dna & indian courts

7/30/2019 DNA & Indian Courts

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Indian Laws & DNA test results as evicence

India has no specific legislation or provision related to D.N.A testing. There is no

provision under the Hindu Marriage Act, Indian Evidence Act, CrPc or CPC which a

party could be compelled to submit one’s blood sample for examination. In such

cases the court is bound to invoke Section 151, C.P.C for giving appropriate

directions in the larger interest of Justice. Fortunately the courts have been

instrumental in considering D.N.A tests as credible evidence from 1989.

In Goutam Kundu v. State of W.B.5, 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 couldn’t be accepted. It was also held that no person

could be compelled to give sample of blood for analysis against his/her will and no

adverse inference can be drawn against him/her for such refusal.

In a recent judgment of the Supreme Court in the year 2001, Kamti Devi v. Poshi

Ram, 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 theconclusiveness of Section 112 of the Evidence Act, 1872.

In Sharda vs. Dharmpal the Supreme Court took a very positive view regarding

importance as well as admissibility of DNA evidence in matrimonial cases. The

Supreme Court categorically observed that: (SCC p. 524, para 81)

“1. A matrimonial court has the power to order a person to undergo

medical test.

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.

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 the aforesaid case, the Supreme Court by distinguishing its earlier decision in

Goutam Kundu case further held that right to privacy under Article 21 of the

Constitution is not an absolute right and in a case of conflict between the



fundamental rights of the two parties, the court has to strike balance between the

competing rights.

Law Governing Forensics in India

Law governing expert evidence consists of:

(1) Enacted laws.

(2) Case laws.

(3) Court conventions.

Enacted Laws. The main legal provisions, which govern the expert evidences, are

in:-

•

Indian Constitution. (Article 20 (3) )

• Indian Evidence Act, 1872. ( Sections 45 & 112)

• Code of Criminal Procedure, 1972. ( Sections 53, 194 & 293)

• Identification of Prisoners Act.

The right to silence has various facets. One is that the burden is on the State or

rather the prosecution to prove that the accused is guilty. Another is that an accused

is presumed to be innocent till he is proved to be guilty. A third is the right of the

accused against self incrimination, namely, the right to be silent and that he cannot

be compelled to incriminate himself. There are also exceptions to the rule. An

accused can be compelled to submit to investigation by allowing his photographs

taken, voice recorded, his blood sample tested, his hair or other bodily material used

for DNA testing etc.

In so far as the Indian legal system and its position is concerned, when Indian

Evidence Act 1872 or the Code of Criminal Procedure, 1973 were enacted,

legislature could not anticipate the tremendous development of modern science and

technology and its deep impact on the forensic science as well as well asadministration of justice. Neither the Indian Evidence Act nor the Code of Criminal

Procedure has provisions to manage science and technology issues effectively since

the rules of our judicial system lies on the bedrock of traditional law. There is no

specific or special DNA legislation in India. The admissibility of the DNA evidence

before the court always depends on its accurate and proper collection, preservation

and documentation which can satisfy the court that the evidence which has been put

in front it is reliable. There is no specific legislation which is present in Indian 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 such specific provision under Indian Evidence Act, 1872 and Code of Criminal

Procedure 1973 to manage science and technology issues.



For collection of blood samples S. 53 of the CrPC is required which goes with the

marginal heading Examination of the Accused by Medical Practitioner at the request

of the Police. This section deals with examination of the accused by a medical

practitioner at the request of the police officer, if there are reasonable grounds for

believing that an examination of a person will afford evidence as to the commissionof offence. So it shall be lawful for a registered medical practitioner at the request of

the police officer not below the rank of sub-inspector and for any person acting in

good faith in his aid and under his direction, to make such an examination of the

person arrested as is reasonably necessary in order to ascertain the facts which may

afford such evidence and to use such force as is reasonably necessary. This section

does not specifically say whether it would be applicable for DNA tests also. This

section does not state that the police officer shall be entitled to personally collect

semen, blood, hair root, urine, vaginal swab, etc for the purpose of investigation

himself. By the amendment Act of 2005 the CrPC has been amended and added S.

53A which states that examination of a person accused of rape by medical

practitioner. By the amendment act of 2005 the new Explanation now stands which

include within its ambit examination of blood, blood stains, semen, sputum, swabs,

sweat , hair samples and finger nails by the use of modern techniques in the case of

sexual offences including DNA profiling and such other tests which is necessary in a

particular case. Though, S. 53 of CrPC refers only to examination of the accused by

medical practitioner at the request of the public officer but the Court has wider power

for the purpose of doing justice in criminal cases. By issuing direction to the police

officer to collect blood samples from the accused and conduct DNA test for the

purpose of further investigation under S. 173(8) of CrPC. S. 293 (4) (e) of the CrPCprovides for report of certain Government scientific experts. This section is only an

ancillary provision which provides for giving of report by scientific experts.

Neither S. 53A, the amended S. 53A nor S. 164A of the CrPC are adequate to

protect the interest of the suspects as well as the accused. Moreover the application

of S. 53A and 164A is restricted to rape cases.

S. 112 of the Evidence Act raises a conclusive presumption about the paternity of a

child born during the subsistence of a valid marriage. The said conclusiveness can

be rebutted and it can be shown that the parties had no access to each other at thetime when the child could have been begotten. The result of genuine DNA test is

said to be scientifically accurate. If a husband and wife were living together during

the time of conception, and the DNA test revealed that the child was not born to the

husband, the conclusiveness in law would remain unrebuttable. There was an

admitted access between husband and wife during which she could have conceived

and delivered normal child. The presumption under s. 112 was not rebutted. No

adverse inference can be drawn against refusing to submit himself to blood test.

Section 112 requires the party disputing the paternity to prove non-access in order to

dispel the presumption. “Access” and “non-access” mean the existence or non-

existence of opportunities for the sexual intercourse. It does not mean actual co-



habitation. It is a rebuttable presumption of law under s. 112 that a child born during

the lawful wedlock is legitimate, and that access occurred between the parents. This

presumption can only be displaced by a strong preponderance of evidence and not

by a mere balance of probabilities.

The discovery of genetic fingerprinting with its high specificity and extraordinary

probative properties highlights the question of the scope of the privilege against self-

incrimination. The fact that the public would probably see DNA fingerprinting as

harder to fabricate, as more objective than a verbal statement, it may also mean it is

more difficult for the individual to refuse and for his refusal to be seen as legitimate.

Fear, anxiety, embarrassment, and anger, rather than guilt, may account for non-

cooperation in supplying a bodily sample just as they may account for silence. The

suspect may be apprehensive regarding how the test is conducted and more

importantly, how accurate it is, especially if he does not understand what the test

involves or lacks confidence in the testing procedures and controls. The questionthat now comes to mind is whether or not it is legal for the courts to ask the accused

to supply a sample of his DNA for the analysis. What is of concern here is that does

forcing the accused to provide a sample of his DNA amount to a violation of the

protection against self-incrimination? Also, if the accused refuses to give the sample

then does that mean that an adverse inference will be drawn against him? In the

case of Goutam Kundu v. State of W.B. there was a question of disputed paternity.

The Court held that no person can be compelled to give sample of blood for analysis

against his/her will and no adverse inference can be drawn against him/her for this

refusal. The constitutionality in taking a fingerprint was challenged in the case of

State of Bombay v. Kathi Kalu Oghad. The Supreme Court held that Article 20(3) of

the Constitution gives protection to a person not to be a witness against himself.

However, "to be a witness" is not equivalent to "furnishing evidence" in its widest

term and significance. Giving thumb or finger impression or exhibiting parts of the

body by way of identification are not included in the expression "to be a witness".

Being a witness has been interpreted to mean imparting some sort of knowledge in

testimony. From this it appears that there will be no constitutional restriction on the

collection of samples for DNA analysis.

The State has to satisfy the following:

(1) Obtaining known/unknown biological samples in accordance with law.

(2) The State must establish a proper chain of custody for the substance

subjected to the analysis. A proper foundation connecting the evidence to the

accused or to place or object should be established.

(3) Laboratory procedure, protocol and quality control.

(4) Fair hearing is to be resorted to



During a trial the proponent of the evidence meets the burden of establishing that the

DNA analysis performed in the present case provides a trustworthy and reliable

method of identifying characteristics in an individual's genetic material. Additionally, if

the evidence is admissible, issues questioning the reliability of test procedures may

attack the weight of the evidence. The party preferring the forensic DNA evidencewill have the affirmative burden of showing the following:

(a) the acquisition of the sample,

(b) the chain of custody of the sample and test results,

(c) the proper labelling of samples,

(d) the testing procedures followed, and

(e) the interpretation of the test results by a scientist properly qualified to

read and interpret the test results.

185th Report of the Law Commission (Part II) Regarding the refusal of a person to

undergo blood tests or a DNA test in criminal cases, we do not again think that any

special provision is to be made in sec. 9 of the Evidence Act, 1872. The Courts can,

in criminal or civil cases, always rely upon a person’s conduct under sec. 9 and no

special provision is necessary in sec. 9 of the Evidence Act. We have, however,

recommended that so far as refusal by a man for undergoing blood tests or DNA

test, for purposes of proving paternity, is concerned, that he should be deemed as

having waived his defence that he is not the father (see sec. 112).

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