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 ISSN 0570-2666

THE INDIAN LAW INSTITUTE

NEW DELHI

ANNUAL SURVEY
OF
INDIAN LAW
VOLUME LIII : 2017

EDITOR : MANOJ KUMAR SINHA

ASSOCIATE EDITOR : ANURAG DEEP
ASSISTANT EDITOR : SUSMITHA P. MALLAYA

EDITORIAL ASSISTANT : RASHI KHURANA

iii
 EDITORIAL COMMITTEE

CHAIRMEN

T.S. Thakur/ J.S. Khehar / Dipak Misra

MEMBERS

Upendra Baxi P P Rao B B Pande

Formerly Vice-Chancellor Senior Advocate Formerly Professor of Law
University of Delhi Supreme Court University of Delhi

EDITOR

Manoj Kumar Sinha

Director
The Indian Law Institute

ASSOCIATE EDITOR
Anurag Deep
Associate Professor

ASSISTANT EDITOR
Susmitha P. Mallaya
Assistant Professor

EDITORIALASSISTANT
Rashi Khurana

v
DISTINGUISHED FELLOW OF THE INDIAN LAW INSTITUTE
Justice M N Venkatachaliah

HONORARY PROFESSORS OF THE INDIAN LAW INSTITUTE

Dr Rajeev Dhavan
Professor Clarence J Dias
Professor Yash Ghai
Professor A R Blackshield

vi
 CONTENTS

1 Administrative Law — S S Jaswal 1

2 Banking and Insurance law — Susmitha P. Mallaya 21
3 Civil Procedure — P Puneeth 43
4 Company Law — Arya A Kumar 87
5 Competition Law — V.K. Dixit 105
6 Conflict of Laws — Lakshmi Jambholkar 135
7 Constitutional Law-I — S.N. Singh 167
8 Constitutional Law-II — M.R.K. Prasad 219
9 Criminal Law — Jyoti Dogra Sood 247
10 Criminal Procedure — K N Chandrasekharan Pillai 279
11 Cyber Law — Deepa Kharb 295
12 Election Law — Virendra Kumar 317
13 Environmental Law — G.B. Reddy 359
14 Forensic Law — G.K. Goswami 381
15 Forest and Tribal Law — Stanzin Chostak 411
16 Hindu Law — Poonam Pradhan Saxena 429
17 Intellectual Property Law — Lisa P Lukose 467
18 International Law — Manoj Kumar Sinha 485
19 Labour Management Relations — Bushan Tilak Kaul 493
20 Law & Social Change — Vandana Mahalwar 515
21 Mercantile Law — Farooq Ahmad Mir 529
22 Muslim Law — Furqan Ahmad 551
23 Property Law — Annam Subrahmanyam 595
24 Public Interest Litigation — Aman Hingorani 631
25 Socio Economic Crimes — Anurag Deep 701
26 Social Security and Labour Law — S C Srivastava 745
27 Tort Law — B C Nirmal 763
28 Women and the Law — Latika Vashist 779
29 Central Legislation — S Sivakumar 823

vii
 VOLUMES
OF
ANNUAL SURVEY OF INDIAN LAW

Vol. I : 1965
Vol. II : 1966
Vol. III-IV : 1967-68
Vol. V : 1969
Vol. VI : 1970
Vol. VII : 1971
Vol. VIII : 1972
Vol. IX : 1973
Vol. X : 1974
Vol. XI : 1975
Vol. XII : 1976
Vol. XIII : 1977
Vol. XIV : 1978
Vol. XV : 1979
Vol. XVI : 1980
Vol. XVII : 1981
Vol. XVIII : 1982
Vol. XIX : 1983
Vol. XX : 1984
Vol. XXI : 1985
Vol. XXII : 1986
Vol. XXIII : 1987
Vol. XXIV : 1988
Vol. XXV : 1989
Vol. XXVI : 1990
Vol. XXVII : 1991
Vol. XXVIII : 1992
Vol. XXIX : 1993
Vol. XXX : 1994
Vol. XXXI : 1995
Vol. XXXII : 1996
Vol. XXXIII-IV : 1997-98
Vol. XXXV : 1999
Vol. XXXVI : 2000
Vol. XXXVII : 2001
Vol. XXXVIII : 2002
Vol. XXXIX : 2003
Vol. XL : 2004
Vol. XLI : 2005
Vol. XLII : 2006
Vol. XLIII : 2007
Vol. XLIV : 2008
Vol. XLV : 2009
Vol. XLVI : 2010
Vol. XLVII : 2011
Vol. XLVIII : 2012
Vol. XLIX : 2013
Vol. L : 2014
Vol.LI : 2015
Vol.LII : 2016
Vol.LIII : 2017
viii
 TABLE OF CONTENTS

1 ADMINISTRATIVE LAW 1

I INTRODUCTION 1
II ADMINISTRATIVE ACTION 2
Tests to determine quasi-judicial function 2
III NATURAL JUSTICE 5
Audi Alteram Partem 8
Duty to give speaking order 8
III DELEGATED LEGISLATION 8
IV JUDICIAL REVIEW 10
Nature and scope 10
Exclusion of judicial review 13
Doctrine of judicial restraint 14
V CONCLUSION 19

2 BANKING AND INSURANCE LAW 21

I INTRODUCTION 21
II SECURITIZATION AND RECONSTRUCTION OF
FINANCIAL ASSETS AND ENFORCEMENT OF
SECURITY INTEREST ACT, 2002 (SARFAESI) 21
Guarantor under definition of ‘borrower’ under SARFAESI Act 23
Stage of right to appeal of borrower 25
III RECOVERY OF DEBTS DUE TO BANKS AND FINANCIAL
INSTITUTIONS ACT, 1993 26
Effect of Non-disclosure of pending litigations and
encumbrances of sale of secured assets to auction purchaser 26
Power of Lok Adalat in passing interim order in pre-litigation
with regard to the sale of secured assets under SARFAESI Act 28
Power of Magistrate under SARFAESI Act 29
IV BANKING REGULATION ACT, 1949 30
V PREVENTION OF MONEY LAUNDERING ACT, 2002 31
VI INSOLVENCYAND BANKRUPCY CODE, 2016 34
Legal validity of sections 8 and 9 of IBC 36
Effect of withdrawal after admission of application under IBC 37
Compliance of time period: its effect 37
Scope of definition of ‘dispute’ under IBC 38
VII INSURANCE 39
VIII CONCLUSION 40

ix
 3 CIVIL PROCEDURE 43

I INTRODUCTION 43
II JURISDICTION 43
Exclusion of jurisdiction of civil courts 43
Jurisdiction to resolve service disputes of members of the
General Reserve Engineering Force 44
Transfer of cases: Extent of jurisdiction of high courts 45
III RES JUDICATA 46
Prohibition to sue under order 2 rule 2, CPC 46
IV PLEADINGS 47
Rejection of plaint 47
Amendment of pleadings 49
Filing of additional evidence 49
Denial of statement made in the plaint 50
V PARTIES 50
Parties in a representative suit 50
Parties in proceedings for determination of Compensation 51
Suit for declaration as to the legal character of an alleged
marriage 51
Reversal or variation of a decree on account of misjoinder or
non-joinder of parties 51
Maintainability of suit for eviction filed by one of the co-owners 52
Consequences of failure to bring the LRs of deceased parties 52
on record
Assignee’s right to be brought on record to continue the suit 53
VI APPEAL 53
Power of the appellate courts to remand the case and
limitations thereon 53
First appeal 54
Second appeal 55
Letters Patent Appeal 59
Appeal from orders 60
High Court’s power to issue certificate for filing appeal in the 62
Supreme Court
Civil appellate jurisdiction of the Supreme Court
under article 136: Scope 62
VII REVIEWAND REVISION 63
Review 63
Revision 64
VIII JUDGMENT, DECREE AND ORDERS 64
Judgment: Minimum ingredients 64
Prerequisite for setting aside a decree on the ground of fraud 66
IX EXECUTION 66

x
 Powers of the executing court 66
Execution of decree against the legal representative of
a judgment debtor 67
Setting aside of ‘auction – sale’ of property in execution
proceedings 68
Filing of application under wrong provision 69
X LIMITATION 69
Condonation of delay: Section 5 of the Limitation Act, 1963 69
Application by the auction purchaser for delivery of
possession : Limitation 70
Reckoning of limitation period prescribed under section
13 (2) of the CP Act, 1986 71
Petitions under article 227 of the Constitution: Limitation 72
Need to file claims within reasonable time, where no
period of limitation prescribed 72
Delay in filing appeal under section 125 of the Electricity
Act, 2003 74
Application for setting aside arbitral award 74
The limitation for execution of preliminary decree for partition 75
XI MISCELLANEOUS 75
Interference by the high court with the order passed by the
trail court under Order 39, Rule 2A CPC 75
Rescission of contract on default of decree – holder
(purchaser) to pay the decretal amount within time 76
Withdrawal of suit 76
Specific Relief 78
Suit alleging breach of trust 78
Imposition of cost for abusing the process of court 78
Matrimonial disputes: Transfer of proceedings 80
Challenge to the preliminary decree in an appeal against the
final decree 83
Filing of translated version of the document already on
record: Need for filing an application under order 41 rule 27 83
Filing of counterclaim before the small cause court 83
Applicability of section 89, CPC to consumer fora 84
Setting aside an ex parte decree 84
Non–appearance of the appellant during the hearing of appeal 84
XII CONCLUSION 85

4 COMPANY LAW 87

I INTRODUCTION 87
II OPPRESSION AND MISMANAGEMENT 87
III LIFTING OF CORPORATE VEIL 90

xi
IV SICK INDUSTRIAL COMPANY 92
V SCHEME OF ARRANGEMENT 93
VI WINDING UP 93
VII SHAREHOLDERS OF A COMPANY 94
VIII AMALGAMATION 98
IX OVERIDING EFFECT OF COMPANIES ACT, 2013 99
X MISCELLENOUS 99
XI DIRECTORS OF THE COMPANY 102
XII EXTRAORDINARY GENERAL MEETING 103
XIII CONCLUSION 104

5 COMPETITION LAW 105

I INTRODUCTION 105
II TRENDS 105
III COMPETITION COMMISSION: VERTICAL
ANTI-COMPETITIVE AGREEMENTS 106
IV ANTI-COMPETITIVE AGREEMENTS: BID RIGGING 110
V ABUSE OF DOMINANT POSITION 118
VI CARTELIZATION 119
VII ANTI-COMPETITIVE AGREEMENTS: ASSOCIATIONS 124
VIII COMBINATIONS 128
IX COMPAT: DOMINANT POSITION 129
X COMPAT ON SECTION 26 (8) 130
XI NATIONAL COMPANY LAW APPELLATE TRIBUNAL 131
XII SUPREME COURT: ANTI-COMPETITIVE AGREEMENTS 132
XIII CONCLUSION 134

6 CONFLICT OF LAWS 135

I INTRODUCTION 135
II FAMILY LAW 135
Child Custody 135
Marriage – Domicile 143
Dissolution of Marriage 145
III CONTRACTS 145
Contracts – Forum Non-Conveniens 148
IV ANTI-SUIT INJUNCTIONS 149
Anti-Suit Injunctions in International Contracts 151
V INTERNATIONAL COMMERCIAL ARBITRATION
AND CONFLICT OF LAWS 152
Party Autonomy and Conflict of Jurisdictions 152
Distinction between ‘seat’ and ‘venue’ 155
xii
 Party Autonomy: Extending Dimensions 155
Enforcement of Foreign Arbitral Awards 158
VI RECOGNITION OF NOTARIALACTS DONE BY FOREIGN
NOTARIES 160
VII FOREIGN JUDGMENT 163
VIII CONCLUSION 167

7 CONSTITUTIONAL LAW-I 169

I INTRODUCTION 169
II RIGHT TO EQUALITY 172
Validity of ‘talaq-e-biddat’ (triple talaq) 172
Discrimination 174
Regularization in service 177
III DISTRIBUTION OF STATE LARGESSE 179
IV RESERVATIONS IN ADMISSIONS AND SERVICES 190
Reservation and relaxation for persons with
“benchmark disabilities” 195
V RIGHT TO FREEDOM OF SPEECH AND EXPRESSION 201
Limits of political speech 201
Contempt of court 202
VI RIGHT TO LIFE AND PERSONAL LIBERTY 204
Right to privacy 204
Right to food 211
Right to speedy trial 213
VII RIGHT TO RELIGIOUS FREEDOM 215
Validity of ‘talaq-e-biddat’ under article 25 215
VIII CONCLUSION 215

8 CONSTITUTIONAL LAW-II 221

I INTRODUCTION 221
II ARTICLE 129 221
III ARTICLE 133 AND 134A 225
IV ARTICLE 226 225
V ARTICLE 142 230
VI APPOINTMENT OF CHIEF MINISTER 237
VII ARTICLE 164: APPOINTMENT OF PARLIAMENTARY
SECTRETARIES 238
VIII INDEPENDENCE OF JUDICIARY 240
IX CONCLUSION 245

xiii
 9 CRIMINAL LAW 249

I INTRODUCTION 249
II THE INFAMOUS NIRBHAYA CASE 249
III MARITAL RAPE 254
IV OFFENCES AGAINST WOMEN 256
Rape 258
Statutory rape 258
Honour killing 258
Acid attack 259
V OFFENCES AGAINST PERSONS 261
Hooch tragedy 261
Murder 262
Culpable homicide not amounting to murder 264
Sudden fight 264
VI JOINT LIABILITY 265
VII INCHOATE OFFENCES 268
Attempt to murder 268
Attempt to commit suicide 268
Abetment to suicide 268
Conspiracy 269
VIII CUSTODIAL VIOLENCE 270
Police atrocities 270
IX SENTENCING 271
Age 242
X MISCELLANEOUS 274
Timely Justice 274
Defamation 274
Compounding 275
Section 295A 275
Destruction of evidence 275
Juvenility 275
Medical negligence 276
Perverse 276
Review 276
Prisons 277
Prison transfer 277
XI CONCLUSION 277

10 CRIMINAL PROCEDURE 281

I INTRODUCTION 281
II ARREST 281
xiv
III INVESTIGATION 282
IV INQUEST REPORT 282
V BAIL 283
VI PRETRIAL PROCEDURE 284
VII TRIAL AND TRIAL PROCEDURE 285
VIII SENTENCING 289
IX APPEAL 291
X CHILD PROTECTION 294
XI TRANSFER 294
XII CONCLUSION 296

11 CYBER LAW 297

I INTRODUCTION 297
II INTERMEDIARY LIABILITY 297
III BLOCKING OF WEBSITES 302
IV SECTION 65 B-ADMISSIBILITY OF ELECTRONIC EVIDENCE 306
Section 65B applicable to secondary evidence and not primary 309
Evidentiary Value of Electronic Evidence 311
V INTERNET PRIVACY 312
VI RIGHT TO BE FORGOTTEN 314
VII OBSCENITY 317
VIII CONCLUSION 317

12 ELECTION LAW 319

I INTRODUCTION 319
II INVOCATION OF RELIGION BY THE ELECTION CANDIDATE:
WHETHER IT IS PER SE PROHIBITIVE UNDER THE
REPRESENTATION OF THE PEOPLE ACT, 1951 320
III ENCROACHMENT UPON PUBLIC PROPERTY: WHETHER
A FAMILY MEMBER OF THE ORIGINAL ENCROACHER
CAN BE DISQUALIFIED UNDER THE PANCHAYAT
ELECTION LAW 343
IV CONCLUSION 358

13 ENVIRONMENTAL LAW 361

I INTRODUCTION 361
II REVIVAL OF WATER BODY IN NCT OF DELHI 361
III JURISDICTION OF NGT 364
IV CONCURRENT JURISDICTION OF HIGH COURTS UNDER
ARTICLE 226 & OF NGT TO ENTERTAIN ENVIRONMENTAL
LITIGATION 365
xv
V MULTIPLE CAUSES OF ACTION AND MISJOINDER OF
CAUSES OF ACTION BEFORE THE NGT-CONSEQUENCES 366
VI NGT CANNOT DECIDE THE VIRES OF A LAW 367
VII AIR POLLUTION: CONTINUING BAN ON SALE OF
FIREWORKS IN NATIONAL CAPITAL REGION 367
VIII URANIUM MINING AND ADVERSE IMPACT ON
PUBLIC HEALTH 368
IX PROHIBITION OF MANUFACTURE, SALE AND PURCHASE
OFSYNTHETIC MANJHA/NYLON KITE THREAD
(CHINESE MANJHA) 369
X WILDLIFE PROTECTION 370
XI AIR POLLUTION 371
XII POLLUTION CAUSED DUE TO PIGEON POULTRY FARM 372
XIII MANUFACTURE OF BS-IV COMPLIANT VEHICLES 372
XIV INDISCRIMINATE FELLING OF TREES 373
XV WATER POLLUTION 374
XVI BEACH CAMPS ALONG THE RIVER GANGA FROM
SHIVPURI TO RISHIKESH 376
XVII SUPPLYING RIVER WATER FOR THE PREPARATION OF
SOFT DRINKS OR SELLING DRINKING WATER UNDER
THE NAME OF MINERAL WATER OR SOFT DRINKS 376
XVIIIMANDATORY FUNCTIONAL EFFLUENT TREATMENT
PLANTS IN INDUSTRIES IN INDIA 378
XIX MINING, EXPANSION AND POLLUTION CONTROL 379
XX CONCLUSION 380

14 FORENSIC LAW 383

I INTRODUCTION 383
II CIVIL DISPUTE RESOLUTION 385
III CRIMINAL ADJUDICATION 386
Judicial observations on deception detection techniques 388
Consent for facing forensic test 388
High Court order to conduct DNA test 389
Right of an accused to demand forensic test 389
Chain of Custody and Quality Control 390
Power to conduct further investigation 392
Human identification by forensic tools 393
Consent for sexual conduct 397
DNA and other forensic evidence in sexual abuse 398
Determination of age of minor victim 402
Sexual abuse of mentally challenged females 403
False promise to marry and sexual exploitation 406
xvi
 Potency test and issue of self-incrimination 406
Forensic corroboration in Property offences 407
DNA in proving innocence 407
Legal Conundrum on voice matching 409
IV CONCLUSION 410

15 FOREST AND TRIBAL LAW 413

I INTRODUCTION 413
II FOREST RIGHTS ACT 413
III RESERVED FOREST 419
IV NATIONAL PARKS AND SANCTUARIES 425
V PROTECTION OF WILDLIFE 427
VI CONCLUSION 430

16 HINDU LAW 431

I INTRODUCTION 431
II HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 431
Validity of adoption 431
Adoption of person above the age of 15 years 435
III MAINTENANCE 436
Liability of the father to maintain major children: differential
criteria for a son and a daughter 436
Marriage expenses of unmarried daughter 437
IV HINDU MARRIAGE ACT, 1955 438
Bigamy 438
Nullity of marriage 440
Presumption of marriage/child marriage void or voidable? 441
Cruelty 441
Divorce by Mutual Consent 442
Waiver of six months period 443
Withdrawal of consent by one of the parties 444
Second motion after 18 months 445
Remarriage of divorced persons 447
V HINDU MINORITY AND GUARDIANSHIP ACT, 1956 448
Custody of minor child 448
Territorial Jurisdiction 452
VI HINDU LAW 452
Application of doctrine of survivorship under Mitakshara Law 452
Ancestral property: determination of character 453
Karta 454
Suit for partition 455
xvii
 Gift in favour of daughter 456
Plea of oral partition 456
VII HINDU SUCCESSION ACT, 1956 457
Abolition of Hindu Joint family in state of Kerala 457
Share of the daughter 458
Separate property 459
Validity of marriage and Legitimacy of children 459
Suit for partition by the daughter/sister of coparcenary property 460
Property partitioned prior to 2005 461
Marital Status of the mother 462
Female intestate 463
Property inherited from husband or father-in law 464
Murderer disqualified 466
VIII CONCLUSION 467

17 INTELLECTUAL PROPERTY LAW 469

I INTRODUCTION 469
II COPYRIGHT 469
Re-transmission of live feeds of cricket matches 469
Movie title, copyright and passing off 470
The rights of the producer qua the author of the script
regarding dubbing of a film 471
Work created during employment 472
Copyright vis a vis designs 472
Copyright license and territorial jurisdiction 473
Concept note and production bible of reality TV shows 473
III PATENTS 474
Working of patents through imports 474
Monsanto’s BT. cotton and section 3(j) 475
Standard essential patents and FRAND royalty 475
Injunction against apprehended launch 476
Bolar exemptions 476
IV INDUSTRIAL DESIGNS 476
Substantial copying of design 476
Copyright in the technical drawings of designs 477
Speaking orders or reasoned decisions 477
V TRADE MARK 478
Secondary meaning of descriptive marks and human
interactions test 478
Rectification 479
Territorial jurisdiction and quia timet action 481
Passing off and infringement 482
xviii
 Disparaging and comparative advertisements 482
VI MISCELLENEOUS 485
Intellectual property and information technology rules 485
Patent vis a vis Competition Act 485
VII CONCLUSION 485

18 INTERNATIONAL LAW 487

I INRODUCTION 487
II SUPREME COURT CASES 487
III HIGH COURT CASES 490
IV NATIONAL GREEN TRIBUNAL OF INDIA 493
V CONCLUSION 493

19 LABOUR MANAGEMENT RELATIONS 495

I INTRODUCTION 495
II INDUSTRIAL DISPUTES ACT, 1947 495
Industry: meaning 495
Workman 496
Reference and related issues 497
Disciplinary action 498
Retrenchment 505
Regularization 509
Personal contracts not specifically enforceable: ID
Act an exception 511
III MISCELLANEOUS 512
Unfair Labour Practice 512
Payment of interest for delayed payment of gratuity and
pension 513
The Building and Other Construction Workers (Regulation of
Employment and Conditions of Services) Act, 1996:
Implementation issues 513
Cruelty against migrant workers 514
IV CONCLUSION 515

20 LAW & SOCIAL CHANGE 517

I INTRODUCTION 517
II RIGHTS OF VISUALLY DISABLED PERSONS 518
III RE-INHUMAN CONDITIONS IN 1382 PRISONS 520
IV RIGHT TO EDUCATION 523
V ENVIRONMENTAL PROTECTION 525

xix
VI THE NATIONAL ANTHEM CASE 528
VII FUNDAMENTAL RIGHT TO TRADE AND PROFESS 529
VIII CONCLUSION 530

21 MERCANTILE LAW 531

I INTRODUCTION 531
II LAW OF CONTRACT 531
Concluded Contract 531
Acceptance of Tender 533
Concluded Contract 534
Misrepresentation 536
Public policy 537
Unjust Enrichment 537
Forfeiture of Earnest Money 538
Bailment 539
Obligation of the Bailor 540
III PARTNERSHIP ACT 540
Effect of Non Registration of a Firm 540
Interplay of Arbitration Agreement and Unregistered Firm 542
IV NEGOTIABLE INSTRUMENTS 544
Application of Pari Delicto 544
Presumption of Consideration 544
Nature of offence of Dishonour of Cheque 544
Dishonour of Cheque and Notice thereof 546
Vicarious Liability of Directors under The NI Act 549
V CONCLUSION 550

22 MUSLIM LAW 553

I INTRODUCTION 553
II LAW RELATING TO STATUS 553
Nikah (Marriage) 553
Dissolution of Marriage 558
Talaq 558
Mubarat 560
Faskh (Judicial separation) 563
Maintenance 569
Hizanat (Custody) and Wilayat (guardianship) 579
III LAW RELATING TO PROPERTY 581
Wasiyat (Will) 581
Hiba (gift) 582
Wirathat (Sucession & Inheritance) 586

xx
 Waqf 591
Miscellaneous issues 593
IV CONCLUSION 594

23 PROPERTY LAW 597

I INTRODUCTION 597
II GENERAL PRINCIPLES 598
Profit-a-prendre 598
Family settlement 598
Transfer of property 601
Restriction repugnant to interest created 601
Joint ownership and Transfer of property 602
Feeding the grant by estoppels 603
Lis pendense 604
Section 52 and Specific Performance 605
Part-Performance 606
Part-Performance and Specific Relief 608
III SPECIFIC TRANSFERS 609
Sale of Immovable Property 609
Outstanding dues of owner 609
Bona-fide purchaser 610
Transfers of immoveable property only by registration 610
Agreement to Sell and Sale 611
Sale deed 611
No witnesses needed for sale deed 613
Mortgages 614
Equitable Mortgage 614
Mortgage by Conditional Sale 615
Mortgage by Deposit of Title Deed 618
Right of Redemption 619
Right of Redemption and Auction Sale 620
Definition of Lease explained 621
Protection of tenant’s rights 621
Eviction of Lease by Afflux of Time 622
Renewal of Lease 624
No right to claim extension of lease 624
Sub-letting of tenancy 625
Redemption of Anomalous Mortgage 626
Application of the TP Act vis a vis Arbitration 626
Eviction Procedure 627
Tenants estopped to question the title of the landlord 628
Tenancy-at-sufferance 628
xxi
 Notice to quit 630
Gift deed of Hindu Undivided Family 630
Oral Gift 630
Validity of gift deed 631
IV CONCLUSION 631

24 PUBLIC INTEREST LITIGATION 633

I INTRODUCTION 633
II PIL AND LOCUS STANDI 635
III PIL AND LACHES 636
IV PIL AND CONSTITUINAL VALIDITY OF STATUTES
AND PRACTICES 638
V PIL AND THE RIGHT TO PRIVACY 643
VI PILAND RELIGION 644
VII PILAND FREEDOM OF SPEECH AND EXPRESSION 646
VIII PILAND ENVIRONMENT 646
IX PILAND CORRUPTION 651
X PILAND CHILDRENS’ RIGHTS 653
XI PIL AND THE DISABLED 656
XII PIL AND POLICY MATTERS 660
XIII SUO MOTO PIL 661
XIV PIL AND THE COURTS 664
XV PIL AND ARBITRARY STATE ACTION AND STATE
INACTION 671
XVI MISUSE OF PIL 693
XVII CONCLUSION 699

25 SOCIO ECONOMIC CRIMES 703

I INTRODUCTION 703
II THE PREVENTION OF MONEY LAUNDERING ACT, 2002 704
Denial of Bail 704
PMLA, 2002: meaning of section 3 705
Constitutional validity of section 45, PMLA-Arbitrariness 706
Inconsistency in Purpose 707
Schedule A and B-Irrational Classification 708
Same punishment, different bail condition 709
Life imprisonment 709
Ten years punishment 710
Did Parliament apply its mind? 710
NDPS Act 1985 better drafted than PMLA 710
Biological Diversity Act, 2002 711

xxii
 Bail and pre bail 711
Reasonable grounds vis a vis Prima facie: Difference 712
Compelling State interest 713
Distinguishing Precedents 713
III THE PREVENTION OF CORRUPTION ACT, 1988 715
Changed legislative approach 715
Should judiciary also change its approach? : Yes 715
Should Prosecution disprove all possible sources
of income? : No 718
Income tax returns as evidence in penal proceedings :
not conclusive 719
Genuineness of Gift 720
Should a public servant accept costly gift? 720
10% Rule of Krishnanand Agnihotri - Not applicable 720
IV THE PREVENTION OF CORRUPTION ACT, 1988 AND
ARTICLE 142 725
Coal block Scams and interpretation of section 19 (3) 725
When can a criminal proceeding under PCA be stayed? 726
Failure of Justice 729
Failure of Justice : External Aid from International Instruments 731
V CORRUPT PRACTICES, MBBS ADMISSION AND ARTICLE 142 733
VI DOWRY DEATH 738
VII CONCLUSION 743

26 SOCIAL SECURITY AND LABOUR LAW 747

I INTRODUCTION 747
II EMPLOYEES’ COMPENSATION 748
Employer’s Liability for compensation 748
Condonation of delay 750
Amount of Compensation 751
III EMPLOYEES’ STATE INSURANCE 752
IV EMPLOYEES’ PROVIDENT FUND 754
Maintainability of a suit in cases covered by EPF Act 754
Actus reus under section 14-B 755
Nature of Proceeding under section 7A of EPF Act 755
Priority of provident fund dues over debts 757
V GRATUITY 758
Moral Turpitude 758
Jurisdiction of Lokayukta to decide of the claim of gratuity 758
Judicial Response 759
VI MATERNITY BENEFIT 760

xxiii
VII PAYMENT OF WAGES 762
VIII CONCLUSIONS 763

27 TORT LAW 765

I INTRODUCTION 765
II DEFAMATION 765
III NEGLIGENCE 769
Custodial death due to negligence 770
Contributory negligence 770
Medical negligence 771
IV COMPENSATION UNDER MOTOR VEHICLE ACT, 1988 774
V LIMITATION PERIOD 776
VI TORT OF INJURIOUS FALSEHOOD 776
VII CONSTITUTIONAL TORT 777
Right to work in safe environment 778
VIII CONCLUSION 780

28 WOMENAND THE LAW 781

I INTRODUCTION 781
II RIGHTS AND FREEDOMS 782
Triple talaq and the unheard voices of Muslim women 783
Forgotten widows of Vrindavan 786
The question of abortion and (limits of) reproductive rights 787
Compensation Claims 792
III VIOLENCE, WOMEN AND THE LAW 793
Harassment is not same as cruelty 793
Misuse of section 498A 794
Murder of Wives 797
Killings in the name of family honour 799
When women are killers 800
Female offenders and sentencing 803
Sexual Consent 805
Rape and murder: death penalty as punishment 806
Defective investigation and “reasonable doubt” 808
The question of age 809
Rape of child wife 810
Elopement and age of consent 813
Woman’s right to love and reject 813
Acid attack 815
Caste based gendered violence 816

xxiv
IV MATRIMONIAL DISPUTES 817
Cruelty 817
Divorce by mutual consent 818
Custody of child 818
Maintenance 820
Video-conferencing in matrimonial proceedings 821
Domestic Violence 822
V CONCLUSION 823

29 CENTRAL LEGISLATION 825

I INTRODUCTION 825
II ADMIRALTY JURISDICTION 825
The Admiralty (Jurisdiction and Settlement of Maritime
Claims) Act, 2017 825
III BANKING AND COMMERCE 826
The Banking Regulation (Amendment) Act, 2017 826
IV WELFARE LEGISLATIONS ON MATERNITY BENEFIT,
EMPLOYEES’ COMPENSATION AND WAGES 827
The Employee’s Compensation (Amendment) Act, 2017 827
The Maternity Benefit (Amendment) Act, 2017 828
Payment of Wages (Amendment) Act, 2017 828
V EDUCATIONAL INSTITUTIONS 828
The National Institutes of Technology, Science Education
and Research (Amendment) Act, 2017 828
The Footwear Design and Development Institute Act, 2017 829
The Indian Institutes of Information Technology (Public-Private 829
Partnership) Act, 2017
VI DEMONETIZATION 830
The Specified Bank Notes (Cessation of Liabilities) Act, 2017 830
VII NATIONAL SECUTITY VIS A VIS ENEMY PROPERTY 830
The Enemy Property (Amendment and Validation) Act, 2017 830
VIII MISCELLENEOUS 832
The Collection of Statistics (Amendment) Act, 2017 832
The Punjab Municipal Corporation Law (Extension to
Chandigarh) Amendment Act, 2017 832
IX CONCLUSION 832

xxv
Vol. LIII] Forensic Law 383

14

FORENSIC LAW
Gajendra K. Goswami*

I INTRODUCTION

FORENSIC TECHNOLOGY, over the years, has braced the judicial system to
bring out the truth by way of expert opinion. In addition to eye witness, corroboration
is the hallmark to ensure perfection in delivery of justice. The apex court of India has
also confirmed the importance of circumstantial evidence by regarding it more reliable
than an eye witness and that the basic principle of circumstantial evidence is that it
should be consistent with the guilt of the accused and inconsistent with innocence of
the accused.1 The Supreme Court of India has referred to Lord Coleridge who compared
circumstantial evidence to a gossamer thread, light and as unsubstantial as the air
itself which may vanish at the merest of touch.2 According to Russell, any person
who is skilled or has adequate knowledge in a particular field is called an expert,
derived from Latin maxim Expertocrede means that an expert is to be generally
believed.3 Over the years, expert opinion achieved global acceptance based on scientific
doctrines, accredited procedures and protocols. The reliability of an expert opinion
may be determined by a court by examining (i) educational background of expert in
the domain field, (ii) practical knowledge in the subject, (iii) careful analysis in arriving
at the conclusion opined, and (iv) ability to explain with expertise how he arrived at
the given conclusion.4
The present survey is an analytical account of various judicial pronouncements
during 2017 by the constitutional courts of India under the evolving legal trends on

* LL.M. Ph.D. Member of the Indian Police Service in the State of Uttar Pradesh. In addition, he
is pursing research activities from the Gujarat Forensic Sciences University, Gandhinagar.
(Email:[email protected])
1 Sanatan v. State of West Bengal, 2010 Cr.L.J. 3871.
2 Musheer Khan @ Badshah Khan v. State of Madhya Pradesh (2010) 2 SCC 748 : 2010 (2) JLJ
104 : 2010 (2) SCR 119. The quote was referred in Ajju @ Ajay v. The State of Madhya
Pradesh, Crim. Ref. No. 1/2014, Madhya Pradesh High Court, 19 May 2017 (Unreported).
3 Bhavanam Siva Reddy v. Bhavanam Hanumantha Reddy 2017 (4) ALT 682.
4 Naveen Krishna Bothireddy v. State of Telangana 2017 INDLAW HYD 582, 2017 CRLJ 3548.
384 Annual Survey of Indian Law [2017

Criminalistics5 and evidences while adjudicating on both civil and criminal matters.
This survey discusses nearly seventy cases and relevant legal provisions while
adjudicating on various cases. Several issues significant in forensic sphere such as
relevance of the principles of testimonial compulsion, contamination and manipulations
of forensic samples, role of chain of custody, consent etc. have been discussed in the
light of relevant judicial pronouncements. The investigating agencies have used bundles
of forensic evidence like DNA profiles, fingerprints, voice analysis, bite marks, CCTV
Footage, cyber footprints etc. for the purpose of corroboration, which shall be
deliberated in the subsequent sections of the extant survey. Two sensational criminal
cases namely the Arushi murder6 and Delhi gang rape (the Nirbhaya case)7 have been
adjudicated by the constitutional courts during 2017. In the Nirbhaya case, the
significance of DNA was enunciated by the Supreme Court as under:8
DNA evidence is now a predominant forensic technique for identifying
criminals when biological tissues are left at the scene of crime or for
identifying the source of blood found on any articles or clothes, etc.
recovered from the accused or from the witnesses. DNA testing on
samples such as saliva, skin, blood, hair or semen not only helps to
convict the accused but also serves to exonerate. The sophisticated
technology of DNA fingerprinting makes it possible to obtain
conclusive results.
The Supreme Court reiterated the forensic significance of DNA by saying9
DNA report deserves to be accepted unless it is absolutely dented and
for non- acceptance of the same, it is to be established that there had
been no quality control or quality assurance. If the sampling is proper
and if there is no evidence as to tampering of samples, the DNA test
report is to be accepted.
The right to privacy has been declared as an integral component of the right to
life with dignity in Justice K. S. Puttaswamy (Retd.) v. Union of India10. Privacy and
informed consent are intertwined concepts and both are to assist a magistrate to decide

5 Criminalistics may be defined as the application of scientific methods to recognition, collection,

identification and analysis of physical evidence from scene of crime or unlawful civil activity.
It also involves reconstruction of the crime scene.
6 Dr. (Smt.) Nupur Talwar v. State of Uttar Pradesh 2017 SCC OnLine All 2222 : (2018) 102
ACC 524 : (2018) 188 AIC (Sum 26) 11 : MANU/UP/2639/2017.
7 Mukesh v. State (NCT of Delhi) (2017) 6 SCC 1 : 2017 SCC OnLine 533: MANU/DE/3151/
2014.
8 Id. at para 457.
9 Id. at para 224 (Deepak Mishra J.) referred para 20 of Nandlal Wasudeo Badwaik v. Lata
Nandlal Badwaik (2014) 2 SCC 576.
10 (2017) 10 SCC 1.
Vol. LIII] Forensic Law 385

for directing the subject for tendering bodily samples for forensic examination. The
apex court has observed that fingerprints, DNA Profiles and cellular samples constitute
‘personal data’. The court referred to the Grand Chamber 18 judges at ECHR in A
and Marper v. United Kingdom11 where it was held that “[T]he DNA profiles’ capacity
to provide a means of identifying genetic relationships between individuals … is in
itself sufficient to conclude that their retention interferes with the right to the private
life of the individuals concerned... The possibility the DNA profiles create for
inferences to be drawn as to ethnic origin makes their retention all the more sensitive
and susceptible of affecting the right to private life.”12 The judicial interpretation to
expand the scope of privacy as fundamental right has direct bearings on forensic
sampling, search and seizure, disposal of residual samples etc. Indeed the law
enforcement agencies now must strictly observe due process of law in addition to
standard protocols while dealing with various aspects of forensics. Various legal issues
having importance in forensic dominion observed during this annual survey have
been briefly discussed below.
II CIVIL DISPUTE RESOLUTION
Forensic evidence, especially DNA plays significant role in parentage
determination with greater precision. An aggrieved wife challenged the order of trial
court for not permitting DNA test for paternity determination of her child for claiming
maintenance under section 12 of the Domestic Violence Act, 2005.13 The judicial
magistrate had observed that maintenance under section 125 Criminal Procedure Code,
1973 is enabled even for illegitimate children and hence declined permission for DNA
test. The Himachal Pradesh High Court referred to Indra Sarma v. V.K.V. Sarma,14
where the apex court has distinguished the ‘live-in-relationship’ with that ‘relationship
in the nature of marriage’. It was held that all ‘live-in-relationships’ are not relationships
in the nature of marriage. It was further observed that relationship to qualify as
‘relationship in the nature of marriage’ should have some inherent or essential
characteristics of a marriage though not a marriage legally recognized. The high court
set aside the trial court order by observing that truth is the cornerstone of justice
delivery system. Judges at all levels must undertake serious engagement with the
discovery of truth which is their mandate, obligation and bounden duty and upon
which the faith of people is based.15
A suit for paternity determination was filed by an old couple in the trial court
against Dhanush, an Indian cine star, for claiming maintenance. Later Dhanush filed
a petition before the Madras High Court to call records from magistrate court.16 He

11 291 [2008] ECHR 1581

12 Supra 10 at para 223.
13 Sharda v. Surat Singh, ILR 2016 4 HP 2170 : 11 (2017) DMC 858 HP.
14 (2013) 15 SCC 755.
15 Id. at para 16.
16 Kalaichelvan @ Dhanush K.Raja v. R. Kathiresan and K. Meenakshi @ Meenal, 2017-1-L.W.
(crl.) 662 : (2017) 2 MLJ (Crl) 498.
386 Annual Survey of Indian Law [2017

voluntarily submitted himself before a board of medico-legal experts constituted by

the high court to undergo medical examination for verification of bodily marks for
identification mentioned on the school certificate submitted by the old couple. The
medical expert responded to a query by observing that although it is possible to remove
a small superficial mole completely but a scar cannot be obliterated by plastic surgery
and medically only scar reduction is possible.17 The high court turned down the demand
of the couple for conducting DNA enquiry by citing observation of the apex court in
unequivocal language that a person who wants DNA test for paternity, should make
out a prima facie case before the court to exercise its power.
In yet another case, the petitioner, a husband, demanded before the Karnataka
High Court to allow DNA test for paternity determination of the child in order to
establish adulterous conduct of his wife.18 The high court cited the observation of the
apex court that if it is possible to withhold the direction for carrying out such a test,
then such a test should be avoided. 19 The petition was dismissed since the husband
himself had admitted access to his wife; hence ingredients of section 112 of the Indian
Evidence Act, 1982 were applicable to safely presume that child is legitimate. The
high court further observed that the DNA test would not throw any light on the
adulterous behaviour of the wife.20
In fact the legal conundrum has arisen due to juridical preference for DNA led
paternity determination instead of considering conclusive proof of paternity of a child
born under lawful wedlock as enshrined under section 112 of the Indian Evidence
Act, 1872.21 Forensic intervention in family domain may explore the stark truth of
marital infidelity, but it potentially defeats the best interest of a child by branding
him/her as ‘fatherless’, contradicting with the five guidelines culled out by the apex
judiciary in Goutam Kundu v. State of West Bengal.22 The legal paradox was raised
before the apex court and matter is pending with the Chief Justice of India for referring
to the larger Bench.23
III CRIMINAL ADJUDICATION
Fairness in investigation is precursor to fair trial. Scientific aids, especially forensic
tools enhance transparency, fidelity and accuracy to brace fairness in administration
of justice. The aim of investigation is ultimately to search for truth and to bring

17 Id. at para 12.

18 K.S. Siva Das S/O Mohan Das v. Dr. K. Lekha, MFA No. 103098 of 2015 2018 CHLJ317 :
2017-I-LW (cri) G62 2017 (2) MLJ (cri) 498.
19 Dipanwita Roy v. Ronobroto Roy (2015) 2 SCC 94.
20 Supra note 18 at para 11.
21 Supra note 19. Also see: Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik (2014) 2 SCC
576.
22 1993 AIR 2295 : 1993 SCR (3) 917.
23 M.S.Vidya Rani v. K. Ravi Chandra MANU/SCOR/00890/2017.
Vol. LIII] Forensic Law 387

offenders before law.24 Blending of science with traditional criminal investigation

techniques offers new horizons of efficiency in criminal investigation, which reduces
dependence upon informers and custodial interrogation and concentrates upon skilled
scanning of the crime scene for collection of physical evidence. The apex court in
Pooja Pal v. Union of India25 has described the object and scope of free, fair and
proper investigation. The court has observed that the expression ‘fair and proper
investigation’ in criminal jurisprudence was held by this Court in Vinay Tyagi v. Irshad
Ali26 to encompass two imperatives that the investigation must be unbiased, honest,
just and in accordance with law; and secondly, the entire emphasis should be on
discovering the truth of the case before the court of competent jurisdiction.27 The
High Court of Madhya Pradesh observed that crime investigation traverses in the
dark and oscillates between known and unknown with the sole object of arriving at
the truth”.28 The aid of foreign law expert can also be sought under section 45 of the
Indian Evidence Act.29
The Karnataka High Court observed that DNA mapping and it’s result is almost
near perfect scientific tool in criminal investigation to establish the identity of a
deceased.30 Madhya Pradesh High Court in Ajju @ Ajay v. The State of Madhya
Pradesh31 has accentuated the emphasis on DNA evidence and training of various
stakeholders. The court observed:32
It (DNA) is a recently developed impeccable scientific technique in
determining the identity of a person alleged to be involved in crime
provided the crime-related DNA samples are properly collected, not
tampered with or not contaminated and the DNA analyst correctly
matches them with duly obtained DNA sample from the person
concerned. Now-a-days, DNA profiling is being increasingly used by
the investigating agencies to nab culprits especially in those cases where
the ocular evidence is not forthcoming. To safeguard the interests of
culprits, the persons who have collected crime- related DNA samples
and the DNA analysts are required to be cross-examined effectively by
their advocates. It is only possible when they know the areas where the
DNA samples collectors may make irregularities in collecting them or

24 Manohar Lal Sharma v. Union of India (2014) 2SCC 532.

25 (2016)3 SCC 135.
26 (2013) 5 SCC 762.
27 Id. at para 88.
28 Jitenda Singh Narwariya v. The State of Madhya Pradesh, 2017 (111) MPJR (SC) 23, MANU/
MP/0827/2017
29 Dhirajlal @ Dhirubhai Babaria v. Navibhai C. Dave MANU/MH/1934/2017.
30 Smt. Rajeshwari Shetty v. The State of Karnataka MANU/KA/0811/2017 (para 13).
31 Available at https://indiankanoon.org/doc/74673692/ (last visited on 18 March, 2019).
32 Id. at para 87.
388 Annual Survey of Indian Law [2017

the DNA analysts may make mistakes at the time of matching the DNA
profiling. Keeping in view the aforesaid, we request the State Bar
Council of Madhya Pradesh to make efforts to enlighten lawyers as to
how the aforesaid persons can be effectively crossed by arranging
lectures of experts of the DNA field and by making lawyer available
exhaustive reading-materials in this regard. We have come across that
in the United State of America if the prosecution case is entirely based
upon the DNA evidence, then it is mandatory for the prosecuting
concerned agency to get the DNA samples analyzed by the two
recognized laboratories without disclosing each other the fact that the
DNA samples are also sent for analysis to another laboratory as well.
If the reports of both the laboratories are same, then the prosecution is
launched. Hence, we also request to the investigating agencies to follow
the suit in this regard.
Various issues related to forensics in criminal law administration observed during
the extant annual survey are deliberated as under:
Judicial observations on deception detection techniques
Rajasthan High Court in Pappuram v. State of Rajasthan,33 held that if accused
has not demanded to conduct deception detection tests (DDTs) such as narco-analysis,
brain mapping or polygraph (lie detector test) at time of investigation, it may not be
permitted during trial. The high court further opined that in Moti Ram v. State of
Rajasthan,34 Dr. Purshottam Swaroopchand Soni v. State of Gujarat 35 and State of
Gujarat v. Inayat Ismail Vohra36 the high courts have permitted to conduct these tests
but under different circumstances.
Consent for facing forensic test
Free and informed consent to conduct specific forensic test may be a pre-requisite
to protect privacy of the subject. The Bombay High Court dealt with a legal issue on
consent where court permission was granted only for conducting polygraph test but
in addition the accused was subjected to Brain mapping and narco-analysis. In this
regard observations made by the apex court in the Selvi are quite apt37 wherein it is
held that no individual, whether its criminal investigation or otherwise should be
forcibly subjected to any of the techniques in question, and doing so would amount to
an unwarranted intrusion into personal liberty.38 The high court held that free and
informed consent of the accused is sine qua non for conducting DDTs and physical,

33 2017 LawSuit (Raj) 263 (Unreported).

34 2013 (2) Cr.L.R. (Raj.) 1045.
35 (2007) 2 GLR 2088.
36 2013 SCC OnLine Guj 5948.
37 Selvi v. State of Karnataka (2010) 7 SCC 263 : AIR 2010 SC 1974.
38 Id at para 264.
Vol. LIII] Forensic Law 389

emotional and legal implications of these tests must be communicated to the subject
as per the guidelines for administration of Polygraph Test (lie detection test) on an
accused issued by the National Human Rights Commission in 2000.39
High Court order to conduct DNA test
Potential of DNA for advancing justice is well known but this potent forensic
tool still suffers from ‘cherry picking’ approach of investigating agencies. Despite
specific provisions under section 53A and 164A of the Code for Criminal Procedure,
the use of DNA in investigation of sexual offences is not encouraging. The Karnataka
High Court ordered to conduct DNA test and to re-conduct trial in an acquittal of rape
incidence.40 The adolescent prosecutrix was raped by her neighbour and was threatened
to remain silent. Consequently, delayed disclosure of pregnancy led to her delivering
a child. DNA established beyond any reasonable doubt that the accused was the author
of the crime since he was the biological father of the child born to the prosecutrix.
The appeal was dismissed and conviction was upheld by the high court with
observation41:
Therefore, it follows that she was virtually incapable of warding off
the impending danger of sexual assault on her. The accused appears to
have taken advantage of her imbecility and was emboldened to repeat
the acts knowing fully well that she was not in a position to offer
resistance to his illegal acts. In the said background, the mental
deficiency of the prosecutrix cannot be taken as a circumstance to doubt
or disbelieve her evidence. Mental deficiency of a witness cannot render
his or her testimony unworthy of credit if the facts narrated by witness
are found trustworthy and reliable.
Right of an accused to demand forensic test
Equitable justice demands equal opportunity to be extended to the accused also
as a matter of right for proving his innocence by way of using forensic evidence.
However, investigation in India is police driven and hardly receptive to suggestions
of accused or victim for using forensic evidence. The trial court order rejected the
request of a father accused of rape and impregnating his 13 years old daughter, to
conduct DNA test to prove his innocence and convicted him. He filed an appeal for
challenging the trial court order. The Guwahati High Court allowed the appeal by
observing that although the present case does not pertain to the ascertainment of the
parentage of the child, nevertheless, if after the DNA test a connection can be
established between the DNA profile of the accused and that of the said child that

39 Irfan @ Shairu v. State of Rajasthan available at https://indiankanoon.org/doc/191894626/

(last visited on 18 March, 2019).
40 Pradeep @ Pradeep Koraga v. State By Karkal Police, Crim. Appeal No. 1492 of 2016,
Karnataka HC, 14 October, 2017 (Unreported).
41 Id. at para 10.
390 Annual Survey of Indian Law [2017

would amount to the conclusive proof of the fact of rape. On the other hand, if their
profiles do not match, the accused petitioner can raise certain grounds in his defence
on the charge of rape.”42 Later, DNA of the accused matched with the child reinforcing
the factum of rape. The appeal was dismissed and conviction order was upheld.
Chain of Custody and Quality Control
Contamination and manipulation remain the biggest threats to inviolability of
forensic samples besides maintaining the chain of custody (CoC) which are sine qua
non for probity of expert opinion. The apex court, in this context confirmed the
tremendous impact that DNA profile has had on scientific investigation, lauded its
reliability and validity and further admitted that any variance in a particular result
depends on the quality control and quality procedure in the laboratory.43 The burden
of proving that DNA report was vitiated for any reason lies on the accused.44 In fact
accused hardly gets any access to proceedings of sampling or analysis in laboratory,
hence in the interest of justice; it is desirable that standards for forensics must be
robust to avoid any kind of manipulation at any stage.
The Maharashtra High Court in Vijay S/o Shamu Nagfase and Atul Hatwar v.
State of Maharashtra45 held that if the DNA report is dented and it is established that
there has been minimal or no quality control or quality assurance and if the sampling
has been improper and that there is evidence to show tampering of the samples, it
would be unsafe to make a conviction based on the said DNA test report.46 In this
gang rape, the DNA profiles matched with the accused but based on certain procedural
lacunae, the high court set aside conviction order of the trial court to acquit the accused
persons. However, vital question that remained unanswered was how, despite all
procedural discrepancies on the part of prosecution, semen stains of the accused persons
were detected on the clothes of the prosecutrix, moreover the defense never claimed
to have consensual intercourse with the prosecutrix. Neither there was any evidence
on record nor claim by the defense that semen was subsequently collected by anyone
including investigating agency from the accused persons to implant it on the clothes
seized from the prosecutrix. Acquittal in such cases is likely to promote recidivism.
In fact, brushing aside cogent evidence of matching DNA with all accused persons
does not appear to be reasonably justified. A prosecutrix must not suffer from injustice
for the lackadaisical investigation. The appellate court must arraign the police officer
liable for shoddy investigation.
An appeal was filed before the Bombay high court against conviction order for
gang rape of a 14 years minor girl who along with her mother was killed by the

42 Nur Mohammad v. The State of Assam 2017 (3) GLT 256 : MANU/GH/0379/2017.
43 Anil @ Anthony Arikswamy Joseph v. State of Maharashtra (2014) 4 SCC 69.
44 Sandeep v. State of Uttar Pradesh (2012) 6 SCC 107.
45 MANU/MH/2312/2017.
46 Id. at para 20.
47 Achyut @ Bappa @ Babu v. The State of Maharashtra MANU/MH/4032/2017.
Vol. LIII] Forensic Law 391

assailants.47 The medico-legal examination proved the commission of rape. However,

DNA report was filed ‘Evidence Close Pursis’ by the prosecution at the last stage of
trial and defense could not get opportunity to contest against the report. The accused
also deposed under section 313 of Cr. PC that his semen was forcibly collected by
police for the purpose of implanting it on the clothes of the prosecutrix. The DNA
report could not sustain credibility to foster confidence of the court and appeal was
allowed, and the accused persons were acquitted. In yet another appeal in rape case of
matching DNA report, the trial court ordered acquittal since minor prosecutrix failed
to identify the accused, and the accused alleged police of forcibly extracting his semen
and blood after his arrest for implanting it on the clothes of the prosecutrix.48 However,
no proof was flagged to challenge the chain of custody of artefacts collected by the
police. The appellate court upheld the acquittal by citing the observation of the apex
court that the medical officer is not a witness to the case and his role is only to assist
the court and the evidence given by the medical officer is really of an advisory character
and not binding on the witness of fact.49 However, Justice (Ms.) Hima Kohli of Delhi
High Court had earlier observed that serological evidence is just one piece of evidence,
which is brought on the record but expert medical evidence cannot be treated as binding
on the ocular evidence.50 In Dayal Singh v. State of Uttaranchal,51 the apex court
observed that there is a great acceptability of expert evidence in courts but it is equally
true that the courts are not absolutely guided by the report of the experts, especially if
such reports are perfunctory and deliberately attempt to misdirect the prosecution.52
High Court of Delhi reversed the conviction order against the accused for killing
a boy because prosecution failed to establish seizure of four cigarette butts and glasses
from scene of crime beyond reasonable doubt as these exhibits were not collected in
presence of any independent witness.53 The accused also alleged before trial court
under section 313 of Cr. PC that police forced them to smoke cigarettes while they
were in police custody. The high court did not rely upon the matching DNA report by
observing54
Therefore sole circumstance that the prosecution has sought to rely in
support of the appellants’ guilt was that the DNA from the appellants’
samples matched the DNA of the saliva on the cigarette butts seized
from the spot. It is to be noted that this circumstance by itself, does not
establish an unbroken chain of circumstances which points unerringly

48 State of NCT Delhi v. Azam @ Rihan, 2017 (2) JCE874, MANU/DE/0358/2017.

49 Vishnu v. State of Maharashtra reported AIR 2006 SC 508 at para 21.
50 Tasleem @ Pappu v. State of NCT of Delhi 2011I AD (Delhi)325, 2011 (2) JCC 846 at para 15.
51 (2012) 7 SCALE 165.
52 Id. at para 29.
53 Arvind v. State of NCT Delhi, Crl. Appeal No. 60/2017, Delhi High Court, on 9 March, 2017
(Unreported).
54 Id. at para 74.
392 Annual Survey of Indian Law [2017

towards the only hypothesis of the guilt of the appellants. The

prosecution had to first establish by credible evidence that the cigarette
butts were actually seized from the spot, as alleged. Apart from that,
the prosecution was required to provide authentic and credible evidence
that the deceased had smoked cigarette with the appellants shortly
before he was murdered.
In another appeal, Delhi High Court brushed aside the matching DNA report in
absence of proper custody of the case property (prosecutrix under garments - source
for DNA).55 The accused, alleged of rape of his adoptee mother, was acquitted.
High Court of Punjab and Haryana in an appeal against conviction order for
murder dealt with several issues on criminal investigation.56 In this case DNA obtained
from the blood stain found on the clothes of the accused was matched with the deceased
as reported by investigator for filing charge-sheet. High Court strangely observed that
the DNA tests are of little value unless there is a connection between the blood group
on the clothes and the blood group of the accused. Consequently, the petitioner accused
was acquitted. Indeed DNA profiling is forensically far superior than serology as far
as evidentiary value for matching biological samples is concerned. As far as perfunctory
investigation is concerned, the apex court had observed that even if investigation
turns out to be defective, the court must exercise circumspection in evaluating the
evidence but at the same time it would not be right to acquit the accused solely on
account of the said defect.57 However, at the same time the apex court also noted that
minor discrepancies pointed out by the accused do not vitiate the prosecution case.58
Power to conduct further investigation
An appeal was filed before the apex court to decide whether trial court has power
to direct the investigating agency to conduct further investigation at the stage when
cognizance of criminal case has already been taken by a court. The magistrate in a
land dispute case directed police to seek report from forensic science expert on the
allegedly forged signature and thumb impression in the register of notary. In the light
of the reference of the 41st Report of the Law Commission of India, the High Court
set aside the trial court order. The apex court, dismissed the extant appeal by observing
that59
On an overall survey of the pronouncements of this Court on the scope
and purport of Section 173(8) of the Code and the consistent trend of
explication thereof, we are thus disposed to hold that though the

55 K v. The State (NCT of Delhi), available at https://indiankanoon.org/doc/199990368/ (last visited

on 18 March, 2019).
56 Ram Kumar Kalyan v. State of Haryana MANU/PH/0235/2017.
57 Dhanaj Singh v. State of Punjab (2004) 3 SCC 654 : 2004 SCC (Cri) 851 (para 5).
58 State of Himachal Pradesh v. Sanjay Kumar alias Sunny (2017) 2 SCC 51; State represented
by Inspector of Police v. Saravanan and Another (2008) 17 SCC 587.
59 Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel (2017) SCC OnLine SC 86.
Vol. LIII] Forensic Law 393

investigating agency concerned has been invested with the power to

undertake further investigation desirably after informing the Court
thereof, before which it had submitted its report and obtaining its
approval, no such power is available therefore to the learned Magistrate
after cognizance has been taken on the basis of the earlier report, process
has been issued and accused has entered appearance in response thereto.
At that stage, neither the learned Magistrate suo motu nor on an
application filed by the complainant/informant direct further
investigation. Such a course would be open only on the request of the
investigating agency and that too, in circumstances warranting further
investigation on the detection of material evidence only to secure fair
investigation and trial, the life purpose of the adjudication in hand.
Human identification by using forensic tools
In Mukesh v. State of NCT Delhi,60 (Nirbhya gang rape case) the apex court relied
upon battery of forensic evidence like DNA test, fingerprints, footprints, bite-mark
analysis, CCTV footage etc. to identify six assailants who displayed bestial proclivity
and inconceivable self-obsession in a gang rape and subsequent death case involving
a 23 years old para medical student. The bite mark analysis, known as odontology
report also assisted to identify two accused persons.61 The co-victim, a male friend of
the prosecutrix was also beaten up but he could survive.
In a criminal case, on the instance of the accused, the dead body of a 13 years boy
kidnapped for ransom was recovered from a well. The hairs found in the right hand of
the deceased were matched with DNA of one accused leading to confirmation of
death penalty by Madhya Pradesh High Court.62 The High Court also directed the
State Police Chief to instruct the investigating officers to use DNA in criminal cases
for the purpose of human identification. In yet another appeal, the High Court reversed
the conviction order to acquit a habitual offender for lack of corroborative evidence
especially in absence of credible identification of deceased putrefied dead body.63
The court emphasized upon DNA test for human identification and directed the police
authorities as under:64
The whole case is based on circumstantial evidence. A highly
decomposed dead body was floating in a well. Even at the time of
inquest, there were no witnesses to identify the dead body. Under these
circumstances, the investigating officer ought to have collected blood

60 (2017) 6 SCC 1.
61 Id. at para 233 - 242. (J. Deepak Mishra).
62 Rajesh @ Rakesh v. The State of Madhya Pradesh MANU/MP/0356/2017.
63 Gopu Srinivas Reddy @ Parandamulu v. The State of Andhra Pradesh. Crim. Appeal No.114
of 2011, AP High Court, decided on 11-08-2017 (Unreported).
64 Id. at para 20.
394 Annual Survey of Indian Law [2017

samples, soft tissues, hard tissues, hair, etc., from the dead body and
preserved the same and in the course of investigation, could have sent
them along with the admitted blood samples, etc., of the relatives, to
the Forensic Science Laboratory to establish the identity of the dead
body. No such efforts were made in this case. In the cases involving
similar circumstances, all the investigating officers are required to
subject the dead body for its proper identification by following the
required procedures to conduct DNA test. The Director General Police
shall direct all the Subordinate Officers, particularly the Investigating
Officers, to collect the samples from the dead body, i.e., hair, tissues,
blood, bloodstains, etc., and send them for DNA test for authentic
identification of the deceased persons. The Registry is directed to
communicate the copy of judgment to the Director General Police,
State of Telangana and the State of Andhra Pradesh, who in turn, shall
communicate the same to all their Subordinate Officers including the
Investigating Officers for compliance.
In an alleged fake encounter, the deceased was identified by DNA match with
parents in addition to identification of clothes and corroborating morphological
features, density gradients and distribution of pattern of soil particles collected from
the place of incident. Based on the presence of residue of fire ammunition, nitrate and
lead around the bullet hole of T-shirt, the CFSL opined firing by the police party from
very close range bracing base for conviction.65 In yet another case, the putrefied dead
body of an 18 years boy, who was killed after kidnapping for ransom, was recovered
at the behest of the accused and identified by belongings found near dead body and
DNA match with parents.66 After deliberating on recovery under section 27 of the
Indian Evidence Act,67 the high court upheld the conviction but commuted death penalty
to life imprisonment since the case did not fall in the category of the ‘rarest of rare’.
The High Court of Himachal Pradesh, in an appeal, upheld the conviction based on
the corroborative evidence including matching DNA of the deceased extracted from
the blood stain gathered from clothes of the accused in case of dacoity with murder.68

65 Jamalbhai Mohammadbhai Mehtar v. State of Gujarat MANU/GJ/0909/2017.

66 The State of Assam v. Sanjay Chandra 2017 (4) GLT 1114.
67 In State of Maharashtra v. Suresh (2005) 5 Bom., C.R. 736, the Hon’ble Supreme Court had
has countenanced three possibilities under s. 27 of the Evidence Act: When an accused points
out the place where a dead body and/or incriminating material was concealed without stating
that it was concealed by himself. One is that he himself would have concealed it, second is that
he would have seen somebody else concealing it and the third is that he would have been told
by another person that it was concealed there. If the accused declines to tell the criminal court
that his knowledge about the concealment was on account of one of the last two possibilities,
the criminal court can presume that it was concealed by the accused himself.
68 Gurpreet Singh @ Sonu v. State of Himachal Pradesh available at http://indiankanoon.org/
doc/36479278 (last visited on 18 March, 2019).
Vol. LIII] Forensic Law 395

In another case, DNA was collected from chewing gum for collecting DNA for
identifying the accused of kidnapping for ransom.69
In the sensational Arushi murder case, an appeal was filed before the high court
by the accused parents of the deceased against conviction for life time.70 The gruesome
double murder of an adolescent girl and male help in diabolic manner attracted media
attention for a long time since correct identification of assailants and revelation of
modus operendi remained a challenge. Initially the local police and subsequently the
Central Bureau of Investigation conducted investigation and concluded the findings
based on circumstantial evidence of the last seen theory. Suspects including the parents
(doctor couple) were subjected to umpteen forensic techniques like brain mapping,
narco-analysis, polygraph etc. to reveal the mystery behind blind murder. DNA profiling
of the blood stained articles, fingerprint and footprint matching were also conducted
in addition to cyber forensics of electronic gadgets and mobile phones used by the
parents and other suspects. However, the line of investigation kept changing causing
serious doubt on prosecution story. The allegation of tampering with the artefacts
collected from crime scene especially blood stained pillow covers was raised by the
accused. The medico-legal expert modified his statement beyond disclosure in the
post mortem report regarding status of genitals of the deceased girl for supporting the
prosecution story of sexual intercourse and consequent grave and sudden provocation
for the parents to kill both the people. Allahabad High Court after discussing legal
doctrines on circumstantial evidence arrived at the conclusion to acquit the accused
since prosecution could not prove beyond reasonable doubt what actually happened
in the house on the fateful night leading to double murder. Consequently invoking
section 106 of the Indian Evidence Act could not be justified to uphold conviction.
The presence of unknown third party who committed the crime could not be logically
ruled out, observed by the high court.
The texture of soil helps investigation in multiple ways by linking the place of
occurrence especially in sexual assault case commissioned in a field. The soil report
being scientific in nature, falls in the purview of expert opinion under section 293 Cr.
PC., therefore admissible as per provisions of section 294 Cr. PC.70 The CCTV footage
is yet another modern technological aid for human identification as appreciated by
Delhi high court by observing that:71
In the present case, the court has itself seen the CCTV footage, and has
travelled back in time to the time when the occurrence took place and
thereby has seen the occurrence in the same position as that of a witness,

69 Thawaria v. The State of Madhya Pradesh available at https://indiankanoon.org/doc/35153915/

(last visited on 18 March, 2019).
70 Supra note 6.
70 Ajju @ Ajay v. The State of Madhya Pradesh, Crim. Ref. No. 1/2014 and Crim. Appeals, HC of
MP, on 19 May, 2017.
71 Md. Rashid v. State of NCT Delhi, Crim. Appl. No. 771/2014, Delhi High Court, 3 May, 2017
(para 15).
396 Annual Survey of Indian Law [2017

who would have seen the occurrence, if he was present. There cannot
be more direct evidence. This video recording which captures the
occurrence would be per se and mostly discerningly reliable and
compellingly conclusive evidence, unless its authenticity and
genuineness is in question.
However, the court acknowledged the necessity of authenticity certification of
electronic evidence under section 65-B as observed by the apex court that “... the
secondary evidence of electronic record with reference to sections 59, 65- A and 65-
B of the Indian Evidence Act as such is used as primary evidence under section 62 of
the Indian Evidence Act and the same is admissible in evidence, without compliance
with the conditions in Section 65-B of the Evidence Act.”72 Delhi High Court regarding
section 65-B had observed that CCTV footage stored directly in the hard drive of a
computer being self-generated without human intervention and hence, is not secondary
evidence requiring certification under section 65-B.73
The evidentiary value of tracker dog used during investigation was dealt by the
Himachal Pradesh High Court in an appeal by the accused against imprisonment for
life term for allegedly killing of a young girl and burying her dead body, which was
exhumed by police after six months.74 In Razak Murtaza Dafadar v. State of
Maharashtra,75 the evidence of tracker dog was discussed by the apex court. Dog
expertise in sniffing is accepted in Canada and Scotland. In R. v. Montgomery,76 the
Court of Criminal Appeal ruled that the evidence of the constable, who handled the
dog on its tracking and reported the dog’s reactions, was properly admitted by
describing the dog as ‘a tracking instrument’ and the handler was regarded as reporting
the movements of the instrument, in the same way as traffic constable reporting on
the behaviour of his speedometer. In the extant appeal the high court held that in the
present state of scientific knowledge, evidence of dog tracking, even if admissible, is
not ordinarily of much weight. Here, DNA collected from femur bone could not be
amplified due to degradation and thus her identity could not be established beyond
reasonable doubt, but presence of amelogenin (X) indicated that the bone belonged to
a female. The conviction was set aside since prosecution failed to translate that mental
disposition of the accused into evidence proving guilt beyond reasonable doubt. During
2017, DNA and other forensic tools were accepted by the courts for human
identification in several other cases.77

72 Anvar P. V. v. P. K. Basheer (2014) 10 SCC 473.

73 Kishan Tripathi @ Kishan Painter v. The State of NCT Delhi 2016 SCC OnLine Del 1136 :
(2016) 230 DLT (CN) 3 (DB).
74 Karan Thakur v. State of Himachal Pradesh MANU/HP/1060/2017: 2018 (1) Shim LC57.
75 AIR 1970 SC 283.
76 1866 NI 160.
77 Afsar @ Afsar Khan v. State of Karnataka MANU/KA/3234/2017; Dheeraj Kumar @ Sonu v.
State of Punjab, MANU/PH/1559/2017.
Vol. LIII] Forensic Law 397

Consent for sexual conduct

Free and competent consent is the litmus test to differentiate nature of sexual act
as offence or normal human conduct. This issue involves complexity and intricacies
to be deciphered during investigation and a major cause of concern for prosecutrix
who must prove that sexual act was non-consensual and enforced by the accused. The
#MeToo campaign, brought out by The New York Times on 05 October 2017 for
accusing Hollywood celebrated producer Harvey Weinstein for demanding alleged
sexual favours from several cine actors, also raised the issue of consent by the defense.78
In India also similar allegations of sexual harassment were raised by different
professionals but countered either by denying the accusations or by taking plea of
mutual consent.
In Mahmood Farooqui v. State (Govt. of NCT of Delhi),79 Delhi High Court
reversed the conviction order of trial court based on ‘confused consent’ leading to
benefit of doubt to the accused for alleged forcible oral sex upon a foreign student
who was a Fulbright fellow for PhD from the Columbia University and was affiliated
to the University of Delhi for conducting field work. Mahmood Farooqui, the accused,
a noted Indian writer, Dastangoi performer and ‘Peepli Live’ fame film director was
in contact with the prosecutrix for helping her academic pursuit. The high court
observed that80:
In an act of passion, actuated by libido, there could be myriad
circumstances which can surround consent and it may not necessarily
always mean yes in case of yes or no in case of no. Everyone is aware
that individuals vary in relation to expositing their feelings. But what
has to be understood is that the basis of any sexual relationship is
equality and consent.
Sexual consent would be the key factor in defining sexual assault as any sexual
activity without consent would amount to rape. Gender relations also influence sexual
consent because man and woman are socialized into gender roles which influence
their perception of sexual relationship. Recent trend suggests various models of sexual
consent. The traditional and the most accepted model would be an “affirmative model”
meaning thereby that ‘yes’ is ‘yes’ and ‘no’ is ‘no’ but there would be some difficulty
in universal acceptance of the aforesaid model, as in certain cases, there can be an
affirmative consent, or a positive denial, but it may remain dormant, which may lead
to confusion in the mind of the other party.

78 Harvey Weinstein Paid Off Sexual Harassment Accusers for decades The New York Times, Oct
5, 2017. Available at: https://www.nytimes.com/2017/10/05/us/harvey-weinstein-harassment-
allegations.html (last visited on 18 March, 2019).
79 Mahmood Farooqui v. State (Govt of NCT of Delhi) 2017 VIII AD (Delhi) 321 : 2018 Cri LJ
3457 243 (2017) DLT 310, 2017 (4) JCC2784.
80 Id. at para 85.
398 Annual Survey of Indian Law [2017

The State filed an appeal before Himachal Pradesh High Court against acquittal
order in case of gang rape of a married woman.81 The prosecutrix could not timely
report the incident due to threat to her life. She later disclosed to her husband after
lapse of 45 days and subsequently gave birth to a child, although her husband had
already undergone sterilization procedure. DNA test confirmed one of the accused as
putative father of the child. The high court reversed the conviction by observing that
it does not appear to be a case of sexual assault but that of consent. The defense has
not argued the plea of consent, but court surprisingly extrapolated it to the extent that
positive DNA report was brushed aside merely on the basis of certain procedural
lapses during investigation like not conducting test identification parade.
DNA and other forensic evidence in sexual abuse
It is a poignant fact that females and children are more vulnerable to sexual
violence from relatives and acquaintance than strangers. In an appeal regarding rape
with nine years old minor, the Supreme Court has underscored that in more than 80%
cases of sexual offences, perpetrators are known to the victims.82 The court further
emphasized that the time is ripe to usher significant reforms in the criminal justice
system and expressed that there is also a dire need to adopt a survivor-centric approach
towards victims of sexual violence, particularly, the children, keeping in view the
traumatic long-lasting effects on such victims.83 The apex court referred to its earlier
observations84:
Seeking corroboration to a statement before relying upon the same as
a rule, in such cases, would literally amount to adding insult to injury.
The deposition of the prosecutrix has, thus, to be taken as a whole.
Needless to reiterate that the victim of rape is not an accomplice and
her evidence can be acted upon without corroboration. She stands at a
higher pedestal than an injured witness does. If the court finds it difficult
to accept her version, it may seek corroboration from some evidence
which lends assurance to her version. To insist on corroboration, except
in the rarest of rare cases, is to equate one who is a victim of the lust of
another with an accomplice to a crime and thereby insult womanhood.
It would be adding insult to injury to tell a woman that her claim of
rape will not be believed unless it is corroborated in material particulars,
as in the case of an accomplice to a crime.
Various constitutional courts in India have placed greater reliance on DNA and
other forensic evidence for stitching offenders and their criminal conduct with greater

81 State of Himachal Pradesh v. Suraj @ Surjit Singh MANU/HP/0882/2017.

82 State of Himachal Pradesh v. Sanjay Kumar @ Sunny (2017) 2 SCC 51.
83 Id. at para 30.
84 Id. at para 31, referred from para 12 of Bhupinder Sharma v. State of Himanchal Pradesh AIR
200 SC 4684 : 2003 Supp(4) SCR 792.
Vol. LIII] Forensic Law 399

precision in plethora of sexual abuse incidents. During this annual survey, series of
cases were found adjudicated involving minors who were sexually abused by close
family members including their fathers especially when mother had died earlier. The
Bombay High Court upheld the conviction of father who repeatedly abused his minor
daughter for gratifying sexual lust.85 When pregnancy was detected at an advanced
stage, he planned to kill the victim but could not succeed, and the prosecutrix gave
birth to a child. DNA match held the accused as putative father and established the
guilt beyond reasonable doubt. In yet another appeal, the same high court dismissed
the appeal of 80 years old accused for attempted rape on a three year old toddler
based on DNA match on the seminal stains found on her clothes despite there being
no bodily injuries on the victim.86 The same high court also dismissed another appeal
for putting fingers in the genitals of an infant girl of five years causing bleeding
injuries to her. The blood stain collected from the clothes of the accused and his nail
clips matched with the victim by DNA test in addition to the medico-legal observations
corroborate the allegation for upholding the conviction.87
The apex court in catena of cases held that corroboration is exception in rape
allegations but if the testimony of the prosecutrix does not inspire confidence and
suffers from gross contradictions, then conviction cannot be based on her sole
testimony.88 The apex court in Sunil v. State of Madhya Pradesh,89 held that conviction
of the accused under section 376 of the penal code is also possible on the basis of
other available evidence, and non-conducting of the DNA test or failure to match
DNA profiling, would not necessarily result in collapse of prosecution case. A positive
result of DNA test would constitute clinching evidence against accused, if however,
result of test is in the negative, weight of other materials and evidence on record will
still have to be considered. This ratio was observed by Delhi high court for refusing
bail of the accused, who was an Afghan national, for committing gang rape.90
High Court of Madhya Pradesh dismissed an appeal of the accused by observing
that negative DNA report cannot be the sole basis for acquittal, if prosecutrix deposition
is unswerving.91 During criminal revision against conviction of a co-accused of gang
rape, the DNA report was not matching, hence police did not file charge sheet, but the
trial court by exercising powers under section 319 Cr. PC summoned the applicant

85 Rameshwar Shrawan Iwanathe v. State of Maharashtra. available at https://indiankanoon.org/

doc/147134044/ (last visited on 18 March, 2019).
86 Gulabrao v. State of Maharashtra, 2017(6) MhLJ100.
87 Sandip v. The State of Maharashtra MANU/MH/3394/2017.
88 Vijay @ Chinee v. State of Madhya Pradesh (2010) 8 SCC 191.
89 (2017) 4 SCC 393.
90 Sulaiman Ahmadi v. State of NCT Delhi 2017 VIIIAD (Delhi) 646, 2017 (4) JCC 2264.
91 Shailendra Dhakad v. State of Madhya Pradesh available at http://indiankanoon.org/doc/
116476715/ (last visited on 18 March, 2019).
400 Annual Survey of Indian Law [2017

for trial and convicted after trial proceedings.92 The high court dismissed the revision
by holding that negative DNA report alone cannot be sufficient ground for acquittal.
However, in another case, negative DNA report in conjunction with testimony of
prosecutrix suffering from infirmities became the grounds for quashing conviction
order by Delhi high court.93 In yet another case of alleged rape with a three years old
girl child before same high court, DNA report was not negative but no opinion could
be given due to non-availability of DNA profile of exhibits.94 Delhi high court upheld
the conviction citing Ramnaresh v. State of Chhattisgarh,95 where DNA report was
inconclusive but not negative, which could not provide any material benefit to the
accused. In an appeal and reference of death penalty in a gang rape case, the Madhya
Pradesh High Court, upheld the conviction but remitted punishment to life
imprisonment since the appellant could not offer any explanation as to how the semen
and sperms were found in the vaginal swab and clothes of the rape survivor.96
In an appeal filed by accused father against conviction for rape and impregnating
his minor daughter, potency test was also reported positive, and semen slides of the
accused were prepared. However, DNA test was not conducted by the prosecution,
which became ground for appeal by the defense. The appeal was dismissed by Madhya
Pradesh High with observation that provisions under section 53-A of Cr.PC to collect
blood samples for conducting DNA test was introduced with effect from 23.06.2006,
hence for older cases non conducting test will not adversely affect the prosecution
case.97 This ratio was propounded by the apex court in Krishna Kumar Malik v. State
of Haryana,98 and also referred recently in Mukesh v. State of NCT Delhi.99 Interestingly
in majority of rape cases, DNA test is still not conducted, which needs attention, in
the light of these judgements, to enforce legislative intent enshrined under section
53-A and 164-A of the Cr. PC.
The state filed an appeal against acquittal of trial court in gang rape case where
prosecutrix turned hostile. Delhi High Court ignored matching DNA report to uphold
acquittal order despite refusal of the accused persons for attending test identification
parade (TIP).100 Defense had neither beseeched for consensual sex or forced collection
of semen of the accused, nor claimed any enmity. Matching DNA report and other
cogent factors may not be brushed aside merely based on hostility of the victim. Further

92 Ibid.
93 Neeraj v. State Govt. of NCT of Delhi MANU/DE/5317/2017. Also see: State of Gujarat v.
Jayantibhai Somabhai Khant 2015 Cri.LJ 3209.
94 Seesh Pal v. State of NCT, 2017 SCC OnLine Del 11880.
95 (2012) 4 SCC 257.
96 In Reference v. Vinay MANU/MP/0555/2017.
97 Ramnath Burman v. The State of Madhya Pradesh MANU/MP/0143/2011.
98 (2011) 7 SCC 130.
99 Supra note 7.
100 State v. Brij Mohan @ Birju 2018 X AD (Delhi) 595, MANU/DE/2579/2017.
Vol. LIII] Forensic Law 401

denial of the accused to participate in TIP appears to be overlooked during judicial

appreciation. Prima facie this judicial approach jeopardise the ratio enshrined by the
three Judges Bench of the Supreme Court in Sunil v. State of Madhya Pradesh.101 In
other case, the accused filed an appeal against death penalty for repeatedly assaulting
his 17 years daughter for satisfying his sexual lust and impregnating her.102 The accused
administered her some medicines, consequently she delivered a baby girl. The accused
threw the neo-natal girl child in a pond, where she died due to drowning. During
biopsy, DNA sample was collected from the corpse, the expert opinion established
the accused and prosecutrix as biological parents of the neo-natal deceased. The death
sentence was remitted by the high court to life imprisonment to serve a minimum 30
years in jail.
In a case of gang rape, the provisions under the Protection of Children from
Sexual Offences (POCSO) Act, 2012 could not sustain since prosecution failed to
prove the age below 18 years of the rape survivor. However, the trial court convicted
the accused based on evidence including positive chemical examination test for semen
stains on the inner garments. During appeal, the high court set aside the conviction
holding several vital contradictions in prosecution case especially no mark of injury
on the person of the victim.103 Here issue remained that there is no mention of any
enmity between accused and the complainant which could hint at false implication.
DNA analysis of semen stains would have played significant role to facilitate justice
in such cases. Absence of injuries on the person of the prosecutrix is no ground for
exoneration, as firmly established by the apex court. Similarly Bombay High Court
reversed the conviction order of trial court based on contradiction and inconsistencies
in the testimony of the witnesses in case of brutal murder of a minor girl of 14 years
after rape by her brother-in-law.104 Several bite marks on the face and breast were
matched with the accused as opined by the odontologist. In this case also DNA was
not conducted and court did not comment on the lackadaisical approach of
investigation. The Allahabad High Court in Dr. Kuldeep v. State of Uttar Pradesh105
held that a magistrate has the authority to interfere in crime investigation, if it is not
progressing in a proper or fair manner. Referring to Sakiri Basu106 and Lalita Kumari,107
the High Court observed, “This court is certainly of the view that magistrate is all

101 Sunil v. State of Madhya Pradesh (2017) 4 SCC 393. Also see Madan Lal v. State of J&K AIR
1998 SC 386
102 Shyam v. The State of Madhya Pradesh MANU/MP/0073/2017.
103 Luna Khan v. State of Rajasthan, available at https://indiankanoon.org/doc/145040997/ (last
visited on 18 March, 2019).
104 Irfan @ Afroz v. State of Maharashtra, Cri. Appl. No. 64 of 2015, Bombay High Court, 6 Sept
2017 (Unreported).
105 2016 SCC OnLine All 722.
106 Sakiri Vasu v. State of Uttar Pradesh (2008) 2 SCC 409.
107 Lalita Kumari v. State of Uttar Pradesh (2014) 2 SCC 1.
402 Annual Survey of Indian Law [2017

empowered to monitor the investigation and, in case it is required, then proper direction
may also be issued.” In fact judiciary must insist, in the interest of justice, to ensure
DNA test in rape incidents as enshrined under section 53-A and 164-A of Cr. PC.
Determination of age of minor victim
The burden of proof lies on the prosecution to prove age of the prosecutrix below
18 in order to invoke provisions under the POCSO Act, 2012. In dual appeal by the
state and the accused in State NCT of Delhi v. Mohan,108 Delhi high court referred
Jarnail Singh v. State of Haryana,109 where the apex court has extended scope of the
Rule 12(3) of the Juvenile Justice (Care and Protection) Rules, 2007 to enquire about
the age of the rape victim.110 The apex court observed that111:
On the issue of determination of age of a minor, one only needs to
make a reference to Rule 12 of the Juvenile Justice (Care and Protection
of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). ...
Even though Rule 12 is strictly applicable only to determine the age of
a child in conflict with law, we are of the view that the aforesaid statutory
provision should be the basis for determining age, even for a child
who is a victim of crime. For, in our view, there is hardly any difference
in so far as the issue of minority is concerned, between a child in conflict
with law, and a child who is a victim of crime.
An entry relating to date of birth made in the school register is relevant and
admissible under section 35 of the Indian Evidence Act, 1872,112 but the entry regarding

108 MANU/DE/1766/2017.
109 (2013) 7 SCC 263. Also see: Mahadeo s/o Kerba Maske v. State of Maharashtra (2013) 14
SCC 637; State of Madhya Pradesh v. Anoop Singh (2015) 7 SCC 773 : 2015 (7) SCALE 445.
110 Rule 12(3) of the JJ Rule 2017: In every case concerning a child or juvenile in conflict with
law, the age determination inquiry shall be conducted by the court or the Board or, as the case
may be, the Committee by seeking evidence by obtaining
(i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and
in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be
sought from a duly constituted Medical Board, which will declare the age of the juvenile or
child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case
may be, the Committee, for the reasons to be recorded by them, may, if considered necessary,
give benefit to the child or juvenile by considering his/her age on lower side within the margin
of one year. and, while passing orders in such case shall, after taking into consideration such
evidence as may be available, or the medical opinion, as the case may be, record a finding in
respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in
the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or
the juvenile in conflict with law.
111 Supra 109 at para 20.
112 The apex court in Birad Mal Singhvi v. Anand Purohit (AIR 1988 SC 445) held that “To render
a document admissible under Section 35, three conditions must be satisfied, firstly, entry that
Vol. LIII] Forensic Law 403

the age of a person in a school register is of not much evidentiary value to prove the
age of the person in the absence of the material on which the age was recorded. In an
appeal against life imprisonment of the maternal uncle of the minor prosecutrix who
got impregnated, Delhi High Court observed that the determination of age by
ossification test is neither absolute nor exact.113 It has also been expressed in a leading
commentary that the error in the case of age based on ossification test may be three
years.114 However, DNA linkages helped the court to uphold the conviction and appeal
was dismissed.
In an appeal against conviction order of the trial court, the Bombay High Court
acquitted the accused by observing that “Once the exact age is not proved, on the
available evidence as brought on record the defence of the appellant that prosecutrix
was a consenting party is not completely ruled out. Therefore, in my view, even DNA
report will not be helpful to the prosecution”.115 In the instant case, the prosecution
could not prove the prosecutrix as minor. Irrespective of age, the victim consented on
false promise of marriage and DNA established beyond any doubt that accused is
putative father. In such cases, the social issue warrants attention as to whether a tender
age girl be allowed for sexual exploitation on false pretext of marriage.
Sexual abuse of mentally challenged females
Protection of mentally and physically challenged persons from sexual abuse must
be at the top priority for responsive government. It is observed that mentally challenged
females and children are more vulnerable to sexual exploitation, and many a times
such incidents go un-reported till advanced stage pregnancy of the victim and by then
it becomes medically compelling to get the baby delivered. In such cases, DNA and
other forensic tools are vital to corroborate the guilt with credible identification of
the culprits. In addition, section 164(5A) (b) of Cr. PC and section 137 of the Indian
Evidence Act safeguard the interest of the mentally unsound witness. During annual
surveys, in the recent past, rising trend of such incidents has been noticed.
In an appeal, a public spirited doctor raised pivotal issue by filing a special leave
to interpret section 2(d) of the POCSO Act, 2012 with regard to definition of a child
based on mental age for protecting the best interest of the mentally challenged persons

is relied on must be one in a public or other official book, register or record, secondly, it must
be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public
servant in discharge of his official duty, or any other person in performance of a duty specially
enjoined by law”. (para 15).
113 Tara Chand v. State (Govt. of Nct) of Delhi MANU/DE/7907/2017.
114 Jaising P Modi and C A Franklin, Modi’s Textbook of medical jurisprudence and toxicology 40
(N.M. Tripathi, 21st edn. Bombay, 1988).Also see, Balasaheb v. The State of Maharashtra
1994 Crl. L.J. 3044, at para 25; Srilatcha Kumari v. State of Orissa, (1993) 6 O.L.R. 661 and
Bishnudas v. State of Orissa (1996) 11 O.L.R. 602.
115 Ravindra v. State of Maharashtra, Crim. Appeal No 445 of 2015, Bombay High Court, decided
on 12 July, 2017(para 14) (Unreported).
404 Annual Survey of Indian Law [2017

to safeguard them from sexual abuse.116 The biological age of the prosecutrix in the
extant case was 38 years but she had mentally not grown beyond six years, as certified
by the medical experts of the AIIMS, New Delhi. The apex court at length discussed
the issue, but decided not to intervene since it is the domain of the legislature to
define a child based on mental understanding (functional age) in addition to biological
or chronological age. It appears that the apex court has missed an opportunity to
extend protection to the mentally challenged persons. The court by using powers
under article 142 of the Indian Constitution, would have injected life to the words
constituting the fulcrum of the spirit of progressive legislation especially designed
for protection against sexual exploitation of children and weaker sections. This
interpretation would not have added any burden on the State rather paved the way for
fast track justice for mentally challenged victims by providing the umbrella shield of
the victim-friendly safeguards enshrined under the POCSO Act such as special
procedures for recording statement of a child victim under sections 24 to 27, in addition
to section 30 of the Act, 2012 which shifts burden of proof on the accused for proving
his innocence to create deterrence of law. In India, mentally disabled females not only
suffer from sexual abuse but also face privation for bearing burden of unwanted
pregnancy. In criminal legal lexicon, the intent of the legislature is clear to decide
childhood based on mental understanding, which is commuted with chronological or
biological age for determining culpability.117 Mental age grows with biological age
under normal circumstance, but for mentally abnormal persons, extra-ordinary legal
measures are not charity but stark necessity for safeguarding the rights of ‘vulnerable’
population of this community.
The apex court of India, in the case mentioned above, has also referred few
judgements of foreign jurisdictions. The Supreme Court of Africa observed that the
Amendment section 68 of the Act 32 of 2007 has included not only witness who were
biologically under age of 18 but also those who were mentally under the age of 18.118
The apex court of South African in S v. Dayimani observed that:119
By definition, common law rape is the unlawful and intentional sexual
intercourse by a person without the consent of the other. Consent has
to be free, voluntary and consciously given in order to be valid. In our
law, valid consent requires that the consent itself must be recognised
by law; the consent must be real; and the consent must be given by
someone capable of consenting. The first two requirements do not need
to be discussed since the issue is whether the complainant was capable

116 Ms Eera Through Dr. Manjula v. State (Govt. of NCT Delhi) MANU/SC/0876/2017 : 2017
SCC OnLine SC 787.
117 Sections 82 - 85 of the Indian Penal Code.
118 Daniel Johannes Stephanus Van Der Bank v. The State [2014] ZAGPHC 1017.
119 [2006] ZAECHC 22.
Vol. LIII] Forensic Law 405

of giving consent “ related to the third requirement. Where a person in

intellectually challenged, his or her condition must be expertly assessed
and only then can a finding as to such capability be made.
The Supreme Court of Canada in the Queen v. D.A.I.120 dealt with testimonial
competence of mental disabled witness under section 16 of the Canada Evidence Act.
The victim of rape was about 26 years old but having mental age of 6 years. The trial
court acquitted the accused, which was confirmed by the Court of Appeal. The apex
court by majority judgement allowed the appeal and set aside the acquittal and directed
for conducting new trial. A reference was made to supplement section 16(3) by enabling
an adult witness with mental disability.
In an appeal before Bombay High Court, the age of mentally challenged rape
survivor was 17 years at time of incident as claimed in FIR, but trial court dropped the
charges under the POCSO Act, since prosecution could not establish age of the
prosecutrix below 18 years.121 However, the accused was convicted under section
376(2) and other provisions of the penal code. The High Court upheld the conviction
order. In fact the victim suffered due to lackadaisical approach for not conducting age
determination during investigation, and court maintained conspicuous silence. The
apathy of prosecution was obvious in not preferring appeal against the order of trial
court to drop charges under the POCSO Act. This situation needs attention of law
makers and enforcers to ensure scientific investigation for advancing fairness in justice
delivery.
The Karnataka High Court in an appeal against conviction order of trial court
acquitted the accused of rape with a 26 years old deaf, dumb and mentally retarded
girl. Medico-legal examination conducted by female medical practitioner reported
her to be 76% physically, visual, speech and hearing disabled and she was reported to
have hymen freshly torn with marks of bleeding but no mark of injuries.122 No seminal
or blood stains were found on the clothes of the victim, as she was not wearing inners
garments. The victim also identified the accused in test identification (TI) parade and
confirmed allegation of rape before magistrate under section 164 of Code of Criminal
Procedure and recorded in Compact Disc (CD). The law provides that if the person
identifying the person arrested is physically or mentally disabled, such process of
identification shall take place under the supervision of a Judicial Magistrate to ensure
appropriate steps necessary for the process and the TI parade must also be video-
graphed.123 Section 119 of the Indian Evidence Act, 1872 deals with recording evidence

120 [2012] 1 RCS 149.

121 Dasu v. State of Maharashtra MANU/MH/1928/2017.
122 Shrikantgouda v. The state of Karnataka MANU/KA/2236/2017.
123 S. 12 of the Criminal Law (Amendment) Act, 2013. (Act No 13 of 2013, came into effect from
03.02.2013).
406 Annual Survey of Indian Law [2017

by dumb witness.124 Medical expert deposed during trial that despite negative FSL
report, possibility of rape cannot be ruled out since the hymen was found freshly
ruptured with indication of bleeding. However, during course of cross-examination
of medical expert, it was said that blood collected during menses period may lead to
tear of the hymen. Despite cogent forensic and oral evidence, the conviction was
reversed based on presumptive medical expert opinion. Indeed jurisprudence of
mentally challenged victims of sexual abuse needs in-depth study and deliberations.
The Bombay high court dismissed the appeal against conviction for gang rape by
a car driver and his friends with a blind woman when she was travelling with her
husband who was also blind. Despite the visual limitation of the victim, presence of
independent witness on crime scene to identify the culprits and matching of the DNA
profile of the accused persons with vaginal swab helped the court in upholding the
conviction.125
False promise to marry and sexual exploitation
DNA and other forensic evidence have plausibly corroborated allegations of sexual
abuse of women by alluring them with false promise to marry. Delhi high court
dismissed the appeal of the accused but remitted the quantum of punishment to five
years for having sexual relationship with prosecutrix on false promise to marry.126
The DNA linked the accused as putative father of the child born to the prosecutrix.
The court also ordered the accused to pay rupees five lacs as compensation to the
victim.
Potency test and issue of self-incrimination
In a revision petition filed before Andhra High Court, the accused petitioner
contended that potency test intrudes into personal liberty and privacy since it involves
invasive and oppressive medical procedures; and also violates the rights enshrined
under Article 20(3) of the Indian Constitution.127 In a domestic harassment and demand
of dowry case, the wife alleged that her marriage could not be consummated since her
husband suffers from erectile dysfunction (ED) and was unfit for marital life. The
high court, after deliberating upon several verdicts of the apex court, held that “...
although it is sufficiently clear that having regard to the mandate of article 21 of the
Constitution of India the process of collecting samples for conducting tests should be

124 Section 119 of the Indian Evidence Act: Dumb witnesses: A witness who is unable to speak
may give his evidence in any other manner in which he can make it intelligible, as by writing or
by signs; but such writing must be written and the signs made in open Court. Evidence so given
shall be deemed to be oral evidence.
125 Maruti Suresh Pavale v. The State of Maharashtra MANU/MH/0684/2017.
126 Akshay Kumar v. State of NCT Delhi MANU/DE/0781/2017.
127 Naveen Krishna Bothireddy v. State of Telangana, Andhra High Court, 2017 (1) ALT (Cri) 422
(A.P.).
Vol. LIII] Forensic Law 407

fair and reasonable, however, it does not imply that the accused can dictate the course
an investigation is going to take.”128 The court further observed that129:
Even in Selvi case, it is clearly observed that — the rule under Article
20(3) of the Constitution of India against the testimonial compulsion,
however, does not prohibit collection of material evidence, such as
bodily substances and other physical objects and the statement used
for comparison with facts already known to investigators. To ascertain
whether the statement is incriminatory, depends upon the use to which
it is put. The distinction, whether the statement is inculpatory or
exculpatory is to decide at the stage of trial, whereas the Right to remain
silence is available even at the stage of investigation in a criminal case.
The high court in the instant case allowed potency test and dismissed the revision
petition since the notion of ‘personal liberty’ does not grant right in the absolute
sense and the validity of restrictions placed on the same needs to be evaluated on the
basis of criterion such as ‘fairness, non- arbitrariness, and reasonableness’. In Sharda
v. Dharampal,130 the apex court held that a person’s right to privacy could be justifiably
curtailed if it was done in light of competing interests of ‘personal liberty’ and ‘public
safety’. Article 20(3) protects an individual’s choice between speaking and remaining
silent, irrespective of whether the subsequent testimony proves to be inculpatory or
exculpatory. Article 20(3) aims to prevent the forcible ‘conveyance of personal
knowledge that is relevant to the facts in issue’. The results obtained from each of the
impugned tests bear a ‘testimonial’ character and they cannot be categorised as material
evidence.
Forensic corroboration in Property offences
Like in western countries, Indian courts have also placed reliance on DNA to
adjudicate on property offences. DNA collected from the envelop delivered by the
accused also assisted the Bombay High Court to uphold conviction in a case of dacoity
in addition to other corroborative evidence like identification of accused in test
identification parade and recovery of stolen property under section 27 of the Indian
Evidence Act on the instance of the accused.131 DNA must be used extensively in
India for crimes other than body offences.
DNA in proving innocence
False allegations and wrongful convictions in criminal administration are widely
prevalent and India is no exception. DNA, since its inception, has emerged as a potent
forensic aid to establish the truth and helped in exonerating falsely implicated innocent
and bringing guilty persons before law. A criminal appeal was filed by the accused of

128 Id. ar para 16.

129 Id. at para 19.
130 AIR 2003 SC 3450.
131 Mr. Vishal @ Dadu v. State of Maharashtra MANU/SC/0104/2017.
408 Annual Survey of Indian Law [2017

rape before the apex court against high court order for rejecting the application under
section 482 of Cr.PC.132 During investigation it surfaced that the accused and the
husband of prosecutrix had business transactions and disputes of financial matters
were pending in district court. The medico-legal examination of the prosecutrix got
delayed due to initial denial of her consent. Medical report could not support allegations
of sexual assault or presence of spermatozoa in vaginal smear. However, the prosecutrix
remained firm in alleging gang rape in her statement before magistrate recorded under
section 164 of Cr.PC. Investigation was concluded by filing closure report with
observation that except section 164 of Cr.PC statement, there is no evidence for
supporting her allegations and the court may initiate legal action against the
complainant under section 182 of Cr.PC. The trial court allowed protest petition of
the complainant again in compliance of directions of the High Court and summoned
the accused. The apex court referred the Prashant Bharti v. State (NCT of Delhi)133
and quashed the judgement of the high court including the entire criminal proceedings
for saving the accused from malicious prosecution.
In an appeal against conviction for alleged rape with a minor girl, DNA test
could not match with the accused.134 The ossification test of the prosecutrix was not
conducted. Subsequently, it surfaced that another person (driver) committed sexual
intercourse with the prosecutrix in the hospital just before the medical examination
was conducted, for the purpose of falsely implicating the accused, but prosecutrix did
not disclose these facts during investigation. The conviction was set aside and a separate
FIR against driver was lodged based on DNA report confirming his sperms present on
the vaginal swab of the prosecutrix.
In yet another case of alleged rape and pregnancy of a minor girl, no bodily
injuries or indication of recent sexual activity was reported on the person of the
prosecutrix by the medico-legal expert.135 DNA excluded the accused from being
biological father of the aborted foetus. The high court allowed the appeal by giving
benefit of doubt in favour of the accused. Similarly, in case of alleged repeated rape
by the father, medico-legal examination revealed that prosecutrix was carrying in her
womb a dead foetus of over nine weeks.136 On medical advice abortion was conducted
and foetus content was seized for forensic analysis. Spermatozoa were detected in
vaginal swab but DNA report was inconclusive. The mother of the prosecutrix also
refuted the version of her daughter. The defense argued that the prosecutrix was caught
in compromising position with some persons by her father and other family members.

132 Vineet Kumar v. State of Uttar Pradesh 2017 (4) SCALE 292.
133 (2013) 9 SCC 293.
134 Kuldeep Singh v. State of Himachal Pradesh MANU/HP/0575/2017.
135 Dadakhalandar v. State of Karantaka MANU/KA/1397/2017.
136 Hem Raj v. State of Punjab MANU/PH/1560/2017.
Vol. LIII] Forensic Law 409

Other evidence also supported this argument in addition to non-matching of DNA

from vaginal swab and foetus with the accused father. It also surfaced that she was in
relationship with a boy whom she wanted to marry but the marriage could not
materialise due to social reasons despite engagement ceremony having been
solemnized. Fair appreciation of evidence including non-conclusive DNA report could
help the high court to allow the appeal in order to bring justice to the accused father
against wrongful conviction by the trial court.
Legal conundrum on voice matching
Matching of voice for connecting crime with criminals has emerged as potent
forensic tool. Two judges Bench of the Supreme Court of India, in Ritesh Sinha v.
State of Uttar Pradesh,137 has pronounced conflicting views on the legal issues dealing
with voice spectroscopy test (VST). The legal issues involved were (i) whether calling
upon the accused to lend his voice sample tantamount ‘to be a witness against himself’
violating Article 20(3) of the Indian Constitution, and (ii) in absence of specific
provisions under law, can a magistrate authorise the investigating agency to record
the voice sample of the accused? This case is sub judice before the larger Bench of
the apex court. The constitutional courts in India, from time to time, have propounded
conflicting views on these legal issues.
However, during 2017 several cases regarding permission of magistrate for
collection of voice samples from the subjects by the investigating agencies were dealt
by various high courts across India.138 Flagging the similar legal issues, an appeal was
filed before the Gujarat High Court.139 The court referred Ashok Sadarangani v. Union
of India,140 where it was held that if the matter is sub-judice before the apex court,
there is no legal embargo in deciding the matter. The high court observed that section
311A of the Cr.PC empowers the magistrate to direct any person including an accused
person to give specimen signature or handwriting. Section 5 of the Identification of
Prisoners Act, 1920 enables the magistrate to direct any person, for the purpose of
investigation or proceedings under the Cr. PC. 1898 to give his measurement141 or
photograph. The Law Commission of India has also recommended for incorporating
voice sample under the ambit of section 5 of the Act, 1920.142 Indeed existing legal
regime in India has no explicit mention of judicial power to direct the subject for
providing voice sample for forensic analysis. The high court, after discussion on various

137 (2013) 2 SCC 357.

138 P. Kishore v. State represented by SP CBI, Chennai 2017 SCC OnLine Mad 10638; Amit
Khetawat v. State of Telangana, 2017 SCC OnLine Hyd 101; Jayapaul Mohan v. State of
Tamil Nadu, 2017 SCC OnLine Mad 36436.
139 Natvarlal Amarshibhai Devani v. State of Gujarat CDJ GHC 028.
140 (2012) 11 SCC 321.
141 Sec. 2(a) of the Act, 1920 defines ‘measurement’ as including ‘finger impression’ and foot
print impression.
142 Law Commission of India, 87th Report on Identification of Prisoners Act, 1920, (1980).
410 Annual Survey of Indian Law [2017

relevant legal precepts and several judicial pronouncements of Indian courts and other
jurisdictions, directed the state government to frame the rules as earliest under section
8 of the Act, 1920. Matching of voice sample has gained vital evidentiary significance
especially for handling heinous offences such as ransom, corruption and other white
collar crimes. The apex court must decide expeditiously the pending case referred
above to settle the legal conundrum involved therein.
IV CONCLUSION
Since long forensic intervention in judicial arena has proved its credence for
corroboration but its use continues to be optional for investigating agencies especially
in criminal matters. In many cases the accused get acquitted for want of proof to hold
guilty beyond reasonable doubt. In body offences like rape, DNA would be a credible
evidence for ensuring justice for both victim and accused. Despite sections 53-A and
164-A of Cr. PC in place, ‘cherry picking’ approach at the level of investigation keep
continuing for collecting DNA samples in rape incidents. Judiciary also maintains
conspicuous silence on gross derelictions and blatant violations of explicit legal
provisions by the investigating agencies with regard to collection of physical and
other evidence. It is a dire need, considering rising trend of sexual violence in India,
to introduce legal provisions under the code of criminal procedures to conduct DNA
and other scientific tests mandatorily and not as matter of choice left to police. For
enabling fullest use of forensic inputs, overhauling of relevant legal provisions on
expert opinion including sections 53-A, 54-A, 293, 311-A of Cr.PC, and sections 45
and 73 of the Indian Evidence Act, 1872 etc. is wanted.
The mentally challenged victims of sexual assaults irrespective of their biological
age must be dealt in accordance with mental age so that such incidents covered under
statutory rape enshrined under the POCSO Act, 2012, since this class of victims may
not be competent to consent for sexual act. It is needed to deploy more empowering
and inter-sectional right-based framework for enabling rights of disabled persons for
protection against sexual offences. DNA led paternity determination of the child born
within lawful wedlock is contrary to existing legal provisions under section 112 of
the Indian Evidence Act, 1872 since it contradicts the best interest of a child by branding
her/him ‘fatherless’. This matter is referred to larger bench of the apex court and it is
urged to decide on priority. Determination of maternity, considering the increasing
use of surrogacy and other scientific aids to reproduction, must be introduced by
amending section 112 of the Act, 1872. Indeed a detail study is desired to examine
umpteen tenets affecting family laws after the advent of third party intervention by
way of assisted reproduction.
The legal answers of modern socio-economic complexities may not be addressed
merely by interpretation of century old legislative intent rather both substantive and
procedural laws must be re-defined for addressing pressing realities of contemporary
society. For making ‘corruption free India’, the criminal law needs to be suitably
amended for enabling a magistrate for ordering collection of voice sample from the
suspect during course of investigation. Voice sample must be introduced under section
Vol. LIII] Forensic Law 411

311-A of Cr.PC in addition to handwriting or signature alongwith amendments in

other legal statutes for the purpose of comparison of voice to save time of higher
judiciary for dealing unwarranted litigations. Several such issues in field of forensics
need legislative and judicial attention. At present, forensic aids are meant for
prosecution since police on behalf of the State becomes suo motu custodian of crime
scene and other artefacts, and accused has no say in this regard. In the interest of
equitable justice, the accused must also be given opportunity, as a matter of right, to
suggest for conducting forensic tests during investigation to prove his innocence.
Further an inter-disciplinary approach to learn fine nuances of forensic sciences
by law practitioners and judiciary on one hand and legal knowledge to forensic experts
on the other hand must be facilitated by way of suitably designing the academic course
curricula in addition to conducting in-service training on periodical basis. Periodical
training on scientific skills for investigators is long awaited. Public awareness on
maintaining sanctity of crime scene etc must be promoted to advance greater use of
forensics in justice system. The government must prioritise for strengthening forensic
facilities, and the annual budget for police modernisation must be apportioned for
technological up-gradation of investigation standards. In deed there is need to strength
forensic jurisprudence for enabling scientific aids to investigation in Indian judicial
system.
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