Evidential value of DNA

1) Introduction
DNA is the abbreviation of Deoxyribo Nucleic Acid. It’s the basic genetic material
in all human body cells. It can be extracted from blood, saliva, semen, hairs, bones
and other organs of the body. DNA structure determines the human character,
behavior and body characteristics.(1)

DNA techniques now enjoys a legitimacy all over the world. The technique helps
the identifications of criminals on scientific lines. (1)

However the technique require the great care and caution. (1) Precautions are
required to be taken to ensure preparation of high molecular weight DNA
complete digestion of the samples with appropriate enzymes, & perfect transfer
and hybridization of the blot to obtain distinct bands with appropriate control.(2)

DNA is essentially made of Amino Acid and it is matched with so called bases
which provide the key to determine the genetic blueprint. (3)

Presently there is no concrete law or specific law to govern the admissibility of

forensic technique, however the courts of law derives the validity of forensic
technique from various provisions of Cr. P.C. and evidence Act. (3)

The discovery of DNA profiling, on Fag end of 20th century has brought in a sea
change in the identification scenario. DNA profiling specialist is doing yeomen
services to criminal justice system and providing irrefutable evidence. (4)

DNA profiling is providing proof, beyond reasonable doubts in many cases. (4)

2) Where Does DNA Come From

DNA is made up of one half our biological mother’s DNA and one half of our
biological father’s DNA. 50% of our DNA is passed down to our children. It is this
that ensures DNA is unique and allows for accurate testing of parentage and
direct descendents through a DNA paternity test. (5)

3) History of DNA

DNA sometimes called the building block or genetic blueprint of life was first
described by the Scientist Francis H.C. Crick and James D. Watson in 1953. Crick
and Watson identified the double helix structure of DNA, which resembles a
twisted ladder and established the role DNA as the material and makes up the
genetic code of living organism. (6)

DNA is the same in every cell throughout an individual’s body, whether it is a skin
cell, sperm cell or blood cell. (6)

With the exception of identical twins, no two individuals have the same DNA
blueprint. (7)

DNA analysis was first proposed in 1985 by the English Scientist Alec J. Jeffreys.
By the late 1980s, it was it was being performed by law enforcement agencies,
including the Federal Bureau of Investigation (FBI) and by commercial
laboratories.(8) it consists of comparing selected segments of DNA molecules
from different individuals. Because a DNA molecule is made up of billions of
segments, only a small proportion of an individual’s entire genetic code is
analyzed.

4) Types & Procedure of DNA Testing In Criminal Investigation

In DNA analysis for a criminal investigation, first a DNA molecule from the suspect
is disassembled, and selected segments are isolated and measured. Then the
suspect’s DNA profile is compared with one derived from a sample of physical
evidence to see whether the two match. If a conclusion non-match occurs, the
suspect may be eliminated from consideration. If a match occurs, a statistical
analysis is performed to determine the probability that the sample of physical
evidence came from another person with the same DNA profile as suspects. (8)

Types

A) Restriction Fragment Length Polymorphism (RFLP)

B) Polymerase Chain Reaction (PCR)

Generally RFLP testing process requires larger amount of DNA and for proper
results the DNA must be uncontaminated. PCR testing requires smaller amount of
DNA samples. With the development of newer and more efficient DNA analysis
technique, RFLP is not used as much as it was once used because it requires
relatively larger amount of DNA. In addition, samples degraded by environment
factors, such as dirt or mold, do not work well with RFLP. Now the RFLP has been
replaced by the PCR based testing. (8)

5) Value of DNA Evidence

DNA is a powerful investigative tool because with the exception of identical

twins, no two people have the same DNA. Therefore DNA evidence collected from
a crime scene can be linked to a suspect or can eliminate a suspect from
suspicion. (8)

Santosh Kumar Singh Vs State , (2010) 9 SCC 747:AIR 2011 - The Apex court held
that the trial court was not justified in rejecting the DNA report as, nothing
adverse could be pointed out against the two experts who had submitted it. The
court accepted the DNA report as being scientifically accurate and an exact
science (relying on Kamti Devi Vs Poshi Ram AIR 2001). (9)

It is a strong piece of evidence. It is used to refresh the memory of witness U/S

159 and to corroborate the earlier statement of witness U/S 157 and to cross
examine the expert under Indian “Evidence Act, 1872”.

6) First DNA Evidence Admissible in India

 In India Kunhiraman Vs Manoj AIR 1989 was the first paternity dispute which
required the DNA evidence, which was performed at CCMP, Hyderabad (A.P.).
This hit the whole Indian judicial system and media was presented before the
C.J.M. Telicherry, Kerala. (10)
The summary of the case is that a village girl vilasini filed a case against her
lover Kubhiraman for the maintenance of her child son/manoj. She alleged
that her son was born to her on account of illicit relation between them. The
disowned her and he denied taking paternity of her son. The C.J.M. ordered
both of them to undergo DNA test with their son at CCMB, Hyderabad. Dr Lalji
Singh, Forensic Scientist and his colleagues performed the DNA test, and by
the analysis result, it was proved that the disputed was fathered by none other
than Kunhiraman. (10)
The C.J.M. said that according to section 45 of “Indian Evidence Act, 1872 “, in
which expert opinion is admissible, the DNA evidence is also a scientific
examination and the opinion of expert in matter of cellular and molecular
biology is admissible just like opinion of a chemical analyst or fingerprint
experts. (11)
This verdict was also upheld by Kerala High Court stating that the result of DNA
by itself could be deciding paternity.

7) DNA Legislation In Context Of India

The latest position in India is that there is no specific law on one subject of
DNA evidence but DNA testing has got legal validity in 1989 in case of
Kunhiraman Vs Manoj. Now the courts are taking the DNA test as an expert
opinion. (12)
The Government of India and Law Commission have also woken up and Indian
Parliamentary Affairs Board has set up an advisory committee to give a
comprehensive report on all aspect of DNA testing. The Law Commission in its
185th report has also recommended the inclusion of DNA testing in the Indian
Evidence Act by amending its Section 112. (13)
 Parliament of India had passed the Code of Criminal Procedure (Amendment)
Act no. 25 of 2005. It seems that Government of India is fast thinking on the
accuracy of DNA profiling and its authenticity and reliability. (14)
A new section 53A was added and a new Explanation to Section 53 was also
added by this Amendment. (14)

8) Admissibility Of DNA In Indian Legal System

DNA test provides perfect identity and is admissible. (15)

Considering the fast technology development in the scientific field it has been
held that there is nothing wrong in directing a person to undergo DNA test
which will enable the courts to arrive at a proper conclusion. Such an act is not
an inference with the personal liberty of a particular person. (16)

DNA analysis is accepted in India, it is part of admissible expert evidence under

Section 45 of “ Indian Evidence Act, 1872 “- more precise and totally scientific
unlike handwriting experts opinion which is only an art and not a science
hence a handwriting expert’s opinion may or may not be accepted. (17)

However there is an exception to the rule, Section 112 of the “ Indian Evidence
Act, 1872 “ provides that when at the time of conception of the child the
parents are residing together then DNA testing cannot be used a method to
avoid the paternity of the child. Probably the la made at the time “Indian
Evidence Act 1872 “ , when ratified by Indian Government, never forsaw that
there could be something as DNA testing in those days. The law has therefore
remain un-amended. Another idea behind this is to avoid basterdization of the
child. Be that as it may courts are bound by the law made and existing as it is.
(17)

In a recent judgment dated 15th oct 2014 , the Supreme Court of India has
upheld the validity of section 112 of “ Indian Evidence Act “ despite the DNA
test proving otherwise ( Dipanwita Roy Vs Ronbroto Roy in civil Appeal no.
 9744 of 2014) ( A division Bench Judgment of Justice Jagdish Singh Khehar Vs
Justice R.K. Aggarwal ).

(A) DNA in Civil Cases

The call for DNA test on civil side is generally made to settle the paternity
issue involved in case of divorce, maintenance, inheritance and succession
etc. It is noteworthy that Section 112 provides for the legitimacy of a child
born during wedlock and the only ground to rebut this presumption is non-
access of the husband. Thus at one point of time it was an issue before the
court dealing with paternity issue whether such test could be ordered. (19)

This issue was discussed at length in case of- Gautam Kundu Vs State of
West Bengal, AIR 1993 SC 2295

The R-2 (wife) was married to the appellant (husband) on 16th January, 1990. They
lived together for some time. R-2 went to her parents to prepare for her higher
secondary examination which commenced on 5.4.1990 and continued up to
10.5.1990. In the month of April, 1990 R-2 conceived. The appellant and his family
wanted her to undergo abortion but she refused. She came back. A female child
was born to her on 31.1.1991. She was subjected to cruelty during her stay in
matrimonial home. On the petition filed by her under Section 125 of Criminal
Procedure Code, the awarded her a sum of Rs 300 per month and Rs 200 per
month to the child. The appellant filed a revision petition. During the pendency of
the petition, he filed a case for the blood group test of the child to prove that he
was not the father of the child.

His petition was dismissed on two grounds- (1) there were other methods in the
Evidence Act to disprove the paternity. (2) It is a settled law that medical test
cannot be conclusive of paternity.

The High Court dismissed his revision petition against this order and held- where
during the continuance of the valid marriage, a child is born that is a conclusive
proof about the legitimacy. The English law permitting the blood test for
determining paternity of legitimacy could not be applied in view of Section 112
read with Section 4 of Indian Evidence Act debars evidence except in case of non-
access for disproving the presumption of legitimacy and paternity.

The Apex court summarized the law as follows:

1) The courts in India cannot order blood test as a matter of course. (20)
2) Wherever applications are made for such prayers in order have roving
inquiry the prayer for blood test cannot be entertained. (20)
3) There must be a strong prima facie case is that the husband must establish
non-access order to dispel the presumption under section 112 of “Indian
Evidence Act “. (20)
4) The courts must carefully examine as to what would be the consequences
of ordering the blood test, whether it will have the effect of branding a
child as a bastard and the mother as an unchaste woman. (20)
5) No one can be compelled to give sample for blood test. (20)

However subsequently full Bench of Supreme Court in Sharda Vs Dharmpal (21)

considered the power of court to order such test and clarified that Gautam Kundu
is not an authority for proposition that under no circumstances the court can
direct that blood test be conducted. It having, regard to the future of the child,
has, of course, sounded a note of caution as regard mechanical passing of such
order. The court after hefty discussion summed up these three conclusions:

1) A matrimonial court has power to order a person to undergo a medical test.

2) Passing of such an order by the court would not be in violation of the Right
to Personal Liberty under article 21 of The Constitution of India.
3) However, the court should exercise such a power if the applicant has a
strong prima facie case and there sufficient material before the court. If
despite the order of court, the respondent refuses to submit himself to
medical examination, the court will be entitled to draw an adverse
inference against him (21) under section 114 of “Indian Evidence Act”. (22)
In Bhabani Prasad Vs Convener Secretary, Orissa State Commission for
Woman and another (23)
DNA in a matter relating to paternity of a child should not be directed by
the court as a matter of course or in a routine manner, whenever such a
request is made. The court has to consider diverse aspect including
presumption under section 112 of the “Indian Evidence Act”.
An order or DNA can be given by the court only if a strong prima facie case
is made out of such a course.
Court observed, one view is that, when modern science gives means of
ascertaining the paternity of child, there should not be any hesitation to
use those means whenever the occasion requires.
The other view is that the courts must be reluctant in use of such scientific
technique which results in invasion of Right to Privacy of an individual and
may not only be prejudicial to the rights of the parties but may have
devastating effect on the child.
Sometimes the result of such test may bastardise an innocent child even
though his mother and her spouse were living together during the time of
conception. (24)

Lallu Lal Patel Vs Anarkali (25)

Where the petitioner claimed that he was not the husband of the
respondent and also not the father of the child for whom maintenance
proceedings under Section 125 of Criminal Procedure Code were pending
and thus he moved an application for the DNA test of the boy to ascertain
his paternity, it was that it was the duty of the petitioner to prove his own
case and he could not make the court as a tool to collect the evidence and
the DNA test could not be ordered as a routine matter.

In Shri Rohit Shekhar Vs Shri Narayan Dutt Tiwari & Anr. (26)
The court has gone a step further by making the Right of the Child to know
of his biological antecedents. However court has been cautious to
judgment of the Hon’ble Supreme Court in Sharda & Bhabani Prasad jena
and justified on reason a prima facie case for ordering DNA test.
  Hence Court will allow DNA in civil cases-
1) If the wife will prove the lawful wedlock Under Section 112 of
“Indian Evidence Act”.
2) If there is an access.
 The court will not allow-
1) If the husband proves there no access.

 Supreme Court Decision in the Nanadlal Wasudev Badwaik vs Lata

Nandlal Badwaik, AIR 2014 SC 151.

This case was a special leave petition directed against the order of High
Court for not allowing DNA test to prove the paternity of child. The
appellant Nandlal Wasudev Badwaik married a Lata on 30th June, 1990 at
Chandrapur. According to him, both the husband and wife separated from
1991. They had no physical contact between them after 1991. An
application for maintenance under section 125 of the “code of Criminal
Procedure” filed by his wife, but the same was dismissed by the learned
Magistrate by order dated 10th December, 1993. Thereafter, the wife
resorted to a fresh proceeding under section 125 of the “code of Criminal
Procedure, 1973” claiming maintenance for herself and her daughter. She
alleged that she started living with her husband from 20th of June, 1996 and
stayed with him for about two years and during that got pregnant. The
appellant resisted the claim of his wife and stated that the assertion of his
wife that she stayed with his husband since 20th June, 1996 is false. He
denied the claim that he is the father of respondent No. 2, the girl child.
The claim of the wife accepted. The Magistrate granted maintenance of
both wife and daughter. The appellant preferred a revision petition before
the High Court to order for DNA test to prove the paternity of child and
claimed that no maintenance ought to have been awarded to the child. The
High Court denied his claim and dismissed his revision petition. The
appellant preferred a Special Leave Petition before the Supreme Court
against the order of High Court. The Supreme Court dismissed the order of
High Court and favored the appellant to order for DNA test on a condition
that the appellant petitioner to deposit all dues, both arrear and current, in
respect of the maintenance awarded to the wife and child to enable us to
consider the prayer for holding of such DNA test on 8th November 2010.
The deposit was paid by the appellant on 3rd January 2011. The Supreme
Court allowed the petitioner’s prayer for conducting DNA test for
ascertaining the paternity of the child.
The Supreme Court has ordered the appellant and respondent to make a
joint application to the Forensic Science Laboratory, Nagpur, for conducting
DNA test. The appellant, the respondent No. 1 shall present themselves at
the Laboratory with respondent No. 2. The laboratory is directed to send
the result of such test to the Court within four weeks thereafter. The
Forensic Science Laboratory has submitted the result of DNA testing and
opined that appellant is excluded to be the biological father of respondent
no. 2. By the said order, the respondent has not been satisfied so she
requested for re-test. The Court directs that a further DNA test be
conducted at the Central Forensic Laboratry, Hyderabad. The parties are
directed to appear before the Laboratory. The Central Forensic Laboratory
submitted its report and opined that the appellant can be excluded from
being the biological father of respondent no.2. The respondents counsel
submits that the appellant having failed to establish that he had no access
to his wife at any time when she could have begotten respondent no. 2, the
direction for DNA test ought not to have been given. In view of the
aforesaid he submits that the result of such a test is fit to be ignored. To
justify his claim the respondent‘s counsel relied on the judgment of
Supreme Court in Goutham Kundu v. State of West Bengal, Banarsi dass
v.Teeku Dutta, Bhabani Prasad Jena v. Orissa State Commission for Women.
In all most all the cases the court ruled that blood test as well as DNA test
cannot be ordered as a routine. The result of a genuine DNA test is said to
be scientifically accurate. But, that is not enough to escape from the
conclusiveness of Section 112 of the Evidence Act e.g. if a husband and
wife were living together during the time of conception but the DNA test
revealed that the child was not born to the husband, the conclusiveness in
law would remain irrebuttable. The appellant‘s counsel raised the
contention that the DNA test had already been ordered and the respondent
had also not denied. It is only after the reports of the DNA test had been
received, which was adverse to the respondents, that they are challenging
it on the ground that such a test ought not to have been directed. We
cannot go into the validity of the orders passed by a Court at this stage. It
has attained finality. Before, the Supreme Court proceeds to consider the
rival submissions analyzing the DNA test that we deem it necessary to
understand what exactly DNA test is and ultimately its accuracy. All living
beings are composed of cells which are the smallest and basic unit of life.
An average human body has trillion of cells of different sizes.
Given that the Earth‘s population is The Supreme Court ruled and evolved a
beautiful concept that, “We may remember that Section 112 of the
Evidence Act was enacted at a time when the modern scientific
advancement and DNA test were not even in contemplation of the
legislature. The result of DNA test is said to be scientifically accurate.
Although Section 112 rises a presumption of conclusive proof on satisfaction
of the conditions enumerated therein but the same is rebuttable. The
presumption may afford legitimate means of arriving at an affirmative legal
conclusion. While the truth or fact is known, in our opinion, there is no need
or room for any presumption. Where there is evidence to the contrary, the
presumption is rebuttable and must yield to proof. Interest of justice is best
served by ascertaining the truth and the court should be furnished with the
best available science and may not be left to bank upon presumptions,
unless science has no answer to the facts in issue. In our opinion, when
there is a conflict between a conclusive proof envisaged under law and a
proof based on scientific advancement accepted by the world community to
be correct, the latter must prevail over the former.”
“We must understand the distinction between a legal fiction and the
presumption of a fact. Legal fiction assumes existence of a fact which may
not really exist. However presumption of a fact depends on satisfaction of
certain circumstances. Those circumstances logically would lead to the fact
 sought to be presumed. Section 112 of the Evidence Act does not create a
legal fiction but provides for presumption. The husband’s plea that he had
no access to the wife when the child was begotten stands proved by the
DNA test report and in the face of it, we cannot compel the appellant to
bear the fatherhood of a child, when the scientific reports prove to the
contrary. We are conscious that an innocent child may not be bastardized
as the marriage between her mother and father was subsisting at the time
of her birth, but in view of the DNA test reports and what we have observed
above, we cannot forestall the consequence. It is denying the truth. “Truth
must triumph” is the hallmark of justice.”
In the above decision, the Supreme Court has changed the presumption
under section 112 of the Indian Evidence Act, 1872 which has been
followed still now from its enactment. Section 112 of the Indian Evidence
Act, 1872 states that the husband has to prove that he has no access with
his wife during the time when the child have been begotten. It can be
proved either impotency or far away from his wife. The latter is very
difficult because ―Access and non-access mean the existence or non-
existence of opportunities for sexual intercourse; it does not mean actual
cohabitation.‖ This above ruling helps the innocent husband to prove his
non-access by way of DNA test. For the first time, the Court favors the
innocent husband to prove his paternity claim. Here, the court gives
priority to DNA test under Section 45 of the Indian Evidence Act, 1872 over
the legitimate presumption under Section 112 of Indian Evidence Act,
1872. It is really a welcoming step and by that way our Supreme Court has
enforced the fundamental duties enunciated under Article 51A (h) and (j) of
Part IV A of the Indian Constitution.

(B) DNA In Criminal Cases

Before exploring the use of DNA test in criminal cases it would be permitted to
see if it offends the fundamental right of a person against Self-Incrimination
and Right to Privacy.
1) DNA & Self Incrimination
A Constitution Bench of the Hon’ble Supreme Court in Selvi Vs State of
Karnataka (27) while testing the validity of DNA test on the anvil of Article
20(3) of Constitution of India, made following observation-
“The matching of DNA samples is emerging as a vital tool for linking
suspects to specific criminal acts. It may also be recalled that as per the
majority decision in Kathi Kalu Oghad AIR 1961, the use of material
samples such as fingerprints for the purpose of comparison and
identification does not amount to a testimonial act for the purpose of
Article 20(3). Hence the taking and retention of DNA samples which are in
the nature of physical evidence does not face constitutional hurdles in the
Indian context”.

State of Bombay Vs Kathi Kalu Oghad (28) The Supreme Court held that
Article 20(3) of the Constitution of India gives protection to a person not to
be a witness against himself. However, “to be a witness” is not equivalent
to “furnish evidence” in its widest term and significance. Giving thumb
impression or finger impression or exhibiting parts of the body by way of
identification are not included in the expression “to be a witness”. Being a
witness has been interpreted to mean imparting some sort of knowledge in
testimony. From this it appears that there will be no constitutional
restrictions on the collection of samples for DNA analysis.

Application in Evidence
Coming to the application in criminal cases, DNA tests can be effectively
used in criminal cases for the following purpose. First, it assists in positively
identifying the perpetrators of crime, particularly in case of sexual assaults
and homicide where identification is often a central issue.
Secondly, to identify the remains of victims of violent crimes.
The most suitable application of DNA test for these purpose is evident in
two popular cases namely, Santosh Kumar Singh Vs State (29) (establishing
commission of rape by the appellant) and Surendra koli Vs State of U.P.
(30) (to identify dead bodies of victim).
2) DNA & Right To Privacy
The Right to Privacy is derived from Article 21 of the Constitution. It was
held in PUCL Vs Union of India (31) that Right to Privacy enshrined in
Article 21 cannot be curtailed except according to procedure established by
law.
No one shall be subjected to arbitrary or unlawful interference with his
privacy, family and home, or correspondence, nor to unlawful attacks on
his honor and reputation, does everyone have the right to protection of law
against such interference or attacks. (33)

M. Vijay Vs The Chairman Singareni Collieries (34)

The court upon a detailed discussion of the competing rights of a private
party and public right with reference to Right to Privacy of a person
suspected of an apparent from AIDS, held: “There is an apparent conflict
between the Right to Privacy of a person suspected of HIV not to submit
himself forcibly for medical examination and power and duty of state to
identify HIV infected person for the purpose of stopping further
transmission of the virus.
In the interest of the general public, it is necessary for state to identify the
HIV positive cases and any action taken in that regard cannot be termed as
unconstitutional as under Article 47, the state was under an obligation to
take all steps for the improvement of public health.
A law designed to achieve this object, if fair and reasonable, in our opinion
will not be in breach of Article 21 of the Constitution of India.
It is well settled that Right to Life guaranteed under Article 21 is not mere
animal existence. It is a right to enjoy all facilities of life. As a necessary
corollary, right to life includes right to healthy life.
Why it is not a strong piece of evidence
There can be human error. According to a media report in September 2009
Aarushi murder case was sabotaged by DNA tempering. The centre for DNA
fingerprinting and diagnostics in Hyderabad has told the CBI that Aarushi’s
vaginal swab were substituted with samples of an unidentified woman and
 the investigating agency now believes that there was a conspiracy to
destroy evidence in the double murder case. The apex court asks CBI about
the case.

9) Constitutional Provisions & Statutory Provisions of DNA

(a) The constitution of India by Article 51 A (h) & (j) commands that it shall be
the fundamental duty of every citizen of India- to develop a scientific
temper, humanism and the spirit of enquiry and reform, and the strive
towards excellence in all spheres of individual and collective activity so that
the nation constantly rises to higher levels of endeavor and achievements.
(35)
(b) By the Amendment Act of 2005, the Criminal Procedure Code was amended
inter alia to add new section 53A which mandates the examination of a
person accused of rape by a medical practitioner. By this Amendment, New
Explanation includes within its ambit examination of blood stains. Semen
sputum, swabs, sweat, hair samples and finger nails by the use of modern
techniques in the case of sexual offences including DNA profiling and such
other tests which is necessary in particular case. (36)
Though Section 53A refers only to examination of the accused by medical
practitioner at the request of the public officer, the court has power for the
public officer, the court has power for the purpose of doing justice in
criminal cases, by issuing direction to the police officer to collect blood
samples from the accused and conduct DNA test for the purpose of further
investigation under section 173(8) & 293(4) (e) of Criminal Procedure Code.
(36)

10) The DNA Profiling Bill 2017, which is pending in Parliament, is expected to
be considered and become a law sometime in the near future. If this were to
happen all convicted criminals across the country will have to undergo
mandatory DNA test. The Bill also aims to achieve standards for laboratories,
staff qualifications, training, collection of body substances, custody trial from
 collecting to reporting and a data bank. The Bill also makes provisions for a
DNA profiling board, which will comprise scientists, administrators and law
enforcement officers. (36)
At present in India, there are around 90,000 cases which need a DNA study,
and the irony is that there are just 16 forensic labs across the country with
DNA profiling ability.
Once the Bill is passed by Parliament, the first thing that would be set up is a
DNA data bank. This will comprise the index of suspects, convicts, missing
person and unidentified dead person. All the labs across the country will have
to contribute to the bank.

11) Admissibility of DNA Evidence IN USA and In England

(a) America
In USA, all scientific evidence in criminal trials including evidence derived
from DNA identification analysis must satisfy the test of admissibility in
effect in a particular jurisdiction.
In general Courts use of two test-
The so- called Frye Test which was pronounced by the U.S. Circuit Court
for the District of Columbia in Frye Vs United States or one of its
variations is used in a majority of jurisdiction.
Under the Frye Test a novel scientific technique must have gained
general acceptance the relevant scientific community before it is
admitted by the court.
The second rule follows the basic relevancy standard of the federal rule
of evidence and is used in a majority of state jurisdictions. For
admissibility under the federal rule, scientific evidence must have some
relevancy to the issue in the case, and its probative value must outweigh
the potential for prejudice.
In Daubert Vs Merrel Dow Pharmaceuticals (37)
The U.S. Supreme Court ruled that the federal rule of evidence have
replaced the Frye Test in federal court trials. Additionally, the court
defined a new federal standard under the rules, the trial judge must
 ensure that any and all scientific testimony or evidence admitted is not
only relevant but reliable. Determining the reliability entails a preliminary
assignment of- whether the reasoning or methodology underlying the
(expert) testimony is scientifically valid and whether the reasoning or
methodology can be applied properly to the fact in issue.
The Court provided a non-exclusive list of factors that may be used to
determine scientific validity (1) whether a theory or technique can be
tested (2) whether a theory or technique has been subjected to peer
review and publication (3) the known or potential rate of errors in using a
particular scientific technique and the existence & maintenance of
standards controlling the technique operation (4) whether the theory or
technique has been generally accepted in the particular scientific field.
While the Daubert Test applies to federal courts, most state courts
continue to follow the Frye test.
In People Vs Castro the New York Supreme Court in a 12 week pretrial
hearing exhaustively examined numerous issues relating to the
admissibility of DNA evidence. Castro was accused of murdering his
neighbor and her 2 years old daughter. A blood stain on Castro’s watch
was analyzed for a match to the victim. The Court held: DNA
identification theory and practice are generally accepted among the
scientific community. Pretrial hearing is required to determine whether
the testing laboratory’s methodology was substantially in accord with
scientific standards and produced reliable results for jury consideration.
The Castro ruling supports the proposition that DNA identification
evidence of exclusion is more presumptively admissible than DNA
identification evidence of inclusion.(38)

(b) England

England is widely recognized as having the most effective and efficient

approach to the use of DNA technology in the world. DNA technology &
DNA data basing have been central to the process of criminal
investigation since the establishment of the National DNA database in
 1995. England has become a world leader in discovering innovative ways
to use DNA to identify suspects, protect the innocent to convict the
guilty. (38)

12) Suggestions By Malimath Committee

1) More well equipped laboratories should be established to handle DNA
samples and evidence.
2) A specific law should be enacted giving guidelines to the police setting
uniform standard for obtaining genetic information and creating adequate
safeguard to prevent misuse of the same.
3) A National DNA database should be created which will be immensely
helpful in the fight against terrorism.
4) Section 313 of the “Criminal Procedure Code” must also be mended so as
to draw adverse inference against the accused if he fails to answer any
relevant material against him therefore, making it easy for the law enforces
to use DNA test against him.

13) Conclusion
DNA test is a strong boon in criminal administration of justice, but in civil
cases the socio economic conditions and peculiarity in our country declare this
test against the human dignity especially of child and woman. But the inherent
power of courts in civil matters section 151 of “Civil Procedure Code” 1908
should prevail for the sake of justice, truth and dignity of judicial
administration. So DNA technology can be used in the matters of human
dignity, human right and human relation. It should be an essential part of
Indian Judiciary & for that purpose we are eagerly waiting for an appropriate
legislation in the name of The DNA Profiling Bill 2007 which is stating the
infrastructure, standards, quality control with assurance obligation of DNA
laboratory, information, composition, qualification of DNA profiling board & its
members, functions and most important establishment of DNA data bank. (39)
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