Forensic DNA has emerged as the world’s greatest crime fighting technology. Many countries are effectively using forensic labs and protocols to collect, test and compare DNA at crime scenes with that of suspects with promising results.

While the law machinery the world over is increasingly relying on DNA forensics to solve crime, India is way behind in its adoption. Lack of scientific methods in investigations and absence of a proper policy framework in the country are hampering justice. The Law Commission of India, in a 2012 report, mentioned that “lack of expertise, lack of sustained effort and non-utilisation of scientific methods in investigations is resulting in low rate of convictions”.

Even as crime remains on the upsurge in India, the conviction rate in rape and sexual assault cases has fallen from nearly 50% in 2012 to less than 30% in 2015 in Delhi alone. More than 1.4 lakh rape cases still stand pending in courts nationwide.

Most criminal cases just fall through because of shoddy investigation or the inability of the prosecution to prove the involvement of the accused. Many times, the officers who investigate the crime scenes are not competent enough to ensure proper collection of crucial forensic evidence, which could be instrumental in building the prosecution’s case. The situation is worse in rural areas, where investigating officers either don’t understand the importance of collecting forensic materials or are not aware of the procedures for the same.

Policy

The Law Commission, in its 271st report on Human DNA Profiling, has proposed the following recommendations after taking into consideration the various aspects of DNA profiling and the absence of an appropriate regulatory mechanism for the use, retention and expunction of body substances, DNA samples and DNA profiles.

(a) DNA profiling board: A statutory body should be constituted, which would undertake functions such as laying down procedures and standards to establish DNA laboratories and granting accreditation to such laboratories; and advising the concerned ministries /departments of the central and state governments on issues relating to DNA laboratories. The board shall also be responsible for supervising, monitoring, inspecting and assessing the laboratories. The board will frame guidelines for training of the police and other investigating agencies dealing with DNA related matters. Advising on all ethical and human rights issues relating to DNA testing in consonance with international guidelines will be another function of the board. It will recommend research and development activities in DNA testing and related issues.

(b) DNA profiling would be undertaken exclusively for identification of a person and would not be used to extract any other information.

(c) DNA data bank: A national DNA data bank and regional data banks for the states shall be established by the central government. The banks will be responsible for storing DNA profiles received from the accredited laboratories and maintaining certain indices for various categories, like crime scene index, suspects’ index, offenders’ index, missing persons’ index and unknown deceased persons’ index.

(d) With a view to assist the kith and kin of missing persons, provisions have been made for proper identification of missing persons on the basis of their bodily samples/substances.

(e) Appropriate regulations may be notified by the board for entry, retention and expunction of DNA profiles.

(f) Maintenance of strict confidentiality about keeping of records of DNA profiles and their use.

(g) Sharing of DNA profiles with and by foreign government and agencies.

(h) The violators of the provisions would be liable for punishment of imprisonment, which may extend up to three years along with a fine which may extend up to Rs 2 lakh.

(i) The undertrial may request the trial court for another DNA testing if s/he satisfies the court that the previous DNA sample(s)/bodily substance(s) stood contaminated and hence could not be relied upon.

(j) The DNA experts may be specified as government scientific experts and be notified as such under clause (g) of sub-section (4) of section 293 of Code of Criminal Procedure (CrPC).

Regulatory framework

There is no specific provision under the Indian Evidence Act, 1872 and Code of Criminal Procedure, 1973 for the management of science, technology and forensic issues. As a result, investigating officers face trouble in collecting evidence which involve any modern mechanism.

Section 53 of Code of Criminal Procedure 1973 authorises a police officer to get the assistance of a medical practitioner in good faith for the purpose of the investigation. But, it doesn’t enable a complainant to collect blood, semen, etc. for bringing the criminal charges against the accused. Section 53A was added vide the Code of Criminal Procedure (Amendment) Act, 2005 with effect from June 23, 2006, providing that an accused of rape can be examined by a medical practitioner, which will include taking of bodily substances from the accused for DNA profiling.

Section 9 of the Indian Evidence Act, 1872 deals with “facts necessary to explain or introduce a fact in issue or relevant fact”. 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.

Criminal justice

For 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 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.

For instance, in a case of murder where the assailants are unknown and there is no direct evidence such as eyewitness account, collection of DNA evidence from the crime spot and the body of the victim would be not only desirable but an imperative. Similarly, in a case of rape where the victim is unable to identify the accused due to darkness or having been blindfolded etc., collection of DNA evidence would be an imperative.

If as and when the suspects are identified, their DNA when matched with the DNA from the crime spot and the victim would establish their presence at the scene of crime. On the other hand, if the DNA does not match, it would be a fit case for removal of suspicion from the head of the suspect. Hence, collection of DNA evidence is equally important from the perspective of the prosecution and the accused.

Legal

Perspective on admissibility of DNA in Indian courts and its use as evidence in criminal investigations has grown in recent times in Indian legal system. DNA testing has helped law enforcement identify criminals and solve difficult crimes. On the other hand, DNA supported evidence has helped prove the innocence of many wrongly convicted citizens.

DNA forensics is the most powerful among the many new tools that science provides today. DNA analysis, also called DNA typing or DNA profiling, examines DNA found in physical evidence such as blood, hair, and semen, and determines whether it can be matched to DNA taken from specific individuals. DNA analysis has become a common form of evidence in criminal trials.
It is also used in civil litigation, particularly in cases involving the determination of paternity of identity.

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 is reliable. There is no specific legislation in India yet that 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, in rape cases, some provisions allow medical examination of the accused and the victim by a medical practitioner. However, the admissibility of these evidences has remained in a state of doubt as the opinion of the supreme court and various high courts in various decisions remained conflicting. Judges do not deny the scientific accuracy and conclusiveness of DNA testing, but in some cases, they do not admit these evidences on the ground of legal or constitutional interpretations.

Many developed countries have been forced to change their legislation after the introduction of the DNA testing in the legal system.

Limitations of DNA tech

DNA evidence is sufficiently conclusive to solve crime as only monozygotic twins share the same DNA profile. Different tissues; teeth, bones, blood (a drop is enough), spit, semen-detected on cloth using specific staining procedures, skin cells sloughed off with sweat, yield the same DNA profile if they are from the same individual. Therefore, outside of identical twins, no two people have the same DNA pattern. Also, forensic scientists typically compare at least 13 markers from the DNA in two samples. In a test with 13 markers, the probability that any two individuals would have identical profiles is estimated to be below 1 in 10 billion. Consequently, when specimens are collected properly and the procedure is performed correctly, DNA profiling is an extremely accurate way to compare a suspect’s DNA with crime scene specimens.

Privacy safeguards

The introduction of the DNA technology is being perceived to pose serious challenge to some legal and functional rights of an individual such as ‘Right to Privacy’ and ‘Right against Self-incrimination’. And this is the most important reason why courts sometimes are reluctant in accepting the evidence based on DNA technology. Right to Privacy has been included under Right to Life and Personal Liberty or Article 21of the Indian constitution. Article 20(3) provides for the Right against Self-Incrimination which protects an accused person in criminal cases from providing evidence against himself or evidence which can make him guilty.

Summing up

Over the years, Indian law enforcement agencies have been permitted, through evolving legislation and court rulings, to collect material containing DNA as a way of providing additional evidence for conviction of criminals in India. Despite that there is not enough collection of forensic DNA.

Victim groups in India, especially those focused on protecting women and children from violent crime, should ask “Where’s the DNA?” in every such case.

A more aggressive DNA ‘Collect, Test & Compare’ approach in India on the back of appropriate policy framework and forensic infrastructure would lead to faster convictions and disposal of cases by courts. This would not only result in the guilty being brought to justice but also the innocent being exonerated and in turn creation of safer communities.

Schellberg is president, Gordon Thomas Honeywell Governmental Affairs. Views expressed are personal.

(The article appears in the December 15, 2017 issue)