Introduction: Crime has been a part of human society from the time immemorial. The need of laws and various kinds of legislation was felt when crime started threatening the very existence of the human society. The laws and legislation of various kinds are therefore weapons of human society to fight against the evil named crime.
Crime is both a social as well as an economic phenomenon, which distresses the whole human society. With the growth and development of society the nature of the crime has been also changing and diversifying. Today, guardians of law heavily depend of various technologies and advancement of science to help them in their fight against crime. There has been various advancement in forensic science that has specially been welcomed in criminal investigation. Some of such advancements are discussed below in brief while efforts have been done to study DNA profiling in details. However, any discripencies that may have crept in are regretted.
Polygraph or lie detector test:
The first attempt to develop a scientific instrument to detect truth or deception was made as early as 1895 by Lombroso. It was basically designed to record blood pressure and changes in pulse rate. Later Larsen and Keeler designed instrument which was further developed by John Reid in 1947.
The principle behind the mechanism of this instrument is that, a change takes place in a person who consciously holds his feelings, which manifest into change in blood pressure, respiration or electro dermal response.
Such test is conducted on the basis of assumption that there is an interaction between mind and body and is conducted by various components or the sensors of the polygraph machine, which are attached to the body of the suspected persons body that is being interrogated. The machine records details like blood pressure, pulse rate, respiration and muscle movement etc. This test is conducted at three stage namely pretest interview, chart recording and diagnosis. The examiner prepares a set of question depending upon the relevant information about the case provided by the investigating operators such as the charges against the person and statements made by the suspects. The reaction of the suspect in regard to the questions are recorded and measured. A baseline is created by examiner by asking few question answer of which is already known to him. Lying is accompanied by behavioral and psychological changes, which the graph exposes. Derivation from the base line is taken as a sign of lie. All such evidence is then corroborated with the other evidence gathered.
Keeler further refined the polygraph machine by adding psycho-galvanometer, which would record electrical resistance of the skin.
Brain mapping or P300 test:
This test is developed and patented in the year 1995 by a neurologist Dr. Lawrence A. Farwell, Director and Chief scientist of ‘Brain Wave Science’ IWOA. This method, which is also otherwise known as ‘Brain wave finger printing’. In this process the suspect is first interviewed and interrogated to find out whether he is concealing any vital information. Then sensors are attached to the head and the person is made to sit in front of a computer monitor. He is then shown and made to hear certain images and voice. The sensor attached to head monitors and records electrical activity and P300 waves in the brain, which is generated only if subject has connection with stimulus. The subject is not asked any question. To put it simply, it simply means that brain finger printing matches information stored in the brain with that of the related to crime and crime scene. In case of an innocent person no such P300 waves would get registered during the test.
The Forensic Science laboratory of India, situated in Banglore is the first one to use this technique in India.
Expert evidence in a criminal trial would be just a fraction of the totality of the evidence on the appreciation of which the judge or jury takes decision. The Court takes into account all the other evidence at hand along with the opinion of the scientific expert, which is just one piece of evidence required to be taken into consideration and appreciated for its evidentiary value. Even after the validity of the technique of brain fingerprinting satisfies Daubert's criteria, its application as a forensic tool in individual cases will depend upon the authenticity of the probes and other factors. The test would not be applicable in a case in which two suspects in an investigation were both present at a crime, but one was a witness and the other a perpetrator. The technique can only detect information from their memory that would place both at the scene of the crime and it cannot determine what their roles were, thereby creating a distinct possibility of an innocent eye-witness becoming a suspect of the crime and giving a dubious opportunity to the real culprit to create a situation of doubt. Furthermore, the technique would not be definitive in a case in which investigators do not know sufficient information about a crime to be able to test a suspect for crime-relevant information stored in the brain. The brain-fingerprinting test detects the presence or absence of information and not guilt or innocence per se. In some cases, a person may possess virtually all the available information about a crime, even though he is not a perpetrator. In such cases, possessing crime relevant information will not identify that individual as the perpetrator and the test cannot be applied to solve the case. A Primer for Tiers of Science,” has proposed a five-step framework for a sound analysis of scientific evidence to meet the requirements of intellectual due process in making admissibility determinations. The heuristics proposed consists of five basic parts and emphasizes the underlying principles common to all fields of science. It is suggested by the author that the judges and the lawyers who assist them about their cases, must be able to do five things: (i) Identify and examine the proffered theory and hypothesis for their power to explain the data; (ii) Examine the data that supports (and undermines) the expert's theory; (iii) Use supportable assumptions to fill the inevitable gaps between data and theory; (iv) Examine the methodology; and (v) Engage in probabilistic assessment of the link between the data and the hypothesis.
Narcoanalysis test:
History: Earlier in the 20th Century the physicians started to use scopolamine along with morphine and chloroform, to induce a state called ‘twilight sleep’ during childbirth as these had effect of sedative. However, scopolamine was also known to create a state of disorientation, confusion and amnesia during the period of intoxication.
In 1922, it occurred to Robert House, a Texas based Obstetrician that a similar technique may be used to interrogate the suspects in criminal investigation. He accordingly arranged for two suspected prisoners under trial to be investigated under the effect of scopolamine whose guilt seemed to be clearly confirmed. Upon such investigation both the person denied such charges and, both upon trial were found not to be guilty. Thus this led Robert House to conclude that a person under the effect of scopolamine cannot lie, as there is no reason or power to think. His idea and experiment gained a lot of limelight and attention and thus led introduction of narco analysis in criminal investigation.
What is narco-analysis test?
Narcoanlysis tests which are also known as ‘truth serum test’ are used to analysis the behavior of the suspect as well as for the purpose of corroborating the investigating officers findings.
It has been proved by scientific experimentation that if a person is administered with such drugs which may suppress his reasoning or power to think, he may be made to tell the truth. As discussed earlier certain drugs have tendency of creating a state called ‘twilight sleep’. Such drugs are being used in India in various kind of investigation. The Term Narcoanalysis was first introduced in India in the year 1936 for the use of narcotics in the investigation to induce a trance like state wherein a person may be subjected to various queries. The aim behind such administration of drug was that the person under the influence of such drug, being deprived of power of reasoning and self-control would talk freely and will not be able to manipulate any answer. The underlying theory is that a person can lie only by using his power of imagination thus, when devoid of such power, a person is bound to speak truth.
In Narcoanalysis test the subject’s reasoning is neutralized and affected by making him semi-conscious. He may not be able to speak on his own but he is in state to make specific answers to simple questions.
Truth serums are nothing but clinically used drugs. A few to be name can be hysocine, Sodium Amytal, Seconal etc. Most commonly used drug for the purpose is Sodium Pentothal, which is administered intravenously and has a tendency to make a person garrulous and confessional. The dosage of the drug to be administered is calculated in ration to the age, weight of the person on whom it is to be administered. A wrong or over dosage may result in sending the person in comatic stage or worse may also result in death. The investigation done under such circumstances are recorded both in audio and videocassettes. This procedure is conducted in governmental hospitals after obtaining due permission of the court. Personal consent of the subject is also required.
Recently police officials of various countries including that of India are using Narcoanalysis test for extracting confession of the accused. In India, drugs have gained only marginal acceptance in investigation and often provokes the cry of ‘psychological third degree’.
Such a test was unheard in India until recent past. It was first used in 2002 in Godhra carnage probe. It was also in news after Arun Bhatt kidnapping case where the accused had appealed to NHRC and Supreme Court against the use of Narcoanalysis test. It was also in News when it was used in Telgi case whereupon Karim Telgi was subjected to the test in 2003 in a governmental hospital in Banglore.
Police believes in narcoanalysis test as a scientific device aiding the process of investigation, which is not only helpful in solving pending criminal, cases but also helps in crime prevention. Narcoanyalisis being a scientific approach is preferred over traditional third degree method. But on the other hand questions are raised against authenticity of evidence collected through such procedure of investigation. Its application is also questioned as it suffers from various drawbacks such as:
The person conducting the test has to highly qualified physician.
It is very essential to apply correct measure of dose as overdose may turn out to be of fatal consequence which may even result in death of the suspect.
The test can fail if the suspect is an abuser or regular user of certain kind of narcotic substances.
Narcoanalysis and legal aspects:
The main provision relating to trial and investigation of a case of criminal nature is Art.20 (3) of Indian Constitution. It talks about privilege against self-incrimination. Almost in every society this concept has been accepted in some or other form.
In USA, the fifth amendment of the US Constitution provides that, “No person shall be compelled to be a witness in any criminal case against himself.”
Whereas in Britain, it is fundamental principle of common law that a person accused of an offence shall not be compelled to give any evidence or documents, which can incriminate him.
In India, privilege against self-incrimination is recognized as a cannon of common law. The features of this principal are as followed:
The accused is presumed to be innocent unless proved guilty beyond reasonable doubt.
The burden of proof is on accusation to prove the guilt of the accused.
The accused is not required to make any self-incriminating statement.
All these features stem from the apprehension that if such privilege is not provided than the accused may be tortured so as to entrap him into fatal contradiction. This feature protects accused against any such situation and aims at ensuring standard of criminal investigation.
Art.20 (3) reads as, “No person accused of an offence shall be compelled to be a witness against himself.”
This statement has two elements, which are,
· The person should be accused of an offence
· The protection should be against the compulsion of being an witness against himself.
If these ingredients are missing than Art. 20(3) cannot be invoked.
Apart from that narcoanalysis test also involves fundamental question related to aspect of Human rights, as will as certain legal concepts. Some of the aspects around which questions are raised are encroachment of individuals right, liberty and freedom. Moreover some jurists have considered such investigation as blatant violation of Art. 20(3) of the Constitution of India.
Section 45 of Indian Evidence Act, 1872 talks about expert opinion but however remains silent on other aspects of forensic evidence in a criminal proceeding.
Further right to silence is provided in Code of criminal procedure, which is also providing right against confession of self-incriminating nature.
DNA Profiling:
One of the latest growing and most reliable mode of investigation in forensic science is that of DNA profiling. DNA is the abbreviation of the term, “ Deoxyribo 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.
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 famous endbury case wherein two girls were raped and murdered.
Since then scientists such as, RFLP have developed various techniques and later another technique was developed which is known as PCR.
PCR had advantages over RFLP as it takes lesser number of samples and replicates them in manifolds. It is quicker and cost effective. It also enabled to analyze highly degraded samples and therefore it is the most widely followed method of DNA profiling.
DNA test are highly effective because every persons DNA is unique except twins. The probability of DNA being same is one in three billion. And it is credible because it cannot be tempered with.
DNA test can be used in various cases such as to establish parentage of a child, identify mutilated dead bodies etc.
Paternity:
The raison d’etre under the Indian Evidence Act, 1872, is against the illegitimisation of a child and the public policy is that no child should suffer due to lapses on part of their parents. It is well established that when certain fact is considered as conclusive proof of another fact, the judiciary generally disables the party in disrupting such proof. The only exception occurs when the party is able to show that there was no access to the other party when the conception could have taken place. Whenever paternity is contested, the burden of proof is on the party pleading negative.
In the case of Gautam Kundu v West Bengal the apex court has laid down certain guidelines regarding DNA test and their admissibility in the parentage case.
The courts in India cannot order blood test as a matter of course.
Whenever application is made for such prayer in order to have roving enquiry, the prayer of blood test cannot be entertained.
There must be strong prima facie case in which the husband must have establish non-access in order to dispel the presumption arising under section 112 of Indian Evidence Act, 1872,
The court should carefully examine as to what would be the consequence of ordering the blood test.
No one can be compelled to give blood sample for analysis.
In case of Kanti Devi v Poshi Ram, The Supreme Court held that even a DNA test that indicated that the person is not the father of the child would not be enough to rebut the conclusiveness of marriage as proof of legitimacy of child.
Section 125 of the Code of Criminal Procedure code, 1973 laid down that the natural and fundamental duty of man is to maintain his legally wedded wife, children and parents so long as they are unable to maintain themselves.
DNA and Criminal Justice system:
21st century started altogether on a wrong note. The 11September attack left none in any doubt about the capacity and capability of the criminals of this era. Hence an urgent need for modification of the crime investigation process and tools were felt. The development of DNA was a welcome and it became more and more reliable instrument for the person. Unlike civil paternity case, Indian courts have accepted the role of DNA in criminal paternity case. In Rajiv Gandhi Case, the DNA samples of alleged assassin Dhanu were compared with her relatives, which gave conclusive proof about her being involved in the gruesome attack. Similarly in Tandoor murder case, the DNA samples of the victim Naina Sahni were compared with that of her parents to establish her identity.
Though no specific legislation has been laid down in India in relation to DNA, section 53, and 54 provides for DNA test impliedly and are being used extensively in solving criminal cases.
Section 53 talks about, examination of the accused by the medical practitioner, at the request of the police officer, if there are reasonable grounds to believe that an examination of his person will afford an evidence as to commission of the offence. In Neeraj Verma v State of UP the High Court observed that the police power to take samples of blood, etc. could be exercised by the magistrate and is not violative of article 20(3) of the constitution.
Section 54 provides for examination of the arrested person at his request. The Law Commission at its 37th report has stated that to facilitate effective investigation, provisions are made authorizing examination of the arrested person by a medical practitioner if such an examination can provide evidence about circumstances under which alleged offence was being committed.
In order to fight terrorism, POTA was enacted and section 27(1) of the Act states that, “ when an investigation officer requests the court of CJM or the court of CMM, in writing for obtaining samples of blood, hand writing, finger print, etc. it shall be lawful for the court of CJM to direct such samples to be handed over by accused person to the police officer through the medical practitioner or as the case may be.
In the light of recent developments in the forensic science, the committee constituted under Dr. Justice V.S Malimath suggested certain reform in criminal justice system. This committee suggested comprehensive use of forensic science in the criminal justice system. According to committee, DNA expert should be included in the list of experts given in the section 293(4) of Cr.P.C.
Malimath Commission report also suggested amendment to the section 4 of the Identification of Prisoners Act, 1920 on the lines of Sec 27 of POTA 2002.
Suggestions of the report can be capsulated in the given below form:
Section 313 of the Cr.P.C must also be amended so as to draw adverse inference if he fails to answer any relevant material question therefore making it easy for enforcer of law to use DNA test against him.
A specific law should be enacted giving guidelines to the police setting uniform standard for obtaining genetic information and to prevent misuse of the same.
A National Database of DNA should be built to fight the problem of terrorism.
The laboratories should be upgraded to make them more useful in the fight against crime by making them more suitable to handle DNA samples.
Conclusion:
Every coin has two sides. Every technology or knowledge created can be used of misused by the user. But that cannot be used as a ground to reject development of the knowledge.
Scientific evidence is an inescapable facet of modern litigation. The faulty analysis of scientific evidence would deprive litigants of intellectual due process from judges and undercut the proper functioning and credibility of the judicial system. In USA, more than 140 people convicted of murder were exonerated using DNA test. Isn’t it sufficient to prove the development very useful? The criminal justice system is supposed to be based on just and equitable principles. The task of the Court is to industriously understand the scientific evidence and assess its value, without being affected by commercial publicity given to the scientific inventions patented for use of science as commerce.
We will therefore have to accept and upgrade our criminal justice system so as to leave no stone unturned to save a innocent person and to affirm that a criminal does not get away at the cost of innocent life. Our justice system says let 100 guilty get away but let not one innocent suffer. Its high time that we develop our system to the level that none of the criminal get away without being punished for their crime because when they are able to do so their victims are being denied justice and that frustrates the whole system. Lets hope all these developments of forensic science would be a sufficient tool in the hands of the people fighting crime so as to arm them against it and make the system work to establish more and more just and safe place for people live in peace and prosperity.
Feeling "BLUE"....