NATIONAL LAW INSTITUTE UNIVERSITY
BHOPAL
EVIDENCE LAW I
EIGHTH TRIMESTER
TOPIC: RELEVANCE OF DNA TEST REPORTS
SUBMITTED TO: SUBMITTED BY:
MS. SAUBHAGYA BHADKARIA RASHI RATNA BAKSH
ASST. PROFESSOR 2017B.A.LL.51
1
ACKNOWLEDGEMENT
Acknowledgements, as a part of the project are generally written as a formality but the
words following are to express my sincere gratitude towards my Evidence Law
professor Ms. Saubhagya Bhadkaria who allowed me to take a topic of my choice and
helped me in every aspect in the law school. This project helped me learn a lot.
Also I would like to thank the Prestigious Library of NLIU with the material of which
I was able to supplement this Project.
I would like to take out this moment lastly but certainly not the least to thank my
Parents and the almighty under whose blessings I concluded this Project. I
acknowledge the support of all the aforesaid.
Thank You
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TABLE OF CONTENTS
1. Introduction:
What is DNA?
Types of DNA testing procedures
What is DNA evidence ?
The value of DNA evidence
Uses of DNA testing
2. Admissibility of DNA evidence in India
DNA legislation in Indian context
Right to privacy
3. Court’s power
4. DNA evidence and the privilege against self -incrimination: Nemo Debet Proderese
Ipsum
5. Present legal conundrum around DNA profiling in India
6. Post conviction exculpation
7. Conclusion
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SYNOPSIS
Introduction
Genetic testing, also known as DNA testing, is used to identify changes in DNA sequence
or chromosome structure. Genetic testing can also include measuring the results of genetic
changes, such as RNA analysis as an output of gene expression, or through biochemical
analysis to measure specific protein output. There are various procedures for DNA testing ,
most common among which are PCR and RFLP testing. DNA is a powerful investigative tool
because, with the exception of identical twins, no two people have the same DNA. Therefore,
DNA evidence collected from a crime scene can be linked to a suspect or can eliminate a
suspect from suspicion. DNA tests are very useful in civil as well as criminal claims. They
can be used for various purposes such as parentage testing, to establish immigration
eligibility, and in genealogical and medical research.
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Introduction:
What is DNA?
DNA is deoxyribonucleic acid, which is a double stranded long molecule and appears like a
twisted rope ladder or double helix. DNA is essentially made up of amino acids and it is
matched with the so-called bases which provide the key to determining the genetic blueprint.
Each and every cell in the human body has a sample of the DNA. DNA can be extracted from
a wide range of sources, including samples of hair, cigarette butts, blood, razor clippings or
saliva. Thus it is relatively easy to obtain samples, which can then be tested in a laboratory to
determine any genetic relationships that may be present.1
Types of DNA testing procedures:
Although, there are numerous types of procedures adopted for forensic matching and
identification of an individual, there are two main types of such testing systems. They are
called Restriction Fragment Length Polymorphism, (RFLP) and Polymerase Chain Reaction
(PCR) testing.
With the development of newer and more efficient DNA analysis techniques, Now the RFLP2
has been replaced by the PCR based testing. It is basically an amplification technique.
What is DNA evidence?
DNA evidence is playing a larger role than ever before in criminal cases throughout the
country, both to convict the guilty and to exonerate those wrongly accused or convicted.
In DNA analysis for a criminal investigation, using highly sophisticated scientific equipment,
first a DNA molecule from the suspect is disassembled, and selected segments are isolated
and measured. Then the suspect's DNA profile is compared with one derived from a sample
of physical evidence to see whether the two match. If a conclusive non-match occurs, the
suspect may be eliminated from consideration. If a match occurs, a statistical analysis is
performed to determine the probability that the sample of physical evidence came from
1
Extract from DNA and parental issues
2
Yawer Qazalbash, DNA Evidence and its Admissibility, Modern Law House, edn. 2006, p 30
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another person with the same DNA profile as the suspect's. Juries use this statistical result in
determining whether a suspect is guilty or innocent.
The value of DNA evidence:
DNA is a powerful investigative tool because, with the exception of identical twins, no two
people have the same DNA. Therefore, DNA evidence collected from a crime scene can be
linked to a suspect or can eliminate a suspect from suspicion. During a sexual assault, for
example, biological evidence such as hair, skin cells, semen, or blood can be left on the
victim’s body or other parts of the crime scene. The effective use of DNA as evidence may
also require the collection and analysis of elimination samples to determine the exact source
of the DNA. Samples may be taken from anyone who had lawful access to the crime scene
and may have left biological material. When investigating a rape case, for example, it may be
necessary to obtain samples from everyone who had consensual intercourse with the victim
within 72 hours of the alleged assault to account for the entire DNA found on the victim or at
the crime scene. Comparing DNA profiles from the evidence with elimination samples may
help clarify the results.
Uses of DNA testing:
In criminal context such test can be required following sexual assaults, for example, to
identify the father of a child conceived as a result of an alleged assault. Similarly, this test can
be used to confirm that the two individuals are genetically related in cases involving
concealed births, abandoned children, child swapping or infanticide. DNA Test is very useful
in civil litigations involving claims by an estranged partner for financial support and
maintenance of a child. Even in cases with repeat offenders, police are able to store DNA
profiles and compare them with the samples of other unsolved crimes. Through this, many
previously labelled unsolved cases have also been dealt with through new ways of analysing
evidence.
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DNA evidence admissible in India:
There are lots of cases, mainly of paternity disputes, which are solved by the DNA analysis.
One such case is of Hyderabad (A.P.) India. The first paternity dispute case related to DNA
analysis, which was also performed at CCMB (A.P.), hit the whole Indian Judicial System
and media was presented before the C.J.M. The summary of the cases is that a village girl
Vilasini filed a case against his lover Kunhiraman for the maintenance of her child/son
Manoj. She alleged that her son was born to her on account of illicit relation between them.
The husband disowned her and he denied taking the paternity of her son. The C.J.M. ordered
both of them to undergo DNA test with their son at CCMB, Hyderabad (A.P.) India. Dr. Lalji
Singh, Forensic Scientist and his colleagues performed the DNA test, and by the analysis
result, it was proved that disputed was fathered by none other than Kunhiraman.
The C.J.M. said that according to Section 45 of Indian Evidence Act, in which expert opinion
is admissible, the DNA evidence is also a scientific examination and opinion of the expert in
the matter of Cellular and Molecular Biology is admissible just like opinion of a chemical
analyst or fingerprint expert. This verdict was also upheld by Kerala High Court stating that
the result of DNA test by itself could be deciding paternity.3
DNA legislation in context of India
The latest position in India is that there is no specific law on one subject of DNA evidence
but DNA testing has got legal validity in 1989. In India, Kunhiraman v. Manoj, was the first
paternity dispute which required the DNA evidence. The courts are taking DNA evidence as
an expert's opinion like forensic experts, ballistic expert, biological expert, chemical expert,
etc.4 The Government of India and Law Commission have also woken up and Indian
Parliamentary Affairs Board has set up an Advisory committee to give a comprehensive
report on all aspects of DNA testing. The Law Commission in its 185th report has also
recommended the inclusion on DNA testing in the Indian Evidence Act by amending its
section 112.
3
Dr. M.W. Pandit and Dr. Lalji Singh, DNA Testing, Evidence Act and Expert Witness, Indian Police Journal.
Oct.-Dec. 2000, p. 99
4
Witness, Indian Police Journal. Oct.-Dec. 2000, p. 99. 7 Mohd. Hasan Zaidi & Yashpal Singh, DNA Tests in
Criminal Investigation, Trial and Paternity Disputes, p. 36.
7
In majority of cases involving disputed paternity the petitioner faces financial difficulties or
sometimes he is not capable of spending money for the required or desired DNA test in order
to prove his claim. The Kerala Woman Commission assists such persons as it gets DNA test
conducted at Rajiv Gandhi Centre of Biotechnology, Thiruvanthupur at the cost of
Commission.5
The 185th Report of the Law Commission of India states that law of evidence is likely to
undergo radical changes with standardization of new technologies.
The modern technologies of genetics and reproduction are solving many complicated
questions of fact. The DNA testing is such a revolutionary step in the related field. Law is
primarily concerned with the human behaviour and its study.6
Parliament of India had passed the Code of Criminal Procedure (Amendment) Act, 2005,
which is assented by President of India on 23rd June, 2005 as Act No. 25 of 2005. According
to which if a person threatens another with any injury to his reputation, body or property with
intent to cause that person to give false evidence shall be punished with imprisonment of
either description for a term which may extend to seven years, or with fine, or with both.
Right to privacy
In Indian Context, it is important to note that India is a signatory to International Covenant on
Civil and Political Rights, 1966, and right to privacy is derived from Article 21 of the
Constitution and from Directive Principles of State Policy and it was held in People's Union
for Civil Liberties v. Union of India,7 that right to privacy enshrined in Article 21 cannot be
curtailed except according to procedure established by law.
The court relied upon the decision of the Supreme Court in the case of Goutam Kundu v.
State of West Bengal and held that the court has power to direct blood examination but that
no body can be compelled to give blood sample.
It was held that the court can give a direction but can not compel giving of blood sample. The
findings in this regard are :
5
Source: Govt. of Kerala official website (www.Kerala.govt.)
6
Law Commission of India, 185th Report, 2004 Cr. L.J. 143, Journal Section
7
A.I.R. 1997 SC 568 (575): MANU/SC/0149/1997: (1997) 1 SCC 301; Article 12 of Universal Declaration of
Human Right, 1948
8
..."There must be some strong prima facie case to be established by the husband to show non-
access in order to get over the legal presumption under Section 112 of the Evidence Act and
Supreme Court has also observed that nobody can be compelled to give blood sample.
Therefore, the position is that the Court has power to give a direction to a party to give blood
sample for the purpose of examination of the same but the party cannot be compelled to give
blood for testing purpose.8
Similarly in Kharak Singh v. State of Uttar Pradesh9, the majority judgment observed thus:
The right of privacy is not a guaranteed right under our Constitution and, therefore, the
attempt to ascertain the movements of an individual which is merely a manner in which
privacy is invaded is not an infringement of fundamental right guaranteed under Part III.
In Govind v. State of Madhya Pradesh10, it was held: Assuming that the fundamental rights
explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a
fundamental right that fundamental right must be subject to restriction on the basis of
compelling public interest.
The right to privacy will necessarily have to go through a process of a case by case
development. Therefore, even assuming that the right to personal liberty, the right to move
freely throughout the territory of India and the freedom of speech create an independent. right
of privacy as an emanation from them which one can characterize as a fundamental right, we
do not think the right is absolute.
Courts' powers:
Ordinarily, the Court have quite enough power to direct the parties to undergo medical test,
or give sample of blood for DNA test. But, in a case Honb'le Supreme Court has held that In
8
https://indiankanoon.org/doc/133578/?type=print
9
A.I.R. 1963 S.C. 1295: 1963 (2) Cr. L.J. 329 (¶ 20)
10
A.I.R. 1975 S.C. 1378: 1975 Cr. L.J. 1111
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Sharda v. Dharam Pal, the question for consideration was whether a party to the divorce
proceeding can be compelled to a medical examination in this regard. The Apex Court held
that :
A matrimonial court has the power to order a person to undergo medical test. Passing of such
an order by the Court would not be in violation of the right to personal Liberty under Article
21 of the Constitution of India. However, the Court should exercise such a power if the
appellant has a strong prima facie case and if 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.11
In Amarjit Kaur v. Har Bhajan Singh - the court observed that section 112 of the Evidence
Act was enacted at a time when the (DNA) as well as (RNA) tests were not performed.
Under section 112 of the Act for example if a husband and wife were 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 irrefutable.12
In State of Uttar Pradesh v. Amaramani Tripathi 13DNA fingerprinting also ensured that
former Uttar Pradesh Minister Amarmani Tripathi was sentenced to life for the murder of
Madhumita Shukla. The poetess was six months pregnant when she was found dead in
Lucknow. The CBI preserved the foetus and sent a sample for DNA testing. The investigation
agency has relied upon DNA test reports as evidence to adduce paternity.
K. Venkataraman, J. Veeran v. Veeravarmalle 14 is a suit by child for declaration that she is
legitimate child born to her parents i.e., Petitioner and second respondent her mother. The
Court directed father to undergo DNA test. It cannot be said to be affecting his fundamental
right and is not violative of his right to personal liberty enshrined under Art.21 of
Constitution. Mother having remained ex parte. There is no question of compelling her to
undergo DNA test arises. DNA Test performed on petitioner father alone will prove that
petitioner is father without any test conducted on mother.
11
Sharda v. Dharampal, A.I.R. 2003 S.C. 3450
12
(2003) 10 S.C.C. 228: 2003 (2) A.I.C. 427 (S.C.).
13
A.I.R. 2005 S.C. 3490
14
A.I.R. 2009 Mad. 64.
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DNA evidence and the privilege against self-incrimination : Nemo Debet
Proderese Ipsum
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 question that
now comes to mind are 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 15, 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 Oghad16 .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.
Present legal conundrum around DNA profiling in India:
15
(1993) 3 S.C.C. 418. 24 A.I.R. 1961 S.C. 1808
16
A.I.R. 1961 S.C. 1808.
11
In India, the legal position of DNA fingerprinting has mostly remained dicey, surviving
among two opposite poles of attaining the truth or respecting individual privacy. Section 9 of
the Indian evidence Act, 1872 act deals with 'facts necessary to explain or introduce a fact in
issue or relevant fact'. Further, if the evidence of an expert is relevant under section 45, the
ground on which such opinion is derived is also relevant under section 51. Section 46 deals
with facts bearing upon opinions of experts. The opinion of an expert based on the DNA
profiling is also relevant on the same analogy. However, the question that is actually
perplexing is that whether a DNA analysis can be legitimately directed or not. In special
cases, such as Rape, the Cr.PC vide Section 53-A has provided that an accused of rape can be
examined by a medical practitioner, which may include the collection of bodily substances
from the accused for DNA fingerprinting.
Post-conviction exculpation:
Through the use of DNA evidence, prosecutors are often able to conclusively establish the
guilt of a defendant. At the same time, DNA aids the search for truth by exonerating the
innocent. The advent of DNA testing raises the question of whether a different balance
should be struck regarding the right to post-conviction relief.
A convicted individual's continued assertion of innocence is not new to the criminal justice
hsystem and in fact is familiar to appeal courts. The use of DNA technology may bring to
courtroom proceedings a degree of certitude to which neither the defence nor the prosecution
is accustomed. Typically, in an appeal, the possibility that the original verdict will be
overturned is merely suggested. By contrast, the introduction of DNA evidence after
conviction may definitively prove innocence.
Conclusion:
DNA test is a strong boon in criminal administration of justice, but in civil cases the socio
economic condition and the peculiarity in our country declare this test against of human
dignity especially of child and woman. But the inherent power of courts in civil matters
12
Sec.151 C.P.C. 1908 should prevail for the sake of justice, truth, and dignity of innocent
person and transparency of judicial administration. So DNA technology can be used in the
matters of human dignity, human right & human relationship.
The justice administration system needs to assimilate the scientific advancements of genetic
profiling and develop procedural techniques for harnessing the emerging juridical challenges.
The significant paradigms of DNA testing cannot be left alone to the courts to adjudicate with
temporary tailor made solutions. Therefore in matters of disputed paternity, the legitimacy or
illegitimacy of the child cannot be determined solely by Section 112 of the Indian Evidence
Act, 1872. DNA technology can conclusively establish the truth in such disputes and
therefore should be resorted to without any hesitation. It is to be borne in mind that when
Section 112 was being drafted even the discovery of DNA was not contemplated and
therefore this section should be amended. An ideal solution could be to provide another outlet
apart from the proof of non-access (as discussed earlier) to be provided in the form of
evidence of DNA test to rebut the conclusive proof provision in Section 112.17
17
In Sadashiv Mallikarjun Kheradkar v. Nandini Sadashiv Khedarkar, 1995 Cri. L.J. 4090 at 4093 (Bom.), the
Court lamented the absurdity of having only proof of non-access when DNA evidence decide the matter in a
more scientific manner.
Published
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