Introduction

Justice is the basis of law. Speaking particularly about criminal law, it contains
a set of rules for the maintenance of social order in society where change is
constant.

The basis of Indian criminal justice system is the investigation by the police.
When an offence is brought to the note of police, it is their responsibility to
investigate into the matter to find out who is the real perpetrator, to ascertain
the facts and circumstances, to collect and present whole set of these to the
court to find whether the accused is guilty or not. It is the duty of the police to
apprehend the wrongdoer and present the case before the court of justice to
meet the ends of justice. But this seldom happens in present scenario. The
reason behind this is criminals have become careful, sophisticated, educated as
they are adopting new and enhanced techniques for commission of crimes.
They hardly leave any sort of evidence at the crime scene or otherwise and on
the contrary country’s police and investigation agencies are still stuck on the
old fashioned tools and techniques for investigation of crimes.

Police often use violence, fear and torture to extract information. In many cases
they try to suppress the truth and make out fabricated cases for many reasons
such as political influences or corruption to name a few. Also, where criminals
leave no evidence of their alleged crimes, they escape punishments in the
absence of direct proof sufficient enough to establish the guilt. Moreover,
where victims turn hostile there is no way left for the judiciary except to give
accused benefit of doubt and set him free which results in embodiment of
criminals and loss of faith in criminal justice system of victim, victim’s family
and society at large. Getting released on bail is not a big deal these days and
thereafter accused persons get release due to above stated reasons. There are
abundant cases where accused walked away freely for the want of evidence and
victim who suffered trauma watched helplessly.

It was aptly held by Hon’ble Supreme Court in State of Punjab v. Karnail

Singh1, a judge does not preside over a criminal trial to see no innocent man is
punished, but also to see a guilty man does not escape.

1
(2003) 11 SCC 271
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Now a days, many a times deciding authority (judges) seek the help of
scientific evidence for effective delivery of justice as it combines both science
and the law. We use a number of scientific techniques like DNA, Narco-
Analysis, Polygraph, Brain-Mapping and many others. The cardinal principle
in applying scientific aids to investigation is the rule of fair play, unbiased
approach and openness of mind from collection, evaluation analysis and use of
these scientific evidences both by investigators and forensic experts.

Forensic science plays a vital role in crime detection. Forensic science can be
said to be an important branch of jurisprudence. It is potent and powerful
weapon in the armory of administration of justice. The operation of forensic is
nothing but application of techniques and tools of basic science for various
analysis of evidence associated with crimes. The scientific examination by
forensic scientists adjoins a missing link and strengthens the weak chain of
investigation.

Now, when criminals are shrewd enough that they hardly leave any evidence,
we need to bring into picture forensic science. In Som Prakash v. State of
Delhi2, Supreme Court recognized the requirement, the necessity of scientific
investigation. Law Commission also emphasized on the need of training of
Police officers in using scientific methods of investigation 5. Narco-Analysis,
Polygraph, Brain-Mapping, etc. are some of the revolutionary tools of forensic
science that can prove to be very fruitful in crime investigation.

2
AIR 1974 SC 983 Page | 2
Polygraph Test

Polygraph is another important scientific tool of investigation. Polygraph is

popularly known as lie detector and sometimes referred to as psycho-
physiological detection. It is an instrument which measures and records
physiological actions of human body as for instance blood-pressure of the
subject, his pulse rate, respiratory system, skin conductivity while the subject is
asked questions relating to the crime and he answers them. The polygraph tests
measures all the natural changes caused by autonomic nervous system during
questioning. The autonomic nervous system changes are beyond reasonable
control of an individual and hence an autonomic nervous system response
change transpires when the subject tries to tell a lie.

Polygraph is a device that records simultaneously tracing of several different

pulsations, as arterial and venous pulse waves, and the apex beat of heart11.

According to Science and Technology encyclopedia, “Lie Detector” is a device

intended to detect an involuntary physiological response that all persons exhibit
when lying but never when telling the truth.

The principle behind the polygraph technique is that the suspect fears detection
of lie and creates in the subject an emotion of fear which consequently results
physiological changes which are captured by various instruments. Polygraph
test is basically based on the theory that generally a person telling a lie
becomes nervous and shaky. Due to this position physiological changes occur
in the person’s body.

In polygraph test subject is asked a series of question. These questions are

controlled questions. Some questions are asked generally even though the
answers to them are already known. For instance name and address of the
subject. While answering these questions no change transpires. After this,
relevant questions are asked and if the subject tries to lie physiological changes
takes place. Physiological changes may crop up in shape of increased or
decreased blood pressure, change in pulse rate or heartbeats, sweating, dryness
of mouth, etc. These changes are a far from the reasonable and practical control
of subject thus whenever subject tries to lie polygraph machine apprehends the
lie.

Page | 3
Thus, polygraph test is a technique where normal bodily changes of subject are
recorded and observed while subject is answering the question. These changes
occur only if the subject tries to hide the truth.
The result of the test is obtained on a chart known as Polygram. Polygraph
does not directly detect whether the person is speaking truth or is deceiving but
the examiner carefully analyzes the pattern of arousal responses and on that
basis veracity of the individual is inferred.

Generally polygraph test is conducted in three stages-

1) The pre-test interview - The first stage starts when the examiner
introduces himself to the subject and tells “the subject about the
procedure and legal aspects of the test and the consent of the test is taken
and the subject is also told about his legal rights.

2) The chart collection or examination proper – The second stage is the

actual performance of test, i.e., examination proper. Different gadgets are
attached to the body of the subject for measuring the changes in
physiological conditions.

3) The post-test-interview – In the third stage the result of the test is

discussed with the subject in order to analyze about deception of
attempted unresponsive to any question.

Guidelines Relating To Administration of Polygraph Test on Accused

The Commission, after bestowing its careful consideration on this matter of

great importance, lays down the following guidelines relating to the
administration of Lie Detector Tests:

1. No Lie Detector Tests should be administered except on the basis of

consent of the accused. An option should be given to the accused
whether he wishes to avail such test.

2. If the accused volunteers for a Lie Detector Test, he should be given

access to a lawyer and the physical, emotional and legal implication of
such a test should be explained to him by the police and his lawyer.

3. The consent should be recorded before a Judicial Magistrate.

Page | 4
4. During the hearing before the Magistrate, the person alleged to have agreed
should be duly represented by a lawyer.

5. At the hearing, the person in question should also be told in clear terms that
the statement that is made shall not be a confessional‟ statement to the
Magistrate but will have the status of a statement made to the police.

6. The Magistrate shall consider all factors relating to the detention including
the length of detention and the nature of the interrogation.

7. The actual recording of the Lie Detector Test shall be done in an

independent agency (such as a hospital) and conducted in the presence of a
lawyer.

8. A full medical and factual narration of manner of the information received

must be taken on record.

Drawbacks of polygraph:
The principle behind these tests is questionable because the measured changes
in arousal state are not necessarily triggered by lying or deception. Instead,
these could be triggered by nervousness, anxiety, fear confusion, psychosis and
other emotional responses. Also, many organizations excel at training their
employees, recruits to beat such tests.

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Page | 6
Narco-Analysis

Narco-analysis has become one of the most popular

techniques of crime detection in India. This test is also
known as ‘truth serum test’. It is a kind of psycho-therapy
which is conducted on a person by bringing that individual
into semi-sleep with the help of scientific drugs.

Human beings have the tendency of speaking lies from the

time immemorial. A person is able to lie by using his mind’s
eye. In this test, the subject’s self-consciousness is allowed
to sink down by making intrusion to his nervous system. In
such a state an attempt is made to extract information in
form of clues about the crime as under the influence of
drugs it becomes extremely difficult for the subject to lie. It
is believed that if a person’s way of thinking can be
restrained without any affect on his memory. He can speak
freely without any manipulations under the influence of
drugs. Some drugs have been found to create this „twilight
state” in some persons6 and with the use of these drugs
investigating agencies try to arrive at the truth.

Narco-analysis is a form of psycho-therapy and an effective

aid to scientific interrogation. It is a process whereby a
subject is put to sleep, or into a state of half Consciousness
by means of dosage of scientific drugs and then interrogated
while in a reverie.

The term Narco-analysis is derived from a Greek word

“narke” which means anesthesia and is used to describe a
technique of diagnosing and giving the psychotherapy with
the help of psychotropic drugs as Central Nervous System
depressants and by virtue of this they produce a wide
spectrum of effects7.

There are two most common drugs used to bring into play
the Narco-analysis and these are Sodium amytal, which is
also known as amobarbital or amylobarbition, and Sodium
Pentothal commonly known as thiopental or thiopentone, is

Page | 7
used by psychiatrist on the subject. Its effect is that it makes
the subject relaxed and he/she becomes susceptible to
suggestions. The subject becomes communicative and can
easily tell the truth. It is said that after its use the subject
loses inhibitions but does not lose his/her self-control and if
he/she does not want to disclose anything he/she may do so.

Page | 8
Important things involved in the tests are:

 Video recording
 Tape recorder
 Disposable syringe
 Distilled water
 Prescribed truth drug

Every test is video graphed. How the subject was given

dosage, what questions were put to him, what was his
response, each and every minute detail is recorded while
conducting the test. Along with the video the whole
procedure is also recorded on an audio tape. Disposable
syringe and distilled water is used for the purpose of
conducting the test. The drug which is to be used while
conducting test is to be mixed with distilled water.

Precautions and Guidelines

The following precautions should be taken for fruitful result

of test:
1. The test should be conducted in a well-lit room which
is otherwise quiet.

2. Prior consent of the subject has to be obtained and the

person subjected to the test should be given an option
if he or she wishes to avail the test.

3. Consent should be recorded and it should be done

before a judicial magistrate.

4. The physical and emotional implication along with

the legal implications of the test should be explained
to the subject by the lawyer accessing him or her or
by the police that he or she submits himself or herself
to the test voluntarily.

5. The person subjected to the test should be made clear

during the hearing that his or her statements so made

Page | 9
 shall not be a “confessional statement” to the
magistrate but a statement to the police.
6. The entire process should be videotaped.

7. The drug should be diluted at 8.66% and should be

injected showing at intervals throughout the
interview.

8. The drug should be administrated so that a state

between sleep and wakefulness is maintained.

9. Caffeine should be used to prevent the subject from

going into deep sleep.

10.The interview should not exceed one hour of time;

11. The actual recording of test shall be done in the
pressure of a lawyer.

12.Narco analysis cannot be conducted without the

consent of the subjected and order of the court.

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Legality of Test

The Narco analysis test has no evidentiary value in courts.

Till recently it was used as an investigation tool. But the
Supreme Court decision in Selvi & others vs. State of
Karnataka &Anr has held that no Narco analysis tests
should be administered except on the basis of consent of the
accused as it contradicts Articles of constitution of India and
some sections of Cr.P.C.

These tests suffer from some Constitutional and Legal

implications. Any law, any rule, any decision, any test and
anything that violates the Fundamental rights of an
individual guaranteed by the Constitution of India are
unconstitutional. These tests are said to violate the Art.
20(3) and Art. 21 of the Indian Constitution.

 Art. 20(3) reads, No person accused of any offence

shall be compelled to be a witness against himself.

 Art. 21 reads, No person shall be deprived of his life

or personal liberty except according to procedure
established by law.

It also goes against the maxim Nemo Tenetur se Ipsum

Accusare that is, „No man, not even the accused himself
can be compelled to answer any question, which may tend
to prove him guilty of a crime, he has been accused of.‟ If
the confession from the accused is derived from any
physical or moral compulsion (be it under hypnotic state of
mind) it should stand to be rejected by the court. The right
against forced self-incrimination, widely known as the
Right to Silence is enshrined in the Code of Criminal
Procedure (Cr.P.C) and the Indian Constitution.

It is well established that the Right to Silence has been

granted to the accused by virtue of the pronouncement in
the case of Nandini Sathpathy vs P.L.Dani3; no one can
forcibly extract statements from the accused, who has the
Page | 11
right to keep silent during the course of interrogation
(investigation).

Sec. 161(2) of Cr.P.C. protects against compelled testimony

and gives two rights to person being interrogated:

(1) Right to refuse – person may

expressly refuse to answer
incriminatory questions.

(2) Right to silence – person may not

answer but prefer to remain silent.

Page | 12
S.161 (2) of the Code of Criminal Procedure states that
every person “is bound to answer truthfully all questions,
put to him by [a police] officer, other than questions the
answers to which would have a tendency to expose that
person to a criminal charge, penalty or forfeiture”.

Sec. 163 Cr.P.C. gives express direction to the police that no

statement can be obtained by using threat, promise or
inducement. Both provisions prohibit compelled testimony.
It is contended that the three tests amount to giving
compelled testimony.

Recently in the well-known case of Surender Koli v. State

of U.P. and Others4, Surender Koli was the main accused in
the Nithari case. In this case Narco-Analysis test was
conduct on the accused person on January 2007 in Forensic
Science Laboratory, Gandhinagar to a Sectionrtain the
veracity of their statement made during their custodial
interrogation. During the test various confessional statement
were made by the accused person under the effect of the
drugs .During the test, the accused person reveal the names
of various females and children which were murdered by
the accuse person. On the behalf of the test and various
other evidences Supreme Court upholds death penalty for
Nithari’s accused.

3
AIR 1978 SC 1025
4
AIR 2011SC 970

Page | 13
DNA Profiling

One of the latest growing and most reliable modes of

investigation in forensic science is DNA profiling. DNA is
the abbreviation of the term, “Deoxyribose Nucleic Acid”.
It is an organic substance which is found in every living cell
and which gives an individual genetic blue print. DNA can
be obtained from a wide variety of sources like, blood,
semen, bone, saliva etc.14

DNA was first discovered by Fredrick Micscher in the year

1869. Sir Alec J. Jeffery discovered the use of DNA in
forensic analysis in 1984 in England and it was first used in
the famous Endbury case wherein two girls were raped and
murdered. DNA tests are highly effective because each
individual’s DNA is unique except the twins. The
probability of DNA being same is one in three billion. And
it is credible because it cannot be tampered with. DNA test
can be used in various cases in order to such as to establish
the parentage of a child, identify mutilated dead bodies etc.

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
Page | 14
hospital, had been spotted near Dawn Ashworth’s murder
scene and knew unreleased details about the body. In 1986,
he confessed to Dawn Ashworth’s murder but not Lynda
Mann’s.
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 turnout 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.

Admissibility of DNA in Indian legal system

DNA test provides perfect identity and is admissible .The
admissibility of the DNA evidence before the court always
depends on its accurate and proper collection, preservation
and documentation which can satisfy the court that the
evidence which has been put in front it is reliable. There is
Page | 15
no specific legislation which is present in India which can
provide specific guidelines to the investigating agencies and
the court, and the procedure to be adopted in the cases
involving DNA as its evidence. Moreover, there is no
specific provision under Indian Evidence Act, 1872 and
Code of Criminal Procedure, 1973 to manage science,
technology and forensic science issues. Due to lack of
having any such provision, an investigating officer has to
face much trouble in collecting evidences which involves
modern mechanism to prove the accused person guilty.

Section 53 of Code of Criminal Procedure1973 authorizes a

police officer to get the assistance of a medical practitioner
in good faith for the purpose of the investigation. But, it
doesn’t enable a complainant to collect blood, semen etc.
for bringing the criminal charges against the accused. There
is an urgent need to re-examine these sections and laws.

There are certain provisions which are present in the Indian

Evidence Act, 1872 such as Section 112 which determine
child’s parentage and states that a child born

Page | 16
in a valid marriage between a mother and a man within 280
days of the dissolution of the marriage, and the mother
remaining unmarried shows that the child belongs to the
man, unless proved otherwise but again no specific
provision which would cover modern scientific techniques.
DNA analysis is of utmost importance in determining the
paternity of a child in the cases of civil disputes.

The introduction of the DNA technology has posed serious

challenge to some legal and fundamental rights of an
individual such as “Right to privacy” and “Right against
Self-incrimination”. This is the most important reason why
courts sometimes are reluctant in accepting the evidence
based on DNA technology. Right to Privacy has been
included under Right to Life and Personal liberty or Article
21 of the Indian Constitution, and Article 20(3) provides
Right against Self- Incrimination which protects an accused
person in criminal cases from providing evidences against
himself or evidence which can make him guilty. But it has
been held by the Supreme Court on several occasions that
Right to Life and Personal Liberty is not an absolute Right.

Before exploring the use of DNA tests in criminal cases it

would be pertinent to see if it offends the fundamental right
of person against self-incrimination. A

Constitution Bench of the Hon’ble Supreme Court, in Selvi

v. State of Karnataka5, while testing the validity of DNA
tests on the anvil of Article 20(3) of the Constitution of
India, made following observation, ―.

The matching of DNA samples is emerging as a vital

tool for linking suspects to specific criminal acts. It may
also be recalled that as per the majority decision in Kathi
Kalu Oghad18, the use of material samples such as
fingerprints for the purpose of comparison and
identification does not amount to a testimonial act for the
purpose of Article 20(3). Hence, the taking and retention of
Page | 17
DNA samples which are in the nature of physical evidence
does not face constitutional hurdles in the Indian context.

5
(2010) 7 SCC 263

Page | 18
Brain Mapping

Brain Mapping is one more valuable scientific tool for

investigation of crimes. Brain Mapping is also known as
Late Positive Complex or P3 or P300. In this test no
questions are asked from the accused. He is made to sit in
evoked potential recording machine and is shown objects
relating to crime scene or is made to hear sounds pertaining
to crime site. The sensors from his head pick the event
related potentials in the form of Brain Mapping only if the
person has been at the site of crime. The accuracy of Brain
Mapping is almost 100%.

When the brain recognizes a person or a sound, it produces

a precise electric wave which is called P30012. In this test
sensors are attached to the head of the subject and the
subject is seated before a computerized monitor. The
sensors catch the electrical activity in the brain and record
P300 wave, which is produced only if the subject has some
correlation with the pictures shown to him and the sounds
which he is made to hear.

Brain has been the center of attraction of neuro-scientists

for decades. The brain is centrally involved in every human
action and records everything that human beings do,
including criminal acts. Due to this reason the brain has
been the key point in inventing all equipment’s of lie
detection be it polygraph or lie detection test, p-300 or
Brain fingerprinting and Narco analysis. In these tests Brain
fingerprinting is the latest scientific technique for measuring
neural responses exhibited after an object is shown to the
subject or on external stimulus is printed to the subject. It is
a branch of neuroscience and deals with the study of
neuroanatomy.

Brain fingerprinting is used to determine whether certain

information is present in the brain of a person or not. In
other words, brain fingerprinting is a scientific test by
which guilty knowledge stored in one’s brain can be
Page | 19
determined. Brain fingerprinting measures neural responses
to images from crime scene. In short, the brain
fingerprinting is the method of matching the fingerprinting
information in the brain with that of actual crime scene.

The brain fingerprinting detects the presence of crime. If a

person is not present at that he has committed the crime or
present at the place of commission of crime. The act of
crime is imprinted in the brain of the subject. This test only
ensures that the subject is present at the place of occurrence.
However, it does not ensure that the person concerned has
committed that crime. He may be present at that place for
any other purpose.

Performing Brain Mapping Test

Merely conducting of or performing of the Brain Mapping

Test on the accused would not take away the protection
guaranteed under Article 20(3) of the Constitution of India
and the said aspect is not required to be considered at the
time of performing or conducting the Brain Mapping Test.

Brain mapping has faced a lot of criticism and it is still

inclear to what degree it can be used to reveal concealed
knowledge in applied real world settings. The Supreme
Court in its judgement in the case of the Supreme Court
decision in Selvi & others vs. State of Karnataka &Anr6
declared brain mapping , lie detector and Narco analysis to
be unconstitutional, violating Article 20(3) of Fundamental
Rights. These techniques cannot be forcefully conducted on
any individual and requires consent for the same.

Page | 20

6
(2010) 7 SSC 263
Conclusion

It is the prime duty of every state to protect rights and

liberties of the people, for this state has to develop such
kind of norm which imposes restriction on the accused and
protect the innocent. The society to be a peaceful and crime
free only when it is governed by the rule of law and having
established, well founded criminal justice system for the
protection of people.
There is urgent need for the application of forensic science
in the criminal justice delivery system. The use of scientific
or forensic evidence not only heps in nabbing the guilty
party but, also prevents an innocent person from conviction.
But to forego the basic value of our Constitution in the
name of justice is also not justifiable, forceful test on any
person deprive hi, of the basic right given by the
constitution, hence the judicial and investigating agencies
need to get more trained and skilled in handling, collecting,
recording and analyzing any forensic evidence so as to
provide justice as well as ensure that no right of any citizen
is destroyed.
The Criminal Justice system in India is looking a
tremendous change of circumstances where the role of
investigating agencies has become significant and inclusion
of technologies like Narco Analysis, Brain-Mapping, DNA
Finger printing and Polygraph Test has made these changes
operative and fruitful. The system faces many serious issues
related to delay in Justice and conviction which can only be
possible by utilization of such technologies. It was found
that the investigation playing a major role in the conviction
of crime and it is lacking because of technological
advancement of criminals. This compels the investigating
agencies to use technology in truth finding.

Page | 21
Bibliography

Website’s and Articles Referred

1) http//.Sciencejrank.org /Pages 12822/Forensic
Science Fingerprinting .html.

2) “Forensic science fingerprint”, available at:

http//science/ jrank. Org. / Forensic -Science -
Fingerprints.htm

3) JOURNAL OF LEGAL STUDIES AND

RESEARCH by 'The Law Brigade (Publishing)
Group', A Libertatem Media Group Company

Articles Referred

1) June Louin Tapp, edited by Bruce Dennis Sales,

“Psychology in the Legal Process”, New York:
Spectrum Publications.
2) R. P. Sharma, “Truth Detecting Techniques Vis-à-vis
Physical Evidence”,
Karnataka Law Journal
3) P. Venkatesh, “Police Diaries: Statements, Reports
and Investigations”,
Allahabad: Premier Publishing Company.
4) Joshi, Nayan, “Medical Jurisprudence and
Toxicology”, New Delhi:Kamal Publishers.
5) Caesar Roy, “Narco Analysis Test- Infringement of
Individual Fundamental
Rights and Its Value as Evidence”, Criminal Law
Journal
6) Bimaldeep Singh, “Scientific Techniques of
Obtaining Evidence”, Law Journal of Guru Nanak
Dev University.
7) Dr., B.R. Sharma, Forensic Science in Criminal
Investigation and Trial 4 (Alia Law Agency,
Allahabad 6th ed., 2008).

Page | 22
Books Referred
1) Legal Helpline by Harpreet Kaur Published By Shree
Ram Law House
2) Medical Jurisprudence by Modi
3) Taber‟s Medical Dictionary 17th edition
4) Black's Law Dictionary

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