The Indian Evidence Act, passed by British parliament in 1872 has within it
rules and regulations concerning the admissibility of evidence in the court of
law. The Law of Evidence comes into the domain of both the Adjective laws and
the Procedural laws through which the pleadings and proceedings of the court
take place.It has a very long history in our country comprising of the
- The Hindu period wherein the law of evidence was supposed to be emanated
from the Hindu Dharmashastra. Here, the desire to ascertain truth is
- The ancient Muslim Period where the law is mentioned in the book
Muslim Jurisprudence written by Sir Abdul Rahim under the headings of oral and
- The British era where the presidency courts in Bombay, Madras and
Calcutta followed the English rules of law of evidence. But in mofussil courts,
there were no definite rules regarding the law of evidence leading to
haphazardness and chaos in the system of the administration of justice.
Need arose for codification of rules of law. So, between 1835 and 1853, 11
enactments related to the Law of Evidence were passed but proved to be
inadequate. Several committees were set up under the chairmanship of distinct
leaders like Sir Henry Maine, Sir James Fitz James Stephen and finally, the
Evidence Act came into force on 1st September, 1872.
The article analyzes the validity and the effectiveness of the increasingly used
scientific evidence in the court of law. Day-after-day, the reliability on the
traditional system of evidences, especially in the criminal trials is decreasing
because of various factors. The Indian criminal justice system is in the stage
of transformation. But, there are various hurdles regarding the admissibility of
scientific evidences in the court of law. Also, it is imperative to know what
the Constitution says regarding it. The efficacy of the Narco-analysis test
needs to be given a second thought. There are various precedents in the Indian
criminal justice that can prove helpful.
Concept and definition of evidence:
is derived from the Latin expression Evidens Evidera . It describes the state of being evident or plain. The fact which needs
to be proved is called principal facts and the fact which tends to establish it
is known as the evidentiary fact. It is, thus used as a meaning to assert
whether a given fact is relevant to matter under inquiry.
- Oral evidence includes the statements which are permitted by the court
and required to be made before it by witnesses. These statements are related
to matters of fact under inquiry.
- Documentary evidence includes the documents produced for inspection by
the court. Electronics record can also come under this.
Bentham defines it as any matter of fact whose effect, design or tendency
produces an affirmative or disaffirmative persuasion about the existence of some
other matter of fact in the mind. According to Taylor, evidence has within its
ambit all facts except the arguments whose purpose is to prove or disprove any
matter which is under inquiry in judicial proceedings.
Further, the documents are of two types, Primary and Secondary. Both of them may
be oral or documentary.
Primary oral evidence refers to what the witness has
herself or heard or gathered by her senses (direct). Hearsay evidence is example
of indirect oral evidence. Similar is the classification for primary and
secondary documentary evidences. But the primary evidence is said to as the best
or original evidence as they are more reliable for proving the point in question
without any kind of inference or reasoning. On the other hand, indirect
evidences lack this capacity, though this is not always true.
J was murdered at 6-pm in his own house. K saw L coming from house
of J at 6:10 pm with a blood stained knife in his hand. M gave evidence that J
and L had a very ugly fight the day before the murder occurred. A police officer
seized blood stained knife from shelf in J's house. An expert found out that the
blood of the deceased and the one present on knife was same. This chain of
events is referred to as the circumstantial evidence.
Scientific Evidence and Criminal Trial:
At the very first, the meaning of the two terms scientific evidence and criminal trial needs to be clarified .In simple terms, scientific evidence can
be defined as the evidence presented before the courts produced from scientific
tests or studies. And the criminal trial is the procedure through which the
punishment of crimes is decided. It's not hidden that the criminal trial in our
country is a tedious and complex process.
The various types of criminal trials
are mentioned in The Code of Criminal Procedure, 1973 as:
- Warrant trial- 7 yrs or more
- Summon trial- Max 2 yrs
- Summary trial- Max 6 months
Be it any kind of trial, the law of evidence comes into use at various stages of
criminal trial such as investigation by the investigating officer, the
prosecution requiring evidence to prove the guilt of the accused and then the
defence evidence. Well, there are various reasons for which the scientific
evidence is being increasingly used in the criminal trial system of our country.
An important case in this regard is the Selvi v. State of Karnataka
in which a
landmark judgment was given in the history of Indian judiciary. The first batch
of appeals was filed in the year 2004 by Smt. Selvi and the subsequent appeals
in 2005, 2006, 2007 and 2010. These were collectively taken up by the Supreme
Court on 5th March, 2010.
Many allegations were raised regarding the instances
where the accused and the suspects and witnesses in an investigation have been
subjected to tests without consent. These were defended by citing the importance
to extract information at a time when it is difficult to gather it through the
So, basically, the main issues that came up were:
- Whether FMRI, narcoananlysis, brain mapping and polygraph tests are
constitutionally valid methods to gather evidence.
- Whether these evidence gathering methods result in nullification of
constitutional rights such as 'right against self-incrimination under
article 20(3) of the Indian Constitution and Section 161(2) of Code of
Criminal Procedure, 1973
- Whether the procedure undertaken was violative of substantive due
- Whether compulsory administration of such techniques is an unwanted and
unjustified intrusion into the mental privacy of a person.
- Whether the individual is allowed to take voluntary administration of
such impugned techniques provided that the safeguards are in place.
- Whether information taken out being inculpatory or exculpatory has any
effect on principles of protection from self-incrimination
The judgment rendered the practice of narcoananlysis, brain mapping, and FMRI
and polygraph tests to be unconstitutional and void saying that they are
violative of accused person right against self-incrimination and right to life
and personal liberty.
Constitution and scientific evidence:
Article 20(3) of Indian Constitution is about self-incrimination. It is based on
the legal maxim nemo tenetur prodere accusare seipsum which means that no man is
bound to accuse himself. The Constitution doesn't permit the making of any
statement that can expose the accused to criminal prosecution, either at present
or in future. The scope of this immunity has been broadened by the Supreme Court
by interpreting the word 'witness' to include both oral and documentary
However, it must be in the nature of communication.
In Dinesh Dalmia v. State of Maharashtra
, it was ruled that Narco-analysis
testimony was not necessarily a compulsion as the accused might be taken to the
laboratory for the tests without his consent, but revelation was quite
voluntary. The Indian courts may be trying to limit the scope of article 20(3)
because of Minimal Bodily Harm Technique
In Nandini Sathpathy v. P.L. Dani,
the court ruled that the accused has
the right to keep silent during the course of interrogation or investigation and
no one can forcibly extract statements from him. However, a person may himself
waive over article 20(3). The idea behind this immunity is to provide a free
environment so that the accused can be persuaded to come forward and furnish
evidence in the court. This could be of substantial help in elucidating truth in
a case. Therefore, any kind of threat or inducement directed towards the accused
or likely to be accused, if causes him to act involuntarily and thus, resulting
in his incrimination, is violative of article 20(3) of the Constitution.
Article 21 is the storehouse of all human rights essential for a person. One of
the most important rights that came into prominence through the judicial
interpretation of article 21 is the right to privacy. It is not expressly laid
down in the constitution. In the D.K. Basu v. State of West Bengal  , the
Supreme Court put forward the need to develop scientific techniques and methods
for the purpose of investigating and interrogating the accused. Narco-analysis
and brain mapping are such efficient methods of scientific evidence. They can
serve as an useful preventive measure for custodial deaths and tortures. There
are thousand such cases where large injuries are implicated upon the accused for
the purpose of extracting information. Therefore, subjecting an accused to
undergo a scientific test is much better option.
Narco-analysis test- Validity:
The narcoanalysis test is one of the effective tests that is used to find the
culprit. It is used to describe a diagnostic technique that uses psychotropic
drugs; especially barbiturates. It is based on the principle that under the
influence of certain barbiturates, a person's capacity to imagine is blocked or
is, otherwise neutralized so that the person comes into a semi-nuclear state and
is not able to lie. Through this test, some sort of statement is acquired from
the accused which might form evidence.
Though the Evidence Act is completely silent on this kind of employment of
scientific process.The results of the test are not admissible in the court. It
just aids the investigation procedure. Since, most of the crimes are formulated
in the mind of an individual; this test is the apt mechanism. Evidence rules not
only ensure the smooth functioning of the criminal proceedings, but also protect
the right to a fair trial which a defendant has.
The test is often linked with infringement of person's fundamental right which
questions its evidentiary value. The constitution clearly says that a person
cannot be forced to be a witness against himself and therefore, the statement
provided by him under the influence of drug cannot be considered as evidence in
our country. The results of this test may be doubtful as there are chances of
deliberately withholding the information or giving untrue account of the
incident precisely. But still the test is gradually being mainstreamed into
investigations, court hearings and laboratories in India.
The shocking Aarushi Talwar murder case is worth mentioning here. This is a
double murder case where the house servant of the victim was also found dead the
very next day. When investigations were conducted, several points came out. The
findings raised suspicions about committing of the murder by Dr. Rajesh and
Nupur Talwar and therefore, they had to go through the narco analysis test to
confirm their involvement in the murder.
Still, no evidence could be collected and it came out that they knew nothing
about the murder of the teenage girl. At first, the results of the test were
admissible in the court but later on, the Supreme Court ruled it
Another one is the Nithari Serial Killings Case; the narco analysis test of the
main accused in the case was conducted. Pandher and Koli were accused of serial
killing of women as well as children in Nithari village. The accused were
investigated on two angles. One is that of the accused and the other regarding
what the investigators wanted to know. Koli's admissions during test pointed
that he used to rape and kill children for the purpose of satisfying his ego as
he feared becoming impotent. He too admitted to chopping the bodies of minor
girls and then dumping them into drains. The results of the test, though not
admissible in the court, helped the police with their investigation.
The new scientific technology will definitely prove helpful in detecting lie,
crime and the criminal. But, there is still ambiguity regarding the role played
by the forensic evidence to help the courts arrive at logical conclusions. They
have yet not decided on their tenability. The court should approve the legal use
of narcoanalysis, polygraph and brain mapping. Law is a living process and that
has to change according to the developments.
The Indian legal system is based on the fact that a person is innocent until
proven guilty. Also, our legal system pledges to save an innocent even the life
of a hundred criminals is at stake. Thereby, it needs to seek the help of
technology to make this happen even in a more efficient manner.
- Sumit Kumar Suman, The Concept and Historical Background of Evidence
(last visited June 23, 2020)
- Yash Tandon, The Distinction Between Direct and Circumstantial
Evidence(in general), https://blog.ipleaders.in/direct-evidence/ (last
visited June 22, 2020)
- Section 3, the Indian Evidence Act, 1872
- Durga Dass, p. 114
- Cr. L.J. (2006) 2401.
- (1978) 2 SCC
- AIR 1997 SC 610
- Criminal appeal no. 293 of 2014
Award Winning Article Is Written By: Ms.Srishti Yadav
Authentication No: AU124317069455-31-0821