ROLE OF DIGITAL FORENSIC IN CRIMINAL JUSTICE ADMINISTRATION BY - SUDHIR KUMAR DWIVEDI
ROLE OF DIGITAL FORENSIC IN CRIMINAL JUSTICE ADMINISTRATION
AUTHORED BY -
SUDHIR KUMAR DWIVEDI[1]
Abstract:
Identification of accused
and victim is very crucial part of crime investigation. Code of Criminal
Procedure and some other laws have specific provisions for identification of
accused. There are various mechanism for identification of accused like, test
identification parade, documentary evidence etc. but these have not been always
useful, because accuracy of identification through identification parade depends
upon various variable like time gap in conducting identification, ability
physical as well as mental of the identifier to identify. By the advancement of
science and technology, mode of identification has drastically changed. Use of
science and technology like DNA Profiling, face recognition through camera,
biometrics, brain mapping, Norco analysis, etc have played a very important
role in this field. There is no specific provision in adjective or procedural
law for the identification of victim/victims. In cases where crime has been
committed against specific targeted person, in those case identification of the
victim is not always been issue but in cases where crime has not been committed
against specific victim in those cases identification of real victim or how
many victims are there is really uncountable. In modern time nature of offence
is changing day by day they are not limited to offence mentioned in the IPC
rather the scope of offences is limit less. A number of cyber-crimes are
committed daily unfortunately peoples are not aware about such offences and
they go unreported. Even offences mentioned in IPC are now committed with
modern weapons and techniques in such case identification of victims has become
tough task for investigating agencies.
Generally, in reported
cases identification of victims not comes in issue; however various new mode of
commission of crime has created a new problem in crime investigation that is
identification of real victim. Crimes committed by use of science and
technology is generally not committed against a single victim, list of victims
in such crimes may be endless, because in such cases crime is not committed
against fixed victim, rather it may be anyone who are soft target of such
criminals. When crime is committed against
body and crime is so brutal and heinous that identification of victims becomes
almost impossible task, in such cases forensic science is the last resource to
identify the victims.
Forensic science is one
of the most important tools in identification. Various areas of science and
technology are ultimately dependent on the forensic science for the accuracy of
the result.
Forensic science is an
important component of the criminal justice system. Forensic science is playing
very important role not only in crime detection but also in identification of
accused and victims.
Forensic scientists
examine and analyses evidence from crime scenes and other locations in order to
develop objective findings that can aid in the investigation and prosecution of
criminal perpetrators or clear an innocent person of suspicion. The main thrust
of this paper is to analyse different provision related to identification of
accused and victims and the advancement of forensic science has impacted the
process of identification. Author will suggest some factors to be taken into
consideration while considering scientific evidence for the final determination
of identity.
Key words: Scientific Evidence, Evidentiary
value, Scientific Investigation, Forensic Science.
Criminals use coercion to
influence eyewitnesses in cases, making it difficult to obtain witnesses.
People become apprehensive about providing evidence to investigation agencies7.
Most of the time, criminals threaten the witnesses lives as well. The
significance of these forensic investigations grows exponentially in these
types of circumstances. Nowadays, various methods are used, such as medical and
physical examinations, fingerprinting, footprinting, and a variety of other
methods. To make a decision, a well-qualified individual must be enrolled. The
authenticity of forensic evidence is determined by the conditions upon which it
is based and the effectiveness with which arguments are made.[2]
Although the requirement
of authentic evidence is nowhere mentioned in the Act of evidence, the courts
prefer them over others in general, according to their policy.[3] The courts will look into the matter
thoroughly if the expert cannot form a conclusion based on the facts of the
case or the condition.[4] If two different experts disagree on the
evidence, it will lose its persuasive power. In that case, the exporter's point
of view should not be followed. Before taking the matter into consideration,
the court will conduct a thorough investigation. These types of evidences
cannot also be considered if they are in flagrant violation of the provisions
of the Evidence Act of 1872, or the provisions of the Indian Constitution. Some
controversies are currently raging over certain provisions, such as whether
fingerprints should be excluded from the category as a violation of the
constitution[5].
The Hon'ble Court
considered the issue of illegally occupied evidences in the case of State of
Maharashtra v. Natwarlal Damodardas Soni[6]. It was determined that, while the evidences
had been occupied illegally, they were equally maintainable in court and their
validity in a court of law was not affected. In this delicate case, the court
will focus solely on the general admissibility of evidence. This point of view
has been supported by the Supreme Court in other decisions. The Hon'ble Court
responds favourably to the evidence presented using modern technologies. The
courts have accepted superimposed photographs[7],
oral evidences, and other forms of evidence as evidence.
What is Forensic science?
Forensic science is more
than just a branch of science concerned with crime and investigation. Forensic
science is that piece without which the puzzle of a criminal investigation is
incomplete. Without the appliance of forensic science, criminals can never be
convicted unless an eyewitness is present. While detectives and enforcement
agencies are involved within the collection of evidence, be it physical or
digital, it’s forensic science that deals with the analysis of these evidences
in order to establish facts admissible in the court of law[8]. Thus, in a world devoid of forensic science,
murderers, thieves, drug traffickers and rapists would be roaming scot-free[9]. A
diverse pool of forensic scientists and forensic tools are involved in the
investigation of a criminal act. For instance, forensic pathologists are
skilled at determining the cause of death by performing autopsies. An autopsy
helps in establishing the cause and manner of death through the examination of
body fluids and tissues. Forensic scientists analyze physical evidence
(fingerprints, blood, hair etc.) collected from the crime scene to identify
suspects. Forensic professionals also use image modification tools to search
for criminals absconding from the law for a long time. This tool enables them
to digitally age a photograph to understand how the individual would look on
ageing[10]. These tools now a day has become the need due
to advancement of technology. However, there examples of some of the tools were
used in past as well.
Use of Forensic Science in Crime Investigation and
Identification
Sir Arthur Conan Doyle
(Smith 2012) was a physician who helped shape criminal profiling. Conan Doyle's
fictional Sherlock Holmes used many areas of science, including chemistry,
bloodstains, and fingerprints, to catch the exact criminal at a time when real
life investigators found it difficult to catch the real killers. His character,
Sherlock Holmes, also ensures the safety of the crime scene as well as the
contamination of the crime scene under investigation.
Conan Doyle used his
knowledge to solve many cases in real life as well. Edmond Locard who
established the first forensic science laboratory applied his knowledge of
forensic science to legal matters. He developed a theory about the transfer of
trace evidences between objects, which is now known as Locard's exchange
principle. He stated that "every contact leaves a trace," which had a
significant impact on the field of
forensic science. This is a fundamental principle of the investigation
process. Forensic science cannot be limited to a few branches; it is a broad
field of science that connects all branches to solve the mystery behind each
crime.[11]
As technology advances,
the number of applications in forensic science grows. In terms of evidence
collected, the laboratories and branches differ from one another. As technology
advances, so does the type and manner of crime. This complicates the
investigation and makes it difficult for the officers on the scene to solve a
crime. This is where the use of forensic science comes into play in solving the
crime.
Branches of Forensic Science Helpful in Identification
Fingerprint &Footprints
Forensics
Indians used fingerprints
as a distinguishing feature that distinguished one person from another.
Fingerprints were used as signatures by Minoans, Greeks, Chinese, and others in
200 BCE, and they were used to sign written contracts in Babylon (Sonderegger
and Peter 2012)[12]. Fingerprints have been the gold standard for
personal identification in the forensic community, and they remain so despite
the discovery of DNA fingerprints. Human fingerprints are unique, difficult to
alter, and durable over an individual's lifetime, making them suitable as
lifelong markers of Human Identity. The fingers have papillary ridges with
complex patterns that differ from one another. The patterns discovered differ
not only from one individual to the next, but they are also distinct and unique
within an individual. Fingerprints can
be easily used by police or other authorities to identify people who want to
conceal their identity, or to identify people who are incapacitated or
deceased, such as in the aftermath of a natural disaster[13]. In State of UP v. Sunil[14],the
Court ruled that a person's footprints can be used to support evidence and that
this is not a violation of Article 20(3) of the Indian Constitution of 1950.
Digital Forensics
Donn Parkers’s book Crime
by computer is expected to be the first book to use digital information to
investigate a criminal activity using a computer[15].
In a case[16]
the Petitioner's mobile phone was seized for questioning regarding an old
criminal case, while he was in custody. The Court ruled that information
gathered from a smartphone or email account will not ipso facto establish the
accused's guilt and must be established during the trial. According to Section
311-A of the CrPC, it is more than just a specimen or signature. The Court also
decided that requiring the password, passcode, or biometrics would not
constitute testimonial compulsion or self-incrimination because these are the
only facts that must be proven by both sides during the trial. It is noteworthy
that information gathered through digital forensic may established the identity
of the owner or user.
Forensic Odontology
Dr. Oscar Amoedo
("Father of Odontology") in his article ‘Dental Cosmos’ described the
disaster's identification procedures and proposed a methodology to be used as a
foundation in the future[17].
Identification of dead
bodies in mass disasters such as fires, explosions, floods, and airplane
crashes, is most difficult tasks for law enforcement, especially when the
bodies have been charred, dismembered, mutilated, or have reached an advanced
stage of decomposition. Here dental characteristics can be used to identify the
person. Bite marks patterns are analyised to identify, especially in crimes
like burglary, sexual crimes, and so on. Forensic odontology is gaining
recognition and acceptance as a method of identification in cases where only
skeletal or dental marks remains[18].
Despite recent advances in DNA technology, dental identification remains a
quick and cost-effective method for identifying human remains. Even if only a
few teeth are available, an opinion on age, habits, oral hygiene, and
individual features can be provided, which may match ante mortem records[19].
Forensic Chemistry
Forensic Chemistry is the
application of Chemistry to the examination of unknown materials discovered at
a crime scene[20]. A forensic chemist tests samples collected by
detectives and investigators in the lab. These chemists are typically educated
in organic chemistry as well as physics. Organic Chemistry aids scientists in
identifying DNA by allowing them to run analyses on body samples. Toxicology
screenings are also performed. A
forensic chemist may be called to a crime scene to examine things like blood
patterns, the range of attack, whether the injury was intentional or
accidental, and so on[21].
Forensic Serology
Blood grouping is an
important factor in identifying and confirming the suspect. Paul Uhlenhuth and
Karl Landsteiner stated that there are differences in blood between individuals
and they grouped them as A, B, AB, and O, and he combined blood serum from
different individuals and observed antigen reaction. Paul developed a technique
to detect the presence of antibodies and Alec Jeffrey discovered patterns of
DNA that could be used to recognise and distinguish one individual from
another. This method was first used in case where two teenagers raped and
murdered in 1983 and 1986 respectively. Richard Buckland who confessed to the
second crime, was of suspect of 1st case as well. His sperm sample was
analyised and compared two both cases. It was found that samples are matching
in both cases of the murdered victims. It was the first time a DNA dragnet was
used[22].
Trace Evidence Analysis
Trace evidence refers to
all small pieces of material collected from crime scenes and accidents that aid
in the investigation of these incidents[23]. These traces are frequently microscopic and
are unknowingly left at the crime scene by the perpetrators as a result of
interaction between objects and individuals. Human and animal hair, natural and
manmade fibres, fabrics, rope, soil, glass, and building materials are common
trace evidence samples. The presence of a physical fit, such as a fracture
match, is critical for trace evidence analysis to identify a common source and
accused/victim relation with incident[24].
DNA Analysis
DNA Typing has massive
publicity due to high-profile cases, TV crime shows, and films. DNA proofing has
become a well-known technique for the identification and other purposes in
criminal and other legal cases[25]. With advancement of DNA technology scientists
are able to analyse smaller biological samples in order to create a DNA
profile. Skin cells are used to link the person with touched article or weapon.
This low-level DNA is also known as "touch DNA." It can even be
extracted from a victim's skin or bruises where they have been abused[26].
Low-level DNA samples may be useful where fingerprints would be difficult to
recover, such as textured surfaces on gun handles or car dashboards. In
forensic DNA profiling, the uniqueness of an individual's DNA is used for
identification purpose. Based on the biological components left on them, DNA
evidence can help to link an individual with object or a crime scene. Because
every nucleated cell in the body contains DNA, any biological fluid, skin, or
viscera can provide DNA for analysis. Individuals have 0.1 percent of their DNA
that is unique and is used for individualization; however, this has limitations
for monozygotic twins.
Issues pertaining to use for forensic science in
Investigation and Identification
Forensic science, using
evidence found at the scene and scientific technology, provides the
investigating officer with a magnificent piece of information. They assist the
court in determining answers to specific questions, such as how the crime was
committed. What exactly is the crime? Who are the potential suspects? And by
answering all of the questions, they attempt to recreate the crime and
determine the reason for the crime's commission, thereby reaching out to the
criminal.
Though forensic science
has made significant contributions to the criminal justice system, the
limitations of the law must not be overlooked. A few questions have arisen in
the minds of many legal professionals, such as whether forensic evidence is
admissible in a court of law. In what ways are these techniques legal?[27]
Since the beginning of
time, there has been much debate about whether forensic evidence presented in a
court of law violates the fundamental provision of the law. According to
Article 20(3) of the Indian Constitution, “No person accused of any offence
shall be compelled to be a witness against himself." This principle is based
on the maxim "nemo teneteurprodreaccussareseipsum," which translates
as "NO MAN IS OBLIGATED TO ACCUSE HIMSELF." In the case of Nandini
Satpathy v. P.L Dani[28],
self-incrimination was extensively discussed. According to the Supreme Court,
the purpose of Article 20(3) is to protect the accused from unnecessary police
harassment, and thus it extends to the stage of police investigation in
addition to the trial procedure.
The Fundamental Right
guaranteed by Article 20(3) provides a shield against testimonial compulsion
for people accused of an offence and forced to testify against themselves. In State
of Bombay v. Kathi Kalu Oghad and Anr.[29],
the Supreme Court ruled that compelling anyone to provide forensic evidence
such as fingerprints, blood, hair, or sperm does not violate the provision of
Art. 20. (3). The same is stated in Section 73 of the Indian Evidence Act[30],
which states that anyone, including the accused, can be asked to provide a
fingerprint or DNA examination. In Selvi and Ors. v. State of Karnataka and Anr.[31],
the court held that the person giving statements in brain mapping or
narco-analysis test is in a semi-conscious state and thus cannot be considered
conclusive.
Section 53 of the CrPC
provides that a person accused of any crime may be asked to undergo a medical
examination if the officers believe that the examination will provide some
evidence to the crime[32]. As per section 164A the rape victim should be
examined within twenty-four hours by medical examiner[33]. Certain amendments to Criminal Procedure were
made in 2005[34] to
include the examination of blood-stain, DNA profiling, sperm test, swabs, hair
samples, and so on, but it was limited to rape cases.
In Mukesh and Another
v. State (NCT of Delhi) and Others[35]the
Supreme Court in this judgment emphasised upon the importance of DNA report as
per Section 53 and 164A of Code of Criminal Procedure, 1973 and held that a DNA
report should be accepted unless it is absolutely dented and there should be no
error in sampling and no indication of tampering of samples.
In Sharda v. Dharampal[36]the
Supreme Court held that matrimonial court has the authority to order a person
to undergo a medical examination like blood test etc and that is not in
violation of Article 21 of the Constitution.
Judicial Approach
Selvi and others vs.
State of Karnataka[37]
Nacro-analysis,
brain-mapping, and lie-detector tests cannot be performed on an accused without
his consent, as this would be a violation of Article 21 of the Constitution. No
one should be forced to use any of the techniques in question, whether in the
context of a criminal investigation or otherwise. This would be an unjustified
intrusion into personal liberty. However, it is for the voluntary use of the
contested techniques in the context of criminal justice, as long as certain
safeguards are in place.
Dharam Deo Yadav v.
State of U.P.[38]
Diana, a 22-year-old
tourist from New Zealand, was assassinated in Varanasi. Identification by DNA
test was done. A skeleton DNA sample matched a blood sample from her father.
The accused was convicted based on circumstantial evidence.
Justice K.S.
Puttaswamy (Retd.) and others v. Union of India and Others[39].
The Supreme Court
considered whether the provisions of the Aadhaar Act violated the right to
privacy.The Aadhaar Act was deemed constitutional insofar as it allowed for
Aadhaar number- based authentication for establishing an individual's identity
for receipt of a subsidy, benefit, or service provided by the Central or State
Government and funded by the Consolidated Fund of India.
Nandlal WasudeoBadwaik
v. Lata Badwaik[40]
The petitioner filed a
maintenance petition in which she sought support for herself and her daughter.
Her husband disputed the child's paternity and requested a DNA test. The
Supreme Court ruled that the DNA test is reliable. Section 112 of the Evidence
Act was enacted at a time when modern scientific advancement and DNA testing
were not even considered by the legislature. When there is a conflict between a
conclusive proof contemplated by law and a proof based on scientific
advancement accepted by the world community to be correct, the latter must take
precedence.
Dipanwita Roy vs.
Ronobroto Roy[41]
In this case, the husband
has sought divorce from his wife due to alleged infidelity by her, and he has
applied for a DNA test to prove paternity of the child. The Supreme Court
explained the significance of DNA testing by stating that DNA testing is the most
legitimate and scientifically perfect means by which the husband could
establish his claim of infidelity.
Gopal Sharma v. State
of Rajasthan[42]
In this case
identification was established on the basis of footwear prints not on the basis
footprints court held that where a large number of people had gathered at the
crime scene, identification cannot be established solely on the basis of
footwear prints. The Court also emphasized that footprint evidence is a weak
piece of evidence that can only be used to support the Court's conclusion based
on other evidence.
Raj Kumar v. State of
Uttar Pradesh[43]
The current case involves
the rape and murder of a young girl by a neighbour. The younger brother
witnessed the crime. According to the post-mortem report, the deceased was
raped. The DNA report confirmed this. And The Supreme Court noted that the DNA
report plays an important role in revealing the identity of the accused
involved in the rape of a minor girl and upheld the lower court's finding of
facts.
Sandeep v. State of
Uttar Pradesh[44]
In this case, the accused
forced the girl to abort the foetus, but she refused, and she was murdered as a
result. The foetus extracted from the deceased womb was sent for DNA testing.
The DNA test revealed that the accused is the biological father. The Supreme
Court relied on the DNA report to conclude that the accused was the biological
father of the recovered foetus.
Narayandutt Tiwari v.
Rohit Shekher[45]
The issue was regarding
identification of biological father. While ordering for DNA test the Court
noted that DNA profiling is a modern scientific method that has been accepted
in all jurisdictions for conclusively identifying parents. Given the accuracy
and value of DNA profiling, this test has the potential to either confirm or debunk
an identity.
Mohd Amir Kasab v.
State of Maharashtra[46]
On November 29, 20th,
terrorists attacked Mumbai and killed one hundred people. Mohammed Amir Kasab,
a terrorist, was apprehended. The items seized from the boat they used to
arrive in Mumbai. DNA profiling linked the accused and his five accomplices.
The Supreme Court
observed that DNA evidence was crucial in identifying and implicating the
accused in the incident of waging war against the government of India. One of
the circumstantial evidencesused to prove the case was DNA evidence.
Sushil Kumar v. State
(N.C.T. of Delhi)[47]
In this case, Sushil
Sharma shot and killed his wife Naina, before attempting to burn her body in a
tandoor. The revolver and blood-stained clothes were recovered by police and sent
to a forensic lab for examination. A blood sample was taken from each parent.
The DNA analysis confirmed that the charred body belonged to their daughter
Naina Sahni. In this case, DNA evidence is crucial in identifying the charred
body of the deceased Naina Sahni.
PremjibhaiBachubhaiKhasiya
v. State of Gujarat and Anr.[48]
In the case due to
absence of any other evidence, the High Court had to decide whether the DNA
analysis could be the only basis for proving the accused's guilt of rape. The
Court decided that a positive DNA finding can have a significant impact in
cases where such evidence is present, based on the quality and strength of the
supporting evidence. However, if it is the only piece of evidence, it cannot
correct the identification. Assuming the evaluation is ominous, the blamed
would be completely cleared for the allegation.
Pattu Rajan v. State
of Tamil Nadu[49]
In this case, the
appellant was found guilty of culpable homicide, which does not constitute
murder. The superimposition method, in which a photograph of the deceased was
superimposed over the image of the recovered skull, was used to identify the
deceased person's body. The Court reiterated that it is the duty of an expert
witness to assist the Court by providing the report based on their expertise
along with reasons so that the Court can form its own independent judgment by
evaluating such materials while discussing the argument regarding the absence
of DNA profiling.
Hari Om @ Hero v.
State of Uttar Pradesh[50]
The Supreme Court ruled
that if fingerprint report did not specify the method used to extract latent
prints, this may lead to its dismissal of the fingerprint evidence. If prints
have not been taken by experienced person, then uniqueness of finger impression
may lost and if there was no substantive evidence to link the accused to the
crime, even if the fingerprint evidence was accepted, this cannot be sole basis
of conviction.
Conclusion
The justice system has a
strong faith in forensic science and has relied on it for centuries to deliver
verdicts. Forensic reports are regarded as belief tendered by experts and are
considered the bible for many judges. However, courts are not bound by the
reports and can consider other evidence.
However, this is a
developing area of law, and states laws governing the collection of DNAs from
arrestees vary. A court order is sometimes required to obtain a reference from
a person of interest. Unless the victim refuses to cooperate with the
investigation, reference samples are always collected from them; in that case,
a court order may be required.
[1]Reserch Scholar, Faculty of Law, Jamia
Millia Islamia Central University, New Delhi.
Email: adv.skdwwivedi.@gmail.com
[2]Emperor v. Sahadeo, 15 CrLJ 220,
230
[3]Saqlain Ahmed v. Emperor, AIR 1936
All165
[4]Alock v. Royal Exchange Assurance
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[6]AIR 1980 SC 593
[7]Ram Lochan Ahir v. State of W.B.,
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[17] Supranote16
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[28]1987 SCC (1) 279
[29]AIR 1961 SC 1808
[30]Section 73 of the Indian Evidence
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[31]AIR 2010 SC 1974
[32]Section 53 of the Criminal
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[33]Section 164A of the Code of
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[34]Criminal Law (Amendment) Act, 2005,
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[35](2017) 6 SCC 1
[36]AIR 2003SC 3450
[37]AIR (2010) SCC 263
[38]AIR (2013) SCC 643
[39]WRIT PETITION (CIVIL) NO. 494 OF
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[40]AIR (2014) 2 SCC 576
[41]AIR (2015) 1 SCC365
[42]2016 (4) RLW 3297 (Raj.)
[43]AIR (2014) 5 SCC353
[44]AIR (2014) 4 SCC69
[45]AIR (2003) 3 SCC3450
[46]AIR (2012) 9 SCC 1
[47]AIR (2014) SCC 317 (4)
[48]2009 CRI. LJ 2888
[49](2019) 4 SCC 771
[50](2021) SCC Online SC 2