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Forensic Law: A Developmental Study

Law is a product of fiats of a particular country or community recognized by the regulating members of it, to control its citizens by measures of imposing penalties. A Criminal Law is a law which punishes a person who commits transgression. The Indian Legal system provides a common criminal law for all its citizens governed by The Indian Penal Code, 1860 regulating the substantive aspects of the criminal law and Criminal Procedure Code, 1973 regulating the procedural aspects of the criminal law.

Though we have a concrete procedure to punish an offender and to define the transgressions in the country, we do not have any measures to find who is a real offender. The Indian Legal system is based on the principle of Let a hundred guilty be acquitted, but one innocent should not be… applying this principle sometimes renders injustice to many victims as the offenders by themselves won’t come to the police and the Indian police or the Justice system does not have any means other than direct evidences against the offender. So when a situation arises where there are no direct evidences the aftermath can be predicted. Forensic Law generally deals with the involvement of forensic scientists in examining such physical traces of a human being which can be made useful in identifying a criminals while investigation.

Backdrop of Forensic Law:- The word Forensics originates from a Latin term forensic meaning before the forum.i A question thus crops up is how did they utilize forensic science in the court rooms and how are we still utilizing it.

Forensic science is an exertion of science mainly in the investigation of criminal cases. It is governed by the proposition of Justifiability of evidence and Criminal procedure of the country’s legal system. The ancient legal system lacked standardized forensic practices and thus many of the transgressors escaped punishment, slowly and gradually its importance increased and forensic science developed in the area of law.

The developmental stages can be divided into:-

The Medieval Era (500-1500 AD)

The first account of forensic use was seen in the book of Song Ci of china named as Xi Yuan Lu (translated as Washing Away of Wrongs) 2 written in 1248 in China the book focused upon the necessity of autopsy report in an investigation, protecting the corroboration during investigation, the reasons for showing examinations to public without being partial, the methods which helps to make antiseptic and make the hidden injury from dead bodies and bones to appear again by using sunlight under red-oil umbrella and vinegar, this book also showed how to calculate the death time according to weather and insects described the ways to wash dead body for examining the different reasons of death. Thus, at that time the book showed the differences between a murder and suicide.3

The book also presented an example how the culprit was arrested with the help of flies showing the upshot that human blood cannot evanesce easily from the weapon used and thus can be helpful to predict the weapon used for committing the transgression and in a consequence catches the transgressor.

Certain various methods which were used around the world involved an appraisal of mouth and tongue to determine innocence or guilt, as an antecedent to the Polygraph test. In ancient India, suspects were made to fill their mouths with dried rice and where asked to spit it out back. Similarly, in ancient China, those charged with transgression had to put rice powder on their tongue. In middle-eastern ancient cultures, suspects were made to lick hot metal rods. It was their belief that a guilty person would have a drier mouth because of less production of saliva and thus if rice was sticking to their mouths in abundance or if their tongues were severely burned, the suspect would be considered guilty. A street merchant substantiated the recognition of a peculiar customer who owed him money and apprehended him by his fingerprints on an invoice. The judge undertook the prints as indisputable corroboration, and provided an early example of forensic science as a part of legal system.4

The Modern Era (1500-1800AD)

In 1659, through Merriam-Webster Dictionary the term Forensic was considered as official word of English language for the first time even after being used in medical tomes for several years. Now, it is been used regularly in our day-to-day life.v By the time of Enlightenment Era i.e. by 18th Century, the investigation of the transgression became corroboration-based rather than use of torment to receive confessions and this also curtailed the belief of paranormal thinking in the court room which formed a base for judicial decisions before forensics entered the court room. Two examples of use of forensic science in individual legal proceedings of English Law demonstrated the increasing use of logic and procedure at the time of investigations. In 1784, in Lancaster, John Toms was accused for murdering Edward Culshaw with a pistol. When the dead body of Culshaw was examined, a pistol lump used to secure powder and balls in the muzzle was found in his head wound which matched perfectly with a torn newspaper discovered from Toms’ pocket, leading to his conviction.6

The next example can be found in Warwick in the year 1816, where a young maid servant had been found submerged in a shallow pond having severe marks of violent assault. The police seized the transgressor by the footprints and a corduroy cloth with a stitched patch upon a muggy piece of land near the pool. They also found wheat grains and chaff near the cloth. The breeches of a farm laborer thrashing crops in the nearby field matched the corduroy cloth completely and thus was convicted and punished for his transgression. 7

The Post Modern Era (late 1800s-till date)

By 20th century the science of forensics has become largely utilized and an established sphere of investigation of transgression. The most mysterious case of Jack the Ripper, a person who killed a number of prostitutes in the 19th century was considered as a shed of water by employing forensic science into the investigation. Handbook for Coroners, police officials, military policemen which has been authored by the Austrian criminal jurist Hans Gross mostly in 19th century, was considered to be the birth of a domain called criminalistics, the book contained a combined work providing knowledge of various domains like psychology and physical science, which never co-existed together in former researches.

These domains can be successfully used against crime. Alphonse Bertillon, a French criminologist and also known as a creator of Anthropometry has used it for identification. He concludes that each individual is unique and by calculating the physical contrast, a personal identification system can be formed and thus he invented the Bertillon system in late 1870’s, this was a way to identify criminals and citizens by measuring 20 parts of their body uniquely. By 1884, almost 240 repeating transgressors were convicted through this system.8

Frances Glessner Lee, who is also known as "the mother of forensic science, furnished the Harvard Associates in Police Science, and carried out many seminars to educate homicide investigators. 9 By the past decade, documenting criminalistics scenarios has become more systematic and effective as Forensic scientists have started using laser scanners, drones and photogrammetry to obtain 3D representation of accidents by reconstructing the actual crime scenes and receiving accurate results with long term preservation. 10

The National Institute of Standards and Technology (NIST) provided the community of examiners with some directions upon which the science should be laid upon and it recommends the local laboratories to abide by these directions so that by 21st century forensics can become drastically different from what it was in the early years of the century. One of the more recent inclusions by the NIST is NISTIR-7941; which is entitled as Forensic Science Laboratories: Handbook for Facility Planning, Design, Construction, and Relocation this clearly showcases a framework on how to approach these aspects of Forensic Science. The detail contains the recommendations of selection of The detail contains the recommendations of selection of staff for certain positions. 11


Forensic helps the judicial process through various methods:

  1. Toxicology and ballistics: This method is used to detect arsenic presence in the corpses. James Marsh was the first to apply this new science to the art of forensics and was also frequently called up as an expert chemist for this field to present his evidence arsenic cases. He also formed a solution with the help of sulfuric acid, arsenic and arsenic-free zinc, resulting in arsine gas. This gas was able to detect even a one-fifth of milligram of arsenic present in the corpse.
  2. Anthropometry: It is the science of obtaining systematic measurements of the human body, was developed in 19th century to overcome the defects of recognizingtransgressors by their name and photograph. Anthropomorphic measurements include size, structure and composition of humans. 12
  3. Fingerprints: Fingerprints is an impeccable means of personal identification, because the arrangement of every human finger’s pinnacle is unique and does not alter with growth or age. Sir William Herschel was one of the first users of fingerprints in the identification of transgressors. While he was working for the Indian Civil Service, he began to use thumbprints on documents as a security measure to prevent the rampant use of forged signatures in 1858.
  4. Uhlenhuth test: It serves as a forensic and test which has been used since 1901 by American Forensics to detect the extant antibodies in a person’s blood cells. It can also used to determine the paternity of children and also type of blood a child posses, this also plays a very vital role to suspect a transgressor when an alien blood stain is found upon a victim.
  5. DNA: Basically used to study the genes of an individual. Similar to fingerprints, each individual has a unique DNA profile keeping beside the genes of identical twins, who share the same genetic code. It was first used by British scientist Alec Jeffrey in 1985 to solve a double murder case with reference to previous murder cases.
  6. 13 Forensic Odontology: It helps in the identification of victims when the body is left in an unidentifiable state. This can be achieved through scrutiny of their teeth, the alignment, and overall structure of the mouth. Forensic Pathology and Medico-legal Death Investigation: Forensic pathology helps in discovery of the grounds of death by scrutinizing the corpse. Forensic medicine involves collection and analysis of medical samples to draw inferences of factsadmissible in the court of law.
  7. Cyber Forensics: Cyber criminalistics involves the analysis of evidence found in computers and media storages like pen-drives, hard-disks etc. Its major motive is to indentify, preserve, recover, analyze, and present the facts and opinions of digital facts and figures. It’s mostly use for the investigation of cyber crimes, and civil lawsuits. 9) Criminal Profiling: It is based on a psychological assessment of the belongings seized from an offender and helps to draw a complete social and psychological report of the offender. The basic steps of criminal profiling include, in-depth analysis of the crime scene, analyzing the incidence and drawing out comparisons with similar happenings like it in the past, evaluation of the victim’s background and activities; considering all possible motives for the committing the transgression, and preparing a detailed description of the suspects in order to compare it with preceding cases etc.

Application of Forensic Science in India:

The implication of science and technology to detect and carry out investigation is not new, since Kautilya’s Arthashastra we can find foot prints of science used in investigation. The Indians knew for more than a really long period of time that the handprints, were idiosyncratic and thus were used as signatures by illiterate people in India, some people considered it as a ritual until it was scientifically proved that spotting transgressors through fingerprints was infallible.

Various laboratories and bureaus were formed to investigate the evidences and prepare a forensic report. They are like: Chemical Examiner’s Laboratory at Madras in 1849 to isolate, detect and estimate various venoms in the human system. Criminal Investigation Department (CID) and Anthropometric Bureau, to maintain anthropometric records of criminals, were established in 19th century. The first ever fingerprint bureau of the world was established in Calcutta, India in 1897. Similarly serology department, Footprint Section, ballistic laboratory, state forensic science laboratory etc. were also established. Though these have been established at such an early age we still not have concrete development in our science and thus a lot of transgressors are acquitted because of limitations to use forensic science in court rooms. 14

Admissibility of Forensic Science in Indian Court Rooms

Section 45 and 46 of Indian Evidence Act gives a brief about admissibility of forensic report in court room. The ingredients of Section 45 and 46 are:

  1. Whenever the court feels necessary will put faith on skilled individuals who have technical and field knowledge about the facts so discussed in the case.
  2. The court will rely upon the report presented by the official or expert who has concluded his results through various techniques with bona fide intention.
  3. Whatever evidence which appears irrelevant to the court but seems relevant by the opinion of the expert will be given relevance because of such opinion.

Various cases of India were forensics’ reports were not only admitted but also justice was rendered solely relying on such reports are:

  1. In the case of Kishan Chand Vs State of Himachal Pradesh, the accused was tried for the offence of committing rape of a child between 10-12 years and was convicted for the offence by the help of forensic reports by experts corroborated with the circumstances. The techniques used by the RFSL of Mandi were DNA profiling, Benzidine test, Gel-diffusion technique and Acid Phosphatese test.15
  2. Also in the case of Mukesh and ors. Vs State of Delhi the accused were acquitted of charges of dowry and were saved from the false allegations of wife who said she had been subjected to dowry cruelty and has been poisoned whereas the forensic report clearly shows that there was no poison in her stomach after conducting the tests of Toxicology and ballistics. Etc.16

This shows how forensic report helps in deciding cases but though there are some cases where it has been totally neglected by the judges either in pressure or because of lack of corroborated evidences to sustain the report. In the Famous Aarushi Talwar case or the Noida double murder case the victim’s parents were alleged for her murder and their servant. They were alleged of honor killing, though forensic reports coupled with the narcotics test denied the act but as there was media pressure and no other evidences were found they were convicted. 17 Many such cases are there were forensic reports are not presented even though required and judgment is rendered without considering the medical aspect of the victim.

Thus, Indian laws have lacuna while considering the forensic aspect. Though there is a concept in the Indian legal system that forensic report is the pedestal of the investigation with the charge-sheet formed by the police, still the Indian courts neglect it and refuse to consider it as a sole evidence because of the orthodox thinking that India being an corrupted state where forensic reports can be tempered by just paying a handful of money to the investigating officers or else they consider eye-witnesses as a pure and steady evidence on which they can rely upon. Not only India does not consider the positive effects of Forensic Science but also does not want to upgrade its legal system with foreign methods as it still believes in punishment rather than restorative justice (still a peripheral concept for the Indian legal system).

Unlike defects in Indian legal System we also have certain Drawbacks of current Forensic Science application:

  1. It lacks scientific certainty as because of human intervention it becomes subjective to the investigative officer and also the labs are not well equipped with the new advanced machines or techniques.
  2. The Indian forensic department lacks research as compared to other countries.
  3. Forensic science though is a developing field in the world, India still lack participation of people and thus it remains neglected.
  4. The rates of bribe, bias and partisanship are escalating because the scientists lack ethical codes.
  5. The Indian forensic department lacks technical staff which hinders the reliability of the report and so on.18

Conclusion:
To conclude with I would just like to mention that these drawbacks are just rotten apples of the system and every domain has some kind of pitfalls with it and the only solution to it is to solve them or deviate them from the system. The judiciary should have a regular check upon the discipline so that the ultimate fruit of forensic science can be achieved which can even sweeten the Indian Judicial System and can be used as a backbone to render justice and equity to every personnel who knocks the door of the judiciary.

References:
  1. Shorter Oxford English Dictionary (6thed.)
  2. Song, Ci, and Brian E. McKnight.The washing away of wrongs: forensic medicine in thirteenth-century China. Ann Arbor: Center for Chinese Studies, U of Michigan, 1981. Print. p. 3.
  3. Song, Ci, and Brian E. McKnight.The washing away of wrongs: forensic medicine in thirteenth-century China. Ann Arbor: Center for Chinese Studies, U of Michigan, 1981.
  4. Origins of Forensic Science- Criminal Museum;
  5. Origins of Forensic Science- Criminal Museum;
  6. McCrery, Nigel. Silent Witnesses. London Random House Books p. 51. Archived from 13th May 2016
  7. Kind S, Overman M (1972). Science against Crime New York City: Doubleday. Pp. 12-13
  8. https://www.encyclopedia.com/social-sciences-and-law/law/crime-and-law-enforcement/bertillon-system
  9. Murder is Her Hobby: Frances Glessner Lee and the Nutshell Studies of Unexplained Death
  10. Hawkins, Stuart (November 2016). "Using a Drone and Photogrammetry Software to Create Orthomosaic Images and 3D Models of Aircraft Accident Sites"(PDF).
  11. https://nvlpubs.nist.gov/nistpubs/ir/2013/NIST.IR.7941.pdf.
  12. Biologydictionary.net/anthropometry/.
  13. http://www.theprotector.in/role-of-forensic-science-in-the-criminal-justice-system/.
  14. Tewari R K, Ravikumar K V. History and development of forensic science in India. J Postgrad Med 2000;46:303 Available at: http://www.jpgmonline.com/text.asp?2000/46/4/303/250.
  15. Kishan chand vs state of Himachal Pradesh on 16th March 2018 Cr. Appeal No. 620 of 2015. Available at: https://indiankanoon .org/doc/12552359/.
  16. Mukesh and ors. Vs State of Delhi, Delhi High Court, 15th December 2014. Crl. A. No. 784 of 2008. Available at: https://www.casemine.com/judgment/in/5bc2329b9eff430e946ab654
  17. Dr. Rajesh Talwar and Another V. Central Bureau of Investigation 2013 (82) ACC 303.
  18. Forensic Scientific Evidence: Problems and Pitfalls in India, SCIDOC publishers.
Written By: -Khushi Shah  

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