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LEGAL ISSUES RELATED TO DNA FINGERPRINTING IN CRIMINAL JUSTICE SYSTEM BY DR. G. K. GOSWA

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LEGAL ISSUES RELATED TO DNA FINGERPRINTING IN CRIMINAL JUSTICE SYSTEM BY DR. G. K. GOSWA

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    2. Criminal Justice System Justice- un-earthening, establishing and administering ‘TRUTH’ Adversarial U.K., USA, India etc. ii) Inquisitorial (investigating magistrate) in France, Spain etc.

    3. Scientific Tools used in Criminal investigation in the recent past: Electronic Surveilance Lie Detector or Polygraphic Test P-300Test or Brain Mapping Test Narco-Analysis (Truth Serum) Test DNA-Profiling

    4. Why Narco-Analysis was banned by court? Protection against Testimonial Compulsion under Article 20 (3) of Indian Constitution (Protection against Self Incrimination- compelling to be witness against himself) Best Bakery case: SC verdict on using scientific tools to unearth truth Ramchandra Ram Reddy & oths. Vs. the State of Maharastra (5th Feb’ 2010)

    5. What is an EVIDENCE: Strictly in legal context, evidence can be defined as various things presented in court for the purpose of proving or disproving a question under inquiry. It includes testimony, documents, photographs, maps and video tapes. These are termed as evidence of the case. It also include Forensic Evidences like DNA Fingerprints, ballistic/explosive analysis reports etc. List of Experts having evidential admissibility in the Court of Law is mentioned u/s 294(4) Cr.P.C.

    6. Sources of Evidences Evidences from Witnesses Eye witness Scientific witness Documentry Evidences

    7. Criterion for self-incrimination The evidence may be either testimony (on oath or affirmation in front of judge) or statement by the witness If any test amount to compulsion of making a statement shall be deemed to be self incriminating

    8. The results of Lie-detector or Brain- Mapping or electronic survielance or DNA finger-printing are not statements made by the witness, but merely extracting informations, hence do not violate Article 20(3) However, Narco-analysis Test (injecting 3 grms of pentathol in witness body) results into involuntarily making a statement and hence violative of Art. 20(3)

    9. Exception: If such statement is used to assist in making some recovery u/s 27 of The Indian Evidence Act-1972, then it is admissible. Other Relevant Case Laws- Tahsildar Singh vs. State of UP(AIR, 1959, SC) Shaboo case(1965), Kathi Kallu Case, Nandini Sathpathi Case

    10. Let us talk about DNA-Profiling

    13. TQM (for criminal investigation) Need to be STANDARDIZED: MAN (Training, expertise, integrity etc.) MATERIAL (Quality, integrity, chain of custody etc.) METHOD (Standard Operating Procedure)

    17. Saving innocent accused/suspects my result into: Generate faith in criminal justice system Improve police efficiency Check corruption Improve prosecution “Injustice anywhere is threat to justice every where” -Martin Luther King

    18. WILD LIFE CONSERVATION: Solving the cases of poaching, inbreeding, cure of genetic diseases, migration routes etc. Solving Patent Disputes related to claims for new inventions of HYV seeds etc Sex determination Other issues like Individual Identification Cards, frauds, adulteration, bio-diversity conservation, plant breeding, invention of drugs, Chasing evolution, gene rectification, R&D etc.

    19. Doctrine of Double Jeopardy Article 20 in Indian Constitution - 20(1)- Ex post facto law( Retrospective effect of law) 20(2)- Double Jeopardy 20(3)- Self incrimination

    20. Nemo debet vis vexar DJ means that no one can be vexed twice for the same offence- Cardinal Principle of the Law all over the world. Murder of Stephen Lawrence ( racial murder case on 22nd April, 1993 at London) It pave the way for change in Doctrine of Double Jeopardy in U.K. by introducing The Criminal Justice Act-2003

    21. The criterion for new changes: ‘New’ and ‘compelling’ facts for serious crimes like- Man-slaughter Kidnapping Rape Robbery etc.

    25. DNA SAMPLING PROTOCOL To avoid contamination in DNA samples the I.O. must use: - clean hands with gloves - clean instruments to lift the samples - even in the mortuary the un-cleaned instruments may adversely affect DNA profiling - Use of proper BUFFER - Sterile environment as much as possible in packaging etc.

    27. R vs. Deen (1995 Crim. LR 464): To justify veracity of DNA evidence, two questions were formulated:- What was the probability that an individual would match the DNA profile from crime sample, given that he was innocent?

    30. An Important Case Law Santosh K. Singh vs. CBI

    34. What is a DOCKET An exhibit of a forensic sample Collected in relation to a particular crime From PO, in possession of accused, recovery u/s 27 I. E. Act-1882 etc. In presence of 02 independent witnesses Sealing, packaging, labeling & proper documentation of the sample With due permission of court, transit to diagnostic centre for desired testing/analysis

    35. Chandradevi vs. State of Tamil Nadu (MANU/IN/2335/2002): The issues before court were- Whether DNA evidence is generally acceptable in the scientific community? Whether the testing procedure is reliable? Whether tests were performed properly? Whether the conclusion is acceptable?

    36. This time court was wary of what happened in Priyadarshi Mattoo case, and thus accepted the DNA profiling as evidence to convict the accused. Pantangi Balarama Venkata Ganesh vs. State of A.P. (Cr LJ, 2003, 4508): Court relied on an article by Dr. Lalji Singh, and accepted DNA profile as conclusive evidence & observed “…..the DNA test gives the perfect identity. It is a very advance science”

    57. Threats to scientific investigation: Ignorance at various level Social Pressure – politicisation of criminal justice system at various levels Man power constraints Financial constraints Pressure by Media Prolonged Delay in Trial- need of FTC Degradation of Value System – breeding insensitivity, corruption,

    58. FALLOUT ARUSHI LIKE Cases

    61. Creating awareness among all the players in Justice System and common public Joint efforts at public -private sector Creating awareness about disaster management among common masses, introduction of a chapter in school curriculum, oraganising symposium, street plays (nukkad natak) etc. Inclusion of DNA Fingerprinting as admissible evidence in legal system

    63. Dr. G. K. Goswami, IPS goswami gk_ips@rediffmail.com

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