Criminal Justice System in India: Speedy trials through the Medical and Forensics Techniques

Vishally

Abstract

“The Science Of Today Is The Technology of Tomorrow.”

Every object, natural or man-made has individuality, which is non-duplicated. The technical knowledge of man has increased tremendously in recent years which has many pros and cons. Nowadays the crime has spread their tentacles and most of the criminals are using different techniques for making the crime in differential from the real facts but in reality the facts cannot be concealed because Forensic science and its latest developing techniques has embraced all branches of science and applies to the purposes of law. Forensic science in criminal investigations and trails is directly concerned with materials and indirectly through materials with men, place and time. “The need for the application of science in the dissemination of justice is pressing.” It has crossed all physical barriers as far as the analysis of evidential clues. Scientific evidence with the help of Hi-Tech system provides linkage of the criminal with the crime through clue materials for eg: Fingerprints, Lip-prints, blood and semen analysis, DNA profiling, Tools Marks, Track marks etc. The data collected from the crime spot by investigating officer with the help of medical expert and forensic experts analysed in the laboratories and report is submitted in the court. As per the Indian evidence Act court can called any expert through summoned  to explain his report and for the opinion . The court is not surrender its own judgement to that of expert or delegate its authority to a third party but should asses his evidence in resemblance to others. In this Paper the author will be throwing light on Criminal Justice System in India ; Speedy trials through the Medical and Forensic Techniques and will also be suggesting some more effective ways of to provide timely Justice with the modernising techniques.

Introduction

Technology has enhanced our personal and professional lives. The weakness of Indian judiciary system is the delay in justice. The major reasons of delay of justice in the courts are the inefficiency for management of cases. In view of long list of pending cases in our courts across the country there should be proactive decision to modernize the court rooms and procedure to be followed in court room or in investigations to overcome the limitation of old system of dealing with the cases. The correct identification of criminals and other individuals has always been one of the most important problems of civil and criminal investigations.DNA profiling and Body fluids are used in the identifications. Body fluids include blood, semen, saliva, urine, sweat, nasal secretions, tears, human milk etc. The most important items of the body fluids are blood and semen from the personal identity point of view. Blood is one of the most important clues in the investigation of crime. The most important places for the location of the blood are the scene of occurrence, the culprit, the victim, the weapon of offence, the vehicle, and the route the culprit takes after the commission of crime. The blood evidence may be found at the scene in the form of stains, smears, streaks, splashes, spray, prints, clots, pools or liquid blood, on a variety of places and articles. Blood collected from the scene of crime is in different forms like liquid blood, wet stains of blood, Dry stains, washed blood etc. on the clothing, absorbent surfaces, non absorbent surfaces, grass, on body etc. The evaluation of blood evidence requires blood samples from the victim and suspect. The identification and evaluation of blood is based on its composition and behaviour under varying conditions. Like its cells structure, enzymatic activity, Spectrophotometers, Antigens, Antibodies.

Antigens & Antibody Fluid Characteristics

“Blood Group”“Antigens”“Antibodies”
“O”“None”“Anti-A,Anti- b”
“A”“A”“Anti-b”
“B”“B”“Anti-a”
“Ab”“A and B”“None”

Antigens do not figure prominently in blood transfusions but they are important in classification of blood.

Enzymatic activity- blood contains home in haemoglobin, it behaves like peroxide. It catalyses the liberation of oxygen from oxygen rich compounds like hydrogen peroxide or sodium perborate.

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H2o2    H2O +1/2 O2

The liberated oxygen oxidizes contain colourless chemicals to give colour compounds and the common compounds used for colour reactions for blood detection. Thecolour change of the blood can also give the rough idea of the age of the stain.

Medical Evidence

Semen

Semen is a liquid ejaculated by males in sexual process. It is the most important body fluids in the investigation if sexual offences, Indecency, rape, Sodomy, bestiality and the like. Semen may be found in liquid form, or as dried, smears or stains, or it may be found in vagina, anus, or rectum. The slightest penetration of the penis within the vulva, such as the minimal passage of glands between the labia with or without emission of semen or rupture of hymen constitutes rape. Fresh semen is a gel like fluid, which liquefies on exposure to atmosphere .semen stains are located by the different techniques like visual examination, ultraviolet rays, stereomicroscopy, phosphate method etc. The evaluation of semen stains involves different aspects like smell, feel like dry stains have rough feel, fluorescence and tests like barberios test, the acid phosphate test chorine and spermine test, creatine phosphokinase test. In the view of the tremendous importance of evidences it is necessary that the investigating officers, lawyers, and the judges who have to deal with the evidence should understand its nature and possibilities so that its value is properly utilised in the dissemination of justice and it is not over or under estimated.

DNA Profiling

Transformation from classical serology, DNA profiling could be considered as the modern day technique revolutionizing personal identification in forensic science. DNA profiling in every man is unique. The biological information fundamental to life is encoded in the molecule of DNA. The concept of DNA Fingerprinting was given by “Alec Jaffrey” in 1984.The identification of the DNA is possible from variety of clue materials, which is available in different types of crime: blood, semen, hair roots, body tissues, bones etc. They can be linked to the source from which they emanated. In cases of unidentified body the identification of the deceased can be identified by comparing his DNA profile those from suspect’s parents, brother, daughter, and sister. Collection of body fluids from the crime scenes is a worth full DNA evidence that can identify the suspect or victim as well as innocent individual.“Examination of person cannot only mean what is visible on the body and if necessary would include examination of an internal organ for the purpose contemplated under the said section .Hence medical examination of accused includes potency test as well.”

Medical Examinations

A prompt medical examination of victims and suspects is essential in sex offence investigations. Medical attention for victims may also relieve pain and prevent later complications. If victims refuse to be examined, or if parents or guardians refuse to let child victims be examined, they should be informed tactfully, that without such examinations the investigation cannot proceed logically since in most cases medical opinion that the offence did occur must established.

Provisions in Indian Codes

Indian Evidence Act, 1872

  1. Section 45 of Indian Evidence Act 1872: When the court has to form and opinion upon a point of foreign law or of science or art, or as to identify of handwriting or finger impression, the opinion upon that points of person specially skilled in such foreign law, science or art, or in questions as to identify of handwriting or finger impressions are relevant facts.
  2. Section 46 of Indian Evidence Act 1872: It is stated that facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of expert, when such opinion are relevant.
  3. Section 112 of Indian Evidence Act 1872 talks about Birth during marriage, conclusive proof of legitimacy.

Criminal Procedure Code, 1973

  1. Section 53 deals with examination of the accused by medical practitioner at the request of the 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.
  2. Section 53-A Examination of person accused of Rape by Medical Practitioner.
  3. Section 54 further provides for the examination of the arrested person by the registered medical practitioner at the request of arrested person.
  4. Section 293 says about the Reports of certain Government Scientific Experts.

Prevention of Terrorism Act, 2002

Section 27 (1)  says that when an investigating officer request the court of CJM or the court CMM in writing for obtaining the sample handwriting, Fingerprints, Footprints, Photographs, blood, saliva, semen, hair, voice of any accused person, reasonable suspect to be involved in the commission of the offence under this act.

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All these provisions directly not but impliedly said about the DNA and Body Fluids test of the suspect or victim. Offences of sexual assault are committed in solitary and solitude condition. In these offences always biological clues are available at the crime scene and clothing of accused or victim. In sexual assault a biological matters such as semen, blood, blood stains and hair of accused are usually found in or on the person of victim. If the biological material is recovered and DNA profile of suspected person, the offender will be identified .Circumstantial evidences and testimony of victim are corroborated by DNA and other blood fluids contents resulting into conviction of offender.

Case Analysis

The technique of DNA Fingerprinting has showed wonderful results since invented. DNA Fingerprinting was first used as a police forensic test to identify the rapist and killer of two teenagers, Lynda Man and Dawn Ashworth, who were both murdered in Narborough, Leicestershire in 1983 and 1986 respectively. Colin pitchfork was identified and convicted of murder after samples taken from him matched semen samples taken from two dead girls.

Krishan Kumar Malik v. State of Haryana 2011

It was held that after incorporation of Section 53- A in CRPC it becomes necessary for prosecution to go in for a DNA test in cases.

Ananth Kumar Naik v. State 1977

It was held that examination of accused person by a medical practitioner must logically make in examination by testing his blood, sputum, semen, urine,etc. So the examination of blood and semen is not outside the scope of Section 53 of CRPC.

Neeraj Sharma v State of U.P 1993

It was held that a magistrate is fully empowered to direct that a medical examination of the accused be performed or samples of his hairs, nailsetc. be taken where the offence alleged to have been committed is of such nature and it is alleged to have been committed is of such a nature and it is alleged to have been committed under such circumstances that there are reasonable grounds for believing that such an examination will afford as to the commission of an offence.

Naina Sahni; S Tandoor Murder Case

People smelled a foul smell near the restaurant and came to the restaurant where body was burnt and taken out the body. The body was badly burnt for use of DNA test. Bone marrow was used as an identification of the victim.

Krish Murthi Aiyer v Govind Swami Palley AIR 1966

In Indian courts while dealing with civil cases court followed the directions that the person cannot be forced to give its blood samples for blood group for identification .Sample can be collected only with the consent of the person. In India courts generally followed by this rule as there is no other law available regarding this subject.

Following are the principles of DNA tests laid down by court in concern with the adequacy to determine the parentage:

1)  In India court cannot give instructions of the blood test as in essential nature.

2) In anywhere request  are made for such plea in order to have roving investigation, the plea  for blood test cannot be consider.

3) There must be strong prima facie case in that the husband must establish non- access in order to dispel the presumption arising under Section 112 of Evidence Act.

4) The court must thoroughly go with the effect while giving directions of blood test about the title of child consider in the society and mother as a decent lady.

5) Blood sample cannot be taken without the consent of the person.

DNA and Indian Constitution

No one can be punished without a fair trial. Right of Speedy Trial is personal liberty. Constitutional guarantee of a speedy trial is a safeguard to prevent a person for delay in justice. For the end of justice it is necessary that in the inquiry, trial or other proceedings in the court or in front of Magistrate that there is need of examination & witnesses. Commencement of the DNA technology has led to major issues related to legal and fundamental rights of an individual such as “Right to Privacy” “Right Against Self Incrimination”. The court sometimes is unwilling of approving the evidence based on DNA technology because it encroaches upon the aspect of fundamental rights which includes Right to Privacy and Article 20(3) Right against Self-Incrimination. It directly protects an accused person in criminal cases from providing evidence against himself or evidences which can make him guilty. Supreme Court on many instances held that right to life and personal liberty is not an absolute right and it can be subject to certain restrictions .And it is on the basis that the constitutionality of the laws affecting Right to life and personal liberty are upheld by the Supreme Court which includes medical examination. DNA technology to be used in the investigation and in producing evidence is allowed by the various courts in the country.

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Analysis of the DNA Profiling Bill, 2007

The aim of the bill is to issue the direction for legal authorization for taking the Footprints, Fingerprints, and Saliva, Photographs of the person convicted and arrested. The Bill is still pending in India to become a statute. The state of Tamil Nadu amended the bill and adds a provision related to blood samples considered as forensic evidence in October 2010.The current stage of the bill is not able to give any sufficient details about the procedure for collecting of DNA samples, storage of DNA samples.

DNA Legislations in Other Countries

  • Canada

In June 2000, Canada legalized the DNA Identification act. This act provides authorization to DNA data bank to generate and altered the criminal code to give technique to the judges so that they ordered the person convicted under the offence to give blood samples and hair samples so that the DNA profile of the person can be created. The national DNA data bank taken the blood samples or genetic samples it in privacy forms for the record and follows the principle laid down in DNA Identification act. Blood samples without the will of the person can be taken are admissible in Canada.

  • United State of America

In 2003 with the help forensics studies to provide the speedy justice United States of America has passed the DNA Technology Act in which the DNA samples can also be collected from crime scenes and matched with the suspects. To improve or enhance the level of DNA technology crime laboratories are doing scientific analysing related to collection of DNA from crime scenes or latest development to understand the sense of nature.

The major modifications necessary in India are as follows:-

NDNAD has not been yet established in India which is very important for dealing with the criminal system and eliminating the crime from society. DNA samples when collected from DNA techniques and conserved in NDNAD results in major change for the prevention of the crime in the society.

The legislation must provide that:

  1. If the information regarding offence is not corroborated with the proper evidences then DNA samples should not be extracted.
  2. Before taking the DNA samples we acknowledged about the person that he has been alleged for crime.
  3. Without the approval or order of judge DNA samples should not be collected from the suspect for the reasons of privacy concerns.
  4. The act must define the qualification of scientific experts for performing the DNA tests.
  5. The legislation should also  give certain provisions related to collection of DNA samples of the persons convicted under heinous offences and terrorism related offences so that the record has been established which could be further use for the investigation of crime.
  6. The legislation should also provide certain techniques to the investigating officers for the recovery of DNA samples from the crime scene.
  7. The act should also give certain different ways of storage and collecting record of DNA data with the help of specimens, collection from the scene where crime committed.

Conclusion

In the past it was considered that eye witnesses, confession, statement are major criteria in collecting the evidences against the accused  but now a days  the scenario  for the evidences given by  eye witnesses  are totally obsolete because of  change in modus operandi of committing the crime  .On the other hand evidentiary clues are found in every site of the crime with the help of scientific technology and forensic techniques so that these clues are corroborated with other evidences to prove the offence committed by accused.

Modern Era has brought a vast change in investigation scenario due to which medical and forensic has played a major role in criminal justice system which results in a speedy or fair trial. It can also be concluded that “Science is not an encyclopaedic body of knowledge about the universe. Instead, it represents a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement.”

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