UNDERSTANDING AND INTRODUCING FORENSIC SCIENCE EVIDENCE IN PRIVATE INVESTIGATION

The traditional sources of proof, eye-witness’ account, approvers, admissions and confessions are proving to be untrustworthy in the modern criminal justice delivery system.Trials prolong for years,criminals and their defendants are adopting cleverer tactics and the eye-witnesses cannot bear the tension of remaining truthful.It is easier to be won-over,keep mum or turn hostile when the time comes for recording the evidence.It is now imperative to rely on something more authentic,more concrete and more reliable to establish truth in court trials and other proceedings.Forensic Science evidence is the ultimate alternative which is available,is more objective and therefore,not prone to the whims of witnesses.By nature,scientific evidence is more or less exact,far more reliable and does not turn hostile by itself or under threats.  Besides it is available as clue at or near the scene of occurence or as preparatory material for comission of crime.Unfortunately,in India,neither the law-enforcement agencies nor the Professional Private Investigators have realised the true potential of Forensic Science.We have miserably failed to develop a judicious temparament to apply & utilize the scientifically viable evidence.We are,therefore,also responsible for not motivating lawyers and judges to fully appreciate the forensic science evidence.It goes a waste in the courtroom due to our collective failure in appreciating and interpreting it. This article is aimed at bringing the basic understanding of forensic science in layman’s language.The reader and a Professional Private Investigator with elemantary knowledge of science can get equally benefitted as the lawyers and courts.However the entire gamut of forensics cannot be covered in an article.It would serve the purpose if we realize the importance of forensic science,expert opinion and their implications in getting undeniable justice for all.

What is Forensic Science:

Let us go by simple meanings of the two words.’Forensic’ means :

i) “Having to do with the use of scientific methods in investigating crime”.

ii) “Having to do with courts of law”.

‘Science’ means:

i) “Study or knowledge of the physical and natural world based on observation,experiment”,and

ii) “body of knowledge on any subject – a particular branch of science”.

“Forensic science” in Investigation and Trials is mainly concerned with materials and through materials with men,places and time.Investigating officer is the most important person as his work determines the success or failure of the application of forensic science in solving a case through correct evidence.If the investigator fails to collect the relevant and correct evidence,allows them to be contaminated,tampered with and fails to collect correct samples for comparisons,the findings of the scientist (an expert) would be not only useless but would be helpful to the culprits.Materials are identified and compared with objects of crime through processes of forensic science.They establish the presence or absence of a link between the crime,the criminal,the victim,the place and time of ocurrence.Forensic science embraces all branches of science and applies to the purposes of law in justice delivery system. Originally all basic and true sciences are applied in borrowing techniques from various disciplines like chemistry, medicines, biology, surgery, photography, physics, mathematics etc. But gradually Forensic Science has emerged as a composite science which is amalgamation of all pure sciences and it has develped its own branches - which are exclusive domains of forensic sciences.The science of fingerprints,anthropometry,track marks,documents (especially the examination of handwriting),forensic ballistics belong to forensic science alone.Likewise strides in serology,voice analysis,odour analysis,pattern recognition through computers are the significant developments.Most important development being DNA profiling for identification of human beings,animals and plants.

Forensic science is multi-professional and is also multi-disciplinary.For effective utilization,the forensic scientist has to depend upon the capabilities of Investigating Officer,the honesty of purpose on the part of presenting counsel and the judge in the dissemination of justice.      If the Investigating Officer does not know how to collect the correct clues,how to preserve them,how to pack them with proper identification and location from where collected,the best of expertise and the best of instrumentation will not be of any help.The counsel and Judge must know the science broadly and so as to co-relate scientific evidence with the rest of the evidences – oral,circumstantial and the evidence of other specialists.

Principles of Forensic Science Evidence:

1) The law of Individuality: “Every object,natural or man-made,has an individuality,which is not duplicated in any other object.It is unique.Neither the nature has duplicated itself,nor man can duplicate it”.

This principle,by itself appears to be contrary to common belief and day-to-day observations. The grains of sand or common salt,seeds of plants and twins look almost exactly alike.  Likewise man-made objects;coins of the same denomination from the same mint, currency notes printed from the same printing block, one after the other and type writers of the same make, model and match appear to be indistinguishable.Yet the individuality is always there.   It is due to the small flaws in the materials,in the arrangement of crystals,imperfect stamping,uneven surfaces or due to inclusion of some extraneous matter or other objects or material.The individuality stands established scientifically in almost every sphere.         Most extensively in the field of fingerprints. Millions and billions of prints have been checked and compared but no two finger prints, even from the two fingers of the same persons have ever been found to be identical. A lot many experiments have been carried out by various scientists to study the super-imposition techniques for finger prints, foot prints, foot marks, die marks, hammer marks, and marks produced by knifes, various parts of fire-arms and it got established that with the best of efforts exactly alike imprints even from the same finger,  same instrument, firearms etc cannot exactly be produced or super-imposed perfectly.     The finger prints were taken one after the other,on the same paper,with the same ink and pads,by the same person,but yet they failed to give exactly alike prints.The law of individuality is of fundamental importance in forensic science. Anything and everything involved in a crime has its own individuality.Thus the culprit or offender is unique,his modus-operandi is unique, his weapon of offence is unique in its angle of use, pressure and execution, therefore the scene of crime is unique, evidentiary clues left over or picked up by the culprit are unique. Investigators and forensic scientists have just to identify the uniqueness to link the crime with the criminal.

2) The principle of Exchange:

“Whenever two entities come in contact,there is an exchange of traces mutually”.       This is principle of law of exchange.It is also known as Locard’s principle who propounded the principle of exchange (Edmond Locard,French Scientist). According to this principle,when a criminal and/or his instruments of crime come in contact with the victim or the objects surrounding and connected with him, traces of contact are left behind. Likewise,the criminal and/or his instruments pick up traces from the same contacts.Thus,a mutual exchange of traces takes place between the criminal,the victim and the objects involved in the crime.           If these left over or picked up traces are identified with the original source i.e the criminal or his instruments or with the victim,the scene or the objects around the victim at the scene,they establish the contact between these physical clues and pin the crime on to the criminal.    This principle of exchange is particularly visible in hit-and-run cases of accidents and in offences against persons, tracks and trails(scent,foot and footwear marks,tyre and skid marks).   Chance fingerprints, tool marks, dust, paint, soils and other atmospheric pollutants are such other manifestations of the same principle. It is very difficult to imagine a crime,where the criminal,the victim or the objects involved,do not exchange traceable traces.              The Investigating Officer must ask himself the question, “What are the places or objects with which the criminal or his tool actually could have come into contact”.                     If the Investigating Officer is able to imagine and establish the points of contact,he is most likely to solve the case through interpretation of scientific forensic evidence based on opinion of experts.It is important to know that a criminal is likely to leave and carry only minute traces.Criminals would take precaution not to leave or carry gross objects or evidences.

3) The principle of Progressive change:

“Everything changes with the passage of time”. Actually nothing is permanent,immutable or invariable.The rate of change varies tremendously with different objects in different conditions.The impact of this law and principle on forensic science is tremendous.The scene of occurence undergoes rapid changes..the weather,the vegetable growth,and the human being’s change extensively and in a very short time. Longer the delay in examining the scene, greater will be the changes in and around. A road accident scene on a busy road will lose all evidence. If there is inordinate delay in retrieving tell-tale clues of paints, tyre marks, glass pieces, blood, fabrics and such like things which come into impact. Metal objects like rust, firearms become defective, shoes suffer additional wear and tear marks and the tools, edges become deshaped, blunt and defective.In course of time the clues may lose all comparable evidence for practically identifying them and comparing their impact on crime materials.

4) The principle of Comparison:

“Only the likes can be compared”. It is an important principle.It means that only like samples and specimens should be got compared with the items involved in crime comission.         In a murder case,a bullet is recovered from the body.If the expert says that it has been fired from a firearm like service rifle,firing high velocity projectiles,it is futile to send shot guns,pistols or revolvers for comparison with possible suspect weapon.The questioned document is found to have been written with a ball pen.To send fountain pen or pencil for comparison as likely instrument of writing would be wrong.

5) Principle of Analysis:

“The analysis can be no better than the sample analysed”. Improper sampling and contamination render the best analysis useless. Correct sampling with correct packing is a must for effective use of expert opinion.

6) Law and Principles of Probability:

“An identification,definite or indefinite,is made,consciously or unconsciously,on the basis of science of probability”.

“Probability” is mostly misunderstood. Defense counsels try to misinterpret the word to plead that the forensic scientist’s opinion is not definite.Customarily the experts do not talk about ‘probability figure’ in courts. Probability is a mathematical concept. “It determines the chances of occurence of a particular event in a particular way out of number of ways in which the event can take place or fail to take place with equal facility”.Let us not go into mathematical calculations to arrive at the result of this science.Suffice it to say that the law of probability exists and it is relied upon world over.

Facts do not lie.

“Facts do not lie, man can and do”. Hence there is greater importance of circumstantial and scientific evidence vis-a-vis oral evidence.The oral evidence of the witness is influenced and modified by auto-suggestion,external evidence,descriptions and opinions of others and also self rationalisation.Oral evidence,therefore,is coloured,whereas material evidence is free from these infirmities.In fact, scientific evidence is better than oral evidence because:

·      It is objective evidence.

·      It is verifiable.

·      It is unbiased

·      It is demostrable and can be relied upon.

The early era of Forensic Science evidence was not given enough importance because of improper handling of scientific evidence in earlier stages of its induction.However, now the expert appearing in the court is “qualified” to start with because of following elements:-

·      Basic Education Qualification.

·      Training,length of course etc.

·      Experience both in the actual and related fields,the number of cases examined.

·      Authorship about his subject if he is on record.

·      Teaching and training programs conducted, if any.

All the above features are brought on record to show that by education,training and experience the person is specially qualified to express expert opinion on the subject.It is possible for courts or authorities to eliminate the imposters (non – experts) at this stage only.

Expert’s Report: An expert’s report is generally on a standard pattern. The essential details are:

1. The laboratory case and the report numbers.

2. The case references (like the FIR No. and the letter no. and date. It could also be a reference by a          Private Investigator addressed to a private forensic science expert).

3. The date and mode of reference.

4. The description of the packages (with their content), their numbers, identification marks, seals,            signatures and whether the seals were intact or not.

5. The description of the exhibits (samples), identification marks,signatures or the initials etc.

6. The questionnaire (in brief) asking/for independant opinion.

7. The dates on which the examination is commenced and completed.

8. The number and nature of the test exhibits prepared.

9. The experiments carried out,the observations made and the conclusions drawn.

10. The name of the examiner (expert),his qualifications and his designation.

11. The mode of the dispatch of the report and its exhibits.

The reports are to be utilized by the non- technical persons in most of the cases.            In the absence of experts, under Section 293 of the Code of Criminal Procedure,1974,      they are expressed in simple language.The Gujarat High Court held that, “It is difficult to see how any reliance can be placed on the opinions unless it is supported by good reasons founded on the facts which warrant that opinion.The court will rely upon the opinion if the reasons are good and convincing and the factual data examined warrants the opinion.That is the reason why the Section 51 of the Indian Evidence Act provides that whenever the opinion of any living person is relevant,the grounds on which such opinion is based are also relevant.

Role of Prosecution Counsel or that of a Private Advocate:

Public Prosecutor who produces an expert for evidence (and therefore,the Advocate of Client at the behest of Private Investigators) must:

1. Establish the Bonafide of the Expert :

The presenting Counsel (prosecutor in criminal case launched by police and Private Advocate hired by client in cases of civil nature) should establish the credentials and credibility of the expert through his qualification,training and experience by bringing these on record to prove authenticity.

2. Understand the Evidence :

The presenting counsel must understand the evidence for adducing it on record of court for appreciating it.He should have interactive conference with expert before producing him in court as a witness.The expert will thus be prepared to face surprises, if any, clarify,amplify and ascertain certain points before elaborating in court to ensure the cause of justice.          He must ensure that there is no contradiction in various types of evidence brought on record and instead each evidence supports one another and collectively arrives at one conclusion of the guilt or innocence of the charged person.

3. Ensure Induction of Demonstrative Evidence :

The expert should be made to produce the data on which his findings are based through illustrations by charts, graphs,sketches and photographs.

4. Anticipate the Defence Line :

The counsel must anticipate the line of defence the other party is going to adopt and discuss the same with expert to correctly answer and cover the points likely to be raised by the defence in cross-examination.These points to the extent possible,should be covered in the examination-in-chief (or the main testimony of the expert).That would effectively forestall the defence tactics to demolish the opinion.

5. Listen to the cross examination attentively :

The defence council may introduce new material which needs to further elucidate or clarify certain points.He may try to create anomalies.The counsel should get the clarifications recorded in re-examination of the expert.

Laws Governing Forensic Science or Expert’s Evidence :-

Enacted laws,case laws and Court convention.The main enacted laws which govern the expert evidence,are in :

1. The Constitution of India,

2. The Indian Evidence Act, 1872

3. The Code of Criminal Procedure,1973 and

4. The Identification of Prisoner’s Act.

i) The Constitution of India

Article 20(3) of the Constitution states: “No person accused of an offence can be compelled to be witness against himself”.Nor could a person be forced to give his fingerprints, footprints, photographs, measurements and handwriting etc.The Supreme Court has held that the above type of clue materials become evidence only after their evaluation. And the evaluation instead of helping the prosecution may help the accused in getting cleared of charges. Thus a person accused of an offence can be compelled by court to abide by orders.

ii) The Indian Evidence Act

Section 45: This is the most important section about Forensics. It states that:

“When a Court has to form an opinion upon a point of foreign law or of Science or art,or as to the identity of handwriting, or finger impressions, the opinion upon that point, of persons specially skilled in such foreign law, science or art or in questions as to the identity of finger impressions are relevant facts. Such persons are called experts.The Supreme Court judgement (State vs Chaudhary,AIR,1996,Sc 1491) has provided guidelines for the new types of scientific evidence (DNA,Voice Identification,Brain Printing,Pattern Recognition etc) to be included.

Section 46: Facts Bearing upon opinions of experts.

“Facts otherwise not relevant,are relevant if they support or are inconsistent with the opinion of experts,when such opinions are relevant”.

Section 51 of the Indian Evidence Act.

This Section provides that “whenever the opinion of any living person is relevant,the grounds on which such opinion is based are also relevant”.

Section 73 of the Indian Evidence Act provides that:

“In order to ascertain whether a signature,writing or seal is that of a person by whom it purports to have been written or made,any signature,writing or seal admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved, although that signature,writing or seal has not been produced for any other purpose.The Court may direct any person present in the court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with words or figures alleged to have been written by such person”.This Section applies also,with any modifications,to finger impressions.

iii) The Code of Criminal Procedure,1973

Sections 292 and 293 of this Code are related to expert evidence.Section 292 is applicable only to Mint Master and other currency officers of security printing presses of Government of India. Section 293 is also similar in contents but with wider implications.It says –

1. Any document purporting to be a report under the hand of a Government Scientific Expert to whom this section applies,upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceedings under this code,may be used as evidence in any inquiry,trial or other proceedings of the Code etc.

iv) The Identification of Prisoner’s Act

Section 2,3,4,5 and 6 of the Act are relevant to the expert evidence.They provide legal sanctions for obtaining specimen evidence from the suspects/accused/convicts.

v) Case laws and laws of conventions

Various aspects of expert evidence have been evaluated and decided upon by all the courts – practically on all types of physical clues.These judgements are reference materials and guiding force to decide certain issues involving expert evidence and are,therefore,binding as per applicable laws of Jurisprudence. Article 141 of the Constitution makes the law declared by the Supreme Court binding on all Courts in India.“The evidence which cannot be tested must be rejected” – is the elementary principle of law.

Roles of Private Investigators, their Clients,Advocates and Private Forensic Science Experts

There is no law which prohibits these persons not to rely upon forensic science evidence.   While central forensic science laboratories controlled by Government of India,and State Forensic Science Laboratories under State Govt’s primarily cater to requests made by Law Enforcement Agencies,there are Private laboratories (like Truth Labs, India) and other qualified experts whose services can be procured by private persons.If they are ‘experts’ within the meaning of legal terminology,their opinions are procurable,adducible and admissible as evidence to decide any fact in issue – be it of a criminal nature or civil in its connotations.   Only requirement is that proper procedures as described in various laws and rulings must similarly be followed as are applicable to Police, Prosecutors, Governmental experts and Courts. Private Investigators have to learn the art and science of anticipating clues and materials, master the art of legally procuring them and then apply the science in preparing pin-pointed questionaire to be sent to expert under proper identification,safely and securely for comparison with suspect materials brought on record.The only requirement is that they must not circumvent the law in any manner and must not encroach the Police Jurisdiction when the scence of crime is marked as ‘prohibited’.

We, the Private Investigators must not fail in our assigned duties in collecting Forensic Science Evidences (wherever permissible) for procuring expert’s opinion in establishing facts in issue.They can render their services in both the matters – criminal and civil as and when they create and/establish their ‘locus – standi’.

              

V.M Pandit.