The Indian Evidence Act, passed by British parliament in 1872 has within it rules and regulations concerning the admissibility of evidence in the court of law. The Law of Evidence comes into the domain of both the Adjective laws and the Procedural laws through which the pleadings and proceedings of the court take place.

It has a very long history in our country comprising of the following periods:

• The Hindu period wherein the law of evidence was supposed to be emanated from the Hindu Dharmashastra. Here, the desire to ascertain truth is emphasised.
• The ancient Muslim Period where the law is mentioned in the book  Muslim Jurisprudence  written by Sir Abdul Rahim under the headings of oral and documentary.
• The British era where the presidency courts in Bombay, Madras and Calcutta followed the English rules of law of evidence. But in mofussil courts, there were no definite rules regarding the law of evidence leading to haphazardness and chaos in the system of the administration of justice.

Need arose for codification of rules of law. So, between 1835 and 1853, 11 enactments related to the Law of Evidence were passed but proved to be inadequate. Several committees were set up under the chairmanship of distinct leaders like Sir Henry Maine, Sir James Fitz James Stephen and finally, the Evidence Act came into force on 1st September, 1872.[1]

The article analyzes the validity and the effectiveness of the increasingly used scientific evidence in the court of law. Day-after-day, the reliability on the traditional system of evidences, especially in the criminal trials is decreasing because of various factors. The Indian criminal justice system is in the stage of transformation. But, there are various hurdles regarding the admissibility of scientific evidences in the court of law. Also, it is imperative to know what the Constitution says regarding it. The efficacy of the Narco-analysis test needs to be given a second thought. There are various precedents in the Indian criminal justice that can prove helpful.

Concept and definition of evidence:
Etymologically,  Evidence  is derived from the Latin expression  Evidens Evidera . It describes the state of being evident or plain. The fact which needs to be proved is called principal facts and the fact which tends to establish it is known as the evidentiary fact. It is, thus used as a meaning to assert whether a given fact is relevant to matter under inquiry.

Evidence includes:

• Oral evidence includes the statements which are permitted by the court and required to be made before it by witnesses. These statements are related to matters of fact under inquiry.
• Documentary evidence includes the documents produced for inspection by the court. Electronics record can also come under this.[2][3]

Bentham defines it as any matter of fact whose effect, design or tendency produces an affirmative or disaffirmative persuasion about the existence of some other matter of fact in the mind. According to Taylor, evidence has within its ambit all facts except the arguments whose purpose is to prove or disprove any matter which is under inquiry in judicial proceedings.
Further, the documents are of two types, Primary and Secondary. Both of them may be oral or documentary.

Primary oral evidence refers to what the witness has herself or heard or gathered by her senses (direct). Hearsay evidence is example of indirect oral evidence. Similar is the classification for primary and secondary documentary evidences. But the primary evidence is said to as the best or original evidence as they are more reliable for proving the point in question without any kind of inference or reasoning. On the other hand, indirect evidences lack this capacity, though this is not always true.

Illustration: J was murdered at 6-pm in his own house. K saw L coming from house of J at 6:10 pm with a blood stained knife in his hand. M gave evidence that J and L had a very ugly fight the day before the murder occurred. A police officer seized blood stained knife from shelf in J's house. An expert found out that the blood of the deceased and the one present on knife was same. This chain of events is referred to as the circumstantial evidence.

Scientific Evidence and Criminal Trial:
At the very first, the meaning of the two terms  scientific evidence  and  criminal trial  needs to be clarified .In simple terms, scientific evidence can be defined as the evidence presented before the courts produced from scientific tests or studies. And the criminal trial is the procedure through which the punishment of crimes is decided. It's not hidden that the criminal trial in our country is a tedious and complex process.

The various types of criminal trials are mentioned in The Code of Criminal Procedure, 1973 as:

• Warrant trial- 7 yrs or more
• Summon trial- Max 2 yrs
• Summary trial- Max 6 months

Be it any kind of trial, the law of evidence comes into use at various stages of criminal trial such as investigation by the investigating officer, the prosecution requiring evidence to prove the guilt of the accused and then the defence evidence. Well, there are various reasons for which the scientific evidence is being increasingly used in the criminal trial system of our country.

An important case in this regard is the Selvi v. State of Karnataka in which a landmark judgment was given in the history of Indian judiciary. The first batch of appeals was filed in the year 2004 by Smt. Selvi and the subsequent appeals in 2005, 2006, 2007 and 2010. These were collectively taken up by the Supreme Court on 5th March, 2010.

Many allegations were raised regarding the instances where the accused and the suspects and witnesses in an investigation have been subjected to tests without consent. These were defended by citing the importance to extract information at a time when it is difficult to gather it through the ordinary means.

So, basically, the main issues that came up were:

• Whether FMRI, narcoananlysis, brain mapping and polygraph tests are constitutionally valid methods to gather evidence.
• Whether these evidence gathering methods result in nullification of constitutional rights such as 'right against self-incrimination under article 20(3) of the Indian Constitution and Section 161(2) of Code of Criminal Procedure, 1973
• Whether the procedure undertaken was violative of  substantive due process
• Whether compulsory administration of such techniques is an unwanted and unjustified intrusion into the mental privacy of a person.
• Whether the individual is allowed to take voluntary administration of such impugned techniques provided that the safeguards are in place.
• Whether information taken out being inculpatory or exculpatory has any effect on principles of protection from self-incrimination

The judgment rendered the practice of narcoananlysis, brain mapping, and FMRI and polygraph tests to be unconstitutional and void saying that they are violative of accused person right against self-incrimination and right to life and personal liberty.

Constitution and scientific evidence:
Article 20(3) of Indian Constitution is about self-incrimination. It is based on the legal maxim nemo tenetur prodere accusare seipsum which means that no man is bound to accuse himself. The Constitution doesn't permit the making of any statement that can expose the accused to criminal prosecution, either at present or in future. The scope of this immunity has been broadened by the Supreme Court by interpreting the word 'witness' to include both oral and documentary evidence.

However, it must be in the nature of communication.[4]
In Dinesh Dalmia v. State of Maharashtra[5], it was ruled that Narco-analysis testimony was not necessarily a compulsion as the accused might be taken to the laboratory for the tests without his consent, but revelation was quite voluntary. The Indian courts may be trying to limit the scope of article 20(3) because of  Minimal Bodily Harm Technique .

In Nandini Sathpathy v. P.L. Dani, the court ruled that the accused has the right to keep silent during the course of interrogation or investigation and no one can forcibly extract statements from him. However, a person may himself waive over article 20(3). The idea behind this immunity is to provide a free environment so that the accused can be persuaded to come forward and furnish evidence in the court. This could be of substantial help in elucidating truth in a case. Therefore, any kind of threat or inducement directed towards the accused or likely to be accused, if causes him to act involuntarily and thus, resulting in his incrimination, is violative of article 20(3) of the Constitution.[6]

Article 21 is the storehouse of all human rights essential for a person. One of the most important rights that came into prominence through the judicial interpretation of article 21 is the right to privacy. It is not expressly laid down in the constitution. In the D.K. Basu v. State of West Bengal [7] , the Supreme Court put forward the need to develop scientific techniques and methods for the purpose of investigating and interrogating the accused. Narco-analysis and brain mapping are such efficient methods of scientific evidence. They can serve as an useful preventive measure for custodial deaths and tortures. There are thousand such cases where large injuries are implicated upon the accused for the purpose of extracting information. Therefore, subjecting an accused to undergo a scientific test is much better option.

Narco-analysis test- Validity:
The narcoanalysis test is one of the effective tests that is used to find the culprit. It is used to describe a diagnostic technique that uses psychotropic drugs; especially barbiturates. It is based on the principle that under the influence of certain barbiturates, a person's capacity to imagine is blocked or is, otherwise neutralized so that the person comes into a semi-nuclear state and is not able to lie. Through this test, some sort of statement is acquired from the accused which might form evidence.

Though the Evidence Act is completely silent on this kind of employment of scientific process.The results of the test are not admissible in the court. It just aids the investigation procedure. Since, most of the crimes are formulated in the mind of an individual; this test is the apt mechanism. Evidence rules not only ensure the smooth functioning of the criminal proceedings, but also protect the right to a fair trial which a defendant has.

The test is often linked with infringement of person's fundamental right which questions its evidentiary value. The constitution clearly says that a person cannot be forced to be a witness against himself and therefore, the statement provided by him under the influence of drug cannot be considered as evidence in our country. The results of this test may be doubtful as there are chances of deliberately withholding the information or giving untrue account of the incident precisely. But still the test is gradually being mainstreamed into investigations, court hearings and laboratories in India.

The shocking Aarushi Talwar murder case[8] is worth mentioning here. This is a double murder case where the house servant of the victim was also found dead the very next day. When investigations were conducted, several points came out. The findings raised suspicions about committing of the murder by Dr. Rajesh and Nupur Talwar and therefore, they had to go through the narco analysis test to confirm their involvement in the murder.

Still, no evidence could be collected and it came out that they knew nothing about the murder of the teenage girl. At first, the results of the test were admissible in the court but later on, the Supreme Court ruled it unconstitutional.

Another one is the Nithari Serial Killings Case; the narco analysis test of the main accused in the case was conducted. Pandher and Koli were accused of serial killing of women as well as children in Nithari village. The accused were investigated on two angles. One is that of the accused and the other regarding what the investigators wanted to know. Koli's admissions during test pointed that he used to rape and kill children for the purpose of satisfying his ego as he feared becoming impotent. He too admitted to chopping the bodies of minor girls and then dumping them into drains. The results of the test, though not admissible in the court, helped the police with their investigation.

Conclusion:
The new scientific technology will definitely prove helpful in detecting lie, crime and the criminal. But, there is still ambiguity regarding the role played by the forensic evidence to help the courts arrive at logical conclusions. They have yet not decided on their tenability. The court should approve the legal use of narcoanalysis, polygraph and brain mapping. Law is a living process and that has to change according to the developments.

The Indian legal system is based on the fact that a person is innocent until proven guilty. Also, our legal system pledges to save an innocent even the life of a hundred criminals is at stake. Thereby, it needs to seek the help of technology to make this happen even in a more efficient manner.

References:

• https://blog.ipleaders.in/direct-evidence/
• https://www.thehindu.com/opinion/open-page/why-is-forensic-science-stunted-and-static-in-india/article2442491.ece
• http://www.legalserviceindia.com/article/l153-Forensic-Evidence.html
• https://www.mondaq.com/india/crime/318472/process-of-trial-of-criminal-cases-in-india
• https://www.lawctopus.com/academike/scientific-evidence-narcoanalysis/
• https://criminal.findlaw.com/criminal-procedure/scientific-and-forensic-evidence.html
• https://www.thehindu.com/news/national/supreme-court-calls-for-scientific-methods-in-crime-detection/article5912931.ece

End-Notes:

1. Sumit Kumar Suman, The Concept and Historical Background of Evidence Law(2015), https://www.lawctopus.com/academike/concept-historical-background-evidence/
   (last visited June 23, 2020)
2. Yash Tandon, The Distinction Between Direct and Circumstantial Evidence(in general), https://blog.ipleaders.in/direct-evidence/ (last visited June 22, 2020)
3. Section 3, the Indian Evidence Act, 1872
4. Durga Dass, p. 114
5. Cr. L.J. (2006) 2401.
6. (1978) 2 SCC
7. AIR 1997 SC 610
8. Criminal appeal no. 293 of 2014
   
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