INTRODUCTION
Crime against women is on the rise globally, and India is no exception. Recent National Crime Records Bureau’s Annual Report titled “Crimes in India– 2020,” there were 28,046 reported rape crimes in India (approximately 77 cases per day), and many cases go unreported.[1] According to Locard’s Principle of Exchange, “Every contact leaves a trace,” and the rapist also leaves his trace in the form of DNA at the crime scene. However, such traces may contaminate or degrade over time. Thus, timely sample collection is achievable when police personnel and forensic experts coordinate with each other. In rape and murder cases, the station house officer (SHO), who is the concerned authority, upon receiving such information shall register the first information report (FIR) under Section 154 of the Criminal Procedure Code, 1973 and immediately proceed to the crime scene for commencement of the investigation. It is his primary duty to protect the crime scene from getting contaminated and to intimate the Crime Laboratory Ultimate Evidence System (CLUES) team for sample collection.
The CLUES team will examine the crime scene and collect physical evidence which will be sent to the concerned State Forensic Science Laboratory for forensic examination. If the victim is found alive, the SHO shall immediately send the rape survivor for medical examination, which is the most crucial aspect in determining the accused’s guilt.[2] Usually, in rape and murder cases, the accused attempts to destroy evidence either by setting fire to or burying the victim’s body. In such situations, forensic science intervenes to scientifically prove the victim’s identity as well as the accused through pieces of evidence found from the crime scene. Depending on the purity of samples and examination methods, the courts will decide the relevancy and admissibility of such evidence. In addition, the victim’s body will be sent to the Government Hospital for postmortem and after such examination, the victim’s body will be handed over to their relatives for last rites.
The scientific advancements in forensic techniques have been beneficial in criminal investigations. In a criminal investigation, the most commonly used branches of Forensic Science are Forensic DNA Analysis, Forensic Odontology, Digital Forensics, Forensic Biology, Forensic Chemistry, Forensic Dactyloscopy, etc. These branches adopt different methods or tests for sample examination. It is beneficial in crime detection as every human has a unique fingerprint pattern. Similarly, every person has 0.1% of unique DNA except identical twins. Such DNA can be found in hair, semen, blood, skin cells, tissues, bone, teeth, saliva, mucus, fingernails, etc. India has 6 Central Forensic Science Laboratory (CFSLs) and 31 State FSLs, of which 3 CFSLs and 16 State FSLs only have the facility to test DNA samples. According to the 2018 Report, 12,072 DNA samples from sexual assault cases were pending at various FSLs due to lack of infrastructure and shortage of staff.[3] Further, Dr. Sudhir K Gupta, Head of Forensic Department, All India Institute of Medical Sciences (AIIMS), New Delhi opined that “The lack of proper facilities at hospitals has a direct correlation with the quality of DNA evidence collected. The results for the vaginal swabs and semen samples can be analyzed quickly to help catch the culprit but currently, 80%–90% of samples do not yield viable results either because they are not collected and sealed properly, or because they are stored at an unsuitable temperature. There is a dire need for educating and training first-line responders on proper collection and handling of DNA samples while at the same time creating dedicated infrastructure to attend to rape survivors.”[4] Therefore, it is essential to address the limitations of forensic techniques, and recommend measures for ensuring that standard operating procedures (SOPs) are strictly followed to produce viable results.
The present research aims to analyze the extent to which forensic techniques are useful in criminal investigations, as well as their limitations, in rape cases in India. In addition, this research enables a better understanding of the existing Indian laws relating to rape and forensic evidence, as well as the efficacy of these laws for delivering justice. Based on the research findings, measures are recommended that need to be adopted for yielding viable results.
MATERIAL AND METHODS
A sample of 5 infamous rape and murder cases from 2009 to 2020 were analysed .This research had been carried out based on the Doctrinal method. For the research purpose, secondary data such as articles, books, newspapers, case laws, forensic reports, and legal provisions of Indian laws are collected and analyzed.
Forensic DNA profiling is one of the techniques used to match human DNA samples for identification purposes in a criminal investigation. It is often analyzed by adopting two methods: (1) restriction fragment length polymorphisms (RFLP), (2) polymerase chain reaction (PCR). In the RFLP method, different solvents are used to extract DNA from the samples. Such extracted DNA is broken down into different fragment lengths using restriction enzymes. These enzymes cut the DNA whenever a specific sequence of bases occurs, generating several different DNA fragments of varying lengths (variable number tandem repeats [VNTRs]). However, forensic DNA analysis using VNTR segments has some limitations, such as (i) DNA samples degrade over time due to prolonged sunlight exposure, and (ii) Difficulty in determining whether the same banding patterns originated from one person or more than one person.
Another method is PCR test which is commonly used when a smaller sample quantity is available. This test amplifies DNA into small segments short tandem repeats.[5] It is more accurate than other DNA techniques and also provides speedy results. However, these techniques are highly sensitive and thus, the samples must be handled properly, otherwise, the sample gets contaminated due to improper collection methods. Thus, the first-line responders (CLUES Team, Police Personnel, Lab Technicians, Forensic Experts) must be very careful while handling the DNA samples, otherwise, the Forensic Analysts DNA may pass through touch and the admissibility of such evidence is at stake. If the defense counsel is successful in raising doubts about the impurity of samples. The court shall acquit the accused as the prosecution failed to prove the accused’s guilt beyond reasonable doubts.
FINDINGS AND RESULTS
The present case study analyses the forensic mishandling in infamous rape and murder cases from 2009 to 2020. It determined the trend and patterns of forensic inconsistencies/mishandling that lead to the judicial precedents.
Case 1
In the Shopian double rape and murder case,[6] two women were allegedly raped and murdered by army personnel in Shopian district, Jammu and Kashmir. The locals had informed the police and the bodies of the victims were recovered for autopsy and sent to the Government Hospital. The Doctors had conducted an autopsy and the report stated that “no marks on the dead bodies including private parts.” The police had not registered a FIR for this incident. A massive public outburst expressed serious doubts about the police’s ability to conduct a fair investigation. On June 1, 2009, the Government of Jammu and Kashmir appointed Justice (Retired) Muzaffar Jan Commission to conduct a judicial probe. During the inquiry, the pathologist confessed that she submitted her vaginal swab instead of one of the victims.[7] The Commission also found that the police attempted to destroy the evidence, and two police officers were arrested for the said offense.
In light of these findings, the Allahabad High Court took suo-moto cognizance and ordered the AIIMS Hospital to conduct a fresh autopsy on the victims’ exhumed bodies. Two teams of AIIMS doctors conducted autopsies on the exhumed bodies, with the first team’s findings indicating that one of the victims died of cardiac arrest and the other died of nervous shock, whereas the second team’s findings indicating that one of the victims died of sexual assault and the other victim died of rape followed by nervous shock,[8] however, both the teams conclusively found the same diatoms (algae) in the victims’ lungs that existed in the crime scene.[9] Based on the forensic reports, the Central Bureau Investigation (CBI) prepared a charge-sheet denying the charges of rape, murder and also mentioned the victim’s cause of death was due to asphyxia as a result of drowning in the water, which the Division Bench of Jammu and Kashmir High Court accepted.[10] Further, the Government appealed to the Supreme Court of India after an inordinate delay of 542 days, and the court had sought a proper explanation of such delay.[11]
Case 2
In the Thrissur rape and murder case,[12] on February 1, 2011, a 23-year-old girl was raped and murdered by a beggar in a moving Passenger train. The passengers in the general compartment heard the victim’s hue and cry, and one of the witnesses’ informed co-passengers that she had escaped by jumping off the train. Later on, this incident was reported to railway authorities who had alerted the police department. The police had immediately proceeded to the crime scene and found that the victim was alive. She was taken to the Medical College Hospital, Thrissur where she underwent necessary treatment along with preliminary medical examination was also conducted. According to the Doctors’ report, the nature of the victim’s injuries indicated that she could not have jumped off the train to escape, rather the accused might have pushed the victim (as she was in a semi-conscious state) off the train.
On February 6, 2011, the victim had succumbed to injuries. Furthermore, Dr. Sherly Vasu and four other doctors performed an autopsy, and the autopsy report stated that the victim had several injuries all over her body. The doctors solely relied on two critical injuries, namely, Injury No. 1 was caused by hitting her head 4–5 times against the train’s flat surface by holding the victim’s hair from the back with a right hand, whereas Injury No. 2 was found beneath the left eye, chin bone, and cheekbone, and teeth were broken. The doctors had concluded that the only possibility was that the victim had sustained such injuries when she had been pushed down from the train which was moving at a negligible speed. The victim’s cause of death was due to the aspiration of blood into the air passage while the victim was kept in a supine position for sexual intercourse, which might have caused anoxic brain damage. The forensic biologist also examined the blood splatter patterns found on the outer part of the train compartment and on the railway track (where the victim was found). However, there were no bloodstains found inside the train compartment. Based on the bloodstain patterns, the expert’s report stated that the droplets of blood found on the railway track fell from a definite height (approximately. 60 feet) from the ground level, and the only possibility is that the accused had lifted the victim and thrown her out of the compartment.
In the trial court, Dr. A.K. Unmesh made controversial statements that he had headed the autopsy examination and Dr. Sherly Vasu, Head and Chief Doctor had conducted a partial examination. He had appeared as Defense Witness-1 and testimony was given in favor of the accused casting serious doubts on the autopsy reports.[13] The Court heard both the versions on this point and held that Dr. Unmesh’s statements were baseless. The Trial Court examined the witnesses, perused the reports, found the accused guilty of rape and murder, and sentenced him to death and the same has been confirmed by the high court under section 366 CrPC, 1973. The accused appealed before the Supreme Court and the Apex Court partly convicted the accused for the offense of rape under Section 376 IPC and discharged the charges of murder under Section 302 IPC, 1860 stating that the prosecution failed to prove that the accused had conclusively pushed the victim out off the train.[14] It is a clear-cut case of rape and murder that has been proved in all the courts except the Supreme Court of India. In the Supreme Court, the prosecution failed to vehemently argue that this case is within the ambit of definition of murder under clause 3 of section 300 IPC, 1860 which clearly states that the accused had done such act with the intention of causing bodily injury and such bodily injury intended to be inflicted is sufficient to cause death in the ordinary course of nature.
Case 3
In the Nirbhaya gang rape and murder case,[15] on December 16, 2012, a 23-year-old girl was brutally gang-raped by six accused (including one minor) in a moving bus in Delhi. As she persistently resisted during the rape, an iron rod was inserted into her private parts, which tore her intestines. After 11 days of struggle, she succumbed to her injuries. The police arrested six accused and produced them before the fast-track court for trial. The trial court imposed the death sentence for four accused (one accused committed suicide before the commencement of trial, one minor accused was tried before Children’s Court) and the same was upheld by the Delhi High Court. The accused then filed an appeal before the Supreme Court of India questioning the validity of bite-mark analysis which was rejected by the Court and upheld the death sentence. The Supreme Court in its judgment stated, “Forensic Odontology has established itself as an important and indispensable science in medico-legal matters and expert evidence through various reports which courts have utilized in the administration of justice. In the case at hand, the report is wholly credible because of matching bite marks with the tooth structure of the accused persons, and there is no reason to view the same with any suspicion.”[16]
On the contrary, many developed countries like the United States of America (USA), United Kingdom (UK), Canada, Australia, etc., do not consider the bite-mark analysis as valid evidence. The President’s Council of Advisors on Science and Technology, USA report stated that there is no scientific research that bite-marks can be matched to one person to the exclusion of others and also stated that the bite marks of a person often change with time and such bite-mark analysis does not meet the scientific standards for foundational validity.[17] In 1987, the Texas Court convicted Steven Mark Chaney for double murder based on bite-mark analysis, however, in 2019, the Texas Court of Criminal Appeals re-examined the evidence and acquitted the accused invalidating the bite-mark evidence. Similarly, in the case of State of Georgia versus Sheila Danton,[18] the Superior Court of Georgia USA held that the “the future admissibility of such evidence (bite-mark) is dubious at best” and set aside the conviction of felony murder.
Case 4
In the Hathras gang rape and murder case, on September 14, 2020, a 19-year-old Dalit woman was gang-raped and murdered by four men from the upper caste in Hathras, Uttar Pradesh. The accused cut a severe gash in the girl’s tongue and attempted to strangle with her scarf after she resisted. She was initially admitted to JN Medical College, Aligarh Muslim University, for medical treatment and preliminary medical examination, where she was diagnosed with serious spinal cord injury, total vaginal penetration, and signs of physical force being used. As per Union Health Ministry’s protocol for medical examination of victims of sexual assault, the hospital had sent the samples to the State Forensic Science Laboratory for analysis, however, the hospital may submit its opinion. On September 22, 2021, the State FSL examined samples and the result claimed that neither semen nor sperm was found in the viscera sample, and the cause of death was physical assault. Dr. Azeem Malik, Chief Medical Officer of JN Medical College, Aligarh Muslim University opined that the FSL report was unreliable and expressed serious doubts about “how will the FSL team find evidence of rape 11 days later? Sperm does not survive after 2–3 days. They took samples from hair, clothes, nail bed and vaginal-anal orifice, the samples may not show the presence of semen because of urination, defecation, or menstruation.”[19] As the victim’s health worsened, she was transferred to Safdarjung Hospital in Delhi, where she succumbed to injuries. An autopsy was conducted by a team of doctors at Safdarjung Hospital in Delhi, and the report stated that her “hymen revealed several old healed tears” and that her “anal orifice exhibited old healed tear.” The Allahabad High Court took suo-moto cognizance, and meanwhile, the Supreme Court also ordered the Allahabad High Court to monitor the CBI probe, which is now being monitored.
Case 5
In the Disha gang rape and murder case, a 26-year-old veterinary doctor was gang-raped near the city outskirts while she was returning home. She was forced to drink alcohol and the four accused had repeatedly gang-raped her in the moving lorry and then had burnt her body to destroy evidence. The next morning, the locals had informed police about a dead body found at Shadnagar. Her body was burnt beyond recognition and identified only based on her gold pendant and a piece of scarf. The forensic experts collected her sternum bone for DNA analysis and found that it belongs to the biological female offspring of Disha’s parents.[20] The DNA of the accused matched with the sperm stains on her undergarment recovered from the scene of the offense. The Cyberabad Police arrested the four suspects involved in the gang rape and murder. Afterward, the police took the accused to the spot for scene reconstruction, where two of them allegedly snatched guns and attacked the police. In the alleged shootout between the police and accused, all four accused were shot dead.[21] The Assistant Director of the CLUES Team examined the encounter spot for evidence collection.
The Supreme Court of India took suo-moto cognizance to hear the Disha encounter case and appointed Sirpurkar Committee to conduct inquiry on the alleged extra-judicial killing of the four accused. The Committee inquired the CLUES team’s Assistant Director, who had examined the encounter site. During the inquiry, the expert stated that he was unaware that only the “handwash” method of collecting gunshot residue (GSR) samples is permitted. However, he acknowledged that the “cotton bud” method is the least preferred method of collecting GSR samples. Further, he stated that multiple swabs were obtained from each hand of the alleged person who used the firearm for GSR detection. He further added that the GSR sample collection is the responsibility of Postmortem Examination (PME) doctors, however, the CLUES Team had collected GSR samples to avoid sample degradation over time.[22] Furthermore, when the commission questioned the CLUES team’s Assistant Director about why he had collected GSR samples when it was not his duty, he responded that “to identify GSR sample is also part of his task,” as per the Andhra Pradesh Police Manual Standing Orders. Such gross negligence during GSR sample collection and contradictory statements would certainly cast serious doubt on the validity of the tests.
In the case study, the findings show that the validity of the tests is at stake and the Indian Courts are unwilling to rely entirely on forensic evidence, preferring to use it only as corroborative evidence alongside other independent evidence. Out of five notorious cases, three cases are still pending before the court, one case resulted in partconviction of the accused, and only one case resulted in the conviction of all the accused based on forensic evidence and other independent evidence. In all these cases, the admissibility of forensic evidence has been challenged due to experts’ mishandling, or inconsistent reports given by PME doctors, forensic experts.
DISCUSSION
A similar study was undertaken by the Centre for Enquiry into Health and Allied Themes (CEHAT), an NGO.[23] CEHAT analyzed 96 sexual violence judgments, out of which 50 case samples were not applicable owing to delays. In the remaining 46 cases, one case sample was not collected because the survivor did not consent, two case samples were not collected by doctors, thirty case samples were examined but the Chemical Analysis (CA) reports were not presented in court and the reasons for the absence of reports were not addressed during the trial, thirteen case samples were examined and the CA reports were submitted to the Court, but the forensic reports were negative, even though the chain of custody was maintained.
Law relating to rape, custodial rape, and gang-rape
Section 375 IPC, 1860 deals with the offense of rape committed by a man against a woman without her consent or such consent obtained by causing fear of harm or death, unsoundness, fraud or intoxication, against her will or if she is under 18 years of age. It penalizes all penetrative forms of sexual intercourse such as oral, vaginal, anal, finger, and objects penetration. In Radha Krishna v. State of Andhra Pradesh,[24] the Supreme Court of India held that “penetration itself proves the offense of rape, but the contrary is not true, i.e., even if there is no penetration, it does not necessarily mean that there is no rape.” Section 376 (1) IPC prescribes punishment for rape of a woman above 16 years of age shall be a minimum of 10 years imprisonment which may extend to life imprisonment and fine. Section 376 (3) IPC prescribes punishment for rape of a woman under 16 years of age shall be a minimum of 20 years rigorous imprisonment which may extend to life imprisonment and fine. Section 376AB IPC, 1860 prescribes punishment for rape of a woman below 12 years of age shall be a minimum of 20 years rigorous imprisonment which may extend to life imprisonment and fine or death.
Section 376 (2) IPC prescribes punishment for rape by Persons in Authority. The person in authority includes police officers, public servants, members of armed forces, any person who is in management or staff of a jail or remand home or protection home or observation home or any other place of custody or care and protection, hospital management or staff of a hospital, education institutions management or staff of an educational institution or any religious institutions, etc., shall be punished with a minimum of 10 years rigorous imprisonment which may extend to life imprisonment which means till the remainder of a person’s natural life and fine.
According to Section 376-D IPC, when a woman is raped by more than one person is said to commit gang rape and shall be punished with a minimum of 20 years rigorous imprisonment, which may extend to life imprisonment which means till the remainder of a person’s natural life and fine. Such a fine amount shall be just and reasonable to meet the medical expenses and victim’s rehabilitation. Section 376DA IPC, 1860 prescribes punishment for gang rape of a woman below 16 years shall be rigorous life imprisonment which means till the remainder of a person’s natural life and fine, whereas, section 376DB IPC prescribes punishment for gang rape of woman below 12 years shall be rigorous life imprisonment which means till the remainder of that person’s natural life and fine or death.
Law relating to forensic evidence
Article 20 (3) of the Constitution of India, 1950 states that “No person accused of any offense shall be compelled to be a witness against himself.” In the State of Bombay v. Kathi Kalu Oghad and others,[25] the Supreme Court of India held that the courts may compel any person to give specimen handwriting or thumb impression for identification purposes which is not violative of Article 20 (3) of the Indian Constitution. Sections 53 of the Criminal Procedure Code, 1973 deals with medical examination of accused of any offense upon police officer’s request. Section 53-A CrPC, 1973 states that the Registered Medical Practitioner may conduct medical examination of any person accused of rape or attempt to rape upon the request of a police officer who has reasonable grounds believing such examination will provide evidence.
Similarly, Section 164-A CrPC mandates the police officer to send the rape victim with her consent or consent given by a competent guardian on her behalf for medical examination within 24 h from receiving such information. Section 293 CrPC, 1973 deals with reports of certain Government scientific experts. According to Section 293 CrPC, 1973, the court may consider any Government scientific expert’s report in any court proceedings without the testimony of such expert. Such Government scientific experts are (a) Chemical Examiner or Assistant Chemical Examiner; (b) Chief Inspector of Explosives; (c) Director of the Finger Print Bureau; (d) Director, Haffkeine Institute, Bombay; (e) Director, Deputy Director, or Assistant Director of a CFSL or a State Forensic Science Laboratory; (f) Serologist to the Government.
Section 45 of the Indian Evidence Act, 1872 deals with Experts’ Opinions. According to this section, the court may take experts’ opinions on foreign law, science, art, the identity of handwriting, finger impressions. As per Section 73 of the Indian Evidence Act, 1872, the courts may compel any person to produce fingerprints, handwriting, or signatures for comparison. According to Section 136 of the Indian Evidence Act, 1872 the Judge may ask the parties to prove any of the facts that are relevant to the case and either of the parties able to prove such facts, accordingly, the judge may admit such evidence.
CONCLUSION
Forensic science has become an integral part of the Indian Criminal Justice System but the admissibility of such evidence depends on establishing the chain of custody which is the strongest as well as the weakest link that connects different dots of the case. In rape cases, it is generally difficult to have eyewitnesses and the courts often rely on forensic evidence. However, in Solanki Chimanbhai Ukabhai v. State of Gujarat,[26] the Supreme Court of India categorically held that the evidentiary value of forensic evidence is corroborative in nature. Further, the court held that any inconsistencies between forensic evidence and eyewitnesses’ statements, if the court is of opinion that the testimony of eyewitnesses is satisfactory and reliable, then such statements cannot be ruled out.
According to the Indian Criminal Law Jurisprudence, the prosecution shall prove the guilt of the accused beyond all reasonable doubts which means the burden of proof always lies on the prosecution and the defense counsel have to raise an iota of doubt which is sufficient to acquit the accused. Furthermore, the criminal law not only specifies punishment for rape but also provides the accused with various rights, and lengthy judicial remedies causing delays in the pronouncement of judgments. In India, rape cases have such a low conviction rate due to lack of expert skills to first-line responders and investigative agencies, lack of qualified laboratories, inconsistent forensic reports, prosecution’s failure to make strong arguments before the court of law, no universal scientific criteria in assessing the foundational validity of certain branches of forensic science and delay in the medical examination of the rape survivor.
The Indian Government is attempting to develop infrastructure as well as skilled experts, but fulfilling these needs is a major challenge due to a proportionate increase in crime rates. Some of the challenges are overburdened Forensic Science Laboratories (FSLs), several bureaucratic hurdles, lack of a criminal database unlike the USA has the Combined DNA Index System, and having no strict implementation of SOPs. In 2020, the National Human Rights Commission and the Ministry of Home Affairs issued SOP on Collection and Processing of Scientific/Forensic Evidences in Cases of Sexual Assault on Women to ensure a speedy and proper investigation as well as strong cogent evidence for a successful conviction. However, the recent rape incidents, such as Hathras Case, Disha Case, clearly indicate that these guidelines have not been strictly followed by the respective departments (i.e., Police and Forensic Departments). Thus, the Government shall take necessary steps to implement uniform SOPs for ensuring proper sample collection, handling, and analysis, especially in rural and sub-urban areas by providing frequent refresher training courses to first-line responders, Sexual Assault Evidence Collection (SAEC) Kits, and well-equipped laboratories.
Recommendations
In the light of these findings, it is recommended that:
- The Government Mortuaries shall be provided with better basic infrastructure facilities such as ventilators; the size of autopsy rooms must be increased; cold storage facilities, waiting rooms, advanced forensic research wing in every hospital, and establishment of new FSLs
- The Staff must be provided masks, gloves, supply of autopsy kits, SAEC Kits, etc.,
- Autopsy doctors, attendants, and other staff must be given a decent salary along with risk allowances, as well as, timely vaccinations to avoid infections
- Frequent Refresher Training Programmes for Field Scientific Officers, Attendants, and Police Personnel
- Enactment of the DNA Technology (Use and Application) Regulation Act for maintaining criminal databases.
Financial support and sponsorship
Nil.
Conflicts of interest
There are no conflicts of interest.
