreme Court in a case of murder where the DNA reports showed the accused as the
father of a six month feotus found in the womb of the deceased. The Supreme Court while disposing of the
appeals on the basis of material collected in evidence, set aside the High Court orders and cancelled the bail
bonds and directed the respondents to surrender forthwith.

Maninder Pal Singh Kohli accused of murdering Hannah Foster in Hampshire in 2003 was apprehended in
India and extradited to UK by the British Police in 2007 after his wife consented to DNA testing from their
two sons and Forensic Science Service was able to infer a DNA profile for the fugitive criminal from their
DNA which matched the DNA of the semen of the accused found on the clothes of Hannah Foster.

In Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418, the Supreme Court
expressed the most reluctant attitude in the application of DNA evidence in resolving the
paternity dispute arising out of a maintenance proceeding. In the said case, the father
disputed paternity and demanded blood grouping test to determine parentage for the
purpose of deciding whether a child is entitled to get maintenance under section 125 of
the Code of Criminal Procedure from him. In this context, the Supreme Court held that
where purpose of the application was nothing more than to avoid payment of
maintenance, without making out any ground whatever to have recourse to the test, the
application for blood test could not be accepted. It was also held that no person could be
compelled to give sample of blood for analysis against his will and no adverse inference
can be drawn against him/her for such refusal.
In Kamti Devi v. Poshi Ram , (2001) 5 SCC 311 the Court gave priority to social
parentage over biological parentage and thereby rejected DNA evidence by observing
that though the result of a genuine DNA test is said to be scientifically accurate, it is not
enough to escape from the conclusiveness of section 112 of the Evidence Act, 1872.
However, in total contrast, in Sharda v. Dharmpal , (2003) 4 SCC 493, the Apex
Court took a very positive view regarding the importance as well as the
admissibility of medical evidence in matrimonial matters. The Supreme Court
categorically summed up its conclusions as hereunder:
o " 1. A matrimonial court has the power to order a person to
undergo medical test.
o 2. Passing of such an order by the court would not be in violation
of the right to personal liberty under Article 21 of the Indian
Constitution.

o 3. However, the court should exercise such a power if the applicant

has a strong prima facie case and 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."
In a turn around, the Apex Court in Banarsi Dass v. Teeku Dutta , (2005) 4 SCC
449, following Goutam Kundu v. State of West Bengal , (1993) 3 SCC 418, while
determining the question whether a direction can be given for conducting a DNA
test in proceedings for the issuance of a succession certificate, declined the same
and held that DNA test is not to be directed as a matter of routine. It was held by
the Court that even though the result of a genuine DNA test is said to be
scientifically accurate but it is not enough to escape the conclusiveness of section
112 of the Evidence Act. According to the Court if a husband and wife are 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
unrebuttable. Therefore, in law, this presumption can only be displaced by a
strong preponderance of evidence and not by a mere balance of probabilities.
In Kamalanantha v. State of Tamil Nadu, (2005) 5 SCC 194, in a case of
conviction for rape of 13 Ashram girls and murder of one of its inmates, the
reliance on reports of DNA tests on dead foetus to establish paternity to prove
rape was sought to be dislodged in appeal on different grounds. Rejecting the
challenge, the Apex Court upheld the veracity of the DNA reports which were
held to be good testimony for convicting the accused.

Bibliographu
http://www.exploredna.co.uk/understanding-forensic-identification.html
http://www.lawyersupdate.co.in/LU/8/965.asp
http://www.supremecourtcases.com/index2.php?
option=com_content&itemid=1&do_pdf=1&id=975