LAW OF EVIDENCE

CIA – 3

TOPIC : Modern Scientific Tests As Evidence – Admissible ?

Submitted by,
Arya Anil
9BBA LLB –B
1316405
 INTRODUCTION

“ It has become appallingly obvious that our technology has exceeded our humanity “
- Albert Einstein

The advent of using science as a means to investigate criminal cases came up with the
development in science and technology. Earlier, the courts relied on the non-scientific evidence
such as statements by eye-witnesses. Usually, tests such as narco analysis, brain mapping and
lie detectors are used to confirm the truth of these pieces of evidence. Judicial discomfort in
handling scientific evidence has increased in recent years with the emergence of scientific
testimony offered by experts. Innovation of forensic tools like Narcoanalysis, Brain-mapping
and Polygraph tests have proved to be the momentous progress of forensic science in the 21st
century. The Supreme Court recognized the requirement, the necessity of scientific investigation in
Som Prakash v. State of Delhi.1 In D.K. Basu v. State of West Bengal2, the Supreme Court
expressed that there is a need to develop scientific techniques and methods for investigation
and interrogation of accused as custodial deaths and torture is nothing else but a blow at rule
of law. Nacro-analysis, Brain-mapping and polygraph test is nothing but an efficient and scientific
method of investigation. In the case of Smt. Selvi v. State of Karnataka3, the Supreme Court
addressed the issue of administration of scientific tests by investigation agencies. It was held
in this case that Narco-analysis, Brain-mapping and polygraph tests cannot be conducted
without the consent of accused person. Admissibility of scientific evidence involves some
important questions relating to basic rights that are available to accused under various
provisions of law in India.

ADMISSIBILITY OF MEDICAL EVIDENCE UNDER INDIAN CONSTITUTION 1950,

The Constitution of India provides that “no person accused of any offence shall be compelled
to be a witness against himself.”4 This clause is based on the legal maxim nemo tenetur prodere
accussare seipsum, which means that no man is bound to accuse himself. Making of any

1
AIR 1974 SC 983
2
AIR 1997 SC 610
3
AIR 2010 SC 1974
4
Article 20(3) of the Indian Constitution
statement that has possibility of exposing the accused to criminal prosecution, either at present
or in future is not permitted under the Constitution. This provision is inspired from the 5th
Amendment of the United States Constitution that prohibits the government from forcing any
person to produce any sort of evidence that would incriminate that person. The giving of any
sort of identification as for instance impression of thumb or foot or palm or fingers or giving
of specimen of hand-writing is not at all covered under Article 20(3). In order to claim
testimonial compulsion it is essential that a person forwards his personal knowledge about
happening or non-happening of an event. Considering the situation regarding scientific tests
presented as evidence, it is not considered to be violative of Article 20 (3) of the Constitution
as in these tests no statement is made, neither oral nor written. Statement is given in Narco-
analysis test however it cannot be termed as involuntary. It was held in the case of Nandini
Sathpathy v. P.L. Dani5, it was held that no one could forcibly extract statements from the
accused that have the right to keep silent during the course of interrogation or investigation.
However, Art. 20(3) can be waived of by a person himself. The idea behind the protection
against self-incrimination is to encourage a free atmosphere in which the accused can be
persuaded to come forward to furnish evidence in courts and be of substantial help in
elucidating truth in a case, with reference to material within their knowledge and in their
possession.

The expression ‘evidence’ has been defined in section 3 of the Indian Evidence Act. The word
‘evidence’ signifies that state of being evident. All instruments by which relevant facts are
brought before court are included in the term ‘evidence’. Section 27 recognizes the
presumption that when the accused alone gives information which was hitherto not known and
recovery is made pursuant to the said disclosure, the court can presume existence of fact which
is likely to have happened having regard to the common course of the natural events, human
conduct and private and public witness in their relations to the facts of the particular case.
Considering the various judicial decisions , it is safe to say that section 27 of Indian Evidence
Act, 1872 greatly facilitate evidence adduced by scientific tools as well as it lays down that
any information given or obtained in the process of investigation which is confirmed by the
finding of any object or fact is admissible in the court. Recovery made even by undesired means
is no bar to its use in court. Once recovery is made with the help of scientific tools and
techniques, prosecution can easily establish the close link between discovery of a material

5
( 1978) 2SCC 424
object and its use in the commission of an offence. Thus, use of Narco-analysis polygraph and
brain-mapping would greatly facilitate investigation authorities that too in a scientific manner
without requiring authorities to take resort to inhumane treatment. The right against forced
self-incrimination, is enshrined in the Code of Criminal Procedure (CrPC) as well. It states
that every person “is bound to answer truthfully all questions, put to him by a police officer,
other than questions the answers to which would have a tendency to expose that person to a
criminal charge, penalty or forfeiture.6

CONCLUSION

Admissibility and constitutionality of scientific tests are two different things and must be
treated accordingly. Under the Indian Evidence Law, results of scientific tests may not be
admissible in courts due to the presence of compulsion but that does not make it
unconstitutional.7 The idea is to weigh the actual evidence placed before the court by applying
its judicial mind irrespective of the source. In other words, relevance and not the source of the
evidence is important while admitting it in trial.8 Under the Indian Evidence Act, scientific
opinion cannot be a conclusive proof of the crime9 and is only used for the purpose of collecting
further evidence. It should be taken into consideration that, when there is availability of modern
and advanced techniques of investigation, there should be no hesitation in making such
techniques part of Indian criminal justice system especially when number of countries across
the globe are taking aid of scientific techniques such as polygraph, brain mapping and narco-
analysis. However, a common criticism is on the ground that the scientific tests are always not
hundred per cent accurate. There is an urgent need to check custodial torture, inhumane
treatment and so on. Therefore, usage of these tools of investigation can be encouraged as they
are a soft alternative to third degree torture. The Legal System should imbibe developments
and advances that take place in science as long as they do not violate fundamental legal
principles and are for the good of the society.

6
S.161 (2) of the Code of Criminal Procedure
7
Ashish Goel, Indian Supreme Court in Smt. Selvi v. state of Karnataka : Is a confusing judiciary worse than a
confusing legislation ?, Law and Politics in Africa, Asia and Latin America, Vol. 44, No. 4 ( 2011 )
8
State of Madya Pradesh v. Pattan Mallah (2005) 3 SCC 169
9
State of Haryana v. Bhagirath (1999) 5 SCC 96