Material for the paper of law of evidence.

1. What is DNA?
DNA is the abbreviation of Deoxyribo Nucleic Acid. It’s a basic
genetic material in all human body cells. It’s present in white
corpuscles and not in red corpuscles. DNA structure determines
human character, behaviour and body characteristics. The
structure of DNA varies from personality to personality. Each
indiual has a unique DNA. ALEC IFFREYS, pioneer of DNA
profiling. DNA analysis, also called DNA typing or DNA profiling,
examines DNA found in physical evidence such as blood, hair,
and semen, and determines whether it can be matched to DNA
taken from specific individuals. DNA analysis has become a
common form of evidence in criminal trials. It is also used in civil
litigation, particularly in cases involving the determination of
Paternity of Identity.

2.
DNA test provides perfect identity and is admissible[1]  .The
admissibility of the DNA evidence before the court always
depends on its accurate and proper collection, preservation and
documentation which can satisfy the court that the evidence
which has been put in front it is reliable. There is no specific
legislation which is present in India which can provide specific
guidelines to the investigating agencies and the court, and the
procedure to be adopted in the cases involving DNA as its
evidence. Moreover, there is no specific provision under Indian
Evidence Act, 1872 and Code of Criminal Procedure, 1973 to
manage science, technology and forensic science issues. Due to
lack of having any such provision, an investigating officer has to
face much trouble in collecting evidences which involves modern
mechanism to prove the accused person guilty. Section 53 of
Code of Criminal Procedure1973 authorizes a police officer to
get the assistance of a medical practitioner in good faith for the
purpose of the investigation. But, it doesn‘t enable a complainant
to collect blood, semen etc. for bringing the criminal charges
against the accused. The amendment of Cr. P. C. by the Cr. P.
C. (Amendment) Act, 2005 has brought two new sections which
authorize the investigating officer to collect DNA sample from the
body of the accused and the victim with the help of medical
practitioner. These sections allow examination of person
accused of rape by medical practitioner and the medical
examination of the rape victim respectively. But the admissibility
of these evidences has remained in a state of doubt as the
opinion of the Supreme Court and various High Courts in various
decisions remained conflicting. Judges do not deny the scientific
accuracy and conclusiveness of DNA testing, but in some cases
they do not admit these evidences on the ground of legal or
constitutional prohibition and sometimes the public policy. There
is an urgent need to re-examine these sections and laws as
there is no rule present in the Indian Evidence Act, 1872 and
Code of Criminal Procedure, 1973 to manage science and
technology issues. 
2. A very famous case law of ND Tiwari?
With regard to this Tiwari case can be seen as example. Tiwari was involved
in a sex scandal which tells, Tiwari was on the bed with three women at his
official residence in the Raj Bhavan. A police complaint (FIR) as filed
against Tiwari for “sexually abusing girls, blackmail and misuse of office”
and the Raj Bhavan staff were interrogated by police about details related to
the discreditable action, alleged to be the result of the fallout of a mining
deal. Tiwari publicly apologized, but told that he was trapped by the
politicians. In 2008, Rohit Shekhar Tiwari filed a paternity suit stating that
Tiwari to be his biological father. The court ordered for DNA mapping of
Tiwari and the court successfully compelled compliance on 29 May 2011.
On 27 July 2011, the Delhi High Court, ordered to end the controversy but it
got rejected by Tiwari’s lawyers. Tiwari’s lawyer told to keep his paternity
test result a secret. Recently refusal of the Supreme Court to dismiss the
Delhi High Court’s decision ordering Veteran Congress Leader N.D. Tiwari
to undergo the DNA test, which is very important from the viewpoint of the
admissibility of DNA evidence. In this case, Shekar has claimed to be the
biological son of N.D. Tiwari, but N.D. Tiwari refused to undergo DNA test
 by stating that it would be the violation of his Right to Privacy and it would
cause him public humiliation. But the court refused it by saying the test
would not be revealed to anyone and it would be under bias, so there is no
point of getting humiliated. Supreme Court further stated that we want the
young man to get justice, he should not leave without any justice. On 27 July
2011, the DNA test results were released by the court which proves that
Tiwari was the biological father of Rohit Shekhar Tiwari, and Ujjwala
Tiwari is the biological mother. On 3 March 2013, Tiwari said “I have
accepted that Rohit Shekhar is my son”. The DNA test also proved it. On 14
May 2013, Tiwari married Ujjwala Tiwari in a ceremony that took place in
Lucknow.

3. Conclusion?
The Supreme Court ruled that a DNA test cannot be ordered without adequate
satisfaction regarding the need for this test. The state and federal courts have
increasingly accepted DNA evidence as admissible. DNA evidence is a powerful tool in
criminal investigation and prosecution, but it must be used with care. It should only be
considered in light of other available evidence. DNA evidence should be collected
carefully in order to avoid contamination so that the court can accept it for making
judgments.

Relevant legislation:

1.The only section which authorizes the police and the investigating
authorities to get the help of the medical expert for their investigation is S.
53 of the CrPC but these sections do not provide for the collection of
blood, semen, saliva etc. Eventually, the CrPC Amendment Act, 2005 has
introduced changes in Section 53 and inserted Section 53A which authorises
the collection of DNA samples from the body of the victim in rape cases by
the investigating officer. 

2In the rape case of “Krishna Kumar Malik V. State of Harayana” the
Supreme Court has observed that – “Now, after the incorporation of  S. 53A
in the CrPC, w.e.f. 23.06.2006, it has become necessary for the prosecution
to go in for a DNA test in such type of cases, facilitating the prosecution to
prove its case against the accused.

III. With Reference to Indian Evidence Act

There is no mention of DNA testing or any kind of these modern technologies
in the Indian Evidence Act. Moreover, it neither talks about its admissibility
nor its evidential value in the cases of rape. 

The issue was answered by the Supreme Court in the case of ”Nandlal
Wasudeo Badwaik v. Lata Nandlal Badwaik & Anr.“ The case elaborated that
we should keep in mind that when S. 112 of the evidence act was enforced
these modern advancements had no role and therefore DNA testing was not
a part of it. The DNA tests state accuracy. The “presumption of conclusive
proof” raised in S. 112 can be rebuttable. According to the court, no one
needs this presumption. If there is evidence which provides contrary results
then, the presumption is rebutted. “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.” The author opines that if there
is a conflict between scientific evidence universally accepted to be right and
conclusive proof envisaged under the law then the former should prevail over
the later.

In this case, the Supreme Court doesn’t change the presumption of the
legitimacy of the child and also didn’t remove the burden of the husband to
prove that the child is not his. The only remedy given by the court is to prove
his non-access to his wife when the child could have been begotten. Here the
court has given priority to DNA tests using S. 45 of the IEA over the
presumption of legitimacy under S. 112 of IEA. The Supreme Court
concluded on these lines by following the fundamental duties (Part IV A of
the Indian Constitution ) under Article 51A (h) and (j). 
 Important citation
https://www.ncbi.nlm.nih.gov/books/NBK234535/2
https://www.jstor.org/stable/43953503?seq=1
https://www.jstor.org/stable/44782478
https://www.sciencedirect.com/science/article/pii/S0379073814002230