Whether DNA fingerprint is unconstitutional or against self incrimination is well answered by the court in the case of State of Bombay v. Kathi Kallu Oghad verdict. The ratio decidendi of this case states that providing evidence cannot be considered as witness against himself. Hence it does not transgress Article 20(3) of the constitution.
The Noida double murder case or the Arushi Talwaar murder case highlights the need to regulate the collection of evidence. The CBFD suggested that vaginal swabs of the deceased were substituted unidentified source which further helped the CBI to draw the conclusion of sexual assault but the agency failed to establish the conspiracy charge due tampering of evidence.
The forensic report also played a major role in Sunanda Pushkar death case where relying on the forensic psychological autopsy report the investigating agency decaled that the deceased died from suicide and further suspected her husband Shashi Tharoor for abetment of suicide.
The Law Commission in its 185th report accentuated the need to include DNA testing mechanism through amendment of section 112 of Indian Evidence Act. The law commission emphasized the urgency to amend the said Act and include certain provisions with advancement in new technologies. Law is concerned with human behavior and the new technologies are able to understand human behavior. The contemporary and upcoming changes in the field of genetic and reproduction are capable of answering innumerable complex questions of facts through new techniques and continuous research. The Indian Parliament via the Code of Criminal Procedure (Amendment) Act 2005 added certain provisions through illustration in section 53(2) which permits the investigating officer to ask the medical practitioners to examine the accused by collecting samples of blood, semen, saliva etc.
From the above research we can summarize that only the court has the discretion to accept the report furnished by the forensic team. Here we can refer to the case of Krishan Chand v. Sita Ram. In this case the expert’s opinions were contradictory. It was upheld that the Court is capable of configuring its own conviction as per the certainty and circumstance of the case. The Indian Evidence Act does not endow any specific legislation regarding corroboration of expert opinion but from evaluating the various verdicts of the court it can be inferred that courts solely do not incline on expert evidence unless it is sustained by any other evidence.
DNA technique is a powerful tool for the regulation and dispensation of the criminal justice system but the socio-economic structure of this country considers the technique immoral for the purpose of civil litigation. The intrinsic authority of the Court under section 151 of Civil Procedure Code should be exercised extensively in order to maintain fairness and transparency in the justice system.
Therefore, DNA techniques should be considered as an indispensable part of Indian legislature. To make it the part of Indian judiciary, the legislature should pass the DNA Profiling Bill, 2007 which elucidates all the issues regarding standard, quality, members, function, laboratory functions etc. The Bill also emphasises on the need of establishment of DNA data Bank for the investigation of criminal cases but it fails to maintain the dignity and privacy of the individual.
This piece of legislation can be effective if the legislature passes this with the required amendment in order to speedy disposal of pending cases. The justice system of our country is required to comprehend the new techniques to combat the challenge which hinders the fairness in the justice system. So section 112 of the Indian Evidence Act cannot solely determine the paternity of a child. With the advancement of technology there is a need to amend section 112 for conclusive establishment of the accurate truth.
With the advancement of new technologies the criminals have adopted the new and advanced method for committing the crime and concealing evidence. As it is a well said phrase that a criminal always leaves some or the other source of evidence at the crime scene in well executed and concealed crimes. Thus, it is the need of the hour for the legislature to enact an unambiguous legislation meticulously pertaining to the use of new techniques for the facile investigation and trial procedure.
The medical expert should be animated to carry out medico legal work. It has been observed that the forensic & medical experts have played a significant role by providing assistance to the court for logical conclusion in order to resolve various complicated cases. To dispose of the pending cases, mainly the criminal matters, the judiciary needs the assistance of experts from various fields. The number of expert participation can only be increased by remitting their apprehension and establishing different specialized branches of forensic science in the territory.
Dr. Justice V.S.Malimath Committee in its report recommended reforming the criminal justice system in order to incorporate the usage of forensic science in investigation whereas the Malimath Committee report suggested including the DNA expert in the expert list of Crpc under section 293(4). This committee also proposed to set up DNA database at national level to resist terrorism and establish fully equipped laboratories to manoeuvre the samples and evidences. Lastly, it accentuated the necessity to enact laws for the guidance of investigating officers and agencies and frame standard and consistent regulation to secure genetic particulars in order to protect and avert its misuse.
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