Introduction
Welcome to the official blog of the Law Offices of Kr. Vivek Tanwar Advocate and Associates, where we are dedicated to providing litigation support services for matters related to personal rights like DNA Tests. In today’s blog post, we aim to shed light on the prevailing issues surrounding issues against personal rights like DNA Tests, the legal framework in place for their protection, and the steps we can take as a society to combat these acts. Join us as we explore this critical subject and empower you with the knowledge to protect your rights and safety.
What Is DNA Test?
DNA (Deoxyribonucleic Acid) is a material found in body organs like hair, skin, and eyes. It is unique to each person, except in the case of identical twins. DNA evidence collected from the victim’s body is highly credible and offers a higher chance of recovering evidence compared to other sources. DNA is a crucial tool in determining whether a person is guilty or innocent of a crime. It can be extracted from bodily fluids found on the victim’s body or at the crime scene. While DNA testing is not yet widely used in our country, it has gained consideration after the recommendations of the Malimath Committee and the Criminal Amendment Act of 2005. The Supreme Court has also interpreted its admissibility as an expert opinion, as there is no specific statute for it. The court has suggested expanding the scope of the Indian Evidence Act. DNA testing is corroborative evidence, subject to cross-examination, and does not alone determine conviction or acquittal.
Provisions
DNA is extensively used to determine parentage in civil and criminal cases. Under Section 112 of the IEA, a child’s legitimacy is established if born during the marriage or within 280 days after the dissolution of the marriage, with the mother remaining unmarried. Previously, parentage was determined solely through presumptions, highlighting the limitations of the old system.
CASE : “Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik & Anr.”
It emphasized that when Section 112 of the Evidence Act was enacted, DNA testing was not considered. DNA tests are known for their accuracy, and the presumption of conclusive proof stated in Section 112 can be rebuttable with contrary evidence. The court believes that justice is best served by seeking the truth through the best available science rather than relying solely on presumptions.
In this case, the Supreme Court did not alter the presumption of the legitimacy of a child or remove the burden from the husband to prove the child is not his own. The court only provided the option for the husband to prove that he did not have access to his wife during the period when the child could have been conceived. The court prioritized DNA tests under Section 45 of the Indian Evidence Act over the presumption of legitimacy under Section 112. The Supreme Court reached this conclusion by considering the fundamental duties outlined in Article 51A (h) and (j) of Part IV A of the Indian Constitution.
Admissibility of DNA Tests in Rape Cases
The admissibility of DNA evidence in rape cases is a contentious issue due to the court’s discretionary powers and the absence of specific regulations or guidelines. The court determines the accuracy and suitability of DNA evidence, considering factors such as proper collection and testing methods.
CASE: In the case of “Patangi Balram Venkata Ganesh V. State of AP”, it was established that DNA aids in accurate identification, supporting its admissibility. The absence of relevant statutes, such as those in the Indian Evidence Act (IEA) and the Code of Criminal Procedure (CrPC), creates challenges for investigating officers in proving guilt.
The right to privacy has now been incorporated as part of the “Right to Life and Personal Liberty” under Article 21 of the Indian Constitution. Similarly, Article 20(3) states that no one should be compelled to provide evidence against themselves.
CASE: In the case of “Govind Singh V. State of Madhya Pradesh”, the Supreme Court declared that fundamental rights are subject to certain restrictions if those restrictions serve the public interest and are not absolute.
CASE: In the case of “State of Bombay v. Kathi Kalu Oghad”, the Supreme Court addressed a similar question regarding the constitutionality of DNA testing with respect to Article 20(3). It was concluded that being a witness, in the context of providing oral evidence, means imparting knowledge about relevant facts by a person who personally knows the facts to be communicated to a court.
Referring to Section 139 of the Indian Evidence Act, it is stated that producing a document does not make a person a witness unless called one. This distinguishes between a witness and someone producing documents. A witness provides factual information based on personal knowledge through oral statements. Providing bodily specimens for identification purposes, such as thumb impressions or palm prints, does not make someone a witness. Therefore, presenting DNA evidence is not considered a witness and is not unconstitutional under Article 20(3) of the Indian Constitution.
The need for DNA testing in rape cases emerged when the “Malimath Committee” recommended the use of forensic sciences in criminal investigations of rape cases. The committee recommended a uniform statute to govern DNA testing, collection, admissibility, and protection against misuse.
CASE: In “K.S. Puttaswamy v. Union of India,” the right to privacy is recognized as a fundamental right. As DNA reveals personal genetic information, consent must be obtained from the concerned party before collecting their DNA.
Evidential Value of DNA Test in Rape Cases
DNA tests in rape cases are considered expert opinions, as they require specialized knowledge. The court relies on experts to provide their expertise, as the legal system lacks medical science proficiency. Experts, such as biologists, can analyze bodily evidence and differentiate fluids to uncover hidden facts. However, expert opinions are not considered factual evidence and can be challenged. DNA tests serve as supporting evidence, not the sole determinant in a case. The court relies on other evidence to reach a conclusion, using DNA evidence to corroborate the findings. Therefore, DNA tests are important corroborative evidence but not conclusive proof in rape cases.
CASE: In the case of “State of H.P. v. Jai Lal”, the Supreme Court stated that an expert witness must have specific knowledge and expertise in the subject they testify about, gained through study, practice, or observation.
CONCLUSION
The article emphasizes the need to reconsider the admissibility of such evidence and establish clear guidelines instead of discretionary decision-making, considering the evolving nature of crime and detection methods.
We are a law firm in the name and style of Law Offices of Kr. Vivek Tanwar Advocate and Associates at Gurugram and Rewari. We are providing litigation support services for matters related to Constitution, Indian Evidence Act. We have a website on which we publish blogs informing the litigants about the said laws. Draft a blog which can be published on our website…..
Written by: Adv. Priyanka Goel (D/945/2020) .
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