i

Evidence Law Project

on
Evidentiary Value of DNA in India
Submitted to

Ms. Neha Sinha

Faculty, Evidence Law

Submitted by

Abhinav Surollia

Semester VII

Section C

Roll No. 07

(B.A. L.L.B.)

Submitted on

August 16, 2016

HIDAYATULLAH NATIONAL LAW UNIVERSITY,

RAIPUR (C.G.)
 ii

Declaration
I, Abhinav Surollia, of Semester VII, Section C, declare that this project submitted to H.N.L.U.,
Raipur is an original work done by me under the able guidance of Ms. Neha Sinha, Faculty of
Evidence Law. The work is a bona fide creation done by me. Due references in terms of
footnotes have been given wherever necessary.

Abhinav Surollia

Roll No. 07

Section C, Semester VII

 iii

Acknowledgements
I feel highly elated to work on the project “Evidentiary Value of DNA in India”. The practical
realisation of the project has obligated the assistance of many persons. Firstly I express my
deepest gratitude towards Ms. Neha Sinha, Faculty of Evidence Law, to provide me with the
opportunity to work on this project. Her able guidance and supervision were of extreme help in
understanding and carrying out the nuances of this project.

I would also like to thank The University and the Vice Chancellor for providing extensive
database resources in the library and for the internet facilities provided by the University.

Some printing errors might have crept in which are deeply regretted. I would be grateful to
receive comments and suggestions to further improve this project.

Abhinav Surollia

Roll No. 07

Section C, Semester VII

 iv

Contents

1. Declaration ii
2. Acknowledgements iii
3. Introduction 1
4. Research Methodology 3
4.1 Objectives 3
4.2 Methodology 3
4.3 Questions 3
4.4 Hypothesis 3
4.5 Mode of Citation 4
4.6 Chapterisation 4
4.7 Scope of the Study 4
5. List of Cases 5
6. DNA test as Evidence 6
7. Need for a Specific DNA Legislation in India 12
8. Conclusion 18
9. Bibliography 19
 1

Introduction
The Deoxyribonucleic Acid (DNA) technology is a powerful set of technique that allows
scientists to examine genetic material, which can be useful to enforcement agencies in
identifying perpetrators when crimes are committed, as all individuals have unique patterns in
their DNA. In several developed countries, DNA evidence has become a predominant forensic
technique for identifying criminals and in the ‘search of truth’, and the goal of convicting the
guilty and acquitting the innocent 1 . However, the boons of this emerging technology are no
doubt immense and its extensive application can revolutionize the administration of justice of
any legal system, but we cannot shut our eyes towards the banes of this technology.

A fundamental problem which most of the countries had to face that how far can this technology
be effectively utilized in the conventional justice system and how far the existing value based
system of justice requires to be changed, modified or reconstructed. Furthermore, the problems
which the law makers have faced in the countries where this technology has been introduced is-
how to create a balance between some basic cherished human rights of the accused in a criminal
case, such as, right to privacy, right against self-incrimination etc, and the interest of the
investigation. Also, another vital issue which most countries have faced is how to minimize the
risk of misuse and abuse of this technology against the enshrined values of legal system. Thus,
the rights of the suspects/accused is to be protected by a safeguards that may include consent of
the individual for taking samples for DNA test, different procedures for collection of intimate
and non-intimate samples, disclosure of results to the individual concerned and destruction of
samples on discontinuance of proceedings or on discharge or acquittal of the accused.

Henceforth, in most of the countries where DNA technology has already been introduced, a
special legislation has been enacted to address these needs. On the same line, India also in 2007,
the draft Human DNA Profiling Bill was made public, but was never introduced in Parliament.
In February 2012, a new version of the Bill was leaked. If passed, the Bill proposes to regulate
the use of DNA for the purposes of “enhancing protection of people in the society and the
administration of justice”.

1
New York v. Wesley, 533 NYS 2d 643 (1988)
 2

DNA profiling is a technique by which an individual can be identified at molecular level. The
use of DNA evidence in criminal investigation has grown in recent years. DNA testing has
helped low enforcement identify criminals and solve difficult crime such as rape, murder and
murder with rape etc. The potential of DNA typing has made possible the resolution of
immigration problems and complicated paternity testing when the father is not available. Rapid
identification of individuals in mass-disaster (man- made such asexplosions) using DNA typing
has also been possible .computerized DNA database for the identification of criminal offenders
have been created in some countries.

DNA is a powerful investigative tool because, with the exception of identical twins, no two
people have the same DNA. In other words, the sequence or order of the DNA building blocks is
different in particular region of the cell, making each person’s DNA unique. No doubt, DNA has
great importance in criminal investigation cases such as-murder, rape, disputed paternity, man-
made disaster etc., still there is no specific provisions under Indian Evidence Act-1872 and Code
of Criminal Procedure -1973 to manage forensic science issues. This pproject examines the
science of DNA identification and its use during criminal investigations and in criminal
proceedings, including criminal trials, appeals and post conviction proceedings. It describes the
main benefits and costs of the increasing role of DNA identification in the criminal justice
system with special emphasis to India
 3

Research Methodology
Objectives:
The main objectives are:

 To study whether DNA test can be admitted as evidence under the Indian Evidence Act
1872.
 To study the extensive application of DNA technology in the administration of justice of
any legal system.
 To study the response of Indian Legal System in adopting DNA evidence in
administration of justice; and a brief overview of the Draft Human DNA Profiling Bill,
2012.

Methodology:

This research project is descriptive in nature. Accumulation of the information on the topic includes
wide use of sources like books, articles etc. The matter from these sources have been compiled and
analysed to understand the concept.

Websites and dictionary have also been referred to understand things in a better way.

Questions:

 What is DNA testing and can it be admitted as evidence under the Indian Evidence Act,
1872?
 How is DNA testing applied in criminal justice system?
 What should be the steps taken to improve DNA testing?

Hypothesis:

The use of DNA evidence is anticipated to become a universal place in the 21st
century. It is considered to be a major breakthrough in forensic science in this century.
It has been subjected to the most comprehensive, scientific examination as no other
twig of forensic science, and has currently established itself as one of the best with
 4

mounting applications. DNA fingerprints are useful in several applications of human

health care research, as well as in the justice system. They are also used to link suspects
to biological evidence. Another use of DNA fingerprints in the court system is to
establish paternity in custody and child support litigation.

Mode of Citation:

This project follows a uniform Bluebook 19th Ed. Citation format for footnotes and
bibliography.

Chapterisation:

The project broadly has been divided into 4 chapters. Chapter 1 comprises of the
introduction to the topic along with the research methodology that has been adopted in
this project. Chapter 2 comprises of an overview of DNA profiling as evidence relying
upon Indian Evidence Act, 1872. Chapter 3 covers up the need for specific legislation
on DNA profiling. Chapter 4 is the conclusion of the project which sums up this
project in brief.

Scope of Study:

Due to paucity of time and resources this project does not try to cover the evidentiary value of
DNA in detail. Not each and every section of Evidence Act related to DNA has been dealt and
reliance is placed upon only the relevant sections.
 5

List of Cases
 Benarasi Dass v. Teeku Dutta and Anr, (2005) 4 SCC 449

 Gangadharappa v. Basavaraj, AIR 1990 Kant 155

 Govind Singh v. State of Madhya Pradesh, AIR 1975 SC 1378.

 Kamti Devi v. Poshi Ram, (2001) 5 SCC 311

 Khark Singh v. State of Uttar Pradesh, AIR 1963 SC 1295.

 New York v. Wesley, 533 NYS 2d 643 (1988)

 6

DNA test as Evidence

An Overview of DNA:

In the mid-1980s, emerging knowledge on DNA2 analysis and technological progress in DNA
testing process has made DNA evidence a predominant forensic technique in investigation and
identification of criminals when biological materials are left at a crime scene. The currently
developing techniques of DNA profiling provide the forensic scientists and crime investigators a
higher degree of accuracy in identifying the origin of blood and other body fluids with certainty.
DNA profiling provides examination of human biological materials at its fundamental level, i.e.,
the DNA molecule- this molecule which is found in every living cell, carries genetic information
that makes an individual distinct from every other individual.

DNA profiling has been extensively used in civil (paternity/maternity test, etc) and criminal
cases (criminal investigation, especially useful in investigation into murder or sexual offences 3,
identification of sex of human remains, identification of exhumed bodies, etc). Its application is
particularly useful in criminal cases because of the possibility that it offers of determining
whether blood, hair roots, saliva or semen deposits located at crime scene come from a person
suspected of having committed the crime4. The negative match is a decisive proof of innocence5.

DNA Evidence in the Criminal Justice System: Issues and Trends

Unlike the practice in developed countries like USA, DNA technology has very little application
in the Indian criminal justice system. Even in this modern age of science and technology, our
conventional legal system places entire burden of proof on the investigating officer which
compels the investigators to resort to all kind of illegalities in order to get evidence. The reliance
primarily on eye-witnesses (and other primary and direct evidence), which in most of the cases
are inaccurate, partial and fallible, results in false conviction of the innocent and escape of the

2
DNA is a self-replicating material present in nearly all living organisms, especially as a constituent of
chromosomes, which is carrier of genetic information of the different social conditions that prevail, and the different
historical background and cultural traditions.
3
SS Sharma, Forensic Science Law and Legal Education, MDU LAW JOURNAL, (2001)
4
‘How DNA technology is reshaping judicial process and outcome’, new biology and public seminars, available at
www.csis.org
5
De Foore, ‘Post Conviction DNA Testing: A Cry for Justice for the Wrongly Convicted, TEXAS TECHNOLOGY
LAW REVIEW, 491, (2002)
 7

real culprit. Reluctance of genuine witness to give evidence, dilution of evidences during cross-
examination and re-examination, witness turning hostile, illiterate, poor and unemployed people
exploited to give evidences are serious short-comings our system is adhered to. The Code of
Criminal Procedure 1973 and the Indian Evidence Act 1872 do not provide proper framework for
application of DNA technology. Despite its widely known merits, there is no specific law or
even provision in our legal system to ensure that forensic science and its boon like DNA
technology find their own recognition for efficient administration of justice. The problem faced
by investigating officers in most cases is destruction of all sorts of evidences and proofs which
can be used against the criminal in the trial. But, with DNA technology, crimes especially critical
cases can be solved easily. DNA technology is successful not only in investigation of paternity or
maternity disputes cases, baby exchanging cases, rape or murder cases but also in identification
of habitual hardened criminals by keeping their DNA profile in the DNA databank. Also DNA
can be used as the best proof for determining guilt or innocence of the accused/suspect in a
criminal trial. Justice can be achieved more accurately, quickly and efficiently with application
of DNA evidence. Still, it is not being used widely as it should have been.

There are several pre-conditions to be strictly complied with by every investigating officer and
forensic scientists. The investigating officer has to follow various complex procedures for
collection, preservation and documentation of DNA evidence. DNA is found in every living cell
of human bodies and therefore, biological samples can be taken from different materials such as-
blood, semen, hair roots, fingernail pairings, saliva, body tissue, bone marrow, urine, fecal
matter, tooth canal root pulp, foetal material, postmortem samples and relationship cases6.

Procedure and technique of collection of samples for DNA testing: need for a guideline

It can be rightly said that DNA testing technology has made it possible to identify the source of
biological samples found at the crime scene. However, there is always doubt in minds of the
investigation officers as to method of collection and forwarding of samples collected at the crime
scene and at different times of postmortem for DNA analysis. Therefore, an essential for
successful DNA testing is that there should be an efficient method of collection of the samples at

6
Dr. BR Sharma, Forensic Science in Criminal Investigation and Trial.
 8

the crime scene and submission of these samples along with the control samples to the DNA
laboratory within minimum period of time 7 . The usefulness of DNA analysis depends on
integrity, skill and ability of the investigating officer who are first to arrive at the scene of the
crime 8 .Since DNA evidence is highly sophisticated and results are unassailable, scientists or
DNA analyst should be provided with the samples in way prescribed so that forensic experts
could process the samples and give their opinion based on results they obtain in a befitting
manner9. Thus, there should not be any delay in forwarding these samples and control samples.
The mode of transportation and time taken for transit of the samples should be decided so that
the samples can reach DNA lab within 48-72 hours after collection. The officials deputed for
submission of samples in the DNA lab should have some knowledge of few specific aspects of
the case. In India, DNA testing is rapidly catching up and thus there is a need for a detailed
guidelines relating to collection, forwarding and authentication of samples. It is now proper to
lay down significant guidelines so that standards could be followed which will not allow DNA
evidence to be undermined. One such step is the current draft of The Draft Human DNA
Profiling Bill, 2012.

Constitutionality of DNA test

The introduction of the DNA technology has posed serious challenge to some legal and
functional rights of an individual such as “Right to privacy”, “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 21 of the Indian Constitution, and Article 20(3) provides Right against
Self- Incrimination which protects an accused person in criminal cases from providing evidences
against himself or evidence which can make him guilty.

But it has been held by the Supreme Court on several occasions that Right to Life and Personal
Liberty is not an absolute Right. In Govind Singh v. State of Madhya Pradesh10, Supreme Court
held that a fundamental right must be subject to restriction on the basis of compelling public

7
JYOTIRMOY ADHIKARY, DNA TECHNOLOGY IN ADMINISTRATION OF JUSTICE, 33 (2007)
8
Id.
9
Dr. GV Rao, Scientist`s Chief DNA Fingerprinting Unit, Centre for DNA Fingerprinting, Hyderabad, JOURNAL
OF THE INDIAN ACADEMY OF FORENSIC SCIENCE, (January and July, 1997)
10
AIR 1975 SC 1378.
 9

interest. In another case Khark Singh v. State of Uttar Pradesh,11 Supreme Court held that Right
to privacy is not a guaranteed right under our Constitution. It is clear from various decisions
which have been delivered by the Supreme Court from time to time that the Right to Life and
Personal Liberty which has been guaranteed under our Indian Constitutions not an absolute one
and it can be subject to some restriction. And it is on this basis that the constitutionality of the
laws affecting Right to Life and Personal Liberty are upheld by the Supreme Court which
includes medical examination. And it is on the basis that various courts in the country have
allowed DNA technology to be used in the investigation and in producing evidence. To make
sure that modern technologies can be used effectively, there is an urgent need of a specific
legislation which would provide the guidelines regulating DNA testing in India.

The recent refusal of the Supreme Court to dismiss the Delhi High court’s decision ordering
veteran congress leader N.D. Tiwari to undergo the DNA test is very important from the
viewpoint of the admissibility of such evidence. In this case, Rohit Shekhar has claimed to be the
biological son of N.D. Tiwari, but N.D. Tiwari is reluctant to undergo such test stating that it
would be the violation of his Right to privacy and would cause him public humiliation. But
Supreme Court rejected this point stating when the result of the test would not be revealed to
anyone and it would under a sealed envelope, there is no point of getting humiliated. Supreme
Court further stated that we want young man to get justice; he should not left without any
remedy. It would be very interesting to see that how courts in India would allow the admissibility
of DNA technology in the future.

DNA and its mention in Indian Evidence Act, 1872

DNA analysis is accepted in India, it is a part of admissible expert evidence under Section 45 of
the Evidence act 1872- more precise and totally scientific unlike Handwriting Expert’s opinion
which is only an art and not a science and hence a handwriting expert’s opinion may or may not
be accepted. However there is an exception to the rule, Section 112 of the Evidence Act provides
that when at the time of conception of the child the parents are residing together then DNA
testing cannot be used a method to avoid the paternity of the child. Probably the law made at the

11
AIR 1963 SC 1295.
 10

time Evidence Act 1872 when ratified by the Indian Government, never foresaw that there could
be something as DNA Testing in those days.

The law has therefore remained un- amended. Another idea behind this is to avoid bastardization
of the child. Be that as it may Courts are bound by the law made and existing as it is. In a recent
judgment of Dipanwita Roy vs. Ronobroto Roy 12 the Supreme Court of India has upheld the
validity of Section 112 of the Evidence Act despite the DNA test proving otherwise.

Applications of DNA testing are now well established in developed countries. In India, in several
cases, the judgment has been given either based on the results of DNA testing alone or along
with other corroborative evidence. Although DNA test has been accepted in many courts in
India, it has not yet been included in the Evidence Act. It is therefore, left to the discretion of the
judges whether the DNA tests under Section 45 of the Indian Evidence Act to be accepted or not.

Section -45 Deals with the expert evidence “When the court has to form an
opinion upon a point of foreign law or science or art or as to identify the
handwriting or finger impressions, the opinion upon point of that person specially
skilled in such foreign law, science, or art in question… such persons are called
experts”

The first paternity dispute in India which was solved by DNA fingerprinting test, was the case in
the Court of the Chief Judicial Magistrate of Telicherry.13 The Chief Judicial Magistrate held
that: The Evidence of Expert is admissible under Section 45 of the Indian Evidence Act, 1972. So
also, the grounds on which the opinion is arrived at are also relevant under S.51 of the Indian
Evidence Act, 14 PW 4 was an expert in the matter of molecular biology and the evidence
tendered by him is quite convincing and the court had no reason why it should not be accepted.
Just like the opinion of a chemical analyst, or like the opinion of a fingerprint expert, opinion of
PW 4, who was also expert in the matter of cellular and molecular biology, was also acceptable.”
The verdict was challenged the High Court but the High Court upheld the verdict of the
Telicherry Court stating that the results of DNA test by itself could be deciding paternity.

12
Civil Appeal No. 9744 of 2014 (Arising out of SLP (C) No. 5694 of 2013).
13
Legal Perspective of DNA Technology,
http://shodhganga.inflibnet.ac.in/bitstream/10603/38033/12/11_chapter%205.pdf.

14
Ibid.
 11

Justice Jagganatha Rao, Chief Justice of the Kerala High Court pointed the lacunae in this regard
in 1995 in a verdict of the paternity dispute. Justice Rao pointed out in his judgments two facts15

1. DNA testing is as yet not considered a conclusive proof under Section 112 of the
Evidence Act, and
2. Law has not been passed by the Parliament for such testing.

In India DNA fingerprinting and analysis has been widely used in paternity cases. In this section
of the project, several interesting issues will be dealt with. Prominent among these is the effect of
the new developments in forensic in the form of DNA profiling/fingerprinting and the case for an
amendment to S.112 of the Indian Evidence Act dealing with conclusive proof in paternity cases.
The other major issue with respect to paternity cases, on which there is much conflicting case,
law deals with whether the Courts can direct one of the parties to give a sample of DNA and the
effect of refusal to undergo a DNA test. This has obvious constitutional implications.

Section 112 uses the words, “conclusive proof and refers to ‘non-access’ as the sole exception.
Therefore, as the language of the section stands, no other evidence is permissible except non
access, to prove that a person is not the father. This was held in several decided cases and also by
the Supreme Court in Kanti Devi vs. Poshi Ram.16 That case concerned DNA evidence but the
Supreme Court refused to permit the evidence on the ground that except ‘non-access’ no other
evidence is permissible to prove that a person is not the father.

15
Pandit, M.W. and Dr. Lalji Singh, “DNA Testing, Evidence Act and Expert witness”, The Indian Police Journal,
October-December 2000, p. 100.
16
AIR 2001 SC 2266.
 12

Need for a specific DNA legislation in

India
In absence of a specific legislation, there aren’t any objective guidelines, for the judge in
accessing the admissibility of DNA evidence and the investigator in collection of samples, for
the purpose of trial in criminal cases. The admissibility of DNA evidence before the court by the
judge depends on its accurate and proper collection, preservation and documentation, thus, for
the said purpose, a specific legislation is required which helps the judges for accessing the
admissibility of evidence at the time of trial. Similarly, the investigating officers have to face
much trouble while collection of DNA samples. There is no statutory legislation which
prescribes them to collect these materials, no lower or upper limit for collection of these samples
and even the manner of handling of the samples. Thus, absence of a specific legislation creates
trouble in crime investigation and trial process.

Section 53A and Section 164A of the Code of Criminal Procedure gives some scope to the
investigating officer in investigation of crime. By virtue of these sections, the investigating
officer is authorized to collect DNA samples from the body of the suspect as well as the victim
with the help of a registered medical practitioner.

Neither Section 53A nor Section 164A of Code of Criminal Procedure is adequate to protect the
interest of the accused or suspect. They are only restricted to rape cases and other offences are
not covered by both the sections. Moreover, detailed guidelines relating to consent, authorization
of taking samples by investigating officials, different procedures for collecting intimate and non-
intimate samples, documentation of the samples, disclosure of results to the person concerned
and destruction of samples are missing. Also any medical practitioner is authorized to collect
samples under both these sections which is again needs to be regulated. A medical technician
having sufficient knowledge about forensic genetics recognized by any forensic genetics institute
is required. Therefore, these sections have only added to the confusion for the investigating
officer and court in handling of DNA evidence in administration of justice. Like USA, Denmark,
UK, Germany, Russia and other developed countries, in India also a separate DNA legislation is
required in priority. By this legislation, the collection, regulation, preservation, documentation of
 13

all types of body fluids will be regulated for the purpose of investigation and establishment of
criminal charges and solving civil disputes too.

There are also several conflicting judicial decisions of the Supreme Court and High Court and
thus, it creates more confusion and uncertainty on the same point. Judges in some cases do not
deny the conclusiveness of DNA evidence but in other cases they expressly deny in admitting
DNA evidence on grounds of legal or constitutional prohibitions and also in defense of public
policy. Thus, like our legislature, the higher judiciary also fails to provide any guideline in
admissibility of DNA evidence. Thus, a DNA legislation is required which will address to all the
needs of the investigating officer and judges too.

In Gangadharappa v. Basavaraj17, the plaintiff instituted a suit against his father (defendant)
claiming for partition and separate possession of his share in the coparcenaries properties. The
defendant denied the petition on the ground that the plaintiff was not born to him. The defendant
filed an application for appointment of commissioner for conducting blood test and genetic
fingerprinting test of plaintiff to ascertain whether he is his son. The plaintiff opposed it on the
ground of violation of article 20(3) of the Constitution of India. The Karnataka High Court did
not take this argument and ordered for appointment of commissioner for conducting blood test
and genetic fingerprinting test of plaintiff.

In the case of Benarasi Dass v. Teeku Dutta and Anr18, the question involved was whether a
direction for DNA test can be given in a proceeding for issuance of succession certificate under
the Indian Succession Act 1925. Replying in negative, the Supreme Court held that DNA test is
not to be directed as a matter of routine and only in deserving cases such a direction can be
given. The present case does not fall in that category. It also said that the result of a genuine
DNA test is said to be scientifically accurate, but even that is not enough to escape from the
conclusiveness of Section 112 of the Indian Evidence Act. In a recent judgment, the Supreme
Court again expressed its reluctance in admitting DNA evidence in resolving paternity dispute on
ground of public policy19.

17
AIR 1990 Kant 155
18
(2005) 4 SCC 449
19
Kamti Devi v. Poshi Ram, (2001) 5 SCC 311
 14

In order to minimize the aforesaid problems and also for effective implementation of DNA
technology in our criminal justice system, we have to introduce a specific DNA legislation
keeping in mind certain guiding principles expounded from the experiences of several other
countries where DNA legislation have already been introduced20:
a) Privacy principle vis-à-vis DNA technology
The act of taking samples involves intrusion into three forms of individual privacy-
bodily privacy, genetic privacy and behavioral privacy. Therefore, the lawmakers should
bear in mind about the consent of the individual from whom sample is taken, protection
of privacy of information, the dignity of the individual and fairness in criminal
investigation and trial.
b) Procedural safeguard for collecting DNA samples
The DNA legislation in force in other countries show that there is a balance created
between the rights of the suspect/accused with the wider public interest. Thus, a detailed
procedural safeguard relating to consent, authorization of taking samples by the
investigating officials, different procedures to be adopted for collection of intimate and
non-intimate samples, disclosure of results and destruction of samples thereafter on
acquittal of accused or discharge/discontinuance of proceeding.
Scope of availability of DNA information
The availability of information of an individual must be regulated strictly by the statute. The law
enforcement agencies should have limited authority to get access to the DNA profile of an
individual from the DNA databank. The authority to access DNA profile of an individual should
only be for the purposes sought to be achieved by the legislation and nothing else such as 21:
a) For the interest of criminal prosecution, investigation, enquiry and trial;
b) For criminal defense purposes;
c) In civil cases;
d) For identification of the mutilated dead bodies.

Disclosure of DNA evidence to the accused

20
Supra note 8, at 285
21
Supra note 8 at 289
 15

The results of DNA testing should be disclosed to the accused or his/her legal representatives
before the trial. This is a basic requirement of fair and impartial trial under Article 21 of the
Constitution of India so that accused can use a position to counter it or to have an opportunity for
second testing of samples. Thus, the DNA legislation must incorporate that the courts are
empowered to recollect the samples for second time in following cases:22

a) When the laboratory analysis failed due to scientific reasons;

b) When he prosecution fails to show a unbroken chain of custody of the sample from the
time of seizure and the time to the time of analysis;
c) When the investigating officers improperly collected the samples without following the
procedure laid down by the Act.

Refusal of DNA testing by the accused

Legal consequences in case of refusal by the accused to give his DNA samples for analysis and
testing are to be addressed by the DNA legislation. DNA evidence is an effective key of the
search of the truth which not only implicates a person in a criminal prosecution but also
conclusively proves the guilt or innocence of the accused or suspect in a criminal case 23 .
Therefore, if a person refuses to give his DNA samples then the court must presume that the
person has not come with clean hands before the court. Under Section 114(g) of the Indian
Evidence Act, the court can take adverse presumption if any person withholds the best evidence
before the court. This provision has to be amended so as to e applicable in cases where of refusal
of DNA testing by the accused.

The Draft Human DNA Profiling Bill (April 2012): A Study

The bill is enacted with the objective to regulate the use of DNA analysis of human body
substance profiles and for establishment of DNA Profiling Board to lay down the standards for
laboratories, collection of human body substances, and also to establish a DNA Databank.

Establishment of DNA Profiling Board

22
Supra note 8 at 295
23
Supra note 8 at 296
 16

The Bill will also establish a DNA Profiling Board responsible for 24 functions, including
specifying the list of instances for human DNA profiling and the sources of collection,
enumerating guidelines for storage and destruction of biological samples, and laying down
standards and procedures for establishment and functioning of DNA laboratories and DNA Data
Banks. 24 Thus, by this the Bill regulates the collection, preservation and disclosure of DNA
evidence.

Approval of DNA laboratories

Under Section 13 of the Bill, no DNA laboratory shall undertake any human DNA procedure for
purpose of this Act without the authorization by the DNA Profiling Board in writing. Therefore,
the Bill maintains and safeguards the authority entitled to take DNA samples.

DNA Databank

Under Section 32 of the Bill, a DNA Databank is to be established which shall maintain
following indices for various categories of data- crime scene indexes, suspects index, offender’s
index, missing persons index, unknown deceased persons’ index, volunteers’ index, and such
other DNA indices as may be specified by regulations made by the Board.

The Bill allows for the DNA Data Bank Manager to determine when it is appropriate to
communicate whether the DNA profile received is already contained in the Data Bank, and any
other information contained in the Data Bank in relation to the DNA profile received25.

Confidentiality of information

Sections 38 to 45 provides for confidentiality of and access of DNA profiles, samples and
records. Section 39 provides that all records and profiles shall be used for purpose of facilitating
identification of the perpetrator of a specified offence as under part I of the schedule.

The Bill only restricts access to information on the DNA database that relates to a victim or to a
person who has been excluded as a suspect in relevant investigations 26 . This is a basic
requirement of fair and impartial trial under Article 21 of the Constitution of India.

24
Draft Human DNA Profiling Bill 2012, section 12(a-z)
25
Section 35 of the Bill
 17

Broad offences and instances of when DNA can be collected

The schedule of the Bill lists applicable instances for human DNA profiling and addition to the
DNA database. Under this list, the Bill lays out nine Acts, for example the Indian Penal Code
and the Protection of Civil Rights Act, and states that offences under these Acts are applicable
instances of human DNA profiling. This allows the scope of the database to be expansive, as any
individual who has committed an offence found under any of these Acts to be placed on the
DNA database, and might include offences for which DNA evidence is not useful.

Loopholes in the Bill and recommendations

 Inadequate level of authorization for sharing of information

The Data Bank Manager should not be given the power to determine appropriate instances
for the communication of information. Law enforcement agencies, DNA laboratories, etc.
should be required to gain prior authorization, from the DNA Board, before requesting the
disclosure of information from the DNA Data Bank Manager. Upon receiving proof of
authorization, the DNA databank can share the requested information.

 Inaccurate understanding of infallibility of DNA

The preamble to the Bill inaccurately states the purpose of DNA evidence. The Bill should
recognize that DNA evidence is not infallible. For example, false matches can occur based on
the type of profiling system used, and that error can take place in the chain of custody of the
DNA sample. The “definition” of DNA profiling is too loose in the Bill. Any technology
used to create DNA profiles is subject to error. The estimate of this error should be
experimentally obtained, rather than being a theoretical projection.

 Inadequate access controls

Though it is important that access is restricted in these instances, access should also be
restricted for: volunteers, missing persons, and victims. Broad access to every index in the

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Section 43
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database should not be permitted when a DNA sample for a crime is being searched for a
match. Ideally, a crime scene index will be created, and samples will only be compared to
that specific crime scene. The access procedure should be transparent with regular
information published in an annual report, minutes of oversight meetings taken, etc.

Conclusion
DNA profile databases can be useful tools in solving crime, but given that the DNA profile of a
person can reveal very personal information about the individual, including medical history,
family history and so on, a more comprehensive legislation regulating the collection, use,
analysis and storage of DNA samples needs included in the draft Human DNA Profiling Bill.

Lack of interaction between science and law is one major problems of our judicial system in
application of DNA technology. Judges cannot make appropriate decisions due to lack of proper
background, lack of technical training and complexity of DNA evidence. Thus, there is a need to
strengthen judges understanding of science and confronting complex legal issues arising in
complex world that depends more on a thorough understanding of advances in science and
technology.

In conclusion, it can be said that it is time for our Parliament to amend the existing laws in The
Code of Criminal Procedure 1973 and the Indian Evidence Act 1872 as well as for the purpose of
strengthening and upgrading our administration of justice it is required to introduce DNA
specific legislation which can address all the issues discussed above and give a detailed guideline
in handling of DNA evidences. It is also advisable to get inspiration from the DNA legislations
in force in various develop countries. However, despite the several advantages of application of
DNA technology, the critics have raised objections against the use of DNA evidence such as
ethical aspects, quality and methodology of the laboratory work, integrity and reliability of
results and expensive technology. This technology is hardly 20 years old and future research will
bring down all the loopholes in it. In meantime, we cannot wait for more accurate and faultless
methods and therefore, should not abstain from implementing this new gift of forensic science in
our justice delivery system.
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Bibliography
Book

 Jyotirmoy Adhikary, DNA Technology in Administration of Justice, LexisNexis

Butterworths, 2007.

Articles

 Dr. GV Rao, Scientist`s Chief DNA Fingerprinting Unit, Centre for DNA Fingerprinting,
Hyderabad, Journal of the Indian Academy of Forensic Science, vol 36, no 1 and 2,
January and July, 1997.
 Jeremy Gans & Gregor Urbas, DNA identification in criminal justice system: in trends
and issues in crime and criminal justice, Australian Institute of Criminology, May 2002
 SS Sharma, Forensic Science Law and Legal Education, MDU Law Journal, vol 6, 2001
 De Foore, ‘Post Conviction DNA Testing: A Cry for Justice for the Wrongly Convicted,
Texas Technology Law Review, vol. 13, 2002, p.491.
 Lawgix Inc., DNA Tests: A Legal Perspective, http://thelawgix.com/dna-tests-a-legal-
perspective/ (Accessed August 5, 2016).
 Dr. Patel N, Gautaman V & Jangir S, The Role of DNA in Criminal Investigation –
Admissibility in Indian Legal System and Future Perspectives, International Journal of
Humanities and Social Science Invention, Vol.2 Issue 7 (2013).