Forensic Science in Criminal Investigation and Trials [4 ed.] 817534332X, 9788175343320

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Forensic Science In Criminal

Investigation & Trials

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Universal a

Law Publishing (0,Pvt. Ltd, ve

Forensic Science In Criminal

Investigation & Trials

FOURTH EDITION With Supplement

Dr. B.R. SHARMA M. Sc. (Hons.), Ph.D., FA.F:Sc. Former President, Indian Academy of Forensic Science Former Director, Central Forensic Science Laboratory, Chandigarh Former Director, UT Forensic Science Laboratory, Chandigarh Former Director, State Forensic Science Laboratory, Shimla Former Director, CID Scientific Laboratory, Phillaur

Universal Law Publishing Co, Pvt. Ltd.

1974 1977 1990 2003

First Edition Second Edition Third Edition Fourth Edition

with Supplement 2005 2007 Reprint

ISBN : 81-7534-332-X

Purchased:

Gon

eel Acc No Price

: :

o part of this publfédHpayermn Recepioduce or transmitted in any form or by any St i rs. einnpc eans, without se

(Bangalore Published by UNIVERSAL

LAW

PUBLISHING

CO. PVT. LTD.

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Despite all the care taken, errors or omissions may have

crept inadvertently into this publication. The publishers shall be obliged if any such error or omission is brought to their notice for possible correction in a future edition. In the case of binding defect, misprint, missing pages, etc., the publishers’ liability is limited to replacement of the defective copy within one month of its purchase by a copy of the same edition or reprint. All disputes are subject to the jurisdiction of competent courts in Delhi.

Computer Typeset at Aesthetic & Printed at Chaman Offset Printers, Delhi.

Preface to the Fourth Edition The revision of the book to produce the [Vth Edition has been in the melting pot for a considerable time. It was a gigantic task and daunting too. The explosive advances in science and technology were the main challenge to update the information and yet not to make it the scientific bug to cause scientific blues. The majority of the readers are non-scientists. They are the police officers, the lawyers, the judges. The general student of Forensic Science who wants to get an overall bird’s eye view of this expanding and overspreading science would also not like to be bogged down by the complicated technical details. It has been my endeavour to avoid the same. I hope I have succeeded in the effort and the additions in the new Edition do not cross the Lakshman Rekha. Tremendous changes in all aspects of scientific investigation of crimes have taken place in the past decade or so and are continuing at a rapid pace. These changing trends have been encapsuled in the new edition. They mainly relate to: Current thinking on Forensic Science. . Changing patterns of Firearms and their misuse. . New tools and techniques in handling Disputed Documents.

. Explosives and Explosion. . Narcotics and Psychotropic Drugs. Fires, especially arson. . Alcohol especially drunken driver. DNA profiling. CNA PWN The new trends in handling crimes, which momentum, have been added as new topics. They are:

1. Computers 2. Forensic Psychology 3. Voice Analysis 4. Microtraces

are gaining increasing

vi

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The utilisation of the expertise on the above topics is yet limited in India

, but we can no longer afford to remain illiterate on these topics. For example

computer has engulfed all aspects of human life. It is making rapid stride towards crimes both for its control and creation. We can ignore the computers only at the societal peril. Likewise Forensic Psychology has to play increasingly important role in handling criminals, especially those criminals who are the first timers or who are the chance criminals or those who are the victims of circumstances. In addition, it has to play its rightful role in the dissemination of real justice without third degree methods and bringing some solace to the victims. Likewise, voice analysis is becoming indispensable. The existence of Osama Bin Laden has been confirmed only through voice analysis. The analysis would certainly help to identify the ransom criminal and his ilk. The microtraces, as evidence, will, perhaps, be the most important evidence in the changing scenario of crime, crime scenes and the absence of traditional evidence of eyewitnesses, approvers and the like and the criminal modus operandi. In quite a few cases perhaps it will be the only evidence to tie the criminal with the crime. The discussions have naturally to be brief in a book of this type. However, I hoped the concise contents do not affect the clarity. I have no hesitation to admit that the book though mostly based upon personal experience, yet I have utilised all available information in the literature, on the internet or from the personal communications and discussions with colleagues, friends and students. I have no illusion that I have eliminated all acts of the omission and commission but I do hope that they are few and far in between and they do not affect the authenticity and the utility of the information. Lastly, I request all serious readers of this book to favour me, as in the past, by pointing out the acts of omission and commission, ambiguities, if any, and suggestions for further improvement of the book. All communications will be thankfully received and personally acknowledged. B.R. SHARMA

Introduction to the Third Edition Dr. Sharma’s book ‘Forensic Science in Criminal Investigation and Trials’ has become a classic. It has undergone three Editions and four issues. Thousands of copies of the works have been sold throughout the country and abroad. They form part of the libraries of all the top lawyers, the ace investigating officers and the learned Judges. It has become indispensable to ail those who are involved directly or indirectly in the dissemination of justice.

Many persons are surprised to find that Dr. Sharma’s ‘Forensic Science’, as it is popularly known, is the only book on the subject in India. The reason for the same

is not far to seek. Forensic Science is a multi-disciplinary science,

involving all pure and applied sciences. In addition, it has developed its own branches over the years, such as, Forensic Ballistics, Serology, Dactyloscopy, Document evaluations, etc. It is also a multi-professional science and involves the police officer, the lawyer, the judge and, of course, the Forensic Scientist. It is not everybody’s cup of tea to know, to understand and to interpret the tenets of this multi-disciplinary and multi-professional science to the specialist and the non-specialist alike. It is only a person like Dr. Sharma who started his career as director of a single-man’s laboratory and progressively handled, expounded, researched in all branches of the science not within the confines of a laboratory walls only but also at the scene, in the court-rooms as well as in the class rooms

of Police Training Colleges, Universities and other institutions of higher learning. The vast experience thus gained, for over three decades, has made it possible for him to encapsule the basic knowledge of the entire field in less than 900 pages. It covers all aspects: investigative, scientific, legal, simultaneously, exposing its potentialities and limitations in a lucid and illustrative manner. Dr. Sharma, now, heads our State Forensic Science Laboratory. This Edition has come up here, with added dimensions. Two more parts, one on elementary

‘Forensic

Medicine’

and the second, on the latest revolutionary

development ‘DNA Profiling’ have increased the utility of the book immensely. I am sure the book will find place on the shelves and study tables of all the seasoned as well as the upcoming lawyers, the judges and the police officers, the Forensic Scientists and other students of Forensic Science. [I am happy to introduce this Magnum Opus to the readers. May the works help in the dissemination of real justice. November 3, 1989 Holly Lodge, Shimla-1, H.P.

(VIRBHADRA SINGH) Chief Minister, H.P. vil

Foreword to the Third Edition Dr. B.R. Sharma’s book on Forensic Science is probably the first book of its kind to be published in India though there have been many books on Forensic Science published in Europe and America. Hence Dr. Sharma’s book should get wide circulation not only in all institutions dealing with Forensic Science but should be a text-book for all Police Officers and Magistrates and should form a valuable guide for the judiciary and the legal profession. Dr. Sharma has divided his book in various parts and each part is complete by itself and could form a separate text-book. He has written it not only from his theoretical knowledge of the subject which is adequate but also from his own personal experience of running an important Forensic Science Laboratory of which he is the head. He has quoted many case histories which make the book still more readable and useful. I have found this book of absorbing interest and I am sure that everyone connected with Forensic Science in any way would find it extremely useful. Sd/(B.N. Mullik)

President, Indian Academy of Forensic Sciences.

Preface to the First Edition The lack of understanding and critical appraisal of specialists in general, by non-specialists, is all-pervasive. The field of Forensic Science is no exception. Neither the police, nor the lawyer, nor even the judge appreciates fully the advances or the extensive potentialities of the science. However

for success,

besides laborious laboratory work, it is necessary that the police correctly collects the correct clues, the counsel links the clues with the accused and the judge utilizes the expertise. If they fail to do so, the whole edifice built on science crumbles down. And it does happen in the courts frequently.

The reason for the debacle is not far to seek. The multi-discipline and multi-professional nature of forensic science needs an inter-professional approach. No such approach has been made. There is no book on the subject which provides a meeting ground for the professions involved—where the police officer can understand not only his own work but he also understands the requirements of the scientist, the lawyer and the judge and vice versa. Books have been written on the subject by authors belonging to all involved professions. Some of the books are excellent; but they are useful to the members of the professions of the authors only. They can hardly be read by members of the other professions. The intra-professional barriers have remained uncrossed. In the present work, a serious attempt has been made to eliminate personal and professional bias and to delineate objectively the fundamentals and the parts and duties of the involved professions in a non-technical language. It is believed that the text can be understood even by a non-science student. It is hoped that the format chosen is sufficient to provide basic understanding of the science to the persons concerned and to enable them to carry out their functions more efficiently. The various chapters of the book cover one important topic each. They are divided into sub-topics: importance, nature, problems, location, collection, evaluation, legal aspects, presentation, case law and bibliography. Thus the main needs of the various professions are covered in these sub-topics. A book involving many disciplines and many professions necessarily has its limitations. I seek, on the score, the indulgence of the readers. May I request them to point out the same to me (or to the publishers)? All suggestions for the improvement of the book will be thankfully received and_ personally acknowledged. B.R. SHARMA

Acknowledgement I am thankful to all who have helped me by way of guidance, advice, furnishing useful material and literature and encouragement, which has made it possible to revise this book extensively to create almost a new book. I am particularly thankful to: 1; Shri D.R. Sharma and Mrs. Nathi Sharma, who provided the necessary

encouragement and blessings, to carry out the work. . The Forensic Scientists: Dr. R.S. Verma, Director C.F.S.L., Chandigarh, Dr. S.K. Jain, Mr. Geroti, Dr. Sukhbinder Kaur, Dr. J.K. Sinha, Dr. S.N.

Sharma

(all of Chandigarh), Dr. L.A. Kumar

(Madhuban, Haryana),

Dr. Arun Sharma (Shimla), Dr. J.R. Gaur (Shimla), Dr. S.N. Tewari (Agra),

Dr. M.S. Rao (Chief Forensic Scientist, New Delhi), Dr. C.N. Bhattacharya (Hyderabad), Dr. B.N. Mattoo (Mumbai), Dr. J.K. Modi (NICFS, Delhi), Shri Rup Singh (Formerly of CBI), Dr. Peush Kapila (IGMC, Shimla), Dr. (Prof.) Dalbir Singh (PGIMRE, Chandigarh). . Computer specialists: M/s Anil Sharma, Aditya Sharma, Devika, Vina

Sharma and Sudarshan Sharma for setting most of the book on computer, for improving the manuscript, preparing drawings and photographs, charts, illustrations, correcting the manuscript and thus making this revised version of the book possible. . Shri R.L. Sharma, R.K. Sharma, Ashok Sharma, Mrs. Anjula Khajuria who provided the necessary input vis-a-vis the legal aspects including the sprawling Case Law, which give the necessary output in the ultimate analysis of the expert evidence. . My wife, Smt. Ishri Devi, who has to suffer from my labours. . My Publishers who have been very patient with my procrastinations. . The editors and producers of my publishers who have taken so much pains to make the book such an excellent production. B.R. SHARMA

CONTENTS * Preface to the Fourth Edition * Introduction to the Third Edition ¢ Foreword to the Third Edition ° Preface to the First Edition ¢ Acknowledgement e Table of Cases (Supplement only) ¢ Table of Cases Supplement 2005

lvi

lvii S1toS24

Chapter 1

INTRODUCTION 1.1 NATURE 1.2 NEED 1.2.1 Social Changes 1.2.2 Anonymity 1.2.3. Technical Knowledge 1.2.4 Wide Field 1.2.5 Better Evidence 1.2.6 Alternatives 1.3 FUNCTIONS 1.4 DEVELOPMENT

Oo SN CON 0

1.4.1 Academic Courses 1.4.2 Research 1.4.3 Dissemination 1.5 PRINCIPLES 1.5.1 Law of Individuality 1.5.2 Principle of Exchange 1.5.3 Law of Progressive Change 1.5.4 Principle of Comparison 1.5.5 Principle of Analysis 1.5.6 Law of Probability 1.5.7 Facts Do Not Lie 1.66 TOOLS AND TECHNIQUES 1.6.1 Measurements 1.6.2 Microscopy 1.6.3 Photography 1.6.4 Invisible Rays 1.6.5 Chromatography

1.6.5.1 1.6.5.2 1.6.5.3 1.6.5.4

NY NO eS eR RP = Re RR RRR

23

Column Chromatography Thin Layer Chromatography Gas Liquid Chromatography (GLC) High Performance Liquid Chromatography (HPLC)

1.6.5.5 GC-MS/ LC-MS

NY NY NNN W > an

|

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1.6.6 Electrophoresis 1.6.7 Spectrography 1.6.8 Laser Microprobe 1.6.9 Mass Spectrometry 1.6.10 Spectrophotometzy 1.6.11 Neutron Activation Analysis 1.6.12 X-rays Diffraction Analysis 1.6.13 DTA, NMR, and Polarography 1.6.14 Scanning Electron Microscopy (SEM) 1.7 FORENSIC SCIENCE INSTITUTIONS 1.7.1 Forensic Science Laboratory 1.7 -4:4 Services 1.7.1.2 Library 1.7.1.3

1.7.2

Functions

Other Institutions

W723

Fingerprint Bureau

1.7.2.2

Government Examiners of Documents

1.7.2.3. Mobile Laboratories 1.7.2.4 Scientific CID Sections

1.7.2.5 Computer Divisions 1.7.3. Practical Aspects 1.8 PROBLEMS OF PROOF 1.8.1

General

1.8.2 Scientific Evidence and Proof 1.8.3. Investigative Problems 1.8.4 Scientific Aspects 1.8.5 Legal Problems 1.9 EXPERT TESTIMONY 1.9.1 The Expert 1.9.2 Report 1.9.3

Illustrations

1.9.4 Language 1.9.5

The Prosecution Counsel

LFS Lule i 1.9.5.4 LSD 1.9.5.6

Establish the Bona fide of the Expert Understands the Evidence Ensures Induction of Demonstrative Testimony Anticipates the Defence Line Handles Inconclusive Report Effectively Listen to the Cross-examination Attentively

1.9.6

Defence Counsel

1.9.7.

Additional Details

1.10 THE COURT

1.10.1

Fallacies About Expert Evidence

&

CONTENTS

1.11 1.12

1.13

TIME ELEMENT LAW IN FORENSIC SCIENCE be Enacted Law 1.12.1.1 The Indian Constitution

xii

56 57 57 58

1.12.1.2

The Indian Evidence Act.

58

1.12.1.3

Code of Criminal Procedure, 1973

60

1.12.1.4 CASE LAW

The Identification of Prisoners Act

61

1.13.1 4.13,2 1.13.3 1.13.4 1.13.5 1.13.6

1.13.7 1.13.8 1.13.9 1.13.10 1.13.11 1d3 2 1.13.13 1.13.14 1.13.15 1.13.16 1.13.17 1.13.18 1.13.19

1.13.20

113,21

Reports under section 293 Cri PC (1973) Reports Admissible Death Penalty Case Law Binding Presumption of Innocence The Evidence 1.13.6.1 Good evidence 1.13.6.2 Eye-witness accounts Corpus Delicti 1.13.7.1 Corroboration Insufficient evidence Improper Identity Third Degree Methods Police Padding Stock Witness Circumstantial Evidence 1.13.13.1 Chain of circumstances complete Trap evidence Time element Testimonial compulsion Minority judgment Voluntary Confession Investigating Officer 1.13.19.1 Trustworthiness of police 1.13.19.2 Immediate despatch 1.13.19.3 Identification marks 1.13.19.4 Chain of custody Expert 1.13.20.1 Value 1.13.20.2 Appearance 1.13.20.3 Data necessary 1.13.20.4 Language 1.13.20.5 Reports Prosecution 1.13.21.1 Prove contents 1.13.21.2 Counter-complaints

61 6l 66 69 Fé) “he! 76 76 77 80 81 83 83 83 86 87 88 93 95 100 101 109 hid 113 lis 114 115 115 17 117 118 118 119 120 121 121 121

FORENSIC

xiv

1.13.22 1.13.23

SCIENCE

INVESTIGATION

AND

TRIALS

122 122 122 123 125 126

Duties of the Defence The Court 1.13.23.1 Duties 1.13.23.2

1.13.24 1.13.25

IN CRIMINAL

Powers

Strictures Fair criticism of courts

Chapter 2

SCENE OF OCCURRENCE 2.1 2.2 2.3 2.4

IMPORTANCE THE PROBLEMS LOCATION EVALUATION 2.4.1 Protection 2.4.2 Photography 2.4.2.1 Camera 2.4.2.2 Coverage 2.4.2.3. Photographic exhibits 2.4.2.4 Recent advances 2.4.3 Sketching 2.4.3.1 Co-ordinate method 2.4.3.2 Polar technique 2.4.3.3 Height determination 2.4.4 Search 2.4.4.1 Zonal method 2.4.4.2 Spiral method 2.4.4.3 Strip method 2.4.4.4 Cross-hatch search method 2.4.5 Equipment 2.4.6 Handling clues 2.4.6.1 Recording 2.5 MODERN AIDS 2.5.1 Investigator’s kit 2.5.2 Mobile laboratory 2.5.3 Flying squads 2.5.4 Expert Help 2.5.5 Police dogs 2.6 SCENE MANAGEMENT DOCUMENTATION 2.7 CASE LAW 2.7.1 Location of the Scene 2.7.2 Preservation and Guarding of the Scene 2.7.3 Defective Collection, Chain of Custody /Authority 2.7.4 Identity of the Scene

132 132 133 133 133 135 136 137 138 140 141 142 144 144 145 145 146 146 147 147 147 149 152 152 152 154 154 156 158 163 163 164 165 165

CONTENTS

XV

2.7.5 Manipulation of the Scene 2.7.6 Police Dogs Identification 2.7.7 Detective Dyes—Trap Evidence

165 167 174

Chapter 3 FORENSIC PSYCHOLOGY 3.1

DEFINITION

182

3.2 IMPORTANCE 3.2.1 Psychosomatic subtle changes 3.2.2 Brain activity 3.3 NATURE 3.4 CLASSIFICATION 3.4.1 Clinical Forensic Psychology 3.4.2 Experimental Forensic Psychology 3.4.3 Statistical Forensic Psychology 3.4.4 Forensic Psychotherapy 3.4.5 Forensic Psychological Consultancy 3.5 PROBLEMS 3.6 COLLECTION OF EVIDENCE 3.6.1 Case History Studies 3.6.2 Observations 3.6.3. Interviews and Interrogations 3.6.4 Experimental Approach 3.7 PSYCHOLOGY IN INTERROGATION 3.7.1 Psycho-physiological Detection of Deception (PDD) 3.7.2 Scientific Basis 3.7.3, Method 3.7.3.1

Relevant- Irrelevant Question Technique

3.7.3.2 Peak of Tension Technique (POT) 3.7.3.3, Controlled Question Technique 3.74 Operational Environment 3.7.4.1 The Examiner 3.7.4.2 The Subject 3.74.3 Interrogation Room 3.7.4.4 Subject’s Rights 3.7.5 Application and Utility 3.7.6 Limitations 3.7.7 Criticism, Rebuttal 3.7.8 Legal Status 3.8 RECENT ADVANCES IN DETECTION OF DECEPTION 3.8.1 New Input Devices 3.8.2. Non-Invasive Sensors/Transducers 3.8.3. Psychological Stress Evaluator

182 185 185 185 185 186 186 187 188 188 189 190 190 191 191 192 192 192 193 194 (RIQ)

196

196 197 197 197 198 198 198 198 199 199 200 201 202 202 202

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203 204 204 205 205 206 206 208

3.9 HYPNOSIS 3.10 TRUTH SERUM 3.11 BRAIN PRINTING 3.11.1 Importance 3.11.2 Process 3.12 CASE LAW 3.12.1 Lie Detector Evidence 3.12.2 Insanity as Defence

Chapter4

COMPUTERS 4.1 IMPORTANCE 4.1.1

Police work

4.1.2

Forensic Science 4.1.2.1 Criminalistics

4.1.2.2 4.1.2.3 4.1.2.4 4.1.2.5

Chemical Analysis Biological Analysis DNA Profiling Anthropological Evidence

4.1.2.6

Facial Reconstruction

4.1.2.7 Skull Superimposition 4.1.3 Medico-Legal Work 4.1.3.1 Subcutaneous Injuries 4.1.3.2

Post-mortem Examination

4.1.3.3. Medico-legal Research 4.2 COMPUTERS AND LAW 4.3 NATURE 4.34 5CPU

4.3.2 Input Devices 4.3.3, Output Devices 4.4 COMPUTER WORK 4.5 COMPUTER CRIMES 4.5.1

Nature

4.5.2

Motives

4.5.3 Characteristics

4.5.4 Investigative Impediments 4.5.4.1

Hi-tech Crime

4.5.4.2 4.5.4.3

International Crime No-Scene Crime

4.5.4.4 Faceless Crime 4.5.4.5 No-time Crime 4.5.5 Classification

4.5.5.1

Information Piracy and vandalism

4.5.5.2

Theft of Information Services

214 214 215 215 216 217 217 218 218 218 218 219 219 219 219

CONTENTS

4.6

4.7

4.8 4.9

4.5.5.3 Organised crime 4.5.5.4 Infringement of copyrights 4.5.5.5 Theft 4.5.5.6 Wire Tapping 4.5.5.7 Data Destruction 4.5.5.8 Virus 4.5.5.9 Logic Bombs 4.5.5.10 Spy Software 4.5.5.11 Money Laundering 4.5.5.12 Electronic Funds Transfer 4.5.5.13. Electronic Personation 4.5.5.14 Hackers 4.5.5.15 Crackers 4.5.5.16 Software Piracy COMPUTER CRIMINALS 4.6.1 Employees 4.6.2 Computer Experts 4.6.3 Other computer criminals 4.6.4 Handling 4.6.5 Laws, Legislation PREVENTION 4.7.1 The Basics 4.7.2 Access 4.7.2.1 Passwords 4.7.2.2 Cards 4.7.2.3, Biometrics 4.7.3 Secrecy 4.7.4 Integrity 4.7.4.1 Staff 4.7.4.2 Accountability 4.74.3 Logging 4.74.4 Encryption 4.7.4.5 Physical Protection COMPUTER CRIME INVESTIGATION 4.8.1 Basics of Investigation CASE LAW 4.9.1 Computer Records Confession

xvVil

225 225 225 226 226 226 226 227 227 227 228 228 229 229 229

229 230 230 231 231 Zak 232 232 232

233 230

233 pie 234 234 235 235 236

236 236 237

237

Chapter5

VOICE 5.1

INTRODUCTION

5.2

IMPORTANCE

5.3 NATURE 5.3.1 Phonemes

ANALYSIS 241 242 243 244

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5.3.2 Variations in Voice 5.4 PROBLEMS 5.4.1 Telephone Utterance 5.4.2 Wire Tapping 5.4.3 Controlled Voice 5.4.4 Transmission Channel 5.4.5 Miscellaneous 5.5 COLLECTION 5.5.1 Mechanical Mode 5.5.2 Magnetic Mode 5.5.3 Electronic Mode 5.5.4 Optical Mode 5.6 EVALUATION 5.6.1 Listening (SRL)

5.6.2. Computer Analysis 5.6.3 Sound Spectrograph 5.6.4

Automatic Speaker Recognition (ASR)

5.6.4.1 Feature Extraction 5.6.4.2 Feature Comparison 5.6.4.3. Normalisation 5.7 INTERPRETATION 5.8 MISCELLANEOUS 5.8.1 Psycho-linguistic Profiling

5.8.2 Integrity of Recorded Voice 5.8.3. Transcription 5.9 CASE LAW 5.9.1 Tape Recorded Voice 5.9.2 Tape Recorded Evidence Chapter6

FINGERPRINTS 6.1 IMPORTANCE

6.1.1 Unique 6.1.2

Permanent

6.1.3 Universal . 6.1.4 Inimitable 6.1.5 Classifiable 6.2 NATURE 6.2.1 Classification 6.2.2 Arches 6.2.3 Loops 6.2.4 Whorls 6.2.5 Composites 6.2.6 Accidentals

AND

TRIALS

CONTENTS.

6.3

6.4

6.5 6.6 6.7

6.8

6.2.7 Individuality Features LOCATION 6.3.1 Routes 6.3.2 Vehicles 6.3.3 Scene of Occurrence 6.3.3.1 Bathrooms 6.3.3.2 Utensils 6.3.3.3. Leftover Objects 6.3.4 Documents 6.3.5 Dead Bodies 6.3.6 Search 6.3.7 Development Techniques 6.3.7.1 Powder Development 6.3.7.2. Chemical Methods 6.3.7.3. Wet Methods for Latent Prints 6.3.8 Fuming Techniques - 6.3.8.1 Iodine Fuming 6.3.8.2 Cyanoacrylate Fuming 6.3.8.3 Metallic Vapour Fuming 6.3.9 Laser Development COLLECTION 6.4.1 Articles 6.4.2 Photography 6.4.3 Lifts 6.4.3.1 Technique 6.4.4 Plastic Print 6.4.5 Fingerprints From Dead Bodies 6.4.6 Fingerprints in Dust 6.4.7 Specimen Prints 6.4.7.1 Technique 6.4.7.2 Precautions 6.4.8 Single Digit System 6.4.9. Computers in Fingerprints EVALUATION PRESENTATION LEGAL ASPECTS 6.7.1 Specimens and the Constitution 6.7.2 Authorities 6.7.3 Fingerprint Experts 6.74 Fingerprints Reports MISCELLANEOUS 6.8.1 Palm and Sole Prints 6.8.2 Poroscopy 6.8.3 Body Prints

xix

270 271 272 272 272 272 22 273 273 273 274 274 274 275 275 276 276 276 27h 277 279 279 279 280 281 281 281 282 282 285

285 285 286 288 289 291 291 291 291 291 291 291 292 292

FORENSIC

XX

SCIENCE

IN CRIMINAL

INVESTIGATION

AND

292 292 293 293

6.8.4 Fingerprints of Twins 6.8.5 Transmission 6.9 CASE LAW 6.9.1 Expert Necessary 6.9.2 Fingerprint Evidence 6.9.3 Sufficient Evidence 6.9.4 Improper Presentation 6.9.5 6.9.6 6.9.7 6.9.8 6.9.9 6.9.10 6.9.11 6.9.12

297

Uncorroborated Evidence The Court’s Scrutiny Fingerprint Reports Fingerprints: Identification Basis Recovery relating to fingerprint evidence doubtful Fingerprint evidence rejected Judge not to act as fingerprint expert Nonavailability of Fingerprint Evidence not Fatal

Chapter 7

TRACK

MARKS

7.1 IMPORTANCE 7.2 NATURE 7odek Naked Footmarks ype a2? Footwear Marks 7.2.3

Gait Pattern

7.2.4 Footwear 725 Extraneous Matter 7.3 PROBLEMS 7.4 LOCATION 7.4.1 The Scene 7.4.2 The Routes 7.4.3 Conference Site

744

Parking Place

7.5 COLLECTION

7.6

TRIALS

7.5.1 Techniques 7.5.1.1 Tracing 7.5.1.2 Photography 7.5.1.3 Lifting 7.5.1.4 Casts 7.5.1.5 Impression in mud 7.5.1.6 Impressions in snow 7.5.1.7 Specimens 7.5.1.8 Plaster of Paris RECENT TECHNIQUES 7.6.1 Holography 7.6.2 Electrostatic technique

CONTENTS

7.6.3. Periphography 7.7.4 Latent prints 7.6.5 Silicone casts 7.7 EVALUATION 7.7.1. Naked footmarks 7.7.1.1 Margins 7.7.1.2 Toe marks 7.7.1.3 Toe or ball line 7.7.1.4 Phalange marks 7.7.1.5 Crease marks 7.7.1.6

Pits, cracks and cut marks

7.7.2 Footwear marks 7.7.2.1 Wear patterns 7.7.2.2 Repairs 7.7.2.3, Craftsmanship 7.7.2.4 Damage 7.7.2.5 Foreign matter 7.7.3, Hoof Marks 7.74 Paw Marks 7.7.5 Tyre Marks 7.7.6 Gait Pattern 7.7.7 Identification Techniques 7.7.7.1. Measurements 7.7.7.2 Side by side comparison 7.7.7.3, Photographic superimposition 7.7.74 Adhesive tape superimposition 7.7.7.5 Composite match 7.7.8 Pressure Pattern Evaluation 7.7.9 Skid Marks 7.8 PRESENTATION 7.9 ACCEPTABILITY 7.9.1 Law and the Science 7.9.2 Law and the Specimens

7.9.3 Recognition of the Expertise 7.10 CASE LAW 7.10.1 Non-acceptability of Evidence 7.10.2 Admissibility 7.10.3 Footwear Evidence—Police Padding 7.10.4 Improper Testimony 7.10.5 Footprint Evidence—No Data

xxl

343 343 343 344 345 345 346 346 346 347 347 347 348 349 350 350 350 351 351 351 352 352 S03 353 353 393 353 353 354 354 356 356 356 356 361 361 362 367 371 376

xxii

FORENSIC

SCIENCE

IN CRIMINAL

INVESTIGATION

AND

TRIALS

Chapter 8

TOOL

MARKS

8.1 IMPORTANCE 8.1.1 Frequency 8.1.2 Permanency 8.1.3 Individuality

8.1.4 Linkage 8.1.5

Reconstruction

8.2 NATURE 8.2.1 Indentations

8.2.2 Scrapes 8.2.3. Saw Marks

8.2.4

Drill Holes

8.2.5 8.2.6

Prints Broken or Severed Parts

8.2.7 Contact Marks 8.2.8 Extraneous Material

8.3 LOCATION 8.4 COLLECTION 8.4.1 Articles 8.4.2 Casts 8.4.2.1 8.4.2.2

Plasticine Dental mass

8.4.2.3 Adhesive tape 8.4.2.4 Latex and plastic solutions 8.4.2.5

Wood’s metal

8.4.2.6

Plaster of Paris

8.4.3 Packing 8.4.4 Standards

8.4.5 Extraneous materials 8.4.5.1

Questioned traces

8.4.5.2 Standards 8.5 EVALUATION

8.5.1 Principles 8.5.2 Techniques 8.5.2.1

Mechanical fit

8.5.2.2 8.5.2.3 8.5.2.4 8.5.2.5

Side by side match Composite match Striagraphy Superimposition

8.5.3 Sufficient Evidence 8.6 CASE LAW

8.6.1

Button Evidence

8.6.2, Mechanical Fit

381 381 381 381 381 381 382 382 383 383 383 384 386 387 388 388 389 389 390 390 390 390 390 391 391 391 391 392 392 392 392 392 392 393 394 394 395 395 396 397 397 397

CONTENTS

XXili

Chapter9

FIREARMS 9.1

IMPORTANCE 9.2 NATURE

406 406

9.2.1

Firearms

406

9.2.2

Firearm Parts

407

9.2.2.1

Barrel

407

9.2.2.2

Action

407

9.2.2.3

Stock

407

9.2.2.4

Firing pin or striker

408

9.2.2.5 9.2.2.6

Breech face Chamber

409 410

9.2.2.7 Extractor and ejector

410

9.2.2.8

Barrel

410

9.2.2.9

Choked barrels

410

9.2.2.10 Leed 9.2.3 Classification 9.2.3.1 Smooth bore 9.2.3.2 Rifled bore

411 412 412 412

9.2.4 Single-Shot Firearms 9.2.5 Repeaters

413 413

9.2.6

9.2.5.1

Self-loaders

413

9.2.5.2

Automatics

413

9.2.5.3

Assault rifles

413

Ammunition

413

9.2.6.1 9.2.6.2 9.2.6.3 9.2.6.4 9.2.6.5

Case-less cartridges Smokeless powder Gunpowder Projectiles Cartridge case

414 414 415 415 417

9.2.6.6

Wads

417

9.2.7 The Firing Process 9.3 THE PROBLEMS

94

418 419

9.3.1

Firearms

419

9.3.2

Fired Ammunition

420

9.3.3. Firearm Injuries 9.3.4 Medico-legal Problems

421 421

9.3.5

Muzzle-Loaders

421

9.3.6

Live Ammunition

422

LOCATION 9.4.1 The Victim

9.4.2 The Culprit

422 422

422

94.3

The Scene of Occurrence

423

9.4.4

The Firearm

424

Xxiv

FORENSIC

SCIENCE

IN CRIMINAL

INVESTIGATION

AND

TRIALS

9.4.5 The Ammunition 9.5 COLLECTION 9.5.1 Firearm 9.5.2 Cartridge Cases 9:5.3 Bullets 9.5.4 Slugs and Shots 9:5.5 Clothes

9.5.6 Live Ammunition 9.5.7 Glass Fragments 9.5.8 Discharge Residues 9.5.9 Injuries 9.5.10 Bullet Holes 9.5.11 Test Exhibits 9.6 EVALUATION 9.6.1 Principles 96.2 Class and Individual Marks 9.6.3 Test Exhibits 9.6.3.1 Ammunition

9.6.3.2 No firearms 9.6.3.3 Defective firearms 9.6.3.4 High velocity rifles 9.6.3.5 Damaged firearms 9.6.3.6 Recovery 9.6.3.7 Cleaning 9.6.4 Examination 9.6.5 Stereoscopy 9.6.6 Comparison Miscroscope TGF Comparison camera 9.6.8 Striagraph 9.6.9 Periphery camera 9.6.10 Photographic comparison 9.7 SPECIAL SITUATION 9.7.1 Damaged Cartridge Cases 272 Damaged Bullets = ee Burnt Bullets and Cartridge Cases 9.7.4 Smooth Barrel Marks 9.70 Buckshots and Pellets 9.7.6 No Firearm 9.8 GUNSHOT RESIDUES 9.8.1 Nature 9.8.1.1 9.8.1.2 Location

9.8.2 9.8.3 Detection

Black Powder Residues Smokeless Powder Residues

431 431 431 432 432 432 433 433 433

435

CONTENTS 9.8.4

Collection

9.8.4.1 Dry methods 9.8.4.2 Wet methods 9.8.4.3 Collection of organic residues 9.8.5

Evaluations

91 9.8.5.2 9.8.5.3 9.8.5.4 95-55 9.8.5.6 965.7 9.8.5.8 9.6.5.9 9.8.5.10 9.8.5.11 9.9 RANGE OF FIRE 9.9.1

Visual examination Infra-red photography Soft X-rays radiography Dermal nitrate test Walker’s test Harrison and Gilroy’s test Price’s spot test Neutron activation analysis Flame-less atomic absorption spectrometry

Scanning Electron Microscopy (SEM) X-Ray fluorescence

Muzzle Patterns

9.9.2 Scorching

9.10

9.9.3

Blackening

9.9.4

Tattooing

9.9.5

Powder Residues

9.9.6

Metal Particles

9.9.7

Wad Distribution

9.9.8

Pellet Patterns

9.9.9 Direction of Wound FIREARM INJURIES 9.10.1

Nature

9.10.2

Wound Ballistics

9.10.2.1 Fn ake 9.10.2.3 9.10.2.4 9.10.3

The target site The velocity Constructional features Range

Identification

9.10.3.1 Pink coloration 9103.2 Blackening 9.10.3.3 Tattooing 9.10.3.4 Dirt ring 9.10.3.5 Foreign materials 9.10.3.6 Charring 9.10.3.7 Contusion 9.10.3.8 Characteristic wounds Postmortem Reports

9.10.4 9.10.5 Evaluation

XXVi

FORENSIC

9.10.6

9.11

9.12

9.13

9.14

9.15

SCIENCE

IN CRIMINAL

INVESTIGATION

AND

TRIALS

Injury

9.10.7 Nature of Firearms 9.10.7.1 Pistol and revolver injuries 9.10.7.2 Rifle injuries 9.10.7.3 Shotgun injuries 9.10.7.4 Muzzle-loading firearm injuries 9.10.7.5 Zip guns injuries 9.10.8 Postmortem or Antemortem Injuries 9.10.9 Fatal Injuries 9.10.9.1 Extraordinary acts 9.10.10 Age of Injuries RECONSTRUCTIONS 9:41.1 Scene 9.11.2 Photographs of the Scene 9.11.3. Victim’s Clothes 9.11.4 Medico-legal Report 9.11.5 Arms and Ammunition 9.11.6 Basic Ballistics DURATION OF FIRE 9.12.1 Gunpowder Residue 9.12.2 Carbon Monoxide 9.12.3 Mercury 9.12.4 Bloodstains and Flesh 9.12.5 Rust 9.12.6 Dust 9.12.7 Nitrite Variations MUZZLE-LOADING FIREARMS 9.13.1 Percussion Caps 9.13.2 Projectile Charge 9.13.3. Wads 9.13.4 Powder Charge IMPROVISED FIREARMS 9.14.1 Importance 9.14.2 Classification 9.14.3 Characteristics 9.14.3.1 Barrel 9.14.3.2 Chamber 9.14.3.3. Action 9.14.3.4 Lock 9.14.4 Firing Process 9.14.5 Evaluation MISCELLANEOUS 9.15.1 Freak Firearms 9.15.2 Toy Firearms

470 470 470 470 470 471 471 471 472 472 472 473 473 474 476 476 477 477 477 478

CONTENTS

XXVii

9.15.3. Penetration Power 9.15.4 Range of Firearms 9.15.5 Comparative Calibres

478 478 479

9.15.6

480

Bore Diameters

9.15.7 Conversion Barrels 9.16 PRESENTATION OF EVIDENCE 9.16.1 The Expert 9.16.2 Exhibits 9.16.3 Experimental Data 9.16.4 Illustrations 9.16.4.1 Cartridge cases 9.16.4.2 Bullets 9.16.4.3 Range 9.16.5 Medical Evidence 9.16.6 Language of the Experts 9.16.7 Cross-Examination 9.16.7.1 To discredit the expert witness 9.16.7.2 To clarify evidence 9.16.7.3 To prove inadequacy 9.16.7.4 To elicit additional evidence 9.16.8 The Court and the Expert 9.17 CASE LAW 9.17.1 Unsatisfactory Report 9.17.2 Photographs not indispensable 9.17.3 Ballistic expert’s vacillating Report 9.17.4 Scientific Evidence v. Eyewitness Account 9.17.5 Acceptability 9.17.6 Expert Evidence not Essential 9.17.7 Inconclusive or Negative Evidence 9.17.8 Linking Evidence 9.17.9 Bona fide of Expert 9.17.10 Inordinate Delay 9.17.11 Inadequate Evidence 9.17.12 Data 9.17.13 Contradictory Evidence 9.17.14 Number of Firearms 9.17.15 Illusory Discrepancy 9.17.16 Number of Murderers and the Murdered 9.17.17 Missed Cartridge as Evidence 9.17.18 Wads as Evidence 9.17.19 Firearm Evidence 9.17.20 Location and Recovery of Projectiles through X-Rays 9.17.21 Non-Recovery of Projectiles 9.17.22 Safe Custody and Genuine Recovery

480 480 480 481 481 481 482 482 483 483 483 483 483 484 484 484 484 487 487 488 489 490 491 494 496 496 497 497 497 498 498 499 500 500 501 502 502 503 504 505

xxviii

©FORENSIC

SCIENCE

IN CRIMINAL

INVESTIGATION

9.17.23 Critical Appraisal of Identification Evidence 9.17.24 Range of Fire 9.17.25 Injury-Firearm Linkage 9.17.26 9.17.27

Identification of Firearm Injuries Dimensions of Injuries

9.17.28 Firearm Injury Frauds 9.17.29 Close-Range Phenomena 9.17.30

Self-Defence or Murder

9.17.31 9.17.32 9.17.33 9.17.34 9.17.35 9.17.36

Tragedy Accident Direction Number Number Carrying

9.17.37

Scene of Occurrence, the Dispersal of Shots, etc.

AND

TRIALS

506 507 510 510 511

512 512 514

517 519 521 526 527 532

of Errors or Murder of Fire of Firearms of Shots Gun

533

9.17.38 Correct or Incorrect Inference

534

9.17.39 Sequence or Events 9.17.40 Conflicting Versions

535 537

9.17.41 9.17.42

Presentation Insufficient Data

541 546

9.17.43 Probable and Categorical Evidence

547

Enhance or Exit Wound? Ballistic Evidence Essential

549 551

9.17.44 9.17.45

Chapter 10

DOCUMENTS 10.1 IMPORTANCE 10.2 NATURE 10.2.1

Letters

10.2.2

Financial Documents

10.2.3 10.2.4 10.2.5 10.2.6 10.2.7

Orders Records Tickets Examination Papers Wills

10.2.8 10.2.9

Historical Documents Posters

10.2.10

Books

10.2.11

Burnt or Damaged Documents

10.3 THE PROBLEMS

10.3.1

Handwriting 10.3.1.1 Holograph 10.3.1.2 Anonymous letters 10.3.1.3

Alterations

SSE L RAS GR SS 570 570 570

CONTENTS

10.3.1.4 Figures and mark 10.3.2 Typescript 10.3.3 Writing Materials 10.3.3.1 Paper 10.3.3.2 Inks 10.3.3.3 Pen 10.3.3.4 Pencil 10.3.3.5 Erasers 10.3.4 Mechanical match 10.3.5 Burnt Documents 10.3.6 Secret Writings 10.3.7 Miscellaneous 10.3.7.1 Erasures 10.3.7.2 Indented writing 10.3.7.3. Sequence of stroke 10.3.7.4 Gum, adhesive and sealing wax 10.4 LOCATION 10.4.1 The Victim 10.4.2 The Culprit 10.4.3 The Office 10.4.4 The Lockers 10.4.5 Other Sources 10.4.6 Admitted Writings 10.5 COLLECTION 10.5.1 Admitted Writings 10.5.1.1 Authenticity 10.5.1.2 Period 10.5.1.3 ‘Like’ admitted writings 10.5.1.4 Admitted text and questioned signatures 10.5.2 Request Specimens 10.5.3 Typescript Specimens 10.5.4 Burnt Documents 10.5.5 Fragile Documents 10.5.6 Damaged or Torn Documents 10.5.7 Preservation of Documents 10.5.7.1 Lamination 10.5.7.2. Minimum handling 10.5.7.3 Exposure 10.5.7.4 Identification marks 10.5.7.5 Alterations 10.5.7.6 Torn documents 10.5.7.7 No new folds 10.5.7.8 Chemical treatment 10.5.8 Record

XX1X

570 570 571 571 S72 572 572 572 572 574 574 574 574 574 575 57S 575 575 575 575 575 576 576 576 576 S77 oe 577 578 578 Meige| 581 581 581 581 581 581 582 582 582 582 - 582 582 582

FORENSIC

XXX

SCIENCE

IN CRIMINAL

INVESTIGATION

TRIALS

582

10.5.9 Legal Possession 10.5.10 10.5.11

Reference marks Unusual Circumstances

582 583

10.5.12 10.5.13

Transport Movement

583 583

10.6 EVALUATION. 10.6.1

583 583

Preliminary Examination

10.6.2 Basic Equipment

584

Principles

584

10.6.3.

10.6.4

10.6.3.1

Individuality

584

10.6.3.2

Natural Variations

585

10.6.3.3. Fundamental Divergences

585

10.6.3.4

585

Personal Features

General Qualities

10.6.4.1 10.6.4.2 10.6.4.3 10.6.4.4

:

AND

586

Pictorial effect Rhythm Style Movement

10.6.4.5 Pen position 10.6.4.6 Line quality 10.6.4.7 Skill 10.6.4.8 Tremors 10.6.5 Writing Habits 10.6.5.1 Headings 10.6.5.2 Pet words and phrases 10.6.5.3 Paragraphing 10.6.5.4 Spacing 10.6.5.5 Alignment 10.6.5.6 Punctuation 10.6.5.7 Figures and abbreviations 10.6.6 Individual Characteristics 10.6.6.1_ Pen pressure 10.6.6.2 Shading

586 586 587 587

.

587 588 589 589 589 589 589 589 590 590 590 590 590 590 590

10.6.6.3

Pen pause

591

10.6.6.4

Pen lifts

591

10.6.6.5 Starting and ending strokes

591

10.6.6.6

Hesitations

591

10.6.6.7

Retouchings

592

10.6.6.8 10.6.6.9

Embellishments Abbreviations

592 592

\

10.6.6.10 10.6.6.11 10.6.6.12

Placings Slope Size

592 592 592

10.6.6.13

Connective strokes

593

CONTENTS 10.6.7

10.7

Language SPECIFIC PROBLEMS 10.7.1 Simulated Forgeries 10.7.2 Simulated Forgery Indicators 10.7.3 Genuine Signatures 10.7.4 Traced Forgeries

10.7.5

10.7.6

10.7.7 10.7.8 10.7.9 10.7.10 10.7.11 10.7.12

10.8

TYPE MATERIAL

10.8.1 10.8.2

10.9

10.7.4.1 Carbon copy tracing 10.7.4.2 Indented tracing 10.7.4.3 Tracing paper 10.7.4.4 Transmitted image 10.7.4.5 Scanned image Identification 10.7.5.1 Model 10.7.5.2 Trace residues 10.7.5.3. Duplication Disguised Handwriting 10.7.6.1 Characteristics 10.7.6.2 Identification of disguise Forgery over Genuine Signatures Transplanted Signatures Genuine Writing Denied Hand-Printing and Block-Lettering Additions and Substitutions Anonymous Letters 10.7.12.1 Contents 10.7.12.2 Authorship Identification Principles 10.8.2.1 Features Age of Typescript Typist Alterations Alteration check points Make and Model Other Writing Machines

10.8.3 10.8.4 10.8.5 10.8.6 10.8.7 10.8.8 INKS 10.9.1 Nature

10.9.1.1

Indian ink

10.9.1.2

Iron tannate ink

10.9.1.3 Dyestuff inks 10.9.1.4 Ball pen inks 10.9.1.5 Logwood inks 10.9.1.6

Alkaline inks

XXXl

593 594 594 595 597 597 597 598 599 a9 599 — 599 599 599 600 600 601 602 603 604 604 605 605 606 606 607 607 607 608 610 611 611 611 611 612 612 612 612 612 612 612 613 613

XXX

10.10

10.11

10.12

10.13 10.14 10.15 10.16 10.17 10.18 10.19

FORENSIC

SCIENCE

IN CRIMINAL

INVESTIGATION

10.9.1.7 Special inks 10.9.2 Pencils 10.9.3 Examination 10.9.3.1 Visual examination 10.9.3.2 Magnifiers 10.9.3.3 Filters 10.9.3.4 Invisible rays 10.9.3.5 Spectrographic analysis 10.9.3.6 Chemical tests 10.9.3.7. Chromatographic analysis 10.9.3.8 Electrophoresis 10.9.3.9 Spectrophotometry 10.9.4 Video Spectral Comparator 10.9.5 Age of Ink 10.9.5.1 Colour changes 10.9.5.2 Smudging 10.9.5.3 Diffusion pictures 10.9.6 Ink age markers 10.9.7 Faded Writings PAPER 10.10.1 Nature 10.10.2 Examination ERASURES 10.11.1 Techniques 10.11.2 Detection 10.11.2.1 Dimensions 10.11.2.2 Lighting 10.11.2.3 Stereoscopy 10.11.2.4 Ultra-violet rays 10.11.2.5 Photography 10.11.2.6 Solvents 10.11.2.7 Chemical action SECRET WRITINGS 10.12.1 Invisible Inks 10.12.2 Miniature Writings 10.12.3 Latent Photographs 10.12.4 Codes and cyphers BURNT DOCUMENTS AGE OF DOCUMENTS OBLITERATIONS SEQUENCE OF STROKES INDENTED WRITINGS CLOSED ENVELOPES WRITING INSTRUMENT

AND

TRIALS

613 613 613 613 613 614 614 614 614 614 615 615 615 615 615 615 615 615 616 616 616 616 617 617 618 618 618 619 620 620 620 620 620 620 621 622 622 622 623 624 625 626 627 627

CONTENTS

10.20

PRESENTATION 10.20.1 The Expert

XXXIli

627 627

10.20.1.1

Bias

627

10.20.1.2

Dogmatism

627

10.20.1.3 10.20.1.4

Moral conviction Assistance

627

10.20.1.5

Qualifications

628

10.20.1.6 Court appearance 10.20.2 The Evidence 10.20.3 Presenting counsel 10.20.3.1 Prior consultation 10.20.3.2 Examination-in-Chief 10.20.3.3 Opposing expert 10.20.3.4 Exhibits 10.20.3.5 Legal aspects 10.20.3.6 Re-examination 10.20.4 Cross-Examination 10.20.4.1 Aim 10.20.4.2 Temper 10.20.4.3 Bare reports 10.20.4.4 Haughty counsels 10.20.4.5 Diffidence 10.20.5 The Judge 10.21 CASE LAW 10.21.1 Expert Evidence not Essential 10.21.2 Expert Evidence Essential 10.21.3 Evidence Admissible 10.21.4 Evidence Reliable 10.21.5 Appraisal 10.21.6 Court Scrutiny of Handwriting 10.21.7 Court as Expert 10.21.8 Specimens 10.21.9 Admitted Standards 10.21.10 Photographs 10.21.11 Forged Postcards 10.21.12 Copies Admissible 10.21.13 Authorship from Contents 10.21.14 Typescript 1U-ZE5S Interested Witness 10.21.16 Corroboration Needed 10.21.17 Brief Reports 10.21.18 Reports Inadmissible 10.21.19 Reasons and Illustrations 10.21.20 Specimen Writing—During Trial

628 628 628 631 631 631 632 632 632 632 632

633 633 633 633 634 634 634 634 635 637 641

643 650 651 652

658

659 661 662 668

670 670

670 673 674 675 690

XXXIV

FORENSIC

SCIENCE

IN CRIMINAL

INVESTIGATION

AND

TRIALS

Specimen Writing—During Police Investigation Paper Tear Evidence Admissible Incomplete Evidence Refusal to give Specimen—Contempt of Court Evidentiary Value Magistrate as Handwriting Expert Specimen Signatures in open court 10.21.28 Indefinite expert opinion 10.21.29 Judge as Handwriting Expert 10.21.30 Court can act as Handwriting Expert 10.21.31 Comparison of Signatures without the aid of Expert 10.21.32 Court should use Expert Help 10:21.33 Typewriting identification evidence admissible 10.21.34 Admissibility of Reports 10.21.21 10:21:22 10.21.23 10.21.24 10.21.25 10.21.26 10.21.27

Chapter 11

POISONS 11.1 IMPORTANCE 11.2 NATURE 11.2.1

Administration

11.2.2

Action of Poisons

11.2.2.1 11.2.3

Fatal Poisoning

Classification

11.2.3.1 11.2.3.2 11.2.3.3 11.2.3.4 11.2.3.5 11.2.3.6 11.2.3.7 11.2.3.8 11.2.3.9

Inorganic Poisons Organic Poisons Biological Poisons Homicidal Poison Suicidal Poisons Accidental Poisons Cardiac Poisons Respiratory Poisons Nervous System Poison

11.3 LOCATION 11.4 COLLECTION 11.4.1 11.4.2

The Scene The Victim

11.4.2.1 Autopsy materials 11.4.2.2 Non-fatal Cases 11.4.3. Reports and Opinions 11.5 THE PROBLEMS 11.66 EVALUATION 11.6.1 Residual poison 11.6.2 Medicolegal Examination

11.6.3 Symptoms

755

CONTENTS 11.6.4

Isolation

11.6.5 Classical Identification Techniques 11.6.6 Modern Techniques 11.6.6.1 Chromatography 11.6.6.2 Mass Spectrography 11.6.6,3 Spectrophotometry 11.6.6.4 X-Ray Diffraction 11.6.6.5 Neutron Activation Analysis (NAA) 11.6.6.6 Scanning Electron Microscopy 11.6.6.7

11.7

Radio Immuno Assay (RIA)

INDIVIDUAL POISONS 11.7.1 Arsenic 1373.1 Nature

1Bir By Use 11 74 Administration 11.7.1.4 Symptoms [8 By AB Post-mortem Findings 11.7.1.6 Detection 11.7.1.7 Estimation 11.7.1.8 Toxicological Materials

11.7.2 Cyanides jay oe2 | £1.7.2.2 | By0 Ie 11.7.2.4 |G By Bo 1472.6 i By 9

Nature

Use Administration

Symptoms Post-mortem Findings Isolation Detection

11.7.2.8 11.7.2.9

Estimation

|a PYPeBe 11.7.3.6 ae es 11.7,9:0

Isolation Detection Estimation Toxicological Materials

Toxicological Materials 11.7.3. Copper Sulphate 11/3.) Use Administration he Symptoms LZ 11.7.3.4 Post-mortem Findings

11.7.4

Barbiturates

11.7.4.1

Classification

11.7.4.2

Use

11.7.4.3

Administration

11.7.4.4

Symptoms

XXXV

755 756 757 758 758 758 759 759 760 760 760 760 760 760 760 761 761 761 762 762 762 762 762 762 763 763 763 763 764 764 764 765 765 765 765 765 765 765 765 766 766 766 766 766

xxxvi

FORENSIC

11.7.5

11.7.6 11.7.7

11.7.8

SCIENCE

IN CRIMINAL

INVESTIGATION

11.7.4.5 Detection 11.7.4.6 Estimation 11.7.4.7 Toxicological Materials Organo-phosphorus compounds 11.7.5.1 Nature 11:7.5:.2- Use 11.7.5.3 Administration 11.7.5.4 Symptoms 11.7.5.5 Post-mortem Findings 11.7.5.6 Isolation 11.7.5.7 Detection and Estimation 11.7.5.8 Toxicological Materials Vegetable poisons Opium 11.7.7.1 Nature 11.7.7.2 Use 11.7.7.3. Administration 11.7.7.4 Symptoms 11.7.7.5 Post-mortem Findings 11.7.7.6 Isolation 11.7.7.7 Detection 11.7.7.8 Estimation 11.7.7.9 Toxicological Materials Dhatura 11.7.8.1 Use/Abuse 11.7.8.2 Administration 11.7.8.3 Symptoms 11.7.8.4 Fatal Dose 11.7.8.5 Fatal period 11.7.8.6 Post-mortem Findings 11.7.8.7 Isolation 11.7.8.8 Detection 11.7.8.9 Estimation 11.7.8.10 Toxicological Materials

11.7.9 Oleander

TRIALS

767 767 767 767 767 767 767 768 768 768 768 768 769 769 769 769 769 770 770 770 770 771 771 771 772 772 773 773 773 773 773 773 773 774

774

11.7.9.1 Nature 11.7.9.2 Use 11.7.9.3, Administration

11.7.9.4 Symptoms 11.7.9.5 Post-mortem Findings 11.7.9.6 Detection 11.7.9.7 Toxicological Materials 11.7.10 Madar (AAK, AKDO) 11.7.10.1

AND

Nature ©

774 774

774 774 774 774 775 775 775

CONTENTS

11.7.11

11.8

11.7.10.2 Use 11.7.10.3. Administration 11.7.10.4 Symptoms 11.7.10.5 Post-mortem Findings 11.7.10.6 Detection 11.7.10.7 Toxicological Materials Animal poisons 11.7.11.1 Snake Venom 11.7.11.2 Administration 11.7.11.3 Symptoms 11.7.11.4 Post-mortem Findings 11.7.11.5 Detection 11.7.11.6

Estimation

11.7.11.7

Autopsy Materials

MISCELLANEOUS POISONS 11.8.1 Methyl! Alcohol 11.8.1.1

Nature

11.8.1.2

Use

11.8.1.3.

Administration

11.8.1.4

Symptoms

11.8.1.5

Post-mortem Findings

11.8.1.6

Fatal Dose

11.8.1.7

Fatal Period

11.8.1.8

Isolation

11.8.1.9

Detection

11.8.1.10

Estimation

11.8.1.11

Toxicological Materials

11.8.2

Abrus Precatorious (Indian Liquorice Gunchi, Rati)

11.8.3 11.8.4

Aconite

11.8.5 11.8.6 11.8.7

Cannabis

Barium Carbonate

Carbon Monoxide Caustic Alkali

Chloral Hydrate Cyanogenetic Glycoside 11.8.10 Ergot 11.8.8 11.8.9

11.8.11

Kuchila

11.8.12

Lead Salts

11.8.13 11.8.14

Mercury Salts Mushrooms

11.8.15

Mechanical Poisons

11.8.16

Nicotine

11.8.17

Oxalic Acid

11.8.18

Quinine

XXXVIll

775 775 776 776 776 776 776 776 7th Vit 777 777 TTT 777 778 778 778 778 778 778 778 778 778 778 779 (hee) 779 779 780 780 780 781 781 781 781 781 782 782 782 782 782 782 783 783

XXXViil

FORENSIC

SCIENCE

IN CRIMINAL

11.8.19

Sodium Nitrite

11.8.20

Mineral Acids

11.8.21

Zinc Phosphide

INVESTIGATION

PRESENTATION 11.10 JUDICIAL PROOF 22.23 CASE LAW 11.9

11.11.1

Proof of Poisoning

11.11.2

Fatal Dose

11.11.3

Cause of Death

11.11.4

Acid Burns

11.11.5 Diminished Responsibility

AND

TRIALS

783 783 783 783 784 - 790 790 806 810 813 814

Chapter 12 NARCOTICS 121

INTRODUCTION

12.1.1

Legal Definitions

ADDICTION

12.2.1 Nature 12.2.2 Causes of Drug Addiction 12.2.3. The Addict 12.2.3.1 Identification of the addicts 12.2.3.2 Withdrawal Syndrome 12.3 DRUGS AND CRIMES 12.3.1 Non-violent Crimes 12.3.2 Violent Crimes 12.3.3. Drug Problem in India 12.3.3.1 Cannabis 12.3.3.2 Poppy 12.4 CLASSIFICATION 12.4.1 Sedatives 12.4.2 Miscellaneous 12.4.3 Stimulants 12.4.4 Hallucinogens 12.4.5 Solvents

12.4.6 Synthetic Narcotics 12.4.7 Designer Drugs 12.5 EVIDENTIARY CLUES 12.5.1 Drug Addict 12.5.2 Residence of the Addict

12.5.3 Drug Peddler 12.6 12.7

FORENSIC PROBLEMS SEDATIVES 12.7.1. Opium and Opium Derivatives 12.7.2, Opium

819 819 822 822 823 824 824 826 827 827 827 828 828 828 829 829 830 830 830 831 831 831 832 832 833 833 833 834 834 836

CONTENTS

a

ke

12.7.4

12.7.5

Morphine

837

12.7.3.1

Administration

837

12.7.3.2

Physiological effects

837

12.7.3.3.

Metabolism

837

12.7.3.4

Addiction

837

12.7.3.5

Identification

837

Heroin

839

12.7.4.1

Abuse

839

12.7.4.2

Physiological Effects

839

12.7.4.3

Identification

840

Barbiturates Nature

842

12.7.5.2

Administration

842

12.7.5.3

Addiction

842

12.7.5.4

Metabolism

843

12.7.5.5

Identification

843

STIMULANTS 12.8.1

12.8.2

12.9

12.9.2

843 843

Cocaine 12.8.1.1

Origin

843 843

12.8.1.2

Use

844

12.8.1.3.

Abuse as Narcotic

844

12.8.1.4

Intake

844

12.8.1.5

Effects of Cocaine

844

12.8.1.6 Physiological Effects

845

12.8.1.7

Addiction

845

12.8.1.8

Metabolism

845

12.8.1.9

Identification

847

Benzedrine

847

12.8.2.1

Administration

847

12.8.2.2

Effects

847

12.8.2.3

Addiction

847

12.8.2.4

Metabolism

847

12.8.2.5

Identification

848

HALLUCINOGENS 12.9.1

842

12.7.5.1

12.7.6 Other Non-opiate Sedatives 12.8

XXXiXx

Cannabis

848 848

12.9.1.1

Administration

850

12.9.1.2

Effects

850

12.9.1.3

Addiction

850

12.9.1.4

Metabolism

851

12.9.1.5

Identification

851

LSD (Lysergic Acid Diethylamide)

851

12.9.2.1_

Administration

851

12.9.2.2

Effects

852

FORENSIC

x]

SCIENCE

IN CRIMINAL

INVESTIGATION

Addiction Metabolism Identification

12.9.2.3 12.9.2.4 12.9.2.5

AND

TRIALS

852

852 852

Chapter 13

ALCOHOL 13.1 IMPORTANCE

858

NATURE

858

13.2

13.2.1 13.2.2 13.2.3. 13.2.4

Production Classification Properties Absorption

858 858

13.2.5 13.2.6

Elimination Effects

860

859 859 860

13.2.6.1

Euphoria

861

13.2.6.2

Muscular incoordination

861

13.2.6.3 Respiratory paralysis

861

13.2.7 Fatal Dose

861

13.2.8

863

Fatal Period

13.2.9 Alcoholic Allergy 13.2.10 Abnormal Tolerance 13.2.11 Normal Use 13.3 LOCATION AND COLLECTION

863 863 863 863

13.3.1 Illicit Liquor

863

13.3.2 Evidence of Intoxication

863

13.3.3 Collection of Samples 13.3.3.1 Blood samples 13.3.3.2 Urine samples 13.3.3.3. Post-mortem blood samples 13.3.3.4 Saliva samples 13.3.3.5 Breath sample 13.4 PROBLEMS 13.5 EVALUATION 13.5.1 Alcoholic Content 13.5.1.1 Specific gravity

13.5.2 13.5.3

864 864 864 865 865 865 866 866 866

13.5.1.2 Refractive index 13.5.1.3 Total solids 13.5.1.4 Acidity

867 867 867

13.5.1.5 Sugars

867

13.5.1.6 Ash 13.5.1.7 Miscellaneous

867 867

Identification of Alcohol Intoxication

868

13.5.3.1

Medical examination

868 868

CONTENTS

13.5.4 135.5 13.5.6 43:5:37

13.6

13.5.3.2 Physical tests 13.5.3.3 Blood alcohol analysis Chemical Analysis Gas Chromatography Biological Method Breath Analysers Significance of Blood Alcohol Presentation

13.5.8 13.5.9 CASE LAW 13.6.1 Bona fide Expert 13.6.2 Liquor Identification 13.6.3 Prohibited Liquor 13.6.4 Improper Collection 13.6.5 Inadmissible Reports 13.6.6 Reports Admissible 13.6.7 Intoxication

13.6.7.1 Intoxication as defence 13.6.8 Random Sampling 13.6.9 Correct Sampling

Chapter 14

EXPLOSIVES 14.1 14.2

IMPORTANCE 14.1.1 Legitimate Uses NATURE 14.2.1 Definition 14.2.2 Characteristics

Classification 14.2.3.1 According to speed 14.2.3.2 According to sensitivity 14.2.4 Primary Explosives 14.2.5 Secondary Explosives 14.2.6 Industrial Explosive 14.2.7 Water Explosive 14.2.8 Explosive Emulsions 14.2.9 Military Explosives 14.2.10 Pyrotechnics 14.2.11 Propellants 14.2.12 Aerosol Explosive Mixtures 14.2.13 Nuclear Explosives 14.3 INDIVIDUAL EXPLOSIVES 14.3.1 Gunpowder 14.3.2 Nitroglycerine 14.3.3 Nitrocellulose 14.2.3

FORENSIC

xlii

IN CRIMINAL

SCIENCE

INVESTIGATION

TRIALS

AND

915 915

14.3.4 Trinitrotoluene (TNT) 14.3.5 Picric Acid and Pictrates

14.4

14.3.6

RDX

915

14.3.7 14.3.8

HMX PETN

915 917

14.3.9

Ammonium

917

Nitrate (AN)

14.3.10

Primary Explosive

917

14.3.11

917

14.3.12

Fulminates Lead or Silver Azide

14.3.13

Lead Styphnate

918

14.3.14

Tetracene (Tetrazene)

918

14.3.15

Dinol (DDNP)

918

917

918

EXPLOSIVE DEVICES

918 918

14.4.1 Safety Fuses 14.4.2 Detonating Cord/ Fuse Cord 14.4.3.

919

Primers

14.4.4 Military Detonators

919

Commercial

919

14.4.5

Detonators

14.4.6 Explosive Train

921

14.4.7 Grenade

921

14.4.8 Military Bombs and Shells

922

14.4.9

Miscellaneous

923

14.4.10 Improvised Explosive Devices

14.5

923

14.4.11

Some Novel Initiation Modes

924

14.4.12 14.4.13 14.4.14 14.4.15 14.4.16 14.4.17

Throw-downs Fuse Bombs Percussion Car Bombs Time Bombs Letter Bombs Transistor Bombs

924 924 925 925 926 928

14.4.18 Magnetic Bombs

928

14.4.19

928

Human

Bomb 14.4.20 Fireworks (Pyrotechnics) NON-EXPLOSIVE EXPLOSION

928

929

14.5.1 Accidental Explosions 14.5.2 Deliberate Explosions 14.6

931 931

LOCATION AND COLLECTION 14.6.1 The Scene of Explosion(s)

932 932

14.6.2 Dispatch of Clues 14.6.3,

936

Handling Live Devices

936

14.6.4 Evidence on the Culprit

938

Evidence in the Vehicle

939

14.6.5

14.6.6 Evidence at the Factory or Residence 14.6.7

Disposal

939 ;

940

CONTENTS

xliii

14.6.8 Dispatch 14.7 PROBLEMS 14.8 EVALUATION 14.8.1 Identification of Explosives from Debris 14.8.2 Separation or Extraction 14.8.3 Identification of the Explosive 14.8.3.1 Friction test 14.8.3.2 Impact test 14.8.3.3 Flame test 14.8.4 Individual Materials 14.8.4.1 Gunpowder 14.8.4.2 Gun cotton 14.8.4.3. Nitroglycerine 14.8.4.4

941 942 942 942 943 944 944 944 944 946 946 946 946 946 946

Trinitrotoluene (TNT)

14.8.4.5 Picric acid and picrates 14.8.4.6 RDX 14.8.4.7_ PETN 14.8.4.8 HMX 14.8.4.9 Dynamite 14.8.5 Explosive Devices 14.9 CASE LAW 14.9.1 Offence 14.9.2. Non-dangerous Explosions 14.9.3 Identification

946 947 947 947 947 949 949 949 950

Chapter15

FIRES 15.1

IMPORTANCE

15.2

NATURE

15.3

15.3.1

Fingerprints

955 956 957 957 958 960 960 961 961 962 962 963 963 963 964

15.3.2.

Track Marks

964

15.3.3

Miscellaneous Traces

964

15.2.1

Progress

15.2.2

Conirol

15.2.3.

Arson Fires

15.2.4

Profile of an Arsonist

15.2.5

Accidental Fires

15.2.6

Spontaneous Fires

15.2.7

Automobile Fires

15.2.8

Burnt Bodies

15.2.8.1

Classification

15.2.8.2

Post-mortem

15.2.8.3

Accident, suicide or murder

COLLECTION OF CLUES

or ante-mortem

burns

xliv

FORENSIC

SCIENCE

IN CRIMINAL

INVESTIGATION

AND

TRIALS

15.3.4

Initiators

965

15.3.5

Accelerators Combustible Materials

965

15.3.6

966

15.3.7. Electrical Installations

15.3.8 Heating Appliances 15.3.9 Fire-extinguishing Devices 15.3.10 Foreign Matter 15.3.11 15.3.12

Evidence of Other Crime Character of Fire

Architect

Forensic scientists

15.5.1.6 Photographer 15.5.1.7 Occupant 15.5.2 Systematic Investigation 15.5.2.1 15.5.2.2 15.5.2.3.

967

969 969 969

15.5.1.3 Electrical engineer 15.5.1.4 Inspector of explosives 15.5.1.5

966

969

Expert help 15.5.1.1 Fire brigade 15.5.1.2

966 966 966

968

15.4 PROBLEMS 15.5 EVALUATION

15.5.1

965

Prove malicious intent Eliminate accidental cause Procure side information

15.5.3. Laboratory Evaluations

969 970 970

970 970 970 970 971 971

973

15.6 EXPERT TESTIMONY 15.7 CASE LAW 15.7.1 Burning

975 977 977

15.7.2 Negligence 15.7.3 Bride-Burning

977 978

Chapter 16

MOTOR VEHICLES 16.1

IMPORTANCE 16.1.1 Crimes and Vehicles 16.2 NATURE 16.2.1 Road Accidents 16.2.1.1 The driver 16.2.1.2 The vehicle 16.2.1.3 The road 16.2.1.4 The victim 16.2.2 Theft of Automobiles 16.3 THE PROBLEMS

16.3.1 Tyre Marks 16.3.2

Vehicle

985 985

985 986 986 986 986 986 987 988

988

988

CONTENTS

16.4 EVIDENTIARY CLUES 16.4.1 The Vehicle 16.4.2 The Scene 16.4.3. The Culprit/ Victim 16.5 COLLECTION 16.6 EVALUATION 16.6.1 Tyres 16.6.2 Tyre marks

16.6.2.1 Tyre width 16.6.2.2 Tyre circumference 16.6.2.3 Tread pattern 16.6.2.4 Wear and tear 16.6.2.5 Adventitious peculiarities 16.6.2.6 Crab-track vehicle 16.6.2.7 Wheelbase difference 16.6.2.8 Turning arc 16.6.2.9 Side prints of the tyres 16.6.2.10 The intra position of the tyres 16.6.3 Skid Marks 16.6.3.1 Determination of speed 16.6.4 Tyre Residues 16.6.4.1 Surface effect 16.6.5 Tyre Bursts 16.6.6 Mechanical Failure 16.6.7 Left over Objects 16.7 RESUSCITATION 16.8 CASE LAW 16.8.1 Victim's fault 16.8.2 Mischief 16.8.3 Accident Evaluation

xlv

989 989 990 991 991 993 993 994 995 995 995 996 996 997 997 997 997 998 998 1000 1004 1005 1005 1007 1007 1007 1009 1009 1010 1013

Chapter 17

MICROTRACES 17.1

IMPORTANCE

17.2

NATURE 17.2.1 Plant materials 17.2.2

Dust

17.2.3 17.2.4 17.2.5 17.2.6 17.2.7 17.2.8 17.2.9

Fibres Polymers Minerals Glass Paint Soil Materials of Animal Origin

1018 1020 1020 1020 1021 1021 1021 1021 1021 1021 1021

xlvi

FORENSIC

SCIENCE

IN CRIMINAL

INVESTIGATION

17.3 LOCATION 17.3.1 The Culprit 17.3.2. The Victim 17.3.3 The Scene 17.3.4 The Weapon 17.3.5 The Vehicle 17.3.6 Location Techniques

17.4 COLLECTION 17.4.1 Handpicking 17.4.2 Taping 17.4.2.1 Tape 17.4.2.2 Adhesive 17.4.3. Vacuuming 17.4.4 Dissolving and Washing 17.4.5 Scraping

AND

TRIALS

1021 1021 1022 1022 1022 1023 1023

1024 1024 1024

17.5 FORENSIC PROBLEMS

1025 1025 1025 1026 1026 1027

17.6

1028

EVALUATIONS

17.6.1 Tools and Techniques 17.6.2 Microscopy 17.6.3. Microchemical Tests 17.6.4 X-Ray Diffraction 17.6.5 Micro-FTIR Spectroscopy 17.7 INDIVIDUAL MICROTRACES 17.7.1 Plant Materials 17.7.1.1 Wood 17.7.1.2 Leaves 17.7.1.3 Flowers 17.7.1.4 Seeds 17.7.1.5 Starches 17.7.2 Dusts 17.7.3 Soils 17.7.3.1 Settling time 17.7.3.2 Density 17.7.3.3, Chemical analysis 17.7.3.4 Differential thermal analysis 17.7.3.5 Micro-organism analysis 17.7.3.6 Scanning Electron Microscopy 17.8 SPECIFIC TRACES—FIBRES 17.8.1 Nature 17.8.1.1 Plant fibres

1028 1028 1029 1029 1030 1030 1030 1030 1031 1031 1031 1032 1032 1033 1035 1035 1035 1035 1036 1036 1036 1037 1037

17.8.1.2 Animal fibres 17.8.1.3. Mineral fibres

1037 1037

17.8.1.4

Metal fibres

1038

17.8.1.5

Modified fibres

1038

CONTENTS

17.9

17.8.2

17.8.1.6 Synthetic fibres Evidentiary Clues

17.8.3 17.8.4

17.8.2.1 Location Problems Evaluations

17.8.4.1 Preliminary examination 17.8.4.2 Microscopic examination 17.8.4.3. Physical properties 17.8.4.4 Microtomy 17.8.4.5 Chemical test 17.8.4.6 Differential thermal analysis 17.8.4.7 Optical properties 17.8.4.8 Fluorescence 17.8.4.9 Colour comparison 17.8.4.10 Microspectrophotometry 17.8.4.11 Infrared spectroscopy 17.8.4.12 Pyrolytic Gas Chromatography (PGC) 17.8.4.13 Thin Layer Chromatography (TLC) SPECIFIC TRACES—GLASS 17.9.1 Importance 17.9.2 Nature 17.9.3 Location 17.9.4 Evaluation 17.9.4.1 Colour 17.9.4.2 Fluorescence 17.9.4.3 Measurement 17.9.4.4 Fusion 17.9.4.5 Specific Gravity 17.9.4.6 Refractive Index 17.9.4.7 Dispersivity 17.9.4.8 Spectrographic analysis - 17.9.4.9 Neutron activation analysis 17.9.4.10 Mechanical fit

Chapter 18

HAIRS 18.1

IMPORTANCE

18.2

NATURE

18.3 18.4

PROBLEMS LOCATION 18.4.1 Scene of Occurrence

18.4.2 Culprit and Victim 18.5 COLLECTION

18.5.1

Incriminating hair

xlviil

FORENSIC

SCIENCE

IN CRIMINAL

INVESTIGATION

AND

TRIALS

18.5.2 Sample Hairs 18.5.2.1 Combing or brushing 18.5.2.2 Pulling out 18.5.2.3 Clipping Precautions EVALUATION 18.5.3

18.6

18.6.1

Visual Examination

18.6.2 Microscopy 18.6.3 Microtomy 18.6.4

18.6.5 18.6.6

Scale Count Density Refractive Index

18.6.7 Neutron Activation Analysis 18.7 SPECIFIC PROBLEMS

18.7.1 Species 18.7.2

Racial Identification

18.7.3 DNA Profiling 18.7.4 Age 18.7.5 Male or Female 18.7.6 Cut, Pulled or Fallen

18.7.7 Bleached or Dyed 18.7.8 Part of the Body 18.7.9 Slow Poisoning 13.7.10 Contamination 18.7.11 Individualisation 18.8 CASE LAW 18.8.1 Hair and Article 20 of the Constitution 18.8.2 Hair Evidence Essential 18.8.3 Identification

Chapter 19

BODY 19.1

BLOOD 19.1.1

Nature

19.1.1.1

Composition

19.1.1.2

Red cells

19.1.1.3 Haemoglobin 19.1.1.4

Functions

19.1.1.5 Drying 19.1.2 19.1.3

The Problems Location

19.1.3.1

Techniques

19.1.3.2

Sites

19.1.3.3 The scene

FLUIDS 1073 1074 1074 1074 1075 1075 1075 1076 1076 1076 1077 1077

CONTENTS

19.1.3.4 19.1.3.5 19.1.3.6 19.1.3.7 19.1.3.8 19.1.3.9 19.1.4 Collection 19.1.4.1 19.1.4.2 19.1.4.3. 19.1.4.4 19.1.4.5 19.1.5 Evaluation 19.1.5.1

The suspect The victim The weapon of offence The vehicle The route Disposal site

Liquid blood Wet stains Dry stains

Washed blood Blood samples Basis

19.1.5.2 Rhesus groups 19.1.5.3 Visual examination 19.1.5.4 UV and IR examination 19.1.5.5 Microscopy 19.1.5.6 Spectroscopy 19.1.5.7 Spectrophotometry 19.1.5.8 Chromatography 19.1.5.9 Electrophoresis 19.1.5.10 Colour tests 19.1.5.11 Luminol test 19.1.5.12 Crystal tests 19.1.5.13 Precipitin reaction 19.1.5.14 Blood grouping techniques 19.1.5.15 Mixed agglutination 19.1.5.16 Absorption-elution method 19.1.5.17 Blood grouping from antibodies 19.1.5.18 Pitfalls 19.1.6 Special Problems 19.1.6.1 Blood in debris 19.1.6.2 Age of bloodstains 19.1.6.3 Disputed paternity 19.1.6.4 Secretors 19.1.7 Miscellaneous 19.1.7.1 Part of the body 19.1.8 Presentation 19.2 SEMEN 19.2.1 Nature 19.2.2 Location and Collection 19.2.2.1 Victim

19.2.2.2 Culprit

xlix

1078 1079 1079 1079 1080 1080 1080 1081 1081 1082 1083 1083 1083 1083 1085 1085 1086 1086 1086 1086 1087 1087 1087 1087 1087 1088 1088 1090 1090 1090 1090 1091 1091 1091 1091 1093 1093 1093 1094 1094 1094 1095 1095 1096

FORENSIC

l

SCIENCE

IN CRIMINAL

19.2.2.3

Animals

19.2.2.4

Scene of occurrence

INVESTIGATION

AND

TRIALS

19.2.2.5 Techniques 19.2.3

The Problems

19.2.4

Evaluation

19.2.4.1

Chemical tests

19.2.4.2 Biological tests 19.3 OTHER BODY FLUIDS 9.3.1 Saliva 19.3.2 Urine 19.3.3 Faeces 19.3.4 Sweat 19.3.5 Nasal Secretions 19.3.6 Tears and Human Milk 19.4 CASE LAW 19.4.1 Taking Blood and Semen Samples 19.4.2 Bloodstains 19.4.3 Blood Trail 19.4.4 Blood Pool 19.4.5 Collection 19.4.6 Relevancy 19.4.7 Slovenly Reports 19.4.8 Disputed Paternity 19.4.9 Rape 19.4.9.1 Injuries 19.4.9.2 Corroboration not necessary 19.4.9.3 Special situation 19.4.9.4 Delay in despatch 19.4.9.5 Life of sperms 19.4.9.6 Blood and semen 19.4.9.7 Venereal disease infection 19.4.9.8 Spermatazoon necessary 19.4.10 Un-exhibited report of Chemical Examiner as evidence

1101 1101 1101 1101 1102 1103 1103 1103 1104 1104 1105 1108 1108 1109 1109 1110 1110 1110 1111 1112 1112

Chapter 20

DNA

PROFILING

20.1 IMPORTANCE 20.2 NATURE 20.2.1 Mitochondrial DNA 20.3

EVIDENTIARY CLUE MATERIALS

20.3.1

Blood

20.3.1.1 Liquid blood 20.3.1.2 Liquid blood at the scene 20.3.2 Bloodstains

1117 1123 1126 1127 1128 1128 1128 1128

CONTENTS

20.3.2.1 20.3.3 Semen 20.3.4 20.3.5

20.4

20.5

20.6

20.7 20.8

Dried bloodstains

Hair Saliva Stains

20.3.6 Body Tissues and Organs 20.3.7 Post-mortem Samples 20.3.8 Foetal Material 20.3.9 Blood Samples in Paternity Cases EVALUATIONS 20.4.1 Processing 20.4.2 Isolation of DNA 20.4.3 Fragmentation of DNA 20.4.4 Separation of Fragments 20.4.5 DNA Probes 20.4.6 Southern Blotting and Hybridisation 20.4.7 Visualisation of the RFLPs Patterns THE POLYMERASE CHAIN REACTION (PCR ) 20.5.1 The PCR Process 20.5.2 Controlling Factors 20.5.3 Problems in PCR 20.5.4 Identification Techniques 20.5.5 Sex Determination 20.5.6 Problems of PCR Evaluation 20.5.7 DNA Profile records CASE STUDIES 20.6.1 Maternity Identification 20.6.2 Abandoned Baby 20.6.3 DNA v. Confession 20.6.4 DNA Profile v. Eyewitness 20.6.5 DNA Profile Induces Confession SETTING STANDARDS CASE LAW 20.8.1 DNA Test allowed

Chapter 21

ELEMENTARY 21.1

FORENSIC

DEATH INVESTIGATOR’S ROLE 21.1.1 Examination of the Scene 21.1.1.1 Indoor scene 21.1.1.2 Outdoor scene

21.1.1.3 Signs of struggle 21.1.1.4

Real or fake scene

21.1.1.5

Side information

21.1.1.6 Corpse examination

MEDICINE

FORENSIC

lii

21.1.2

21.2

Post-mortem

IN CRIMINAL

21.1.2.1 21.1.2.2

Importance Basic steps

21.1.2.3

Examination

Toxicological Material

21.1.4

The Opinion

21.1.5 Post-mortem POSSIBILITIES

INVESTIGATION

Examination

21.1.3.

21.2.1

21.3

SCIENCE

Report

Suicide, Murder or Accident ?

21.2.1.1 Suicide 21.2.1.2 Accident 21.2.1.3. Homicide IDENTIFICATION OF DEATH 21.3.1 Brain Death

21.3.2 Other Signs of Death 21.4 TIME OF DEATH

21.4.1 Cooling of Body 21.4.2 Chemical Changes 21.4.3

Lividity

21.4.4 21.4.5 21.4.6

Rigor Mortis Decomposition or Putrefaction Miscellaneous Factors 21.4.6.1_ 21.4.6.2

Watch and clocks Bladder contents

21.4.6.3

Stomach contents

21.4.6.4

Clothes

21.4.6.5 Vegetation 21.4.6.6 Rusting 21.5 CAUSE OF DEATH 21.5.1

21.5.2

Mechanical Violence 21.5.1.1

Abrasions

21.5.1.2

Bruises

21.5.1.3

Punctured wounds

21.5.1.4

Incised wounds

21.5.1.5 Miscellaneous Dimensions of Wounds

21.5.3 Age of Wound 21.5.4

21.5.5

Ante or Post-mortem Wounds Fatal Wounds

21.5.6 Incapacitation 21.5.7, Asphyxia 21.5.7.1 Identification of asphyxia 21.5.7.2

Suffocation

21.5.7.3 Choking

AND

TRIALS

1155 1156 1156 1157 1159 1159 1159 1159 1159 1160 1160 1160 1161 1162 1162 1162 1163 1163 1163 1163 1164 1165 1165 1165 1165 1166 1166 1166 1166 1166 1166 1167 1167 1168 1169 1169 1170 1170 1170 1171 1171 1172 1172 1172

CONTENTS

21.5.7.4 Strangulation and throttling 21.5.7.5 Hanging 21.5.7.6 Drowning or submersion 21.5.8

21.5.9

21.6

Miscellaneous 21.5.8.1

Starvation

21.5.8.2

Electrocution

21.5.8.3

Lightning

21.5.8.4 21.5.8.5

Cold Heat

21.5.8.6 Scalding 21.5.8.7 Burning Medical Negligence 21.5.9.1

Classification

21.5.9.2

Investigator’s role

IDENTIFICATION

OF THE DEAD

21.6.1

Relatives and Acquaintances

21.6.2

Documents

21.6.3

Portrait Parle

21.6.4

Scars

21.6.5

Professional Marks

21.6.6

Personal Articles

21.6.7 Photographs, Sketches, Casts 21.6.8 Fingerprints 21.6.9

21.7

Dentures

SKELETAL REMAINS 21.7.1

Human Bones

21.7.2

Number of Victims

21.7.3. Age of the Victim 21.7.4

Sex of the Deceased

21.7.5

Height of the Deceased

21.7.6 Identity of the Deceased 21.7.7 21.8

Burnt bones

SEXUAL OFFENCES

21.8.1

Rape

21.8.2

Rapist

21.8.3

Investigator’s Role

21.8.4

The Victim

lili

1173 1173 1174 1175 1175 1175 1176 1177 1177 1177 177 1178 1479 1180 1181 1181 1181 1181 1182 1182 1182 1183 1183 1183 1183 1183 1183 1183 1184 1184 1184 1187 1187 1188 1189 1189 1189

21.8.5

The Culprit

21.8.6

Medical Evidence

1189 1190 1190 1191 1191

21.8.7

Physical Evidence

1191

21.8.8

Oral Evidence

1191

21.8.4.1

Knowledge

21.8.4.2

Medical evidence

21.8.4.3

Evidentiary clues

FORENSIC

liv

21.8.9

SCIENCE

IN CRIMINAL

INVESTIGATION

The Scene

21.8.10 Gang Rape 21.8.11 Attempted Rape 21.9 21.10

INCEST UNNATURAL

21.10.1

OFFENCES

Homosexuality 21.10.1.1 Sodomy 21.10.1.2

21.10.2

Lesbianism

Bestiality

:

SE 11 MINOR SEXUAL OFFENCES 21.11.1 Exhibitionism

21.11.2

Sadism

21.11.3 21.11.4

Voyeurism Frottage

21.11.5

Sexual Aberrations 21.11.5.1 Masochism 21.11.5.2 21.11.5.3

2112

Transvestism Fetichism

ABORTION 21.12.1 Methods of Abortion 21.12.1.1 Violence

21.12.2

21.12.1.2

Drugs

21.12.1.3

Womb

interference

Cause of Death

21.12.2.1 21.12.2.2

Shock Air embolism

21.12.2.3 Haemorrhage 21.12.2.4 Toxic effects of drugs 21.12.2.5 Complications 21.12.3 Investigator’s Role

21.13

21.12.3.1

Oral evidence

21.12.3.2

Medical evidence

21.12.3.3

Physical evidence

INFANTICIDE 21.13.1 Murder 21.13.2

Accidental Death

21.13.3 Congenital defects 21.13.4 Investigator’s Role 21.13.4.1_ Physical evidence 21.13.4.2

21.14

21.13.4.3 CASE LAW

Medical evidence

Oral evidence

21.14.1

Corpus Delicti

21.14.2

Oral v. Medical Evidence

AND

TRIALS

1192 1192 1192 1193 1193 1193 1194 1194 1194 1195 1195 1195 1195 1196 1196 1196 1196 1196 1196 1197 1198 1198 1198 1199 1199 1199 1199 1199 1199 1199 1200 1200 1201 1201 1201 1202 1202 1202 1202 1202 1203 1203 1203 1204

CONTENTS

21.14.3

Stomach Contents v. Eyewitness Version

21.14.4 21.14.5

Delayed Death Diminished Responsibility

21.14.6

Post-mortem

21.14.7 21.14.8

21.14.9 21.14.10

21.14.6.1 21.14.6.2

Necessity Ante-mortem injuries?

21.14.6.3

Putrefaction

21.14.64

Drowning

Identity of the Dead—Skull Super-Imposition Time of Death 21.14.8.1 Bladder and stomach contents 21.14.8.2 Putrefaction 21.14.8.3 Rigor mortis Cause of Death Accident, Suicide or Murder

21.14.13

Reconstruction: Murder or Suicide? Number of Assailants Skeletal Remains

21.14.14

Age by Radiography

21.14.15 21.14.16

Medical Evidence

21.14.20

Data Essential

21.14.11 21.14.12

Judges as Medical Expert 21.14.17 Improper Appreciation of Medical Evidence 21.14.18 Digestion Time Variable—Not Proper Guide to Time of Death 21.14.19 Injury Source in Post-mortem Report

Bibliography Subject Index

TABLE OF CASES (Supplement only) $9, $13

Alamgir v. Delhi, 2003 Cri LJ 456 (SC)

S12 $21

Balwinder Singh v. State of Punjab, AIR 1987 SC 350 Bhagwan Das v. State of Rajasthan, AIR 1957 SC 589 Chandan Banalal Jaiswal v. State of Gujarat, 2004 Cri LJ 2992 Davis v. Edinburgh Magistrate, 1953 SC 34 Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326 Gulam Mammad Theim ». State of Gujarat, 2003 Cri LJ 256

S3

S15

S14, $15,S16 S19

S14 S12

Gurney v. Langlands, 1822 (5) B and Ald 330 Hanumant Govind Nargundkar v. State of Madhya Pradesh, AIR 1952 SC 343

$13, S15

Ishwari Prasad Misra v. Mohammad Isa, AIR 1963 SC 1728

M. Durga Prasad v. State of Andhra Pradesh, AIR 2004 SC 2714

S17

Magan Bihari Lal v. State of Punjab, 1997 (2) SCC 210 Murari Lal v. State of Madhya Pradesh, 1980 (1) SCC 704

$15 S14

Pantangi Balarama Venkata Ganesh v. State of Andhra Pradesh, 2003 Cri LJ 4516

Sl

Pawan Kumar v. State of Haryana, 2001 (3) SCC 628 Ram Chandra v. State of Uttar Pradesh, AIR 1957 SC 381 Shanabhai Madhurbhai Koli Patel v. State of Gujarat, 2004 Cri LJ 268

S11 $13, $14, $15 $21

Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529

S12

Sonam Tshering Bhutta v. State of Sikkim, 2004 Cri LJ 3136

S13, S15, S16

S18

State of Bihar v. J.A.C. Saldanha, 1980 (1) SCC 554: 1980 Cri LJ 98 State of Haryana v. Jagbir Singh, 2003 Cri LJ 5054 (SC)

S6 S9,S16

State of Karnataka v. Rangaswami, 2003 Cri LJ 607 State of Madhya Pradesh v. Sanjay Rai, 2004 Cri LJ 2007 (SC)

S20 a2, S21

State of Maharashtra v. Lalu Laxmi Pable, 2003 Cri LJ 1180 State of Rajasthan v. Rajaram, 2003 AIR SCW 4097 State of Uttar Pradesh v. Ashok Kumar Srivastava, AIR 1992 SC 840

$22

State of Uttar Pradesh v. Ram Babu Misra, AIR 1980 SC 791

S16

State v. Rangaswami, 2003 Cri LJ 607

S20

Sudama Pandey v. State of Bihar, 2002 (1) SCC 679

$12

Sunderlal v. State of Madhya Pradesh, AIR 1954 SC 28

S21

Union of India v. Prakash Hinduja, 2003 (5) JT SC 300: 2003 Cri LJ 3117 Varada Rama Mohana Rao v. State of Andhra Pradesh, 2003 Cri LJ 2830

S6 $23

Vishal Motising Vasava v. State of Gujarat, 2004 Cri LJ 3086

lvi

S13 ra)

S8

TABLE

OF CASES A

A.W. Khan >. State of West Bengal, 1962 (2) Cri LJ 751 (Cal)

1110

Abdul Gani v. State of Rajasthan, AIR 1960 Raj 77

654

Abdul Razak Murtaza Dafadar v. State of Maharashtra, AIR 1970 SC 283: (1970 Cri LJ 373) Abdul Salam v. State of Jammu and Kashmir, 1953 Cri LJ 1585

168, 171, 174

116, 1104, 1204, 1233

Abdul Samad v. State of Orissa, ILR (1964) Cuttack 623

499

Abhayanand v. State of Bihar, 1959 Cri LJ 893 (Pat)

652, 670, 671

Adi Bhumiani ?. State of Orissa, 1957 Cri LJ 1152

1212

Aher Raja Khima v. State of Saurashtra, 1956 Cri LJ 421 (SC)

113

Ajit Sachit Muggvi v. State of Kerala, AIR 1997 SC 3255 Ajmer Singh v. State of Punjab, 1955 Cri LJ 305 (Punj)

59,719 900

Ali Shan v. State of Jammu & Kashmir, 1954 Cri LJ 1124

114

Alovsious John v. State of Kerala, 1966 Mad LJ (Cr) 298

653

Amarjeet Singh v. State of Uttar Pradesh, 1998 SCC (Cri) 1609 Amarjit Singh v. State of Punjab, 1981 Chand Cr Cas 170 (P&H) Ambal Bagyam v. Ramayya Padayachi, AIR 1955 Mad 88 Ambard v. Attorney-General for Trinidad and Tobago, 1936 AC 392 Ambika Prasad v. State (Delhi Adm.), 2000 Cri LJ 808 (SC)

657 64, 68 644 126 1220, 1241

Amin v. State of Uttar Pradesh, 1958 Cri LJ 462 (All)

86

Amir Chand v. Lok Nath, 1952 Cri LJ 1225 (Nag)

650

Anam Swain v. State of Orissa, 1954 Cri LJ 132

1112

Anant Chintaman Lagu v. State of Bombay, (1960) 2 SCR 460: 1960 Cri LJ 682 (SC): AIR 1960 SC 500

90, 790, 791, 803, 806

Anath Kumar Naik v. State of Andhra Pradesh, (1977) Cri LJ 1797

1101

Anthony alias Makthawatsalu (in re:), 1960 Cri LJ 927 (Mad)

1109

Anvar-uddin v. Shakoor, 1996 Cri LJ 1270 (SC)

490

Arbinda Dey v. State of West Bengal, 1953 Cri LJ 511 (Cal)

1110

Arshad v. State of Andhra Pradesh, 1996 Cri LJ 2893

1241

Arun Kumor Banerjee v. State, AIR 1962 Cal 504

80

Arundhati Keutuni v. State of Orissa, 1968 Cri LJ 343 (Ori)

791

Ashok Kumar Chatterjee v. State of Madhya Pradesh, AIR 1989 SC 1890 Atma Singh >. State of Punjab, 1981 Chand Cr Cas 181 (P&H) Ayodhya Prasad v. State of Orissa, 1985 Cri LJ 1401

114. 64, 68 672

B B. Bhikha v. State of Gujarat, 1971 Cri LJ 927 SC B. Chinnappa (in re:), AIR 1951 Mad 760: (1951) 1 Mad LJ 110 Ivii

397 1109

Iviil

FORENSIC

SCIENCE

IN CRIMINAL

INVESTIGATION

TRIALS

AND

B. K. Kutty v. State, (1984) 1 Ori LR 597: 1984 Cri LJ 1289 B. Rami Reddy v. State of Andhra Pradesh, (1971) Cri LJ 1591 (AP):

1971 (2) APLJ 174 B.B. Doddamani v. State of Mysore, 1961 (1) Cri LJ 120 (Mys) Babu Mugbul Shaikh v. State of Maharashtra, 1993 Cri LJ 2808 (SC)

671, 673

692, 694, 701, 1101 1221

Bachan Singh v. State of Punjab, 1980 Cri LJ 636

Bahal Singh v. State of Haryana, 1976 Cri LJ 1568: AIR 1976 SC 2032

169, 171 73

367, 503, 514

Baidya Nath v. Shefali, 1962 (1) Cri LJ 19 (Cal) Balak Ram v. State of Uttar Pradesh, 1974 Cri LJ 1486: AIR 1974 SC 2165

671

Baliya Pulayya (in re:), AIR 1941 Mad 88 Balwinder Singh v. State of Punjab, AIR 1987 SC 350

543 717

Basant Rao Baji Rao v. State, 1950 Cri LJ 181 (Nag) Basawarayaswami (in re:), 1967 Cri LJ 1536 (Mys)

Basdev v. State of Pepsu, 1956 Cri LJ 919 (SC) Bashir Hussain v. Gulam Mohommed Ismail, AIR 1966 Bom 2531:

1966 Cri LJ 1395

Basjit Singh v. Emperor, AIR 1920 Pat 129 (C) Basu v. State of Bihar, 1957 Cri LJ 990 (Pat) Basudeo Gir v. State of Bihar, AIR 1959 Pat 534: 1959 Cri LJ 1355 (Pat)

Bazari Hajam v. King Emperor, AIR 1922 Pat 73: 23 Cri LJ 638 Behari v. State of Uttar Pradesh, 1953 Cri LJ 565 (All)

Behram Khurshid Pessikaka v. State of Bombay, 1955 Cri LJ 215 (SC): AIR 1955 SC 123

507

47,119 635

901 683

297, 308 810 371, 375

297, 302, 303 1227

894, 896

Bhadran v. State of Kerala, 1995 Cri L] 677

172

Bhag Singh v. State of Punjab, 1971 Cri LJ 903 (P&H)

499

Bhagat Ram v. State of Punjab, AIR 1954 SC 621 Bhagoji v. State of Hyderabad, 1954 Cri LJ 1378 Bhagwan Das v. State of Rajasthan, AIR 1957 SC 589: 1957 Cri LJ 889 Bhagwan Dass v. State of Punjab, 1982 Cri LJ 2138 (P&H)

717 121, 1204 727 66

Bhagwan Kaur v. M.K. Sharma, 1973 Cri LJ 1143: AIR 1973 SC 1346

638

Bhagwandin v. Gouri Shankar, AIR 1957 All 119

648

Bhalchandra v. State of Maharashtra, 1968 Cri LJ 1501 (SC)

951

Bhaluka Behra v. State of Orissa, 1957 Cri LJ 902

308

Bhikha Gober v. Emperor, AIR 1943 Bom 458

374

Bhima Karsan v. State, 1951 Cri LJ 396 (Kutch)

1112

Bhola Nath v. State, 1976 Cri LJ 1409

Bhoor Singh v. State of Punjab, 1974 Cri LJ 929 (SC): AIR 1974 SC 1256 Bhulakiram Koiri v. State of West Bengal, 1970 Cri LJ 403 (Cal)

Bishan v. State of Punjab, 1981 Chand Cr Cas 243 (P&H): 1982 Cri LJ 22

Bisseswar Poddar v. Nabadwip Chandra, AIR 1961 Cal 300 Bomma Naicken v. Chinna Counder, AIR 1998 Mad 376

87

511 45, 81, 376

64, 68

648 322

TABLE

OF CASES

lix

Boya Burranna (in re:), 1955 Cri LJ 81 (AP)

901

Boya Gajji Pedda Venkatanna (in re:), 1945 Cri LJ 1898 (Mad)

121

Brahma Prakash Sharma v. State of Uttar Pradesh, 1953 SC 1169: AIR 1954 SC 10

127, 128

Breithaupt v. Abram, (1957) 352 US 432: 1 L Ed. 2nd 448

898 Brij Bhushan Raghunandan Prasad v. State of Madhya Pradesh, AIR 1957 MP 106 = 701

C C.V. Devassikutty v. State of Travancore-Cochin, 1953 Cri LJ 1301

1228

Chander Bhan v. State of Gujarat, 1971 Cri LJ 165 (Guj)

676

Chandmal v. State of Rajasthan, 1976 Cri LR (SC) 7: 1976 Cri LJ 679

93

Chandrakant Nyalchand Seth v. State of Bombay, Cr. A No. 120 of 1957

794

Channu Lal v. Rex, AIR 1949 All 692

638

Charan Singh v. State of Punjab, AIR 1975 SC 246: 1974 Cri LJ 1253

505

Chatt Ram v. State of Haryana, (1979) Cri LJ 141: AIR 1979 SC 1890

706

Chelaji Ganaji & Co. v. Bai Jashodra Bai Shambhu Datt Nishi, BLR 1958 Bom 251 Chema Maharaja v. State of Madhya Pradesh, 1969 Cri LJ 1291 (MP)

~— 670 502

Chikka Veerasetty v. Nanjundachari, AIR 1955 Mys 139

663

Chimanlal Bhogilal Shah v. State of Gujarat, (1973) 14 Guj LR 807

688

Chinna Hanumakka (in re:), AIR 1943 Mad 396

808

Chinaihambi (in re:), 1953 Cri LJ 449 (Mad)

1207

Chunni Lal v. State of Haryana, 1977 Cri LJ (Notes) 57 (HC)

118

Cobbett v. Kilminister, (1865) 4 F. and F. 490

695

D D. Yohannan-v. State of Kerala, 1958 Cri LJ 1021

Dagdu v. State of Maharashtra, 1977 Cri LJ 1206: AIR 1977 SC 1579 Dal Chand v. State of Uttar Pradesh, 1969 Cri LJ 585 (All)

1207

84, 86 1108

Dalsukhji Varvaji v. State of Gujarat, 1969 Cri LJ 695 (Guj HC)

882

Darshan Singh v. Prabhu Singh, AIR 1946 All 67

651

Datar Singh v. State of Punjab, AIR 1974 SC 1193

536

Davinder Pal Singh v. NCT Delhi, 2000 Cri LJ 2034

238

Deonandan Mishra v. State of Bihar, AIR 1955 SC 801 Devi Prasad v. State of Uttar Pradesh, 1967 Cri LJ 134 (All)

Dhanna v. State of Rajasthan, AIR 1951 Raj 37

Dharambir v. Punjab, Cri App No 98 of 1958 (SC) Dharamvir Singh v. State of Haryana, 1975 Cri LJ 884 (P&H) Dial Singh Narain Singh v. Rajpal Jagan Nath, AIR 1969 P& H 350 Dissu v. State of Himachal Pradesh, 1953 Cri LJ 84 Doed Devine v. Wilson, (1855) 10 Moo PC 502: 110 R.R. 83

Dulal Chand Adak v. Gunadhar Patra, AIR 1998 Cal 150 Dulichand v. State, AIR 1952 Ajmer 54: 1952 Cri LJ 1575

981, 1231 650

1204, 1232

793 653, 701

259 121 695

319

1108, 1109

Ix

FORENSIC

SCIENCE

IN CRIMINAL

INVESTIGATION

AND

E

Earabhadrappa v. State of Karnataka, AIR 1983 SC 446 Emperor v. Akbar Ali, AIR 1936 Oudh 400 Emperor v. Behram Irani, AIR 1944 Bom 321

TRIALS

|

717 1009 77

Emperor v. Chattarpal, AIR 1930 Oudh 502

791

Emperor v. Gauri Shankar, AIR 1918 All 283

809

Emperor v. Sahdeo, (1907) 3 Nag LR 1: 5 Cri LJ 220) Emperor v. Shetya Timma, AIR 1926 Bom 518 Emperor v. Sikandar, AIR 1930 All 532

311

Eradu v. State of Hyderabad, AIR 1956 SC 316

717

Evans v. Evans, 161 ER466

795

790 810

F

320, 543, 637, 640, Fakharuddin v. State of Madhya Pradesh, AIR 1967 SC 1326: 714, 722, 723, 727 698, 692, 1967 Cri LJ 1917 (MP) Fakirchand v. State of Madhya Bharat, 1955 Cri LJ 1073 (MB)

372

Fakirmohamed v. Emperor, AIR 1928 Pat 129 (F)

307

Farid Ahmed v. State of West Bengal, AIR 1960 Cal 32

701

Fazaluddin Mandal v. Panchanan Das, AIR 1957 Cal 924

648

Findal v. State of Himachal Pradesh, 1953 Cri LJ 1900 (HP)

809

Frye v. United States, 293 F. 1013 (DC Cir 1923)

206

G G. Bhashyakarachivulu (in re:), 1960 Cri LJ 315 (AP)

302

G. Madhavayya v. G. Achamma, AIR 1949 PC 325

648

Gade Lakshmi Mangraju v. State, 2001 Cri LJ 3317 (SC)

174

Ganesh Gogoi v. State of Assam, 1955 Cri LJ 437: AIR 1955 (Assam) 751

362, 368, 375

Gangadharappa v. Basvarraj, AIR 1996 Karn 155

1146

Gangaram v. State of Maharashtra, 1951 Cri LJ 244 (Nag)

1112

Gantam Lal v. State of Uttar Pradesh, Cri LJ 1187 Gauthamkundu v. State of West Bengal, AIR 1993 SC 2295

Gilbert v. California, 388 US 263 (1967)

Gobardhan v. State of Uttar Pradesh, 1959 Cri LJ 30 (All)

519 1146

707

118, 902

Golam Majibuddin v. State of West Bengal, 1972 Cri LJ 1342 (SC)

367

Gopal Singh Gorkha v. State of Uttar Pradesh, 1991 Cri LJ 1239 (HC)

488

Government of India v. Mohammed Issak, 1980 Cri LJ NOC 37

83

Govind Raghunath Sawant v. B.A. Kakade, (1975) 77 Bom LR 214 684 Govinda Reddy v. State of Mysore, AIR 1960 SC 29: 1958 Cri LJ 1489 (Mys) 89, 297 Gulzar Khan v. State of Bihar, AIR 1962 Pat 255: (1962) 2 Cri LJ 84 652, 692, 693, 694, 701 Gurcharan Singh v. State of Punjab, Cr. Rev. No. 304 of 1979 64, 68 Gurcharan Singh v. State of Punjab, 1963(1) Cri LJ 323 SC: AIR 1963 SC 340 495

TABLE .OF CASES

Ixi

Gurdas Singh v. State of Rajasthan, 1975 Cri LJ 1218

535

Gutta Sriramulu Naidu v. State of Andhra Pradesh, (1963) 2 Cri LJ 546 (AP)

668

H

H.G. Nargondkar v. State, AIR 1952 SC 343

670

H.P. Administration v. Om Parkash, 1972 Cri LJ 606: AIR 1972 SC 975 Hadu v. State of Orissa, AIR 1951 Ori 53

397

Haji Mohd. E. Haq v. State, AIR 1959 SC 488

813 674

Haneefa v. State of Kerala, AIR 1966 Ker 229

101

Hanuman ?. State of Rajasthan, 1974 Raj LW 159

305

Hanumant Govind Nargundkar v. State of Madhya Pradesh, Cri. App. No. 56 of 1951 (SC)

811

Hanumant Govind pv. State of Madhya Pradesh, AIR 1952 SC 343: 1952 SCR 1091: 1953 Cri LJ 129

701, 731

Hanumanth v. State of Andhra Pradesh, 1957 Cri LJ 930 (AP)

810

Happu v. Emperor, AIR 1933 All 837 Har Nath v. State of Rajasthan, 1952 Cri LJ 1563 (Ajmer)

810 1110

Harendra Nath Dass v. State of Assam, 1967 Cri LJ 1099 (Assam)

896

Harendra Prasad v. Emperor, AIR 1940 Cal 461

1109

Hate Singh v. State of Madhya Bharat, 1953 Cri LJ 1933 (SC): AIR 1953 SC 468

504, 517

Hatendra Nath Sen v. Emperor, AIR 1931 Cal 441 (442) (A)

297, 543

Hazara Singh v. State of Punjab, 65 Punj LR 223 (1963)

114

Himatlal Ratilal, 12 Guj LR 167: 1971 Cri LJ 165

679

Hira Lal Agarwalla v. State, AIR 1958 Cal 123: ILR (1957) 2 Cal 928

Hukam Singh v. State of Rajasthan, AIR 1977 SC 1063 Hussain Khan v. State of Rajasthan, 1976 Cri LJ 182 (HC)

Hussainara Khatoon v. Home Secy., State of Bihar, (Patna), AIR 1979 SC 1369: 1979 Cri LJ 1045

692, 696

717 79, 526

686

I Iqbal Ahmad v. Ketki Devi, 1976 Cri LJ 244 (All)

293

Isher Dass v. State of Jammu and Kashmir, 1954 Cri LJ 505

1207

Ishwar Singh v. State of Uttar Pradesh, (1976) Cri LJ 1883

1229

Iswari Prasad Misra v. Mohd. Isa, AIR 1963 SC 1728

644, 714, 729

J J.C. Glastaum v. Sonatan Pal, AIR 1925 Cal 485

Jage Ram v. Hans Raj Midha, AIR 1972 SC 140: 1972 Cri LJ 768

651

84, 126

Jai Lal v. Delhi Administration, AIR 1969 SC 15

210

Jai Singh v. State, Criminal Appeal No. 1178 of 1972 (P&H High Court)

642

496 Jaidev and Hari Singh v. State of Punjab, 1963(1) Cri LJ 495 (SC): AIR 1963 SC 612 1229 Jalwanti Lodhin v. State of Bihar, 1953 Cri LJ 1344 (Pat) 78, 526, 534 Janak Singh v. State of Uttar Pradesh, 1972 Cri LJ 1177: AIR 1972 SC 1853s

Ixil

FORENSIC

SCIENCE

IN CRIMINAL

INVESTIGATION

AND

TRIALS

Jaspal Singh v. State of Punjab, AIR 1979 SC 1708: (1979) Cri LJ 1386

“297

Jaya Mala v. State of Jammu and Kashmir, 1982 Cri LJ 1778

1239 645

Jitendranath Gupta v. Emperor, AIR 1937 Cal 99 Joginder Singh v. State of Delhi, 1975 Cri LJ 233 (HC)

1238

Jones v. Owen, (1870) 34 JP 759

pet

Joseph Cheriyan v. State of Travancore-Cochin, 1953 Cri LJ 706 (TC) Juggankhan v. State of Madhya Pradesh, (1965) 1 Cri LJ 763 (SC)

814 808

K K. Thimma Reddi (in re:), 1957 Cri LJ 1091 (AP): AIR 1957 AP 758 Kala v. State of Punjab, 1948 Cri LJ 660 (Lah) Kalicharan Mukherji v. King Emperor, 6 All LJ 184

46, 119, 546 115 645

Kalua v. State of Uttar Pradesh, 1958 Cri LJ 300 (SC): AIR 1958 SC 180

494, 498

Kameshwar Nath v. State, 1957 Cri LJ 276 (All)

644, 645 1207

Kanhaiyalal Sewaram v. State of Madhya Bharat, 1954 Cri LJ 6 Kanhiya v. State of Rajasthan, 1976 Cri LJ 1652 (HC) Kantu Chhagan v. State of Gujarat, 1982 Cri LJ 1113 Karansingh Balubha v. State of Gujarat, 8 Guj LR 31: AIR 1967 Guj 219: 1967 Cri LJ 1142 (Guj HC) Karichiappa Goundan (in re:), AIR 1942 Mad 285 Kartarey v. State of Uttar Pradesh, AIR 1976 SC 76

83, 1203 1213 882 1109 1228

Keshavlal Trikamlal v. State of Gujarat, 1954 (1) Cri LJ 94 (Gu)j)

Keshavlal v. State of Madhya Pradesh, 2002 Cri LJ 1775 (SC)

Kessarbai v. Jethabai, AIR 1928 PC 277

Khatak Singh v. State of Madhya Pradesh, 1957 Cri LJ 1138 (MP) King v. Worry, (1952) NZLR 111 Kishore v. State of Orissa, 1967 Cri LJ 1155 (HC): AIR 1967 Ori 118

Krishnaranjan v. Doraswamy Chettiar, AIR 1966 Ker 305 Kuldip Sham v. State of Punjab, (1980) Cri LJ 75

1239 980, 981, 1232

Kurban Hussain Mohamedalli Rangawalla v. State of Maharashtra, 1965 (2) Cri LJ (SC) Kuruma, Son of Kanju v. R, 1955 AC 197 Kutuhal Yadav v. State of Bihar, 1954 Cri LJ 1802 (SC)

978 257 1227

i Lachhman Singh v. State of Punjab, 1952 Cri LJ 863 (SC)

Lal Chhatrapati Sai v. State of Orissa, 1976 Cri LJ 1342 (HC)

Laloo v. State of Rajasthan, 1963 Cri LJ 1853 Laxmipat Chorasia v. State of Maharashtra, AIR 1968 SC 938: 1968 Cri LJ 1124 Lianthlira v. State of Assam, 1952 Cri LJ 1272

Lobana Vasantlal Devchand v, State of Gujarat, 1968 Cri LJ 1277 Lucas v. Williams and Sons, (1892) 2 QB 113

1221 95, 541 1221

661 1208 1112 660

TABLE

OF CASES

Ixiii

M M. Narayanaswami

2. Y. Jangultanna,

1974 (2) APL]

178: AIR 1975 AP 88

M.L. Ahuja v. State of Himachal Pradesh, 1975 Cri LJ 330 M.P. Sharma v. Satish Chandra, AIR 1954 SC 300: 1954 SCR 1077

1101

126 103, 105, 106, 107, 108, 110, 1064, 1065

M’Cullough v. Munn, 1908 (2) IR 194

659

100, 179

Madan Lal »v. State of Rajasthan, 1976 Cri LJ 1485 Madan Mohan Raj v. State of Orissa, 1996 Cri LJ 2580

297

Madhavarao Bhagwandas Kharade v. State of Gujarat, (1971) 12 Guj LR 956: 1971 Cri LJ 1626

897

Madigo Boosena v. State, 1967 Cri LJ 1398 (SC): (1967) 3 SCR 871:

AIR 1967 C 1550

875, 902

Magan Bihari Lal v. State of Punjab, AIR 1977 SC 1019

713

Maghar Singh v. State of Punjab, 1975 Cri LJ 1102 (SC)

1068

Mahabir Mandal v. State of Bihar, 1972 Cri LJ 860: AIR 1972 SC 1331

Mahadevayya v. State of Mysore, 1966 Cri LJ 270 (Mys)

806

121, 122, 888, 889

Mahindra v. Mahalaxmi Bank Ltd., AIR 1945 PC 105

648

Mahipal v. State of Rajasthan, 1971 Cri LJ 1405 (Raj)

1067

Mahmood v. State of Uttar Pradesh, 1976 Cri LJ 10: AIR 1976 SC 69

89

Makhan Lal v. State, AIR 1958 Cal 517

667, 668

Maliah v. State of Mysore, 1956 Cri LJ 253 (Mys)

641

Mallela Suryanarayana v. Vijaya Commercial Bank Ltd., AIR 1958 AP 756

1146

Maneka Gandhi v. Union of India, AIR 1978 SC 597

685

Mangal Singh v. State of Punjab, 1996 Cri LJ 3258 Mangobinda Swain v. State of Orissa, 1978 Cri LJ 127 Mani Ram v. State of Rajasthan, 1993 Cri LJ 2530 Manmohan Singh Johal v. State of Punjab, AIR 1969 P&H 225

1226 377 1248 644

Mansuri v. State of Bihar, 1955 Cri LJ 1092 (Pat)

499

Marachalil Pakku v. State of Madras, 1954 Cri LJ 1668 (SC)

165, 1103

Marudai (in re:), 1960 Cri LJ 1102 (Mad)

1235

Marudevi Avva v. State of Kerala, 1958 Cri LJ 37 (Ker)

1013

Mary Ann Nosh, 1911 Cr App R. 225

796

Masalti v. State of Uttar Pradesh, 1965 (1) Cri LJ 226: AIR 1965 SC 202

501

Masha Angami v. Manipur Adm., 1968 Cri LJ 187 (Manipur)

949 368, 1068

Mazahar Ali v. State of Jammu & Kashmir, 1976 Cri LJ 1622 (J&K) Medu Sekh v. State, 1972 Cri LJ 362

172

Meera Puri v. State of Nagaland, 1971 Cri LJ 539 (Assam and Nagaland)

494

Mobafik Ali Ahmed v. State of Bombay, 1957 Cri LJ 1346 ( SC)

669

Mohamed Dastagir v. State of Madras, AIR 1960 SC 756

108

Mohammad v. State of Uttar Pradesh, AIR 1976 SC 69: 1976 Cri LJ 10

Mohan v. State of Uttar Pradesh, Cr. App. No. 108 of 1959

|

303

795

lxiv

FORENSIC

SCIENCE

IN CRIMINAL

INVESTIGATION

TRIALS

AND

Mohan v. State of Uttar Pradesh, 1960 Cri LJ 1011 (SC): AIR 1960 SC 659

= 791, 792, 794

Mohan Lal v. Ajit Singh, 1978 Cri LJ 1107: AIR 1978 SC 1183

301

Mohan Singh v. State of Punjab, 1975 Cri LJ 1865 (SC)

549

Mohan Singh and Teja Singh v. State of Punjab, Cri. Appeal No. 414 of 1969 (P&H) Mohanlal v. State of Rajasthan,1960 Raj LW 565: 1961 (1) Cri LJ 155 Mohd. Aman v. State of Rajasthan, AIR 1997 SC 2960

517 77,524 315 1253

Mohd. Zahid v. State of Tamil Nadu, 1999 Cri LJ 3699 (SC)

114

Mohinder Singh v. State of Punjab, (1961) 63 Punj LR 434 Mohinder Singh v. State of Punjab, 1953 Cri LJ 1761 (SC): AIR 1953 SC 415

121, 494, 495, 496, 547, 1204

Morris v. Gantous, (1941) 47B, de jur, 150

1107

Mt. Gajrani v. Emperor, AIR 1933 All 394

794

Mukhtikar Singh v. State of Punjab, 1971 Cri LJ 1298 (SC): AIR 1971 SC 1864

502

Muniswamy R. v. P. Pandiarajan, (1993) I Mad LW 186

321

Murarilal v. State of Madhya Pradesh, AIR 1980 SC 531: 1980 Cri LJ 396

377, 643, 671, 672

Mushtaq v. State of Uttar Pradesh, 1954 Cri L] 1288 (All)

1111

N N. Sri Rama Reddy v. V.V. Giri, (1971) 1 SCR 399: AIR 1971 SC 1162

256

N.C. Kolli v. Nannibnand, AIR 1960 Mys 220

652

N.D. Dhayagude v. State of Maharashtra, (1977) Cri LJ 238 (SC)

1102

N.K. Marulkar v. State of Bombay, 1967 Cri LJ 858 (Bom) Nachhittar Singh v. State of Punjab, 1975 Cri LJ 66 SC.

882 506

Nankhusingh v. State of Bihar, AIR 1972 SC 590: (1972) Cri LJ 1204: (1972) 3 SCC 590

78,525

Narain Rao Jamdar v. State of Madhya Bharat, 1952 Cri LJ 291 (MB)

813

Narayan Dutta v. State, 1980 Cri LJ 264

1112

Narayanan Nair v. State, 1952 Cri LJ 1095 (Travancore-Cochin)

894

Nardeo Singh v. State of Uttar Pradesh, 1953 Cri LJ 1677 (All)

122

Naryana Rao v. State of Andhra Pradesh, AIR 1957 SC 737

681

Nawab Singh >. State of Uttar Pradesh, 1954 Cri LJ 738 (SC): AIR 1954 SC 278

500

Nema Adak v. State of West Bengal, 1965 (1) Cri LJ 160 (Cal)

950

New Bank of India v. Sajitha Textiles, AIR 1997 Ker 201

713

Nihal Singh v. State of Punjab, AIR 1965 SC 26: (1965) 1 Cri LJ 105

78, 525, 1220

Nirbhai Singh v. State of Madhya Pradesh, 1972 Cri LJ 1474 (MP)

519

Nirmal v. State of Punjab, 2002 Cri LJ 447

738

Nityananda v. Rashbehari, AIR 1953 Cal 456

665, 668

O O. Bharathan v. K. Sudhakaran, (1992) 2 JT (SC) 384: AIR 1996 SC 1140 Olmestead v. U.S., (1928) 277 US 438

320

88

TABLE

OF

CASES

Ixv

Om Prakash v. State of Haryana, 1971 Cri LJ 1109 (SC): AIR 1971 SC 1388

Oomayam (in re:), AIR 1942 Mad 452

532

368, 369 P

P. Bharathan v. K. Sudha Karan, AIR 1996 SC 1140 Padala Veera Reddy v. State of Andhra Pradesh, 1991 SCC (Cri) 407:

is)

AIR 1990 SC 79

717

Palani Goundon (in re:), 1957 Cri LJ 976 (Mad) Palania Pillai v. State, 1991 Cri LJ 1568

896 731

Palaniswami (in re:) , 1965 (2) Cri LJ 370 (Mad) Palaniswamy v. State of Maharashtra, 1968 Cri LJ 453 (Bom)

881, 894 92

Palaniswamy Vaiyapuri (in re:), 1963 Cri LJ 453 (Bom) Palvinder Kaur v. State of Punjab, 1953 Cri LJ 154

811

Paramananda Mahakud v. State of Orissa, 1970 Cri LJ 931 (HC)

510

805

Paramban Manmmadhu (in re:), 1952 Cri LJ 1951 (Mad): AIR 1951 Mad 737

362, 368, 369, 374

Parsad Mahto v. Mt. Jasoda Koer, AIR 1937 Pat 328

652

Parshotam Dass v. Delhi Administration, 1975 Cri LJ 309

662

Partap Singh v. State of Punjab, AIR 1964 SC 72

257

Parwat v. Sukhdev, 1956 Cri LJ 1069 (Bom)

675

People v. Strauss, (1940) 174, Misc. 881, 22 N. Y. S. 2d 155

Periyasami Thevan v. State of Madras, AIR 1950 Mad 714

1067

~

1104

Phool Kumar v. Delhi Administration, AIR 1975 SC 905: 1975 Cri LJ 778

Piara Singh v. State of Punjab, (1982) 84 Punj LR 244: 1982 Cri LJ 1176

309, 311

64

Pitamber v. State of Uttar Pradesh, 1975 Cri LJ (HC)

875

Prabhu Babaji Navle v. State of Bombay, AIR 1956 SC 51: 1956 Cri LJ 147 (SC)

120, 888, 1104

Prabhunath v. State of Uttar Pradesh, 1957 Cri LJ 1056 (All)

901

Prahlad v. State of Maharashtra, 1978 Cri LJ 829

900

Pravinkumar Lalchand Shah v. State of Gujarat, 1982 Cri LJ 763

689

Prem Chand v. Union of India, 1981 Cri LJ 5 (SC)

88

Prem Shanker v. State of Uttar Pradesh, 1957 Cri LJ 108 (All) Pritam Singh v. State of Punjab, 1956 Cri LJ 85 (SC): AIR 1956 SC 415 |

674 40, 364, 368, 369, 376, 547, 1064

Pritam Singh v. State of Punjab, 1964 Cri LJ 39 Priti Ranjan Ghosh v. State of West Bengal, (1973) 77 Cal WN 865 Prospective Publications (P.) Ltd. v. State of Maharashtra, 1971 Cri LJ 278 (SC): AIR 1971 SC 221 Public Prosecutor v. Kandasami Thevan, AIR 1927 Mad 696: 27 Cri LJ 1251 Public Prosecutor v. Mohini Sankara Das, 1956 Andh WR 572

Public Prosecutor v. Virammal, AIR 1923 Mad 178 (D)

114 701 128 303 1109

298

Ixvi

FORENSIC

SCIENCE

IN CRIMINAL

INVESTIGATION

AND

TRIALS

Q

. 370, 375

Queen-Empress v. Fakir Md. Sheik, (1979) 1 Cal WN 33

R 168, 170

R. v. Montgomery, 1886 NI 160

670

R. Asri (in re:), 1972 Cri LJ 1226 (Mad) R. Venkatesan v. State, 1980 Cri LJ 49

260

1111

R.K. Agarwal v. State of Orissa, 1976 Cri LJ 1376: AIR 1976 SC 1976 R.M. Malkani v. State of Maharashtra, 1973 Cri LJ 228: AIR 1973 SC 157

R.P. Ulaganambi v. K.C. Loganayaki, 1986 Cri LJ 1522 R.S. Nayak v. A.R. Antulay, AIR 1984 SC 684: 1984 Cri LJ 613 Raghav Prapanna Tripathi v. State of Uttar Pradesh, AIR 1963 SC 74

1146 672

80 126

Raghubir Saran (Dr.) v. State of Bihar, AIR 1964 SC 1

123, 163

Raghunandan v. State of Uttar Pradesh, 1974 Cri LJ 453 (SC)

1241

Raisul v. State of Uttar Pradesh, (1977) Cri LJ 555 (SC)

690

Raj Mohammad v. State of Himachal Pradesh, 1995 Cri LJ 815 Ram Babu Misra v. State, AIR 1980 SC 791

59, 655

Ram Bharosey v. Emperor, AIR 1936 All 269 Ram Chandra v. State of Uttar Pradesh, 1957 Cri LJ 559 (SC): AIR 1957 SC 381

27

638 641, 644, 647, 671, 714

Ram Karan Mistri v. State of Bihar, AIR 1958 Pat LR 246

Ram Lochan v. State of West Bengal, (1963) 2 Cri LJ 170 (SC) Ram Narain v. State of Punjab, 1975 Cri LJ 1500 (SC): AIR 1975 SC 1727 Ram Narain v. State of Uttar Pradesh, 1973 Cri L] 1187 (SC): AIR 1973 SC 2200 Ram Prasad v State of Madhya Pradesh, 1953 Cri LJ 702 (Bho)

Ram Prasad Sharma v. State of Bihar, 1970 Cri LJ 496: AIR 1970 SC 326

Ram Singh Badhar Singh v. State of Gujarat, 1960 Cri LJ 1207 Ram Singh Dessa Singh v. State of Maharashtra, AIR 1963 Bom 68

Rama Nand v. State of Himachal Pradesh, 1981 Cri LJ 305 (SC)

375

1220 80, 491

638, 729 1104

500

97,176 888, 889

83

Rama Swami v. State of Tamil Nadu, 1951 (2) ML] 630

522

Ramanathan v. State of Tamilnadu, 1978 Cri LJ (SC) 318: 1978 Cri LJ 1137

488

Ramesh Ramdas v. State of Maharashtra, 1976 Cri LJ 310 (SC) Rameshchandra Tukaram Palekar v. State of Gujarat, 1980 Cri LJ NOC 9: AIR 1980 Guj 1 Rameshwar Dass v. State of Punjab, 1975 Cri LJ 1630

1102

Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54 Rameswar v. State of Rajasthan, 1954 Cri LJ 547 (SC) Ramkala Prasad v. Emperor, AIR 1946 All 191: 47 Cri LJ 611 Ramkaran Singh v. Emperor, AIR 1935 Nag 13 Ranjit Sinha v. State of Bihar, (1963) 2 Cri LJ 36 (Pat) Rattan Lal v. State of Maharashtra, 1966 Cri LJ (SC)

99, 178

114, 117

1109 1112 1109 118 635

881

TABLE

OF CASES

Ixvii

Rau Chima Chougule v. State of Maharashtra, (1978) Cri LJ 14: AIR 1977 SC 2407 Ravjappa v. Nilakanta, 1962 (1) Cri LJ 441 (Mys)

1102

650

Reg. v. Commr. of Police of the Metropolis, Ex parte Balakbum (No. 2),

(1908) 2 WLR 1204

126

Reg. v. Hodge, (1838) 2 Lewin

811

Reg. v. Onufrejezyk, (1955) 13 QB 388

80

Rex v. Magsud Ali and Ashiq Hussain, (1965) 2 All ER 461 Rochin v. People of California, (1952) 342 US 165

Rudragouda Venkangouda v. Basangouda, AIR 1938 Bom 257 Rup Chand v. Mahabir Parshad, AIR 1956 Punj 173

258 1064 692 257, 258

S S. Gopal Reddy v. State of Andhra Pradesh, 1996 Cri LJ 3246 S.G. Gundegowda v. State, 1996 Cri LJ 866

489

S.M. Basu v. S.R. Sarkar, 1961 (2) Cri LJ 204 (Cal)

652

S.N. Vyas v. State of Rajasthan, 1966 Cri LJ 798

126

S.P. Chokhani v. State of Maharashtra, AIR 1951 Nag 226 S.R. Chavan (in re:), 1972 Cri LJ 1108 (Mys)

661

S.S. Sundaram (in re:), 1975 Cri LJ 1196 (Mad)

Sajeera v. P.K. Salmi, 2000 Cri LJ 1208 Salig Ram v. State of Himachal Pradesh, 1973 Cri LJ 1030 (HP)

75

1237 533 1146 651

Samedas v. State of Madhya Pradesh, 1969 Cri LJ S. No. 54

Trt

Sanjay Goel v. State of Uttar Pradesh, 2002 Cri LJ 625 (All)

658

Santa Singh v. State of Bihar, 1956 Cri LJ 930 (SC): AIR 1956 SC 526

499

Santa Singh v. State, (1970) 72 Punj LR 618 Sanwal Singh v. State of Rajasthan, AIR 1961 SC 715: 1961 (1) Cri LJ 766

Sarabjit Singh v. State of Punjab, 1970 Cri LJ 954 (P&H) Satbir Singh v. State of Haryana, 1995 Cri LJ 741

65, 67 93 115 1220

Satbir v. State of Uttar Pradesh, 1982 Cri L] 1744

Jae

Sattar Khan v. State of Madras, AIR 1939 Mad 283

119

Satya Rao v. State of Andhra Pradesh, 1954 Cri LJ 1529 (Andh)

894

Scherber v. California, 384 US 757, 86 S. Ct. 1826 (1966)

707

Sewa Ram v. State,1976 Cri LJ 242

539

Shakila Khader v. Nausher Gama, 1975 Cri LJ 1105

1014

Shakti Kumar v. Subodh Kumar, AIR 1964 SC 529

671

Shamim Rahmani v. State of Uttar Pradesh, 1975 Cri LJ 1654: AIR 1975 SC 1883

537

Shamnugam (in re:), 1954 Cri LJ 486 (Mad)

894

Shankaria v. State of Rajasthan, 1978 Cri LJ 1251 (SC): AIR 1978 SC 1248

Shashi Kumar v. Subodh Kumar, AIR 1964 SC 529 Shatrughun v. State of Madhya Pradesh, 1993 Cri LJ 122 Sheo Shankaer v. State of Uttar Pradesh, 1953 Cri LJ 1400: AIR 1953 All 652

307, 377 714 1113 513

Ixvill

FORENSIC

SCIENCE

IN CRIMINAL

INVESTIGATION

TRIALS

AND

., 900 643

Sheru v. Emperor, AIR 1926 Lah 232 Shiv Chand »v. Ujagar Singh, (1980) 2 SCC 1977

76, 1222

Shiva Ji v. State of Maharashtra, AIR 1973 SC 2622: 1973 Cri L] 1783

636

Sita Nath Basak v. Mohini Mohan Singh, AIR 1924 Cal 595

1067

Smith v. United States, 194 F. 2d 192 D.C. Cri 1950

538

Sohrab v. State of Madhya Pradesh, 1972 Cri LJ 1302: AIR 1972 SC 2020

Som Parkash v. Delhi Administration, 1974 Cri L] 784 (SC) Sri Chand Batra v. State of Uttar Pradesh, 1974 Cri LJ 590: AIR 1974 SC 639 Srichand K. Khetwani v. State of Maharashtra, 1967 Cri LJ 414 (SC)

98, 113, 177 875

635

Sripada Sinal Duclo v. Goa, Daman, Deo Adm., 1976 Cri LJ 145

650

State v. A.Gopalan, MLJ 1966 (Cr) Ker 67

671

State v. Air Commodore Kailash Chand, AIR 1980 SC 522: (1980) Cri LJ 393

672

State v. Amar Singh, 1972 Cri LJ 1578

126

State v. Bhausa, 1962 (2) Cri L] 466

*

State v. Chaudhary, AIR 1996 SC 1491

888

58

State v. Maclaughlin, (1916) 138 La, 958: 70 SC 925

1067

State v. Poonam Chand Gupta, ILR (1958) Bom 299: AIR 1958 Bom 207 State v. Ramsingh Desasingh, AIR 1963 Bom 68: 64 Bom LR 451 State v. Sarungadhar Bhoi, (1972) 38 Cut LT 734 State v. Sheshappa, AIR 1964 Bom 253: 1964 (2) Cri LJ 523

692, 693

State v. Stanislaw ski, 62 Wis. 2d. 730 (1974), Wisconsin Supreme Court

208

120, 888 95

897 1067

State v. Tettaon, (1900) 159 Mo. 354: (60 SW 743) State v. Valdez, 91 Ariz 274 (1962)

207

State v. Vinaya Chandra Chhotalal Pathi, 1967 Cri LJ 668 (SC)

635

State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14:

1979 Cri LJ 20 (SC): (1979) 2 SCC 158

320, 682, 699, 700, 719, 722, 723, 724, 725

State (through CBI, New Delhi) v. S.J. Chaudhary, AIR 1996 SC 1491

737

State Govt. of Madhya Pradesh v. Sheodayal Gurudayal, AIR 1956 Nag 8 State of Andhra Pradesh v. Madiga Boosenna, AIR 1967 SC 1550: (1967) 3 SCR 871: 1967 Cri LJ 1398

875

State of Assam v. U.N. Rajkhowa, 1975 Cri LJ 354

1217

State of Bihar v. Bhullaram Koid, 1971 Cri LJ 187 (Pat)

46

State of Bihar v. Hanuman Koeri, 1971 Cri LJ 182 (Pat) State of Bihar v. Karu Gope, 1954 Cri LJ 201 (Pat): AIR 1954 Pat 131

48, 496, 497, 498

= 164, 300, 375, 674

te of Bombay (now Gujarat) v. Narandas Mangilal Agarwal, 1962 SCR 15 (Supp) (1): AIR 1962 SC 579

881

State of Bombay v. Hiraman Punjab Vidhati, 1965 (2) Cri LJ 349 (Bom)

State of Bombay (1962) 3 SCR State of Gujarat State of Gujarat

v. Kathi Kalu Oghad, AIR 1961 SC 1808: 10: 1961 (2) Cri LJ 856 (SC) v. C.P. Solanki, 1971 Cri LJ 1381 (HC) v. Chinubhai Gopaldas, 1968 Cri LJ 1478 (SC)

1109

1111

58, 111, 652, 653, 690, 693, 701, 1064 879 902

TABLE

OF CASES

State of Gujarat v. Ibrahim Mohd, 1975 Cri LJ 1089 (HC)

State State State State

of of of of

Gujarat v. Inayathusen Mohamdmiya, 1996 Cri LJ 3225 Gujarat v. Shyamlal Mohanlal Choksi, AIR 1965 SC 12 Haryana v. Jagbir Singh, 1996 Cri LJ 2545 Haryana v. Radhey Shyam, 1977 Cri LJ 528

lxix

897 1240 1064 657 876

State of Himachal Pradesh v. Kishan Dayal, 1952 Cri LJ 1128 (HP)

638

State of Himachal Pradesh v. Ram Singh, 1973 Cri LJ 150 (Simla)

496

State of Himachal Pradesh v. Shiv Devi, 1959 Cri L] 448 (HP)

121, 813

State of Kerala v. Anthony, 1978 Cri LJ NOC 73

118

State of Kerala v. K.K. Sankaran Nair, AIR 1950 Ker 392

105

State of Madhya Pradesh v. Babu Lal, Ram Ratan, 1958 Cri LJ 190 (MP)

167

State of Madhya Pradesh v. Dhannelal, 1961 (2) Cri LJ 233 (MP)

650

State of Madhya Pradesh v. Dig Vijay Singh, 1981 Cri LJ 1279 (SC)

ga

State of Madhya Pradesh v. R. Ori. Limsey, 1954 Cri LJ 244 (SC)

813

State of Madhya Pradesh v. Ram Prasad, 1986 Cri LJ 1025 (SC)

977

State of Madhya Pradesh v. Sita Ram Rajput, 1978 Cri LJ 1220 (SC)

40, 313

State of Madras v. Chinappa Pujary, 1952 Cri LJ 703 (Mad)

902

State of Maharashtra v. Damu Gopinath Shinde, 2000 Cri LJ 2301

738

State of Maharashtra v. Kathi Kalu, AIR 1961 SC 1808

654

State of Maharashtra v. Madhukar Gopinath Lolge, 1967 Cri LJ 167 (Bom): AIR 1967 Bom 61 State of Maharashtra v. Sheshappa, 1981 Cri LJ 133 State of Mysore v. Billavara Kukkappa, 1960 Cri LJ 1475 (Mys)

875, 878 899 896

State of Orissa v. Kanhu Charan Barik, 1983 Cri LJ 133

377

State of Orissa v. Kaushalya Devi, (1965) 1 Cri LJ 321 (Ori)

793

State of Orissa v. Matuba Barik, 1978 Cri LJ 260

901

State of Orissa v. Parvatiam, 1963 (1) Cri LJ 310

1110

State of Orissa v. Ram Chandra Bhoi, 1965 (2) Cri LJ 525: AIR 1965 Ori 175

504

State of Orissa v. Sapneswar Thapa, 1987 Cri LJ 614

643

State of Punjab v. Behari Lal, AIR 1953 Punj 218: 1953 Cri LJ 1427 State of Punjab v. Jugraj Singh, 2000 Cri LJ 1503 (SC) State of Punjab v. Nachattar Singh, 1982 Cri LJ 1197 State of Rajasthan v. Chater Singh, ILR (1962) 12 Raj 103 State of Rajasthan v. Daulat Ram, AIR 1980 SC 1314: 1980 Cri LJ 929

State of Rajasthan v. Hari Singh, 1969 Cri LJ 445 (Raj)

State of Rajasthan v. Motia, AIR 1955 Raj 82: ILR (1953) 3 Raj 655 State of Rajasthan v. Nanu Ram, (1978) Cri LJ NOC 80 State of Rajasthan v. Shankariya, 1977 Cri LJ 684

164, 1103 552, 1249 64, 65, 69 1009 62, 64, 68 1010 44, 116, 304 1102 306

State of Uttar Pradesh v. Ashok Kumar Srivastava, (1992) 2 SCC 86: 1992 Cri LJ 1104: 1992 AIR SCW 640

717

State of Uttar Pradesh v. Deomen Upadhyaya, AIR 1945 SC 300

107

Ixx

FORENSIC

SCIENCE

IN CRIMINAL

INVESTIGATION

AND

TRIALS . 810

State of Uttar Pradesh v. Fateh Bahadur, 1958 Cri LJ 4 (All) State of Uttar Pradesh v. Mohd. Nairn, AIR 1964 SC 703: (1964) 1 Cri LJ 549

State of Uttar Pradesh v. Ram Babu Misra, AIR 1980 SC 791:

1980 All LJ 350

126

654, 657, 701 1241

State of Uttar Pradesh v. Shanker, 1981 Cri LJ 29 (SC)

rg¥/ 674

State of Uttar Pradesh v. Sukhbasi, AIR 1985 SC 1224 State of Vindhya Pradesh v. Krishna Nand, AIR 1953 VP 21 State of West Bengal v. Nitya Gopal Basak, 1985 Cri LJ 202 (Cal) Subayya Gounder v. Bhoopala Subramaniam, 1959 Cri LJ 1087 (Mad) Subbarao v. Venkata Rama Rao, AIR 1964 AP 53

1107 662

Subhash v. State of Uttar Pradesh, 1976 Cri LJ 1521: AIR 1976 SC 1924

514, 527, 1205

637

Subodh Kumar v. Soshi Kumar, AIR 1958 Cal 264 Sucha Singh v. State of Punjab, AIR 1951 Shimla 283 Sudarshan Kumar v. State of Delhi, 1975 Cri L] 14 (SC) Sudhindhra Nath Dutta v. The King, AIR 1952 Cal 422

650 1223, 1225 812, 814

644, 671 552

Sukhwant Singh v. State of Punjab, 1995 (3) SCC 367 Suleman Usman Memon v. State of Gujarat, (1961) 2 Cri LJ 78 (Guj): AIR 1961 Guj 120 45, 77, 120, 121, 888 Sunderlal v. State of Madhya Pradesh, AIR 1954 SC 28: 1954 Cri LJ 257 728 Sunil Chandra Roy v. State of West Bengal, 1954 Cri LJ 805 (Cal)

125

Supdt. and Remembrancer of Legal Affairs, West Bengal v. Satyen Bhowmick, AIR 1981 SC 917

686

Surajpalsingh v. State of Madhya Pradesh, 1972 Cri LJ 1668 (MP)

366

Surinder Pal Jain v. Delhi Administration, 1993 Suppl (3) SCC 681: 1993 AIR SCW 1561: AIR 1993 SC 1723: 1993 Cri LJ 1871

174

Suriya Kanta Sarkar v. State of Assam, 1977 Cri LJ 268

119

Suruttayam v. State of Madras, 1954 Cri LJ 672 (Mad)

901

Syed Mohd. Ghouse v. Noorunnisa Begum, 2001 Cri LJ 2028 (AP)

a T. Munirathnam Reddi (in re:), 1955 Cri LJ 917 (SC)

1146

522

T. Subbiah v. S.K.D. Ramaswamy Nadar, AIR 1970 Mad 85: 1970 Cri LJ 254 652, 693, 701 Tahsildar Singh v. State of Uttar Pradesh, 1958 Cri L] 424: AIR 1958 All 255 512 Takar v. State of Uttar Pradesh, 1955 Cri LJ 473

Tamanlal Rathi v. State of West Bengal, 1952 Cri LJ 1951 (Cal)

Tanviben Pankaj Kumar Devaetia v. State of Gujarat, AIR 1997 SC 2193

1204, 1233

659

1245

Tara Ram Chand v. State of Punjab, 1971 Cri LJ 1201 (HC)

664

Tarafatullah v. S.N. Maitra, 1953 Cri LJ 129 (SC)

670

Tehal Singh v. State of Punjab, Cr. Rev. No. 219 of 1979 Thimmiah v. State of Mysore, 1967 Cri LJ 785 (Mys) Tilak Raj v. State of Punjab, 67 Pun LR 128 (1965)

64, 68 896 114

TABLE

OF CASES

Tilakdhari Bhagat v. Jagat Rai, AIR 1961 Pat 76 Tirtha Bahadur Bhojal v. State of Assam, 1955 Cri LJ 782 Titli v. Alfred Robert Jones, AIR 1934 All 273: ILR 56 All 428 Towell’s case, (1854) 2 C and K 309

Ixxi

652 1235 118, 697 801

Tulsi Ram Kannu v. State, 1954 Cri LJ 225 (SC)

1104

U Ukha Kolhe v. State of Maharashtra, AIR 1963 SC 1531: 1963 (2) Cri LJ 418

305, 886

Ukhasia v. State of Manipur, 1956 Cri LJ (Manipur)

641

United Commercial Bank v. B.M. Mahadeva Babu, AIR 1992 Karn 294

7i2

United States v. Mara, 10 Cri L 2235 (7th Cir), 1971

707

V Venkataswami v. Laxminarayana, 1959 Cri LJ 428 (AP)

636

Venkateswarlu v. Subbayya, (1951) 1 Mad LJ 580: AIR 1951 Mad 910 (1)

1107

Vidyamati v. State of Himachal Pradesh, 1953 Cri LJ 33

1208

Vijay Singh v. State of Madhya Pradesh, 2000 Cri LJ 650 Vijay Singh v. State of Maharashtra, 1966 Cri LJ 168 (SC)

551 881

Vishwa Nath Mahadev Kar Khanis v. State of Maharashtra, 1991 Cri LJ 3150

716

Vrajlal Damodar v. State of Gujarat, (1971) 12 Guj LR 69

896

W

Willie (William) Slaney v. State of Madhya Pradesh, AIR 1956 SC 116: 1956 Cri LJ 291

680

Wisconsin State v. Bohner, 210 Wis 651 (1933)

206

Y Yerra Kanakarao v. State of Andhra Pradesh, 1975 Cri LJ 953 (HC)

875

Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC 147:

258, 259, 260

1968 Mad LJ (Cri) 247

CBM

SUPPLEMENT SYNOPSIS

¢ ¢ * ¢ ¢ * ¢ * ¢ ¢ ¢ ¢ * ¢

DNA TEST PROVIDES PERFECT IDENTITY AND IS ADMISSIBLE DNA ANALYSIS: COURT'S DIRECTIONS AND COMMENTS SECOND DNA TEST PERMISSIBLE SUPREME COURT ON CIRCUMSTANTIAL EVIDENCE SUPREME COURT ON HANDWRITING ACCEPTABILITY SUPREME COURT ON SPECIMENS UNDER SECTION 73, INDIAN EVIDENCE ACT EXEMPLARS TO BE TAKEN IN OPEN COURT DOCUMENT EXPERT NOT COVERED UNDER SECTION 293 CR. P.C. CERTIFIED PHOTO-COPY ADMISSIBLE AS SUBSTITUTE FOR THE ORIGINAL DOCTOR’S UNPROFESSIONAL CONDUCT SUPREME COURT ON BOOKS AS AUTHORITIES AGE OF INJURIES NOT EXACT COURT—NO SUPER EXPERT DETECTIVE DYES USEFUL DNA

TEST

PROVIDES PERFECT AND IS ADMISSIBLE!

IDENTITY

The said shirt, which was seized from the said car, was sent to DNA Expert to find out whether the shirt had bloodstains of A-1. The said shirt was marked by DNA Expert as 5(a) and was marked by them as Ex. K. which is M.O. 10 and which is a pink coloured shirt. P.-W. 46 DNA Expert was examined in the Court. He holds M.Sc. degree in Criminology and Forensic Science. He also holds Ph.D. degree in Forensic Aspects of DNA and Finger Printing. He further holds a Post-Doctoral qualification in Development of DNA Probes for Forensics. According to his evidence, DNA Finger Printing technique is an absolute method for identification, as on today for individualization of biological sample to the probability value of 99.9998 per cent. The theory of technique lies in the fact that each individual inherits DNA from its parents in the proportion of 50:50. DNA present in any person does not match with other person in the world. According to his evidence, on 17-2-1996 their office received requisition from the Court of the II Additional Munsif Magistrate, Ongole dated 16-2-1996 in which the request was made that four samples of blood of the accused and the injured in Cr. No. 140/95 of Ongole I Town Police Station may be compared by the DNA Finger Printing technique with bloodstained clothing and swabs collected at the scene of offence. Accordingly he carried out the test. We have already stated that 1. Pantangi Balarama Venkata Ganesh v. State of Andhra Pradesh, 2003 Cri LJ 4516.

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the blood samples were already taken with the identity card. They were marked, as KLM being identical DNA finger printing to that of A-1. Thus, the shirt, which was marked as Ex. K and which was marked as M.O. 10 was that of A-1 according to DNA test. Hence, on this evidence the learned counsel Mr. Kannabhiraman pointed out that the Expert deposed that the blood of A-1 is identical to the blood which has been found on Ex. K.M.O. 10 is identical and it is not the same and therefore the learned counsel has submitted that the mistakes are likely to be there in identifying the blood since the samples were collected two months after the incident. He takes the support of an article written by one Lalji Singh, Centre for Cellular and Molecular Biology, Hyderabad in DNA Profiling and its applications in which the learned Author has observed as under: “Precautions:—DNA profiling is technically demanding. There are cases on record in the US where mistakes seem to have been prompted by human errors. There is a need for quality control. Every precaution should be taken to ensure preparation of high—molecularweight DNA, complete digestion of the samples with appropriate enzymes, and perfect transfer and hybridization of the blot to

obtain distinct bands with appropriate control. If necessary the analysis should be repeated. The DNA fingerprinting test, if performed property is infallible. However, there is need to interpret DNA typing with a thorough understanding of the populations involved.” We have no hesitation in accepting the proposition. But it cannot be said that in this particular case, human error has crept in unless it is shown by cross-examination. DNA confirms the identity of victims. Then what is DNA? DNA means: “(Deoxyribonucleic Acid), which is found in the chromosomes of the

cells of living beings, is the blueprint of an individual. DNA decides the characteristics of the person such as the colour of the skin, type of hair, nails and so on. Using this genetic fingerprinting identification of an individual is done like in the traditional method of identifying fingerprints of offenders. The identification is hundred per cent. precise, experts opine. The key feature of this technique is that no matter what biological sample is obtained—hair, a bit of skin, blood—the results are not going to be different. This is because all the cells in the body contain the same set of DNA, something unique for each individual. The test was conducted

in Beena’s murder case.

In the present case, the CFSL and the CCMB conducted tests on the bones recovered by the police and on blood samples of Beena’s blood relatives: her mother Rathi Devaiah, brother Nanjappa and sister Gangamma. The results were astounding: the DNA extracted from the bones found to be belonging to a female aged around 20-25 years. The DNA of the bones also tallied with the DNA in the blood samples of Beena’s mother, sister and brother and was comparatively of the same genetical order. The test according to police, had taken much time as the Hyderabad institutions had to seek expert opinion from institutions abroad.” Section 45 of the Evidence Act reads as under:

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“45. Opinions of experts:—When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts.” Thus, the evidence of DNA Expert is admissible in evidence as it is a perfect science. In the cross-examination P.W. 46 has deposed as under: “If the DNA fingerprint of a person matches with that of a sample, it means that the sample has come from that person only. The probability of two persons except identical twins having the same DNA fingerprint is around 1 in 30 billion world population.” It means that DNA test gives the perfect identity. It is a very advanced science.

DNA

ANALYSIS: COURT’S DIRECTIONS AND COMMENTS!

Mr. Shah, learned counsel appearing for the petitioners while, dealing with the contentions raised in the memo of revision has taken me through some part of the report of a Committee on DNA Forensic Science and the work done by a Commission on DNA Forensic Science published by National Academy Press, Washington D.C. 1996 and has pointed out that in our country without an Act like “DNA Identification Act, 1994” or any other law establishing formal frame work for setting national standard of quality assurances and proficiency testing, the accused should be permitted to participate in the process. He has also quoted some part of a research paper presented during the proceedings of 11th All India Forensic Science Conference by an expert Kashyap V.K., Central Forensic Science Laboratory. BPR & D, Calcutta, wherein the expert focused on some important

aspects of Forensic DNA Technology and has pointed out that in USA and UK and other developed countries, Governments have enacted a special law to introduce DNA testing and provided funds for such federal frame work to introduce DNA testing and make the testing compulsory in analysis of crime exhibits and generating data base on general sample only to see that investigation and prosecution move in the correct direction. An evaluation of Forensic DNA evidence, has always looked to various scopes of error including the laboratory errors and has pointed out number of cases tried and concluded by foreign Courts wherein rape conviction have been overturned since 1992 to 1996. According to me, the years of these overturned cases, are relevant, in light of the facts pointed by Mr. Oza and the say of Dr. Mehta who has assisted the Court as and when the query was raised by the Court during the hearing of this revision application. The apprehension expressed before the Court is qua the DNA evidence collection of the attempts by highly prejudicial investigating agency. A sample, if not properly collected and/or analysed with, (i.e. of general sample and the crime exhibits), then the same could not be called into question, and the accused shall have to face trial and, therefore, when the petitioners have consistently taken the plea of alibi, they should be at least permitted to observe the process 1. Chandan Banalal Jaiswal v. State of Guiarat, 2004 Cri 11 9999

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of drawing of sample from the body of the person of the accused and the process of examination which was to take place in Forensic Science Laboratory (FSL for short), at least from

outside of a window

glass.

It is true that the high profile test is considered irrefutable proof of identification and therefore, it is necessary to establish standard of analysis and accuracy in the level of statistical calculations. The laboratory performing such tests should be submitted to Double Blind Test in which neither the Lab nor the Technicians know what the samples are to ensure that they are working with acceptable quality control. In the present case, it is now the say of the petitioners that they may not be subjected to wrong test or a wrong method (i.e. outdated method) or that the test is being performed against their will and wish. On the contrary Mr. Shah submitted that the accused persons are ready to give general samples from their respective body so that they can strengthen their case and the findings may give strength to there plea of alibi. But the question raised before the Court is whether the investigating agency can be conferred with the authority to resort to DNA test in absence of any special law enacted by the legislature for the said test. The answer would be that under the Cr. P.C. wide powers of investigation are conferred on the investigating agency and when the

present accused are not under police remand/custody, necessary permission can be sought from the Court. The Court can permit, on merit of each case, the

investigating agency to take the accused for necessary test such as Narco analysis, lie detection test or finger printing etc. of the accaused and to draw general sample from the body of an accused person. But obviously, when an accused is asked to undergo DNA analysis while granting such permission to the said authority/agency (when it comes to DNA finger printing analysis/test) appropriate directions can be issued to safeguard the interest of the accused and other relevant aspects as the test has been believed to be conclusive even though the same is sensitive from all biotechnological and sociological point of view. There should not be permission for an invasion on individual privacy and, therefore, the 3 (three) factors determining seriousness of invasion on privacy pointed out by Mr. Shah should be taken care of. These three factors are: (a) whether the person has a reasonable expectation that the information is private and will be accessible by others only with the person’s consent (b) how sensitive the information is i.e., what impact on them might be from nonconsensual

disclosure

and

(c) how

invasive

the method

of obtaining

the

information is? And under such circumstances special safeguards are required to be enacted to protect the information pertaining to Individual DNA analysis/ test.

At this juncture, I would like to quote some part from the book published by Person Education having heading “Understanding Biotechnology” from Chapter 10 titled as “Forensic DNA” wherein the author has stated that. “Considering the DNA analysis a powerful identification technique, it should be used carefully. The sensitivity level of many DNA test is so high that cells from a Technician’s hands or from its sneeze could contaminate the sample. Therefore, care in the collection, custody and manipulation by the biological sample is of great importance for the validity of this analysis.

Finally,

human

being

can

make

mistakes.

Technicians

can

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55

mislable a flask, change codes, change names and so on. Due to many possible errors, many laboratories use double reading in each step of the, analysis. They also save part of the sample for possible re-analysis.” It would be also proper to quote a very relevant portion from a book titled as “Foundation for DNA Finger Printing Evidence” by Jeffrey Lee Ashton dealing with The Evidentiary Matter” and the same is about ‘chain of custody’: “Proof of the chain of the custody of sample used in DNA identity testing present no unusual problems. Procedures already used for collection, storage and transportations of sample used in the standard serology will suffice well for samples used in DNA testing. Care should be taken to seal and label samples properly to ensure the future integrity and the identification of the samples...” Irrespective of the request made by the accused, the Courts are supposed to ensure the laboratory accuracy and should also focus while granting such permission and asking the present accused to undergo DNA finger printing test/ analysis on the aspect of ‘laboratory error.’ Expressing apprehension of vanishing of the entire crime exhibits, it is argued that where there is no scope of duplicate tests of a particular crime exhibit, the prayer of the petitioner being innocuous, should be accepted and the petitioners may be permitted to keep their DNA Forensic examiner (expert) present right from the stage of collection of blood samples till the test analysis are performed. Mr. Oza, learned PP, has strongly resisted the submission and has pointed out that there is no scope of errors as pointed out by Mr. Shah and the

apprehension expressed by him is in reference to the methods earlier adopted by the FSL in performing DNA Finger Printing Test because in early years the Restriction Fragment Length Polymorphism (RFLP) based technology was used. Of course the new technology known as PCR base technology was also adopted during some of these years i.e., between 1987 and 1998. In the year 1997 PCR and sequence based technology was used (which is useful) in determining the material used and/or parental relatedness. At present the latest technologyanalysis technique was is STR technology which has some relation with PCR and the sequence based technology. This STR 1.e., Short Tandem Repeat is the latest one. So the apprehension expressed by Mr. Shah is only relevant, if any earlier or out dated technology is sought to be adopted for analysis/test, in the present case. A statement has been made by the learned PP on instructions from Dr. Mehta JT. Director, who was present in the Court at the instance of the Court, that in the

present case considering the routine procedure of collection of reference blood sample in DNA identification, a format is being prepared and the same is required to be signed and submitted by the person who gives reference blood from his body and he is required to ensure the authenticity of the blood sample

collected for DNA analysis. There is DNA division in the State Laboratory and the format prescribed is to be signed by the responsible medical officer of the hospital and is also supposed to put his seal giving the details providing details in the format prescribed over and above. Such a format carries a recent passport size photograph and the source with a declaration by him as a donor. If the donor

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is a minor or lunatic or otherwise disabled, such declaration has to be signea:, his guardian. In response to a query raised by the Court, Mr. Shah submitted that t petitioners have no objection if the blood sample is drawn from the source by a responsible medical officer and the petitioners shall be co-operative in preparing and signing the format. It is relevant to note that DNA Laboratory of FSL, Gujarat State; Ahmedabad has entered into a MOU with Central Forensic science laboratory, Kolkatta and Centre for DNA Finger Printing and Diagnostic, Hyderabad. The laboratory facilities, instruments and the techniques followed by all the three laboratories

are the same. All the methods/Kits (instruments etc.) used are well-validated for

Forensic Identification purpose and in the present case the analysis which is the latest one i.e. STR is to be applied. The STR technique is the latest one and its human specific, fast and easy to standardise. The technique is automated which ensure better accuracy and reproducibility (emphasis). It is submitted by Mr. Oza that the interpretation of the results is also quite simple and all activities are being done and observed mainly by computers. Therefore, the possible chances of errors are eliminated. The demand for appointment of an observer is not found acceptable as it may demoralize the Forensic Scientist of FSL who is an independent authority and not working either under police or under the guidance or supervision of police authorities. The Role of FSLs can very well be appreciated in the light of the scheme of section 293, Cr. P.C. and other relevant provisions under which these Laboratories are functioning. It is also relevant to note that appointment of an observer may also lead to contamination including leakage of confidential report and even some information and aspects which would otherwise are required to be kept secret. The potential defence witnesses whether ever could be permitted to enter the laboratory is also a question and this proposed invasion whether can create any hurdle or embargo in performing the analysis also would be a crucial aspect, if such private experts starts non-co-operation. If the accused persons have any question or doubt as to the method adopted by the FSL experts, then while examining such expert during the trial the accused positively can bring their own expert who can assist the counsel. The Court can reject the request made of such a nature but, I am afraid, if the

relief as prayed for is granted, it would amount to interference by Court in the investigation. The Courts have no role to play during the investigation nor to regulate the same, which is an accepted proposition of law. The learned Magistrate while passing the order under challenge seems to have followed this proposition of law. The ratio of the decision in the case of Union of India v. Prakash Hinduja, reported in 2003 (5) JT (SC) 300: 2003 Cri LJ 3117, could be attracted

wherein the Apex Court by referring a case reported in 1980 (1) SCC 554: 1980 Cri LJ 98, in the case of State of Bihar v. J.A.C. Saldanha has observed that power of the police to investigate into the cognizable offence is ordinarily not to be interfered with by the judiciary. The legal position is absolutely clear and also settled that the Court would not interfere with the investigation. Such an attempt would mean from the time of lodging of FIR till the submission of the report by the Officer-in-Charge of investigation, in the Court under section 173(2), Cr. P.C.

this field being exclusively reserved for the investigating agency.

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In view of the submissions made by Mr. Oza before the Court and the statement made by him that present analysis technique followed by the FSL, Gujarat State shall be STR which is the latest one, this Court would not interfere in the process to be adopted by the said authorities by granting the relief as prayed. But considering the various aspects brought to the notice of the Court and the other aspects emerging from the record and the materials supplied to the Court while dealing with this revision application, it would be appropriate to give the following directions: (i) that the authorities should see that blood samples are collected by a responsible medical officer preferably in the jail ward itself and by obtaining a declaration with the photograph in the format shown to the Court during the course of hearing of this petition. (ii) if required, the petitioner-accused should be taken to the civil hospital and the blood samples should be drawn by a responsible doctor under a police Japta but the same shall not be treated as handing over the accused to Investigating Officer and the accused shall remain in the custody of the jail authorities. (iii) The FSL, Gujarat State, Ahmedabad should see/ensure that splitting/ division of crime exhibit remains possible. Of course, this would depend upon the size or sufficiency of crime exhibit so that in the event of challenge, duplicate test if required, can be performed as independently as possible and the risk or error can be reduced enormously. If splitting/division of crime exhibit is not possible, then, in such eventuality, the FSL shall inform the Court about vanishing of crime exhibit, (totally used) during process. It is clarified that merely because no Specific Act having been enacted by the Legislature in our country, the investigating agency can resort to call upon the suspect/accused to undergo DNA analysis/test. It may be virtually under the powers conferred on the investigator by Cr. P.C. Thus even if there is vacuum of legislation, the Court is supposed to see that no authority suffers from any type of prejudice. Maximum care ‘if required’ should be taken and it would be wrong to presume any inaction or negligence on the part of the said authorities and especially the doctor who is to draw the sample or FSL experts who have to draw the analysis. Committing some laboratory error would result into wrong finding,

especially when the State has assured that latest technique i.e. STR is to be performed in the present case. I have gone through the relevant part of the booklet given by Mr. Oza throwing light on STR Typing by Automated DNA Sequencer. This deals with STR Makers in Human Identification. The booklet is prepared for the workshop organized by Central Forensic Science Laboratory, Calcutta and sponsored by Applied Biosystems, USA between 27-9-2003 and 1-10-2003. This Court has no reason to ignore the facts and other details emerging from the work done by the Scholars and gathered in research in recent past. For short the apprehension expressed by Mr. Shah is not accepted as well

founded. Of course Mr. Shah and Mr. Oza have assisted this Court immensely by putting their good efforts. Though this is a case where the petitioners-accused

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have accepted that they would undergo DNA Finger Printing Test to see. that their plea of alibi can be strengthened from the finding which may be recorded. But in all other cases also the ratio would remain the same wherein the FSL is asked to play some role in the investigation of a crime because the accused cannot be permitted and should not be permitted to put his own expert either to participate in such investigation or to watch the investigation. Ultimately, it may otherwise, prejudice either the defence or prosecution because it would amount to interference in the process of investigation. In view of the above observations and directions made in para 20 of the judgment, the revision application deserves to be dismissed. Accordingly the revision application is dismissed. Rule discharged.

SECOND

DNA TEST

PERMISSIBLE’

Having considered the order dated 25-11-2003 passed by the learned Sessions Judge, it appears that the order passed by the learned Sessions Judge for allowing second DNA test to be conducted of the petitioner cannot be said without jurisdiction or illegal which would cause any great injustice to the party. As such, the order can be said to be discretionary order which would not call for interference by this Court. I find it proper not to observe further and leave it at that stage, more particularly, in view of the fair stand taken by the learned advocate for the petitioner that the petitioner has also no objection for second DNA test to be conducted at any hospital in Gujarat State. So far as the insistence of the original complainant for getting the DNA test to be conducted at Hyderabad only and not at any other place and acceptance of such request by the learned Sessions Judge in the impugned order, deserves interference. The complainant may be justified at the most in insistence for second DNA test to be conducted. However, such insistence cannot be stretched to the extent of getting the test conducted at a particular laboratory of the choice of the complainant. If such contentions at the instance of the complainant are accepted, it may leave room to large number of other manipulations and complications. It will be for the State to modulate and regulate such procedure to be undertaken since it will be the duty of the State to ensure that the criminal justice is properly administered in the State. The State for various reasons may decide to get such test to be conducted at the nearest laboratory or in an appropriate case the Court may direct the State to get such test conducted at a particular laboratory, but certainly the complainant cannot be said to have any vested right to get such test conducted at a particular laboratory only. Further, no extraordinary circumstances are recorded by the learned Sessions Judge for accepting the contention of the original complainant to get DNA test conducted at Hyderabad only. It has not come on record that the laboratories for conducting DNA test situated in Gujarat are either not useful or the report may create a doubtful situation. In absence of such material on record, in my view, the learned Sessions Judge has committed error in accepting the contention of the original complainant that the DNA test shall and must be conducted at a laboratory situated at Hyderabad only. 1. Vishal Motising Vasava v. State of Gujarat, 2004 Cri LJ 3086.

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In view of the aforesaid discussion, the order dated 25-11-2003 passed by the

learned Sessions shall operate to comparing the modified to the

Judge below application—Exh. 94 in Sessions Case No. 36/02 the extent of ordering the second DNA test of the petitioner by blood of the child—Piyush. However, the order will stand extent that such DNA test shall be conducted at any laboratory

situated in Gujarat State. It will be for the learned Sessions Judge to decide after hearing both sides for the place of the laboratory anywhere in Gujarat. As and

when such test will be conducted for the purpose of blood sample or otherwise, the State shall make arrangements for ensuring that the petitioner is kept present

personally for such purpose and the petitioner shall be at liberty to keep his advocate present at the time when blood samples are to be collected. The original

complainant shall also be at liberty to remain present either with her parents or advocate of her choice.

SUPREME

COURT

ON CIRCUMSTANTIAL

EVIDENCE? 2:3

The learned Senior Advocate, Mr. Jaspal Singh, has been able to state the

proposition of law with due clarity. It has been contended that in the event of there being only circumstantial evidence, it is well-settled that those circumstances must be proved to be such as to be conclusive of the guilt of the accused and incapable of explanation on any hypothesis consistent with the innocence of the accused. It has been contended further that it is on this score the law seems to be well-settled as well, to writ that the Courts will be well-advised in case of circumstantial evidence to be watchful and to censure that conjectures and suspicions do not take place of legal proof. It has been the appellant's contention that the prosecution has utterly failed to link up the chain and as a matter of fact the snap in the chain is not very far to seek, thus warranting an order of acquittal and the High Court has fallen into a manifest error in regard thereto. The evidence of PW-1 and PW-23 being Madan Singh and Dinesh Chand was taken recourse to. It is on this score, it has been contended that (a) None of

them has identified the appellant; (b) None of them has stated the it was the appellant who had checked in on 18-9-1991; (c) None of them has stated that it was the appellant who had checked out on 19-9-1991 at 8.30 a.m. and (d) Rather

both the witnesses have stated that appellant was not the person who had checked in on 18-9-1991 or who had checked-out in on 18-9-1991 at 8.30 a.m. and drawing inspiration therefrom, Mr. Singh in support of the appeal contended that there is thus no direct evidence available to prove that it was the appellant who had checked in on 18th September, 1991 or had left the hotel on 19th September, 1991. Admittedly, theré is no difficulty in appreciating the submissions of Mr. Singh. Availability of direct evidence is not there but what about the circumstances? Before doing so, be it noted that the evidence of

PW-6, Sahmim Bano as to the date of departure of the accused with his wife Hazra alias Halima from Bombay to Delhi and the subsequent telephonic message that Halima died in a bus accident and that cremation has taken place 1. Alamgir v. Delhi, 2003 Cri LJ 456 (SC).

2. State of Haryana v. Jagbir Singh, 2003 Cri LJ 5054 (SC). 3. State of Madhya Pradesh v. Sanjay Rai, 2004 Cri LJ 2007 (SC).

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of significant component of the chain er rath a be to out d stan n ddi amu in Niz | ) | : evidence. along with at wife Hazra alias (a) The appellant came to visit Delhi ber, 1991. Halima leaving Bombay on 17th Septem (b)

both of “ae claimed le On 18th September, 1991 at about 8.50 p.m.

his sn -_ be husband and wife. Alamgir, appellant entered m No. 10 wrk address in the guest register and received key of Roo Subhas stayed in Room No. 107 in Royal Inn Guest House, Netaji Marg, Daryaganj, Delhi. (c) On 19th September, 1991 in the morning at 8.30 a.m., Alamgir left the guest house locking his wife in the room and did not return thereafter.

(d) The appellant telephonically informed PW-6, Shamim Bano that the deceased died in a bus accident and was buried in Nizamuddin

and

thereafter the appellant left Delhi for Bombay. (e) The appellant’s wife was found dead due to strangulation in Room

No. 107 on opening of the same with duplicate key on 20th September, 1991. : (f) The appellant was arrested at Bombay on 21st September, 1991 and key of the room was recovered from him along with ticket from Delhi to Bombay dated 19th September, 1991 proving that he after killing his wife instead of taking her care, had left for Bombay on 19th September, 1991. Only beyond the range of a reasonable doubt, of course, the expression ‘reasonable doubt’ is incapable of definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is the same as proof which affords moral certainty to the judge. The question for consideration is thus as to whet her the circumstances noticed above would form a complete chain of events without any snap and pointedly point to the accused as the guilty person and to no-one else. In the event there is an answer in the affirmative, question of interference with the order of the High Court would not arise. Incidentally, the High Court did emphasize on the true and correct meaning of the phra seol ogy ‘reas onabl e doubt’ to be attributed thereon and it is on this score, the High Court records: “Modern thinking is in favo ur of the view that proof beyond reasonable doubt is

a the sam € as proof which affords moral certainty to the

Judge.” We are, however, not ex

to say that sufficienc

‘4

pressing any opinion with regard thereto. Suffice it

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in Nizamuddin—this piece of evidence, as noticed above, if read along with the circumstances noticed above, would form a chain without there being any snap. Strenuous submissions have been made as regards the admissibility of the

Handwriting Expert’s opinion as also a challenge thrown to the non-admissibility of the entire evidence of Shamim Bano, PW-6. This evidence of Shamim Bano has been challenged on two counts: on the first Shamim Bano, being the sister of Halima, was an interested witness and secondly, she did not say so in a statement before the police under section 161 Cr. P.C. Interested witness: by itself cannot possibly be a ground to reject the evidence on record. The test of creditworthiness or acceptability, in our view, ought to be the guiding factor and if so, question of raising an eyebrow on the reliability of witness being an interested witness would be futile in the event of the evidence being otherwise acceptable, there ought not to be any hindrance in the matter of prosecutor’s success. The evidence must inspire confidence and in the event of unshaken credibility, there is no justifiable reason to reject the same. It is on this score the issue of interested witness thus stands negated, as raised by the appellant. The second limb pertains to the statement under section 161, Cr. P.C. Admittedly, the piece of evidence was not available in the statement of the witness under section 161, Cr. P.C., but

does it take away the nature and character of the evidence in the event there is some omission on the part of the police official. Would that be taken recourse to as amounting to rejection of an otherwise creditworthy and acceptable evidence—the answer, in our view, cannot but be in the negative. In that view of the matter, the evidence of PW-6 thus ought to be treated as creditworthy and acceptable and it is to be seen the effect of such an acceptability. Similar, however, is the opinion of this Court in Pawan Kumar v. State of Haryana, 2001 (3) SCC 628, in which one of us (U.C. Banerjee, J.) was a party. The opinion of the Court runs as under: “Incidentally, success of the prosecution on the basis of circumstantial evidence will, however, depend on the availability of a complete chain of events so as not to leave any doubt for the conclusion that the act must have been done by the accused person. While, however, it is true that there should be no missing links, in the chain of events so far as the prosecution is concerned, but it is not that every one of the links must

appear on the surface of the evidence, since some of these links may only be inferred from the proven facts. Circumstances of strong suspicion

without, however, any conclusive evidence are not sufficient to justify the

conviction and it is on this score that great care must be taken in evaluating the circumstantial evidence. In any event, on the availability of the two inferences, the one in favour of the accused must be accepted and much in that law is well-settled on this score, as such we need not dilate

the regard excepting, however, noting the observations of this Court in

AIR 1992 SC 840, case of State of Uttar Pradesh v. Ashok Kumar Srivastava,

wherein this Court in paragraph 9 of the report observed:— appreciating “This Court has, time out of number, observed that while cautious approach circumstantial evidence the Court must adopt a very in the chain are and should record a conviction only if all the links every hypothesis of complete pointing to the guilt of the accused and

S12

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IGATION IN CRIMINAL INVEST

AND

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| evii dence _ Great care must be

ing negatived on relied on innocence is capable ' dence and if the evidence evi e pt um rc ao ci ng ti taken in evalua ces, the one in favour of the accused to have ak relied upon must be found t pe pa erce i ee r shed must and the cumulative effect of all the facts so pie

re hypothesis ernie eubliae must be consistent only with theany ing ie dp ! eet and meet is not to say that the prosecution must or forward by the accused, however, far-fetched and fanciful it might fs4

be rejected on the slightest does it mean that prosecution evidence must doubt is reasonable and not t because the law permits rejection if the

doub otherwise.”

| . d / ascribed to The other aspect of the issue is that the evidence on recor

guilt from the be circumstantial, ought to justify the inferences of the the incriminating facts and circumstances which are incompatible with ns of imnocence of the accused or guilt of any other person. The observatio this Court in the case of Balwinder Singh v. State of Punjab, AIR 1987 SC 350 lends concurrence to the above.” In a more recent decision of this Court in Sudama Pandey v. State of Bihar, 2002 (1) SCC 679, the law as noticed above and to the same effect stands very felicitously expressed. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the tough-stone of law relating to circumstantial evidence laid down by this Court as far back as in 1952. In Hanumant Govind Nargundkar v. State of Madhya Pradesh, AIR 1952 SC 343, it was observed thus: “It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances

from which

the conclusion

of

guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probabili th the act must probability have been done by the accused.” A reference may be made to a later decision in Shara d Birdhichand Sarda v pn he: st AIR 1984 SC 1622. Therein, while dealing with pitove that ee foe it has been held that onus was on the prosecution to

be-eulred-bw:f ; ain 1s complete and the infirmity of lacuna in prosecution cannot

y false defence or plea. The conditions precedent in the words of this Court, beforeThey convipsti : ; ; established. fe could be based on circumstantial evidence, must be fully (1)

the circumstances from which the conclu sion of guilt is to be drawn should be fully

established. The circum Stances conc erned ‘must’ or should’ and not ‘may be’ est ablished;

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(2)

the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty: (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and

(5)

there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. These aspects were recently highlighted in State of Rajasthan v. Rajaram, 2003 AIR SCW 4097. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.

SUPREME

COURT

ON

HANDWRITING

ACCEPTABILITY!

In the first place, it may be noted that the appellant was at the material time a Guard in the employment of the Railway Administration with his headquarters at Agra and he had nothing to do with the train by which Wagon No SEKG 40765 was dispatched from Munda to Bikaner, nor with the train which carried that wagon from Agra to Ludhiana. He was not a Guard on either of these two trains. There was also no evidence to connect the appellant with the theft of the blank Railway Receipt at Banmore Station. It is indeed difficult to see how the appellant, who was a small employee in the Railway Administration, could have possibly come into possession of the blank Railway Receipt from Banmore Station which was not within his jurisdiction at any time. It is true that B. Lal, the Handwriting Expert, deposed that the handwriting on the forged Railway Receipt Ex. PW-10/A was that of the same person who wrote the specimen handwritings, Ex. PW-27/37/ to 27/57, that is the appellant, but we think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a Handwriting Expert. It is now well settled that Expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a Handwriting Expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on Expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of Uttar Pradesh, AIR 1957 SC 381, that it is unsafe to treat

Expert Handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence.

This Court again 1728, that Expert after all, opinion v. Subodh Kumar

pointed evidence evidence, Banerjee,

out in Ishwari Prasad Mishra v. Mad. Isa, AIR 1963 SC of handwriting can never be conclusive because it is, and this view was reiterated in Shashi Kumar Banerjee AIR 1964 SC 529, where it was pointed out by this

1. Alamgir v. Delhi, 2003 Cri LJ 456 (SC).

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naeting

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ini n being opinio

evilidence

can rarely,

evidence as to handw ri ce and before noe a chnEpo evidenee ce, fav! i et of substa ntive eviden

. by r it is corroborated either to consider whethe 2: ble coin age it would be desirab le dence. This Court had again occasion ae

by circumstantial evi ME ire ll handwriting to regard in opinion Expert of value Ale the Le

to

a

7 SC 1326, and it uttered a note of Fakteruadin avin et ae aoe found a conviction solely on the caution ge “ithandwriting expert and before acting upon such evidence, the

ieee always try to see whether it is corroborated by other evidence direct It is interesting to note that the same view is a *np ie me oman if) Judgments of English and American Courts, Vide Gurney v. Langlands, and Ald 330, and Matter of Alfred Foster's Will (34 Mich 21). The Supreme

Court

of Michigan pointed out in the last mentioned case. Every one knows how very unsafe it is to rely upon any one’s opinion considering the niceties of penmanship—Opinions

are necessarily received, and

may be valuable, but at best this kind of evidence is a necessary evil. We need not subscribe to the extreme view expressed by the Supreme Court of Michigan, but there can be no doubt that this type of evidence, being opinion evidence is by its very nature, weak and infirm and cannot of itself form the

basis for a conviction. We must, therefore, try to see whether, in the present case,

there is, apart from the evidence of the Handwriting Expert B. Lal, any other evidence connecting the appellant with the offence.” In our view, however, reliance in Magan (supra) is rathe r misplaced in the contextual facts since no conviction is based on the opini on of the Handwriting Expert but admittedly it can be relied upon when supported by other items of internal and external evidence. The Handwrit ing Expert’s opinion simply corroborates the circumstantial evidence and as such we are unable to record our concurrence with the submissions of Mr. Singh on this score.

further examine as re gards judicial Paragraph 7 of the re port as below:

Ram Chandra v. State of Uttar “It may be that

; Jagannadhadas, J. observed:

treat Expert evidence

as to handwriting as

SUPPLEMENT

$15

sufficient basis for conviction”. “May” and “normally” make our point about the absence of an inflexible rule. In Ishwari Prasad Misra v.

Mohammad Isa, AIR 1963 SC 1728, Gajendragadkar, J. observed;

“Evidence

given by Experts can never be conclusive, because after all it is opinionevidence” , a statement which carries us nowhere on the question now, under consideration. Nor, can the statement be disputed because it is not so provided by the Evidence Act and, on the contrary, section 46 expressly makes opinion-evidence challengeable by facts, otherwise irrelevant. And as Lord President Cooper observed in Davis v. Edinburgh Magistrate, 1953

SC 34: “The parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an Expert.”

As regards the decision of Magan (supra) this Court in paragraph (10) stated as below: “10. Finally, we come to Magan Bihari Lal v. State of Punjab, 1997 (2) SCC

210, upon which Sri R.C. Kohli, learned counsel, placed great reliance. It was Said by this Court: Pee ee a Nr but we think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a Handwriting Expert. It is now well-settled that Expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a Handwriting Expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on Expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of Uttar Pradesh, AIR 1957 SC 381, that it is unsafe to treat Expert Handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Ishwari Prasad Mishra v. Mohammad Isa, AIR 1963 SC 1728, that Expert evidence of handwriting can never be conclusive because it is, after all, opinion-evidence,

and this view was reiterated in Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529, where it was pointed out by this Court that Expert evidence as

to handwriting being opinion-evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of Expert opinion in regard to handwriting in Fakhruddin v. State of Madhya

Pradesh, AIR 1967 SC 1326, and it uttered

a note of caution

pointing out that it would be risky to found a conviction solely on the evidence of a Handwriting Expert and before acting upon such evidence, the Court must always

try to see

whether

it is corroborated

by other

evidence,

direct

or

circumstantial. The above extracted passage, undoubtedly, contains some sweeping general observations. But we do not think that the observations were meant to be observations of general application or as laying down any legal

principle. It was plainly intended to be a rule of caution and not a rule of law as is clear from the statement “it has almost become a rule of law”. “Almost”, we

presume, means, “not quite”. It was said by the Court there was a “profusion of precedential authority” which insisted upon corroboration and reference was made to Ram Chandra v. State of Uttar Pardesh; Isdhwari Prasad v. Mohammad

Isa;

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e of Madhya Pradesh. We hav e Stat v. in rudd Fakh bo h Kumar and e sicina Shashi Kumar v. Su erved that none of — a

discussed —

cases and obs

J 5 riably be sougntin the ine me ast ae: t corroboration must s inva e tak mis be some to ear app re The . a i Ys hru pted acce te re passage because We are unable to find in Fak as iane e can 5 Ae evin se

of the ne

a Pradesh, any statement such as the one attributed. In fact, in that

r sole testimony of the Expert afte the n upo d acte ges jud ter pos 1 the prt a ess of the opinion by comparing ectn corr the t abou s lve mse th een ri Lal v. that the observations in Magan Biha

yr lves. We do think eabitieane themse to the facts of the particular ae must be understood as referring Sa case.” stated that there is no rule of law, nor In fine, in Murari Lal (supra) this Court nion tallised into a rule of law that opi any rule of prudence which has crys substantially

er be acted upon, unless evidence of a Handwriting Expert must nev our concurrence therewith, though, corroborated. We feel it expedient to record gment cannot be said to be however, we hasten to add that since human jud sed and the approach ought totally infallible, due caution shall have to be exerci and examination the to be that of care and caution and it is only upon probe

sions Judge, acceptability or creditworthy of the same depends. The learned Ses nt facts and as also the High Court, did place upon consideration of all releva and we do ng ert Exp material on record, reliance on the opinion of the Handwriti not see any reason to record a contra finding.

SUPREME

COURT ON SPECIMENS UNDER INDIAN EVIDENCE ACT‘

SECTION

73,

We shall examine the circumstances highlighted. So far as ransom notes are concerned, prosecution sought to rely upon the report given by the handwriting expert. It appears that the accused was taken before Addl. Chief Judicial Magistrate, Bhiwani. According to him, on 10-9-1991 the accused was brought before him in custody for giving his specimen signature under section 73 of the Evidence Act. It was noticed by this Court in State of Uttar Pradesh v. Ram Babu Misra, AIR 1980 SC 791 that the Chief Judicial Magistrate has no power to direct the accused to give his specimen signature for comparison during investigation. Section 73 of the Evidence Act reads as follows: “Section 73—Comparison of signature, writing or seal with others admitted or proved: In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature writing, or seal has not been produced or proved for any other purpose. iy : peer athe may direct any person present in Court to write any words

or

eeriieeneen e purpose of enabling the Court to compare the words or figures so ‘ any words or figures alleged to have been written by such person. —_—_——

——__.

hi; State of Haryana v. Jagbir Sing h, 2003 Cri LJ 5054 (SC).

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This section also applies, with impressions”.

S17

any necessary

modifications,

to finger-

The second paragraph of Section 73 enables the Court to direct any person present in the Court to give specimen writings ‘for the purpose of enabling the Court to compare’ such writings with writings alleged to have been written by such person. The clear implication of the words for the purpose of enabling the Court to compare’ is that there is some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings. The direction is to be given for the purpose of enabling the Court to compare and not for the purpose of enabling the investigating or other agency ‘to compare’. If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. The language of Section 73 does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court.

EXEMPLARS

TO BE TAKEN

IN OPEN

COURT!

Apart from the occular evidence as stated above, the prosecution strongly relied upon the evidence of the Handwriting expert (PW-33) and also his opinion given on a comparison of the alleged signatures of the accused appearing on various T.D.S. certificates, specimen signature cards, credit vouchers /withdrawal slips etc., with the admitted signatures taken from the accused. On the basis of the evidence of the expert, according to whom the signatures in the documents marked in ‘Q’ series are tallying with the specimen signatures alleged to have been obtained from the accused, it is contended by the prosecution that inasmuch as the testimony of the expert clinchingly establishes that it was the accused who had fabricated the documents in question i.e., T. D. S. certificates by forging the signatures of a fictitious Engineer and filing them along with Income-tax returns, the prosecution successfully proved the involvement of the accused in the commission of offence. But, it should be borne in mind that the opinion of an expert in writing is the weakest and the least reliable evidence and that it is not at all safe to base conviction upon the opinion of writing expert alone. Courts have refused to act upon the evidence of expert unless it is corroborated by independent evidence. In a catena of decisions, it was ruled by the Apex Court that it would be highly

unsafe to convict a person on the sole testimony of an expert. Therefore, the evidence of the expert (PW-33) who deposed in court basing on the opinion given by him earlier, cannot be said to be a conclusive proof. It is so more particularly because of the fact that the said evidence is not corroborated by any independent evidence. Apart from that, as seen from the evidence on record the specimen signatures which were sent to the expert for examination were not obtained in open Court and they were obtained during the course of investigation by the

C.B.I. Such an opinion based on the specimen signatures which are not taken in open Court, cannot be relied upon by the Court as it is not a valid opinion. Therefore, conviction cannot be based solely placing reliance on such opinion. 1. M. Durga Prasad v. State of Andhra Pradesh, AIR 2004 SC 2714.

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Thus, the evidence on rec

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ici nt to hold that A3, A7 an d A8 have t sufficie

as alleged by the prosecution. 2Seen docurn fabricated and forged the e. scrutinize the was able to establish the gul ilt of Al as he did not tioni

pane Lyle a a apie of the endorsement by hie for cae | / refund orders from him. But since the very cha in Accordingly, A1, Ga hain itis not safe to convict Al for the said offence. I.P.C. A3 AT and A8 are acquitted of the charges under sections 465 and 471 Dee

DOCUMENT

EXPERT NOT COVERED SECTION 293 CR. P.C.!

UNDER

Mr. Singh, learned Counsel for the petitioner submitted that the petitioner has been found guilty solely on the basis of the report of the Government Examiner of Questioned Documents, Exhibit 29, but the expert who submitted the said report was not examined and his report was proved by the Investigating Officer which is not permissible. By referring to sub-section (4) of section 293,

Cr. P.C., he submitted

that report of those

government

scientific

experts

mentioned therein can be admitted into evidence without they being examined, but in the instant case the hand writing expert was the Deputy Government Examiner and the said expert is not one of the experts mentioned in sub-section (4) of section 293, Cr. P.C. Mr. Pradhan, learned Additional Public Prosecutor, on

the other hand, submitted that the conviction of the petitioner is not based solely on the report of the hand writing expert. There is also other evidence on record which justifies his conviction. I have perused the impugned judgment and on its close scrutiny it appears that the learned sessions Judge has not discussed the evidence on record at all. In paragraph 7 of the judgment he has referred to the arguments of the Public Prosecutor who seems to have submitted before him that for different offences committed by the petitioner, there is evidence of certain PWs and separate documentary evidence. It may be stated that as an appellate Court, the learned Sessi ons judge is required to assess and consider the evidence on record indep endently. As a court of appeal, he has to remember and keep in view that the presumption of innocence of the accused continues and therefore, he is to satisfy himself that the judgment of the trial Judge is correct. It is the bounden duty of the appellate Court which may be the final Court of fact, to go through the evidence for himself, to assess it in proper perspective and to come to an independent finding. On careful examination of the impugned judgm ent, I have no hesitation to hold that the learned Sessions Judge has failed to discharge his duty as an appellate Court. As indicated above, he has simply summarized the submissions made before him by the leaned Public Prosecutor and has not cared to examine and scrutinize the evidence for himself. For the reasons aforesaid, the impu gned judgment is vulnerable and, therefore, the appeal needs rehearing by him. Pay appears to be force in the peutioner with regard to the rep sub-mission of the learned counsel for the ort submitted by the Deputy Government 1. Sonam Tshering Bhutta v. State of Sikkim, 2004 Cri LJ 3136.

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Examiner

and

Assistant

Government

Examiner

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of Questioned

Documents.

Section 293, Cr. P.C. dispenses with the proof of certain documents unless the

court itself thinks it necessary to be proved. Sub-section (4) thereof provides that the said section applies to those Government Scientific experts mentioned therein. So far as hand writing expert is concerned, the Director of the Finger

Print Bureau has been mentioned as the expert. It means that if the report is submitted by the Director of Finger Print Bureau, the same may be admitted into evidence without he being formally examined. But in the present case, Exhibit 29 was not made by the Director of Finger Print Bureau. Therefore, it is necessary that hand writing expert who prepared Exhibit 29 should be examined to prove the contents thereof, in the interest of justice. The learned Sessions Judge is directed to summon the expert and examine him as a witness. For this, prosecution will take necessary steps. After he is examined, the learned Sessions Judge will give adequate opportunity to the defence to cross-examine the witness. The evidence of the said witness will form part of the record and be available to be considered along with other evidence already on record.

CERTIFIED PHOTO-COPY ADMISSIBLE SUBSTITUTE FOR THE ORIGINAL!

AS

Learned Advocate Mr. Dodia appearing for accused No. 1 in the trial Court has cross-examined PW 5, at length, but no material contradictions have come on record by the said cross-examination. We are not able to refrain ourselves from making an observation that in this case a deliberate attempt is made to tire out witnesses. For an illustration even after the witness deposed that a portion of the Forensic Science Laboratory report containing material details was torn, a certified true copy was produced. This copy was not certified as true copy by the Customs Officers. It was certified as true copy by the Forensic Science Laboratory officers of the rank of “Assistant Director” and still the cross-examination was made on the line that the Forensic Science Laboratory report at Exh. 101 is a concocted one. This question was repeated. It was then repeated for third time. Thereafter, it was suggested to the witness that he was not giving out the true facts. The last part of para 45 is suggestive of the fact that the witness is exhausted and tired out. The witness stated that.

“ ....1f you are asking for the reason of tallying this information before the Court, then the answer is that I cannot have any such information or any proof of that.” It will also be appropriate to note that the Xerox copy which was sent by the Forensic Science Laboratory after certifying to be true copy has come from the official record of the Forensic Science Laboratory and this Court has no reasons to believe that an officer of Forensic Science Laboratory had any interest in concocting the report against the accused. At no stage, it is the defence of the accused that he had enmity with X, Y or Z of the prosecution agency or that of the Forensic Science Laboratory and therefore, he is wrongly booked.

1. Gulam Mammad Theim v. State of Gujarat, 2003 Cri LJ 256.

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UNPROFESSIONAL CONDUCT! as in all other rape cases there in this thatthere ie Wissae P ainnote fact are the nor of ses witnes going to be witnesses to the actual DOCTOR’S

incident. Invariably the Court is required to accept or reject the testimony of ie victim and if the evidence is good enough, it is usually supp onteg by daeedica evidence and forensic evidence. In the present case, the evidence of PW-5

Jayamma is not supported by PW-I because he has given totally non-committal

evidence and it is clear that he has been won over. Jayamma’s evidence is very clear with regard to the aspect of identifying the four accused. It is also very clear about the fact that pursuant to their common intention she was held down by the accused persons and two of them raped her. She has also stated that the bite

injuries on her breast were sustained in the course of this incident. The real

difficulty that has arisen in this case arises from the fact that PW-12 Dr. Sujatha

in her evidence states that Jayamma had complained of an attempt to rape and not actual rape. Whereas Dr. Ashalatha accepts the position that Jayamma had complained of having been raped. The doctors in this case, obviously because Jayamma is a poor villager, did not seem to have evinced the requisite interest nor have they acted responsibly and professionally as one would expect in a case where there is a serious charge of rape. The manner in which they have conducted themselves is cavalier, to say the least and the same is the manner in which they have given evidence before the Court. Thanks to this totally disinterested and non-professional attitude, that the Court is left with virtually zero assistance from the medical evidence. We do expect that the members of the medical profession and particularly doctors who are working in the public hospitals should grasp the seriousness and the horrifying consequences of the offence of rape and other sexual assaults and that they should act with a far more professional, responsible and considerate manner. The fact that such an incident took place is bad enough and the fact that because of this type of handling in the hospitals the Courts are forced to acquit the accused is compounding injustice and it is high time that the medical profession realises the damage that it is doing and acts in the manner which the law and the Courts expect of them. This Court has found that time and again, the medical evidence in almost every case of sexual assault on women is tampered with and that the doctors

to dein sa thi ai of affairs and diri ect the Government to imme diately formulate eguards to ensure that there is a full-stop to these illegalit ies. Se

1. State of Karnataka

Vv. Rangaswami, 2003 Cri LJ 607.

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SUPREME

COURT

ON

$21

BOOKS

AS AUTHORITIES!

The only circumstance which the trial Court relied upon to hold guilt was by referring to some text books on medical jurisprudence. With reference to them it was held that case of strangulation was clearly made out. It cannot be said that the opinions of these authors were given in regard to circumstances exactly similar to those which arose in the case now before us nor is this a satisfactory way of dealing with or disposing of the evidence of an expert, examined in this case unless the passages, which are sought to be relied to discredit his opinion, are put to him. This Court in Sunderlal v. State of Madhya Pradesh, AIR 1954 SC 28, disapproved of Judges drawing conclusions adverse to the accused by relying upon such passages in the absence of their being put to medical witnesses. Similar view was expressed in Bhagwan Das v. State of Rajasthan, AIR 1957 SC 589. Though opinions expressed in text books by specialist authors may be of considerable assistance and importance for the Court in arriving at the truth, they cannot always be treated or viewed to be either conclusive or final as to what such author says to deprive even a Court of law to come to an appropriate conclusion of its own on the peculiar facts proved in a given case. In substance, though such views may have persuasive value, they cannot always be considered to be authoritatively binding, even to dispense with the actual proof otherwise reasonably required of the guilt of the accused in a given case. Such opinions cannot be elevated to or placed on higher pedestal than | the opinion of an expert examined in Court and the weight ordinarily to which it may be entitled to or deserves to be given. Apart from that, even if on the hypothetical basis it is held that doubt could arise on the basis of strangulation, in the absence of any evidence whatsoever to connect the respondent-accused with the act of strangulation, the conclusion of the trial Court could not have been maintained and the High Court which is entitled to re-appreciate the evidence could and has rightly discarded it.

AGE

OF INJURIES

NOT

EXACT?

Initially in the examination-in-chief PW-5 deposed that complainant gave the complaint and he recorded the same as per the say of prosecutrix. In cross, a question was

put to this witness

that some

other persons

accompanied

the

prosecutrix up to the Police Station and Police Station Officer Dhanjibhai Lunjabhai stated in the examination in cross that the persons accompanied with the prosecutrix dictated the complaint. The contention is that the prosecutrix was a tutored witness as per the say of PW-5 PSO. This fact cannot be appreciated in isolation. The evidence of a witness is always required to be appreciated as a whole. In criminal trial prosecution faces so many hurdles. Even expert and seasoned witnesses having not correctly understood the question put by skilful cross-examiner may reply differently. Therefore, a sentence from here and a sentence from there, from the deposition of the witness cannot be considered and appreciated in isolation. In examination-in-chief this very witness in categorical 1. Sate of Madhya Pradesh v Sanjay Rai, 2004 Cri LJ 2007 (SC). LJ 268. >. Shanabhai Madhurbhai Koli Patel v. State of Gujarat, 2004 Cri

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se the Litomganjot. ay ‘a x ri ut ec os pr t mplainan : terms stated that the co the prosec by d e tat dic as im at rb Not the complaint ve pported by the prosecutrix. su ly ful d an ed at or ob rr co © DW.3 is ee as dictated . by the; d that on the comp laint l PW-5 PSO also depose only that Pea e ibed by her in the presence of him. This impression was ascrl . ed at i sec utrix PW-4 who : is examin pro of d ban hus by ed : rat obo en om eshte int was dictated

ce suggesting that the compla Exh seThiadsas veeighfy eviden icer in say of PW-5 Police Station Off the and y onl nt ina pla com the by wand that the complaint was dictated by examination in cross by one sentence of evidence, at the best it can be sai ion iat rec app On d. ore ign be t mus persons

by weighty evidence, it is not to be minor discrepancies. When a fact is provedce and to rely upon a sentence that eviden necessary for the Court to disbelieve as the injuries to the prosecutrix is in the cross-examination as contended. So far Maksud, PW-6 Exh. 13 stated that the concerned, it is contended that Dr. Mohit e of examination. It was injuries were as old as four to five days from the dat on admitted that she minati contended that the Prosecutrix in her cross-exa secution case overall, as received injuries on her back. Having considered the pro gnificant because said above, this contention on appellant side is trivial and insi tor being an the opinion of Doctor about the age of the injury, though the doc

ical science, the expert, cannot be considered to be a conclusive evidence. In med

age of injury may be examined and approximate tenure of time can be ascertained. This opinion can never be exact and allows concession of some time upward and downward. In the facts and circumstances as narrated above, it would be doing injustice to the prosecution to disbelieve the evidence of prosecution.

COURT—NO The there is support persons

SUPER

EXPERT!

learned-trial Judge in his reasoned judgment has taken the view that a fatal flaw in the prosecution case since the medical evidence does not the case of the prosecution of assault on the deceased by so many at the same time in the manner and with the weapons stated. It is

pointed out that, P.W. 20 Dr. Sankpal, Medical Officer, Primary Health Centre,

Narayangaon who did the post-mortem on the body of deceased stated before the Court that there were in all 26 external injuries on the body of the deceased Namdeo. There were fractures found during the internal examination of the body. The external injuries Nos. 7, 22, 23 and 24 are punctured wounds

with

lacerated edges and the cause of the death of deceased Namdeo is shock due to rupture of left lung and multiple injuries. The left lung was ruptured apparently due to fractured ribs from 8th to 10th on left side. The learned trial Judge has noted Dr. Sankpal’s opinion that the punctured wounds were caused with hard and blunt object, such as, wooden sticks and iron rods and that Dr. Sankpal has identified the wooden sticks (Article No. 44) and iron rod (Art. No. 42) to be the weapons which could have inflicted the punctured wounds on the body of Namdeo. The learned trial Judge has rejected the opinion of the Medical Officer P.W. 20 that the punctured wounds must have been caused either by the wooden sticks (Article UU) or by iron rods (Article UZ) and has observed that since the 1. State of Maharashtra v. Lalu Laxmi Pable, 2003 Cri LJ 1180.

SUPPLEMENT

$23

iron rod has clean end with hollow centre it could not have caused the punctured wounds at Sr. Nos. 22 and 23. It is further observed by the learned trial Judge that since according to the prosecution case only one iron rod and several

wooden sticks were the only objects of assault, used by the accused persons, the

presence of four punctured wounds has not been explained legally .and logically. We are constrained to observe that the learned trial Judge was wrong in substituting the expert opinion of the Medical Officer, by his own and, therefore, his findings to the contrary are unjustified and unwarranted. Dr. Sankpal, P.W.

20 in his deposition before the Court, in paragraph 6 of his evidence, has opined that Injury Nos. 7, 23 and 25 are punctured wounds with lacerated edges. That these injuries could be caused with the rough end of the iron pipe shown to him. He has further stated that the said injuries can be caused with the wooden sticks and iron bar shown to him before the Court. Dr. Sankpal further opined that considering the nature and number of injuries the same must have been caused due to several strokes and the injuries are found to have been caused all over the body from head up to toe. Nothing has been brought in the cross-examination of Dr. Sankpal to discredit his expert opinion that the punctured wounds could have been caused with the wooden sticks and iron rod, namely, Arts. 44 and 42.

In fact, in his cross-examination, Dr. Sankpal has reiterated that the punctured wounds mentioned in column 17 of the notes could have been caused by Arts. 42 and 44 and in order to inflict such wounds, those articles must have been thrust with sufficient force in the body. That the punctured wound with its rough and lacerated edges could be caused by edges of Arts. 42 and 44. Thus nothing has been brought in the cross-examination to reject the expert opinion of Dr. Sankpal that the punctured wounds were caused by thrust of wooden sticks and iron rods and that the several injuries on the body of the deceased must have been caused due to several strokes inflicted by the accused with wooden sticks and iron rods. That the puncture wounds were caused by wooden sticks and iron rods and the severe nature of injuries caused by several strokes all over the body from head up to toe of the deceased resulted in the death of Namdeo due to shock and rupture of left lung and multiple injuries has been established beyond doubt. The conclusion of the learned trial judge based on his personal opinion in the face of expert opinion is not only unwarranted but also indicative of lack of appreciation of the evidential value to be attached of expert medical evidence.

DETECTIVE

DYES

USEFUL"

The next contention of the learned counsel for the appellant is that the prosecution has failed to establish the factum of the appellant having received the illegal gratification. Apart from the fact that two Courts below have, after considering the material on record produced both by the prosecution and the defence, come to the conclusion that the prosecution has established its case, we

notice that it is an admitted fact by the appellant himself that PW-1 did conceal

the currency notes worth Rs. 1,500 along with the case papers which he brought

to the appellant, and while handling the said case papers he did come in contact with the said currency notes without knowing of its placement. This explanation has been considered and rejected by the two Courts below and we find no reason 1. Varada Rama Mohana Rao v. State of Andhra Pradesh, 2003 Cri LJ 2830.

$24

FORENSIC SCIENCE IN CRIMINAL INVESTIGATION AND TRIALS

to accept the same. From the evidence of PW-1 coupled with the facts proved by way of trap, we are satisfied that the accused did receive the money as contended by the prosecution. The learned counsel for the appellant then contended that the presence of phenolphthalein powder found in the pocket of the shirt of the accused could have been due to the fact that the accused accidentally touched his shirt pocket. This is not the defence of the accused in the Courts below and the same does not also stand to reason because the phenolphthalein

powder was

found in the inner lining of the shirt of the accused which could not have been possible by the accused merely touching the pocket and could have been only possible if the tainted money was kept in his pocket. The Courts below, in our opinion, have rightly rejected the defence eviden¢e. Therefore, in our opinion, the prosecution in this case has proved the guilt of the

appellant beyond all reasonable doubts.

Chapter 1

INTRODUCTION SYNOPSIS 1.1 NATURE 12 NEED 1.2.1 Social Changes 1.2.2 Anonymity 1.2.3 Technical Knowledge 1.2.4 Wide Field 1.2.5 Better Evidence 1.2.6 Alternatives 1.3 FUNCTIONS 1.4 DEVELOPMENT 1.4.1 Academic Courses 1.4.2 Research 1.4.3 Dissemination 1.5 PRINCIPLES 1.5.1 Law of Individuality 1.5.2 Principle of Exchange 1.5.3 Law of Progressive Change 1.5.4 Principle of Comparison 1.5.5 Principle of Analysis 1.5.6 Law of Probability 1.5.7 Facts Do Not Lie

FORENSIC SCIENCE

2

IN CRI MINAL

INVESTIGATION

AND TRIALS

1.6 TOOLS AND TECHNIQUES 1.6.1 Measurements 1.6.2 Microscopy 1.6.3 Photography 1.6.4 Invisible Rays 1.6.5 Chromatography 1.6.5.1 Column Chromatography 1.6.5.2 Thin Layer Chroma tography 1.6.5.3 Gas Liquid Chromatography (GLC) 1.6.5.4 High Performance Liquid Chromatography (HPLC) 1.6.5.5 GC-MS/LC-MS 1.6.6 Electrophoresis 1.6.7 Spectrography 1.6.8 Laser Microprobe 1.6.9 Mass Spectrometry 1.6.10 Spectrophotometry 1.6.11

Neutron Activation Analysis

1.6.12 X-rays Diffraction Analysis 1.6.13 DTA, NMR, and Polarography 1.6.14 Scanning Electron Microscopy (SEM) 1.7 FORENSIC SCIENCE INSTITUTIONS 1.7.1

Forensic Science Laboratory

Le A

Services

LeyA

Library

1.7.1.3 Functions 1.7.2 Other Institutions Vag?

Fingerprint Bureau

VA este Government Examiners of Documents hae Mobile Laboratories 1.7.2.4 Scientific CID Sections Ly feo Computer Divisions 1.7.3 Practical Aspects 1.8 PROBLEMS OF PROOF 1.8.1 General 1.8.2 Scientific Evidence and Pro of 1.8.3 Investigative Problems 1.8.4 Scientific Aspects

INTRODUCTION

1.8.5

Legal Problems

1.9 EXPERT TESTIMONY 1.9.1 The Expert 1.9.2

Report

1.9.3

Illustrations

1.9.4 Language 1.9.5 The Prosecution Counsel 1.9.5.1

Establish the Bona fide of the Expert

1.9.5.2

Understands the Evidence

|

1.9.5.3 Ensures Induction of Demonstrative Testimony 1.9.5.4 Anticipates the Defence Line

1.9.5.5 Handles Inconclusive Report Effectively 1.9.5.6 Listen to the Cross-examination Attentively 1.9.6 Defence Counsel

1.9.7 Additional Details 1.10 THE COURT 1.10.1

1.11

Fallacies About Expert Evidence

TIME ELEMENT

1.12 LAW IN FORENSIC SCIENCE 1.12.1

Enacted Law

1.12.1.1

The Indian Constitution

1.12.1.2

The Indian Evidence Act.

1.12.1.3 Criminal Procedure Code, 1973 1.12.1.4

The Identification of Prisoners Act

1.13 CASE LAW 1.13.1

Reports under section 293 Cri PC (1973)

1.13.2

Reports Admissible

1.13.3

Death Penalty

1.13.4

Case Law Binding

1.13.5

Presumption of Innocence

1.13.6 The Evidence 1.13.6.1

Good evidence

1.13.6.2 Eye-witness accounts 1.13.7 Corpus Delicti 1.13.7.1

1.13.8 1.13.9

Corroboration

Insufficient evidence Improper Identity

+

NCE FORENSIC SCIE

1.13.10 1.13.11 1.13.12 1.13.13 1.10nG1 1.13.14 1.13.15 1.13.16 1.13.17 1.13.18 1.13.19 1.13.19.1 1.13.19.2 1.13.19.3 1.13.19.4 1.13.20 1.13.20.1 1.13.20.2 1.13.20.3 1.13.20.4 1.13.20.5 1.13.21 LiB2h4 1.13.21.2 1.13.22 1.13.23 1.13.23.1 Riai2s2 1.13.24 1.13.25

ATION AND TRIALS IG ST VE IN AL IN IM IN CR

ods Third Degree Meth Police Padding

Stock Witness ence Circumstantial Evid ces complete Chain of circumstan Trap evidence Time element on Testimonial compulsi Minority judgment Voluntary Confession

investigating Officer Trustworthiness of police Immediate despatch Identification marks Chain of custody Expert Value Appearance

Data necessary Language Reports Prosecution Prove contents Counter-complaints

Duties of the Defence

The Court Duties Powers

Strictures

Fair criticism of courts

INTRODUCTION

9 A.M.

dies:

Fig. I-2 Time Element Clock.

FORENSIC SCIENCE s is se ———* nsic science in criminal investigation and trial — nt ee with materials and indirectly through materials with rtan Fe : ’ Fe _ Among men, the investigating officer is the most impo Fore

. he whose work determines the success or failure of the app = - arele . to collec science in the processing of a criminal case. If he fails correct evidence, allows them to be contaminated or does ei ceOvl .Se samples for comparisons, the findings of a forensic scientist will be useless; nay, nse they will be helpful to the culprit. Material are identified and compared with the processes of forensic science. They establish the presence or absence of a link between the crime, the criminal, the victim, the place and the time of occurrence. The important materials, therefore, form the various chapters of the book. In addition, the place of occurrence being the most important source of materials has also been discussed.

1.1 NATURE Forensic science embraces all branches of science and applies to the purposes of law. Originally all the techniques were borrowed from various scientific disciplines like chemistry, medicines, surgery, biology, photography, physics and mathematics. But in the past few years it has developed not only its own techniques but also its own branches, which are more or less exclusive domains of forensic science. The science of fingerprints, anthropometry, track marks, documents (especially the examination of handwriting) and forensic ballistics essentially belongs to forensic science alone. More recently significant advances have been made in serology, voice analysis, odour analysis, and in studies relating to pattern recognition through computers. The most significant development of the twentieth century however had been DNA profiling for identification of human beings. It has been since extended to animals and even to plants. Two peculiarities characterise Forensic Science: * Itis multi-professional. * Itis multidisciplinary.

The Forensic scientist has to depend upon for proper functioning of the forensic science, on the investigating officer, on the one hand, and on the other, n the presenting counsel and the judge for its effective utilisation in the

officer has to be a specialist in handling the c counsel and the judge have to know the sci relate the scientific evidence with the rest o 6

INTRODUCTION

7

evidence and evidence of the other specialists. Public has also to know the importance of the science and of the clue materials so that they do not disturb, destroy or contaminate the clues at the scene or elsewhere. The second peculiarity is that the science is an all-inclusive science. Nay, over the years, the science has also developed its own branches (fingerprint identification! handwriting identification!!). Consequently a comprehensive Forensic Science Laboratory has to have experts in all discipline, equipment for all branches and a comprehensive library and the required utilities. It is not possible to do so - too costly. Hence it is not even attempted. The major facilities, which form the bulk of the work of the laboratory, are organised. Assistance for the specialties, which are utilised only rarely, is obtained from institutions where such facilities are available. The laboratories, in fact, are located at such places where other scientific institutions such as universities, medical institutes, institutes of technology or other institutes of higher learning, research and development are available.

1.2 NEED There is urgent and wide spread need for the application of forensic science in the criminal justice delivery system. The present day scenario of crime investigation and prosecution of criminals, in India is a sad sight. A large percentage of the trials, in heinous crimes ultimately, end in acquittals. The official figure (1998) for the acquittal is 93% whereas unofficial figure is even above 96%. It is estimated that the prosecution agency spends lakhs of rupees on each trial. Thus, not only a dangerous criminal goes scot-free but the huge amount of public money is also wasted. These frequent acquittals also embolden the criminals and escalate crime and multiply criminals. The author once attended a court as witness where one of the accused was facing trial for eleventh murder, of his own father this time. He was acquitted in the previous ten murders. (CH) The need for the application of science in the dissemination of justice is pressing. Many factors, including the following are responsible for the same. 1.2.1 Social Changes

The society is undergoing drastic social changes at a very rapid pace. India has changes from a colonial subject nation to a democratic republic. Sizeable industrial complex has sprung up. The transport facilities have been revolutionised. There is a growing shift from a rural to an urban society. These changes have made the old techniques of criminal investigation obsolete. In British days the police was so much feared that once it laid its hands upon an individual, he would ‘confess’ to any crime, he may not have even known. The fear is vanishing now. The use of ‘third degree’ techniques used in those days (used even today*) does not find favour with the new generation of the * The abuse is indicated by the custodial deaths. The National Human

Rights

Commission received 666 cases of such deaths in six months (from 1-3-2002 to

30-9-2002), averaging 4 custodial deaths daily. Main culprit states are UP (100

and cases), Bihar (75 cases), Maharashtra (69 cases), Andhra Pradesh (58 cases)

Punjab (40 cases). Hindustan Times, 7th October, 2002, Chandigarh Edition.

8

FORENSIC

SCIENCE

IN CRIMINAL

INVESTIGATION

AND

TRIALS

rd-degree lic at large. It is true that the thi pub the and ges jud the rs, ato str admini oming increasingly, ir abuse is bec ee completely out but the

methods are not a still their effectiveness 1S diminishing at hazardous to the perpetrator. Besides, to fill the vacuum. faster rate. Other methods have

1.2.2 Anonymity

y of population in cities The quick means of transport and the high densit r the commission of crime. The have facilitated the escape from punis hment afte y to thousands of criminal can hide himself in a corner of a city or move awa e. Nobody, at miles in a few hours after committing a crime at a particular plac come from. the new place, would know or try to know who he is or where he has

He, thus, often escapes apprehension and prosecution. The individual is becoming self-centred. He, especially in cities, does not know even his next door neighbour. Thus even if the neighbours are killed, the

murders come to light sometimes only when the bodies putrefy and emit foul smell. In the meanwhile the culprit(s) leave the scene and the evidence is also destroyed, obscured, becomes indistinct or diminished. 1.2.3 Technical Knowledge

The technical knowledge of an average man has increased tremendously in recent years. The criminal is using science. The crime techniques are gettin refined. The investigating officer, therefore, needs scientific methods to coma the modern scientific criminal. For example, the night vision appliances were

eu

Tons

Fig. I-2 The race between Criminal & State.

INTRODUCTION

9

being used by the terrorists routinely in Punjab. The security forces could meet the challenges only when they also employed night vision devices to fight them.

1.2.4 Wide Field The field of activities of the criminal is widening at a terrific rate. Formerly, the criminals were usually local, now we find that national or international criminal is a common phenomenon. Smuggling, drug trafficking, financial frauds and forgeries offer fertile and ever expanding fields. International terrorism in recent times has acquired global proportions and the gadgetry often utilised by the terrorist is usually mind-boggling to the common investigator. The recent attack on the World Trade Centre in New York and on the Pentagon in Washington, destroying property worth billions of dollars and killing thousands of persons, in one go, is really more than an eye opener to the world about the capabilities of the terrorist. Cyber crimes have gone beyond the earth—in the space, though the perpetrators are earthly beings, but they have ultra high sophistication.

1.2.5 Better Evidence The physical evidence evaluated by an expert is objective. If a fingerprint found at the scene of crime, it can belong to only one person. If this person happens to be the suspect, he must account for its presence at the scene. Likewise, if a bullet is recovered from a dead body, it can be linked to only one firearm. If this firearm happens to be that of the accused, he must account for its involvement in the crime. Such evidence is always verifiable. It is free from human failings.

1.2.6 Alternatives If we do not adopt scientific method what are the other alternatives and how do they stand in the test of their ultimate utility. The alternatives to scientific methods which have been in vogue since time immemorial are: Eye Witnesses ¢ Confessions ¢ Approvers Stock Witnesses. Fig. I-3 Eye-Witnesses not always reliable.

FORENSIC

10

SCIENCE

IN CRIMINAL

INVESTIGATION

A ND

TRIALS

pins in criminal justice system. They . “o/s The eyewitnesses h ae ons to bethe most depended ase heshyihe li rule the . roost even today.. They are But the eyewitness accounts have inherent upon thcgsas edetek ae ee prt skill. Emotional inputs

hel

a

see

rationalisation of the eyewitnesses affect the evidence

na oe The actual observational content of the account of the eyewitness

arta peooamegee thsubjective and hence suspect. Besides, emotional age e bias, and influence of others and of the media make the evi i ae . 3

e depend upon ;e ce aid eyewitnesses highly unreliable. Yet we continuto

almost religiously. It can result in miscarriage of justice, as it actually took

place

in the famous case of Adolf Beck: There was one John Smith. He defrauded women of their petty belongings after gaining their confidence. His technique was to contract an acquaintance with a woman and visit her residence. After some time he would suggest that she should live with him as his mistress, to which the woman would agree. He would collect some petty items (like ring) and borrow small amounts of money and would disappear. After some time he was caught and convicted for these frauds. Fourteen years after his release, the frauds started again. The modus operandi was the same. One Adolf Beck was suspected to be John Smith. He was found to have some significant differences: (I) he had German accent while John Smith was reported to have normal accent. (ii) He dressed himself shabbily, whereas John Smith was known to dress properly—a necessity for the kind offraud and (iii) he wrote clumsy, whereas John Smith was known to have a good handwriting. But twelve women identified him to be John Smith who had defrauded them! Only one. woman was positive that he was not the man. He was convicted (and imprisoned) for the crimes on the testimony of these eyewitnesses. The defending counsel for Adolf Beck was convinced of his innocence. He tried his best to get him released but without success. About two years after his release, the frauds were repeated. Adolf Beck was again in the dock and convicted on the identification of a new set offour women! He was still in the judicial lockup, awaiting imprisonment, when the frauds were again committed. This time the real man, John Smith was apprehended.

The authorities instituted an inquiry and found their folli es in connection with the conviction of Adol

convictions,

f Beck. He was released and compensated monetari ly for wrong

The inquiry’s significant comment: “The evidence as to the eyewitness accounts is highly dangerous and nobody should be convicted on the evidence of the eyewitness accounts only.” (CH) he true confessions are rare. They are often obtained through Third Degree methods, which are illegal, une thical, and inhuman. They cannot be used. Besides in the changin i soc retracted. ing societal scenario, they often recoil. They are also

The approver is an approv ed class of witn ess. He con , the commis role in onfesses or accepts his sion of the cri me for personal pardon. He, thus, saves his

INTRODUCTION

7

Fig. I-4

Dictated Confessions.

skin, implicates his friends and perhaps relatives also. He is an unethical witness, though he is legally correct witness. He often retracts his statement especially if he finds his going good on the other side. His services are a slur on our justice system. The employment of stock witnesses, like Prem Chand Paniwala!,

is not only

shameful but it is also illegal and degradation of human values. It is indeed a curse on the society. Besides, the utility of the stock witness who appears time and again is limited. The court and the counsel become aware of the character and activity of the stock witness. He is exposed. Yet it goes on. Is the creed of the stock witnesses dwindling? It does not seem to. The traditional evidence is becoming inefficient. It has to give way to better evidence, the scientific evidence, which is: ¢ Always available. ¢ Can link the culprit with the crime, the victim, the scene, the weapon and other evidence inter se decisively. ¢ Free from human failings: ‘ bias’, ‘emotions’, ‘rationalisation’, ‘memory lapses’, ‘perjury’, etc. ¢ Verifiable. ¢ Efficient: time and cost effective. In nut shell, Forensic Science has become indispensable in the dissemination of justice because of the failure of the old order, reliability of its tools and techniques and the ever-availability of the wherewithals of its assistance. It has to be utilised on a much larger scale that it is being used in our criminal justice system today, if it is to serve the society effectively. 1. Prem Chand Paniwala. Infra p. 84-85.

12

FORENSIC

IN CRIMINAL

SCIENCE

INVESTIGATION

AND

TRIALS

1.3 FUNCTIONS llowing questions: fo e th to er sw an es id Forensic science prov

committed? 1. Has a crime been

d y: Death could be natural, bo ad de a of ry ve co re ure Consider the case of the ience by ascertaining the nat sc ic ns re Fo l. da ci mi ho accidental or it could be corpus delicti. It is true for non

of e existence or absence of death establishes th death crimes also.

\S iT A CRIME?

Fig. I-5

Establishing Corpus Deliciti. 2. How and when was the crime committed?

ande ofwhtheen sceitnewasof s ry clue e opeevirandenditiaand or chaleic penis edtes tim the modus ree

.

‘nati

The

indicate

a

:

t

cothinitt

3. Who committed the crime? E orensicaescience establishes the identity of the culprit through: fi Personal clues like e con rprints, footprints, blood drops, hair and the ike finge

left by hi ¢ Objects siete ate hei ie and with the victim or carried from the

cesar tiary eviden he of analyses asthe asf ari physical al cose srityoed. The science is, therefore, in a ae + eens camo i ean a Forensic evaluations have

“

crossed all

progressed tremendously

in

ly in all Maes.; the help practical Set otiies # 3 position to provide justice system: criminal the helps ¢ Science = aah rovides leads to the investigation. | °

E stablishes j

i

whether the scene is real or fake

Locates Ss hidden hi comparison,

clues,

cor rect

Establishes sequence of events.

clues, and

also proper

samples

for

INTRODUCTION

13

e Verifies the prosecution version, the defence versions and finds the correct version.

¢ Saves the innocent accused by de-linking him with the clues, with the victim or with the scene of crime. ¢ Identifies the victim in cases of putrefaction or mutilation of the body. ¢ Identifies the correct crime weapon.

1.4 DEVELOPMENT The application of forensic in the investigation of crime can be effective only if the investigating officer knows : ¢ The nature of physical evidence to be collected. e Where it is found.

° e ¢ ¢

How What How How

itis collected, packed and preserved. standard samples for comparison purposes are necessary. much sample is required. the sampling is done.

¢ How the evidence will link the crime with the criminal and to what extent his labours will be rewarded by the laboratory results. This is possible if the investigating officer is given a thorough grounding in the above aspects. He needs both theoretical and practical training. All police training institutions have courses in scientific aids, but the syllabi and the teaching standards are far from satisfactory. Periodical attachment of investigating officers to the departmental forensic science laboratories can go a long way in inculcating the scientific spirit. This is being done by some of the police forces. Ignorance about the value of evidence sometimes causes a lot of disappointment to an investigating officer. For example, hair is recovered in some cases. Evaluation of hair does not lead to positive identification of the source of hair. It is not possible at the present stage of development of the science, unless the hair carry roots with the body cells. They would not be disappointed, if they know the limitations. In addition, the other professionals involved, the lawyers and the judges must also know the applications, the potentialities and the limitations, so that

they can utilise the evidence in the dissemination of justice. The public should also know how to preserve the evidence at the scene or with the victim, so that the authenticity and integrity of the evidence remains intact and the evidence can provide a proper linkage between the criminal and the crime.

1.4.1 Academic Courses

Academic courses in forensic science have come up some universities. Some of them (Bundel Khund, Madras, Punjabi and Sagar Universities) have

postgraduate courses. One of them (Sagar University, MP) also runs the graduate course, while some others have diploma/ certificate courses, which are mainly meant for the non-Forensic Scientists, utilising forensic science.

14

E FORENSIC SCIENC

IN CRIMINAL

INVESTIGATION

AND

TRIALS

eccts taught“9in ; bjje e of the su on as ed uc od tr in e SCI nce has not yet been ons with this acad sicic scie done, SO that pers

ey Sg

be l courses. It should i , or judiciary wil law, pollice of ts men art dep loved in the trials. It will criminal investigation and

aor the science in ae on of justice. bring better dispensati p Lecco whole-time researchers in forensic science. This : in po of w rich in si ae A fe ry ve is d an ed or pl ex un yet e the fact that the field is ls. They are pier y es na ur jo in ar pe ap do r, em may research papers, howeve teresting facets of a pro in me So e. in ut ro ry to ra engaged in actual labo her. Or, sheer necessity in the rt fu m le ob pr e e th at ig st ve in on an coax the scientist to rry out experiments rather ca to m hi el mp co y ma se ca examination of a er is too heavily burdened with rk ry wo to ra bo e la ag er av An le. extensive sca e in the . Induction of Forensic Scienc ch ar se re for me ti nd fi e to routin arch for arch. Persons are taking up rese se re r fo ll we rs gu es au ti si er iv Un doctoral degrees. . 1.4.3 Dissemination ation of forensic science There is a very strong case for proper dissemin forensic science including knowledge among all those who are involved with judges, lawyers and the police officers. ic science Proper dissemination of knowledge on various aspects of forens media and can be achieved only if the modern modes of dissemination like multi rs, internet are utilised, common forums are established where police office forensic scientists, lawyers, judges, and even laity can get together and discuss topics of common interest. The print media, conferences, seminars and formation of societies should also be utilised.

1.5 PRINCIPLES The laws and principles of all the sciences form the bases of forensic science. In addition, it has developed its own principles. 1.5.1 Law of Individuality

Every object, natural or man-made, has an individuality, which is not duplicated in any other object. It is unique. Neither the nature has duplicated itself, nor man can. This principle, at first sight appears to be contrary to common belief and observations. The grains of sand or common salt, seeds of plants or twins look exactly alike. Likewise man-made objects : coins of the same denomination in the same mint, currency notes printed with the same printing block one after the other( excluding the serial number ) and typewriters of the same make, model and batch appear to be indistinguishable. Yet the individuality is always there.

It is due to small flaws in the materials, in the arrangement of crystals, imperfect

He lhe or due to inclusion or exclusion of some extraneous matter or other aterial.

sep individuality has been verified in certain fields. The most extensive work S been carried out in fingerprints. Millions of prints have been checked but no

INTRODUCTION

15

two fingerprints, even from two fingers of the same persons have been ever found to be identical. In a series of experiments carried out by the author during the study of superimposition techniques for fingerprints, footprints, foot marks, die marks, and marks obtained from various parts of firearms, it was observed that with the best of efforts exactly alike imprints even from the same finger could not be produced, which could be superimposed perfectly . The fingerprints were taken one after the other, on the same paper, with the same ink and by the same person; yet they failed to give perfect superimposition. Imperfect inking, unequal

pressure, slight differences in the texture of the surface of the paper or

interference from extraneous matter always introduce some differences. If the same finger failed to give exactly alike prints, it is difficult to imagine that exact duplication can be achieved with any other object. The law of individuality is of fundamental importance in forensic science. Anything and everything involved in a crime, has individuality. Thus the culprit is unique, his modus operandi is unique, his weapon of offence is unique, scene of crime is unique, evidentiary clues, left over or picked up by the culprit, are unique. We have just to identify the uniqueness to link the crime with the aa 1.5.2 Principle of Exchange ‘Whenever two entities come in contact, there is an exchange of traces mutually’. This is the principle or law of exchange. The French scientist, Edmond Locard,

first enunciated it. It is also known as Locard’s principle. = According to the principle, when a criminal and/or his instruments of crime come in contact with the victim or the objects surrounding him, they leave traces. Likewise, the criminal and/or his instruments pick up traces from the same contact. Thus, a mutual exchange of traces takes place between the criminal, the victim and the objects involved in the crime. If these left over traces

are identified to the original source, viz., the criminal or his instruments or if the picked up traces are linked with the victim, the scene or the objects around the victim at the scene, they establish the contact and pin the crime on to the | criminal. The principle of exchange is amply demonstrated in hit and run cases and in offences against person, tracks and trails (scent, foot and footwear marks and

tyre marks). Chance fingerprints, tool marks, dust, paint, soils and professional dust are other manifestations of the same principle. It is difficult to imagine a crime where the criminal, the victim or the objects involved, would not exchange traces.

The basic requirement of the principle is the correct answer to the question ‘What are the places or objects with which the criminal or his tool actually came in contact?’ If the investigating officer is able to establish the points of contact, he is likely to reap a rich harvest of physical clues. If a criminal enters the premises through a ventilator, he leaves his footprints in dust on the sill. He also picks up dirt from the place.

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If he breaks a window or a door, the jimmy or other instrument used, leaves its marks on the wooden frame. Fragments of paints, wood, glass also gets transferred to the jimmy, to the clothes or person of the culprit.

The burglar, who opens a safe by an explosive, leaves the area around and the clothes (including shoes) covered with insulating material as well as some exploded and some unexploded explosive materials.

The criminal is likely to leave and carry minute traces only. It is seldom that

he dares or neglects to leave or carry gross objects or traces. On a thorough search traces connect the crime and the criminal as effectively as the gross

objects, perhaps more subtly.

Fig. I-6 The Linkage—” Contact Lea ves Traces”.

1.5.3 Law of Progress ive Change Everything chan Ses with the passage of time’.

fractures or" oth otmer c character cter tic of perman istisics ent (comparativeVvl (which are not alw y Speaking) nature i wrh ‘ays avail bl j whi vhiinch have unique DN A sro Hh ai ody fluids which contain body cells

17

INTRODUCTION

‘OS aVIIPUl SAV ZaUDS 0024 ayy ady “sdvah GZ saqfv AapvaT ay]

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ee ae i Misi se vegetable ae pepid : The scene of occurrence undergoes cially human. (espe beings ivi ; Lat th, and the living Longer the delay in pats periods. short be may ster es, in comparatively some time, the scene After changes. the be all sata greater will dent sce ne ona busy y road will lose acci road a e, mpl exa For unrecognizable. | cessed at once. evidence if the same is not pro sy nge gradually, the firearm bara The objects involved in crime cha ap ne io

tear suffer additional wear and metal objects rust, the shoes upon é e time, terns. The degree of change depends

e acquire new surface pat use or the misuse of the particular upkeep and the extent and frequency of evidence for practical identity visobject. In course of time the object may lose all s a-vis a particular crime. aspects of criminal The principle, therefore, demands prompt action in all investigation.

1.5.4 Principle of Comparison

‘Only the likes can be compared.’ It is the principle of comparison. It emphasises the necessity of providing like samples and specimens for comparison with the questioned items : In a murder case, a bullet is recovered from the deceased. The expert opines that the bullet has been fired from a firearm like a service rifle, firing high velocity projectiles. It is futile to send shotguns, pistols, or revolvers as the possible suspect firearms. A bunch of hair is recovered from the hands of the deceased. The expert opines that the hair belongs to a Negroid person. Hair from persons of white races for comparison will not be of any use. The questioned writing is found to have been written with a ball pen. To send fountain pen as likely instrument of writing is futile. Writings, allegedly written on a wall, made available on a photograph, could not be compared with the specimen written normally on a paper. It did not give worthwhile results. A second set of specimens was obtained. The writing was done on the same wall, at the same height and with the same instrument and then photographed. It allowed comparison. (CH) A few years ago, an investigating officer sent moulds bearing footwear impressions lifted from the scene of occurrence along with specimen moulds prepared before a magistrate. The sole patterns were different. Further inquiry revealed that the investigating officer had used new pairs of shoes to get the specimens prepared. The investigating officer thought that the culprit could be identified from the pressure patterns from the individual impressions on each mould! (CH)

1.5.5 Principle of Analysis The analysis can be no better than the sample analysed’. Improper sampling and contamination render the best analysis useless. The principle emphasises the necessity

; effective use of experts.

y

of corre ct samp] i pling

and correct packing for

INTRODUCTION

19

A criminal while running away from the scene of occurrence brushes against a painted surface. Some powdered particles of paint get deposited upon the clothes. The investigating officer scrapes a few grams of paint from the same surface with a pen-knife and sends it as control sample. The result of the analysis shows that the two paints do not match. Why? A small amount of dust is recovered from a small sticky patch of the shoe of a culprit. The investigating officer collects about two-kilogram of soil from the scene, packs it in a tin and sends it as control sample. The result of comparison is inconclusive. Why? In a rape case, the investigating officer collects the clothes of the victim. The clothes carry both blood and semen stains. The investigating officer dries the clothes and packs them together and sends them through a railway parcel. He wants to know if the clothes carry semen stains, and if so, to which blood group does the culprit belong? The semen gave AB group. The culprit had A group. The victim had B group. Why the wrong results? 1.5.6 Law of Probability

All identifications, definite or indefinite, are made, consciously or unconsciously, on the basis of probability. ‘Probability’ is mostly misunderstood. If we say that according to probability a particular fingerprint has come from the given source, the defence counsels will make most of the word and plead that it is not a definite opinion. Consequently, it is not customary to talk of ‘probability’ or ‘probability figure’ in courts.

Probability is a mathematical concept. ‘It determines the chances of occurrence of a particular event in a particular way out of a number of ways in which the event can take place or fail to take place with equal facility.’ If P represents probability, N, the number of ways in which the event can successfully occur (with equal facility) and N, the number of ways in which it can fail (with equal facility), The probability of success is given by the formula: N,

Pe aS N, + N; If the event consists of two occurrences which can take place independently, the probability of the second occurrence is also given by the same formula. If we denote probabilities of the first and second occurrences by the attaching digits 1 and 2 to the relevant letters, the net probability (P,) is given by the formula:

mgengere™ -

Likewise

if the event

=

consists

N

S

NN,

————

N

S>

Ni Ny

J

of ‘n’ independent

probability of the event is given by: P= P, xP, x P,..- Fa

occurrences,

the net

NCE FORENSIC SCIE

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ity is ts, the net probabil en ev te ra pa se to s ability relate Similarly, if the prob given by : , + oe P

20

+P

Pp,=P, +P,

er hea d- upward is: th ei t res n ca It g. un A coin is fl 1

has one gold plated

pse is found murdered. The cor An unknown woman e. A woman healed fracture of collarbon a d an nd ha t lef its on r the tooth, a tattoo sca g. What is the probability of

orted missin teeth with these characteristics 1s rep the occurrence of the gold-plated ven (Gi n? ma wo g sin mis the ng corpse bei of tattoo- scars 1 in bone fractures 1 in 20000 and in the area, 1 in 5000, collar

100). Here

2

1

ae. See

i

rs =

(10 ) 4

5000 Le|

‘| P, =

a

~=—-(10)5

20000

P, =P, xP3xP,=

1

5

2 x

x

(oy! = (108 — (10)?

1 ——

(10 ) 10

Thus, the chances 10,000,000,000.

of

of

the corpse

being of another

woman

are

1 in

We hav e neglected other factors (sex, age and dress) and even without these i of the deceased is established beyond a SS factors, 4 the identity pn

additional

1.5.7 Facts Do Not Lie ‘Facts do notSH li te ot lie, m pa and do’. Hence the importance of circumstantial wen,

idence. The oral testimony of the witness is modified ce

INTRODUCTION

21

by auto-suggestion, external influence, suggestions, descriptions and opinions of others and rationalisation.

Oral evidence,

therefore, is coloured, whereas

material evidence is free from these infirmities. But the material evidence can be manipulated: 1. A person is killed in an accidental firing. The relatives want to implicate their opponents. They procure an unlicensed firearm, fire a cartridge, place it at the scene and plant the firearm on the opponent.

The police recover the shell and the firearm. The shell is married to the firearm. The police prosecute the person. 2. A person is in the armed forces. He is seen carrying out duty up to 1 A.M. in the unit. He slips through the guarded premises, goes about a hundred miles , commits a murder, returns to his unit, enters into the

guarded premises secretly and is present on the duty at 7.30 A.M. By circumstantial evidence he proves his presence in the unit throughout the night.

3. A threatens B with death. The next day B is found murdered. B had no other enemies except A. Police suspects A as the murderer. He is not

found anywhere. He is declared a proclaimed offender. Soon after ‘ A appears before a magistrate and says he had gone on a pilgrimage, but checking at the allegedly visited places, his visits to the places are not established. He is arrested and prosecuted. In defence, he produces the jail record. He was behind the bars at the relevant time. He escapes sentence.

1.6 TOOLS ANDTECHNIQUES The tools and techniques of forensic science are oriented to meet the following exacting demands in an analysis: ¢ Sensitivity ¢ Specificity ¢ Rapidity The instruments and technique should be highly sensitive because the quantities of materials involved are extremely small, often in micro, sub-micro or

microscopic ranges. For example, a few milligrams of certain poisons are sufficient to kill a person. The quantity is distributed in the whole body. Only few hundred grams of the body matter is provided for analysis. The sample contains quantities of the poison only in micro or nanogram ranges. It must be identified and estimated correctly. In recent times the quantities involved in some crimes like offences under drug acts have gone infinitesimally small, for example the LSD’s dose in micrograms and designer's drugs like Fentanyl, are used in nanogram ranges only. Paints, soils, dusts, inks and body fluids are some times met with in sub-

micro quantities.

A clue material has to be identified positively; otherwise the evidentiary value of the clue is limited. The instruments and techniques must, therefore, be

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to identify the killer drug it is not sufficient one case it is, so that its source highly specific. In a poisoning ary to find out which

rent as a barbiturate = 4 :week he

| ae could be traced and linked to poemernc ce ook me snc The number of cases requiring me apa, , mer ‘ques and instruments should, iene y for poisoning are abienise igi ans org and era visc of l ao et , identification and estima ph processes of extracting purification — for mistakes. Modern tec ye are checked and crossed checked O y is extracted from the aaa eliminate most of these steps. The poison pi Sal kidneys) and identi ie part (say blood, urine, lungs, or layer). The quantity is —— chromatography (paper, column and thin

y and specific poison is 1 fae ie through ultra-violet-spectro-photometr ctrography. The classica through infrared spectro-photometry, FTIR or mass spe reas the above method needs days and weeks for the complete analysis, whe ,

a few hours. Similarly procedure identifies and estimates the clue material in

tified blood alcohol in a sample (a drop of blood or less is sufficient) may be iden and estimated through gas chromatography in a few minutes. The tools and techniques currently used in modern forensic science laboratories belong to both the classical and modern categories.

1.6.1 Measurements Examination of clue materials requires various

types of measurements.

Determination of dimensions (length, breadth, height, depth, curvature, and

(including mixed melting points), boiling diameter) angles, melting point points (including boiling point curves and ranges), (densities, refractive indices, briefings and fluorescence are daily routine. They require elementary knowledge of science, yet they fix the identity of a material in a number of cases. Refinement of techniques has improved efficiency and accuracy of the determination considerably in recent times. For example, density gradient tubes have permitted density determination of very small amounts with high accuracy. Likewise, using a hot stage, in Beckline method, small differences in refractive indices can be determined very accurately. 1.6.2 Microscopy A microscope is the most important tool of a forensic science laboratory. It is needed in all branches of forensic science. _ A microscope in its simplest form is a magnifying lens. Continuous improvement and inventions have given a variety of microscopes suitable for different purposes. Compound microscopes, stereomicroscopes, comparison microscopes, fluorescence microscopes, phase contrast microscopes and metallurgical microscopes are common items in forensic science laborator y. The use of infrared rays for microscopy (by using an image converter) and

electron microscopy (where magnification of the order 105 or above can be achieved) are comparatively additional recent innovations in the field. They have an important impact on forensic science. For example, scanni ng electron microscope is becoming indispensable in Forensic Ballistics, Micro-Trace Analysis, etc.

INTRODUCTION

23

1.6.3 Photography The investigating officers and others concerned with the administration of justice are familiar with the photographs of the scene of occurrence and of the criminals. Photography is also being used to demonstrate invisible traces,

visually unrecognisable clues, stains and the like. Photography with ultra-violet rays, infrared rays, X-rays and coloured filters, macro-photography (magnified photographs), photomicrography (photograph of microscopic evidence taken in conjunction with a microscope), microphotography (miniature photography), cine photography, digital photography and photogrammetry have great importance in criminal investigation work. The variety of cameras used is very large. Holography is a recent innovation. Here photographs (holograms) are taken with the help of a laser beam. The technique can photograph prints and impressions even on carpets and grass. 1.6.4 Invisible Rays The use of ultra-violet rays in criminal investigation is well known. The use of infrared and X-rays are comparatively later additions and are making their impact increasingly.

Some materials absorb ultra-violet rays. Some of their energy is consumed in the process. The rays of lower energy content are emitted. They have greater wavelength and are in the visible range. Thus, objects invisible in the dark start giving light. The phenomenon is called fluorescence. The absorption power of different materials varies greatly. Even small differences in the surface structures of an item are detected through differences in fluorescence. It helps in the identification and differentiation of stains, sealing waxes, papers, inks, dyes, paints, varnishes and more importantly forged and genuine currency notes. Infrared rays have greater wavelength than the visible light. They also have penetration power and, pass through some materials. They are useful in the examination of documents, clothes, stains and the like. X-rays have the shortest wavelength of the three types of rays. They have greater penetration power and give fluorescence under suitable conditions (¢.g., on a specially coated screen). They are useful in the study of paintings, documents, bullet holes, and fractures and for locating metal objects in sealed

containers (or foreign objects in a body). 1.6.5 Chromatography Chromatographic techniques have assumed great importance in forensic science. All its forms: column chromatography, Thin Layer Chromatography, High Performance Liquid Chromatography and Gas Chromatography are

handy tools. They are used to separate, identify and estimate clue materials even in sub-microgram quantities. The impurities do not substantially interfere during the analyses. 1.6.5.1 Column Chromatography

Column chromatography is mainly used to isolate and purify a substance. The material is dissolved in a suitable solvent and pass through a suitable

24

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ne or nce 1s then eluted with-o ta bs su e Th . mn lu co a in ion power, 1s stationary phase, packed to difference in absorp e du l, ria ate m ed ir qu nding more solvents. The re or after the impurities, depe ore bef m for re pu a in mn lu Jit eluted out of the co ae wers: | po on ti rp so ad d an y lit ubi upon their sol s and action. aper 4ce ci ple nci pri in r ila sim is Paper chromatography e the pvnice phase. Two tut sti con er pap the by ed fibre and water absorb innovations in chromatography are additiona dimensional and reversed phase paper chromatography. tification in addition to isolation and Paper chromatography is used for iden For this purpose the ratio of the distance purification of the clue material s. found, which is characteristic of the travelled by the material and the solvent is tance for the system. Circular paper substance. It is called R, value of the subs Thin Layer However chromatography is handier for the purpose. Paper (TLC) has almost completely replaced the Chromatography ration and less tailing. It chromatography technique. The latter gives better sepa is quicker also. 1.6.5.2 Thin Layer Chromatography

Thin layer chromatography is very convenient. A thin even layer of the solid stationary (¢.g., silica or alumina) is deposited on a glass plate. The substance to be identified is processed as in paper chromatography. The results are quicker and more accurate. The stationary phase and the mobile phases can be varied at will. TLC is a method of choice for most of the preliminary investigations, purification and identifications of narcotics, drugs and poisons. It is equally effective for the purposes for other chemicals, especially in small amounts.

1.6.5.3 Gas Liquid Chromatography (GLC) Gas chromatography is one of the most important tools in forensic science. The three criteria mentioned for a technique are admirably met with by this

technique. It requires minute quantities and gives qualitative results within minutes.

The technique is applied in the analysis of gases, liquids, vaporisable solids and for substances which pyrolyze to give identifiable volatile products. Petrol, kerosene oil, liquors, perfumes, lacquers, varnishes, paints, barbiturates, soaps

and organic insecticides are being analysed by this technique. The field of application is being extended every day. The technique is simple in principle and practice. In general, a liquid or a solid Stationary phase supported on small chips or other similar material is packed in the column. Or, some material coated on the inner surface of the column. The column is maintained at a convenient temperature or, the temperature is increased progressively to the final temperature. The variety of the material and the length and diameter of columns vary tremendo usly depending upon the nature of the mater i terial being analysed. are also being used with advantage. " ara eP ar TT

INTRODUCTION

25

The material to be processed (for purification, identification and or estimation) is passed through the column with the help of a carrier gas like nitrogen, helium, argon, or hydrogen. The sample in its passage through the column is fractionated. Different constituents come out of the column at different intervals and pass through the detector. A large variety of detectors with varying degree of sensitivities are available. Some of them are sample specific. They are detected by changes in the current of a circuit fitted therein. A recorder records these changes on a graph paper. Comparison of the graph with similar graphs of known products permits identification and estimation of the constituents. If the out-coming gas or vapours are collected in fractions at intervals indicated by the peaks and troughs of the graph, the separation of constituents is obtained. 1.6.5.4 High Performance Liquid Chromatography (HPLC)

The principles on which the HPLC functions are the same as in the case of GLC. The basic difference is that the mobile phase in this case is liquid, a solvent. The solution of the sample is passed through the column under pressure. Adsorption and elution of the constituents take place differentially. The separated constituents are detected/collected at the end of the column.

1.6.5.5 GC-MS/LC-MS In modern analytical techniques, GLC and HPLC have been used in combination with a Mass Spectrograph. The separated constituents, by either of the instruments, are subjected to mass spectrographic analysis. All these instruments are computer controlled. They give both qualitative and quantitative analyses. The analytical work is thus greatly facilitated. Most of the modern Forensic Science Laboratories are using the combination with excellent results. 4

1.6.6 Electrophoresis

The technique is particularly useful for colloidal or other materials like proteins, inks, paints and pigments having residual charge on the molecules. The technique is being extensively used in the study of blood and other proteinous matter. The material to be analysed is take on a paper strip (or gel). The two end of the strip are dipped in an appropriate buffer solution. An electric current of appropriate voltage is applied to the strip. The charged molecules move in either direction depending upon their residual charge. The speeds of the molecules vary with the charge and the weight of the molecules and the absorption power of the medium. Thus, different molecules get separated into bands. The position of a band on the strip identifies the molecule. Electrophoresis has proved a boom in DNA profiling, the new technique of identifying human beings and other evidence in recent times. The fragments of the DNA molecules are

subjected to electrophoresis and the patterns of the fragments fror the authentic and suspect sources are compared to find the common source or 0 herwise.

26

INVESTIGATION AND TRIA CRIMINAL IN SCIENCE FORENSIC

LS

! in tthe analysis of clue 1.6.7 Spectrography que used in hni tec rn de mo their Spectrography is th of some elements and is lys ana elemental to ’ agcine aad Its use is limited compounds. ae oe small amount of the ted a vapourises spark a or 2 :A g A flame, an arc a diffraction grating or a prism through passed is ig con light emitted is preferable). They split < latter the used, been have “f ied. quartz prisms of split up light 1s taken an photograph A wavelengths. its various nature of the substance of lines depend upon the The position and number of the standard spectrograms (photographs giving the light. Comparison with stituents of the sample analysed. spectrum) gives the nature of the con ng the densities of the various The quantitative estimates are made by studyi lines.

1.6.8 Laser Microprobe

'

e 1s laser spectrography. A A recent innovation of the spectrographic techniqu to vapourise the small narrow beam of intense light (laser beam)is used ed in the usual way. material. The wavelengths of the light so produced are studi But it The technique has not been extensively used in forensic work so far. object has a bright future, as the sample required is small. A small spot from the is vapourised. There is no noticeable damage to the object. The analysis is ‘ nondestructive ‘ for all practical purposes. The technique is being utilised to ‘fingerprint’ valuable paintings, statues, ancient items of national heritage and other works of art etc.

1.6.9 Mass Spectrometry

Mass spectrometry permits identifications of all substances which can be vapourised into charged particles (most of the materials). The samples required for the analysis are virtually in the molecular (or atomic) range. Both qualitative and quantitative estimation can be made. The technique is being used extensively in forensic work. Mass Spectrography, because of its extremely highly sensitivity and versa tility, has become a technique of choice especially for highly complex and materials in minute quantities like designer drugs. The ‘Unknown’ substances can also be- identified through various fragments which are formed in the process. 1.6.10 Spectrophotometry

One of the most important techniques in forensic work is spectrophotometry. It is sensitive, specific and rapid. In addition, it is versatile and useful for both qualitative and quantitative analyses. It is simple in principle. The equipment is,

however, sophisticated and costly.

A beam of electromagnetic rays of selected

wavelengths (from ultraviolet, visible or infrared range) is passed through the aici iy material absorbs some of the energy of these rays (at a particular

fons shes a ree sealed rays fall upon a photoelectric cell and produce -

ce ! rent of the circuit. The changes are recorded on a graph paper. Mparison of the graphs with those of the known materials permits identification of the unkn OWn material. i bats a ; : : : from the peak area.

al. Quantitative estimation is possible

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INTRODUCTION 27

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TRIALS INVESTIGATION IN CRIMINAL FOREN SIC SCIENCE

INTRODUCTION

29

The technique is extensively used in the identification of sedatives, drugs, poisons, narcotics and intoxicants. It is also useful in the identification of liquids and gases.

UV, IR, NIR, FTIR Spectrophotometers laboratories.

form part of the well-equipped

1.6.11 Neutron Activation Analysis Most of the elements can be made radioactive. The radioactivity is characteristic of the element and is studied by spectrometry. The substance is

placed in an atomic reactor bombardment. Neutron sources but they have not been found so The technique is one of the known.

where it is subjected to high flux neutron other than atomic reactors have been developed useful in forensic work. most sensitive and specific techniques so far

It has been utilised in the examination

of projectile materials, hair,

plant, soils, dust and other clue materials. The neutron activation analysis has not become a routine technique. Nor it is likely to become so, for sometime to come, as high flux neutrons required in the technique are available only in an atomic reactor, which is a complex and costly apparatus.

1.6.12 X-rays Diffraction Analysis It is a highly sensitive and specific technique

for the identification of materials. The materials under study are not destroyed in the process.

A beam of X-rays is passed through the material. The X-rays get diffracted depending upon the arrangement of the various particles in the crystals. The diffracted patterns are photographed and compared with diffraction patterns of known materials whereby the identity of the substance is established. The instrument coupled with a computer can store and compare the data so generated and give the identity or common source of the origin of the material. The technique is useful in the study of barbiturates, glass fragments, minerals, inorganic substances, paints, pigments, corrosion material, dust and the like.

1.6.13 DTA, NMR, and Polarography Differential thermal analysis (DTA), nuclear magnetic resonance (NMR) and

polarographic techniques are important analytical techniques used in chemical analysis. They are being adopted for forensic work. All these techniques are sensitive and specific. 1.6.14 Scanning Electron Microscopy (SEM)

Scanning Electron Microscope (SEM) is another powerful tool in the hands of forensic scientists. The microscope utilises electron beam for ‘observation’ of the surfaces. Part of the electron beam is absorbed, part is scattered and part is reflected back. Because of the particle size of the electron, vis-a-vis quantum of light, SEM has the following advantages: * The SEM gives very high resolution. The resolution is increased so much that even the small differences in surface structure are

E IN CRIMINAL FORENSIC SCIEN C

INVESTIGATION

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lar level. Thus, it cu le mo e th es ch oa pr tion ap highlighted. The resolu usly. nation power tremendo mi ri sc di e th s se ea cr -n 000 times).

30

lds (100 is increased many fo e The magnification . three-dimensional effect

have ° The images obtained

° The

additional

gadget

(EDX)

permits

finding

the

elemental

e or the particles thereon. compositions of the surfac working

wonders in is nt me ru st in the ers, e Coupled with comput of the gunshot facilitated the evaluation has it e er wh s tic lis Bal ic Forens the ‘nstrument is equally useful in

residues in all the aspects. The ures and marks thereon. evaluation of the surface struct UTIONS 1.7 FORENSIC SCIENCE INSTIT

y 1.7.1 Forensic Science Laborator

is main forensic science institution. It A forensic science laboratory is the ntific departments / divisions: generally divided into the following scie e Chemistry e Physics e Biology e Ballistics

e Explosives ¢ Toxicology e Narcotics

e Serology ¢ DNA Profiling * Forensic Psychology e e e e ¢ ¢

Lie Detector Unit Voice Analysis Photography Instruments Computers Scene of Crime

ee sire. air en pe

a

mamas

master’s degree in their basic specialties ordinarily, , ey have several years of experience in the expertise and Xperience in the specific and related field. The head of the

by assistant directors, senior and junior scientific officers RC SR junior scientific assistants, laboratory assistants and attendants. ;

The 3 non-technical staff carries out cleri supplies and other non-scientific duties ap aa AE ZeRS I Meee | The lab oratory is properly guarded agains t theft and loss of exhibits th

ere. director Miea scien A ng tific training and has several years of experience of inc iti

c science laboratory heads the laboratory. In big laboratory ad an additional/joi (techniical) and an administrative director joint officer (non( Mirchi. te fechinicaly ancint

INTRODUCTION

31

The laboratories, in India, by and large are well equipped. They have both the classical and modern equipment. Most of them are using the techni ques mentioned above. Sophisticated equipment for techniques like comparison microscopy, spectrography, spectrophotometry, atomic absorption spectrometry, all type of chromatography, electrophoresis, mass spectrography, laser techniques,

X-ray

diffraction

analysis,

nuclear

magnetic

resonance,

high

performance liquid chromatography and polarography is increasingly being used in the investigation of crime.

1.7.1.1 Services The efficiency of a scientist is greatly affected by the services at his disposal. He should have ample working space: search table, chemical benches, lighting arrangement and regular supply of water, gas and electricity. There should be adequate storage space for incoming and ou tgoing exhibits. They are kept in separate rooms. Each police district is given a separate storage rack so that the exhibits do not get misplaced or intermixed. The storekeeper for the exhibits handles only sealed packets of the exhibits. A small workshop greatly adds to the efficiency of the worker, as slight modification to the equipment and apparatus can be made conveniently in the workshop. 1.7.1.2 Library

It is not possible to subscribe to all the important journals in various scientific disciplines. This deficiency is overcome by locating the laboratory near a university. Here in addition to library and laboratory facilities, consultations with university staff are also possible.

Forensic science literature has been developing during the past few decades. Most of the countries publish one or two journals exclusively dealing with the subject. They should be subscribed for. The journals carry papers on forensic science.

There are not many books on the subject. Therefore, all available books should be collected. The bibliography given after the chapters indicate most of the books in English language. In addition reference works in chemistry, toxicology, physics and biology prove useful. They should be purchased. Modern internet, as source of literature has come up and may ultimately replace libraries in the usual sense. The computerised literature is located at a centralised place and can be shared on time sharing basis through telephone/ internet. Most of the literature is now available internationally through this mode.

1.7.1.3 Functions c Bri The main function of a forensic science laboratory is the examination of clue materials involved in crimes. In addition, the laboratories help in the photography and examination of the scene of occurrence, gives lectures and demonstration

to police trainees, prosecutors and judges. They carry out

research in forensic science. The laboratories controlled by police also provide

32

FORENSIC SCIENCE |!N

CRIMINAL

INVESTIGATION

AND

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raphic

og esti gation, including phot inv al in im cr ir the to s photographic facilitie crimes. coverage of the scenes of prove their ever required to explain and hen W rts cou in ar pe ap s The expert findings. which provide e laboratories, the institutions enc sci ic ens for to on ti di ad In emination of justice are: scienti fic assistance in diss 1.7.2 Other Institutions

1.7.2.1 Fingerprint Bureau tral gerprint bureaus. In addition the cen All the major state in India, have fin bureau located at Delhi under the government has also a central finger print au. The fingerprint record at the Department of National Crime Record Bure

. Any police force in India national level has been digitised and computerised

can utilise its services.

ions: Fingerprint bureau perform the following main funct e Collect, classify and store the record. e Eliminate the record of the dead persons.

° Search and locate the fingerprints records of a given person if it exists. ¢ Compare the fingerprints. ° Visit the scene of crime to locate; collect and ultimately compare the fingerprints. e found at the scene. ~ e Give evidence in courts ( or on commission ) whenever required.

1.7.2.2 Government Examiners of Documents Some state governments and central departments have institutions, which examine disputed documents exclusively. For example Bureau of Police Research and Development has three such institutions, known as Government Examiner of Questioned Documents. The oldest is located at Shimla (partl

shifted to Chandigarh and likely to be located finally there). It ie functioning somewhere in 1906. The other two institutions are at Kolkata and Hyderabad . These institutions cater to the zonal needs of not only central ashe gesd apt but also to the state governments’ needs. Some states ict ‘ bss eh Paras emp

iae institutions as Document Bureaux.

examination in their Forensic Seleniterobe tats. a

83 Gane, seg, Lael ae

1.7.2.3 Mobile Laboratories

M s yee aise sia mobile forensic science laboratory units. They vary in Pe nitadeeeaa I tin"Aak e 5 ministrative control. The main function of the mobile me police investigation at the scene of occurrence to Wate) collact and oy p

eserve the evidence. These teams also provide photographic

pabaeae to) eae

ord

the scene,

the evidence, etc. The

investigation to collect ad equate and

leads for further thivashipattont

team

also guides the

ACS AATF Soni ORS ash EAA

Ok

INTRODUCTION

33

1.7.2.4 Scientific CID Sections Some police forces have scientific division which help the department with

technical photography, technical needs.

scientific surveillance and investigations and other

1.7.2.5 Computer Divisions

There is hardly any police organisation now that does not have computer division. The use of computers, in the police forces in India is yet limited. The use, however, is growing fast. 1.7.3 Practical Aspects The fate of the accused persons often depends upon the findings of Forensic

Science. It has to be insured that the facility providers do not intentionally, negligently or otherwise give wrong results. A number of steps are undertaken to do so: 1. Accreditation of the Laboratory and the Experts. 2. Quality Assurance of the processes, tools and output of the expertise.

3. Standardisation of the tools and the techniques and the basic data sufficient for the various conclusions. 4. Automation to reduce the human error and to increase the overall efficiency of the forensic work. All the steps are essential to streamline the working of forensic science service. However in India only the last has come up. The others are crying for their induction. 1.8 PROBLEMS OF PROOF

1.8.1 General Problems of proof in linking the criminal with the crime include investigative, scientific and legal aspects. It shall be worthwhile to understand these problems and their causes to facilitate the utilisation of science and scientific techniques in the dissemination of justice. The evidence against the criminal may be the evidence of the eyewitness or of the victim, it may be confession of the culprit, an incriminating statement of a co-

criminal, circumstantial evidence or scientific evidence. Till recently the courts in India, had to depend mostly on non-scientific evidence mainly on the eyewitness accounts. Logically the evidence of the eyewitnesses appears to be the best evidence. If a person has witnessed the occurrence, the same should be the best evidence against the culprits. However, it has been proved time and again that this evidence suffers from a number of infirmities: * The eyewitness observes the occurrence for an extremely short period. ¢ He may not have observe the complete occurrence. ¢ He is often uncertain about the identities of the culprits unless he knows them. ¢ He may intermingle the acts of various individual in the occurrence. ¢ He may be biased in favour of the victim or of the culprit.

34

FOREN

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INVESTIG ATION

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e exaggerate, using his fertil y ma He d. ce an al i mb ° He may be mentally imagination. or get confused, as his evidence ise nal io rat , get for y ma s e The eyewitnes lapse of time. is recorded after considerable nion of other into consideration the opi es tak ly ous sci con sub * He ed their cussed the case or who have air persons with whom he has dis opinion in the media. ion play an important observation, m emory and descript

e

His powers of

part.

environment and forget the e He may be frightened by the courtroom observations. sel or by the court. e He may be over-awed by the opposing coun proper dissemination of In view of the above, it is highly dangerous, for the It has been proved justice, to accept the statement of an eyewitness in its totality. so both in actual cases and in experiments. The lacunae can be overcome only by scientific evidence. The second stumbling block in our system of dissemination of justice is the concept that the accused is innocent. It is considered fundamental and the charge has to be proved beyond reasonable doubt. This reasonable doubt is an uncanny entity and it cannot be specified in tangible terms. Secondly, it varies from man to man and results are responsible for variations in the judicial pronouncements in the same case or in similar cases in different courts. This has resulted in a lot of confusion in the dissemination of justice. However, extensive use of scientific evidence might reduce the twilight zone of reasonable doubt. The third problem relating to the dissemination of justice is inadequacy of the various wings of the criminal justice system. The inadequacies of the various wings of the criminal justice system take various forms. They may be relating to inadequate staff strength, they may be lack of proper selection with proper educational background, there may even be corruption. The governments are putting in efforts to overcome these deficiencies. However, there is always time lag between the quantum of need and the quantum of inputs made by the system. These general aspects of problems of proof are fundamental in nature. Some of them are continuing problems and need continuous efforts over a long period. 1.8.2 Scientific Evidence and Proof

Scientific evidence is also beleaguered by problems of proof. These problems are more easily tackled to provide better proof in the dissemination of justice.

Problems of proofs in scientific evidence can be divided in three main

categories:

1. Investigative problems. 2. Scientific problems. 3. Legal problems.

INTRODUCTION

35

1.8.3 Investigative Problems Scientific evidence provides linkages of the criminal with the crime through clue materials. The criminal at the scene of occurrence either leaves these clue materials or they are picked up by him from the scene of occurrence, from the victim or from the various articles at the scene of occurrence. If the clue materials

are properly collected, correctly preserved and sent to the laboratory for evaluation and their integrity and authenticity remain unquestionable, they can be strong evidence for the proof against the culprit. For example, a fingerprint is found at the scene of occurrence. The suspect has no legal access to the scene. The involvement of the suspect in the crime becomes certain if this fingerprint is identified to be that of the suspect. Now, this clue material has to be collected by the investigating officer. He has to be properly trained, he should have proper experience, he should have adequate knowledge, he should have proper expertise for collection, preservation, etc.). If the investigator does not possess the adequate knowledge and experience, etc., he will not be able to collect the correct clue materials and the evidence is lost. Unfortunately, the present system of selection, training and to keep them updated, on line, is inadequate to meet his requirements. The crime index in our country (as in most other countries) is rising. The increase in the number of investigating officers is not keeping pace with the increase in the crime. Consequently, the investigator is not able to give adequate time for the investigation of a case: to locate, to collect, to preserve and get the clue materials evaluated properly. Consequently, valuable evidence is lost. The distances involved to cover various crimes are also large. The time taken, the cost incurred, and the labour is often wasted because by the time the investigator reaches the scene of occurrence, the scene stands tampered by the onlookers, curiosity hunters and by the members of the families involved in the incident. The investigator is also not sure of the scientific support or value of the scientific evidence in such circumstances. The uncertainty of the value of the evidence makes him wary to collect even the evidence, which may be still worthwhile, left unmessed by the public at the scene. Theft, mutilation or destruction of the evidence by culprit or by their sympathisers is not unknown. Sometimes the corpus delicti is missing even in heinous crimes such as murders and dacoities. Again the time lag in visiting of the scene of occurrence plays an important havoc in such instances. Authenticity of evidentiary clues, collected from the sources, has to be proved beyond reasonable doubt. They must be collected in the presence of the witnesses, they must be sealed after putting the identification marks on the evidentiary clues whenever possible at the scene. The collection and the sealing of the evidence must be authenticated by at least two independent witnesses. The sealing has to be done so as to prevent any seepage or contamination of the evidence. The evidentiary clue which are liable to putrefy or disintegrate, have to be preserved so that the evidence is not destroyed by the time itis examined by the experts in the laboratory. If the authenticity of the evidence is not proved beyond reasonable doubt, the courts do not accept the evidence as genuine. It is

FORENSIC

36

SCIENCE

IN CRIMINAL

often doubted as fF lost in connecting the crimina

INVESTIGATION

AND

TRIAL S

ce is Not only the evaluation of the eviden ce. den | with the crime but it also casts aspersions on the |

investigator.

|

tiary clue illegally does not pay. den evi of ion uct ind the is ch whi Padding exposes it by his clever highly unethical. A clever lawyer easily ic -s¢ aging effect on the total evidence in dam ly high has it t sea ei e er e fi the case. It should never be attempted. in the value of the scientific The investigators in general have little faith

rds the fiasco: evidence. The following factors contribute towa ¢ Lack of knowledge ¢ Inadequate exposure to scientific methods ntists ° Insufficient opportunity of professional dialogue with the scie ¢ Improper collection and submission of evidentiary clues Dialogue between the investigator and the forensic scientists can overcome the uncertainties and bring in better understanding of the value of scientific evidence. Forensic Science Laboratories have come. The staff strength, the

equipment and other facilities available in these laboratories are adequate to meet the demand placed upon the scientists in most of these institutions. However the work load is ever increasing. It results in delays and at times inadequate examination. These factors also discourage the Investigating Officer to utilise the evidence. General level of education and scientific knowledge is improving in the country. The criminal is increasingly depending upon science and technology to carry out his nefarious work. The investigator on the other hand is too busy in his routine and non-investigative duties. He hardly finds time to update his knowledge and is thus unable to meet the scientific criminal adequately. He still continues to depend upon the third degree methods, which he finds efficacious in the initial stages. Confession from the accused bolster his confidence. Later retraction of the confession in the trial courts put the investigating officer in an embarrassing situation. At the stage, however it is too late to collect fresh evidence, which may help him in getting the culprit convicted. In short investigative problems of proof call for: * Re-orientation of the training programmes of the investigator. * To equip him to utilise scientific evidence on an increasing scale. e

He must be made

to realise

that the scientific

evidence

alone

provide him the necessary mode to link the crime and the criminal.

* Sg at:

investigative problems are the problems in which it must be proved

¢ The clue material is relevant. ¢

can

Itis authentic.

* Its integrity is beyond doubt. * Its chain of possession is fully maintained.

INTRODUCTION

37

The clue is relevant if it belong to the case and provides some inform ation about the occurrence. The help of witnesses who certify its collection augments the relevancy. The clue is authentic if it can be proved that it is the same clue, which was collected by the investigator; it is the same clue, which was examined in the laboratory, it is the same clue, which is in the court, about which the eviden ce is being tendered. The integrity of the clue is considered beyond doubts; if it proved that it has neither been replaced, contaminated, changed due to (natural change or otherwise) nor it has been destroyed. The integrity of the clue is preserved if: ¢ The minimum number of persons handle it, preferably only the investigator and the expert should handle it. The others should handle the clues in sealed condition only. ¢ It does not putrefy or disintegrate due to natural elements. e It does not get contaminated.

¢ It does not spill, seep or evaporate. ° It is preserved with preservatives wherever necessary. The name of the preservative used should be mentioned invariably. A ‘possession’ log in the case file maintains the chain of possession of the clue material. Its movement/location

should be recorded

from the time it is

taken into possession to the time it is produced in the court. The persons involved, the date and the time should be recorded.

1.8.4 Scientific Aspects

The use of science on a large scale in the dissemination of justice is comparatively new phenomenon in our country. There are many hurdles in its proper utilisation. Some of the important ones have been discussed here. The lay man considers science as something exact and definite. He, therefore, feels that forensic science should always provide a definite verdict whenever the question is put up to the forensic scientist. The concept of an exact science is hazy among the non-scientists, even among the educated persons including lawyers and judges. There is no such thing as an exact science or perfect science. Every new scientific idea starts with a hypothesis. If this hypothesis holds good for a number of phenomena relating to that hypothesis, the hypothesis is called a theory. If there is no apparent contradictions or at least serious contradictions in the working of this theory, the idea (hypothesis and theory) receives a general acceptance. This general acceptance is reached after a lot of experimental and theoretical work. Before their acceptance, there is a twilight time zone where the idea receives a thorough investigation involving apparent contradictions and explanations thereof. Once the general acceptance stage is reached, the scientific idea is considered a law. However, this law may

also be imperfect as its effects and experiments may be interpreted wrongly. Those who have studied even elementary science must be familiar with the law of conversation of matter. It was stated that matter could neither be created nor destroyed. The law held good for a long time and was not only accepted as the

38

FORENSIC

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INVESTIGATION

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Seriaepetites ¥ by wi ap n ai ag d an e tim ed ov pr saa perfect law but was stein panne a Ein en wh red tte sha nds sta However this law ity was * ee on the inter-converta ‘i er Lat le. tib ver con erg int energy are also the princip e enc sci ic ens For In ly. tal shpat scientific workers experimen | good on the same pat|tern. | Ids ho e enc sci t fec per or ct exa to c evidence in the dissemination ifi ent sci to ng ati rel ck blo ng mpi The main stu dence. It is not so. scientific evidence is weak evi of justice is a general belief that e— is better than oral evidence becaus

In fact scientific evidence

e It is objective evidence. e Itis verifiable. e It is unbiased.

e It isdemonstrable. has cropped in The misconception that scientific evidence is weak evidence, earlier stages because of the improper handling of the scientific evidence in the nce of its induction. Besides, the so-called experts who have produced this evide in the early era of the evidence were not truly experts. Quite a few of them te depended more upon the gift of the gab, the presence of mind and the infini capacity to tell lies rather on experimental work, observations and reasons. It shall be sacrilegious to continue to accept the misconception. The real problem, which causes confusion in the minds of the non-scientists, is the scientific basis on which identifications in forensic science are based,

namely; the Law of Probability. The law determines the chances of occurrence in a particular way out of a number of ways in which the events can occur with equal facility. All identifications, definite or indefinite, even non-identifications, are based on this a law of probability. It is a mathematical concept. If the probability is very high, the occurrence of the events in a different way is ruled out for all practical purposes. However, mathematically the possibility of nonoccurrence cannot be completely ruled out. For example; the identification of a questioned fingerprint in respect of a specimen is based upon finding of common characteristics in the two fingerprints. There may be ten ridge endings, there may be ten ridges, bifurcations, there may be five short ridges, there may be two islands and two deltas. If we keep the frequency of occurrence in one person out of ten persons for ridge fendings, bifurcations and short ridges and one out of hundred persons for islands and deltas, then the probability of occurrence of the patterns will be said:

-(2)"(2)"

10

10

15

(1

(13

x(35) «(5) vr(3)

| ige other aes means the chance of occurrence of similar fingerprint is €ss than one in 10°°. The chances are so less that for all practical purposes, it on be taken that the chance of occurrence of a similar pattern in anothe r Ingerprint does not exist. The forensic scientists generally believe that if the

Pata of second occurrence of the even t are less than (1/10!°), the occurrence

es not take place. They take it as the limit of Practical Identity .

INTRODUCTION

39

Now this concept of practical identity is not understood by non-scientists.

They feel that the scientist has not given a definite opinion. It is a probable opinion. The forensic science, therefore, is not an exact science.

The confusion perhaps is caused by the fact that non-scientists equate the ‘mathematical probability’ to that of normal ‘language probability’ use of the word, which means something probable but not certain. It is against this context that a High Court Judge downgraded probability. There are real lacunae in the presentation of scientific evidence : ¢ A statistical basis for presentation of evidence is needed. Statistical data for this purpose has not been compiled for all types of evidence though statistical work has been done in respect of certain types of evidence, it is essential that statistical base is provided for other types of identifications, wherever it is possible. It may, however, be understood that the identifications without statistical basis, are on the basis of

experience of the expert and are correct. However, the proper statistics basis to establish identification will help the courts to appreciate the evidence better. Besides, it will be professionally satisfying to all concerned. ¢ Standardisation of tools and techniques is essential in all scientific work so that the results given by one institution do not differ from the finding of the another institution. If tools and techniques are standardised, it should be possible to achieve a sort of uniformity in the scientific examination of clue materials in forensic science. It may however, be understood that absolute standardisation will hamper the

introduction of new tools and techniques, innovations and research. Standardisation, therefore, should be introduced only in general terms leaving open the scope for future developments and innovations and research. ¢ Accreditation of the experts and the institutions is essential to control the menace of dishonest and unqualified experts. It has to be done of course by a body of qualified forensic scientists.

Some problems relating to scientific proof are:— e Are the methods used for evaluation adequate, to generate the data required? There is increasing tendency among the scientists to standardise the tools and techniques for evaluations. Wherever such standards exist, it should be ascertained if the expert has used the prescribed

standards,

tools

and

techniques.

The

expert

should

generally use the same tools and techniques as are used by the experts elsewhere. ¢ Are the evaluations based upon adequate statistical data? There is no

absolute identity of the two entities. All identifications, as already seen, are based upon extensive statistical data. If it is not broad based it can lead to miscarriage of justice. It is, therefore, essential that the statistical base should be checked. In U.K. extensive statistical data has been generated for glass, paint, etc. Similar data has to be generated in our country, if the identifications of the common source are to be reliable.

40

PORENSIC

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INVESTIGATION

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They are not. The y? ar ss ce ne s on rat ust ill e Are photograph or y evidence collected by the mar pri the ot n 1s s ion rat photographs or illust tography). The expert ae pho ay, X-r or . I.R UV/ in t expert (excep an a e es. TheHoe illustra Secations ag Pp, osco mucr like nts upon the instrume iis rasa the unders anding pe photographs are only to facilitate “ek rt Is isho . Besides, if the expe The report is based upon data court being the evidence without the | manipulate

aytiae , ‘hi

. It e in a position to check the fraud manipulation, nor the court is 1s to incorrect, the only correct course expert evidence is suspected to be and experienced

from reputed get a second or even a third opinion

expert(s).

the If so they have to form opinion on e Can judges act as super experts? not an

rd. The judge is evidence of the experts. It is unfortunately absu satisfied with the expert. He cannot act as a supper expert. If he is not

ices of another findings of an expert he should requisition the serv tation for honesty expert more qualified, experienced and having repu

and efficiency. for all e Private experts are a real big problem. They are available

branches of Forensic Science. Most of them can furnish any report or statement tailored to suit the requirement of the client. The judges often get confused when two expert from the two sides give diametrically opposite reports. They often ignore both or utilise one, which is in line with the other evidence. This often leads to miscarriages of justice. The judges can, of course, judge the expert whether he is truthful or telling a lie, if they find time.

1.8.5 Legal Problems

The legal problems relating to Forensic Science involve Enacted law, Case law and certain conventions. They have been discussed under the topic “Law in Forensics’ (infra). Some practical problems are: 1. The number of matching points required for the identification of fingerprints was controversial. The Supreme Court has decided the issue that the rarity of the matching points is important rather than the their number, to provide identity’ .

2. The track evidence is believed to be ‘rudimentary Science’ by the courts. They do not place ‘much reliance’ on the evidence. This is most unfortunate. The identification of foot and footwear marks is as reliable as any other

identification,

though,

because

of the mechanics

of

registration of evidence it may not provide adequate identification data, as frequently. But it does not make it rudimentary science in any way. du, tne identification of handwriting has always required high expertise, eh experience and heavy inputs to come to correct conclusions. Yet the aity feels that if they can identify the handwriting of their kith and kin iF State of Madhya Pradesh v. Sita Ram Rajput, 1978 Cri LJ 1220 (SC). 2. Pritam Singh v. State of Punjab, 1956 Cri LJ 85 (SC).

INTRODUCTION

4]

(which they do day in and day out), they can also do so in respect of the handwriting of other persons. When they do so, they make mistakes. They feel the science of handwriting identification is suspect. The dissenting opposing experts further aggravates the problem. The courts feel that the scientific field of handwriting identification is extremely dangerous and requires prudence and extreme caution. Miscarriages of justice, consequently, occur frequently in cases involving handwriting. The courts have to change the attitude toward the expertise and experts, of course they have to distinguish between the charlatan from the real expert.

1.9 EXPERT TESTIMONY The expert evidence is covered mainly under the section 45 of The Indian Evidence Act, 1872 and section 293 of The Criminal Procedure Code! , 1973. The

expert examines the clues in his laboratory. He performs the required experiments, makes observations, collect the necessary data and draws certain conclusions based on the collected data. He prepares a report and submits it to the court through the agency which has requisitioned his services along with such data, illustrations, charts and photographs which make the conclusions intelligible and convincing to the court. The presentation is usually in the form of a written report. Rarely the findings may be presented in the court personally along with the supporting data. The written reports of certain experts alone (without personal attendance) are being accepted as evidence after the revision of the Criminal Procedure Code in 1973, section 293 (applicable with effect from 1-4-1974). The list of government officers includes the director, the deputy and the assistant directors of a forensic science laboratory in addition to other government officers (infra page..). The court can, however, order the expert for personal attendance, if the court deems it fit. If oral testimony is unreliable how far can we depend upon the evidence adduced through scientific processes by experts who can be incompetent, corrupt, ill and subject to human errors? Consider the following situations 1. A fired cartridge case and the suspected firearm were sent to an ‘expert’. The test cartridge fired by the expert developed high pressure. Consequently, its percussion cap bulged out and got imprinted with a number of marks. The anvil caused a protrusion in the firing pin impression. The ‘expert’ declared nonidentity of the common source of the test and crime cartridge. A second expert linked the ‘crime’ cartridge to the suspected firearm! (CH) 2. An expert once identified a forged fingerprint with genuine fingerprint with the help of a magnifying lens in the court. He was to do so at a short notice. He, however, was not satisfied and requested for time to carry out more detailed examination of the prints under a microscope. The examination revealed the drawn nature of the forged print. (CH)

1.

of Criminal Section 45 of the Indian Evidence Act, 1872. Section 293 of the Code

Procedure, 1974.

42

FORENSIC

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IN CRIMINAL

INVESTIGATION

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origin arm expert identified the common source of the fir ed enc eri exp an e 3. Onc photographed). When lets (which he had studied and of the test and the crime bul had compared and photographed he that nd fou was it t, cour the scrutinised in e. He took the ert at once admitted his mistak exp The se. r inte ets bull test only the in to his laboratory and found that the aga ets) bull test the also d (an et bull crime

firearm! (CH) crime bullet had not been fired from the

ney was immediately taken to the 4. Another expert, after a long tiresome jour from a particular shoe identified the source offootwear impression

witness box. He it indicated only a probability of positively. When his report was shown to him, not a positive identity! ( CH ) the impression being from the suspected shoe and were made: 4. In some world famous cases serious mistakes

gly attributed to Hitler’s handwriting and signatures, in his diaries, were wron him by about half a dozen experts. . e Mussolini's fake diaries hoodwinked many a handwriting expert a e Dryfus, a German army officer, was wrongly convicted on the opinion of handwriting expert. The miscarriage of justice came to light only years later when the real culprit confessed to the crime. Thus, it appears that perhaps expert evidence is equally unreliable. But it is not so:

e First, subjective factor in expert evidence is very little. ¢ Second, it is always verifiable. If the menace of the corrupt expert could be held in abeyance, the expert testimony can goa long way to disseminate real justice. The expert must bear in mind the concept of practical identity and educate the court and the counsels about the same. No two items are exactly identical. There will always be some differences. All identifications, therefore, are based

on probability. Counsels point out the differences only and plead that the identity is not established. The expert admits the existence of the differences, but he also indicates the preponderance

of similarities, which, on the basis of

probability, establishes practical identity of the common source. ps In eeEeereeen of evidence in a court, the prosecution counsel assists the ses ; . a

pte counsel critically appraises him and his evidence. The court

es the final assessment of the value of the evidence. There is no material difference in th ese aspects even when the expert is is being produced as a court bei witness or as a defence witness. aie

4} ror SOEBiGHS

. 6 a evidence is not legally required. Theoretically also, it

as Sshat sis most of the courts are hesitant to base their

towel aad os er of abundant caution, on the sole testimony of experts. exter cite reported cases where convictions were based upon the ce alone. There can be no hard and fast rule in this regard. The

circumst i este, ances of each case determini e the weighta ge to be given to the expert

INTRODUCTION

43

1.9.1 The Expert

The chief performer in the presentation of the expert evidence is the expert. He must see that: i He is thorough in his examination, has prepared the notes and the illustrations properly, consulted literature and discussed the evidence with his subordinates, colleagues and superiors. - He does not allow his imagination to go beyond the realm of observed facts. He does not bluff, does not lose temper, does not hasten with his opinion on the incomplete data, and does not have a bias or the dishonest intentions. - He does not propound and maintain complicated and unintelligible theories dogmatically, by using high sounding words and jargons. . He

takes sufficient

time

to consider

all the factors and

utilises the

available sources of information to solve the problem put to him. . His conclusions are clear, unambiguous, definite and brief. He knows

their degree of accuracy or probability. . He is conversant with the latest developments in the field.

. His language is that of a layman. If technical terms have to be used, they are kept to the minimum and they are fully explained, if necessary, with diagrams, sketches and photographs. If the expert cannot bring the technical evidence to the level of the educated layman, he is not doing his function properly. The professional experts engaged in forensic science laboratories, fingerprint bureaux and handwriting work frequently appear in courts. If they are unable to express their findings in ordinary language, they are either incompetent or corrupt. They should be handled accordingly. An expert appearing in the court is ‘qualified’ to start with. The following elements constitute the qualification of the expert Basic educational qualifications. Training. The institute from where the training was obtained, the course contents and the length of the course can give fair idea of the training. Experience, both in the actual and the related fields, the number of cases examined both jointly and independently are brought on the record. His research work, the papers published and read in the seminars, conferences and meetings are brought on record. Authorship, if he is an author.

Teaching and training programs conducted if any. All the above features are brought on record to show that by education, training and experience the person is specially qualified to express expert opinion on the subject. The position the expert holds, the length of service, the above record and the performance help to decide whether the person giving evidence is a qualified expert or not. It is possible to eliminate the impostors at this stage itself.

44

IALS AL INVESTIGATION AND TR FORENS! C SCIENCE IN CRIMIN is not sufficient. If a i itati

as Ye of ber num a r o f , s r e d ta e an n qu o a i th t n e m be It mast Ses collector, a gun dealer or even a gun maker, ay Seni ie >

Ne

e

- pests :

not make

him

a firearm

‘

¢

u

expert

for the criminal

inves Ce

Hai

.

e he hand = become a document expert becaus Likewise, a bank clerk does not day. If aman has some basic scientific scores or even hundreds of cheques every ly be a better expert

does

he would definite knowledge and training in the speciality, If quantitative experience 1s added to even if he has handled only a few cases. is achieved in the professional the qualitative experience, it is prized. This examine the cases relating to his forensic science laboratories, where the experts 1s achieved. The experts expertise only. Here a high degree of the specialisation the progress. know the latest developments and contribute to

pt expert. He, for The greatest menace in the expert testimony is the corru d: money, gives tailor-made opinions! His practices are varie e He may tamper with the crime or test exhibits.

¢ He may suppress the main points of evidence and may lay stress on the minor points.

¢ He may not carry out complete tests and examination. e He may not produce test exhibits. ¢ He may not produce proper data or he may even produce wrong illustrations or data. It is often difficult for the lawyers and the judges to detect these frauds. However, the corrupt expert becomes known to the lawyers and through them to the judges. His evidence, therefore, should he accepted with caution.

The specialists from the universities and other institutes of higher learning are sometimes called to give the evidence. They do not appear in the courts often and find it difficult to express themselves in laymen’s language. However, if they are asked to explain their findings, they do so logically and intelligibly. 1.9.2 Report

An expert’s report is issued on a standard pattern. The form caters for all the essential details: 1. The laboratory case and the report numbers. 2. The case references (the FIR No. and the Letter No. with date). 3. The date and mode of the receipt. 4 . The description of the packages (with their content): their number, identification marks, seals and the signatures and whether the seals were intact or not.

The description of the exhibits, identification marks, signatures or the initials, ete.

The Rajasthan High Court! has condemned negligence in this regard: a

l. State of Rajasthan v. Motia, AIR 1955 Raj 82.

INTRODUCTION

45

Another point that has been urged is that though it is proved that these articles were recovered from the possession of the accused, and they are the articles, which are before the court. There is no proof that these were those very particular articles, which were sent to the chemical examiner for examination. . The Questionnaire (in brief).

. The dates on which the examination is commenced and completed. . The number and nature of the test exhibits prepared. \o OO CON . The experiments carried out, the observations made and _ the conclusions drawn. 10. The name of the examiner, his qualifications and his designation. 11. The mode of the despatch of the report and the exhibits. The information given in the report has necessarily to be concise but sufficient to be intelligible and to prove the conclusions arrived at convincingly. As the reports are to be utilized by the non-technical laymen in most of the cases, now in the absence of the experts, under section 293 of the Code of Criminal Procedure, 1974, they are expressed in simple language. The wording of the inference should be standardized. The standardization increases clarity and obviates chances of misinterpretation. Besides, its frequent use prevents the grammatical mistakes, which are sometimes embarrassing. The conclusion (inference) is displayed prominently. It is either written in bold or in italic script, underlined or typed in capitals. The reports should be illustrated with the experimental data, photographs, illustrations and with the sketches whenever possible and necessary.

The Gujarat High Court! has pointed out: It is difficult to see how any reliance can be placed on the opinion unless it is supported by good reasons founded on the facts which warrant that opinion. If the reasons are good and convincing and the factual data, on the basis of which the opinion is formed, warrant the opinion, the court will rely on the opinion. However, ifthe factual data is not clear or adequate or the reasons are frivolous or inconclusive, the opinion will have no probative value. That is the reason why section 51 of the Indian Evidence Act provides that whenever the opinion of any living person is relevant the grounds on which such opinion is based are also relevant. The conclusions form the most important part of the reports. They can be:

¢ Definite conclusions ¢ Indefinite conclusions, or

¢ No conclusions. A definite report should be given only when sufficient evidence is discovered for the linkage or de-linkage. At present an inconclusive report is given no importance. A decision of Calcutta High Court? is relevant on the point: 1. Suleman Usman Memon v. State of Gujarat, 1961 (2) Cri LJ 78. (Cal). 2. Bhullakram Koiri v. State of West Bengal, 1970 Cri LJ 403

46

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It ts agree with the defence counsel. biasee we ce den evi d sai the of is analys nion eh cae depend Upon an str ange that an expert in his ultimate opi vassine d

the sai in the absence whereof n tio vic con m fir the h ‘ sastiltes and not on the court of rp as ‘s and eed ind n thi ly ous e “ Aeris hecomes danger e offixing the se He m pos pur the for n tio era sid that by itself into con cic interrogation or of im ; of nt poi the d che rea ing ; The expert hav e under —

conviction in a cas relied upon for the purpose of

m one report to inconclusive report varies fro an to en giv be to age ght the The wei only technically. In the other

onclusive another. One report may be ‘nc lm of the data may hardly cross the rea and ry cto fun per be may ce den evi duty of remes the probabilities vary. It is the possibility. And between the two ext all the of an inconclusive report. As the court to ascertain the value ed only on the probability figures. bas are e, nit efi ind or te ini , def ons ati identific lusive report, should an expert’s inconc The court, to exploit the full value of

ascertain the probability figures. . The adage ‘justice delayed, The reports should be sent as soon as possible the examinations should be justice denied’ is literally true in some cases. All ed promptly. Patna High carried out expeditiously and the reports thereof issu

Court! has deplored the delay:

be deplored. This inordinate delay in the examination by the ballistic expert is to ient It is unfortunate that in such serious cases, the expert does not attach suffic importance for a speedy examination and a submission of his report.

1.9.3 Illustrations The expert evidence is technical in nature. The observations are made on the basis of the data collected through instrumental and chemical analyses, etc. The correct idea about these experiments cannot be given by the description alone. These observations are, therefore, illustrated through photographs, other illustrations or charts for the convenience of the court and the counsels, whenever possible. The photographs are not necessary for the expert to come to a conclusion in most of the cases. His main forte is data obtained from the examination. But to a layman the evidence can be demonstrated through illustrations and photographs. However they have to be presented and explained personally, otherwise the photographs can create confusion in the court. | Andhra Pradesh High Court? rejected the evidence, which was not illustrated: With regard to the pin strike and finer striations on the base of the cap of the cartridge, the opinion expressed is definite and conclusive. But unfortunately he has not produced the test cartridge for comparison purposes. The learned advocate on that account, has argued that the data be supplied or the enlarged photos be produced, so that the opinion of the expert may be verified by the court and the court ought not accept the opinion of the expert without satisfying itself of the correctness of the same. ie —

of Bihar v. Bhullaram Koid, 1971 Cri L] 187 (Pat).

2. Thimma Reddi (in re:), 1957 Cri LJ 109 (AP).

INTRODUCTION

47

Learned counsel (for defence) has contended that the record does not furnish the material which has helped the expert in coming to his conclusions in this case and the court has not the advantage of looking into those materials so that to hold that the expert was justified in the opinion he has given. I think the submission must be accepted as correct. 1.9.4 Language

The expert is expected to bring the technical evidence to the level of a layman. He uses a simple and a clear language. Technical terms are avoided as far as possible, both in the report and in the statement before the court. If the technical terms are used, they are carefully explained. In a murder trial it was essential to establish the direction and location of the wounds for the proper reconstruction of the occurrence. The doctor who had carried out the post-mortem examination was not available. The post-mortem report was carefully studied, but it was in such technical jargons that nothing could be made out. A senior medical officer called, too failed to explain the same. (CH) Technical verbosity has been deprecated, by the Nagpur High Court !: I do not minimise the value of expert evidence but I deprecate the attempt to cloud a simple issue in a deluge of scientific words which no ordinary man would be able to understand. The law is grounded on, the assumption that the issues are ones which “twelve good men and true’ can comprehend and answer.

Three types of expert witnesses use technical terminology. Firstly, the shallow types. He wants to impress the court with bombastic words, unintelligible theories, laws and formulas. He feels he is impressing the court. In addition, he feels by distracting the attention of the court with the terminology, he can succeed in hiding his own weakness and the weakness of the case he is supporting. The court can definitely refuse to be hoodwinked by this technique.

Secondly, the learned type. They know their subject thoroughly but they are engrossed in their researches and studies. They feel that everybody knows (or should know) what they are talking. This class of specialists does not frequently appear in courts and are, therefore, unaware of the court’s requirements. The court and counsel should ask for clarification and elucidation of the unintelligible words and phrases in their testimony. The expert will be glad to amplify, though they may feel difficulty to express themselves in layman’s language. Third, the corrupt type. They deliberately try to misguide the court through technical words. The expert should be concise, precise and methodical. But the brevity should not be achieved at the cost of intelligibility and clarity.

1.9.5The Prosecution Counsel

The counsel who produces an expert for evidence must:

1.

Basant Rao Bayi Rao v. State, 1950 Cri LJ 181 (Nag).

48

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3

ert blish the Bona fide of the Exp

AND

TRIA LS

~~

ogy counsel sates on uti sec pro e (th l nse cou ie it ere oenl qu ae i the basic paige ns: tio ica lif qua nt eva rel the t see tha ge ations of the expert wri Piia training, the experience and the public srecee ap phey rly essential if the exper! brought on record. This is particula rt knows the expert, itia etter to . court does not know him. Even if the cou Pa at a later stage the case 0 a summary of his qualifications, so that if t the expert evidence has higher court in appeal, the appellate judge knows tha

come from an authentic source’. the government expert if The courts are often satisfied as to the bona fide of

and extent of they are of a certain status. In such cases the status of the expert ne. experience in the specialty should be brought on record as a routi

| 1.9.5.2 Understands the Evidence The counsel must understand the evidence. For this purpose, if necessary, he should have a conference with the expert before putting him in the witness box. This is especially necessary in heinous cases where it is essential to determine whether the particular death was a murder, a suicide, an accident or an act of

self-defence. This prior understanding will not only avoid sudden surprises in the case for him, but he shall also be able to clarify, amplify and ascertain certain points in the evidence, which may prove useful to the cause of justice. It is the counsel who is to co-relate the expert evidence with the rest of the evidence and present to the court a connected whole case. He can do so only if: ¢ He understands the expert evidence. ¢ He is able to show that there is no contradiction in the various types of evidence inter se. * He is able to prove that the various pieces of evidence support one another and lead collectively to one and the only one conclusion that the accused is guilty. 1.9.5.3 Ensures Induction of Demonstrative Testimony

The counsel should ensure that the expert should produce the data on which his findings are based. He must illustrate the findings by charts, graphs, sketches, diagrams, photographs and physical reconstruction wherever possible and whenever

necessary.

He should

quote authorities

whenever

required. The report should be so worded that an intelligent intelli layman can understand it. 1.9.5.4 Anticipates the Defence Line

; *a case is studied thoroughly, the presenting counsel is able to anticipate the fo line. He should discuss the same with the expe rt and cover the points, : ely to be raised by the defence counsel in the cross-examination. They should

€ covered in the examination-in-chief itself. He is, thus, able to forestall the defence

and thus, blunts the ed f ge of the drama, usually enacted by some of the defence counsels.

ne

l. State of Bihar v. Hanuman Koeri, 1971 Cri LJ 182 (Pat).

INTRODUCTION

49

1.9.5.5 Handles Inconclusive Report Effectively An inconclusive report can provide only corroboratory evidence to linkage chain. If possible the counsel should get the probative values of the inconclusive reports.

In certain cases, the reports are, as already mentioned, inconclusive only technically. The views of the expert based upon his experience should be obtained in such cases. The replies are of great value if the expert has an extensive experience in the field and has a reputation for honesty and efficiency. The inconclusive report sometimes has immense eliminative value. The experts do not often know about these possibilities at the stage of examination. The counsel should know and exploit them intelligently. 1.9.5.6 Listen to the Cross-examination Attentively The counsel carrying out the cross-examination may bring forth material, which needs further elucidation or clarifications. He may direct the crossexamination in such a way that certain anomalies are created. It is the duty of the prosecution counsel to take a note of the anomalies and get the ambiguities clarified and removed in the re-examination.

1.9.6 Defence Counsel The defence counsel brings in the dramatic part of the presentation of the expert evidence. He takes over the expert after the examination-in-chief. An intelligent defence counsel is attentive throughout the examination-in-chief and tries to appraise and compare the oral evidence with the written report, a copy of which is supplied to him before hand, and other relevant data produced by the expert. He plans the cross-examination on his assessment of the situation. A cross-examination of an expert must be done with thought and care. An off-hand cross-examination often does more harms than good to the defence case. For proper cross-examination it is necessary that the counsel: 1. Understands the Evidence.—It is not necessary for him to have studied the subject in a college or a university. But he must acquire sufficient knowledge from the case studies and available standard works recognised and utilised by the courts as authorities. The choice of the right book(s) is, of course, important. 2. Anticipates the Total Expert Evidence.—In fact the copy of the report prepared by the expert is supplied to the defence counsel before hand. The defence counsel, therefore, knows what will be the main evidence of the expert.

However, often additional evidence and elucidation are sought by the prosecution or by the court. The defence counsel should be able to anticipate and understand the additional evidence also. 3. Plans His Cross-examination Carefully.—Ordinarily cross-examination has one or more of the three aims: ¢ To discredit the Bona fide of the expert. © To challenge the correctness of his findings. © To seek elucidation and additional information, which confuse or contradict other evidence.

may clarify,

FORENSIC SCIENCE

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1. ’ t , : rt pe ex the if aoe cross-examination well . The counsel can plan the of the case thoroughly. s ail det the d an ce en id ev expertise, the by quack expert, 1s exposed the or rt pe ex an of rb the experience, the ining, 3 impostor in the ga ‘ft aa t the training, s, qualification demic x- she has claimed. If the expert has claimed exploring caref ully the aca he ch, ear res the publications and learned societies, the questions 50

ships of some the membership or the fellow by a function and the actual wees , ure nat the w kno to ed ect dir be should s wrl ‘A mple, some of these personalilie exa For . ert exp the by and y iet soc SI’, which are supposed to be the against thei + names ‘MFSSI’ or ‘FFS society, in India. The impostor often membership or fellowship of a d efunct ng universities and institutes. It should claims degrees or diplomas of non- existi | be possible to expose the fraud. . These impostors attend Another class of pseudo-experts is emerging in India es to appreciate the classes organized for police officers, lawyers and judg

acquired the scientific evidence. After attending classes they claim to have teach. necessary expertise, which such courses do not even, pretend to In addition to the general and the basic education, four variables determine the expertise: 1. The training 2. The experience 3. The research arid 4. The publications. : If the credentials of the expert are doubtful, they should be probed.

In the training, the standing of the institution where the expert obtained his

training, is important. The detailed nature of the training Syllabus and the work done during the training should be scrutinised. The length of the training period is important. Some of these impostors have claimed even a short visit (for

an hour or two) to an institution as training. Such claims can be easily exposed and should be exposed. |

In experience,

both

the

qualitative

and

the

quantitative

aspects

are

important. The outstanding cases handled and the expertise provided by the expert and appraised by the courts and the counsels may also be noted. In research, the subject of research and the journal, with pages, in which the research material is published, are relevant. If possible the original source (journal) and the reprints of the publication should be obtained and scrutinised. Itis futile to try to discredit a well established, honest and an efficient expert. It is also criminal to accept an impostor as an expert. The evaluation of evidence, to challenge the correctness of the findings of an expert, is a difficult and a delicate task. Most of the lawyers prefer to put up another expert for the purpose. It is done in two ways: ° Special power of attorney is obtained for the defence exper t to crossexamine the presenting expert.

* The defence expert is put up on the witness stand for rebutt al.

F

INTRODUCTION

“ye Jn Sm Ls :

“4%

A

51

The services of a reliable expert are not always available. Frequently the counsel has to carry out the cross-examination himself. It must be remembered that the basic principles of forensic science are simple. Any educated person, who is willing to understand the subject, can do so without any difficulty of course, he must have standard works on the subject, the time for the perusal and the will to understand the subject. The study is always rewarding. The incident with Mr. Fallen, a famous American lawyer, may be recalled: Mr. Fallen, an eminent lawyer, once carried out a brilliant cross-examination of the head of the Gynaecology Department.of the Harvard University. At the end of the cross-examination the professor asked Fallen ‘May I ask you a question’? ‘Certainly’, replied the lawyer.

‘Where and when did you study Gynaecology, Mr. Fallen”? ‘Last night in my library,’ replied the lawyer. The weak points of expert evidence are found from the following checklists: 1. Did the expert compare the crime exhibits with the test ones?

An expert testified that the crime bullets had been fired from the questioned firearm. The defence counsel knew that the firearm had not been used in the crime. He was, therefore puzzled at the result. The counsel carefully examined the questioned bullet and the photomicrograph produced by the expert. The crime bullet was deformed to a certain extent, whereas there was no deformation visible on the photograph of the crime bullet. He put up his doubts to the expert. The expert gave a careful check and admitted the possibility of a mistake. He asked for more time, which was readily given. The re-examination of the exhibits revealed that the expert had by mistake compared the test bullets inter se! (CH ) 2. Does the Expert Identify the Exhibits?

Ordinarily the expert puts his identification marks on the exhibits. The counsels should check the basis of the identification of the exhibits, in doubtful cases, as sometimes the exhibits get lost or replaced. A few years ago, a cartridge case was put up for the identification purposes to the expert in the court. It did not bear the usual initials and the other identifying scribble. Phe expert was puzzled. However, he had a photograph of the base. He compared the same with the cartridge base. The two did not tally! Later, it was found that the original crime cartridge had been lost and the person responsible for the custody presumably introduced the substitute! (CH) 3. Has the Expert Based His Opinion on the Accepted Standards?

The expert should be asked to state the accepted standards of proof of practical identity in the comparison work. The same should be checked beforehand from some standard sources. If any discrepancy between the two standards is noticed and if the standard of proof of the expert is substantially lower than that given by the authorities on the subject, it should be brought on record. The evidence provided by the expert should then be measured with the KI BRARY MATIONAL LAW SCHO@L @i INDIA UNIVERSITY

SAGARBHAVI, POST BAG NO, FED @4ANMGAI OBE

cera abun

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laid. In some

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ideence cases ; the evid

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be foun d below

the

accepted standards.

ks on the this context that very old boo in n tio men to nt eva rel s cc perhap they may be ou idatediy ; subject should not be quoted, as the Expert Convincing: . 4. Is the Evidence Produced By are produced to ts, ph otographs and the data The illustrations, graphs, char ar as ls, in general. If they are mae cle convince the court and the counse be pressed by the de ence age uld sho nt poi The s. les use are y , the ble intelligi nsel should be familiar with the type o cou the r, eve How . ord rec on t ugh bro and iculous questions thus, exposing his evidence, so that he does not ask any rid ce himself of the correctness or own ignorance. The counsel must convin ss-examination of the witness. otherwise of the evidence before he stops the cro approach with the The defence counsel must have an honest ‘open mind’ rejects whatever expert evidence. The ‘closed-door’ approach (where the counsel r approach. the expert says) does not help. The courts are quick to detect the latte c towards The detection harms the defence case. The court becomes sympatheti in. the expert. The defence counsel earns a bad feeling of the court in the barga 5. Has the Expert Carried out Adequate Tests and Experiments? Ordinarily, the expert carries out all the essential spadework. In rare cases only, he may neglect the necessary experiments (due to carelessness, over-work, illness or due to bad intentions). It is often difficult to ascertain the same. A

careful scrutiny of the evidence on the part of the defence counsel, however, may reveal the lacuna. 6. Are the Exhibits Authentic? It is difficult to ascertain whether the exhibits were safe in the laboratory. However, the expert must certify that: e He received the exhibits in the sealed conditions.

¢ The seals were separately.

intact

and

tallied

with

the specimens

supplied

e He opened or got the packets opened in his presence and that he put his identification marks then and there. * The exhibits during the examination remained in the personal custody (lock and key) of the expert and nobody has or could temper with them. * He sealed or got the exhibits sealed after the examination. The exhibits in the court are the same,

which

he examined

in the

laboratory, pertaining to the case in hand. 7. Is the Expert Biased? It is a difficult question to ascertain if the expert is biased. It is generally believed that a government expert is biased in favour of the prosecution and a private expert is biased towards the party employing him. It need not be so. In fact, the circumstances are such that the expert looks biased. The prosecution or the private party calls an expert only after it has ascertained from the expert his opwuion on the subject. If the opinion is not favourable, it does not call the

INTRODUCTION

se

expert. It is only rarely that the opposite party comes to know about the results and calls the expert as their witness in such cases. The expert is also called now and then by the court, as a court witness. In one criminal case, the author had given a report, which was neither favourable nor unfavourable to the prosecution. They did not produce the report in the court. At the time ofappeal the defence came to know about the existence of the report. The defence insisted upon the production and got the report produced in the court after considerable delay. The chief justice who was hearing the appeal had a

hearty laugh and remarked, ‘Much ado about nothing’. (CH) The expert evidence is verifiable. It leaves no room for bias. The question of bias, therefore, has little relevance. In case of doubt, a second expert can be called. It is believed that the two honest experts will agree, almost invariably, to the fundamentals and may differ very slightly in the minor details, if they differ at all, especially if the experts are from government laboratories.

1.9.7 Additional Details It is often useful to ascertain the additional details. They may contradict the medical evidence or the evidence of the eyewitnesses. Consequently a doubt may be created in the minds of the court: which may benefit the accused. Examples: The investigator allegedly recovered, in a case of murder, a 12 bore shotgun cartridge, made by the Indian Ordnance Factory. It was identified to have been fired from the suspect weapon of the accused. The defence counsel, at the time of cross-examination, showed to the expert the felt cushion wad that was recovered from the dead body of the victim. The wad never formed part of the cartridges manufactured by the factory. A different manufacturer was using the felt wad!

(CH). 2. In another multi-murder case, the evidence of an eyewitness was believed because he was also allegedly injured in the shooting. The medico legal expert had X-rayed the injury and taken out foreign material from the injury. On the request of the defence when the exhibits were examined, no projectile or its fragments were found in the extracted material, nor there was any shadow of any projectile in the X-ray film. (CH) 1.10 THE COURT The court is the ultimate authority to evaluate and utilize the expert evidence. The attitudes of the courts vary tremendously: * Some courts under-rate expert evidence. They feel that it is weak evidence. © Some courts are hostile towards the evidence. They feel that the expert assumes the functions of the court. * Some courts fear the expert evidence. They feel they cannot understand of the evidence. They either ignore the evidence or accept the ipse dixit the expert. ls © Some courts believe that the evidence is not their worry. The counse case should understand and argue about it. The court should decide the on their arguments alone.

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Such attitudes are undesirable. court is necessary: The scrutiny of expert evidence by the

criminal may prove First, the evidence can turn the tables. A suspected . to be an innocent person, OTF, vice versa

shy of the evidence. Secon d, most of the lawyers, on both sides, feel ly appraise the evidence, cr They may fail to properly present or critical which may lead to the miscarriage of justice. Third, a clever lawyer may exploit the general lack of knowledge to twist the evidence to his advantage and misuse it. Fourth, the prosecution counsel is interested in the prosecution case only. He will expose only those aspects of evidence, which are useful to the prosecution case and goes no farther. Fifth, the defence counsel, on the other hand, limits his probes to only

those aspects, which are beneficial to the defence case. In other words it means his efforts would be to demolish the prosecution evidence. Thus, it is the judge only who is interested in real justice. He should, therefore,

ascertain

the

facts,

assimilate

them

and

utilize

them

in

the

dissemination of justice. The newer generation of the judges should especially be aware of their responsibilities in this regard as in the future the expert evidence will play more decisive role. It will be used more frequently, almost in all cases. The scientific methods in the detection of the crime are daily improving and are becoming accurate, sensitive and specific. But at no stage they are unintelligible. They should be utilized. In brief, the court must see that: 1. The expert, the prosecution and the defence have done their duties properly, if they have not, the court should intervene at the appropriate time.

The expert is an honest, properly educated,

trained

and that he is

engaged in the professional work. The court should not permit an impostor to impose upon the court and perjure.

The expert does not use meaningless jargons, technical terminology or verbosity to hide the weak points in his evidence or to mislead the court to non-issues. The expert is not forced to answer questions in ‘yes’ or ‘no’ answers. The scientific evidence often needs elaboration. ‘Yes’ or ‘No’ answers cannot do justice to the truth in some of the questions. The expert has not side-tracked the relevant questions put to him by the counsel or the court. The counsels do not waste time in asking hypothetical questions. The expert evidence produced is relevant , intelligible, properly demo

nstrated and explained and conforms to the standards in the speciality.

INTRODUCTION

55

8. The points left ambiguous or incomplete, either by the prosecution or by the defence, are clarified through the court questions. 9. The inconclusive reports are probed to ascertain their probative values and they are given due weightage accordingly. As already mentioned elsewhere that some of the reports are inconclusive only technically. They must be given the due weightage. 1.10.1 Fallacies About Expert Evidence Certain court conventions, which need some elaboration, are:

1. ‘A court must form its own opinion’.—That the ‘court must form its own opinion’ is a time honoured convention. It provides a useful check and prevents the carelessness and complacency on the part of the expert. But the court is not to act as a super expert. The court has to form an opinion on the total evidence and not over the expert evidence. Some persons feel that the court is to act as

super expert and has to be an expert of experts. It must be emphasized that the court is not the super expert. If it is not satisfied with the evidence of an expert a second expert or even a third expert, should be employed to clear the doubts. The convention is irksome to some experts. They believe that the expert evidence is too technical to be understood by a layman (the judge, the lawyer). The belief has no basis. Experience, literally in thousand of cases indicates that it is always possible to bring the evidence to an understanding level of an educated man provided the man is willing to understand. Some judges and some lawyers, unfortunately, refuse to do so. The convention ensures that the evidence is descriptive, demonstrative and is in non-technical language. If the reports of the expert are considered ‘sacrosanct’ and accepted without any scrutiny, the practice may harm the cause of justice. Unfortunately, some judges misconstrue the convention. They feel that they are also to act as expert on the expert evidence. They take up the role of the super expert and form their own judgement on technical issues. This is an incorrect approach. The essence of the convention is that the judge should not accept the ipse dixit of the expert. He must understand the evidence (with the help of another expert, if necessary) before using it along with the other evidence. 2. ‘The Expert Must Conform To “Yes” or ‘No’ Technique’.—Some defence counsels want the expert to answer their questions in ‘yes’ or ‘no’ in the cross-

examination. ‘Yes’ or ‘no’ answers, in expert evidence, can be given only at the

cost of accuracy and clarity. They are likely to confuse the issues. The court must see that the expert is allowed proper opportunity to amplify and to clarify his testimony whenever he so desires so that the incomplete evidence does not, later on, create confusion.

3. The Expert Must Answer All Questions’.—This is also an unfortunate convention in some courts. The expert is a specialist in a very narrow field of his becoming specialty and the knowledge is increasing at such a pace, that it is

what to talk extremely difficult to keep abreast even in one’s own specialisation,

ing to of related fields. The expert must be asked only relevant question pertain question his report/opinion he has furnished. If the expert is asked relevant answer all the questions. relating to the subject-matter in hand, the expert must

56

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d a free reign, A the if the counsel is allowe confusio n. stions, which lea d to

scal que eti se hyp eaoth

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expert is often pestered.with

Wigmore, an authority on

evidence, has remarked: y msy and abused by the clever. The clu the by d use mis are ons sti que »thetical | of truth.

le obstruction ot posit led to intolerab ider expert Evidence’.—Some persons cons eal ak We 5 I y on im st Te t per 4. ‘Ex An expert carries on evidence. It is incorrect. n opi e tiv jec sub the as ony testim sed upon the e rvations. His conclusions are ba obs es mak and ts men eri exp out report e. Therefore, the expert testimony Is a observations and they are verifiabl h ignore the

dence. The courts, whic of facts. It is not subjective opinion evi l rance and the dispensation of rea no ig n ow ir the ow sh e, enc sci of advances d upon physical evidence. It is free se ba ts, fac ce of en id ev is It s. fer e suf tic jus man being. Above all itis lings of the hu from personal bias, emotion or other fai

ce. It is free from personal bias, verifiable. It is based upon physical eviden ng. Above all it is verifiable. emotion or other failings of the human bei

usurp the court's 5. ‘Expert Usurps Court’s Functions’.—Expert does not other aspects of functions! He informs the court on one aspect only. There are the total which he may not be ever aware. The court takes into consideration evidence. It does not decide the case on expert evidence alone. In this connection the words of Rogers, a famous authority on evidence, are worth noting: The proper test of the admissibility of the expert ts not whether or not the opinion of the expert would prove the very fact to be found by the jury (court). The object of all testimony is to prove the very fact to be found by the jury and it is not usurpation of powers of the jury to prove that fact. 6. ‘Expert Differ’—The real honest experts do not differ on the basic findings. They may sometimes differ as to the quantum of weightage or to the adequacy of the data for proof. Diametrically opposite opinion are not possible from real and honest expert. One of the differing experts is certainly a corrupt person or at least incompetent.

| 1.11 TIME ELEMENT Time element is not given the importance it deserves; consequently quite a few cases end in acquittal. Consider the following cases: A woman was stabbed at 1 P.M. The doctor examined her at 1.45 P.M. and found the victim in an unconscious state. He found the blood was flowing from the

wound like water from a tap’. The bleeding could not be stopped and no blood transfusion could be given due to lack offacilities. The woman expired at 3 P.M. On postmortem examination the doctor found that the arch of aorta (the main trunk of arterial system) was cut and some of the arteries were severed. A dying declaration was allegedly recorded at 2.45 P.M. It formed the only important piece of evidence. The dying declaration was contested by the defendant on the ground that the victim could not have regained consciousness at 2.45 P.M. as bleeding continued. Rather, she would have grown more and more feeble with passage of time.

INTRODUCTION

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The dying declaration could not be believed because of the defects in the time element. (CH ) Some years ago, a housewife was taken ill. She was rushed to a hospital and given treatment. She responded to the treatment and was declared out of danger. After a night's rest, she again suffered from the fits and died. The doctor attending upon her declared that the cause of death was complications due to pregnancy.

Earlier, her mother had also died with similar symptoms and under similar suspicious circumstances. The relatives, therefore, suspected foul play and informed the police. A post-mortem examination was carried out and viscera were sent to chemical examiner. The examiner found strychnine poison in the viscera. The chemical examiner's report was shown to the doctor who attended upon her.

He opined that the poison must have been administered to the victim before she was admitted to the hospital, because after her admission in the hospital, only one nurse was allowed to attend upon her and no visitors were allowed. Before her admission she could have taken the poison herself or she could have been given the poison by any of her visitors or relatives. It was, therefore, difficult to fix the identity of the culprit. As the victim had responded ta treatment and had been declared out of danger, the investigating officer was not satisfied with the findings of the doctor. He took the medical chart to a toxicologist. The latter on careful study of the medical chart came to the conclusion that the victim could not have died of the poison administered to her before her admission to the hospital as probably she had eliminated most of the same and had responded to the treatment. He was certain that the poison was administered to her after she had been admitted to the hospital and declared out of danger. The time fixed by the toxicologist also fixed the possible culprit. There was only one person—the attendant nurse—who was allowed to be with the victim. Detailed interrogation of the nurse led to the real culprit. He had used the nurse as a tool. The culprit was convicted. (CH) In a multi-murder case, the accused tried to prove concoction and padding by the prosecution. They referred to photographs of the scene of occurrence, which were allegedly taken in the evening. The shadows of trees in the photographs indicated

morning time. (CH) The consideration of time element needs attention of the investigating officer, the lawyers and the judges to avoid sudden surprises in the cases. They should check and cross check the presence of the accused, the witnesses, the physical phenomena and the exact time of occurrence in a particular case. 1.12 LAW IN FORENSIC SCIENCE Law governing expert evidence consists of: 1. Enacted Law. 2. Case Law. 3. Court conventions. | 1.12.1 Enacted Law The main legal provisions, which govern the expert evidence, are in:

FORENSIC

58

SCIENCE

IN CRIMINAL

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AND

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Indian Constitution. 2. Indian Evidence Act, 187 eK NO WO

ure, 1973. Code of Criminal Proced

er’s Act. 4. Identification of Prison

1.12.1.1 The Indian Constitution the Constitution is the article 20(3) of dian In the in ion vis pro n The mai : ; es: stat It . ion tut Consti pelled to be a witness against himself. No person accused of an offence can be com ctment were legion. Could a person The problems, which arose from the ena ts, photographs, measurements, be forced to give fingerprints, footprin handwriting, etc.?

d the problems since The constitutional Bench of the Supreme Court has solve type of clue materials through a landmark decision. It held that the above on instead of become evidence only after their evaluation. And the evaluati helping the prosecution may help the accused!" 1.12.1.2 The Indian Evidence Act Section 45

This is the most important section of the Act vis-a-vis forensics. It states:

When a court has to form an opinion upon a point offoreign law or of science or art, or as to the identity of handwriting or finger impressions, the opinion upon that point, of persons specially skilled in such foreign law, science or art or in questions as to the identity of handwriting or finger impressions are relevant facts. Such persons are called experts. 1. This section defines what is the nature of expert evidence the courts need: e Foreign Law. e Art. ¢ Science. ¢ Handwriting. ¢ Fingerprints. There has been a lot of confusion about what constitutes science. Contradictory judgements have cluttered the earlier case law. But by and large the recent Supreme Court judgement? has not only eliminated the absurdity relating to typescript identification but it has also provided the guidelines for the induction of new types of scientific evidence (DNA! Voice Identification, Pattern Recognition, Brain Printing, etc.) 2. Who are experts? This section indicates who are experts: Specially skilled rs { i ee skill has not been defined but by convention it is acquired it i 1. State ofBombay v. Kathi Kalu, 1961 (2) Cri LJ 856 (SC). 2. State v. Chaudhary, AIR 1996 SC 1491,

INTRODUCTION

59

Basic education

Training

Experience Research

Participation in scientific gatherings Publications of Research, Reviews, Case histories, Books Section 73

The second most important section relating to expert evidence is section 73 of Indian Evidence Act. In order to ascertain whether a signature, writing or seal is that of a person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose. The court may direct any person present in the court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with words or figures alleged to have been written by such person. This section applies also, with any modifications, to finger impressions.

The section specifies what comparison material for disputed handwriting, signatures or seals (or for fingerprints) can be utilised by the courts: 4. Any previous writings admitted or proved to be that of the suspect. 2: Specimens obtained by the courts from the person on orders. The section has given headache all round. The main controversial points are: Should the comparison material be examined only by the judge with or without the assistance of the experts. This controversy has been settled by the Supreme Court in a landmark judgement:! They have decided that the assistance of a handwriting expert should be obtained as a matter of prudence. At what stage can the court order a person to give specimens: at the investigation or at the trial stage? If a person is ordered to give specimens at the investigation stage, the action may amount to partisan action— helping the prosecution, by the judge! If the order is made at the time of trial, there will too much delay. This problem needs perhaps modification of the enacted law. This aspect is still in the melting pot though Supreme Court has ruled that the court cannot order taking of

specimen if the case is not pending trial before it.*.

1. Ajit Sachit Muggvi v. State of Kerala, AIR 1997 SC 3255. 2.

Ram Babu Misra v. State, AIR 1980 SC 791.

60

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are:*. Evidence Act, relevant to Forensics Indian the of sections other The Section 46

: acts, not otherwise relevant, are ert s.—F Facts bearing upon opinions of exp with the opinion of experts, when such relevant if they support or are inconsistent opinions are relevant. Illustration

a certain poison. (a) The question is, whether A was poisoned by person, The fact that other persons, who were poisoned by that toms of exhibited certain symptoms, which experts affirm or deny to be the symp that poison, is relevant. (b) The question is, whether a certain seawall causes an obstruction to a harbour. The fact that other harbours similarly situated in other respects, but where there were no such sea walls began to be obstructed at about the same time, is relevant. Section 51 Grounds of opinion, when relevant.—Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant. >

Illustration

An expert may give an account of experiments performed by him for the purpose of forming his opinion. Section 159

Refreshing memory.—A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the court considers it likely that the transaction was fresh in his memory. The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, ifwhen he read it he knew it to be

correct.

When witness may use copy of document to refresh memory.—When ever a witness may refresh his memory by reference to any document, he may, with the permission of the court, refer to a copy of such document. 1.12. 1.3 Code of Criminal Procedure , 1973

The main sections of this Cod e which are related to expert evidence are section 292 and section 293. Section 292 is appl icable to only Mint Master and other currency officers. wider applications,

imi lar to those of of section - Itits contents are simi i 293, whici h has

Section 293

: eid liceAyeps ting fo be a report under the hand of a Government brertiace ;. 0 Pi esthis section applies, upon any matter or thing duly

hehe,

im for examination or analysis and report in. the course of any

proceedings under this Code, may be used as evidence in any trial inquiry, trial ¥ inquiry, other proceedings of the Code.

or

INTRODUCTION

61

2. The court may, if it thinks fit, summon and examine any such expert as to the subject-matter of the report. 3. When any such expert summoned by the court and he is not able to attend personally, he may, unless the court has expressly directed him to appear personally, depute any responsible person working with him to attend the court, if ‘such officer is conversant with the facts of the case and can satisfactorily depose in court on his behalf. 4. The section applies to the following Government scientific experts, namely (a) any Chemical Examiner or Assistant Chemical Examiner to Government; (b) the Chief Inspector of Explosives;

(c) the Director of Finger Print Bureau; (d) the Director, Haffkeine Institute, Bombay;

(e) the Director, the Deputy Director or Assistant Director of Central Forensic Science Laboratory or State Forensic Science Laboratory; (f) the Serologist to the Government

The section has the following features: 1. Specifies the government experts, who are exempt from personal appearance. 2. Describes modes for personal attendance of the experts for additional evidence etc., for cross-examination, elucidation, or additional related

evidence. 3. Fixes no limitation on the nature/extent of the contents of the reports. Problems: 1. Data usually not given in the reports—lIpse dixit of the expert has to be accepted. 2. No cross-examination. It eliminates the acid test to evaluate the expert evidence.

1.12.1.4 The Identification of Prisoners Act The sections 2,3,4,5 and 6 of the Act are relevant to the expert evidence. They provide legal sanctions for obtaining specimen evidence from the suspects/ accused /convicts. Forensic Science is becoming indispensable in the dissemination of justice because of the failure of the old order, excellence and reliability of its tools and techniques and the ever availability of the wherewithal of its assistance. It should be adopted on a much larger scale that it is being adopted, if our criminal justice system has to serve the society effectively.

1.13 CASE LAW A lot of case law has come up on the various aspects of expert evidence, practically on all types of physical clues. The important case law has been given at the end of the various chapters. tev 1.13.1 Reports under section 293, Cri PC (1973)

To appreciate the rival in contentions, the issue deserves consideration in the

context of the statutory provisions against the backdrop of their legislative

FORENSIC SCIENCE

62

It

deserves

IN CRIMINAL

recalling

INVESTIGATION

that the pre decessor

AN D TRIALS

510 of the old

section

s of the Chemical Examiner in oneG 1898 had rendered admissible the report PC, 1973 is5 sectio sie thereof. n 293 § the new Cri 3 Shae ence. The successor provision in evid vant provisions thereo It seems apt at the very outset to juxtapose the rele Section 510 of the old Code of Criminal Procedure: (1) Any document purporting to be report under the hand of any gin Chie Examiner or Assistant Chemical Examiner to Government or the Inspector of Explosives or the Director of Finger Print Bureau or an

officer of the Mint, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code. Section 293 of the new Code of Criminal Procedure (1) Any document purporting to be a report under the hand of a government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as

evidence in any inquiry, trial or other proceeding under this Code. (2) The court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report. (3) Where any such expert is summoned by a court and he is unable to attend personally, he may, unless the court has expressly directed him to appear personally, depute any responsible officer working with him to attend the court, if such officer is conversant with the facts of the case and can satisfactorily depose in court on his behalf. (4) This section applies to the following government scientific experts, namely:— (a) any Chemical Government,

Examiner

or

Assistant

Chemical

Examiner

to

(b) the Chief Inspector of Explosives; (c) the Director of the Finger Print Bureau; (d) the Director, Haffkeine Institute, Bombay;

(e) the Director, Deputy Director or Assistant Dire ctor of a Central Forensic Science Laboratory: (f) the Serologist to the Government.

Now

what perhaps calls for pointed notice is the fact that for well-nigh a century since the enactment of section 510 of the old Code it was clearly settled law that barring cases where there was positive evide nce of the tampering of sample, it was not

incumbent for the prosecution to examine only or every Rove | in the office of the Chemical Examiner, who may have had the occasion

ied ate sample. Within this court a somewhat radical depa rture from ie stream of precedents seem servations

is

of their Lordships

1. 1980 Cri LJ 1929 (SC),

s to have

in Daulat

arisen only subsequent

Ram’s

case!

Since

to the

the very

INTRODUCTION

63

fountainhead for the discordant note is the alleged ratio thereof, it becomes necessary to examine in some detail the facts of the said case and what was specifically laid down therein. A plain reading of the brief judgment makes it manifest that therein it was expressly found that the samples even whilst in the custody of the inspector and subordinate police officials, were so tampered with that even the office of the Superintendent of Police, Jodhpur, declined to accept them, as the labels thereon were not in order. It was observed that the

prosecution had not taken the court into confidence in disclosing the reasons as to why the office of the Superintendent of Police had refused to accept the samples. Their Lordships further held that the prosecution had failed to prove that the seals on the samples had remained intact throughout. It was noticed that the samples remained in the custody of Sub-Inspector Aidanram, P.S. Udai Mandir Nathu Singh, Gaijraj Singh, Jawan Singh and the Assistant Public Analyst and yet none of these witnesses were examined by the prosecution to prove that whilst in their custody they were not tampered with. On such peculiar findings of fact where the higher police authority had itself refused to accept the samples as being spurious and where the seals thereon were not found to have remained intact, and out of a host of five witnesses, not one was

put in the witness-box, their Lordships of the Supreme Court saw no reason to upset the acquittal by the High Court on an appeal preferred by the State of Rajasthan. Indeed in this case the prosecution had itself realized the serious lacunae and attempted to adduce additional evidence before the trial court, appellate court and revisional court, but was denied such an opportunity in view of the peculiar circumstances and extremely vacillating stand taken on behalf of the State which at one time had filed an application and later on chose to withdraw it. It would appear that on the totality of the aforesaid factors their Lordships rightly concluded that they did not find any error of law in the view taken by the High Court. It is well to recall in this context the hallowed rule that if two views are possible, then a judgment of acquittal is not to be disturbed. In view of the above, the learned counsel for the respondent-State whilst distinguishing Daulat Ram’s case (supra) was right in highlighting that it had turned on its exceptional and peculiar circumstances, the most prominent one being that the samples were obviously tampered with and the labels thereon were not in order, thus raising sharp doubts about their authenticity. It was

because of this that even the office of the Superintendent of Police itself declined to accept them for onward transmission to the public Analyst. Now once the very genuineness of the samples becomes mysteriously questionable, the court would rightly be put on its guard to demand strict proof with regard to their safe custody. Further where such tampered samples would have passed through a host of several hands, the court may well require the evidence of a witness for satisfying its conscience about the authenticity and the sage custody of the

samples. Therefore, the observations in Daulat Ram’s case (supra) are not even

remotely an authority for the proposition that though there is not a hint of doubt or suspicion initially raised about the genuineness or authenticity of the

samples, even then each and every person, who may have handled the same in depose the office of the Chemical Examiner, must step into the witness-box to

64

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case conclude that Daulat Ram's proposition. In this context it 1s hae '™ ’s case (supra) had Ram Livn’ of Daulat t Of rth recalling that the true import Punjab, Full Bench in Piara Singh v. State of the ore bef e ee pe e e facts and —— sito any where it was held that it turned on its peculiar ial or non-official witnesses. of any offic inflexible rule about the examination d that the persons employed Equally in this context it has to be borne in min otherwise independent persons, who in the office of the Chemical Examiner are prosecution ion. | am unabl e to about its safe transmiss such doctrin aire (supra) has laid down any

or the failure of the are not even remotely interested in the success

laid at their door. The case. No suspicion in this context, therefore, can easily be of the Government statutory provisions seem to attach some sanctity to the report ant Chemical Scientific Experts including the Chemical Examiner and Assist uirement of Examiner whose reports are made admissible even without the req t their stepping into the witness-box unless expressly summoned by the cour and even when so, the same statute authorises them to depute any responsible person working with them to depose on their behalf unless expressly directed otherwise. Therefore, insistence by the court that any or every person who had handled the sample in the Office of the Chemical Examiner must depose about this fact that it had not been tampered with till it was opened for examination, does seem to run counter to the spirit of the statutory provisions on the point. On principle also, therefore, such a view seems to be untenable. Adverting now to the afore mentioned Single Bench decisions of this court, it is manifest from the very brief judgments recorded that the issue was not adequately canvassed on principle and authority by the learned counsel for the parties. It seems to have been assumed that Daulat Ram’s case (supra) had laid down expressly that all the concerned officials of the office of the Chemical Examiner must be examined with regard to the safe custody of the samples therein till they reached the hands of the persons who actually analysed the same. As already discussed, no such ratio flows from the observations of their

Lordships in Daulat Ram's case (supra). With the greatest respect to the learned Judges, inferences derived from the said case are not tenable and they consequently do not lay down the law correctly. Therefore, Tehal Singh v. State of Punjab’, Gurcharan Singh v. State of Punjab? and the cases reported as Amarjit

Singh v. State of Punjab*, Atma Singh v. State of Punjab® and Bishan v. State of

Punjab! are hereby overruled. Inevitably it follows that any other Single Bench judgment taking the same view can no longer be held as good law. _ In this context it seems particularly pertinent to recall that the Division Bench judgment in State of Punjab v. Nachattar Singh’ has taken the same view as I am (1982) 84 Punj LR 244: 1982 Cri L] 1176. Cr. Rev. No. 219 of 1979 decided on November 20, 1980. Cr. Rev. No. 304 of 1979 decided on February 5, 1981. 1981 Chand Cr C 170 (P&H). NO G? Gwe. 1981 Chand Cr C 181 (P&H). 6.

1981 Chand Cr C 243 (P&H).

7. 1982 Cri LJ 1197.

INTRODUCTION

65

inclined to take. However, it would appear that even after reference to the aforesaid decisions, the Bench did not choose to specifically pronounce about the correctness thereof and thus leaving the issue somewhat in doubt. To conclude on this aspect, it must, therefore, be held that it is not incumbent

on the prosecution to examine any or every concerned official within the office of the Chemical Examiner with regard to the safe custody of the sample therein, and its failure to do so does not introduce any infirmity in its case. One may now advert to the question whether section 293 of the Code renders admissible the averments in the report of the Chemical Examiner, both as regards the condition and also the manner of the receipt of the sample in his office. Herein, the basic stand taken on behalf of the petitioner was rested on certain observations made in the Single Bench judgment of this court in Santa Singh v. State in the context of section 510 of the old Code. Therefore, what calls for pointed notice at the very threshold is the fact that the said view stands already overruled by the Division Bench in Nachattar Singh’s? case. Nevertheless, learned counsel for the petitioners persisted in their submissions that section 293 of the Code renders only that part of the report admissible in evidence which pertains strictly to the opinion of the Chemical Examiner with regard to the contents of the sample and not with regard to its condition and the manner of its receipt in the office.

Inevitably the issue must first be construed in the light of the language of section 293 of the Code itself coloured as it is by the predecessor, provision of section 510 of the old Code. That the Legislature has kept the amplitude of the provision as a wide one seems to be manifest from the very opening part of the section 293 of the Code itself. The language does not seems to confine it to the opinion of the expert stricto sensu or to any artificially constructed meaning of his ‘Report’. Indeed, the statute talks of any document purporting to be a report under the hand of a Government scientific expert. In legal terminology, the word ‘document’ is one of larger connotation and what is more, the section brings within its ambit any such document purporting to be such a report. It would thus appear that there is no warrant for any artificial construction or narrowing down the ambit of the report visualised under section 293 of the Code to only that part thereof which pertains to the opinion of the Chemical Examiner and excluding all the rest therefrom. Again the significant words in section 293 of the Code seem to be “upon any matter or thing duly submitted to him for examination or analysis”. It would seem to be plain that the words ‘duly submitted’ include within their ambit the mode and manner of the submission of the sample and its receipt by the Scientific Expert. Consequently, the report with regard to the manner of the submission of the sample for examination and its condition would come squarely within the scope of section 293 of the Code. Learned counsel for the petitioners then made a vain attempt to fall back on section 45 of the Indian Evidence Act for contending that the report of the 1. (1970) 72 Punj LR 618. 2. 1982 Cri LR 1197 (P&H).

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t recourse to section wout d not be obvious tha whole, a as rdly permissible. It was not Chemical Examiner, 1

Sfm jeans orovision-wheeldth 45 of the Indian Evidence Act, ee Experts adach disputed before us that gale é : torts of those Scientific particular terms made poe

e t x pt

(4) of section: 293 eka Gedeyit

have been enumerated expressly Un SYP" 593 of the Code herein must prevail nab section of provisions is obvious that special o rule hallowed the on Evidence Act, of the isi | Consequently, themarticalar ! over the general provisions . q esi construction that the special overrides the general. MONEE Chemica the of reports provisions regarding the admissibility of the

§) section or Assistant Chemical Examiner to Government, provided under the be to purporting (a) of the Code, are plainly applicable and any document trial. Now an expert can as a whole be used as evidence at the

report of such

once such a report is made

admissible

by law, it seems

to me

as wholly

parts thereof as hypertechnical to dissect it into different parts and hold certain being out of the ambit of such admissibility.

On the larger canons of construction as well, it is not possible to accede to the view canvassed on behalf of the petitioners. A reading of section 293 of the Code, as also the corresponding provisions of the earlier section 510, plainly indicates the clear policy of the Legislature to obviate the examination of expert witnesses in this context and making their reports admissible per se. Reference to sub-section (3) would indicate that even when such an expert is summoned

(unless expressly directed to appear personally), he may depute any other responsible officer working with him to depose about the same on his behalf. To read this provision so stringently as to make every (or any) person handling the sample in the office of the Chemical Examiner, as a necessary witness, would, therefore, be in a way defeating the very purpose of the statute itself. It is plain that in practice it can hardly be possible to entrust all the samples to the Chemical Examiner himself or to the particular Analyst who may later come to examine the same. Therefore, the insistence upon obtaining the evidence or deposition of all employees of the Chemical Examiner’s office, who would meanwhile be concerned with the safe transmission of the sample originally received, may well render nugatory the purpose underlying section 293 of the Cede and inordinately delay the conclusion of criminal trials which, it is the policy of the law, to conclude expeditiously. Viewed from any angle, it seems to follow that section 293 of the Code renders admissible the report of the Chemical Examiner as a whole including the averments with regard to the condition of the sample and the seals thereon and the manner of its receipt. The answer to the second question, posed at the

outset is, therefore, rendered in the affirmative.!

1.13.2 Reports Admissible Learned Counsel for the respondent has taken this technical objection that

none from the office of the Chemical Examiner came for ward to depose or file an aie to show that the sample of opium had not been tampered with during € period it remained with the Chemical Exam iner. The respondent did not __

iF Bhagwan Dass v. State of Punjab, 1982 Cri LJ 2138 (P&H).

INTRODUCTION

67

take a positive stand at the stage of the recording of the evidence that there had been any interpolation in the office of the Chemical Examiner in relation to the sample which was examined. It was only urged at the stage of the hearing of the arguments that it was the duty of the prosecution to show by leading some kind of evidence that the sample of opium had not been tampered with in the office of the Chemical Examiner. The trial court took into consideration this fact that no official of the Chemical Examiner was interested in tampering with the sample and that all official acts done by a public servant in the discharge of his duties could be presumed to be validly done. It was mentioned by Constable Gurnam Singh P.W. 3 in his affidavit that he had left the sample of opium in the office of the Chemical Examiner. The learned Counsel for the respondent laid stress on this point that it should have been entrusted to the Chemical Examiner himself. The trial court took into consideration this fact that it was not possible for the Chemical Examiner to personally receive the samples sent to him in all types of cases.

In the report, exhibit PE, of the Chemical Examiner it was specifically mentioned that the seal on the exhibit was intact and agreed with the sample seal sent. That means that up to the time the sample was examined there had been no interference in the same. The argument of the learned counsel for the respondent before us is that the report of the Chemical Examiner is admissible only for showing the sample to be one of opium and that any further observation made by him with regard to the condition of the sample at the time of the examination cannot be received in evidence under the provisions of section 293 Cri PC The learned counsel has obtained support for his argument from a Single Bench ruling of this court, wherein the scope of section 510 of the old Code of Criminal Procedure which corresponds to section 293 of the new Code was considered. The following quotation from the headnote itself would clarify the view taken in that case: “Held, that according to the provisions of section 510, Cr PC, it is only the report of the Chemical Examiner upon any matter or thing duly submitted to him for examination, that can be used as evidence. In other words, it is the report by which is implied the opinion of the Chemical Examiner, which can be used as evidence provided the matter or thing, in respect of which such opinion is sought has been duly submitted to him for examination. In the context, the word “report” refers to the report proper pertaining to the examination of the matter or thing forwarded to him and not to any incidental intimation noted or endorsed in that report. Section 510, Cr PC dispenses with the necessity of production of Chemical Examiner as a witness in court to prove the contents of his report pertaining to the examination. It does not dispense with necessity of proof of any other incidental or consequential matter, about which a note has been appended in that report”. We respectfully differ from the above view. Section 293 of the Cr PC lays down that any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the 1. Santa Singh v. State, (1970) 72 Punj LR 618.

68

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course of any pr oceeding

IN CRIMINAL

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AN D TRIALS

nera pers PS under this Code, may be “sh ma all eT er this —

g und inquiry, trial or other proceedin

re I erence that not only t ~ inf this to d lea can ’ ent cum ‘do cman the report becomes a oa Examiner but all that is stated in — ee ctical difficulties wou proof. If this were not so, such pra rom ion Examiner or nce the examination of the Chemical rp ti

8

rasaesore — necessity, and not only the position - the | received from the police w icati mined pe mmerene a witness so as to connect the material exa pees pra) is, therefore, The view taken in Santa Singh’s case (su

sent for examination.

overruled.

red to by the learned Several Single Bench rulings of this court were then refer imperative for the Counsel for the respondent for showing that it was le in case it prosecution to lead evidence about the non-tampering of the samp than had been entrusted by the police authorities to some functionary other — Chemical Examiner himself. The particulars of these rulings are as follows:

(1) Tehal Singh v. State of Punjab! decided by Tewatia, J. on Nov. 20, 1980.

(2) Gurcharan Singh v. State of Punjab* decided on Feb. 5, 1981, by Tewatia, J. (3) Amarjit Singh v. State of Punjab, (P&H),° decided by Punchhi, J,, (4) Atma Singh v. State of Punjab* decided by Punchi. J., and

(5) Bishan v. State of Punjab’ decided by Dewan, J. The ratio in State of Rajasthan v. Daulat Ram® was taken into consideration for giving this finding that unless somebody from the office of the Chemical Examiner filed an affidavit showing that the sample of an article remained in the same state as it had been handed over by the police till its actual examination, the link evidence would not be taken to be complete. In that case samples of opium were taken from the Excise Headquarters and were then handed over to a Sub-Inspector of a certain police station. Thereafter another witness had handed over the samples to the Superintendent of Police, Jodhpur, for onward transmission to the Public Analyst, but the samples were not accepted by the office of the Superintendent of Police as the labels were not in order. Then follows the following (Para 1):— It is the admitted case of the prosecution that the samples changed several hands before reaching the public Analyst. In other words, the samples remained in the custody of S. I. Aidanram, PS Udai Mandir, Nathu Singh, Gujraj Singh, Jawan Singh and the Assistant Public Analyst and yet none of these witnesses were examined by the prosecution to prove that while in their custody the seals were not Cri. Rev. No. 219 of 1979. Cri. Rev. No. 304 of 1979. 1981 Chand Cr Cas 170. 1981 Chand Cr Cas 181 (P&H). 1981 Chand Cr Cas 243: 1982 Cri iy ae. ‘orn er 6 AIR 1980 SC 1314: 1980 Cri L] 929,

INTRODUCTION

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tampered with. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with during this pertod—fact which had to be proved affirmatively by the prosecution. This is the main infirmity which has been relied upon by the High Court in holding that the prosecution has not proved that right from the stage of the seizure of the opium upto the time when the samples were handed over to the Public Analyst the seals remained intact.

Thus the dictum in Daulat Ram's case enjoins upon the prosecution to prove this fact that upto the stage the sample reaches the Public Analyst the police not tampered with the same—so to substitute the article which was contained in the original sample. The seal used by the police is ordinarily handed over to a person of their choice and hence, it is not difficult for them to obtain back the seal and use it over again. The courts, therefore, always insist that somebody should come forward to depose that there has been no tampering of the seal till the sample gets out of the reach of the police authorities. We are of the view that the ratio of Daulat Ram's case cannot by analogy be applied to the employees working in the office of the Chemical Examiner. Those employees are not at all interested in the success of the prosecution case. It could only be the person who has been prosecuted for the recovery of some incriminating article who would be interested in the substitution of any material that was to be examined. Any mischief on the part of such a person would be sufficiently guarded against by obtaining this report of the Chemical Examiner that the seals were intact till the contents of the sample had been examined by him. If the courts were to insist that in every case all those persons who handled the sample in the office of the Chemical Examiner should depose about this fact that the sample had not been tampered with till it was opened for examination, it would very nearly render nugatory the beneficial provisions contained in section 293 of the Cr. P.C. The insistence upon obtaining depositions of the employees of the Chemical Examiner’s office would prolong trials without any useful purpose being served. As pointed out by the trial court, it would not be possible to entrust all the samples to the Chemical Examiner himself for keeping them in safe custody till their examination. We are thus against extending the ratio of Daulat Ram's case beyond its actual scope. The report of the Chemical Examiner to this effect that the seals on the sample were intact when it was examined by him is considered by us to be a sufficient safeguard against any mischief that could be

perpetrated in the office of the Chemical Examiner.’ 1.13.3 Death Penalty

The provision of death penalty as an alternative punishment for murder in section 302, Indian Penal Code is not unreasonable and it is in the public interest. Therefore, it can be held that the impugned provision in section 302 violates neither the letter nor the ethos of article 19 of the Constitution. The Penal Code, particularly those of its provisions which cannot be justified ed heads on the grounds of reasonableness with reference to any of the specifi 1. State of Punjab v. Nachhattar Singh, 1982 Cri LJ 1199.

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raw ——— auses (2) (3) and (4) ~ a Ther such as “public order” in cl e are seve’ 1). f the rights conferred by article 19( of ‘ctions ult, which assa ry ina h as theft, cheating, ord ;

peoteipinne Onan ye ‘aw and order’. These offences e aoa but out “ils — —— er fen d she gui dua tin from the public at large. It isby as dis eh gen POP indivi REY po of the life of the Om tem en ‘ev ns mea r’ orde lic ane oh mene that ‘pub turb or affect public order. dis not do s der mur all even That being so, and the injury oF harm resultmg ance ific sign ate priv ely pur of be murders may and, consequently, such murders als, vidu indi ific spec y onl cts affe therefrom

in the contemplation of clauses (2), (3) may not be covered by ‘public order’ with to disorder do not lead to public disorder but and (4) of article 19. Such murders ment of such murderers is

that punish simpliciter. Yet, no rational being can say ed that general public interest is not in the general public interest. It may be not riction on the rights a head in clauses (2) to (4) on which rest not specified as be justified. The real distinction mentioned in clause (1) of the Article may the and order’ and ‘public order’ lies not merely in

between the areas of ‘law nt. Violent crimes similar nature of quality of the act, but in the degree and exte stances might cause in nature but committed in different contexts and circum nces may cause only different reactions. A murder committed in given circumsta the parameters a slight tremor, the wave length of which does not extent beyond t and of law and order. Another murder committed in different contex y circumstances may unleash a tidal wave of such intensity, gravit and magnitude, that its impact throws out of gear the even flow of life. Nonetheless, the fact remains that for such murders which do not affect “public order”, even the provision for life imprisonment in section 302, Indian Penal Code as an

alternative punishment, would not be justifiable under clauses (2), (3) and (4) as

a reasonable restriction in the interest of ‘public order’, such a construction

must, therefore, be avoided. Thus construed. Article 19 will be attracted only to such laws, the provisions of which are capable of being tested under clauses (2) to (5) of article 19.

From the decided cases of the Supreme Court it would be clear that the test of direct and indirect effect has not been scrapped. Indeed, there is no dispute that the test of pith and substance of the subject-matter and of direct and of incidental effect of legislation is a very useful test to determine the question of legislative competence, 1.e., in ascertaining whether an Act falls under one Entry while incidentally encroaching upon another Entry. Even for determining the validity of a legislation on the ground of infringement of fundamental rights, the subject-matter and the object of the legislation are not altogether irrelevant. For instance, if the subject-matter of the legislation directly covers any of the fundamental freedoms mentioned in article 19(1), it must pass the test of reasonableness under the relevant head in clauses (2) to (6) of that Article. If the

legislation does not directly deal with any of the rights in article 19(1), that may

not conclude the enquiry. It will have to be ascertained further whether by its

direct and immediate operation, the impunged legislation abridges any of the right enumerated

in article

19(1). The

mere

fact that

the impugned

law

incidentally, remotely or collaterally has the effect of abridging or abrogating

INTRODUCTION

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those rights, will not satisfy the test. If the answer to the above queries be in the affirmative, the impugned law in order to be valid, must pass the test of reasonableness under Article 19. But if the impact of the law on any of the rights under clause (1) of article 19 is merely incidental, indirect, remote or collateral

and is dependent upon factors which may or may not come into play, the anvil of Article 19 will not be available for judging its validity. Section 299, Penal Code defines ‘culpable homicide’ and section 300 defines culpable homicide amounting to murder. Section 302 prescribes death or imprisonment for life as penalty for murder. It cannot, reasonably or rationally, be contended that any of the rights mentioned in article 19(1) of the Constitution confers the freedom to commit murder or, for the matter of that, the freedom to

commit any offence whatsoever. Therefore, penal laws, that is to say, laws which define offences and prescribe punishment for the commission of offences do not attract the application of article 19(1). It cannot be said that the object of penal laws is generally such as not to involve any violation of the rights conferred by article 19(1) because after the decision of the Supreme Court in the Bank Nationalisation case, AIR 1970 SC 564, the theory, that the object and form of the State action alone determine the extent of protection that may be claimed by an individual and that the effect of the State action on the fundamental right of the individual is irrelevant, stands discredited. But the point of the matter is

that, in pith and substance, penal laws do not deal with the subject-matter of rights enshrined in article 19(1). That again is not enough for the purpose of deciding upon the applicability of article 19 because even if a law does not, in its pith and substance, deal with any of the fundamental rights conferred by article 19(1), if the direct and inevitable effect of the law is such as to abridge or abrogate any of those rights, article 19(1) shall have been attracted. It would then become necessary to test the validity of even a penal law on the touchstone of that Article. On this latter aspect of the matter it can be held that the deprivation of freedom consequent upon an order of conviction and sentence is not a direct and inevitable consequence of the penal law but is merely incidental to the order of conviction and sentence which may or may not come into play, that is to say, which may or may not be passed. Therefore, section 302 does not

have to stand the test of article 19(1) of the Constitution.

Assuming arguendo, that the provisions of the Penal Code, particularly those providing death penalty as an alternative punishment for murder, have to satisfy the requirements of reasonableness and public interest under article 19, the onus of satisfying the requirements under article 19 lies on the person challenging the validity. There is initial presumption in favour of the constitutionality of the Statute and throw the burden of rebutting that presumption on the party who challenges its constitutionality on the ground of article 19. Behind the view that there is a presumption of constitutionality of a statute and the onus to rebut the same lies on those who challenge the legislation, is the rationale of judicial review, a respect for the boundaries of legislative and judicial functions and the judicial responsibility to guard the trespass from one side or the other. The primary function of the courts is to interpret and apply the laws according to the will of those who made them and not to transgress into the legislative domain of policy-making.

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errent, cannot be

in actual practice acts as a det Whether or not death pen alty ie , because statistics as to how pal i statistically proved, either way iden rspede esce see g tin mit com m fro ed err det e ) murderers wer | icult, if not alto eth are diff , der mur for t men ish pun ital l murderers are difficult bac st e ntia pote rred dete of cs isti stat h ditc ee of their mind. Retri vial an

ermost recesses they remain hidden in the inn ent ends of capital deterrence are not two diverg

punishment.

ey are

' convergent goals which ultimately merge into one. penalty serves any penological To sum up, the question w hether or not death issue it has evoked strong, purpose is a difficult comp lex and intractable itutionality of the impugned divergent views. For the purp ose of testing the const Code on the ground of provisions as to death penalty in section 302, Penal itution, it is not reasonableness in the light of articles 19 and 21 of the Const

, as to which necessary to express any categorical opinion, one way Or the other sts, is of the two antithetical views, held by the Abolitionists and Retentioni ing correct. It is sufficient to say that the very fact that persons of reason, learn and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the petitioners’ argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose. If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people, the world over, including, sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if in the perspective of prevailing crime conditions in India, contemporary public opinion channelised through the people’s representatives in Parliament, has repeatedly in the last three decades, rejected all attempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if death penalty is still a

recognised legal sanction for murder or some types of the word, if the framers of

the Indian Constitution were fully aware of the existence of death penalty as punishment for murder, under the Indian Penal Code, if the 35th Report and

subsequent reports of the Law Commission suggesting retention of death penalty, and recommending revision of the Criminal Procedure Code and the insertion of the new sections 235 (2) and 354(3) in that Code providing for pre-

sentence hearing and sentencing procedure on conviction for murder and other capital offences were before the Parliament and presumably considered by it when in 1972-1973 it took up revision of the Code of 1898 and replaced it by the Code of Criminal Procedure, 1973, it is not possiblé to hold that the provision of death penalty as an alternative punishment for murder, in section 302, Penal

Code is unreasonable and not in the public interest. Therefore, it could be

concluded that the impugned provision in section 302, violates neither the letter nor the ethos of article 19. (B) Indian Penal Code (1860), sections 53, 302, Constitution of India, articles

21 and 14 - International Covenant

on Civil and Political Rights, article 6— Provision of death penalty as an alternative punishment for murder is not

violative of article 21. (Per Majority, Bhagwati, J. Contra):

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The provision of death penalty as an alternative punishment for murder is not violative of article 21. Article 21 expanded and read for interpretation purposes clearly brings out the implication, that the Founding Fathers recognised the right of the State to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law. There are several other indications, also, in the constitution which show that the Constitution-makers were fully cognizant of the existence of death penalty for murder and certain other offences in the Indian Penal Code. Entries 1 and 2 in List II1—Concurrent List of the Seventh Schedule, specifically refer to the Indian Penal Code and the Code of Criminal Procedure as in force at the commencement of the Constitution. Under the successive Criminal Procedure Code which have been in force for about 100 years, a sentence of death is to be carried out by hanging. In view of the aforesaid constitutional postulates, by no stretch of imagination can it be said that death penalty under section 302, Indian Penal Code, either per se or because of its execution by hanging, constitutes any unreasonable, cruel or unusual punishment. By reason of the same constitutional postulates, it cannot be said that the framers of the Constitution considered death sentence for murder or the prescribed traditional mode of its execution as a degrading punishment which would defile “the dignity of the individual” within the contemplation of the Preamble to the Constitution. On parity of reasoning, it cannot be said that death penalty for the offence of murder violates the basic structure of the Constitution. (Para 136).

Further, article 6, clauses (1) and (2) of the International Covenant on Civil and Political Rights to which India has acceded in 1979, do not abolish or

prohibit the imposition of death penalty in all circumstances. All that they require is that, firstly, death penalty shall not be arbitrarily inflicted; secondly, it shall be imposed only for most serious crimes in accordance with a law, which shall not be an ex post facto legislation. Thus, the requirements of these clauses are prohibitions contained in articles 20 and 21 of our Constitution. India’s commitment, therefore, does not go beyond what is provided in the Constitution and the Indian Penal Code. The Penal Code prescribes death penalty as an alternative punishment only for heinous crimes which are not more than seven in number. Section 354 (3) of the Code of Criminal Procedure, 1973 in keeping with the spirit of the International Covenant, has further restricted the area of death penalty, India’s penal laws, including the impugned provisions and their application, are thus entirely in accord with its international commitment. Per Bhagwati, J.: Section 302 of the Indian Penal Code insofar as it provides

for imposition of death penalty as an alternative to life sentence is ultra vires and void as being violative of articles 14 and 21 of the Constitution since itdoes not provide any legislative guidelines as to when life should be permitted to be extinguished by imposition of death sentence. (C) Code

of Criminal

Procedure,

1973, sections

354(3)

Constitution of India, articles 14, 19 and 21—Procedure

and

235(2) aa

for sentencing in

tution. [AIR 1979 section 354 (3) does not violate articles 14, 19 and 21 of Consti

no longer good SC 964 and AIR 1979 SC 916, overruled; AIR 1935 Cal 591, held law.]

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ure Code for imposing capital ced Pro al min Cri in ed vid pro The procedure e capital crimes under the Penal Cod er oth e som and der mur for t men punish can nfair, / unreasonable and unjust. ; Nor 2 u be to i said , be -kon ing kon rec any cannot by with which the courts are invested, it be said that this sentencing discretion, ore,

of legislation by Parliament. Theref amounts to delegation of its power 1979 14, 19 and 21 of Constitution. [AIR section 354(3) does not violate articles No longer good law.] SC 916, overruled. AIR 1935 Cal 591, Held, ure, 1973, marks a significant Section 354(3) of the Code of Criminal Proced

e of 1898, as in force shift in the legislative policy underlying the Cod ch both the alternative immediately before April 1, 1974, according to whi der and for certain sentences of death or imprisonment for life provided for mur tences. Now, other capital offences under the Penal Code, were normal sen face of according to this changed legislative policy which is patent on the

ences l section 354(3), the normal punishment for murder and six other capita off ent for a term of under the Penal Code, is imprisonment for life (or imprisonm years) and death penalty is an exception. In this context section 235(2) is also

relevant. Although sub-section (2) of section 235 does not contain a specific provision as to evidence and provides only for hearing of the accused as to sentence, yet it is implicit in this provision that if a request is made in that behalf by either the prosecution or the accused, or by both, the Judge should give the party or parties concerned an opportunity of producing evidence or material relating to the various factors bearing on the question of sentence. — As can be seen, section 235(2) provides for a bifurcated trial and specifically gives the accused person a right of pre-sentence hearing at which stage, he can bring on record material or evidence, which may not be strictly relevant to or connected with the particular crime under inquiry, but nevertheless, have, consistently with the policy underlined in section 354 (3) a bearing on the choice of sentence. The present legislative policy discernible from section 235(2) read with section 354(3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under section 302, Penal Code, the court should not confine its consideration “principally” or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal. The Supreme Court should not venture to formulate rigid standards in an area in which the Legislature so warily treads. Only broad guidelines consistent with the policy indicated by the Legislature in section 354(3) can be laid down. From a reading of sections 354(3) and 235(2) and other related provisions of the Code of 1973, it is quite clear that for making the choice of punishment or for ascertaining the existence or absence of “special reasons”. In that context, the court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not these two aspects are so intertwined that it is difficult to give a separate treatm ent to each of them. This is so because ‘Style is the man’. In many cases, the extremely cruel beastly manner of the commission of murder is itself a demons trated index of the depraved character of the perpetrator. That is why, it is not desirable to

INTRODUCTION

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consider the circumstances of the crime and the circumstances of the criminal in two separate water-tight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that “special reasons” can legitimately be said to exist. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. It cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in section 354 (3). Judges should never be blood-thirsty. Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, in the

instance case, show that in the past, courts have inflicted the extreme penalty with extreme infrequency—a fact which attests to. the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern

that courts, aided by the broad illustrative guidelines indicated, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the high road of legislative policy outlined in section 354 (3), viz that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest cases when the alternative option is

unquestionably foreclosed.’ 1.13.4 Case Law Binding

This brings us to a consideration of article 141 of the Constitution of India and the Doctrine of Precedents. The concept behind article 141 is not wholly

new but forms the basis of section 212 of the Government of India Act, 1935

which makes the law declared by the Federal Court and the Privy Council binding on all courts in British India. Article 141 of the Constitution makes the law declared by the Supreme Court binding on all courts in India. The theory of precedents may now be considered. Even independently of article 141, the same result would have followed from the theory of precedents, which has become a part of Indian law. As was observed by H.M. Seervai in his Constitutional Law

of of India, article 141 removes even a theoretical doubt about the binding force

precedents.’ 1.13.5 Presumption of Innocence Even at this stage we may remind ourselves of a necessary social perspective

in criminal cases which suffers from sufficient forensic appreciation. The of dangers of exaggerated devotion to the rule of benefit of doubt at the expense good social defence and to the soothing sentiment that all acquittals are always especial regardless of justice to the victim and the community, demand 1. Bachan Singh v. State of Punjab, 1980 Cri LJ 636. 2. AIR 1974 SC 1161: 1974 Cri LJ 817.

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escape. The context of escalating crime and emphasis in the contemporary’ ia bility. The cherished principles or

eun judicial instrument has a ype asc : of oubt which runs through the web roof beyond reasona hesitancy morbidly to embrace every punch, prinapib nie ba be ener e reflected in the attitude that a and degree of doubt. The excessive solicitud a false go but one innocent martyr shall not suffer is

thousand guilty men may to the accused. Otherwise. any dilemma. Only reasonable doubts belong and lose credibility with the practical system of justice will then break down ht-heartedly asa learned community. The evil of acquitting a guilty person lig ple fact that just one author has sapiently observed, goes much beyond the sim ome general, they guilty person has gone unpunished. If unmerited acquittal bec ds to a public tend to lead to a cynical disregard of the law, and this in turn lea e demand for harsher legal presumptions against indicted ‘persons’ and mor s tal severe punishment of those who are found guilty. Thus too frequent acquit al of the guilty may lead to a ferocious penal law, eventually eroding the judici protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that “a miscarriage of justice may arise from acquittal of the guilty no less than from the conviction of the innocent....”" 1.13.6 The Evidence

1.13.6.1 Good evidence Now it is true that it is an elementary principle of law that evidence which cannot be tested must be rejected. There are two methods of testing evidence and ensuring that truth comes out in evidence. The first is by administration of oath and the other is by cross-examination. The administration of oath is designed to secure truthfulness in evidence by providing not only moral sanction but also sanction of perjury. Cross-examination, on the other hand, extracts truth and exposes falsehood much against the will of the person examined. The exercise of the right of cross-examination has always been regarded as one of the most efficacious tests which the law has devised for discovery of truth. So important is the right that the law declares that no evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross-examination. The opinion of the chemical examiner stands on the same footing as any

other piece of evidence and it is difficult to see how any reliance can be placed on the opinion unless it is supported by good reasons founded on facts which warrant the opinion. If the reasons are good and convincing and the factual data on the basis of which the opinion is formed warrant the opinion, the court

will rely on the opinion and hold on the basis of the opinion that the

concentration of alcohol in the blood of the accused was as opined by the chemical examiner. If, however, the factual data are not clear or adequate or the reasons are frivolous or inconclusive, the opinion will have no probative value.

That is the reason why section 51 of the Indian Evidence Act provides that

| ido the opinion of any living person is relevant the grounds on which such opinion is based are also relevant. It would be most unsafe to convict the 1. Shivaji v. State ofMaharashtra, AIR 1973 SC 2622: 1973 Cri LJ 1783.

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accused on the basis of a report which contains merely the ipse dixit of the chemical examiner and which does not contain any factual data or any grounds or reasons which the court can examine for the purpose of deciding whether the opinion contained in the report is correct or not. To convict the accused on the basis of such a report would be to leave the decision of the case in the hands of the chemical examiner which certainly the court cannot do.! 1.13.6.2 Eye-witness accounts 1. The contention on which considerable emphasis has been laid by the learned counsel for not believing the eye-witnesses is that their evidence is in conflict with the medical evidence.

There is a three-pronged attack of the learned counsel. His contention is that according to the direct evidence there were two fires which hit the deceased whereas according to the medical evidence there was only one entry wound and two exits. Therefore, the direct evidence is belied. Another branch of his argument in this connection is that the gunshot wound in the chest of the deceased caused a big hole which must have resulted in profuse bleeding, but no blood was found from the hut in which the first shot is said to have been fired upto the place where the deceased fell dead on account of the second gunshot in the back. The third branch of his argument is that no wads and pellets were found inside the hut. The evidence of the doctor, in our opinion, does not exclude the possibility of there being two gun-shots which may have struck the deceased. May be, that the second gun shot alleged to have been fired from behind by the assailant while the deceased was running, was not effective. On the basis of indefinite opinion of the medical expert as in the present case, we are not prepared to reject the direct evidence. Learned public prosecutor has also urged that most of the pellets of the second gun-fire may not have hit the victim on account of wide dispersion and the eye witnesses may have thought that the second gun-shot hit the back of the deceased. The explanation furnished by the learned public prosecutor cannot be said to be altogether devoid of force. In Mohanlal v. State of Rajasthan,? it was observed that: There is always a tendency to over-emphasise discrepancies between the evidence of eye-witnesses and medical testimony. These discrepancies should be treated and appraised just like other discrepancies in the statements of the witnesses. It cannot be forgotten that the eye-witnesses may not give a very correct and accurate account of the version and may at places make exaggerations or may fail to give correct facts either on account of lapse of memory or on account of inability to observe minutely or to recite correctly. It should also be borne in mind that some times, the medical officers also do not bestow sufficient care while performing of examinations and their opinions may not be properly formed on account is, inadequate or defective examinations or lack of complete knowledge. It LJ 78 (Guj). Also see 1. Suleman Usman Memon v. State of Gujarat, (1961) 2 Cri Emperor v. Behram Irani, AIR 1944 Bom 321. 2. 1960 Raj LW 565: (1961) 1 Cri LJ 155.

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between the

ce comple te and perfect corresponden therefore, hardly fair to expect a y. Naturally, therefore, the court may mon sti -te eye the and ce den medical evi if it is reasonably open to arrive at a and s cie pan cre dis the e min exa lly carefu utioion case, the courts should not adopt prosecuti substantial and true version of the cies prosecution case on the alleged discrepan the easy course of throwing away the -testimony. between the medical evidence and the eye

dships of the Supreme Court In Nankhusingh v. State of Bihar,’ their Lor |

observed as follows:— e are two persons one witness When a person fires at a place where, as here, ther think that it was fired at may think that it ts fired at one person and the other may which may not fit in the other. Merely because the inference drawn by one witness the place where with the inference drawn by the other the factum of the firing at ess is a the injured persons were, cannot be rejected. It cannot be held that the witn liar and he wanted to falsely implicate the appellant and others.

Again in Nihal Singh v. State of Punjab,? an argument regarding contradiction

between medical evidence and direct evidence was repelled by their Lordships of the Supreme Court in this way— Another fact relied upon by the learned additional sessions judge in discrediting the eye-witnesses is that the witnesses stated that the deceased gave a takwa blow on the head of Nihalsingh, but the medical examination showed only a small abrasion on his left thumb. The High Court explained that the witnesses must be describing only the movements of the accused with their weapons and they could not obviously give evidence as to where a particular weapon hit the body for that would depend upon not only the manner in which the person wielded their weapons but also on the movement of the victim. A hit aimed at the head may, if the victim moves aside, miss altogether the body of the victim or fall on a part of his body different from that aimed at. There is certainly force in what the High Court said. Applying the reasoning adopted by their Lordships of the Supreme Court in the cases cited above, the so-called contradiction or conflict between medical evidence and direct evidence pointed out by the learned counsel in the present case is, in our opinion, clearly explicable. May be, that the second shot did not hit the victim and the witness may have got an impression that the shot hit the victim at the back. May be, that only a few pellets of the second shot hit the victim and the rest went amiss. In our opinion, nothing turns upon this so-

called contradiction or conflict between medical evidence and direct evidence.

In respect of PW/5, Smt. Jannat’s statement learned counsel has drawn our attention to another discrepancy and it is this that Smt. Jannat states that the victim

was at a distance of about one-pace (roughly five feet) from the muzzle whereas according

to PW 3 Khanu the accused fired the gun-shot which hit

Gamu from a distance of about six to seven paces. In our opinion, nothing substantially turns upon the discrepancy in the distance. In Janak Singh v. State of Uttar Pradesh? their Lordships of the Supreme Court observed as follows:— 1. AIR 1972 SC 590: (1972) Cri LJ 1204 . 2. AIR 1965 SC 26: (1965) 1 Cri LJ 105. 3. AIR 1972 SC 1853: 1972 Cri L} 1177 .

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According to Dr. Ghosh’s evidence, none of the three entry wounds showed any blackening or tattooing. Obviously, therefore, the firing did not take place from a very close range but from some distance at least. No doubt, the three eye-witnesses gave different distances ranging from two to six paces. But they could hardly be expected to have marked at the time the precise distance at which the person shooting the firearm was. They, therefore, gave an estimate of the distances at which he was from the victim. It is no wonder that the distances they deposed varied. Nothing can, therefore, turn on such variation.

In this connection, learned counsel has laid much emphasis on the fact that no blood marks were found either in the hut of Fatehsingh-wali where the first shot is alleged to have been fired, nor outside the hut upto the place where the victim fell after the alleged second shot. Learned counsel has argued that looking to the size of the wound caused by the first shot, there must have been profuse bleeding and some blood must have fallen on the ground. But since there is no evidence that there was any blood either in the hut or on the way, the direct evidence is false. In our opinion, the argument, though it appears attractive, has no substance. We have it in the evidence that due to winter season the deceased was putting on shirt and woollen coat. Further he had pressed the wound while running with both of his hands. The clothes of the victim were found hardly soaked with blood and it is quite possible that no such quantity of blood may have fallen either in the hut or on the way as may be collected for the purpose of investigation. A lot of blood spread out at the place where the victim fell. It is also possible that the man might have bled internally after receiving the first gun-shot wound. Thus, in our opinion, absence of blood marks in the hut or on the way is sufficiently explained.’ 2. In other words, the position is that if we discard this part of the evidence of the eye-witness which has come to light for the first time in the Sessions Court, then according to medical evidence, the deceased would have got two gunshots whereas it was never the prosecution case that Ram Narain Singh or any other accused fired a second shot at the deceased at any time. The medical evidence, therefore, clearly falsifies the prosecution case regarding the manner in which the deceased was hit. Even the ballistic expert on a question by the court deposed as follows:— “In case if it is a straight fire, and if the right arm is kept just in front of the chest, then it is possible that these injuries could be caused by one single fire.” Thus, according to the ballistic expert’s evidence, unless there was cogent material and reliable evidence to show that the deceased had kept his right arm in front of his chest, the deceased could not have sustained less than two injuries. The evidence of Surjit Singh and Joginder Singh on this point appears to us to be clearly an after thought and cannot be accepted. Thus the prosecution has not been able to explain how the deceased died by sustaining one gunshot injury. Furthermore, the evidence of Dr. S.S. Walia shows that there were two gunshot injuries on Teja Singh, namely, injury No. 1 which by itself was 1. Hussain Khan v. State of Rajasthan, 1976 Cri LJ 182 (HC).

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the an _ ae ury No. 4 which was also inj and th, dea his e aus c ot sufficient to ation that opined in his cross-examin r the fur has tor doc The gunshot. s than 4 feet been c aused from a distance of les e hav ld cou 4 and 2 Nos. ries inju on the on injury Nos. 4 and 2 por sent and that there was blackening both ie doctor further deposed ; cersom uncovered parts of the body. The the be If this

by injuries Nos. 2, 3 a) corresponding burning of the shirt h explained. The blac ening ve ht all at not is 4 No. ury inj n the on, positi tic also a gunshot injury and the ba No. 4 clearly indicates that this was of the High Court paper book that in expert has also testified to the effect at p. 60 ed by the doctor in injury No. 2 and case the blackening which has been report to the powder gases then itis injury No. 4 were not the actual blackening due tor, however, says nothing possible that it could be from one single fire. The doc Dr. Walia, the medical of this sort. Thus a combined reading of the evidence of

ablishes that the deceased y expert and Mr. J.K. Sinha, ballistic expert, clearl est

e to explain died of two gunshot injuries and the prosecution has not been abl this important circumstance. For these reasons, therefore, the evidence of the two ent with the eye-witnesses Surjit Singh and Joginder Singh is wholly inconsist medical evidence as also the evidence of ballistic expert and must be rejected on this ground alone, apart from other inherent improbabilities which appear in their evidence and which have already been pointed out.’ 1.13.7 Corpus Delicti

Mr. Banerjee has further urged that even if there was no body or trace of a body or any direct evidence as to the manner of death of a victim, the corpus delicti may be proved by other circumstances. He has referred in this connection to the case of Arun Kumor Banerjee v. State,? Mr. Justice P.B. Mukharji and Mr. Justice N.K. Sen held in that case at page 507 and 508 that “We cannot accept the broad proposition urged for the appellants that there can be no conviction on a charge of murder on circumstantial evidence..... In a recent decision of the English Courts in Reg. v. Onufrejczyk,? Lord Goddard, CJ. of England lays down the principle that in a trial for murder, the fact of death can be proved by circumstantial evidence........ The learned Lord Chief Justice of England lays down the further principle that notwithstanding that there is no body, or trace of a body, or any direct evidence as to the manner of death of a

victim, the corpus delicti may be proved by such circumstances as render the

commission of the crime certain and leave the jury with no degrees of doubt. That, In Our view, presents the correct proposition and we respectfully agree with that statement of the law”. In a later decision of the Supreme Court in the case of Raghav Prapanna Tripathi v. State of Uttar Pradesh* their Lordships observed at page 88 as follows:—

In King v. Worry,’ the headnote states the law as follows: Ram Narain v. State of Punjab, 1975 Cri LJ 1500 (SC): AIR 1975 SC 1727. AIR 1962 Cal 504.

(1955) 13 QB 388. AIR 1963 SC 74. Ye ve (1952) NZLR 111.

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At the trial of a person charged with murder the fact of death is provable by circumstantial evidence, notwithstanding that neither the body nor any trace of the body has been found and that the accused has made no confession of any

participation in the crime. Before he can be convicted, the fact of death should be

proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt; the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for. This statement of the law was approved in (1955) 1 QB 388 at page 394

except as to moral certainty and that statement of the law has received approval

of the Supreme Court in AIR 1960 SC 500. It was also said in (1952) NZLR 111:

That the jury, viewing the evidence as a whole, was entitled to regard the concurrence of so many separate facts and circumstances themselves established beyond all doubt, and all pointing to the fact of death on or about July 13, 1943— as excluding any reasonable hypothesis other than the death of the person alleged to have been murdered and as having therefore sufficient probative force to establish her death. We agree with the contention of Mr. Banerjee as a whole that the circumstances as proved in the present case are such that the corpus delicti has been proved thereby and even if not so, the commission of the crime and the relative offence charged can be established, if the circumstances on record, lead on to establish the crime, beyond reasonable doubt.!

1.13.7.1 Corroboration We have found earlier that the High Court had discarded the evidence of eye witnesses on superficial and unsubstantial ground. Apart from the fact that there were no justifiable grounds for rejecting their testimony we are greatly impressed by the evidence of P.W. 1 and the substantial corroboration received by it from the First Information Report and the medical and the expert evidence. An examination of the First Information Report shows that Bakshish Singh was responsible for firing two shots at Karam Singh and one shot at Gurdeep Singh. He was alleged to have shot once at the legs and later again at the neck of Karam Singh and once on the right thigh of Gurdeep Singh. The medical evidence supports the evidence of P.W. 1 and what is more important the medical evidence is in tune with the First Information Report. The empty cartridges which were found at the scene of occurrence show that two of them found near Karam Singh and one found near Gurdeep Singh were shot from the Pistol of Bakshish Singh. The manner in which the medical evidence and the expert evidence fit in with the earliest version given by P.W. 1 in the First Information Report, to our mind, justifies our placing implicit reliance on her evidence. Although the High Court has held that the body recovered was that of

Sumitra deceased and that the bones sent to the medical experts were not parts of the decomposed body found, but appeared to have been fraudulently

1. Bhulakiram Koiri v. State of West Bengal, 1970 Cri LJ 403.

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—— ansmission to the medical tr ng ri du ld chi a of es resid replaced with the bon body found in the — the of ty nti ide the t tha we would assume would en it tha : ; we s, rd wo r he ot In bt. dou e is case. Bu established beyond reasonabl victim was not found in ul the of dy bo ad de the , i.e. i, corpus delict her circumstances

ot stion remains whether the que the , on ti mp su as t tha in all even on to the conclusion that with d lea to t ien fic suf re we established on record appellant? It is true been murdered by Rama Nand

human probability, she had required offence of culpable homicide the of ts ien red ing ial ent ess that one of the accused “caused the death” of the the t tha n is io ut ec os pr the by ed to be prov

person alleged to have been killed.

that the accused is the perpetrator of This means that before seeking to prove homicidal death has been caused. the murder, it must be established that of the victim or a vital part of it, Ordinarily, the recovery of the dead body im. f of homicidal death of the vict bearing marks of violence, is sufficient proo old English Law, the finding of the body of the

There was a time when under the convicted of committing deceased was held to be essential before a person was “a Sir Mathew his culpable homicide. “1 would never convict”, said

Hale,

be done, or at person of murder or manslaughter unless the fact were proved to and not of least the body was found dead”. This was merely a rule of caution, er, law. But in those times when execution was the only punishment for murd the need for adhering to this cautionary rule was greater. Discovery of the dead body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder. Indeed, very many cases are of such a nature where the discovery of the dead body is impossible. A blind adherence to this old ‘body’ doctrine would open the door wide for many a heinous murderer to escape with impunity simply because they were cunning and clever enough to destroy the body of their victim. In the context of our law, Hale’s enunciation has to be interpreted no more than emphasising that where the dead body of the victim in a murder case is not found, other cogent and satisfactory proof of homicidal death of the victim must be adduced by the prosecution. Such proof may be by the direct ocular account of an eye-witness, or by circumstantial evidence, or by both. But where the fact of corpus delicti i.e., ‘homicidal death is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death. Even so, this principle of caution cannot be pushed too far as requiring absolute proof. Perfect proof is seldom to be had in this imperfect world and absolute certainty is a myth. That is why under section 3, Evidence Act a fact is said to be ‘proved’, if the court considering the matters before it, considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The corpus delicti or the fact of homicidal death, therefore, can be proved by cOr sil Hegel which definitely lead to the conclusion y, the victim has been murdered by the accused concerned. In the instant case, circumstances (1) to (5) in their cumulative effect

are not only inconsistent with the innocence of Rama Nand appellant, but

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ineluctably and rationally compel the conclusion that Sumitra has died and it is Rama Nand appellant who has intentionally caused her death. Circumstance (3) involves an admission by Rama Nand and Shish Ram accused that Sumitra has met an unnatural death. The only difference between the prosecution version and the defence version is as to whether Sumitra committed suicide or had been killed by Rama Nand appellant. It has been found that the story of the suicide set up by the accused is false. The articles Salwar (Ex. P-14) and the Shoes (Ex. P-15) do not belong to her. They were planted by the accused to lay a false trial and to misdirect the investigation. This circumstance taken in conjunction with the others, irresistibly and rationally leads to the conclusion that she has been murdered by Rama Nand appellant and her dead body has been disposed of by the appellant Shish Ram and Kali Datt.!

1.13.8 Insufficient evidence The next question which is in the context of these discoveries arises is whether in the circumstances of this case Kanhiya can be held guilty for murder of Smt. Dhooli and her son Shyoji? The investigating agency could not discover » the corpus delicti nor is there any evidence on the record to show that both Smt. Dhooli and her son Shyoji dies between 6th and 9th March, 1972. The prosecution did not take care to bring on record any fact that the bones and pieces of clothes seized near the river either belonged to or could be that of Smt. Dhooli and her son Shyoji. In the absence of any material on record it is difficult to hold that Smt. Dhooli and Shyoji have died. In the view of the matter the charge under section 302, IPC for committing murder of Smt. Dhooli and

Shyoji cannot be sustained.’ 1.13.9 Improper Identity

Certain gold biscuits were seized from an accused. A goldsmith tested the biscuits and certified that they were of 24 carats purity. He was, however, unable to assert by way of identification marks, seal, etc., that the biscuits tested by him were the same which were seized from the accused. Held, the prosecution failed to establish that the biscuits seized from the accused were of gold so as to attract the provisions of section 123 of the Customs Act and section 85 (iii) of the Gold (Control) Act.° 1.13.10 Third Degree Methods 1. It is plain common sense that suspects ‘are seldom willing to furnish a quick and correct clue to the crimes for which they are arrested. A certain amount of coaxing and promising has inevitably to be done in order to persuade

the accused to disclose at least the outlines of the crime. But the use of strong methods of investigation, apart from raising problems concerning the with observance of decency in public affairs and of human dignity, is fraught the danger that the very process by which evidence is collected may become to suspect and fail to inspire confidence. Ganpat, the approver, was driven 1. Rama Nand v. State of Himachal Pradesh, 1981 Cri LJ 305 (SC). 2. Kanhiya v. State of Rajasthan, 1976 Cri LJ 1652. LJ NOC 37. 3. Government of India v. Mohammed Issak, 1980 Cri

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— Nealdoubts rina wines ious that he was tortured while in the lock-up admit | lice, is head was, as a inj “ admitted that while under al handra also er andra called Ramch enpay os inflicted. A witness pinning ts prin i rire sudiiencesinss the police pulled out his pig tail. We have st such m which tempts even judicially trained minds to revolt again throw the entire case out of hand. But we must, with hopes for the mie sto

rd of warning that just as crime does not pay, so shall it not an

came the course of investigation. History shows that misuse of a ority4s a

common human failing and, therefore, courts must guard against a aroma The police, with their wide powers, are apt to overstep their zeal to se mye and are tempted to use the strong arm against those who happen to fa un si their secluded jurisdiction. That tendency wit that temptation must, in the

larger interests of justice, be nipped in the bud.

ty

2. On the question whether the remarks that accused was injured are justified, we have also perused the medical report of the chief medical officer dated 11-5-68 from which it is evident that he had found six injuries on the accused and one of them was such that he advised X-ray though later it was found that there was no fracture. The nature of these injuries as well as the condition of the accused at the time when he was produced before the learned judge fully justify the conclusions that the accused when produced before the court was found “suffering grievously from the after effects cumulatively of those injuries.” In our view there is no warrant for the submission that the appellants were not given an opportunity to explain nor that no enquiry could be made. The appellants had opportunity of filing their affidavits and to give their version which they have done in great detail, which shows that they knew what the allegations against them were. If they wanted to produce any other person in support of their stand that the accused was only arrested on the 10th and not on the Sth or that the injuries found on the accused were old and were not fresh they could have done so. They do not deny that the chief medical officer examined the accused nor is it possible for them to say how the injuries found on the accused some of which were fresh could be caused. They were certainly

not old injuries nor is it their case that when the accused was arrested on the

10th he was found to be suffering from swollen feet or injuries which were fresh.

None of the remarks to which exception has been taken, in our view could be

described as unwarranted, unnecessary or irrelevant or can be characterised as generalisation or of a sweeping nature. There is, therefore, no ground for granting the prayer for expunging any of the remarks in the order of the High Court.

In this view the appeal is dismissed2

3. There is not the remotest possibility of these injures being caused in any other way except by third degree methods. The site of injuries 2 and 3 on Amin makes it highly probable that he was struck repeatedly with a blunt weapon in the soles of his feet. There is also a strange symmetry in the injuries of Shakira tes l. Dagdu v. State of Maharashtra, 1977 Cri L} 1206: AIR 1977 SC 1579,

2. Jage Ram v. Hans Raj, 1972 Cri L] 768 (SCY:

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which indicates a planned beating and she was subjected to a greate r torture because she was weaker and more likely to break and confess. We have occasionally commented upon the questionable methods adopte d by the investigating officer in investigating crimes, but Sri Naim seems to us to be one of the most outstanding and brilliant exponents of the cult of baton even amongst his own special class. The trial court while discussing these injuries observed: However, the injuries on the person of Shakira are quite large in number and suggest that she was probably beaten after her arrest. That may have been done to extract confession from her on 16-6-1956, but there is no confession on the record and in any event the beating given to her after being brought to police station from Imalia on 16-6-1956, is not material so far as the merits of the case are concerned,

The line of reasoning adopted by the trial court apart from being fallacious shows a lamentable lack of judicial approach. It shows an alarming tendency practised by so many judicial officers, namely averting the eyes so that the unpleasant truth may not be seen. Justice cannot be divorced from truth and the first duty of a person who is entrusted with the task of administering justice is to do his best reach the truth. But it is a sad commentary on the existing conditions that even the most glaring misbehaviour of the investigating agency in criminal cases quite frequently goes unnoticed by the trial courts and instead of severely condemning these practices, they go to the length of accepting spurious explanations offered by the prosecution. They do not seem to realize that by this attitude they not only encourage but contribute to the non-observance of the rule of law.

Apart from the injuries discussed above there is another important piece of evidence which strongly corroborate the contention of the appellants that they were arrested earlier and not on the morning of the 16th of June. When Shrimati Shahida (P.W. 2) was examined

before the magistrate she stated that on the

third day of disappearance of Nabbo the sub-inspector came with Shakira and searched her house. Shrimati Zaibun (P.W. 3) went a stage further and stated before the magistrate that the ornaments were recovered on the third day of disappearance. Both these witnesses denied their earlier statements, but could not explain how they came to be recorded. The trial court attached no importance to these statements on the ground that witnesses were simple village women who were led to make these statements by clever cross-examination. In our opinion these two witnesses in an unguarded moment blurted out the truth and then they were made to disown statements in the interests of the prosecution. These statements clearly prove that the appellants were not arrested on the morning of the 16th of June and Naim fabricated the police records in order to hide the illegal detention of the appellants for several days. He staged their arrest on the morning of the 16th of June when he had broken their resistance by

third degree methods and they were ready to make disclosures.

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der to

h an wite ts im cysa, e intima int He arrested the appellan . ce en id ev al nti sta cum eae of cir nah ee t them to compulsion io jec sub to er ord in but e be on the 13th of Jun i om aged a pei st d an s ord rec ice pol / fabricated the torture, he got rile osures. of s od th me by , tly Las e. Jun of the 16th four pieces O ing background

that

circumstantial evidence. .

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y in or i m committed perjur ions, we find that Na used witnesses. He safely d the influe nce ove r the

To sum up 0

hide hisis ee to probably days he morning

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ish a suspects are seldom willing to furn that e sens mon com in pla is 4. It certain mes for which they are arrested. A cri the o t e clu t rec cor and ck qui itably to be done in order to persuade amount of coaxing and promising has inev of the crime. But the use of strong the accused to disclose at least the outlines raising problems concerning the methods of investigation, apart from fraught with

of human dignity, is observance of decency in public affairs and dence is collected may become the danger that the very process by which evi approver, was driven to suspect and fail to inspire confidence. Ganpat, the

we have serious doubts admit that he was tortured while in the lock-up and eged by the police, selfwhether the injury caused on his head was, as all while under inflicted. A witness called Ramchandra also admitted that ered the failing interrogation the police pulled out his pig tail. We have regist s and which tempts even judicially trained minds to revolt against such method r a throw the entire case out of hand. But we must, with hopes for the future, utte ses word of warning that just as crime does not pay, so shall it not and witnes during the course of investigation. History shows that misuse of authority is a common human failing and, therefore, courts must guard against all excesses. The police, with their wide powers, are apt to overstep their zeal to detect crimes and are tempted to use the strong arm against those who happen to fall under their secluded jurisdiction. That tendency and that temptation must, in the

larger interests of justice, he nipped in the bud.?

1.13.11 Police Padding The accused is said to have made a disclosure statement (as per Exhibit P.W. 10-A) to the police inspector Bhim Singh (P.W. 16) that he had kept the knife near Chhaju Colony, Shahdara adjacent to a coconut tree in the field in the bushes and that he would get the same recovered after pointing it out. This statement is said to have been made in the presence of Shuja Uddin (P.W. 10)

and Mohd. Asfeen (P.W. 11) which was seized under a memo (Ex. P.W. 1-C). The said knife was not even sent for serological examination because it was not said to contain bloodstains. It was not shown to the doctor who conducted the post-mortem or even to any other doctor who was examined. The learned

Additional Sessions Judge rightly did not attach any weight to the recovery of the said knife in the view that it did not contain bloodstains. Without any bloodstains on it there is no guarantee that the same was used in this case. It is needless, therefore, to be detained by the said recovery even though Mr. Frank 1. Amin v. State of Uttar Pradesh, 1958 Cri LJ 462 (All). 2. Dagdu v. State ofMaharashtra, 1977 Cri LJ 1206: AIR 1977 SC 1579.

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Anthony, learned counsel for Bhola Nath, went the length of contending that a knife had been “falsely planted” by the police in this case.!

1.13.12 Stock Witness Who will police the police? Is freedom of movement unreasonably fettered if policemen are given power of externment for public peace? These twin problems of disturbing import, thrown up by this bizarre case, deserve serious

examination.

Certain facts emerge as fairly probable from the affidavits of both sides. Prem Chand made a living as a paniwala or vendor of soft drinks near Delite Cinema even as a teenager, which shows that he had very poor beginnings. How did he fall into thraldom of the local police? He explains it in his affidavit: He had a few mobile carts which were used for refrigerating water. These carts used to be parked by the petitioner on the road side due to the indulgence of the police. He was in his teens when he started his avocation and continued for a very long time. Thus, he acquired an alias i.e. Prem Chand Paniwala. Due to close association with police and their connivance and indulgence, the petitioner thrived. In this process, the petitioner became a pray and pawn in the hands of the police. He was persuaded to be their perpetual stooge and stock witness.

The petitioner in the year 1956, when he was 25 years old was involved in a gambling case by the police to mould him a permanent stock witness and lest he should be militant to defy them. Despite his hesitation and unwillingness he was forced to become a permanent pawn of the police. This is how, the petitioner landed himself in the web of the police; he had no alternative than to be like that as his livelihood was dependent upon the mercy and indulgence of the police.

The version of the petitioner is that once he yielded to the pressure of the police to give false testimony disclosing a rubberised conscience and unveracious readiness to forswear himself, there was escalation of demands upon him and he became a regular paddler of perjury ‘on police service.’ Indeed, counsel for the petitioner argued that his client was a ‘stockwitness’ because he had to keep the police in good humour and obliged them with tailored testimony in around 3,000 cases because the alternative was police wrath. We were flabbergasted at this bizarre confession but to lend credence to his assertion counsel produced a few hundred summonses where the petitioner was cited as a witness. Were he not omnipresent, how could he testify in so many cases save by a versatile genius for loyal unveracity? For sure, the consternation of the community at this flood of perjury will shake its faith in the veracity of police investigation and the validity, of the judicial verdict. We have no doubt that the petitioner, who has given particulars of a large number of cases where he had been cited as witness, is speaking the truth even assuming that 3,000 cases may be an exaggeration. In justice, justices and justicing and likewise in the police and policing, the peril to the judicial process is best left to imagination if professional perjurers like the self-confessed Paniwala are kept 1. Bhola Nath v. State, 1976 Cri LJ 1409.

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g ‘cases’. Courts,

presse d into service for provin captive by the police, to be and sentence a rently veracious testimony app on act may ice pol the trusting ns, may well , satisfied with such convictio ity mun com The . son pri o int people ite order. We condemn, in the d believe that all is well with law and s and oncorre tines thee ces pro al ici jud the of ion lut pol the systematic Be ae her auth

We hope that the hig human rights of innocent persons. 4 aware of the nefarious going not are y, ntl are app , who t men art dep es to stamp out this unscrupUtlous lesser levels will immediately take measur menace.

disclosures about the police The petitioner's reply affidavit makes startling ver, the version of the petitioner methods of implicating innocent people. Howe

rer. Nevertheless itis ¢an hardly be swallowed since he is a self-confessed perju to prevent police not too much to ask government to take effective measure what Justice methods straying into vice. We hopefully remind the state about 438]. Brandiase once observed: [Olmestead v. U.S., (1928) 277 US “Crime is contagious. If the government becomes a law breaker, it breeds contempt for law”....”To declare that in the administration of the criminal law the end justifies the means to declare that the government may commit crimes in order to secure the conviction of a private criminal would bring terrible retribution. Against that pernicious doctrine this court must resolutely set its face.” In the same American decision we have just mentioned Justice Holmes observed; “We have to choose, and for my part I think it a less evil that some criminals should escape than that the Government should play an ignoble

pact.”? 1.13.13 Circumstantial Evidence 1. It is well settled that in a case dependent wholly on circumstantial evidence, the court before recording a conviction on the basis therefor must be firmly satisfied— (a) that the circumstances from which the inference of guilt is to be drawn,

have been fully established by unimpeachable evidence beyond a shadow of doubt; (b) that the circumstances

are of a determinative

tendency

unerringly

pointing towards the guilt of the accused ; and (c) that the circumstances, taken collectively, are incapable of explanation

on any reasonable hypothesis save that of the guilt sought to be proved against him.

After hearing the learned counsel on both sides, we are of the opinion that in

the instant case these conditions have not been satisfied. The purpose of mentioning all this is that the investigating officer in the mistaken zeal for the success of his case was prone to resort to “padding” and

suppression or distortion of facts. It is in this background of suspicién that this piece of circumstantial evidence collected by him had to be evaluated. 1. Prem Chand v. Union of India, 1981 Cri LJ 5 (SC).

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the specimen finger-prints of the appellant were not taken the order of a magistrate in accordance with section 5 of the Prisoners Act. This is another suspicious feature of the conduct It has not been explained why the magistrate was kept out of

It is to be noted further that the same constable (Muneshwar Dixit, P.W. 18)

collected the specimen finger-prints, presumably from the investigating officer, and the parcel containing the gandasa, Ex. 1 from the Sadar Malkhana, on the 21st April and delivered it at the Scientific Section, Lucknow on the 22nd April. There was thus a possibility of the investigation officer, having an access to the parcel containing the gandasa on the 21st April. Such a possibility has not been positively excluded by the prosecution. Secondly, even if it is assumed that the handle of this gandasa bore the fingerprints of the appellant, then also it would not inexorably and unmistakably lead to the conclusion that the appellant, and none-else was the murderer of Dwarka, unless it was firmly proved further that the fatal injury to the deceased was caused with this weapon. Definite proof of this link was lacking in this case. The missing link could be best supplied by showing that there was blood on this gandasa, and that blood was of human origin. But this was not done.

Lastly, it may be observed that inspector Daryao Singh, P.W. 15, has not given any reasons in support of his opinion. Nor has it been shown that he has acquired special skill, knowledge and experience in the science of identification of finger prints. It would be highly unsafe to convict one on a capital charge without any independent corroboration, solely on the bald and dogmatic opinion of such a person, even if such opinion is assumed to be admissible

under section 45, Evidence Act.’ 2. The case for the prosecution solely rests upon circumstantial evidence. The principles relating to appreciation and evaluation of circumstantial evidence are well settled. In the first place, each of the circumstances

on which the

prosecution relies must be affirmatively established. In the second place, these circumstances considered in their totality must be consistent and consistent only with the guilt of the accused. In the third place, the circumstances must be incompatible with the hypothesis of the innocence of the accused. The cases in which these principles have been propounded are legends and it is enough to cite a passage from the judgment of the Supreme Court in Govinda Reddy v. State

of Mysore.” In cases where the evidence is of a circumstantial nature the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every 1. Mahmood v. State of Uttar Pradesh, 1976 Cri LJ 10: AIR 1976 SC 69. 2. AIR 1960 SC 29.

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ed. In other words there must bea chain lymothesis but fe one proposed to be prov any masonae ground for a conclusion cogeplete as not to leave

oF ecadeey so ker

as to show that accused and it must be such Hee of ence mmoc the aoitie cemsistent accused. act must have been done by the ~oiheie all numan probability the the first al evidence led in this case nti sta cum cir the h wit l dea Before we mal, met with ther the deceased, Palaniam whe is n tio era sid con our for died by question on fails to prove that Palaniammal an unnatural death. If the prosecuti prosecution case. The question the of end an be ld wou it n the unnatural cause, th is to be decided

ral or a violent dea as to whether the deceased died an unnatu ce and the medical authorities. Mr. den mainly with reference to the medical evi ther the deceased met with a violent [f whe Kode contended that the question as to erence fo the medical evidence. }} or unnatural death can only be decided with ref on as an absolute proposition of |} We are not prepared to accept this propositi s Circumstantial Evidence, 1912 |j law. Wills in his famous book on the Principle of | Edition, page 335, states: order to establish the | “In cases of hamickie three propositions must be made out in corpus delacti-

(3) That a death has taken place. | (2) That the deceased isidentified with the person alleged to have been (3). That the death was due to unlawful violence of criminal negligence.” The same author at page 343 observes :

ed or suspected ook-ed soya, rypin: iai the moral conduct of the person accus ?

has littie or nothing to do with the investigation of death,, ident , ey ENEyed goi toofartosay that moral conduct ofanaccus orsuspected but it would be going

AeonsporiefeJustitece,toLordwingCampbpaell,seinhis=Pcharge tothe can have no bearing upon any of these questions. son ——

combunation His Lordship also said -

belong epee

s

;

-

‘

.. their verdict ought tobefound.

that

~

&

‘wou’ will

= aaah

aie

ay

to prove the truth of the facts which are calculated of two species ofevidence

jury said thatincases

aeatain

laaeieenionm

>

} Say whales

:

de : Supreme teth d e have been accepby s t ll a Wi i by c .! n ay u mb n Bo e e of at St v. gu t La an i An : Court in be v ‘ota a Indeed. there ma ar i ct s nr li n u de th p r wu o c e } e 6 th th e 32 ge er pa n, at wh ai s e s s a c ag ll y be all. To quote Wi

1. 1960 CriL]682(SC).

INTRODUCTION

91

It is clearly established law that it is necessary that the corpus delicti should be proved by direct and positive evidence, and it would be most unreasonable to require such evidence. Crimes, and specially those of the worse kinds, are naturally committed at chosen times, and in darkness and secrecy ; and human tribunals must act upon such indication as the circumstances of the case present, or society must be broken up. Nor is it very often that adequate evidence is not afforded by the attendant and surrounding facts, to remove all mystery and to afford such a reasonable degree of certainty as men are daily accustomed to regard as sufficient in the most important concerns of life, to expect more would be equally needless and absurd. Again, at page 328, the author observes: “It is enough if its existence be highly probable, particularly if the opposite party has it in his power to rebut it by evidence, and yet offers none; for then we have something like an admission that the presumption is just.” It would thus be clear that the court would be entitled to raise an inference about the unnaturalness of death on the basis of only circumstantial evidence. In this connection, the case of Mary Anna Nash reported in Criminal Appeals Reports, Vol. VI, page 225, edited by Herman Cohen (Stevans and Haynes, Law Publishers), gives us a proper perspective. The facts of that case were as follows:—

On the 27th of June, 1907, the appellant was charged with the murder of her illegitimate son, aged five years and nine months. The body was discovered ina well at Burbage in April, 1908; an inquest was then held, quite close to the scene of the alleged murder and to the place where the appellant was then living. The features were unrecognizable, and decomposition was very advanced. At that time, no evidence was forthcoming and no suggestion was made against the appellant. In October, 1906, appellant removed the child from the care of her father and placed him with a Mrs. Mary Stagg, at Pewsey. She got behind in her payments and on May 29, 1907, he was removed to a Mrs. Emma Stagg at Aughton, with whom appellant was herself then living. On the way the child was taken for a rest to the cottage of a Mrs. Sherwood, which overlooks the field where the well is in which the body was afterwards found. Mr. Stagg objected to keeping the child and one or two days after June 26, 1907, appellant took him away, saying she was going to the house of a Mrs. Hiller, near Marlborough. She returned the same evening without him, after an absence of about twelve hours; and then and on several other occasions stated, untruly, as was admitted at the trial, that the boy was at Mr. Hiller’s alive and well. Mrs. Sherwood, which

over looks the field where after the child was at her house she met him walking on the Aughton side of her cottage, i.e., going for Mrs. Stagg’s house towards the well, and

beyond

that in the direction

of Marlborough,

and

that he was

accompanied by a woman whom she could not identify, but who was tall......In December 1907, two workmen, looking into the well, saw something floating, which they took to be a dog; they could touch the water with a stick. They saw

nothing else; no doubt the well was wider down below than at the aperture, which was 18 inches in diameter. The remains of dog were afterwards found in the well. The evidence was that if the body of the child was put in the well in

92

LS VE:STIGA TION AND TRIA IN AL IN IM CR IN E NC FORE' NSIC SC: IE

s found . In April 1908, it wa er mb ce De by ng ti oa fl been hs rb June 1907 it must have called in, he made no s wa or ct do a gh ou th al asto ner Ge rou en ev by two other workmen, ce en id ev no s ation. There wa " i or other careful examin was nothing to s a e er Th s. es dr d an ce the general appearan or after the body was eS re fo be ed rr cu oc it r he r whet was natural or violent, no years could lift the we six or e fiv of d il ch a t tha ed into the well. It was conced cidentally. efore, have fallen in ac cover, and might ther

: d Mr. Justice Banker held an g in rl Da e ic st Ju . Mr e, The Lord Chief justic cannot accept that Mr.

ce of violent death : but we lent It is said that there is no eviden proof from the body itself of a vio be st mu re the t an me ve ha ot nn ca Goddard death. ce on there was conflicting expert eviden re whe e cas 's mer Pal ous fam the In that can that circumstantial evidence is all d sai ll pbe Cam d Lor s, side the h bot dence d out that of the various heads of evi be reasonably expected and he pointe duct is of most general interest (see in charges of poisoning that of moral con : page 374 of Wills). At page 375, Wills says us delicti is separable from that In most criminal charges, the evidence of the corp but in cases of poisoning, it is which applies to the identification of the offender; corpus delicti, irrespective often impossible to obtain conclusive evidence of the Mr. Justice Muller, in of the explanatory evidence of moral conduct, and Donellan’s case told the jury that: they must take If there was a doubt upon the evidence of the physical witnesses, there was nto their consideration all the other circumstances, either to show that of the some poison administered, or that there was not, and that every part prisoner's conduct was material to be considered.” (Vide page 376 of Wills). Again at pages 376 and 377, Wills observes : to the It is indeed, obvious that where the medical evidence is not conclusive as

cause of death, evidence offacts tending to show that the accused person knew that poison had been administered is relevant to the question whether the deceased did in fact die of poison. it would thus be clear that even for the purpose of finding out as to whether

death was unnatural, we can and have not, to take into account the conduct of the accused.! 3. In regard to Harchand Singh, however, we have considerable doubt whether he was present on the scene at all. He is said to have been one of those present at the time when a brawl took place with Kehar Singh at Mandi Ahmedgarh and

his presence and involvement in the murders is sought to be established by the allegation that he was armed with a double barrelled breach loading gun, that

as Jit Singh was passing mounted on his mare Harchand Singh exhorted his coaccused not to spare Jit Singh and simultaneously fired two shots at Jit Singh. As Jit Singh lowered his head, it is said, the shots missed him. Two empty cartridges are alleged to have been found subsequently about five karams from

1. Palaniswamy v. State of Maharashtra, 1968 Cri LJ 453 (Bom).

93

INTRODUCTION

the body of Jit Singh. Learned counsel for the appellant has referred us to a report of the Forensic Science Laboratory, Chandigarh, indicating that the two cartridges had been fired through the right barrel of the gun. If this be true, then plainly they could not have been fired by Harchand Singh. It is not the case of the prosecution

that the gun was

reloaded,

after the first shot. There

was

considerable dispute before us whether the report could be accepted in evidence. It is urged for the appellants that the document was not received when the trial had started and that it was handed over to the court two days later without informing the defence about it. There is no doubt that if the report is accepted it goes a long way to demolishing the case of the prosecution against Harchand Singh. Even if this material be discounted there is such inconsistency in the prosecution evidence against Harchand Singh that it forms an insufficient basis for convicting him. Indeed an attempt was made to prove that he had motive for participating in the attack by alleging that his uncle Karam Singh, had brought a woman from village Manki, who had been restored to her brother by Kehar Singh, and for that reason Harchand Singh had harboured acute ill-feeling towards Kehar Singh. This allegation was made by Sarwan Singh (P.W. 4) for the first time in his statement during the trial and not before. Then it is difficult to believe that, having regard to the distance from which the two shots are said to have been fired by Harchand Singh, he could have missed Jit Singh. The explanation given by the prosecution evidence in that regard is unacceptable. The two shots are said to have been fired at the commencement of the assault and it seems inconceivable that the mare, which does not appear to have been injured by any gun fire, should not have bolted after the shots were fired, and should have permitted the remaining appellants, who were on foot, to overtake Jit Singh and hack him down with their gandasas. The story set up by the prosecution appears improbable. 1.13.13.1 Chain of circumstances complete

From the above evidence, and the accompanying circumstances, there is no

gainsaying the fact that deceased died of a gunshot injury that was fired from M.O.L. belonging to the accused. Further it was M.O. II, the empty cartridge that had been used for the purpose. The learned lower court has indicated the incriminating circumstances tending towards involving the accused in the crime. The sole point now for consideration is if the finding of the court below that the accused is entitled to the benefit of doubt is proper so as not to be interfered with in an appeal. We are very much conscious of the limitations of this court in cases of appeal it against acquittal. At one time, there was some controversy over the issue but the has been set at rest in the case of Sanwat Singh v. State of Rajasthan! Further of law on circumstantial evidence is also well settled. Recently in the case

Chandmal v. State of Rajasthan’ it is laid down that:

satisfy When a case rests entirely on circumstantial evidence, such evidence must sought to three tests. Firstly, the circumstances from which an inference of guilt is

(1) Cri LJ 766. 1. |Sanwal Singh v. State of Rajasthan, AIR 1961 SC 715: 1961 2.

1976 Cri LR (SC) 7: 1976 Cri LJ 679.

94

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e stablished. Secondly those circumstances be drawn, must be cogently and firmly the rds the gal

pointing towa should be of a definite tendency unerringly latively should form a pee so accused. Thirdly, the circumstances, taken cumu lusion that within all human complete that there is no escape from the conc

and none else. That ts to say probability the crime was committed by the accused anation on any reasonable the circumstances should be incapable of expl hypothesis save that of the accused's guilt.

to see how the In the instant case, keeping in view the law, we are unable murder within chain of circumstances is not complete. It was a broad-day-light by a gunshot the house and not committed secretly such as by stabbing but can be which by its very nature would attract the attention of everybody. There grudge only three possibilities in this case, namely, an outsider having any te against the deceased might have come in and done the act; or any other inma

of the house: or the accused himself. The first possibility can be eliminated outright for any such assailant could not possibly have come into the house unnoticed during day time right up to the bed room. Again, in that case it has to be further assumed that the assailant had come with the off-chance of committing the crime not with any weapon he was equipped with but by utilising the gun of the owner of the house, as if the same would be readily available to him for use. Besides, after committing the crime, he must have ample time to take out the used cartridge and place the gun and the used cartridge at their proper places and then vanish unnoticed by anybody. To visualise such a situation would not, in our opinion, amount to entertaining a reasonable doubt but anticipate a miracle, a marvel which might appropriately belong to the domain of fiction or magic, which however law does not recognise.

The second theory that any other inmate of the house could have done it can also be similarly ruled out. The evidence is that the murder was in the bed room and so in all probability the mistress of the house—the deceased would resent anybody getting into it and unauthorizedly handling the gun of her husband. Besides, getting into the room, loading the gun and aiming at her would take some time, however short. Admittedly she was then not asleep and therefore would immediately raise an alarm and thus the attempts of the assailant—may he be an

outsider

or an

inmate

of the house,

would

be frustrated.

The

circumstances are that the deceased did not anticipate any such act for which she did not raise any alarm, disarmed as she was of all suspicion. Such a situation is only possible if the right. person, like her husband would be handling the gun. Thus the second theory of any other inmate committing the crime can also be ruled out. Now remains the question of the appellant. From the evidence of the investigating officer and the daughter, it is clear that the rifle and the gun were

at their respective places on the Khatali about 4 ft. away. The learned lower court has rightly discarded the theory of suicide and the learned advocate for the respondent also was discreet enough not to press it. A circumstance, which can hardly be ignored is the rumour that soon gained currency to implicating the appellant in the crime and none else. Hereby we need not be misunderstood to be utilising the statements of the inmates of the house before the police during

INTRODUCTION

95

investigation, but the first reaction of all people who are supposed to have knowledge of the incident. They pointed their accusing finger at the head of the family which is very significant, for, if otherwise would have been the case, such a conduct on their part was very unnatural. For the inmates to turn hostile is quite understandable. Thus we find no circumstance which is compatible with the innocence of the accused. The entire chain of circumstances only indicate towards the respondent and respondent alone as the perpetrator of the crime. Benefit of doubt is no doubt a salutary principle of criminal law so that no innocent person is punished. But that doubt must be a reasonable one

calculated to further justice and not to frustrate it. This court in the case of State

v. Sarungadhar Bhoi,' observed that:

It is the royal road for those who seek to dispense with evenhanded justice with boldness and courage, but a cloak to shirkers who seek the path of least resistance. ‘Benefit of doubt’ has nowhere been defined; nor is it capable of an accurate scientific definition. All sorts of doubts fanciful, strange and baseless are hardly reasonable doubts, on the basis of which any benefit might flow or courts will take into consideration. Doubts which are real, genuine, well founded which a normal man with normal intelligence in a given circumstance would naturally harbour, are doubts that come within the fold of ‘reasonable doubt’ entitling one to the benefit thereof. Such doubts are normal, in a normal man which should never be equated with the abnormal fear of an imbecile, indecisive or a timid fellow. Aptly an eminent judge has said thus:

It is not a doubt of a vacillating mind that has no normal courage to decide but shelters itself in a vain and idle scepticism.

So judged we are unable to visualise the situation where there is any scope

for any doubt in this case.’ 1.13.14 Trap evidence

1. This is a case in which the police resorted to the technique of anthracene powder and ultraviolet rays. According to the prosecution, anthracene, powder was applied to the currency notes and was found on the hands of the appellant. This circumstance is sought to be used to prove that the appellant had received the notes.

When the prosecution wants to prove the presence of anthracene powder on the hands of the appellant, it is the duty of the prosecution to prove by means of expert evidence or books on science, the nature of anthracene powder, the manner in which its presence can be detected and the tests to be applied for the purpose. The tests must be such that if after they are applied and the results are positive, the positive results lead to one and only one conclusion, namely the

finding of anthracene powder. It is for the prosecution to prove that positive results are a conclusive proof of the finding of anthracene powder. This is a matter on which experts should give evidence. The prosecution can also rely on books of science. 1. (1972) 38 Cut LT 734. 2. Lal Chhatrapati Sai v. State of Orissa, 1976 Cri LJ 1342 (HC).

96

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of this Ue tal

uti on has not led any evidence In this case, the prosec papery Acai rend means of he the and der pow 3 e cen hra nature of ant d, but there use was p lam let avio ultr sowder. It is true that secret vn aviolet rays are applied. The ei .10 ultr n whe ea ed ect exp be to lt resu reBi ,; t. pocke servim | in his ait e ale s Ei , tt the as pe and s d mere the complainant, powder was applie a ng given at that time. anat bei n tio tra ons dem any of ~~ , a He does not speak d at the house of the ea ive arr ty par ice pol the en his hands to this witness, wh y and then applied light to ne mo the ut abo d use acc ards the Saheb asked the was shiny and greenish. As reg ch whi er wd po the saw s nes and the wit the Jhaba in his says that the Jamadar held ely mer t an in la mp co the Jhaba, inant does not say that he

ket. The compla hands and looked inside the poc andia has The complainant's brother Kark noticed anything on the Jhaba. said r applied something to the notes and deposed that at the Society the Jamada n s not speak of any demonstratio or that it was powder. The witness doe told that powder had been applied. y onl was He e. mad n bee ing t hav men experi were examined but did not say what ant ell app the of ds han the t d tha se po de He does not speak of the alleged the result of that examination was. He et light. According to the Panch examination of the Jhaba under ultraviol wder was applied to the 10 Kanchanlal when the first panchnama was made, po does not speak of any notes which were put in the pocket of Kadva. He cording to the witness, . demonstration or experiment having been made Ac h the lamp, they had when the Saheb saw the hands of the appellant wit ined powder like something like powder marks. When the Jhaba was exam adas, when the marks were also seen in the pocket. According to the Panch Jamn s police officer applied powder to the notes, he showed them to the witnes in the ge light of ultraviolet lamp. The witness found some stains and some slight chan of colour. The stains were neither bright nor faint. When the hands of the appellant were seen in the light of the ultraviolet lamp he saw stains on his hands of the type which he had seen on the notes. When he saw the Jhaba in the light of the lamp he saw stains in the pocket of the Jhaba. It is, therefore, not clear from the evidence of these witnesses as to whether

they understood the method of detection of anthracene powder. One witness speaks of marks of powder, another witness speaks of powder like marks, a third witness speaks of change of colour and the fourth speaks of greenish shining. Head constable Jaswant Singh, who is supposed to know something more about the powder and the means of detecting it has not been examined. Nor has any expert witness deposed that when such stains or shining are noticed in the light of ultraviolet lamp, that is a sure indication of the presence of anthracene powder or that at least makes the presence of anthracene powder highly probable. The prosecution must lead positive evidence by way of expert evidence or books of science to prove the sure method of detection of anthracene powder, the nature of the test to be applied, the result to be expected and whether q layman can detect anthracene powder when such test is applied. The prosecution must also prove that if the test lead to a positive result, it conclusively proves the presence of anthracene powder and nothing else. Itis

INTRODUCTION

97

difficult to believe that in this case illiterate persons like the complainant and his brother and Panchas who were laymen and not at all experts on this question were able to detect anthracene powder on the hands of the appellant and on his Jhaba. Even the police inspector does not claim to be an expert in detecting anthracene powder. Head constable Jaswant Singh has not been examined. In these circumstances, it would not be correct to hold that the prosecution has succeeded in proving the presence of anthracene powder on the hands of the appellant or in the pocket of the Jhaba. In the present case, we hold that the prosecution has failed to prove beyond reasonable doubt the presence of anthracene powder.! 2. We now move to the critical phase. On August 6, 1965, P.W. 1 goes to the office of the accused to get clearance of 2 finished bundles of cables. The demand for money is repeated but by this time P.W. 1 acquires skill in courtship and bargains for a smaller sum of Rs. 50. Whereupon the accused signs the challan for the deposit of the excise duty on these finished products (vide Ex. P-4). The bribe, according to the understanding, is fixed to be paid next day in the afternoon. At this stage, P-W. 1 changes his mind and discloses his bosom to the S.P.E. officers the next morning at Kotah House (Ex. P-5). The deputy

superintendent of police, P.W. 7, swings into action with professional proficiency. Two officials, P.W. 3 and P.W. 4, from two different offices, are fixed up to witness the search. The programme of trapping is finalised and dramatised, the signal and other details worked out, the 5 currency notes making up Rs. 50 smeared with phenolphthalein powder and the visible chemical reaction when even small particles thereof are dipped in sodium carbonate solution demonstrated. The ‘raiding party’ troops out after these preliminary operations are put down in Ex. P-6. Now the scene shifts to the factory. The accused arrives, Coca Cola is served, the treacherous notes are passed and put into his gullible pockets by the unsuspecting accused, and then the sequence of rap on the door, the police presence, the surrender by the startled appellant of the tell-tale currency, his handkerchief and inner lining of the trousers pocket betray him when dipped in alkaline solution and the game is up. Such is the prosecution version substantially testified to by the witness. The inexorable course of the law takes the accused to the special judge who convicts him, the High Court affirms the guilt but reduces the sentence to one year’s imprisonment. We are certainly inclined not to swallow the evidence of P.Ws. 7 and 8 without scrutiny but after having heard the appellant at length, we are prepared to agree with the High Court that the evidence of P.Ws. 7 and 8 are substantially correct. Even here, we must underscore the importance of the findings of the trap experiment, since they go a long way to underwrite the veracity of the prosecution story. *

*

*

+

*

The Yet, the contentions have been ingeniously and hopefully presented. trap. Who basic attack has been on the morally murky mechanism of criminal 1. Ram Singh Badhar Singh v. State of Gujarat, 1960 Cri LJ 1207.

FARENSIC

98

—

3 E SCIENC

legends say

IN CRIMINAL

INVESTIG ATION

AND

TRIALS

; to attractive tempta: tion even rishis hav e—succumbed sah

l by such paied upon evidence procur wne d fro e h hav rts cou And ? a l laid s nes eo in sg loneliiness prone to be over-anxlous a are nts ipa tic par the ce sin ts experimen morally sips to Even spree ght cau are ims vict the and ous pul cru unders m t the natural course O ~ rte a na rcep inte you re Whe s. trap and s trap are the contrary to cs 1s above board. by setting an invisible contraption, its ethi crime ;

tation 1s suspect, if you lay a test the moral fibre of an officer whose repu ks on if the whole

k moment, wal ‘mine’ which explodes when he, in a wea eu is so vitiated bya superstitious scheme is tainted. Of course, our social mili ification, so confidential is belief that any official can be activised by illegal grat

ender is adept and so the technique of give and take in which the white collar off sonable doubt by good tough is the forensic problem of proof beyond rea ky officer is by testimony in this area that the only hope of tracking down the tric

ed laying traps and creating statutory presumptions. Even Kautilya has stat that— just as fish moving under water cannot possibly be found out either as drinking or not drinking water so government servants cannot be found out while taking money. Ex-cathedra condemnation of all traps and associate witnesses is neither pragmatic nor just, nor is it fair to denounce all public servants

indiscriminately. Judicial attitudes have to be discriminating, as has happened in this case. The High Court has, after careful study, chosen to accept the bona fides of the trap and its author Bishnoi a senior police official of the S.P.E. (P.W.D.). We cannot accede to the theory that the trapping of corrupt official in the usual course, is a polluted procedure.' 3. It is necessary for the investigating agency to preserve the solution used for the experiment as regards detection of phenolphthalein powder on the person of the accused or on his clothes or on anything that he has touched. In case of failure or omission of the investigating agency to preserve such solution, it is open to the court to raise an inference adverse to the prosecution at the trial, depending upon the facts and circumstances of each case, and to determine sist bs impact of that inference on the other evidence before it. (AIR 1976 The need for preservation of the solution when turns pink cannot be overemphasized. It is a corroborative piece of evidence and the prosecution by resorting to a scientific method seeks to bring into existence a piece of evidence which is corroborative in nature. In fairness, therefore, the prosecution as well

as the investigating agency are required to preserve this solution. Even the Investigating agency in order to be fair to the accused should see that this solution is kept in a duly sealed bottle and preserved so that whenever its production before the court is necessary, the same can be produced. It would be worthwhile to get the solution analysed chemically prior to sending the chargesheet with a view to get the opinion of the chemical analyser whether it 1. Som Parkash v. Delhi Administration, 1974 Cri LJ 784 (SC).

INTRODUCTION

99

contained sodium bicarbonate and phenolphthalein powder or some other chemical substance. Investigating agency cannot have the choice of destroying this solution with impunity.

In fact, it may

well be said that by destroying

this solution, the

investigating agency is destroying a relevant piece of evidence. To this extent, it can be said that the investigating agency has been unfair to the public servant who has been trapped.

It could not be contended that once the solution is required by the defence before the court and the investigating agency declares that it did not preserve it. The court must shut its eyes, close its mind to all the evidence on record and must acquit the accused irrespective of the quality of evidence on record led against him. The correct approach in such circumstances would be to lay down the proposition so well-known and so often applied to appreciation of the court, on account of non-preservation of such solution and non-production of any other evidence as to its character as found after its analysis after the trap may raise an adverse inference against the prosecution and may as well come to the conclusion that it would be hazardous to convict the accused in the particular circumstances of the case before it. Held, that in the instant case the solution was destroyed not on account of any dishonesty on the part of investigating agency but on account of a direction issued by the head of the department. Therefore, the observation in the case should not have impact one way or the other on cases pending before courts.’ 4. The appellant was a Survey Amin in the Settlement Department in circle Amer, District Jaipur at the relevant time. One Kushlaram P.W. 1 asked him to survey his land and demarcate it into separate holdings for himself and his six brothers. The appellant demanded Rs. 100 as bribe for doing the job. The bargain was settled at Rs. 50 which also Kushlaram was not prepared to pay. He approached the Anti-Corruption Department upon which a trap was laid on 28-12-1970

in Nawlakha

Bagh,

Amer

where

the land

of Kushlaram

was

situated. He produced five currency notes each of Rs. 10 before the Deputy Superintendent of Police Shri Ram Singh to which phenolphthalein powder was applied. When the accused went to the field of Kushlaram and began his survey, he demanded the amount, Kushlaram then, paid him five currency notes

which the accused placed inside the pocket of his coat. From the field Kushlaram and the witnesses Moolchand, Motilal and Ramnarain went to the hotel of Ganesh and took tea. When the accused started from there on bicycle, a pre-arranged signal was given by Kushlaram and the police party headed by the Deputy Superintendent of Police came and stopped the accused. He was asked to produce the money pocketed by him, but the accused denied to have accepted any money. Search of his person was taken and from his pocket the aforesaid currency notes were recovered. The hands of the accused were washed and the pink colour of the water showed that his hands had been soiled 9: AIR 1980 1. Rameshchandra Tukaram Tulekar v. State of Gujarat, 1980 Cri LJ NOC Guj 1.

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shed.and Past of the coat was also wa er . der pow ein hal pht nol with the phe | into pink colour. the water thereof also turned AG s surveying ee wa he en wh t tha was d use deri The plea of the acc Kalicharan D. he ae and ! . D.W al yal hai Kan accompanied by c , the field and offered him gira! whi wanted him to show six holdings of e and it was how his hands hr i unt amo the ed urn ret and ept acc did not a y. Meanwhile the appellant gave i awa t wen ram hla Kus . der pow the h wit tea with the coat. Kushlaram met him to Kalicharan. Kalicharan went to take used who put on the same as usual there. Kalicharan returned the coat to the acc the money was recovered from and it was then that the police party arrived and ore, is that the money was the pocket of his coat. The substance of the plea theref planted in his pocket without his knowledge.’ 1.13.15 Time element r hand, the Dr. Menon dissected the stomach and found it empty. On the othe her lunch sworn testimony of the witnesses was that Nabissa (deceased) had just before her death. The learned court found it difficult to reconcile the facts and remarked: I cannot bring myself to hold that such digestion can take place to such an extent as to eliminate all traces offood which Nabissa had taken just a few minutes before death. In Taylor’s Principles and Practice of Medical Jurisprudence, Vol. I, 1956 Edn., page 54, the learned author says:

The fact that several days have elapsed since death will not prevent the discovery offood in the stomach, provided it had been taken within one or two hours before death, since the digestion offood does not appear to go on to any considerable extent after death. Dr. Menon also is of the opinion that post-mortem digestion can continue for

about a few minutes only after death, when the juices and enzymes secreted by the stomach before death, would have ceased to have chemical action. When death takes place in such circumstances shortly after a meal, it is not

reasonable to hold that nothing will be found in the stomach. If this is so, direct evidence that P.Ws. 1 to 3 were together in the company of Nabissa at the leafshed during the interval and proceeded together to the workspot, stands contradicted and falsified by the medical evidence. The whole occurrence then bears a different complexion. A somewhat similar case is quoted by Taylor in Principles and Practice of Medical Jurisprudence, 11th Edn., Vol. I, at page 238, thus: In R. Spicer, the falsehood of one part of the prisoner's defence was made evident by an examination of the deceased's stomach. The deceased was found dead at the foot of a stair. The prisoner stated that after he and his wife had dinner he heard a fall. The woman had died instantaneously and the fall was heard by neighbours at or near the dinner hour. The stomach contained no trace offood. It was, therefore clear that this part of the prisoner's story was untrue. 1. Madan Lal v. State of Rajasthan, 1976 Cri L] 1485.

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The present case differs from the case cited, in that medical evidence is here used to test the veracity of the theory of the prosecution ; but that is a more

rigorous test than in the case of the theory of a person accused of an offence. On this sole ground the direct evidence on which the guilt of the appellant depends has to be rejected. If so, the occurrence may have taken place in any other form.' 1.13.16 Testimonial compulsion

It is not necessary to state in any detail the facts of each of the cases now before us. We shall, therefore, state only so much of the facts as have occasioned calling in aid of the provisions of clause (3) of article 20 of the Constitution. In the first case, namely, Criminal Appeal 146 of 1958, the State of Bombay is the appellant. The respondent was charged, alongwith another person, under section 302, read with section 34 of the Indian Penal Code, as also under section 19(e) of the Indian Arms Act (XI of 1878). The trial court found him guilty of

those charges and sentenced him to imprisonment for life under section 302 read with section 34 of the Indian Penal Code and to a term of two years rigorous imprisonment for the offence under the Arms Act. At the trial the identification of the respondent, as one of the two alleged culprits, was the most important question to be decided by the court. Beside other evidence, the prosecution adduced in evidence a chit-Ex. 5 alleged to be in his handwriting and said to have been given by him. In order to prove that Ex. 5 was in the handwriting of the respondent, the police had obtained from him, during the investigation, three specimen handwritings of his on three separate sheets of paper which were marked as Exs. 27, 28 and 29. The disputed document, namely, Ex. 5 was compared with the admitted handwriting on Exs. 27, 28 and 29 by the handwriting expert whose evidence was to the effect that they are all writing by the same person. At the trial and in the High Court, the question was raised as to the admissibility of the specimen writings contained in Exs. 27, 28 and 29, in view of the provisions of article 20(3) of the Constitution. It is an

admitted fact that those specimen writings of the accused had been taken by the police while he was in police custody, but it was disputed whether the accused had been compelled to give those writings within the meaning of clause (3) of article 20. The plea of the accused that he was forced by the Deputy Superintendent of Police to give those writings has not been accepted by the learned trial judge. But those documents have been excluded from consideration as inadmissible evidence, on the ground that though there was no threat or force used by the police in obtaining those writings from the accused person, yet in the view of the court “the element of compulsion was implicit in his being at that time in police custody”. In this conclusion both the trial judge and High Court have agreed. The identification of the accused person was also sought to be proved by the evidence of witnesses, who identified him at an identification parade. But the holding of the identification parade has not been sought to be brought within the prohibition of clause (3) of article 20. After eliminating the Exs. 27, 28 and 29 from their consideration, the High Court, on a consideration of the other evidence in the case came to the conclusion that the identity of the 1. Haneefa v. State of Kerala, AIR 1966 Ker 229.

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giving ond a reasonable doubt. Hence,

eg bey iblishedign respondent h ed this Be itted : 1m. The State of Bombay mov they acqu btt ERY oas SE of dou him the benefit and order of ial leave to appeal from the judgment

court and obtained spec i nen “ acquittal, passed by the High Court. On these facts, the oh 2 etme

mine ie ) ns constitutional importance that this Bench has to deter s. 27,28 and 29—the accuse the production of the specimen handwritings—Ex himself within the meaning o could be said to have been ‘a witness against

fact that when those article 20(3) of the Constitution; and (2) whether the mere

accused person was in police specimen handwritings had been given, the , apart from any other custody could, by itself, amount to compulsion

of the accused in circumstances which could be urged as vitiating the consent with the giving those specimen handwritings. This Bench is not concerned

in further question whether in all the circumstances disclosed by the evidence

this case, the accused could be said to have compelled, as a matter of fact, to give those specimens. The arguments at the Bar may be classified as taking three distinct lines. The first line, on the one extreme, may be said to have been taken by Mr. Sikri, the

Advocate General of Punjab, and which may be characterised as a narrow view,

runs as follows: Clause (3) aforesaid, in view of its setting, its history and the policy underlying, the privilege accorded by the Constitution to an accused person, should not be applied at the stage of investigation of an offence. It should be confined to cases of compulsory extraction of incriminating statements or communications by an accused person in court, the expression

‘compelled to be a witness’ being understood as meaning ‘being compelled to give oral testimony’. It does not include the compulsory production of documents. Similarly, it does not prohibit the compulsory exhibition or examination of the body of the accused, or any part of it, or the taking of specimen writing, thumb impression, impression of the palm or the feet or the fingers of an accused. Whether or not there has been compulsion should be judged by the nature of the action taken by the authority, or the court that determines the controversy, and not the state of mind of the accused. On the other extreme is the argument by Mr. S.P. Verma, for the accused in the first case, who contended that the clause aforesaid of the Constitution gives complete protection of the widest amplitude to an accused person, irrespective of the time and place and of the nature of the evidence, whether it is oral or documentary or material. The extreme form, which his argument took can best be stated in his own words as follows:— Anything caused, by any kind of threat or inducement, to be said or done by a person, accused or likely to be accused of any offence, by non-voluntary positive act or speech of that person, which furthers the cause of any prosecution against him or which results or is likely to result in the incrimination of that person qua any offence, is violative of the fundamental right guaranteed under Cl. (3), art. 20 of the Constitution of India.

.

_ According to his argument, if an accused person makes any statement or any discovery, there is not only a rebutable presumption that he had been compel led

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to do so, but that it should be taken as a conclusive proof of the inferential fact. Any kind of inducement, according to him, is also included in the expression ‘compulsion’ by the police or some one else. The test, according to him, is not the volition of the accused but the incriminatory nature of the statement or communication. Hence any statement made to a police officer, while in police custody, brings the same within the prohibitory ambit of the clause of the Constitution. On the face of them, the propositions propounded by Mr. Verma are much too broadly and widely stated to be accepted. The third view, which may be characterized as an intermediate view, was

advocated by the learned Attorney-General, appearing for the Union. According to him, a person seeking protection under the clause must satisfy all the four constituent elements contained in clause (3) of article 20 namely:—(1) he must

be an accused person; (2) he must have been compelled; (3) the compulsion must be to be a witness; and (4) against himself. Compulsion, according to him, means coercion or constraint and does not include mere asking by the police to do a certain thing or the direction by a court to give a thumb impression or specimen of writing. In other words, compulsion has to be equated to what has been sometimes characterised as ‘third degree’ methods to exhort confessional statements. “To be a witness” is an expression which must be understood in consonance with the existing law of evidence and criminal procedure, e.g., section 27 and 73 of the Evidence Act and section 94 and 96 of the Code of Criminal Procedure. Though, according to English law, the expression is confined to oral testimony he was prepared to go to the length of conceding that any statement, whether oral or in writing by an accused person, transmitting his knowledge disclosing relevant facts of which he was aware, would amount to

‘being a witness’ against himself. But mere production of some

material

evidence, by itself, would not come within the ambit of the expression ‘to be

witness’.

The several questions for decision arising out of this batch of cases have to be answered with reference to the provisions of clause (3) of article 20 of the Constitution which is in these terms: No person accused of any offence shall be compelled to be a witness against himself. These provisions came up for consideration by the full court in the case of Mr. Sharma v. Satish Chandra‘. Though the question directly arising for decision in that case was whether a search and seizure of documents under the provisions of sections 94 and 96 of the Code of Criminal Procedure came within the ambit of the prohibition of clause (3) of article 20 of the Constitution, this court covered a much wider field. Besides laying down that the search and seizure complained of in that case were not within the prohibition, this court examined the origin and scope of the doctrine of protection against self-incrimination with reference to English Law and the Constitution of the United States of America, with particular reference to the Fourth and Fifth Amendments. On an text examination of the case law in England and America and the standard 1. 1954 SCR 1077: AIR 1954 SC 300.

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other authorities, this.court and e, or gm Wi and n pso Phi e books on evidence, lik 4a? observed as follows:— c soa 20(3) 1s against “testimonial pes e articl in ntee guara the stated Broadly ing ls to the oral evidence of a person stand ned confi ts this that sted sugge is It reason to the witness-stand. We can see no trial for an offence when called to So guarantee to this barely literal import. confine the content of the constitutional to miss the of its substantial purpose and to limit it would be to rob the guarantee American decisions. The phrase used substance for the sound as stated in certain n can “be a witness not merely by in article 20(3) is “to be a witness”. A perso ng intelligible

documents or maki giving oral evidence but also by producing 11 9 ofthe Evidence Act) or gestures as in the case of a dumb witness (see section furnish evidence”, and such the like “To be a witness” is nothing more than “to ction of a thing or of a evidence can be furnished through the lips or by produ ments is concerned, no document or in other modes. So far as production of docu cing a document on doubt section 139 of the Evidence Act says that a person produ right of crosssummons is not a witness. But that section is meant to regulate the which examination. It is not a guide to the connotation of the word “witness”, shes must be understood in its natural sense, i.e., as referring to a person who furni ts evidence. Indeed, every positive volitional act which furnishes evidence testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor ts there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phrase used in article 20(3) is “to be a witness” and not to “appear as a witness”. It follows that the protection afforded to an accused insofar as it is related to the phrase “to be a witness” is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. It is available, therefore, to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution. Whether it is available to other persons in other situations does not call for decision in this case. This court did not accept the contention that the guarantee against testimonial compulsion is to be confined to oral testimony at the witness-stand when standing trial for an offence. The guarantee was, thus, held to include not

only oral testimony given in court but also to statements in writing which incriminated the maker when figuring as an accused person. After having heard elaborate arguments for and against the views thus expressed by this court after full deliberation, we do not find any good reasons for departing from those views. But the court went on to observe that “to be a witness” means “to furnish evidence” and includes not only oral testimony or statements in writing of the accused but also production of thing or of evidence by other modes. It may be that this court did pot intend to lay down, certainly it was not under discussion of the court as a point directly arising for decision, that calling upon a person accused of an offence to give his thumb impression, his impression of palm or fingers or of sample handwriting or signature comes within the ambit of “to be a

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witness”, which has been equated to furnish evidence”. Whether or not this court intended to lay down the rule of law in those wide term has been the subject-matter of decisions in the different High Courts in this country. Those decisions are, by no means, uniform; and conflicting views have been expressed even in the same High Court on different occasions. It will serve no useful purpose to examine those decisions in detail. It is enough to point out that the most recent decision, to which our attention was called, is of a Full Bench of the

Kerala High Court in the case of State of Kerala v. K.K. Sankaran Nair.‘ In that case, Ansari, C.J., who delivered the opinion of the court, has made reference to

and examined in detail the pronouncements of the different High Courts. Ultimately he came to the conclusion that the decision of this court in the case of M.P. Sharma v. Satish Chandra,’ also covered the case of a specimen handwriting given by an accused person, under compulsion. “To be a witness” may be equivalent to “furnishing evidence” in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification. “Furnishing evidence” in the latter sense could not have been within the contemplation of the Constitution makers for the simple reason that—though they may have intended to protect an accused person from the hazards of self-incrimination, in the light of the English law on the subject—they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions of parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect.an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice. Furthermore it must be assumed that the Constitution makers were aware of the existing law; for example section 73 of the Evidence Act or sections 5 and 6 of the Identification of Prisoners Act (XX XIII of 1910). Section 5 authorizes a magistrate to direct any person to allow his measurements or photographs to be taken, ifhe is satisfied that it is expedient for the purposes of any investigation or proceeding under the Code of Criminal Procedure to do so: ‘Measurements’ include finger impressions and footprint impressions. If any such person who is directed by a magistrate, under section 5 of the Act to allow his measurements or photographs to be taken resists or refuses to allow the taking of the measurements or photographs, it has been declared lawful by section 6 to use all necessary means to secure the taking of the required measurements or photographs. Similarly section 73 of the Evidence Act authorizes the court to permit the taking of finger impression or a specimen handwriting or signature ofa person present in court, if necessary for the purpose of comparison. The matter may be looked at from another point of view. The giving of finger is not impression or of specimen signature or of handwriting, strictly speaking, in respect of ‘to be a witness’. ‘To be a witness’ means imparting knowledge 1. AIR 1950 Ker 392. 2. AIR 1954 SC 300.

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otate relevant facts by means of oral eer heios

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eee

drei meant Heh facts to who has personal knowledge o! the ss” witne a o be Is Sal an enquiry or investigation. A person ‘ng d by a court or sensecid tof tab side has to be determine een ng e

ifying to what he has seen, or som authorized to come to a decision by test hit by the

rule d and is not he has heard which is capable of being hear pect of matters in say, or giving his opinion, as an expert, in res

excluding hear into three categ ine’, controversy. Evidence has been classified by text writers (3)

by documents; qnd namely, (1) oral testimony; (2) evidence furnished ent with the ence. We have already indicated that we are in agreem

material evid full court decision

in Sharma's

case,! that the prohibition

in Clause

(3) of

nce article 20 covers not only oral testimony given by a person accused of an offe versy but also his written statements which may have a bearing on the contro ntary with reference to the charge against him. The accused may have docume evidence in his possession which may throw some light on the controversy. If it is a document which is not his statement conveying his personal knowledge relating to the charge against him, he may be called upon by the court to produce that document in accordance with the provisions of section 139 of the Evidence Act, which, in turn provides that a person may be summoned to produce a document in his possession or power and that he does not become a witness by the mere fact that he has produced it , and therefore, he can be crossexamined if he is called as a witness who has made statements conveying his personal knowledge by reference to the contents of the document or if he has given his statements in court otherwise than by reference to the contents of the documents. In our opinion, therefore, the observation of this court in Sharma’s case! that section 139 of the Evidence Act has no bearing on the connotation of the word ‘witness’ is not entirely well founded in law. It is well established that clause (3) of article 20 directed against self-incrimination by an accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statements of ‘e accused based on his personal knowledge. For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression. The production of such a document, with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony. When an accused person is called upon by the court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of

the nature of a ‘personal testimony’. The giving of a ‘personal testimony’ must

depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting in spite of efforts at concealing the true nature of it by dissimulation cannot change their 1. M.P. Sharma v. Satish Chandra, AIR 1954 SC 300.

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intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the large sense, is not included within the expression ‘to be a witness.’ “ In order that a testimony by an accused person may be said to have been selfincriminatory, the compulsion of which comes within the prohibition of the constitutional provision, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused person at least probable, considered by itself. A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of ‘testimony’.

Similarly, during the investigation of a crime by the police, if an accused person were to point out the place where the corpus delicti was lying concealed and in pursuance of such an information being given by an accused person, discovery is made within the meaning of section 27 of the Evidence Act, such information and the discovery made as a result of the information may be proved in evidence even though it may tend to incriminate the person giving the information, while in police custody. Unless it is held that the provisions of section 27 of the Evidence Act, insofar as they make it admissible evidence which has the tendency to incriminate the giver of the information, are unconstitutional as coming within the prohibition of clause (3) of article 20, such information would amount to furnishing evidence. This court in Sharma’s case! was not concerned with pronouncing upon the constitutionality of the provisions of section 27 of the Evidence Act. It could not, therefore, be said to have laid it down that such evidence could not be adduced by the prosecution at the trial of the giver of the information for an alleged crime. The question whether section 27 of the Evidence Act was constitutional because it offended article 14 of the Constitution was considered by this court in the case of State of Uttar Pradesh v. Deomen Upadhyaya.’ It was held by this court that section 27 of the Evidence Act did not offend article 14 of the Constitution and was, therefore, intra vires. But the question whether it was unconstitutional because it contravened the provisions of clause (3) of article 20 was not considered in that case. That question may, therefore, be treated as an open one. The question has

been raised in one of the cases before us and has, therefore, to be decided. The information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible in evidence by that section. If it is not incriminatory of the person 1.

MP. Sharma v. Satish Chandra, AIR 1954 SC 300.

2.

AIR 1945 SC 300.

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that ‘to be a witness’ is 5Sharma’sj case’,1 tha i in d i d sal rt cou s thi 3 pps eparting from what and such evidence a , ce’ den evi h nis fur ‘to er pene an than or of a document or in oth

n of a thing through lips or by productio Ae oe KeonGilbd Mic son per d use acc an Is is: n the The question 4 sions rs r ae At dies res imp or ng iti dwr han en cim spe giving his 4 se are relevant facts, the For is. he that us to s Renee is It appear Just as an accuse . Act ce den Evi the of 11 n section 9 and sectio a witness when he makes a ng bei is so, ng doi by and ce furnishing eviden giving saw something, so also he is or , ing eth som did he that statement of n he produces a letter the contents whe ss” tne “wi a ng bei is so and ce eviden where a or is producing the plan of a house 10, n tio sec er und nt eva rel are ch whi or giving his specimen handwriting burglary has been committed, or is It has to be noticed, however, that impressions of his finger, palm or foot. d person shall not be compelled to bea article 20(3) does not say that an accuse be compelled to be a witness witness. It says that such a person shall not used person

ore, is: Is an acc against himself. The question that arises, theref es his specimen handwriting, furnishing evidence against himself, when he giv wer to this must, in our or impressions of his fingers, palm or foot? The ans

opinion, be in the negative. such handwriting The matter becomes clear, when we contrast the giving of admissible or impressions, with, say, the production of a letter

in evidence

In either of under section 10 or the production of the plan of a burgled house. e the these two latter cases, the evidence given tends by itself to incriminat s of accused person. But the evidence of specimen handwriting or the impression the accused person’s fingers, palm or foot, will incriminate him, only if on comparison of these with certain other handwritings or certain other impressions, identity between the two sets is established. By themselves, these impressions or the handwritings do not incriminate the accused person, or even tend to do so. That is why it must be held that by giving these impressions or specimen handwriting, the accused person does not furnish evidence against himself. So, when an accused person is compelled to give a specimen handwriting or impressions of his finger, palm or foot, it may be said that he has been compelled to be a witness; it cannot, however, be said that he has been compelled to be a witness against himself. This view, it may be pointed out, does not in any way militate against the policy underlying the rule against ‘testimonial compulsion’ we have already discussed above. There is little risk, if at all, in the investigator or the prosecutor

being induced to lethargy or inaction because he can get such handwriting or impressions from an accused person. For, by themselves they are of little or of no assistance to bring home the guilt of an accused. Nor is there any chance of the accused to mislead the investigator into wrong channels by furnishing false evidence. For, it is beyond his power to alter the ridges or other characteristics of his hand, palm or finger or to alter the characteristics of his handwriting. 1. M. P. Sharma v. Satish Chandra, AIR 1954 SC 300.

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We agree, therefore, with the conclusion reached by the majority of the Bench that there is no infringement of article 20(3) of the Constitution by compelling an

accused person to give his specimen handwriting or signature; or impressions of his fingers, palm or foot to the investigating officer or under orders of a court for the purpose of comparison under the provisions of section 73 of the Indian Evidence Act; though we have not been able to agree with the view of our learned brethren that ‘to be a witness’ in article 20(3) should be equated with the

imparting of personal knowledge or that an accused does not become a witness when he produces some document not in his own handwriting even though it may tend to prove facts in issue or relevant facts against him.! 1.13.18 Voluntary Confession

The accused was arrested on June 3, 1974. The Superintendent of Police (C.I.D.) made a written request to the Magistrate for recording the confession of the accused. The Magistrate passed an order that the confession would be recorded on the following day and directed that the accused be brought from the judicial lock-up on 14-6-1974, and produced before him at 7 a.m. On June 14, 1974, the accused was accordingly produced from the judicial lock-up in the morning and produced in the court before the Judicial Magistrate. After detailed preliminary questioning and warning, the Magistrate gave about 15 minutes more for reflection to the accused. When, as a result of these preliminary proceedings, he was satisfied that the confession was being voluntarily made, he started recording the confessional statement of the accused at about 8.45 a.m. After first recording the confession in another case, the Magistrate recorded the confession of the accused, pertaining to the murders in the instant case. The Magistrate put pointed and searching questions to the accused to ensure that the confessions were being made voluntarily. He specifically asked the accused about the date of his arrest and the period of detention in police custody. He then asked him how the police had treated him during the police custody. The accused replied in categorical terms that he had not been beaten or maltreated or threatened by the police. The Magistrate asked the accused: Whether you were told if you made the confession you would be released or pardoned or that you would get any other benefit? The accused replied, I was not told that if Imade the confession | would be released or pardoned or that I would get any other benefit”. The Magistrate explained to the accused that in no case, whether or not he made a confession, his custody would be handed over to the police. To this, the accused replied: “I am making confession out of my free will. I have understood.” The Magistrate further explained in clear, unmistakable terms to the accused that he was not bound to, make a confession, and if he did so, the confession might be used as evidence against him. After giving the accused 15 or 20 minutes more for reflection, the Magistrate recorded the confession of the accused, at first the one relating to the other case, and thereafter the confession pertaining to the instant ~ case. 1. State of Bombay v. Kathi Kalu, 1961 (2) Cri LJ 856 (SC).

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t assessing taken into consideration by the Supreme Cour was not retracted at the earliest, its voluntary character was that the confession on 10-1-1975 when the charges it was made on 14-6-1974. The trial commenced rtunity at A circumstance als o

the earliest oppo were framed and read over to the accused. This was arly when he was defended by an which he could retract the confession, particul , though he pleaded experienced counsel. But he did not do so on this occasion , not guilty to the charges. dure The accused was examined under section 313, Code of Criminal Proce

time, on 14-6-1975. It was on this day, during his examination, he, for the first retracted the confession. He denied even the factum of making this confessional statement (Exhibit P-39) when the same was read over to him. In this connection, he stated: “I was not in senses at that time. He was severely beaten

by the police and was forced to appear before the Magistrate. Therefore, what had happened, I did not know because I had become unconscious. I was intoxicated with wine in the Rest House Raisinghnagar before I was produced before the Magistrate. I was produced before the Magistrate in a state of intoxication”.

This belated plea of beating by the police was not credible. No question was put to the investigating officers S. Shri Kashi Prasad Srivastava (P.W. 16) and Bhanwar Lal (P.W. 18), in cross-examination, to show that they had beaten, threatened or otherwise induced the accused to make the confession. Equally unfounded was the plea that wine was administered to him (by the police) in the Rest House before producing him before the Magistrate for recording the confession. Firstly, the accused was in the judicial lock-up for the preceding two days, from where he was brought under the orders of the Magistrate and produced at 7.15 a.m. Secondly, if the accused was then deaddrunk, this fact could not have escaped the notice of the Judicial Magistrate.

The Magistrate, Bansal was examined as P.W. 7. One of the questions put to him in cross-examination by the defence was: “Did you enquire from the accused as to how the police had meted out good treatment to him?” Shri Bansal replied: “The accused did not tell me that the police had given him wine, meat and thus treated him well”. He stated that good treatment was meted out to him. The story propounded by the accused that at the time when he was produced before the Magistrate for recording his confession, he was dead-drunk that he did not know what he was doing was too fantastic to be believed. If the accused was then reeking of alcohol and unfit to make a statement as he wanted to have it believed, the Magistrate would not have failed to note this fact. It is impossible to believe that the confessional statement was not made by the accused but was cooked up by the Judicial Magistrate himself. Mr. S.K. Bansal was further questioned: “Did you believe that the police had assured the accused that in case he made the confession, he would be pardoned

and that, he would not be challenged in this court?” Bansal refused this suggestion, stating: “I had put questions in this regard to the accused to which he replied that the police had not assured him that if he made the confession, he

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would not be charged or pardoned. I was convinced from his replies that he was making, i.c., statement voluntarily and not under any pressure or inducement. It was, therefore, held that the confession was voluntary.

1.13.19 Investigating Officer 1.13.19.1 Trustworthiness of police

1. The appellant’s general denunciation of investigating officers as a suspect species also ill merits acceptance. The demanding degree of proof traditionally required in a criminal case and the devaluation suffered by a witness who is naturally involved in the fruits of his investigating efforts, suggest the legitimate search for corroboration from an independent or unflattering source—human or circumstantial—to make judicial certitude doubly sure. Not that this approach casts any perjorative reflection on the police officer’s integrity, but that the hazard of holding a man guilty on interested, even if honest, evidence may impair confidence in the system of justice. We are aware of the exaggerated criticism of the police force as a whole and of the reluctance of the framers of the Criminal Procedure Code to trust statements recorded by police investigators but these are, partly at least, the hangover of the British past. Today, trust begets trust and the higher officers of the Indian police, especially in the Special Police Establishment, deserve better credence. We are certainly inclined not to swallow the evidence of P.W. 7 and 8 without scrutiny but after having heard the appellant at length, we are prepared to agree with the High Court that the evidence of P.Ws. 7 and 8 are substantially correct. Even here, we must underscore the importance of the findings of the trap experiment, since they goa long way to underwrite the veracity of the prosecution story." 2. The learned sessions judge has taken up the attitude of distrust towards the police for which it is difficult to find any justification in the evidence—an attitude which I regret to say, is becoming a growing feature of judgments of subordinate magistrates. When at the trial it appears to the court that a police has in the discharge of his duty, abused his position and acted oppressively, it is no doubt its clear duty to express its stern disapproval of his conduct. But it is equally its duty not to assume such conduct on the part of the officer gratuitously

and

as matter

of course

when

there is, and

in this case, no

reasonable basis for it in the circumstances. The presumption that a person acts honestly applies as much in favour of a police officer as of other persons and it is not a judicial approach to distrust and suspect him without good grounds. Therefore, such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration.’ 3. The learned magistrate held that the other two prosecution witnesses Bant Singh, Head Constable, P.W. 4, and Kuldip Singh, excise inspector, P.W. 3, are public servants and are, therefore, naturally interested in the success of the case and their evidence cannot be held to be sufficient to prove the prosecution story. 1. Som Parkash v. Delhi Administration, 1974 Cri LJ 784 (SC). 2. Aher Raja Khima v. State of Saurashtra, 1956 Cri LJ 421 (SC).

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ed that prima facie This approach is wholly wrong and incorrect. It is well settl conscientiously. It the public servant s must be assumed to act honestly and d, to consider ent groun gr therefore, be basically wrong, without other cog nt would,

of them as untrustworthy witnesses in respect of their activities in performance their official duties merely because of their official status unless the evidence is considered to be suspicious and that conviction of the accused cannot be sustained on the statements of official witnesses. The presumption that a person acts honestly applies as much in favour of a police officer as of other pefsons, and it is not a judicial approach to distrust and suspect him without good reasons. It appears that the magistrate was bent upon acquitting the accused No doubt, the owner of the scooter recorded in the papers somehow or the other. recovered from the accused was one Krishan Lal of Ludhiana, but it is

immaterial for the purpose of this case because the possession of the scooter and the opium by the accused is established beyond reasonable doubt from the evidence on the file.!

1.13.19.2 Immediate despatch

1. The prosecution alleged that the accused at the time of his arrest was wearing a shirt and a waist coat which had bloodstains on them. This was a very strong piece of incriminating evidence against the accused. But the investigating officer simply bungled. He should have the moment he had recovered the alleged bloodstained shirt and waist coat from the accused, sealed them in the presence of witnesses and sent them on to the chemical examiner for analysis. But for a number of days he allowed the shirt and the waist coat to remain with himself. We have no other alternative than to exclude from consideration the evidence

regarding the bloodstains.?

2. Another feature of corroboration may now be mentioned. Fauja Singh, P.W. 14, who is a tracker lifted three footprints from the spot and two footprints at a distance of 12 kadams from there, and these were found to be of the gurgabis which had been taken into possession from the feet of Sarbjit Singh and Bahadur Singh. Both Sarbjit Singh and Bahadur Singh were asked to walk on the ground with these shoes and _ their footprints were also lifted for examination of the expert. Mr. Longia P.W. 12, Assistant Director , Forensic Science Laboratory, Chandigarh, received the moulds and the shoes for examination on 3rd and 6th of November, 1967. Five crimé moulds and four test moulds were brought to him. The test moulds were in an unsealed condition, these being marked T. 1 to T. 4. The shoes which were also in an unsealed condition were marked S 1 to S 2. These exhibits had been kept too long with the police to impart confidence in the evidence of the expert. What has been frequently said by this court is repeated in Mohinder Singh v. State of Punjab. i Rameshwar Dass v. State of Punjab, 1975 Cri LJ 1630. See also Hazara Singh v. State of Punjab, 65 Punj LR 223 (1963); Tilak Raj v. State of Punjab, 67 Punj LR 128 (1965); Pritam Singh v. State of Punjab, 1964 Cri LJ 39.

2. Ali Shan v. State of Jammu & Kashmir, 1954 Cri LJ 1124.

3. (1961) 63 Punj LR 434.

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that the police should not wait for the recovery of the actual weapon of offence before sending the empty cartridges or bullets which are found near the scene of occurrence for expert examination. No ground should ever be allowed for the attack by the defence that there was an opportunity for tampering with these empty cartridges while they remained in police custody. On a parity of reasoning the same principle should apply in the instant case where there was a long interval between the lifting of moulds and their despatch to the expert. Whatever value there is of the comparison is lost altogether when we find that the shoes as well as the crime moulds were in an

unsealed condition.!

1.13.19.3 Identification marks The police should be careful, when sending exhibits to the chemical examiner, to mark each one in such a way that its identity can be fixed and

safeguarded throughout, and to specify the origin and ownership of each in the covering letter to the chemical examiner. Care should also be taken to see that the evidence tendered in court establishes beyond doubt the origin and

ownership of each exhibit sent for examination.* 1.13.19.4 Chain of custody

1. In the first place he (the learned counsel for Motia) points out that there is no evidence to show that after the various articles had been recovered from the possession of Motia they were kept sealed so that it was not possible for any one to sprinkle bloodstains on them while they were in the custody of the police and before they were sent for examination to the chemical examiner. We must point out that this lacuna in the prosecution evidence is there. Whenever it is desired by the prosecution that certain articles, which have been recovered from accused persons, are to be identified, or are to be sent to the chemical examiner for analysis, it is necessary that the officer recovering the articles should immediately take steps to seal them and evidence should be produced that the seals were not tampered with till the identification is over, or till the articles are

sent to the chemical examiner for analysis. In the absence of such precautions it would always be open to the accused to say that the police later put human blood on the articles in order to implicate the accused. It is, therefore, necessary

for the prosecution to produce evidence that steps were taken at once to seal the articles, and that from the time the articles came into the possession of the police to the time they were sent for identification before a magistrate or for examination to the chemical examiner the seals remained intact. The evidence is missing in the case. We do not say that this was done in the present case; but as precautions were not taken, the argument raised on behalf of the accused that this might have been done, remains unrefuted. Under the circumstances we cannot place the same reliance on the discovery of bloodstains on these various articles as we would have done if necessary precautions had been taken. 1. Sarabjit Singh v. State of Punjab, 1970 Cri LJ 954 (P&H). 2.

Kala v. State of Punjab, 1948 Cri LJ 660 (Lah).

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though it is: proved that sthese point that has been urged is tha t the msec “— patina of possession the from Aoi nso a ; the court, there is no proo t

articles which are before to the chemical a particular articles which were sent

remains. eit We must say again that this lacuna also from Motia accused produced that these articles recovered

cope v1 ae

- = ou were ver R

; S ote of the chemical examiner, Ex. chemical examiner. All that the letter by him; but there is not ing that a parcel containing certain things was received

from Motia’s to show that these are the very things which were recovered

possession. ' al 2. | would have attached great importance to the evidence of the Imperi rs and the shirt Serologist in regard to the detection of bloodstains on the trouse feel which the appellant was wearing at the time when he was arrested, but I

impressed by the argument advanced by the learned counsel appearing as amicus curiae in this case that the delay in despatching these articles to the chemical examiner and the absence of the evidence that these articles were sealed

and

despatched

in the presence

of the appellant

and

respectable

witnesses is fatal to the prosecution so far as this point is concerned. These articles were seized from the possession of the appellant on the evidence of 17th Phagan 2006 at Thana and they were packed, sealed and despatched to the chemical examiner on 22nd Phagan, i.e., six days after they had remained in the possession of the police. Where is the guarantee that these clothes were not tampered with during this long interval? In a similar case reported as “1 J&K LR 37 (A)” the learned Chief Justice, the late Mr. Justice Rachhpal Singh observed

as follows at page 42: In a case like this what happens generally is that the police immediately in the presence of witnesses takes possession of the articles containing bloodstains and at once seals them so that it is not open to the accused to come out with the defence that these bloodstains might have been placed there by the police. In the present case the door leaves were for several days in the custody of the police and it is possible that somebody connected with the prosecution might have placed these stains on them. Observation is fully applicable to this case. The learned counsel for the appellant has rightly drawn our attention to this glaring defect and I am afraid it would not be correct to exclude the possibility of the stains having been put subsequently on the clothes in this case. As it is, these stains cannot furnish any corroboration of the retracted confession. Apart from it, the appellant had more

than 24 hours to wash his clothes and remove the stains. It is not the prosecution story that the idea did not occur to him. On the other hand, the story for the prosecution is that the appellant had washed his loi, Ex. P. 3 during the interval. It is therefore strange that he should not have washed his shirt and trousers and wandered about with these stains on. Even on this score doubt about the stains having been found on the clothes on the 16th Phagan cannot be altogether eliminated. 1. State of Rajasthan v. Motia, AIR 1955 Raj 82. 2. Abdul Salam v. State of J&K, 1953 Cri LJ 1585.

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3. Lastly, Mr. Kartar Singh Raipuri, learned counsel for the respondent argued that no signatory chit of any person was placed in the sealed samples of the opium sent to the chemical examiner and, therefore, it cannot be said that the samples sent were of the opium recovered from the accused. This contention is devoid of force and is repealed. The four sealed samples of the opium recovered from the respondent were deposited by Bant Singh, head constable, P.W. 4, on September 4, 1970, in the malkhana of police station, Sunam, with Ajaib Singh, moharrir constable with seals intact. On September 7, 1970, Ajaib Singh, moharrir head constable handed over the four sealed parcels containing samples of the opium with seals intact to Mistri Singh, constable for depositing the same with the chemical examiner, Punjab Government, Patiala. Mistri Singh, constable, took the sealed samples from Ajaib Singh, moharrir head constable,

went to the office of the excise and taxation officer at Sangrur and obtained a letter written in Punjabi from there and then took these four sealed samples to the office of the chemical examiner, Punjab Government, Patiala, and obtained a

receipt from there which he handed constable. So long as the sealed remained in possession Singh, constable nobody affidavits Exhibit PF and

over to Ajaib Singh, moharrir head

parcels of the opium recovered from the respondent of Ajaib Singh, moharrir head constable and Mistri tampered with them. These facts are proved from the PG of Ajaib Singh, moharrir head constable and Mistri

Singh, constable. The chemical examiner, Punjab Government,

Patiala, in his

report Exhibit PE, gave the opinion that the contents of all the four samples are opium. He further stated that the seal on each sample was intact and it agreed with the sample seal sent to him. It is thus clear that the samples of the opium recovered from the accused Rameshwar Dass reached the chemical examiner

with seals intact.’ 1.13.20 Expert

1.13.20.1 Value The essential principle governing expert evidence is that the expert is not only to provide reasons to support his opinion but the result should be directly demonstrable. The court is not to surrender its own judgment to that of the expert or delegate its authority to a third party, but should assess his evidence like any other evidence. If the report of an expert is slipshod, inadequate or cryptic and the information of similarities or dissimilarities is not available in his report and his evidence in the case, then his opinion is of no use. It is required of an expert whether a government expert or private, if he expects, his opinion to be accepted to put before the court the material which induces him to come to his conclusion so that the court though not an expert, may form its own judgment on that material. If the expert in his evidence as a witness does not place the whole lot of similarities or dissimilarities, etc., which influence his mind to lead him to a particular conclusion which he states in the court then he fails in his duty to take the court into confidence. The court is not to believe the ipse dixit of an expert. Indeed the value of the expert evidence consists mainly on 1. Rameshwar Dass v. State of Punjab, 1975 Cri LJ 1630.

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#3 e of his special training ae e son rea by s nes wit the of y the abilit observe a s as it otherwise might fail to fact ant ort imp h suc rt cou the out point respecting to exercise its own view or judgment in so doing the court is enable d med sequent value of the conclusions for the cogency of reasons and the con the be presented in a convenient manner and thereon. The opinion is require d to placed certain visible evidence, properly reasons for a conclusion base d on gel ue of expert evidence depends lar y on val the ds wor er oth In rt. cou the ore bef based. the cogency of reasons on which it is _

1.13.20.2 Appearance

:

that he himself should When an expert is summoned it is not incumbent with the facts of the appear. Any officer who is working with him conversant on his behalf. In the case and can satisfactorily depose in court can be deputed

upon reports and instant case the appellate judge wrongly refused to act himself evidence of the chemical examiner on the ground that he did not conduct the analysis 1966 Cri LJ 106 (SC), Relied on.” 1.13.20.3 Data necessary 1. In the case of Ramkaran Singh v. Emperor,’, it was held that no doubt excise

inspector was an expert in his own department and was able to distinguish liquors but the court should under section 51 ascertain the grounds on which his opinion was based so as to test it. In this case the conviction was based on the bald statement of the excise inspector that the stuff which was recovered from the possession of the accused was illicit liquor but no data was furnished for the opinion. It was held that there was no adequate proof that the liquor was illicit. The conviction was therefore set aside.

In Mst. Titli v. Alfred Robert Jones* it was held that the opinion of an expert by itself may be relevant but would carry little weight with a court unless it was supported by a clear statement of what he noticed and on what he based his opinion. It was further held that the expert should, if he wanted his opinion to be accepted, put before the court all the materials which induced him to come to a conclusion so that the court although not expert might form its own judgment on those materials. In view of the above decisions I am of the opinion that the bald statement of the excise inspector without examining the contents that it was illicit liquor, is

not sufficient to prove the fact.

2. So far as the pellets are concerned, the results arrived at by the fire arms expert do not appear to be conclusive. Chunni Lal v. State of Haryana, 1977 Cri LJ (Notes) 57 (HC).

Ct .

State of Kerala v. Anthony, 1978 Cri L] NOC 73. AIR 1935 Nag 13. AIR 1934 All 273. Gobardhan v. State of Uttar Pradesh, 1959 Cri LJ 30 (All).

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They only seem to bear the impress of a mere probability, though with regard to the pin strike and finer striations on the base or the cap of the cartridge the opinion expressed seems to be definite and conclusive. But, unfortunately, he has not produced the test cartridge for comparison purposes. The learned advocate on that account has argued that unless the data be supplied or the enlarged photos be produced so that the opinion of the expert may be verified by the court, the court ought not to accept the opinion of the expert without satisfying itself of the correctness of the same.! 3. Dr. Roy’s evidence is, to my mind, useless, and so far as I am concerned, it

is suspicious from the start. His anxiety to be examined as a court witness and not as one for the defence, which he in fact was, at once indicates his bias or

high anxiety to pose as a disinterested scientist.

That apart, a medical witness who considers it unnecessary to examine a person, however sane at the moment, for suspected lunacy, is not of much value. In this case Dr. Roy has attempted to substitute his judgment for that of the court. The question whether in the given circumstances a man was sane or insane is for the court to decide. An expert can only furnish a court with data from which insanity can be inferred. It is beside the point whether in the opinion of the doctor the man was medically insane. Even that would be a dangerous conclusion on the slender data on which Dr. Roy proceeded; but, however, that may be, what we have to decide is whether the man was legally insane and there, at bottom, the question is a simple and common sense one which ordinary jurors can easily comprehend.” 4. When an expert is to depose on a particular point, it is the duty of the expert to state in clear terms the basis or foundation or the data on which he concludes his findings. The court is competent to consider his opinion alongwith the data and has definitely a jurisdiction to consider as to whether the conclusion or the opinion should be accepted or not. ° 1.13.20.4 Language 1. The criticism that the expert lives in and speaks from an impregnable

fortress hardly holds good today. Experts are always ready to explain the reasons for their opinions; and judges are entitled to attach little or no importance to their evidence if the explanations given are not satisfying.* 2. I do not minimize the value of expert evidence in these cases (of alleged insanity) but I deprecate the attempt to cloud a simple issue in a deluge of scientific words which no ordinary man would be able to understand. Even though cases of this type are tried without a jury in this province, the law is grounded on the assumption that the issue are ones which ‘twelve good men and true’ can comprehend and answer.” K.Thima Reddi (in re:), 1957 Cri LJ 1091 (AP). Baswantrao Bajirao v. State of Bombay, 1950 Cri LJ 181 (Nag). Suriya Kanta Sarkar v. State of Assam, 1977 Cri LJ 268. Sattar Khan v. State of Madras, AIR 1939 Mad 283. herBaswantrao Bajirao v. State of Bombay, 1950 Cri LJ 181 (Nag). ewe

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t:[email protected] Reports irged wr Yam

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ounsel that the Exhibit P-5 the chemical

by the petitioner’sc any data or particulars — ie ap

—-

a ns nion; it yep = to help the court in accepting the opi ae a nes per cent. sy at 60 a contained alcoholic content 21.912 . In that decision their Lordships relied on Prabhu Babaji Navle v. State of Bombay ate the number and extent have held that it is chemical examiner’s duty to indic ination. In my opinion, of bloodstains found on the clothes sent to him for exam That was a case of this decision is not of any assistance to the petitioner. a case bloodstains found on the clothes of the accused person and not concerning

of the report sent by the chemical examiner of the analysis

ion. percentage of alcohol contained in the article sent to him for examinat Further it may be noted that their Lordships did not say that because of the defects pointed out by them, the chemical examiner's report not given a detailed

description is inadmissible. In Suleman Usman Memon v. State of Gujarat? it

has been held that the report of the chemical examiner must show the tests or experiments performed by him, the factual data revealed by such tests or experiments and the results leading to the formation of the opinion from such factual data; otherwise, the report would have no value as a piece of evidence. This judgment of a single judge has not been approved by a Bench decision

in State v. Ramsingh Desasingh,? Chainani, C.J., speaking for the Bench has stated:

The court cannot refuse to consider the evidence furnished by a certificate of the chemical examiner or assistant chemical examiner issued under section 129A of the Bombay Prohibition Act, 1949, merely because it does not mention the data on the basis of which the chemical examiner arrived at the percentage of alcohol mentioned in his certificate, or because he has not given the reasons for his conclusion. If the court feels that it should have more information in order to satisfy itself about the correctness or otherwise of the certificate, the court should summon the chemical analyser or ask the prosecution to summon and examine him. But without examining the chemical analyser, the court would not be justified in holding that the charge against the accused has not been proved, merely because the certificate issued by the chemical analyser only mentions the percentage of alcohol found in the blood of the accused and does not give any other particulars.

With regard to the question of delay in the examination of the bottle, this is not a question of law which could be agitated before this court in a revision petition. The offence was committed on 14-7-1962 and the bottle was immediately seized and sealed in the presence of panchas. The same was sent to the chemical examiner on 27-7-1962. The fact that the report of the chemical 1. AIR 1956 SC 51. 2. AIR 1961 Guj 120. 3.

AIR 1963 Bom 68.

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examiner was received long after this, does not in any way affect the value of the

report of the chemical examiner.! 1.13.21 Prosecution

1.13.21.1 Prove contents 1. It seems to us that the evidence which has been adduced falls short of proof in regard to a very material part of the prosecution case. In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the alleged weapon. It is elementary that where the prosecution has a definite or positive case, it must prove the whole of the case.” 2. It is no doubt true that the medical evidence is that such wounds could be caused by axe and knife . But it is unfortunate that no question has been put to the expert as to whether the weapons exhibited in the case as material objects could cause the wounds as found on the body of the deceased. I am not prepared to believe that a clean and flawless truncation could be effected with the knife alleged to have been recovered from the appellant... It is difficult to say with certainty or high probability that such wounds

would be caused by an axe.?

3. It was elicited, however, from the doctor in cross-examination that the fatal injury in question (on the neck) could have been caused by fist blows. After this statement it was incumbent upon the counsel for the prosecution, and, if he failed to do so, on the Sessions Judge, to question the doctor further as to whether it was possible for the fist blows to have caused strangulation. It is very unlikely that they should have, but as the point was not clarified, the matter is left in doubt. This is not the only circumstance showing the unsatisfactory nature of the trial before the Sessions Judge, for there was no question put to the doctor as to the number of fist blows which in his opinion could have caused

the said fatal injury.* 1.13.21.2 Counter-complaints

In a complaint and counter-complaint such as this obviously arising out of the same transaction, when the prosecution proceeds on the basis of the complaint, we think, it is the duty of the prosecution to exhibit the countercomplaint through the police officer who recorded it and also to prove medical certificates of persons wounded on the opposite side also and place before the court a definite case which they ask it to accent.” 1. Mahadevayya v. State of Mysore, 1966 Cri LJ 270. Also see State of Himachal Pradesh v. Shiv Devi, 1959 Cri LJ 448; Suleman v. State of Gujarat, (1961) 1 Cri LJ 78. Mohinder Singh v. State of Punjab, 1953 Cri LJ 1761 (SC). Bhagoji v. State of Hyderabad, 1954 Cri LJ 1378. Dissu v. State of Himachal Pradesh, 1953 Cri LJ 84. Boya Gajji Pedda Venkatanna (in re:), 1945 Cri LJ 1898 (Mad). Nd & we

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1.13.22 Duties of the Defence

data reported I hold that the absence of |. Following with respect the decision e in evidence. It Hee ons - ih

dmissible in Ex. P-5 does not make it ina the e details or particulars : out mor e som e hav to ted wan he if petitioner, the chemical examiner for pats mon sum to rt cou the t ues req to report, so and he cannot now contend tha examination. The petitioner has not done the report has no evidentiary value.!

to have been recovered 2. It was argued for the appellants that the pellet said No. 4 of Ram Singh had not been produced asa

by Dr. Singh from the injury doubtful if any pellet material exhibit and in the absence of such evidence it was

pellet was had really been extracted from his body. There is no doubt that the as a material not produced by the doctor or by the prosecution in this case

exhibit. Dr. Singh was not asked about it, or he might have given explanation as to what happened to it and whether he forwarded it to the or not. In view of the fact the doctor or the prosecution witnesses were not examined on this point and had no opportunity of explaining as to why

some police crossit was

not produced in the lower court, its mere non-production does not affect the

case. It was also argued that it was very unlikely that the pistol injury would have produced a four-sided or four-cornered wound and that, if really a pistol was used, then it would be expected that a round wound would be made because a pellet was round. There is nothing on record to show whether the pellet was round or square and whether it had four corners or not. If the doctor were crossexamined and were asked on this point, he might have been able to give some explanation as to how the four-sided or four-cornered wound was made by the

pistol shot.?

1.13.23 The Court 1.13.23.1 Duties We find that, although doctors who performed the post-mortem examination and who had admitted Hari Singh into the hospital, were examined at the trial, no question was put by either side to elucidate whether the contents of the small intestine and the large intestine could remain in that condition. The postmortem examination took place at 2.40 p.m. on 13-12-1969, and the intestines were then found distended with gas. We do not know whether this could be their condition at 1 p.m. on 12-12-1969 or its effect. It is precisely questions of this kind which, even the prosecution or the defence counsel omits to put them, the trial court could and should have put to the doctors to clear up the position. If the trial court had failed to consider their importance, the High Court could have and should have taken further evidence on this matter under section 540

Code of Criminal Procedure. In a criminal case, the fate of (the proceeding

cannot always be left entirely in the hands of the parties. The court has also a duty to see that essential questions are not so far as reasonably possible left 1. Mahadevayya v. State of Mysore, 1966 Cri LJ 270. 2. Nardeo Singh v. State of Uttar Pradesh, 1953 Cri LJ 1677 (All).

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unanswered. We are surprised to find, from the judgment of the High Court that the questions mentioned above, arising out of the post-mortem report, were not, for some reason, even mentioned there. We find it very difficult to believe that, in a case with a death sentence a matter of such significance, which was noticed by the trial court, was not raised at all by council for the appellants. In any event, it ought to have been dealt with by the High Court after taking appropriate additional expert medical evidence under section 540 read with section 428, Criminal Procedure Code if that was considered necessary before deciding it.!

1.13.23.2 Powers “As an illustration, it was pointed out that out of 825 questions put to one of the medical witnesses. Dr. I. B. Majumdar, no less than 574 had been asked by the learned judge himself. The complaint was not limited to the number of the questions asked, but concerned also the stage at which they were interposed and the form in which they were put. It was contended that, quite frequently, the learned judge took a witness out of the hands of not only counsel for the defence but also counsel for the prosecution and pressed them with a series of questions to give the answer he wanted, and as regards the cross-examination, he destroyed its effect by intervening whenever any answer favourable to the defence was given and putting a series of suggestive questions to the witness till he retrieved himself and gave an answer favourable to the prosecution. It was further contended that in so interrogating witnesses on his own account, the learned judge often introduced new matters and at times brought on record evidence which was wholly inadmissible, and he completed the error of procedure by denying to the defence an opportunity for further crossexamination.

The objection taken was a serious one. If unfounded,

it was

improper objection to take; but if well-founded, the effect of the irregularity must be seriously considered. The right of a judge to put questions to witnesses is given to him by section 165, Evidence Act. The section says that he may “in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant.” The rest of the section and the provisos thereto are not material here. It is obvious that the judge contemplated by the section is not a mere umpire at a wit-combat between the lawyers for the parties whose gnly duty is to enforce the rules of the game and declare at the end of the combat who has won and who has lost. He is expected and indeed it is his duty to explore all avenues open to him in order to discover the truth and, to that end, question witness on points which the lawyers for the parties have either overlooked or left obscure or wilfully avoided. It has been said that it is particularly necessary that the judge should exercise this power in a jury trial, because it is his duty to aid the jury in do obtaining a proper comprehension of the facts which they, as laymen, can but fully only if the facts are laid bare, with the implications not left as such 1. Raghunandan v. State of Uttar Pradesh, 1974 Cri LJ 453 (SC).

ESTIGATION AND TRIALS FORENSIC SCIENCE IN CRIMINAL INV ns eliminated. If, ee vie brought out and with the false suggestio is not being conducte in pore ay finds that the examination of a witness his own e with 124

his duty to interven to unfold the truth, it is not only his right but in questions, particularly at a jury trial. limitless and unfettered, But while theoretically the powers of the judges are must follow as to the certain principles have come to be recognised which he pointed out that he manner in which he exercises the power. It need hardly be for the zeal of a must not take side; he must not also forsake the judicial calm combatant. Again, although the law allows the judge to put any question at any time, the time generally considered proper for an extended examination is when the lawyers for the parties have finished their questions or at least when the lawyer, examining the witness at the time, is passing on to a new subject. The judge may always intervene, in the course of examination by counsel, to put a question in a clearer form or to have an obscure answer clarified or to prevent a witness being

unfairly misled, but if he does more and stops counsel again and again to put a long series of his own questions, he makes an effective examination or crossexamination impossible and diverts the trial from its natural course. Having read the entire transcript of the evidence several times over in the light of the above principles, |am of opinion that no just exception can be taken as a whole, nor except in a very few instances, to their nature, but unfortunately, the time chosen by him for his interventions and the numbers of questions asked at a time, did at times have the effect of interfering unduly with both the examination-in-chief and the cross-examination and of putting the witness at an advantage or disadvantage. As to the number of the questions asked, the learned standing counsel supplied us with a chart, the correctness of which was not disputed. According to it, the learned judge’s questions, in the case of Nirmal, 139 against a total of

845, in the case of Mrs. Sati Mitra 35 against 284, in the case of Mr. Mahanti 21 against 171, in the case of Dr. Mahanti 28 against 147 in the case of Panchu Gopal Das 18 against 210, in the case of Jiban Krishna Das 10 against 165, in the case of Dr. Bose 8 against 81, in the case of Purnananda Sethi 17 against 195, in the case of Dr. I.B. Majumdar 574 against 825, in the case of Dr. Kabir Hossain 180 against 423 and in the case of Puspa Pal 132 against 817. These were all the material witnesses and except in the case of Dr. Majumdar

and Dr. Hossain, it can by no means be said that the number of questio ns put by

the learned judge were usually or inordinately large. The reasons why the learned judge found it necessary to question the two medical witnesses extensively have been given by him in an order recorded on 13-6-1952 where he has himself stated correctly the permissible limits of judicial interro gation. The reasons are fully borne out by the record. It appears that in the case of Dr. Majumdar, the learned judge intervened before the cross-examination was over because the learned cross-examining counsel wanted break and in the case of Dr. Hossain, he did so before the cross-examination started, because the learned

counsel asked for time till the next day. Rather than rise, the learned judge

INTRODUCTION

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utilized the time in hand by putting to the witnesses questions of his own and it appears from the minutes that in the case of Dr. Hossain, he did so after ascertaining that the learned counsel had no objection. In these circumstances, it

cannot at all be fair to charge the learned judge with having interrupted the cross-examination, so far as those two witnesses are concerned. Nor can an exception be taken to the number of questions asked. There is no limit to the questions which the judge may put and if he considers, as the learned judge did in this case that he has not yet got to the bottom of the matter or that the witness has not yet made his full meaning clear, there is no reason why he should not go on with the examination, whatever the

number of the questions required to achieve the purpose of eliciting the truth. Dr. Majumdar, in particular, was an exceptional witness in many ways. His delay in sending the viscera for chemical and pathological examination, the fact that he removed the pathological report and at least one other paper from the records of his office on the eve of his retirement and kept them with himself at his house for two months till his own examination before the committing magistrate, his claim that he had removed the papers on granting a receipt to his successor which the successor denied and the way in which, after deposing during his examination-in-chief to an effect which did not militate against the prosecution case, he conceded various suggestions in the opposite sense made to him during the cross-examination on the basis of theories, clearly provoked a close and comprehensive examination of his answers. In my opinion, no fault can be found with the learned judge that he undertook such an examination. It appears further that the bulk of the questions put by the learned judge to these two witnesses were after their crossexamination had been concluded. It is true that both were recalled and then also the learned judge put some further questions, but whether or not the defence was given proper opportunities for further cross-examination is a separate matter which I shall deal with under another head. So far as the number of the questions put to these two witnesses is concerned and the points of time at which they were put, I do not think there is any just ground for complaint. There is another reason which | think, no mis-trial can be made out from the manner in which the learned judge interrogated the medical witnesses. The conception of the function of medical evidence on which the two doctor witnesses were cross-examined, appears to me to have been entirely mistaken and even if some over-interrogation by the learned judge took place on irrelevant matters introduced by the defence itself, such over-interrogation cannot be said

to have affected the merits of the trial.’

1.13.24 Strictures

such 1. It is abundantly clear that a trial court is expected to give only only remarks which are necessary to sustain a judicial finding. In other words, of the such remarks need be made in the judgment which are in furtherance ng the case ina ends of justice and not to fulfil any other object except decidi 1.

(Cal). Sunil Chandra Roy v. State of West Bengal, 1954 Cri LJ 805

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— g is given. It ‘iware ipa “en din fin te ria rop app that so ve cti correct perspe e ce and must not be pu chin den evi m fro out ne bor be uld sho remarks vei intention is to harm “ee Pu at the If rt. cou the by e mad es tur conjec ou -a the remarks made are reckless oa even if that intention is missing but i ap vice and endanger the prospec to jeopardise the interest of public ser harm his official career, suc = servant and even injure his reputation or longer necessary. In other wor S, si require to be expunged as they are no a fide and should be directed only remarks made by the trial judge should be bon sation of justice in trial. to one and the only end, namely, the dispen certain eaeeens remarks Nevertheless the learned Sessions Judge has made

must be expunged. which, in our opinion, were not called for and

4.13.25 Fair criticism of courts o, 1936 AC 392 the Again in Ambard v. Attorney-General for Trinidad and Tobag

d and law enunciated in (1900) 2 QB 36 by Lord Russell of Killowen was applie it was said at page 335: But whether the authority and position of an individual judge, or the due administration of justice, is concerned no wrong is committed by any member of the public who exercise the ordinary right of criticising, in good faith, in private or public, the public act done in the seat ofjustice. The path of criticism is a public way ; the wrong headed are permitted to err therein, ;proviaed that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration ofjustice, they are immune. Justice is not a cloistered virtue ; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men. Lord Denning, M. R., in Reg. v. Commr. of Police of the Metropolis, Ex parte Balakbum (No. 2) (1908) 2 WLR 1204 made some pertinent observations about the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair and even outspoken comment, on matters of public interest. In the words of the Master of Rolls: those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply their criticism. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.

The decision In re: The Editor, Printer and Publisher of “The Times of India,” is very opposite and may be next referred to. In a leading article in “The Times of India” on the judgment of this court in 1953 SC 1: AIR 1952 SC 369, the burden 1. M.L. Ahuja v. State of Hirtachal Pradesh, 1975 Cri LJ 330. Also see Raghubir Saran (Dr.) v. State of Bihar, AIR 1964 SC 1; S.N. Vyas v. State of Rajasthan, 1966 Cri LJ 798; State of Uttar Pradesh vy. Mohd. Nairn, AIR 1964 SC 703: (1964) 1 Cri LJ 549; Jage

ag TT)

Lip

15/78,

Kaj Midha, AIR 1972 SC 140: 1972 Cri LJ 768; State v. Amar Singh, 1972

INTRODUCTION

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was that if in a singularly oblique and infelicitous manner the Supreme court had by a majority decision tolled the knell of the much maligned dual system prevailing in the Calcutta and Bombay High Courts by holding that the right to practise in any High Court conferred on advocates of the Supreme Court had made the rules in force in those High Courts requiring advocates appearing on the original side to be instructed by attorneys inapplicable to them. This is what was said by Mahajan, J., (as he then was) speaking for the court: No objection could have been taken to the article had it merely preached to the courts of law the sermon of divine detachment. But when it proceeded to attribute improper motives to the judges, it not only transgressed the limits of fair and bona fide criticism but had a clear tendency to affect the dignity and prestige of this court. The article in question was thus a gross contempt of court. It is obvious that ifan impression is created in the minds of the public that the judges in the highest court in the land act on extraneous considerations in deciding cases, the confidence of the whole community in the administration ofjustice is bound to be undermined and no greater mischief than that can possibly be imagined.

The guiding principles to be followed by courts in contempt proceedings were enunciated in Brahman Prakash Sharma v. State of Uttar Pradesh;' It will be an injury to the public ifit tends to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the judge or to deter actual and prospective litigants from placing complete reliance upon the court’s administration of justice, or ifit is likely to cause embarrassment in the mind of the judge himself in the discharge of his judicial duties. It is well established that it is not necessary to prove affirmatively that there has been an actual interference with the administration of justice by reason of such defamatory statement; it is enough if it is likely, or tend in any way, to interfere with the proper administration of law. There can be no manner of doubt that in this country the principles which should govern cases of the present kind are now fully settled by the previous decisions of this court. We may restate the result of the discussion of the above cases on this head of contempt which is by no means exhaustive. 1. It will not be right to say that committals for contempts scandalizing the court have become obsolete. 2. The summary jurisdiction by way of contempt must be exercised with great care and caution and only when its exercise is necessary for the proper administration of law and justice. 3. It is open to anyone to express fair, reasonable and legitimate criticism of and any act or conduct of judge in his judicial capacity or even to make a proper fair comment on any decision given by him beeause “justice is not a cloistered virtue and she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.” of a judge 4. A distinction must be made between a mere libel or defamation and what amounts to a contempt of the court. 1. 1953 SC 1169: AIR 1954 SC 10.

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The test in each case would be whether the impugned publication is a,mere defamatory attack on the judge or whether it is calculated to interfere with the due course of justice or the proper administration of law by this court. It is only in the latter case that it will be punishable as contempt. 5. Alternatively, the test will be whether the wrong is done to the judge personally or it is done to the public. To borrow from the language of Mukherjee, J. (as he then was) in Brahma Prakash Sharma’s case’ (supra) the publication of a

disparaging statement will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the judge or to deter actual and prospective litigants from placing complete reliance upon the court’s administration of justice or if it is likely to cause embarrassment in the mind of the judge himself in the discharge of his

judicial duties.

i 1. Brara l ma Prakash Sharma v. Sta te of Uttar Pradesh, 1953 SCR 1169: AIR 1954 SC 10 2. Prospective Publications

I7ISC21

Md:

W. State of Maharashtra, 1971 Cri LJ 278 ($C): AIR

Chapter 2

SCENE OF OCCURRENCE SYNOPSIS 2.1

IMPORTANCE

2.2 THE PROBLEMS 2.3 LOCATION 2.4 EVALUATION 2.4.1

Protection

2.4.2

Photography

2.4.2.1

Camera

2.4.2.2

Coverage

2.4.2.3

Photographic exhibits

2.4.2.4

Recent advances

2.4.3 Sketching 2.4.3.1

Co-ordinate method

2.4.3.2

Polar technique

2.4.3.3 Height determination 2.4.4 Search 2.4.4.1

Zonal method

2.4.4.2

Spiral method

2.4.4.3

Strip method

2.4.4.4

Cross-hatch search method

2.4.5

Equipment

2.4.6

Handling clues

2.4.6.1

Recording 129

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2.5 MODERN AIDS 2.5.1 Investigator’s kit 2.5.2

Mobile laboratory

2.5.3

Flying squads

2.5.4

Expert Help

2.5.5 Police dogs 2.6 SCENE MANAGEMENT DOCUMENTATION

2.7 CASE LAW 2.7.1 Location of the Scene 2.7.2 Preservation and Guarding of the Scene 2.7.3 Defective Collection, Chain of Custody/Authority 2.7.4 Identity of the Scene 2.7.5 Manipulation of the Scene

2.7.6 Police Dogs Identification 2.7.7 Detective Dyes—Trap Evidence

TRIALS

SCENE

OF OCCURRENCE

Locotion

NP J missi ng Link

Chain of Possession “The scene is not the domain of any one person but of the whole team. The body does not belong solely to the medico-legal expert any more than the bloodstains to the biologist or the pistol to the ballistics expert.”

SCENE OF OCCURRENCE 2.1 IMPORTANCE incidence or crime has occurred. It A scene of 0 ccurrence is the site where the . The parties exchange traces with is the meeting place of the persons involved and ends and marks of tools, one another and with the scene, leave odds

feet. Thus the scene of wearing apparels, means of transport, hands and h is useful to: occurrence provides a wealth of information whic 1. Establish corpus delicti of 2. Provide link between the criminal, the victim and the scene occurrence Evaluate the pattern of events Indicate modus operandi, sequence of events Help reconstruction MeL Sa i Provide leads

7. Indicate number of culprits, weapons The scene is of great importance in almost all crimes except perhaps in cases of forgery where the utility is limited. The examination of the scene needs planning, care and diligence. In many cases the success or failure of the investigation depends entirely upon the

proper handling of the scene. The scene of occurrence changes rapidly and cannot be preserved forever. Some of the evidence gets lost soon after the occurrence, the other evidence disappears, gets contaminated or altered with further passage of time. Besides, the occurrence may have been on a busy public place which cannot be closed for a long time. Therefore, the scene needs immediate processing. The scene may be indoor or outdoor. It may be a room, a cellar or a roof. It may be a road or a road side, an open field, a jungle, hill or a mountain, a stream or a river. It may be a pond, a lake or a sea-shore. It may be a vehicle: a car, a

truck, a bus, a train, a boat, a ship or an aeroplane. Every scene of occurrence presents unique aspects for which the technique of examination has to be modified. The opportunity to examine the scene is available only once. If the same is not fully exploited the wealth of information is lost forever. 2.2 THE PROBLEMS

The examination of the scene of occurrence should help to establish: 1. How did the criminal and the victim reach the scene ? 2. What were the routes of entrance and exit ?

3. How many criminals and victims were involved ? 132

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. What was the modus operandi ? - What evidence did the criminal and the victim exchange ? . Is the alleged scene of occurrence genuine or simulated ?

When was the crime committed ? . Why did the victim behave in a particular way ? OF OND 0 . Who were the criminals or victims ? 10. Whom did the criminal visit after the occurrence ?

2.3 LOCATION The scene of occurrence is located from the following:

1. Accounts of eye-witnesses 2. Marks of struggle 3. Corpus delicti 4. Abandoned

articles, impressions

and prints, bloodstains

and stains

from other body fluids. For example, a stain of ejaculated semen, once, established the site of rape 5. Traces carried over from the scene. For example, once, the plant fragments on the clothes of a child indicated the place of assault. It is not difficult to locate the scene of occurrence, but sometimes criminals simulate a scene to mislead the investigators, to avoid suspicion and try to pass on the guilt to others. Sometimes, natural phenomena may change the scene of occurrence. The body may be carried away by currents and fish in water; or, the carnivorous beasts may drag the corpse in jungles and in other open spaces. It is essential, therefore, that the scene is properly established.

2.4 EVALUATION Proper evaluation of the scene of occurrence is a time consuming job. It involves the following: 1. Protection

Photography

Sketching . Search . Handling clues . Recording fF no WN 7. Modern aids.

| . 2.4.1 Protection The investigating officer cannot always reach the scene immediately after the

occurrence. The first police official who reaches the scene, therefore, should be

careful to preserve the evidence: 1. He should check the injured body or bodies for any signs of life. Even if there is a remote chance of life, medical help should be called in immediately and the injured transported to the nearest hospital. These

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as to disturb the scene steps are taken with deliberation and caution so to the minimum extent possible. sturbed. If the injured are already dead, the scene is left undi

- All unauthorized

men:

relatives and friends of the victim or of the

should be culprit, onlookers, photographers and media persons politely, excluded from the scene. They are handled carefully, persuasively, yet firmly.

;

_ The scene of occurrence should not get altered. It should be barricaded whenever possible, enclosing rather a larger area than a smaller one so that no clues are possibly left out. . Suspects and witnesses should not be allowed to discuss the case with one another. If the culprit is positively identified he should be arrested. If there is only suspicion he should be detained. If he tries to run away, he should be arrested. . Fellow policemen (including the senior officers) should be requested not to enter the scene to satisfy their curiosity. Only the officer-in-charge of the case should determine when, why and who is to enter the scene. . The officer assisting the investigating officer, should not start independent searches and inquiries. He should do what the officer-incharge tells him to do. . Assistance of other police officers, photographers, draughtsmen, experts from forensic science laboratories and doctors (medico-legal experts) should be requisitioned at the earliest, whenever necessary. . Personnel of homeguards or other similar organisations should be employed to protect the scene, if necessary. . The superior officers should be informed about the nature of crime and the help required, through wireless, telephone or through special messenger. 10. The police officer should not leave the scene of occurrence unguarded. A village chowkidar, personnel of homeguards and of similar organisations should be sent for outside duties. ae The name of the informant with his address, the time when he gave the information and the alleged time of occurrence should be recorded. He should be detained for further details. 12. The officer should not discuss the case with the suspects, the complainants, the victims, the witnesses, the onlookers or the pressmen. However, he should keep his ears and eyes opento listen to any passing remark or to observe the behaviour of the persons around. Ey The officer should not introduce any material, like cigarette ends, cigarette ash, foot or footwear marks or fingerprints at the scene. 14. The doors, windows, stair-cases, lighting, routes of ingress or egress should be preserved in their original condition till the examination is finalized.

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15. The officer should record the time of his own arrival, note and record the weather conditions. Alcohol, tobacco, perfumes and explosives give

distinctive odours. Record them, if they are noticed at the scene.

16. The officer should not use the utilities: bathroom, wash basin, lavator y, towels, telephone, etc., at the scene of occurrence.

17. He should not move anything from its place. It has to be described and its location fixed by sketches and photographs 18. The scene even if it is in a mess, should not be cleaned till thoroughly examined. Alteration of positions of objects is permitted in emergencies only. Record the change if it is made. 2.4.2 Photography

The scene of occurrence should be photographed as a matter of routine. The photography of the scene does not add materially to the cost of investigation and trial. Yet it is bound to increase the conviction rate. The photographs of scene of occurrence are extremely useful: 1. It is rather rare for the judges, the jury and the lawyers to visit the scene of occurrence. Proper photographs of the scene, however, bring the scene in the court room. They are better than the verbal or written descriptions. 2. The pressure of work may force an investigating officer to overlook certain details. Proper photographs of the scene make these details available to him later also.

3. The investigating officer may be influenced unconsciously by the account of an interested person and examines the scene with a preconceived theory. Later, certain facts lead to different conclusions. If proper photographs are available, the versions can be verified. 4. Sometimes the eyes may not observe certain facts (for example, washed bloodstains and marks of disturbance at the scene). The camera will

photograph them and keep a permanent record, verifiable at later stages of the investigation also. 5. Skid marks, tyre marks, foot and footwear marks are found on highways and busy roads. The marks cannot be picked up easily. The evidence cannot be left undisturbed for a long time without serious dislocation of traffic. The evidence is, therefore, best recorded by photography. The photographs prove useful in determining the quantum of responsibility of a particular vehicle involved in the accident at the time of trial. Without photographs, the defendant may question the correctness of the allegations. In a minor traffic accident, a motor bus and a truck were involved. The criminal case was dismissed. However, the bus operators sued the truck owner for damages in a civil suit. From the photographs of the scene of occurrence and of the damage to the truck and to the motor bus, taken at the time of occurrence,

the extent ofguilt of the parties could be established. (CH)

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of a oe ive in riot cases. It records ect eff y ver is era cam ie 6. A mov lly al em, jr and the part played individua

the participants shouting slogans,

inciting people or damaging |

property.

pu

ic or p 7

.

of United States of America, the During the murder of a President were photographed. The film was movement and actions of the killer futable evidence.

film provided irre being prepared as a documentary. The

(CH) 7. The perishable evidence like wounds resistance,

strangulation

scratches,

marks,

on a dead body, traces of

tears, rents, swollen

is best

recorded

flesh in rape cases and

and

preserved

through

photographs. small pellet In a murder case, the injuries found on the dead body were the injuries holes surrounding a rat-hole. The prosecution alleged that defence were caused by a single gunshot from about eight metres. The challenged the version. They quoted books where separation of pellets was mentioned to start from about three metres. They also produced an ‘expert’ who said that the description of injuries indicates that two shots were probably fired. If the theory of two shots were accepted, the accused would have been given the benefit of doubt as the witnesses had observed only one shot being fired by the accused.

There were no photographs of the injuries. It was, therefore, difficult to visualize the exact nature of the injuries. However, the doctor who had carried out the post-mortem examination was available. He was called and asked to sketch the injuries as accurately as possible from his memory and the available written description. He prepared the sketch. Test fires with the same gun and similar ammunition from the alleged distance confirmed the thesis of the prosecution. (CH) 2.4.2.1 Camera

Formerly a studio camera was recommended for the photography of the scene of occurrence. It is bulky and, therefore, inconvenient to handle. Now light and

handy 35 mm cameras are available. A good 35 mm camera with reflex arrangement and some accessories (wide angle lens, telephoto lens, close up attachment, flash gun, photoflood lamps, exposure meter and a collapsible stand) can handle all types of scenes adequately. A photographer should have with him a supply of high quality films (black and white and colour) with varying speeds and contrasts. There are many other advantages in using a 35 mm camera. The photography is possible even in inadequate light. Wide angle lens covers even small closed areas like bathrooms and kitchens adequately.

The photography is quick and the changes of films are not so frequent. The cost of the films is also comparatively less.

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The only disadvantage of the camera is its small format, but it is more than compensated by the high quality films available for the camera. They have replaced the traditional cameras almost completely.

2.4.2.2 Coverage The photography can be carried out by the investigating officer himself or he

may employ a police photographer. Sometimes local professional photographer may have to be engaged. In all cases the investigating officer decides the coverage. The following principles for the coverage, should be adopted:

i At least four photographs should be taken for the general view, four for

the corpus delicti and at least two for each of the items of evidence discovered at the scene. The aperture of the lens in the two exposures for each item should be changed.

N

Close-up photographs should be taken alongwith a scale to indicate dimensions of the items photographed. . A record of the exposures, items covered, positions of the camera and

type of illumination used should be kept. The following items should be photographed: i The main site of the scene of occurrence. 2. The route of approach of the criminal. a. The point of the entrance. 4. The location of the corpus delicti. eS The position and identity of the corpus delicti. ON.

The evidence on the deceased (injuries, weapon, hair and fibres in his

hands or on his person).

. The marks of struggle including bloodstains, disturbed furniture, bedding and the like. . The evidence left by the criminal, like weapon of offence, bullets, cartridge cases, cigarette stubs, items of wearing apparel, fingerprints, foot or footwear marks, bullet holes and marks and tool marks.

. The place from which evidence was possibly carried by the culprit, e.g., scratched paint and broken glass. 10. The point of exit. RE. The route of departure.

If some persons witnessed the occurrence, photographs from their viewpoint should be taken. The photographs are useful to check and demonstrate what the witnesses could observe.

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Fig. I-1 Establishing the location of the scene. 2.4.2.3 Photographic exhibits

The number of photographs of the scene of occurrence which are produced as exhibits in the court, should not be large as a large number is likely to confuse the court. The photographs should be properly arranged and produced at appropriate time.

The photographs should be free from distortions, glares and shadows. They should have proper perspective and tonal relation. It is convenient to produce 10 x 15 cm to 20 x 30 cm photographs. They are easy to view and handle.

Fig. II-2 Close up for indentification.

SCENE

OF OCCURRENCE

Fig. II-3 Close up for the wound of entrance.

Fig. II-4 Exit wound close up—continuation of wound in Fig. I-3.

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2.4.2.4 Recent advances

used to photograph outdoor scene of pee 1. Aerial photography. It has been ions 5;of the objects involved occurrence. It allows better appreciation of the posit e areas are involved. Air, ship and in the crime. It is indispensable where larg

train disasters can be covered by aerial photography. es and 2. Colour photography. It is useful in photographing injuri . discoloration of body skin especially in rape and other offences against person It is also useful to demonstrate colour difference in some other forms of evidence. Colour photography is being used routinely by all police forces as the colour photography has become cheap. 3. Cine photography. In addition to its use in rioting, movie camera is being used increasingly to detect insurance frauds (feigning grievous hurt), in detection of sale or purchase of narcotics, betting and gambling offences and in cases of driving under the influence of alcohol. 4. The use of markers (flags or circles made with a chalk piece) to indicate the position of small items in photographs, is commendable. However, two photographs, one with and one without a marker should be taken for each item.

5. Photogrammetry. It is being used increasingly in some countries to photograph the scene of occurrence. The main advantage of the technique is that it dispenses with the measurement of interdistances and preparation of sketches. The photograph provides the necessary data on further processing. 6. Videography. Videography is not used to any extent to cover the scenes of crime in our country. However it has great potential for the purpose and should be an instrument of choice to record the scenes of crime. The obvious advantages are:

. The cost of the video film is low. . The pictures obtained are of high quality. Large areas can be covered. . The results can be verified immediately. OF WNIt is an excellent substitute for a movie camera in recording the actions of the rioters.

| The main disadvantages are, though individual snaps can be obtained, yet it 1s not common. Usually the film itself is shown. The courts may not find the same convenient. Videography, however, has a future. It will play its rightful role in covering the scenes of crimes. 7. Digital Photography. The real revolution in photography is the induction of digital photography through digital camera. The camera functions like an ordinary camera but there is no film. Instead there is cassette that records the pictures, which can be seen on a computer screen and their prints can be obtained through a computer printer. The main advantages are: l. Very high resolution gives pictures of very high quality that could not be achieved with the conventional camera-film or video camer a-tape combinations.

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2. The cost of pictures is extremely low. Cameras were very costly to start with. Now the cost is comparable with good conventional cameras. 3. Any

computer,

programmed

to take the camera

cassette

pictures.

can print

4. The capacity of the cassette is variable to suit the need. 5. Digital photography does not need a photo studio for obtaining pictures.

Digital camera has not yet been introduced in crime scene coverage in India. But it is the mode of choice for recording the scene of crime. 2.4.3 Sketching

Sketches are handy in depicting a scene of occurrence. In combination with the photographs, the sketches provide an ideal presentation of the scene.

1. They indicate inter-distances between relevant objects. 2. They indicate relevant evidence only. The police should requisition the services of revenue officials in all important cases to draw sketches of the scene of occurrence. They have the necessary training and experience in preparing plans and drawings of the type required in police work. They are available even in rural areas. The revenue official should draw that general outline of the scene in black ink and the investigating officer should fill in details of the evidence observed in red ink. A carefully and conscientiously prepared sketch in this way, is a useful piece of evidence.

The following principles should be observed while sketching the scene: 1. The sketch of the scene of occurrence should be prepared at the site and not at the office or the residence of the investigating officer.

2. The distance should be measured with tape and not by paces.

3. A suitable scale should be used and indicated on the sketch. The following scales are suitable: 1:5 to 100. For indoor scene:

For building and outdoor

1:50 to 500.

For large areas:

1:1000 to 10,000.

4. The direction should be indicated. A compass may be used to find out the direction. Usually North is indicated by an arrow head. 5. Superfluous material should not be introduced in the sketch. Symbols,

letters or digits and a legend should be used to avoid crowding.

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8.

9.

3%.

\O.

ise a=.

12.

4.

fn ?

Fig. II-5 Conventional symbols.

1. Wireless Aerial, 2. Boundary, 3. Bridge, 4. Crossing, 5. Factory, 6. Fields, 7. Hedge, 8. Pasture 9. Pond, 10. Rail Line, 11. River, 12. Road, 13. Temple, 14. Tree.

Sketching does not require elaborate equipment. A measuring tape, a drawing board, a ruler, a set of triangles, graph and drawing paper, pencils and an eraser should ordinarily meet all the requirements. There are various methods of drawing sketches. The following are common: 2.4.3.1 Co-ordinate method

The technique is most frequently used. A focal point is chosen and two lines crossing each other at right angle are drawn. One line (x) represents the length and the other (y) the width of the scene to be covered. The location of the objects is then filled by determining the positions of the objects with reference to their co-ordinates.

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Fig. II-6 Co-ordinate method.

Scale 1: 50 Legend : (a) Weapon (b) Shoes (c) A body

Fig. II-7 Extended co-ordinate method.

143

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2.4.3.2 Polar technique

the ere instead of drawing co-ordinates, It is used for large outdoor scenes. H ry objects are noted with reference to a distances and directions of the evidentia orded on the sketch accordingly. central (focal) point. The positions are rec

Fig. II-8 Polar method.

Scale 1:1000.

| Legend: (a) Body. (b) Axe in bushes. (c) Disturbed grass.

2.4.3.3 Height determination It is sometimes essential to determine the height of buildings, trees, roofs, bullet holes and the like.

There are a number of techniques for the purpose. However in a simple technique without involving much of equipment, it is measured with the help of two straight sticks, one (s) about one metre long and the second (1) about two metres long. The first one is correctly measured (say 1 m) and its corresponding position (L’) is marked

on the longer stick. The shorter stick is fixed at a

convenient distance from the object (building, tree, mountain peak) and the

longer stick is fixed about 3 metres ahead towards the object. The top of the object is seen from the top of shorter stick. The point (L”) where the line appears to cut the longer stick is noted. The height is then calculated from similar triangles SL‘L” and SO’ O". ey

©"

SO'

|

|Cd

Si,

or,O'O"= LL" x

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Fig. II-9 Height determination. Because

D and

d are known

and

UL’ L” is determined,

O’ O” can be

calculated. The height of the object is O’ O” + length of the stick (s). In important cases the help of surveyors for detailed drawings and sketches of expansive scenes of occurrence should be obtained.

2.4.4 Search Thorough examination of the scene of occurrence requires care. The techniques vary from one scene to another. The following ones are common: 2.4.4.1 Zonal method The scene is divided into small zones and each zone is examined in turn.

Fig. II-10 Zonal method.

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i

2.4.4.2 Spiral method

and carried out in The search is started from the focal point of the scene

spirals.

Fig. H-11

Spiral method.

2.4.4.3 Strip method

The scene of crime is divided into convenient strips and each strip is examined carefully.

| ‘

t

| t

/ : /

| |

/

t ee ee ee eee ome

Fig. I-12 Strip Method.

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2.4.4.4 Cross-hatch search method In cross-hatch search method thesearch for the clue mater ials is carried outtwo dimensionally. First the scene is covered length wise (as in strip method) and then width wise as shown in the diagram.

aamia ‘am se

Fig. I-13 Cross-hatch search method.

Other methods have also been suggested in literature. The method adopted is not so important. However, thoroughness, keen observation, care and planning are important.

It is often helpful to employ a second person or a second team to search the same scene Over again. 2.4.5 Equipment

A torch, a hand magnifier, a compass, a measuring tape, a steel scale, a notebook and a pencil are the bare minimum requirements for the search. In addition, a number of receptacles, casting and lifting materials and packing paraphernalia are required. 2.4.6 Handling clues

Handling of specific clues has been discussed in various chapters. It is proposed to consider here the fundamentals only. 1. Distribution of the materials at the scene should be carefully noted. All foreign materials weapon of offence, bullets, cartridge cases, poison containers, vomitus, wearing apparel, prints and impressions, stains and odours form clues. They should be collected and recorded irrespective of the fact whether they appear or do not appear to be relevant to the case at the time of collection. 2. The collection should be so organized that nothing gets, lost, misplaced or contaminated. Microscopic evidence like hairs, fibres, dust and paint should be collected first; prints and impressions are processed next and larger objects are gathered later. Collection of one object should not destroy or contaminate the other evidence.

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fingerprints on the 3. A careless investigating officer may introduce his s to guard against objects handled by him. Some writers suggest the use of glove oy microscopic and the evil. But the practice is undesirable as it is likely to destr 3 print evidence due to complacency.

or 4. Bacterial growth and other physical or chemical changes destroy

an contaminate evidence especially when wet stains or liquids are sent to examiner without taking proper precautions against these changes. As a general rule articles (excluding liquids) should be packed only after they are perfectly dry. 5. Contamination or destruction may occur due to dirty or fragile receptacles, packing corrosive materials in containers susceptible to corrosion and introduction of cigarette ash, dirt, etc., due to carelessness on the part of the investigating officer. 6. There should be no seepage of the materials. The original character of the contents will otherwise be lost. Plastic bags, bottles and glass containers with proper lids or stoppers prevent spilling or contamination.

7. The exhibits should be so packed that they are not damaged on opening. Only one item should be packed in one packet. If necessary, a number of packets (properly marked) may be despatched in one box or in one packet. A copy of the description of the contents of various packets in the box should be placed inside. Exhibits of different cases should be packed separately. 8. The articles should not get rubbed, scratched or scraped in the transit;

valuable-evidence, otherwise, gets contaminated or lost. 9. Dangerous articles and the exhibits likely to get damaged in transit should be sent through special messenger. 10. The chain of possession of evidence should be fully established: ¢ The article recovered should be marked and initialled, with date if possible. In doing so, however, the evidence on the exhibits should not

be disturbed. For example, bullets should not be marked at the places where they carry marks from the barrel of firearm. Likewise the documents involving erasures and alterations should not be marked at the relevant places. ° The evidence should be collected, packed and sealed in the presence of two reliable witnesses and their signatures should be obtained on the sealed cover. A specimen of the seal should be placed on the case file. Another specimen seal impression should be sent to the expert alongwith the covering letter. The seal should be clear and legible. ¢ The number

of the case with date, the name

of the police station,

description of the contents, the name of the investigating officer and the name of the witnesses alongwith their signatures should be written on the label. The label should be so secured that it does not come off easily. In a case, exhibits were sent duly sealed to the expert, alongwith a specime n seal of the magistrate with whose seals these were sealed. The expert identifi ed the seals in the court, but when the magistrate (a witness in the Session s trial) examined the seals, he found them different from his own seal. (CH) ,

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In another case, a bullet was sealed in a bottle. The cap (screw type) of the bottle could be unscrewed alongwith the patch of cloth bearing the seal impres sion and rescrewed without breaking the seal. (CH)

Fig. II-9 Defective sealing. The parcel can be opened without breaking the seals.

In still another case, a parcel bore six seals with the same monosyllable. When critically examined, they were found to originate from two sources. The defence alleged tampering of the evidence and got acquittal. (CH) In a murder case the cartridge case was stored in a damp place. When they were put in the court (alongwith a score of other cartridge cases) fungi and incrustation had damaged them so much that the correct cartridge could not be identified. (CH) In a murder case, the exhibits (a gun and a cartridge case) were correctly despatched from the laboratory. They were exhibited on the first day. But when the expert appeared on the second day, the cartridge case could not be located anywhere. Presumably, it had been stolen from the court. (CH) In another case the questioned document has been replaced. A fictitious document was put up in the court for the identification. (CH)

¢ A minimum number of persons should handle the evidence. The ideal sequence is from the investigating officer to the expert and from the expert to the court. It is not always possible. A note, therefore, should be kept to show where, when and why the evidence was with a particular person. ¢ The exhibits should be despatched to the concerned experts promptly through special messenger. Otherwise, the defence alleges tampering of the exhibits. Quite

a number of cases are dismissed because the

investigating officer did not despatch the exhibits promptly to the expert and could not account for the delay. 2.4.6.1 Recording

|

The evidence chart given below is useful to record collection of evidence at the scene. This chart should be used in addition to usual forms required by the rules.

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e. 2.5 MODERN AIDS th the police e the importance of the scene 0 f occurrence vi in view in Keepinging aids for the examination of the jeteere all over the world have organized scene. The facilities provided vary. igator’s kit investigating officer at ga Ak te ee kit is a collection of items needed by the / the scene of occurrence. It generally contains: (with 1. Examination kit. A compass, a magnifying glass, a mirror, a torch rs, spare bulbs and cells), a scale, measuring tapes, vernier calipe forceps, tongs and a pair of rubber gloves. 2. Making and breaking kit. Diamond pencil, scissors, scalpel, knife, adhesive tape, twine, wire and tool kit containing a set of screwdrivers,

jimmy, adjustable wrench, wire cutter, saw, hammer and pliers. 3. Fingerprint kit. It includes inking slab, ink roller, thumbprint ink tube, powders: grey, graphite and anthracene, camel hair brushes, lifting tape, iodine fuming tube, glass wool, iodine and anhydrous calcium chloride. 4. Casting kit. It contains talcum powder, powder sprayer, lacquer and lacquer sprayer, rubber cup, ladle, plaster of Paris, sieve, aluminium strip frames, wire gauze, salt, scale and a towel.

5. Blood testing kit. It consists of high quality filter paper circles about 10 cm. in diameter, spatula, scalpel, droppers, pipettes, distilled water, saline solution, glacial acetic acid, benzidine, (benzidine tablets are preferable), barium peroxide and methanol.

6. Collection paraphernalia. A set of clamping boards with nuts and bolts, screws, nails, cardboard ‘boxes of various sizes, (economy of space is achieved by placing one into other in the decreasing order of sizes), plastic and paper bags and envelopes, kraft paper and cellophane sheets, clean white linen, tissue paper, absorbent cotton, test tubes, bottles of various dimensions (20 ml., 50ml., 100 ml., 500 ml. and 1 litre)

with screw and glass stoppers.

Rubber bands, gummed labels, tags, needles and thread, sealing wax, seal and spirit lamp are needed for sealing and labelling. 7. Recording equipment. Writing board, graph paper, noting sheets, carbon paper, drawing paper, various types of forms (for example, fingerprint form, recovery memo forms) pen, pencil, coloured pencils, erasers, scale, mathematical drawing box and compass. It is not convenient to carry all these items at all times. Nor are they necessary in every crime. It is, therefore, convenient if the items are kept ready and those required in a particular investigation are taken there. 2.5.2 Mobile laboratory

An average investigating officer does not know the importance of all the traces left at the scene of crime, nor does he know the proper sampling

SCENE OF OCCURRENCE

153

techniques. He may, thus, fail to preserve important items of evidence or specimens. The laboratory personnels prove helpful to him in this regard. They can eliminate some of the exhibits by examination at the spot. They are sometimes able to guide the investigating officer to pursue a parti cular line ot enquiry from the spot examination. It is, therefore, desirable that the laboratory personnel should examine the scene of occurrence in important cases. Ina multimurder case, the mobile unit of the laboratory pitched tent at the site and extended full co-operation to the investigating staff. The help provided by the unit at the scene is summarised below: 1. Photographed the scene, including fingerprints on the vehicle and foot and footwear marks at the site and on the route of departure of the culprits. Provided photographic facilities to the medical team carrying out the postmortem examination.

Helped the police to follow the route offlight followed by the culprits checked, photographed and collected the prints and impressions found enroute. - Gave possible number, height and built of the culprits from the study of the gait patterns. 5. Checked the footwear of some suspects and eliminated their presence at the site. Predicted the possible types offirearms used from the size and nature of the wounds.

Guided the medical staff to recover all the ballistic evidence intact from the dead bodies. 8. Checked the bullets at the time of post-mortem examination and gave the number, type and possible make of the four firearms used by the culprits in the commission of the crime. 9. Eliminated some firearms recovered by the police at the scene. (CH) The following items form the mobile laboratory: iF A truck or a power wagonwwith four wheel drive and special fittings is

useful for a mobile laboratory. The space is divided into two compartments. One is used as a dark room with facilities for loading and processing sensitive material. The second compartment houses the equipment and a small examination table. Lighter vehicles for their being preferred increasing, mainly for their speed and greater accessibility to the scene of occurrence. The vehicle is fitted with a generator to produce electricity, which is used for floodlights and operating the instruments. Investigator’s kit. All the items mentioned above are included in the equipment.

Photographic equipment. A speedgraphic or similar camera and a 35 mm camera (Leica) with various accessories including close-up attachments, wide-angle and telephoto lenses, photoflood lamps, flashguns, lightmeter and ultraviolet, infrared, pola screen and colour filters.

A Stereometric camera can be useful. Zoom lens cameras, Video

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ainly replacing the current and digital Cameras are slowly but cert conventional cameras. contrasts and speeds An adequate supply of films of various grades of | for the above cameras. X-ray unut. 4. Ultraviolet and infrared lamps and small portable um cleaner, 5. Magnifiers, stereomicroscope, handspectroscope, vacu : avometer, electricity tester.

of As it is not possible for the laboratory personnel to attend to every scene

occurrence, they visit the scene only in important cases.

, 2.5.3 Flying squads Most of the police organisations have instituted flying squads especially in large cities. A flying squad consists of a team of police officers who reach the

scene of occurrence immediately and carry out preliminary duties. They are provided with fast moving vehicle fitted with a two-way communication wireless system. These squads are located at various important points. When a report relating to crime is transmitted to them, they immediately proceed to the scene of offence and call in the necessary police and other help. Flying squads work round the clock in teams. Delhi flying squad system is extremely well organised. In many a case the flying squad people have caught the culprits redhanded. The introduction of flying squads in cities has a great demoralizing effect on ,the criminals. Sometimes the squads make sensational news when they catch the criminal red-handed. 2.5.4 Expert Help

Photographer

1. Gives accurate and complete record, as the scene existed before handling. 2. Fixes the location of the scene, the corpus delicti, the evidentiary clues, the routes of ingress and egress, the movement of the culprit(s), ete.

3. Indicates the Modus Operandi. 4. Reveals the extent of depredation and damage.

5. Creates permanent record of the scene. 6. Revives and brings the scene to the court room. 7. Reveals the hidden evidence. 8. Records the criminal act in riots. 9 . Photography of the dead, before, during and after the post-mortem. 10. Trap cameras at the scene: initiation through tripping, IR rays, making/ breaking connections

and automatic recording of the activity.

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. Provides photographic evidential help to medicolegal expert, forensic expert. Forensic psychologist and others involved, to locate, preserve and present the evidence properly. Records transient evidence.

. Makes visible the invisible evidence through UV, IR and other photo techniques..

Medico-legal Expert

1. Identifies whether the scene is real or fake.

a

Identifies death.

3. Evaluates injury: fatal/non-fatal, grievous/simple, self-inflicted

or otherwise,

old/recent,

and

the

nature of the weapon, which caused the injuries. 4. Identifies age, sex, height, built, scars, deformity. Indicates the cause of death, the time of death.

Helps to identify whether the death is due to suicide, accident, self-defence or due to murder.

Locates/collects evidence on the person of the deceased/injured: birth marks, matter, foreign projectiles,

tattoo marks, hairs, _ fibres,

bloodstains, semen stains, nail scrappings, digital skin, body fluids as control samples and evidential material for narcotics etc. and visceral material for detection of poisons, narcotics, alcohol, etc.

. Collects

body material

organs, etc.

specimens,

hair, blood,

‘

Indicates the survival period. . Indicates the possibility/impossibility of the acts allegedly performed by the deceased /injured. . Gives symptoms observed in cases of poisoning. Determines if an accused person is sane or insane (psychiatrist). Determines the apparent motive: sex, maniac, vendetta, robbery.

Forensic Expert

_ Finds if the corpse has been moved. _ Ascertains if the incident is an Act of God, an accident or a criminal act. Establishes genuine/fake nature of the alleged scene of crime. Helps establish the identity of the deceased through occupational marks or materials. _ Finds if the corpus delicti has been moved.

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been used in the 5. Ascertains if a vehicle has ermines the type commission of the crime. If so, det ce to identify of vehicle used and finds the eviden the individual vehicle involved. for elimination 6. Make quick evaluation of evidence or holding act. correct 7. Helps locate, collect and preserve evidentiary and sample clues.

‘8. Makes the invisible clues visible. 9. Reconstructs sequence of events. 10. Verifies versions. 11. Fixes routes of ingress and egress. 12. Determines the nature of the weapon of offence. If a firearm has been used, its nature, number shots, direction and range of fire is given.

of

13. Determines the motive of the crime. Sex! Robbery! Vengeance!

In addition to the above, other experts are also required in certain special situation. They are e Fingerprint experts ¢ Footprint (Track marks) experts.

¢ Ballistics experts ¢ Toxicologist

¢ Constructional and electrical engineers. ¢ Forensic Psychologist e Explosive experts ¢ Computer Specialists These experts are requisitioned whenever they are required The forensic expert is the bare minimum need. His services should be requisitioned in all important cases. He can then decide on seeing the scene who are the other experts needed 2.5.5 Police dogs

The uncanny smelling power of dogs have made them very valuable in the examination of the scene. Trained dogs carry out the following duties: be Guard the sites. Dogs have proved excellent guards. They guard buildings, compounds, parks and property. 2. Track the criminals. A trained dog is made to smell an article left or touched by the criminal at the scene. The dog picks up the scent and follows the route adopted by the criminal to his hideout. The dogs also pick up smell from the track.

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If the culprit has used some means of transport (horse tonga, motor car or bus) the dog loses the scent and is unable to track. If the time interval between the flight of the culprit and the tracking is appreciable, the scent gets lost and the dog fails to follow the route. Rain, snow, storm

and winds also destroy the scent. 3. Identify criminals. If an article belonging to a culprit is left at the scene of offence and if it is kept in a closed container, the scent of the owner is

preserved. If the dog is given the scent and is ordered to search the criminal among a number of persons, the dog is usually able to pick up the right person. 4. Search of the scene. Dogs have been trained to search the scene of offence. They find out buried bodies, hidden items and articles which

may have been overlooked by the investigating officers. In Himachal Pradesh (India), some dogs have been trained to unearth

unauthorized hidden distilleries and their products. Quite a few cases are, thus, literally unearthed. 5. Explosives. Dogs have been trained to smell explosives. This aspect has proved particularly useful in checking air luggage to prevent aircraft sabotage. 6. Narcotics. The dogs has been used to detect narcotics. They have detected the drugs in special hiding places where it was difficult for human beings to detect. This aspect has proved useful to clear university campus from drug menace. One late evening two police officers on motorcycle began chasing a driver of a suspect car. After a chase through the streets of Paris, just as another police vehicle was about to overtake the suspect car, the offenders in the car fired at the police, seriously wounding one officer. One of the two offenders was arrested, but other although wounded by police in gun fire, managed to escape. The police dog took up the trail at 4 o'clock in the morning starting offfrom the abandoned motor car, and led the police to the corner near a taxi rank. One of the taxi drivers stated that he had taken a wounded man to a town in the southern suburbs. The dog was taken in a police van to this town. Took up the trail again in the road indicated by the taxi driver and stopped at the 10th floor of an apartment building, in front of a door where the police noticed bloodstains. The criminal was arrested. Some attempts are being made to capture the scent a criminal leaves at the scene and identify the same through gas chromatography. However, the work is as yet at preliminary stage.

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IGA A™TION STIG INVEST

AND

Fig. I-15 2.6 SCENE MANAGEMENT DOCUMENTATION A.Worksheet 1.

FIR No.?

2

Victim(s)?

3

Suspect(s)?

4

Scene of occurrence site?

5.

Informer?

6.

Time of intimation?

7.

Arrival at Scene of occurrence?

8.

Nature of the incidence?

9.

Names of team mates?

B. Scene Description l.

Victim

e Name, sex, age

e Address, telephone ¢ Community ¢

Married/Unmarried

TRI ALS

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159

Next of kin As in (1).

3. Scene e Address of the scene ¢ Location (i) House

(ii) Apartment (iii) Field (iv) Jungle

(v) Elsewhere

¢ Genuine/Fake? e Arrival Date/Time

4.

Corpus delicti ¢ Condition/ Position

5.

Condition of body: e Place ¢

Position

¢ Fully clothed, Partially clothed, Unclothed /Naked e Preservation: Well preserved. Decomposed ¢ Estimated Rigor: Complete Head, Arms, Legs ¢

Lividity: Front Back, Localized

e Color:

¢ Blood:

¢ Ligatures marks: 6. Apparent wounds:

Absent, Present, Location

Yes

No

¢ None, Gunshot, Stab, Blunt force.

¢ Number: ¢ Location: Head, Neck, Chest, Abdomen, Extremities

¢ Hanging: Yes No Means: ¢ Weapon(s) present: Type of: Gun, caliber. Knife, Other (describe). Condition of surroundings: Orderly Untidy Disarray Odours: | Body material Decomposition Other:

Evidence of last meal: Where: Time: Type:

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10. Dated material: Mail:

Newspapers: TV Guide: Milk Bottles 11. Last contact with deceased Date:

Type of Contact: Name of the Contact: 12. Evidence of robbery: e Identification of deceased: e If yes, how accomplished:

Yes

No

Yes

No

Could not be determined

° If no, how is it to be accomplished: No 13. Evidence of drug abuse: (prescription and non-prescription) Yes If drug present, collect and send it along with the body. Type No. Yes 14. Evidence of drug paraphernalia: No Yes 15. Evidence of sexual deviant practices: Type: Collect and send the evidence along with body. 16. Photographic Exhibits e Limited Number up to 6. Size 5" x 7", 8" x 10" ¢ Grotesque Photos impress 17. Injury Photographs e From the Scene of occurrence - Police photographer e Before (after cleaning) and After post-mortem examination at the time of post-mortem. 18. Internal wounds: evaluation.

Describe,

extract

foreign

material,

seal,

send

for

19. Use/provide Xerox copies of all documents involved in all cases, for daily use both by the investigator/in the court. 20. Losses

a. Life

b. Property ¢ Cash ¢ Ornaments

¢ Crops ¢ Household goods

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C. Photographic Documentation 1. Importance:

e Scene taken to court e Preservation especially of perishable evidence e Reveals e Unbiased documentation e Indicates Modus e [1/1 examination e Reconstruction

e Re-evaluation 2. Basics

e Proper record e Direction

¢ Scale

¢ Chit ¢ Name of Investigating Officer /Photographer

e Record of exposures 3. Cameras/Photography ¢ 35 mm/colour photography * movie

e videography e Digital Photography ¢ Aerial Photography e IR Photography

¢ Stereo Photography ¢ Photogrammetry 4. Coverage. Fix: ¢ Site (4 photos)

¢ Scene of occurrence (4 photos )

¢ Corpus delicti (4 photos) e Evidentiary clues (i) Location (with markers if necessary)

(ii) Identity ¢ Ingress route

¢ Point of entrance e Egress

¢ Point of exit ¢ Struggle marks

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tion of the witnesses 5. Photograph scene ofoccurrence from the posi Cover /indicate odd act (s)

6. Photograph Crime in action: Riots Demonstrations

Spying Contraband business (drugs/arms/ antiques etc.) Arson, fires

D. Sketching Documentation 1. Two advantages: Inter-distances are available.

No crowding, relevant items only

2. Principles Direction

Distance measured Scale indicated At the scene

Legend - symbols p. 147 3. Methods Co-ordinate Extended co-ordinate Polar Method

E. Evidence Recovery Log 1. Equipment

Magnifier

Scale, measuring tape Recording/ materials sketch Containers 2. Recovery log. Annexure (p. 155-156). F. Lab. Submission Letter Format should give: Proper reference number with date.

Brief history of the case.

FIR No. Preferably attach a copy of the FIR. Details of the exhibits (when, where, who, how) in each of the parcel.

The identification marks put by you on the exhibits. The number of seals used on each parcel. The details of the contents of the each of the parcel separately.

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, “ If more- than one seals have been used, send C orresponding specimens of all the seals. If some preservative has been used, give the name and quantity used. If specimen sampler have been also sent, send their details. Whenever comparison is needed, always send the required samples. Send the specimens in separate packages. If the exhibits (acids, volatile, fragile) need special handling, specify. If the exhibits are likely to parish, disintegrate or pu trefy and hence need immediate handling, stress the fact. Give complete questionnaire about what sort of examination, comparison, and evaluation you need.

15. Give the time frame about the exhibits: e When did the exhibits come into existence? e When were they packed?

¢ Legal time frame for production of the exhibits in the court? 16. Mention the name and rank of the messenger along with his attested signatures with whom the exhibits are sent. G. Possession Log Ensure that the possession of the exhibits is known from the time it is taken into possession to the time it is produced in the court. A proper record of the movement of the exhibits is kept in the Possession Log. In fact only sealed

exhibits move and the transfer from one man to another takes place under signatures. 2.7 CASE LAW

2.7.1 Location of the Scene 1. We also find that the trial court as well as the High Court had brushed aside the objection that the blood recovered from the place of occurrence was not sent for chemical examination. We think that a failure of the police to send the blood for chemical examination in a serious case of murder, such as the one before us, is to be depreciated. In such cases, the place of occurrence is often disputed.

In the instant case,

it was

actually disputed.

However,

such an

omission need not jeopardise the success of the prosecution case where there is other reliable evidence to fix the scene of occurrence.! 2. The accused was said to have speared the deceased in the abdomen and on the left thigh, as a result of which the deceased fell down on the spot (in the street) with his back downwards. In acquitting the accused, the Sessions Judge was much impressed with the circumstance that there was no explanation as to why there was no blood at the spot. The Sessions Judge was not satisfied that the occurrence took place at the place sworn by the P.Ws. The evidence shows that although two injuries were caused and one of the questions which had 1.

Raghunandan vy. State ofUttar Pradesh, 1974 Cri LJ 453 (SC).

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the spot, no attempt been raised by the defence was that there was no blood at no blood at the was made by the prosecution to show the reason why there was lying nor spot. There was also no blood on the cot on which the dead body was a trail of blood to the house.!

2.7.2 Preservation and Guarding of the Scene

Exhibits the wall of to the spot was taken

2/1 and 2/2 are enlargements of photos taken of the impressions on the room. They were prepared by the photographer Ghose who went on the 4th April in order to take the photograph. The photograph in the presence of the senior fingerprint expert, R.N. Sinha and the

investigating officer, K.B. Karan (P.W. 25). The impressions were seen ‘in situ’ by

the Sessions Judge (vide his note of memorandum of local inspection at page 52 of the paper book) and were then scraped by assistant sub-inspector Rajmani Lal (P.W. 26) who himself took them to the chemical examiner for chemical

analysis. The result of the chemical analysis was that they were both found to contain blood and the print on the eastern side of the door corresponding to the enlargement Ext. 2(1) was found to contain human blood. The blood in the other impression, which was a very small one, was found to have disintegrated and

so its origin could not be determined. In view of the evidence set out there is no difficulty in connecting the enlargements (2/1) and (2/2) with the impressions

on the wall of the room of Anand Prakash.

Great stress has been laid on the fact that the impressions were not discovered till the 4th of April. It appears from the evidence, however, that they could only be seen in the light of a flood lamp as the room was badly lit. In this connection our attention was drawn to the fact that photographer Ghose took some photographs on the 28th of February at the spot and it is suggested that he did have a flood lamp with him that day. This cannot be correct because Ghose himself deposes:

I could not take photos inside this house as the light was not sufficient, but I took some photos of some footprints on the ground of the room of the house. The question of insufficient light could not have arisen if a flood light was available. All that happened on the first day probably was that the photographer took photographs of footprints in portions of the room which were better lit than the remainder of the room. Suggestions have been made to the fingerprint expert, R.N. Sinha, in the course of cross-examination about the possibility of transferring finger impressions on the walls of the house in order to falsely implicate a suspect person and it is urged that the appellant Karu was a prisoner and prints of his fingers and palms had been taken when the discovery was made. It is in evidence, however that from the very first the investigating officer put the room in which the occurrence had taken place under seal and throughout the investigation he had a constable continually on duty guarding the room. There is, therefore, no reason to think that the impressions found on the wall were impressions fraudulently placed there in order to implicate Karu Gope.2 1. State of Punjab v. Behari Lal, ATR 1953 Punj 218. 2.

State of Bihar v. Karu Gope, 1954 Cri LJ 201 (Pat).

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2.7.3 Defective Collection, Chain of Custody/Authority

It has been pointed out that the ‘hasua’ was not shown to the photographer for identification

in court. There is, however,

sufficient evidence,

as I have

indicated, to connect the enlargement Ext. 2 with the impression on the ‘hasua’ in question. This cannot be said about the enlargement Ext. 3 which is said to be an enlargement of the photo of the bloody footprint seized from the room of the deceased Anand Prakash on 8-3-1951. All that the photographer Ghose says about this photograph is:— I took photos of papers having footprints. This is a negative of this footprint. (Ext. 4) and this is the enlarged photo of this negative (Ext. 3)...... I got the paper containing the footprint.

Neither the investigating officer nor any of the officers of the criminal investigation department tells us how the paper containing the footprint came into the possession of photographer Ghose for this purpose, and there is no evidence to identify paper with the paper that was seized on the 8th of March. That paper is said to have been sent to the chemical examiner and the chemical examiner’s report with the paper has disappeared. It is, therefore, not possible to connect with the occurrence the paper from which the enlargement Ext. 3 has been prepared and this document is of no value as connecting Bhorik with the occurrence. 2.7.4 Identity of the Scene It was argued with great vehemence in the High Court as well as in the Court

of Sessions that there was trail of blood from the front door of the house of the Vakil into the corridor rooms marked H and H-1 in the plan and that supported the defence theory that the deceased Kanan received the stab injuries not in or near the house in question but somewhere far away near the railway station. The High Court took the view that if Kannan had received the injuries somewhere outside the house it was impossible for him to have come into the room in view of the doctor’s evidence. It was concluded on the material placed on the record that there could be no room for doubt that Kannan received the injuries in the room itself and not outside, and that he was carried out of the room while life was still lingering and therefore there would be dripping of the blood from the body during the course of transit as the injuries were very serious and vital arteries had been cut.!

2.7.5 Manipulation of the Scene

P.W. 1, Tabedar Khan, the investigating officer, stated that on the day of occurrence he searched carefully the walls of Kanhaiyalal’s shop as also the ground in front of his house but did not find any bullets and that if they had struck the plinth or the wall of Kanhaiyalal’s shop or any shop close by, the bullets ought to have been recovered as the place itself was such that they could not have been lost. 1. Marachalil Pakku v. State of Madras, 1954 Cri LJ 1668 (SC).

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t who saw the place To the same effect is the statement of the ballistics exper tion of firing and the of occurrence and gave the opinion that judging the direc d have been found position of Bhagwati at that time, the bullets shoul not just disappear somewhere near the scene of occurrence and that they could in the air. if the The fact that the bullets were not found only makes it doubtful whether, ion revolver had been fired, the firing was in the circumstances and in the direct deposed to by the prosecution witnesses. There is also no evidence to indicate that the ground in front of Kanhaiyalal’s shop was so soft that it was very easy fora bullet to get embedded deep into the ground and that it was, therefore, difficult and impossible to disenter it from the ground. On the other hand, the evidence is that the road in front of Kanhaiyalal’s shop was a metalled road and that the ground very close to his shop was a hard one. Coming now to the production in evidence of a picture with a broken glass as an article which was hit by one of the shots fired by the respondents and found embedded in a Balli, we have formed the same opinion as the learned Sessions Judge did of that evidence being false and manipulated. At the time of incident the picture was just above door in a wall some ten feet behind the spot where Bhagwati was. It was decorated by a paper garland. It is said that one of the shots fired by the accused person struck the glass plate covering the picture causing a hole therein and at a corresponding place in the picture and the bullet then pierced the wooden beam behind the picture. According to the prosecution, the damage done to the picture was first noticed on 7th December, 1955, by Kanhaiyalal when he was cleaning the picture. While cleaning he found a hole in the glass and the hole was covered by tassels of a paper garland which, contrary to usual mode of putting garland, were on the top.

He accordingly informed the police, of what he had seen and after the arrival of the police, the bullet was removed from the beam. Now, it is in evidence that immediately after the occurrence Tabedar Khan and several other police officers including a deputy superintendent of police closely inspected the scene of occurrence and the wall where the picture was hung. But none of them found any bullet or any mark of the striking of any bullet. Tabedar Khan, the investigating officer is very-very emphatic on the point . Tabedar Khan did not find any crack or hole or anything odd in the picture when he inspected it. If, then on 22nd November, 1955, Tabedar Khan and other police officers did not find any hole and even cracks in the glass which Kanhaiyalal, the sub-inspectors Bhadora and Narendrasingh and the witnesses P.W.

9 Shankerlal

and

P.W.

19 Nathu,

saw

on

7th December,

1955, it is

impossible to hold that the damage to the picture was caused on 22nd November, 1955, itself by the striking of a bullet. It is beyond our comprehension as to how the bullet according to the prosecution pierced the glass and got embedded in the beam behind it, did not, when it struck the glass, make any sound and reduce the glass to splinters or at

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least break it into pieces. It is also strange that no one heard sound of the striking of the bullet. It is not the suggestion of the police that the glass-plate covering the picture was of a special kind in which a bullet could be fired noiselessly causing only a hole and no other damage. In his evidence Major Sonaone said that the striking of the bullet on the glassplate covering the picture would create considerable sound and that if the hole in the picture was covered by a garland it should also have been damaged and disturbed. But the garland was found without any damage and no one heard the sound of the striking of the bullet and no one saw any glass pieces falling on the ground.

It is worthy to note that the glass-plate containing the hole was not sent to Major Sonaone for examination. It was not produced in the case. There is no mention of a broken glass containing a hole in the seizure memo. It refers only to the glass as one broken at the top. The production of the pieces of glass containing a hole would have indicated whether any pieces of broken glass would or would have not fallen on the ground after the striking of the bullet.

Learned government advocate contended that Kanhaiyalal’s shop being an open place it was impossible to implant a bullet in the beam behind the picture or fire a shot at the picture. As to this it is sufficient to say that the possibility of an expert hand firing a shot at the picture in the quiet hours for the purpose of creating evidence cannot be ruled out in this case. Such being the circumstances in which the picture was found and the bullet was recovered from a beam on 7th December, 1955, we are driven to the conclusion that this evidence of one of

the shots hitting the picture and a bullet getting embedded in the beam behind it

is a fabrication from start to finish.’

|

2.7.6 Police Dogs Identification Tracker-dog’s evidence reliable being of very high calibre During the investigation, assistance of tracker-dog Kumar was made use of ©

by the police and the bag and clothes of the accused were recovered with the assistance of this tracker-dog, who also led the police to the house of the accused.

The

admissibility

of this

evidence

and,

more

importantly,

the

evidentiary value of dog-tracking evidence has been seriously questioned and, therefore, requires to be examined and the issues decided. Investigating agencies often use the services of tracker-dogs and the question, therefore, arises as to how reliable is this class of evidence. The orthodox view was that though it is admissible, it is not of much utility and consequently, that: did not ordinarily have such weight. There has been considerable development of research and thinking on the subject and the modern trend is that such evidence is of an extremely high calibre. Undoubtedly, evidence in criminal cases, and in particular ones where the

charges are serious, must pass the dual tests of absolute reliability and infallibility. That a tracker-dog cannot be influenced is something strongly in its (MP). 1. State ofMadhya Pradesh v. Babu Lal, Ram Ratan, 1958 Cri LJ 190

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blend of acceptability. On favour and what lends this class of evidence a special the special skills of a the question of margin of error, experience has shown that ted gadgetry. It tracker dog outclass all other forms of detection; even sophistica e every other is now universally acknowledged that in detecting drugs, wher that it is form of human ingenuity and gadgets are capable of being eluded,

is used, virtually impossible to avoid detection when a trained tracker-dog proof. explaining why this mode is found to be the most reliable and fool-

Similar has been the experience in cases of robbery, murder and the like where the scent is fresh and the area not too crowded. Statistics has shown that in many cases dogs have been unsuccessful in detection due to limiting factors, but that wherever they have tracked down an object or a culprit that the dog was never wrong. Such evidence will, therefore, have to be categorised as being of the highest order and reliability.

This is one of the few case in which the services of a tracker-dog had been

utilised. The police brought one of the dogs by the name of Kumar to the scene of offence and it is alleged that the dagger was found at that spot stained with blood. It is further alleged that on the basis of the scent which the dog picked up at that place, that the dog went to the field of the accused and pointed out to the

police the bag and the Khaki coat belonging to the present accused, both of which were recovered from that spot. It is also alleged that the dog led the police to the house of accused No. 1. This evidence is acceptable in view of the position in law that such evidence is in fact admissible. Mr. Vaidya has attacked both the admissibility and the evidentiary value of the dog-tracking evidence. It is seldom that this issue has been raised before the courts and the only reported decision on the point, wherein the Supreme Court had occasion to refer, only in passing to such evidence, is in the case of Abdul Razak v. State of Maharshtra'. While dealing with this question, their Lordships had occasion to observe as follows:— The tracker-dog’s evidence cannot be likened to the type of evidence accepted from scientific experts describing chemical reactions, blood tests and the actions of bacilli, because the behaviour of chemicals, blood corpuscles and bacilli contains no element of conscious volition or deliberate choice. Dogs are intelligent animals with many thought processes similar to the thought process of human beings and wherever there are thought processes there is always the risk of error, deception and even self-deception. Considerable research has been done on the subject. It is necessary to point out that in Canada and Scotland, evidence of dog-tracking is admitted and relied upon by the courts. As far as the United States is concerned, the position is conflicting insofar as the courts have placed reliance on such evidence in some cases, but have rejected it in others. Dog-tracking evidence is admissible in England and in criminal trails it is often used by the prosecution. There are certain safeguards which need to be borne in mind in such cases. The position as it obtained formerly is illustrated in the following passage from the case of R. v. Montgomery, 1866 NI 100:— 1. AIR 1970 SC 283: 1970 Cri LJ 373.

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There are three objections which are usually advanced against the reception of such evidence. First, since it is manifest that the dog cannot go into the witness box and give his evidence on oath, and consequently submit himself to crossexamination, the dog’s human companion must go into the box and report the dog’s evidence, and this is clearly hearsay. Secondly, there is a feeling that in criminal cases the life and liberty of a human being should not be dependent on canine inferences. And thirdly, it is suggested that even ifsuch evidence is strictly admissible under the rules of evidence, it should be excluded because it is likely to have a dramatic impact on the jury out of proportion to its value. Subsequently, however, the position has been quite unambiguous and has changed drastically. What the courts have insisted upon is that the evidence must pass the test of scrutiny and reliability as in the case of any other evidence.

The following guidelines must, however, be borne in mind:— (a) That there must be a reliable and complete record of the exact manner in which the tracking was done and to this extent, therefore, in this

country, a panchnama in respect of the dog-tracking evidence will have to be clear and complete. It will have to be properly proved and will have to be supported by the evidence of the handler.

(b) It will be essential that there are no discrepancies between the version

as recorded in the panchnama and the evidence of the handler as deposed to before the court. (c The evidence of the handler will have to independently pass crossexamination. —

(d) Material will have to be placed before the court by the handler, such as

the type of training imparted to the dog, its past performance, achievements, reliability, etc., supported, if possible and available, by documents.

It is scientifically accepted that dogs are rated as extremely intelligent animals and that some of their sensibilities are very highly developed and are extremely reliable. It is also to be noted that there are some breeds of dogs and some strains which are specially utilised for hunting and tracking because of their abnormally high talents, if the dog belongs to one of these categories and if it is shown to the court that it has been specially trained for purposes of detection, not only would the dog-tracking evidence will be admissible, but it will have to be relied upon as being evidence of a very high calibre.’ 2. It was lastly urged on behalf of the appellant that the lower courts ought not to have relied upon the evidence of dog tracking and such evidence was not admissible in order to prove the guilt of the appellant. The evidence of tracker dogs has been much discussed. In Canada and in Scotland it has been admitted. But in the United States there are conflicting decisions: There have been considerable uncertainty in the minds of the courts as to the reliability of dogs identifying criminals and much conflict of opinion on the question of the admissibility of evidence. A survey of the cases, however, reveals 1. Babu Mugbul Shaikh v. State of Maharashtra, 1993 Cri LJ 2808 (SC).

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nce of trailing that most courts in which the question of the admissibility of evide upon a proper by blood hounds has been presented to take the position that n beings foundation being laid by proof that the dogs were qualified to trail huma make tt and that the circumstances surrounding the trailer were such as to probable that the person trailed was the guilty party, such evidence ts admissible and may be permitted to go to the jury for what it is worth as one of the circumstances which may tend to connect the defendant with the crime. [Para 378, . Am. Juris, 2nd Edn., Vol. 29, p. 429]. There are three objections which are usually advanced against the reception

of such evidence. First, since it is manifest that the dog cannot go into the box

and give his evidence on oath, and consequently submit himself to crossexamination, the dog’s human companion must go into the box and report the dog’s evidence and this is clearly hearsay. Secondly, there is a feeling that in criminal cases the life and liberty of a human being should not be dependent on canine inferences. And, thirdly, it is suggested

that even if such evidence is

strictly admissible under the rules of evidence it should be excluded because it is likely to have a dramatic impact on the jury out of proportion to its value. In R. v. Montgomery,' a police constable observed men stealing wire by the side of a railway line. They ran away when he approached them. Shortly afterwards the police got them on a nearby road. About an hour and half later the police tracker dog was taken to the base of the telegraph pole and when he had made a few preliminary sniffs he set off and tracked continuously until he stopped in evident perplexity at the spot where the accused had been put into the police car. At the trial it appeared that other evidence against the accused that they had been stealing the wire was inconclusive and that the evidence of the behaviour of the tracker dog was crucial to sustain the conviction. In these circumstances the Court of Criminal Appeal ruled that the evidence of the constable who handled the dog on its tracking and reported the dog’s reaction was properly admitted. The court did not regard its evidence as a species of hearsay but instead the dog was described as “a tracking instrument” and the handler was regarded as reporting the movements of the instrument, in the same way that a constable in traffic case might have reported on the behaviour of his speedometer. It was argued in that case that the tracker dog’s evidence could be likened to the type of

evidence accepted from scientific experts describing ‘chemical, reactions, blood

tests and the actions of bacilli. The comparison does not, however, appear to be

sound because the behaviour of chemicals, blood corpuscles and_ bacilli contains no element of conscious volition or deliberate choice. But dogs are intelligent animals with many thought processes similar to the thought processes of human beings and wherever you have thought processes there is always the risk of error, deception and even self-deception. For these reasons we are of opinion that in the present state of scientific knowledge evidence of dog tracking, even if admissible is not ordinarily of much weight.

1.

1886 NI 160.

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In the present case it is not, however, necessary for us to express any concluded opinion or lay down any general rule with regard to tracker dog evidence or its significance or its admissibility as against the appellant. We shall assume in favour of the appellant that the evidence of P.W. 72 and of the punches with regard to the identification of the appellant by the tracker dog is not admissible. Even on that assumption we are of opinion that the rest of the prosecution evidence namely the confession of the appellant Ex. 130 and the discovery of the spanner conclusively prove the charges of which the appellant

has been convicted.! 3. Utility of tracker dogs in crime detection is on the increase as their use has been yielding profitable clue to crack down culprits in many a crimes. It was once thought that human liberty should not depend upon canine sensibilities due to inherent drawbacks. One of them is the liability to subject the evidence to cross-examination. Another is the possibility of the dog misjudging the smell or mistaking the track. But recent trends show that hounds belonging to certain special breeds sheltered in specialised kennels and imparted with special training are capable of leading investigating agency to very useful clue in crime detection and thereby help detectives to make a breakthrough in investigation. English courts have already started treating such evidence as admissible. In Canada and in Scotland such evidence has become, of late, admissible though

in United States the position is not uniform in different states. The Supreme Court, without reaching any final opinion on the subject, has once observed in Abdul Razak v. State of Maharashtra, AIR 1970 SC 283: (1970) Cri

LJ 373) that dogs are intelligent animals with many thought processes similar to the thought processes of human beings though the evidence relating to tracker dog cannot be likened to the evidence of scientific experts describing chemical reactions, blood tests and the actions of bacilli. It is advantageous to refer to the decision rendered by a learned single Judge of the Bombay High Court in Babu Magbul Shaikh v. State of Maharashtra, 1993 Cri LJ 2808. Learned Judge pointed

out that if the evidence passes tests of scrutiny and reliability as in the case of any other evidence, there is no warrant to treat it as inadmissible. Some guidelines have been laid down in the said decision. The following observations of the learned Judge are useful in this context as reflecting the correct position on the subject: It is scientifically accepted that dogs are rated as extremely intelligent animals

and that some of their sensibilities are very highly developed and are extremely reliable. It is also to be noted that there are some breeds of dogs and some strains which are specially utilised for hunting and tracking because of their abnormally high talents. If the dog belongs to one of these categories and ifit is shown to the court that it has been specially trained for purposes of detection, not only would the dog-tracking evidence be admissible, but it will have to be relied upon as being evidence of a very high calibre.

We are also of the view that evidence relating to movements of tracker dogs to the cannot be rejected as inadmissible and in appropriate cases it is open 1. Abdul Razak Murtaz Dafdar v. State of Maharashtra, AIR 1970 SC 283.

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nds upon the acceptability of court to consider it. Its reliability, of course, depe

witnessed the the testimony of persons who manned the dog and those who

movements and conduct of the animal. except that In this case we do not have any evidence regarding those aspects rely on the police dog reached the house of the accused. We are not disposed to the said item of evidence in the absence of other necessary assurance to convince us of its acceptability. All the same, we count the conduct of the accused in scampering away from

the scene when the police dog was brought to the house of occurrence. We bear in mind that people have a belief that if police dog is brought the culprit would be traced out soon. Accused would not have been in exception to the said general belief. As the accused suddenly slipped away when dog squad arrived at the scene it was specially noticed by the persons present. The said conduct is not consistent with a hypothesis of innocence of the accused.’ 4. Coming to the evidence of the dog pointing out the two accused along with another non-accused, it is very difficult to give any undue importance to such material. It is true that the police has for some time now utilised trained dogs in detecting and investigating crime, but as admitted by P.W. 4 the method is not yet scientifically established. Apart from that, while this unearthly animal with proper training may be able to help the police in unearthing a crime, proper care will have to be taken by the investigating agency not to overdo it to substitute the same as the sole evidence in the trial, by somehow obtaining a confession from the person on whom the dog pounces upon. Good care will have to be taken by the investigating officer to obtain and produce admissible evidence from which independently it is possible to come to the conclusion that the accused has committed the offence. In this case we may point out that the dog jumped upon three persons and not merely two and the third man namely Asar has not even been sent up by the police. Besides, it is not at all certain how by merely scenting the leather sheath discovered at and seized from the place of occurrence the dog jumped at accused Medu. Neither the police officer nor P.W. 4 gives the date of the parade in which the dog Juliana took part, but it appears that an endi chaddar in the wearing of accused Medu was seized by the police at the police station on 10th November. When a person is detected with the help of a dog by scent identification, sufficient safeguard will have to be taken by the police to ward off suspicion against manipulation. It will be good to remember that investigation has also to be fair as well as efficient. The investigating agency will have to keep in mind that the dramatic effect of the dog jumping at the accused may not always carry the day, although it will immensely help them in their investigation and the procedure is worth of encouragement, not only by resorting to it but also by improving upon it. At any rate the canine part of the material of the squad is too indefinite and insecure and cannot have the status

of evidence in the case.”

1. Bhadran v. State of Kerala, 1995 Cri L] 677. 2. Medu Sekh v. State, 1972 Cri L] 362.

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5. One of the main contentions advanced by the learned counsel is that the evidence pertaining to the sniffer dog is so fragile that no adverse inference could be drawn against the appellant on the strength of the said evidence. PW-8 is the police constable who deployed the police dog “Raja” for the purpose of tracking down the culprits of this murder. PW-8 said that police dog was brought to the place of occurrence on 15-4-1993 and that dog after smelling the blood, bloodstained handkerchief, a knife and a belt which were strewn on the floor near the dead body, began its pursuit in search of the hideout of the culprits or where the body was stashed away. The track which the terrier followed thereafter has been narrated by PW-8 in his evidence. The termini of the track was the house of the appellant. The uncanny smelling power of canine species has been profitably tapped by investigating agencies to track the culprits. Trained dogs can pick up scent from the scene of any object and trace out the routes through which the culprits would have gone to reach their hideouts. Developing countries have utilized such sniffer dogs in a large measure. In India also the utilization of such tracker dogs is on the increase. Though such dogs may be useful to the investigating officers, can their movements be of any help to the court in evaluating the evidence in criminal cases? A four-fold criticism is advanced against the reception of such evidence. First is, it is not possible to test the correctness of the canine movements through the

normal method available in criminal cases, i.e. in cross-examination. Second is that the life and liberty of human beings should not be made to depend on animal sensibilities. Third is that the possibility of a dog misjudging the smell or mistaking the track cannot be ruled out, or many a times such mistakes have happened. Fourth is that even today the science has not finally pronounced about the accuracy of canine tracking. There are basically three kinds of police dogs—the tracker dogs, the patrol dogs and sniffer dogs. Recent trends show that hounds belonging to certain special breeds sheltered in specialised kennels and imparted with special training are capable of leading investigating agency to very useful clue in crime detection and thereby help detectives to make a breakthrough in investigation. English courts have already started treating such evidence as admissible. In Canada and in Scotland such evidence has become, of late, admissible though in United States the position is not uniform in different States. The weakness of the evidence based on tacker dogs has been dealt with in an article “Police and Security Dogs”. The possibility of error on the part of the dog or its master is the first among them. The possibility of misunderstanding between the dog and its master is close to its heels. The possibility of a misrepresentation or a wrong inference from the behaviour of the dog could not

be ruled out. The last, but not the least, is the fact that from a scientific point of

view, there is little knowledge and much uncertainty as to the precise faculties which enable police dogs to track and identify criminals. Police dogs engage in these actions by virtue of instincts and also by the training imparted to them.

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the evidence

d. relating to sniffer dogs movement have been teste

rashtra, AIR 1970 SC 283: (1970 In Abdul Razak Murtaza Dafadar v. State of Maha d

to express any conclude Cri L] 373) a three Judge Bench of this court declined er dog’s evidence or opinion or to lay down any general rule with regard to track y to do so on the fact its admissibility against the accused, as it was not necessar observations on the situation. However, their Lordships made the following usefulness or otherwise of such evidence (Para 11):

the type of It was argued that the tracker dog’s evidence could be likened to evidence accepted from scientific experts describing chemical reactions, blood tests and the actions of bacilli. The comparison does not, however, appear to be sound because the behaviour of chemicals, blood corpuscles and bacilli contains no element of conscious volition or deliberate choice. But dogs are intelligent animals with many thought process similar to the thought processes of human beings and wherever you have thought processes there is always the risk of error, deception and even self-deception. For these reasons we are of the opinion that in the present state of scientific knowledge evidence of dog tracking, even if admissible, is not ae ordinarily of much weight.

In Surinder Pal Jain v. Delhi Administration, 1993 Supple (3) SCC 681: (1993

AIR SCW 1561: AIR 1993 SC 1723: 1993 Cri LJ 1871) a two Judge Bench expressed the opinion that “the pointing out by the dogs could as well lead toa misguided suspicion that the appellant had committed the crime, so their Lordships sidelined that item of evidence from consideration. We are of the view that criminal courts need not bother much about the evidence based on sniffer dogs due to the inherent frailities adumbrated above, although we cannot disapprove the investigating agency employing such sniffer dogs for helping the investigation to track down criminals. Investigating exercises can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill afford them.! 2.7.7 Detective Dyes—Trap Evidence

1. This is a case in which the police resorted to the technique of anthracene powder and ultraviolet rays. According to the prosecution, anthracene powder was applied to the currency notes and was found on the hands of the appellant. This circumstance is sought to be used to prove that the appellant had received the notes. When the prosecution wants to prove the presence of anthracene powder on the hands of the appellant, it is the duty of the prosecution to prove by means of expert evidence or books on science the nature of anthracene powder, the manner in which its presence can be detected and the tests to be applied for the purpose. The tests must be such that if after they are applied and the results are positive, the positive results lead to one and only one conclusion, namely the finding of anthracene powder. It is for the prosecution to prove that positive results are a conclusive proof of the finding of anthracene powder. This is a 1. Gade Lakshmi Mangraju v. State, 2001 Cri LJ 3317 (SC).

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matter on which experts should give evidence. The prosecution can also rely on books of science. In this case, the prosecution has not led any evidence of this type as to the nature of anthracene powder and the means of detecting presence of anthracene

powder. It is true that ultraviolet lamp was used, but there is no evidence as to

the result to be expected when ultraviolet rays are applied. The complainant has merely deposed that when Vithaldas gave Rs. 100 in 10 notes of Rs. 10 each to the complainant, powder was applied and the Jamadar put them in his pocket. He does not speak of any demonstration being given at that time. According to this witness, when the police party arrived at the house of the appellant, the Saheb asked the accused about the money and then applied light to his hands and the witness saw the powder which was shiny and greenish. As regards the Jhaba, the complainant merely says that the Jamadar held the Jhaba in his hands and looked inside the pocket. The complainant does not say that he noticed anything on the Jhaba. The complainant’s brother Karkandia has deposed that at the Society the Jamadar applied something to the notes and said that it was powder. The witness does not speak of any demonstration or experiment having been made. He was only told that powder had been applied. He deposed that the hands of the appellant were examined but did not say what the result of that examination was. He does not speak of the alleged examination of the Jhaba under ultraviolet light. According to the Panch Kanchanlal when the first panchnama was made, powder was applied to the 10 notes which were put in the pocket of Kadva. He does not speak of any demonstration or experiment having been made. According to the witness, when the Saheb saw the hands of the appellant with the lamp, they had something like powder marks. When the Jhaba was examined powder like marks were also seen in the pocket. According to the Panch Jamnadas, when the police officer applied powder to the notes, he showed them to the witness in the light of ultraviolet lamp. The witness found some stains and some slight change of colour. The stains were neither bright nor faint. When the hands of the appellant were seen in the light of the ultraviolet lamp he saw stains on his hands of the type which he had seen on the notes. When he saw the Jhaba in the

light of the lamp he saw stains in the pocket of the Jhaba. It is, therefore, not clear from the evidence of these witnesses as to whether they understood the method of detection of anthracene powder. One witness speaks of marks of powder, another witness speaks of powder like marks, a third witness speaks of change of colour and the fourth speaks of greenish shining. Head constable Jaswantsingh, who is supposed to know something more about the powder and the means of detecting it has not been examined. Nor has any expert witness deposed that when such stains or shining are noticed in the light of ultraviolet lamp, that is a sure indication of the presence of anthracene powder or that at least makes the presence of anthracene; powder

highly probable. The prosecution must lead positive evidence by way of expert evidence or books of science to prove the sure method of detection of anthracene powder, the nature of the test to be applied, the result to be ‘expected and whether a layman can detect anthracene powder when such test is applied. The

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result, it ust also prove that if the test lead to a positive and nothing else. It is conclusively proves the presence of anthracene powder the complainant and difficult to believe that in this case illiterate persons like ts on this his brother and Panchas who were laymen and not at all exper the appellant question were able to detect anthracene powder on the hands of expert in and on his Jhaba. Even the police inspector does not claim to be an detecting anthracene powder. Head constable Jaswantsingh has not been prosecution

examined.

m

In these circumstances,

it would

not be correct to hold

that the

prosecution has succeeded in proving the presence of anthracene powder on the hands of the appellant or in the pocket of the Jhaba. In the present case, we hold that the prosecution has failed to prove beyond reasonable doubt the presence of

anthracene powder.' 2. We now move to the critical phase. On August 6, 1965, P.W. 1 goes to the

office of the accused to get clearance of 2 finished bundles of cables. The demand for money is repeated but by this time P.W. 1 acquires skill in courtship and bargains for a smaller sum of Rs. 50. Whereupon the accused signs the challan for the deposit of the excise duty on these finished products (vide Ex. P-4). The bribe, according to the understanding, is fixed to be paid next day in the afternoon. At this stage, P.W. 1 changes his mind and discloses his bosom to the S.P.E. officers the next morning at Kotah House (Ex. P-5). The Deputy Superintendent of Police, P.W. 7 swings into action with professional proficiency. Two officials, P-W. 3 and P.W. 4, from two different offices, are fixed

up to witness dramatised,

the search,

the programme

of trapping

the signal and other details worked

is finalised

out, the 5 currency

and notes

making up Rs. 50 smeared with phenolphthalein powder and the visible chemical reaction when even small particles thereof are dipped in sodium carbonate solution demonstrated. The ‘raiding party’ troops out after these preliminary operations are put down in Ex. P-6.

Now the scene shifts to the factory. The accused arrives, Coca Cola is served, the treacherous notes are passed and put into his gullible pockets by the unsuspecting accused, and then the sequence of rap on the door, the police presence, the surrender by the startled appellant of the tell-tale currency, his haridkerchief and inner lining of the trousers pocket betray him when dipped in alkaline solution and the game is up. Such is the prosecution version substantially testified to by the witness. The inexorable course of the law takes the accused to the special judge who convicts him, the High Court affirms the guilt but reduces the sentence to one year’s imprisonment. We are certainly inclined not to swallow the evidence of P.W. 7 and 8 without scrutiny but after having heard the appellant at length, we are prepared to agree with the High Court that the evidence of P.Ws. 7 and 8 are substantially correct. Even here, we must underscore the importance of the findings of the trap experiment, since they go a long way to underwrite the veracity of the prosecution story.

1. Ram Singh Badhar Singh v. State of Gujarat, 1960 Cri LJ 1207.

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Yet, the contentions have been ingeniously and hopefully presented. The basic attack has been on the morally murky mechanism of criminal trap. Who has not—our legends say even rishis have—succumbed to attractive temptation in loneliness laid? And courts have frowned upon evidence procured by such

experiments since the participants are underscrupulous and the victims are caught are traps and traps. Where you intercept stream by setting an invisible contraption,

prone to be over-anxious and morally unawares. Even so, there the natural course of the corrupt its ethics is above board. On the

contrary to test the moral fibre of an officer whose reputation is suspect, if you lay a crime ‘mine’ which explodes when he, in a weak moment, walks on if the whose scheme is tainted. Of course, our social milieu is so vitiated by a superstitious belief that any official can be activised by illegal gratification, so confidential is the technique of give and take in which the white collar offender is adapt and so tough is the forensic problem of proof beyond reasonable doubt by good testimony in this area that the only hope of tracking down the tricky officer is by laying traps and creating statutory presumptions. Even Kautilya has stated that— just as fish moving under water cannot possibly be found out either as drinking or not drinking water so government servants cannot be found out while taking money.

Ex-cathedra condemnation of all traps and associate witnesses is neither pragmatic nor just, nor is it fair to denounce all public servants indiscriminately. Judicial attitudes have to be discriminating, as has happened in this case. The High Court has, after careful study, chosen to accept the bona fides of the trap and its author Bishnoi’ a senior police official of the S.P.E. (P.W.D.). We cannot accede to the theory that the trapping of corrupt official in the usual course, is a polluted procedure.!

3. It is necessary for the investigating agency to preserve the solution used for the experiment as regards detection of phenolphthalein powder on the person of the accused or on his clothes or on anything that he has touched. In case of failure or omission of the investigating agency to preserve such solution, it is open to the court to raise an inference adverse to the prosecution at the trial, depending upon the facts and circumstances of each case, and to determine upon the impact of that inference on the other evidence before it.? The need for preservation of the solution when turns pink cannot be overemphasized. It is a corroborative piece of evidence and the prosecution by resorting to a scientific method seeks to bring into existence a piece of evidence which is corroborative in nature. In fairness, therefore, the prosecution as well as the investigating agency are required to preserve this solution. Even the investigating agency in order to be fair to the accused should see that this solution is kept in a duly sealed bottle and preserved so that whenever its 1. Som Parkash v. Delhi Administration, 1974 Cri LJ 784 (SC). 2. AIR 1976 SC 91.

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ced. It would be production before the court is necessary, the same can be produ to sending the worthwhile to get the solution analysed chemically prior whether it chargesheet with a view to get the opinion of the chemical analyser some other contained sodium bicarbonate and phenolphthalein powder or chemical substance. Investigating agency cannot have the choice of destroying this solution with impunity. In fact, it may well be said that by destroying this solution, the investigating agency is destroying a relevant piece of evidence. To this extent, it can be said that the investigating agency has been unfair to the public servant who has been trapped. It could not be contended that once the solution is required by the defence before the court and the investigating agency declares that it did not preserve it. The court must shut its eyes, close its mind to all the evidence on record and must acquit the accused irrespective of the quality of evidence on record led against him. The correct approach in such circumstances would be to lay down the proposition so well-known and so often applied to appreciation of the court, on account of non-preservation of such solution and non-production of any other evidence as to its character as found after its analysis after the trap, may raise an adverse inference against the prosecution and may as well come to the conclusion that it would be hazardous to convict the accused in the particular circumstances of the case before it. Held, that in the instant case the solution was destroyed not on account of any dishonesty on the part of investigating agency but on account of a direction issued by the head of the department. Therefore, the observation in the case should not have impact one way or the other on cases pending before courts.! 4. The appellant was a Survey Amin in the Settlement Department in circle Amer, District Jaipur at the relevant time. One Kushlaram P.W. 1 asked him to survey his land and demarcate it into separate holdings for himself and his six brothers. The appellant demanded Rs. 100 as bribe for doing the job. The bargain was settled at Rs. 50 which also Kushlaram was not prepared to pay. He approached the Anti-Corruption Department upon which a trap was laid on 28-12-1970

in Nawlakha

Bagh,

Amer

where

the land

of Kushlaram

was

situated. He produced five currency notes each of Rs. 10 before the Deputy Superintendent of Police Ram Singh to which phenolphthalein powder was applied. When the accused went to the field of Kushlaram and began his survey, he demanded the amount, Kushlaram then, paid him five currency notes which the accused placed inside the pocket of his coat. From the field Kushlarann and the witnesses Moolchand, Motilal and Ramnarain went to the

hotel of Ganesh and took tea. When the accused started from there on bicycle, a pre-arranged signal was given by Kushlaram and the police party headed by the Deputy Superintendent of Police came and stopped the accused. He was asked to produce the money pocketed by him, but the accused denied to have accepted any money. Search of his person was taken and from his pocket the 1. Rameshchandra Tukaram Palekar v. State of Gujarat, 1980 Cri L]J NOC 9: AIR 1980 Guj 1.

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aforesaid currency notes were recovered. The hands of the accused were washed and the pink colour of the water showed that his hands had been soiled with the phenolphthalein powder. The pocket of the coat was also washed and the water thereof also turned into pink colour.

The plea of the accused was that when he was surveying the field, he was accompanied by Kanhaiyalal D.W. 1 and Kalicharan D.W. 2 Kushlaram wanted him to show six holdings of the field and offered him money which he did not accept and returned the amount and it was how his hands were soiled with the powder, Kushlaram went away. Meanwhile the appellant gave his coat to Kalicharan. Kalicharan went to take tea with the coat. Kushlaram met him there. Kalicharan returned the coat to the accused who put on the same as usual and it was then that the police party arrived and the money was recovered from the pocket of his coat. The substance of the plea therefore, is that the money was planted in his pocket without his knowledge.'

C48H

1. Madan Lal v. State of Rajathan, 1976 Cri LJ 1485.

Chapter 3

FORENSIC PSYCHOLOGY SYNOPSIS 3.1 3.2 3.2.1

DEFINITION IMPORTANCE Psychosomatic subtle changes

3.2.2 Brain activity 3.3 NATURE 3.4 CLASSIFICATION 3.4.1

Clinical Forensic Psychology

3.4.2 Experimental Forensic Psychology 3.4.3 Statistical Forensic Psychology 3.4.4 Forensic Psychotherapy 3.4.5

Forensic Psychological Consultancy

3.5 PROBLEMS 3.6 COLLECTION OF EVIDENCE 3.6.1

Case History Studies

3.6.2 Observations 3.6.3 Interviews and Interrogations 3.6.4

Experimental Approach

3.7 PSYCHOLOGY IN INTERROGATION 3.7.1

Psycho-physiological Detection of Deception (PDD)

3.7.2 Scientific Basis 3.7.3 Method 180

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Relevant- Irrelevant Question Technique (RIQ)

3.7.3.2

Peak of Tension Technique (POT)

3.7.3.3

Controlled Question Technique

3.7.4

Operational Environment

3.7.4.1

The Examiner

3.7.4.2

The Subject

3.7.4.3

Interrogation Room

3.7.4.4

Subject’s Rights

3.7.5 Application and Utility 3.7.6

Limitations

3.7.7

Criticism, Rebuttal

3.7.8

Legal Status

3.8 RECENT ADVANCES IN DETECTION OF DECEPTION 3.8.1

New Input Devices

3.8.2

Non-Invasive Sensors/Transducers

3.8.3

Psychological Stress Evaluator

3.9 HYPNOSIS 3.10 TRUTH SERUM 3.11

BRAIN PRINTING

3.11.1

Importance

3.11.2

Process

3.12 CASE LAW 3.12.1

Lie Detector Evidence

3.12.2

Insanity as Defence

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FORENSIC PSYCHOLOGY 3.1 DEFINITION Forensic psychology is the body of the scientific knowledge in applied psychology, utilised for decisions in legal matters before a court of law. It may be used at the pre-trial stage, during trial or at post trial stages. It may be used for

investigation, collection of evidence, for evaluation of the suspect or the victim

for quantum of responsibility of the subject or other involved persons or of the circumstances and to ascertain the correct cause of occurrence and the handling of the situation. The American Board of Forensic Psychology has defined forensic psychology as below: Forensic Psychology shall mean the application of the science and profession of psychology in relation to questions and issues to law and legal systems. Forensic Psychologist is one who is trained in psychology and involves himself in courts matters as an expert in Forensic Psychology to assist the court to assess the personalities of the persons involved and to evaluate the occurrence accordingly. The terms ‘Forensic Psychology’ and ‘Forensic Psychiatry’ are often used inter-changeably. They are two distinct disciplines. Forensic psychiatry deals with medical problems relating to mental abnormality. The psychiatrist is some times called to give evidence whether the accused person, who has taken insanity as a defence is really insane. Or, whether he is shamming insanity. Besides, in some cases a man with mental abnormality may have committed a crime — can criminal responsibility be attributed to that person? The psychiatrist in such cases has to appear in courts. Hence the terms: Forensic Psychiatry and Forensic Psychiatrist. Forensic psychology does not deal with the medical problems of the mental aberrations. It is concerned with the thought processes and the intentions of the persons involved and also their effects on the body— the psychosomatic manifestations. In some cases, a forensic psychologist is also called to assess mental abnormality but in such cases a psychiatrist should also be consulted. Ordinarily, the Forensic Psychiatrist has his basic education in

medicine and the Forensic Psychologist has his basic education in psychology.

3.2 IMPORTANCE Forensic psychology is comparatively a new comer in the field of criminal justice system. However, due to its wide applications in the dissemination of justice in its correct perspective, its use in the processes of law is increasing rapidly. The major areas involve all laws: criminal, civil and family and juvenile

laws. It helps the social system to deal with social deviance and implement social control. In earthly terms Forensic Psychology is proving useful to the criminal justice system in the following ways. 1. Whether the accused person is capable of under-going the trial, or he is mentally so deficient that he does not understand the nature and the meaning of the proceedings. Or, whether the subject is unable to plead his case, or to waive his right to defend himself. 182°

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Whether the person is feigning insanity to avoid responsibility for the crime he has committed or is he really insane. Whether the claim of insanity of the accused person in the given situation of the occurrence is real or, as the forensic psychologist often finds, is exaggerated. A forensic psychologist can evaluate and help the court to decide whether the person under-going trial should be treated as an adult or as a juvenile, as per his mental and emotional development, at the time of committing the crime, or at the time of trial. The Forensic Psychologist can help the court to decide about the quantum of punishment to meet the ends of justice on the one hand and the welfare of the society on the other. What should be the best punishment in a given case? The court often has to decide whether the person under trial should be sent on probation; or, should he be sent to

prison. The evaluation of the psychologist helps.

Juvenile courts often need a brief on the personality of the delinquent so that they can choose the correct sentence — alternative to imprisonment: probation, or psychotherapy, to make him a useful citizen without endangering the society at large. The forensic psychologist, after evaluation provides the brief. . Forensic psychology is playing an increasingly important role in the determination of competency of a person for:

¢ Guardianship of a ward e Citizenship to an immigrant ¢ Making a Will, Contract, Conveyance Deed, etc. e Marriage

¢ Suitability for employment, especially in sensitive organisations. ¢ Admission to prestigious institutions ¢ Impairment or disability assessment for compensation e Placement or promotions Forensic psychology is extensively being utilised for developing the profile of a criminal from the following:

¢ Psycho-linguistic analysis ¢ Behaviour at the crime scene ¢ Treatment of the victim(s)

Vandalism at the scene The science is being used to ascertain whether the given person is a drug addict or has a tendency to become one. 10. The science is being used to cure drunkards or drug addicts and to bring them to normalcy.

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g utilised in the . Forensic psychology is most importantly bein and witnesses for interrogations of the culprits (suspects), victims information finding out the truth about the occurrence and background about the crime. been utilising forensic The investigators, the counsels and the judges have without a name. psychology in the past also. But it was in a primitive way and ction to Ordinarily it was based on body signs due to psychosomatic intera —are: create emotions in the subject under interrogation. These emotions Fear Anger

Greed Ego

Love/hate Fanaticism/religious fervour Duty—towards family, community, society, nation Happiness

Courage Human values Disgust, sadness

Compassion The body signs which were (are) being studied by the interrogators are: Facial changes. If the subject were frightened, his face would turn ashen. If the subject becomes angry, his face would redden. “ Lost colour”, “red faced” are the phrases often used in such cases respectively.

Contortion of the facial features would take place if the subject were under great mental conflict. Lips, nose, cheeks, forehead often distort.

Eyes may start watering (weeping), or they may become “bloodshot”. The subject perspires.

He stutters while answering the questions. He shifts eyes.

He fidgets, shifts his body position frequently. He scratches various body parts. His mouth goes dry, takes frequent sips of water, if made available. He takes longer time to answer questions, or stops answering questions altogether. He may break down, may start weeping, laughing, abusing, quarrelling. He goes hysterical.

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3.2.1 Psychosomatic subtle changes In recent times, however, expert help has come up in a big way. They are utilising the invisible psychosomatic subtle changes in the body of the subject. The changes utilised are in: ¢ Blood pressure ¢ Respiration rate

e Pulse rate ¢ Electrical resistance of skin ¢ Subsonic vibrations of the vocal cord e Brain activity These psychosomatic subtle changes have been and are being utilised extensively in the interrogation work through various modes: ¢ Polygraph- Lie Detector

e Psychological Stress Evaluator ¢ Brain printing 3.2.2 Brain activity It was not exploited directly previously. However, tremendous research work

is going on. In fact it is the brain which invents false answers through its reasoning. If this reasoning by the brain can be stopped, truthful answers can be obtained. This has been achieved through: ¢ Narcotic drugs ¢ Hypnosis.

¢ Brain Printing, a new investigative mode has also come up. It is yet in the melting pot. It is hoped it will be exploited extensively in the coming times. The brain printing utilises the fact that the brain has the complete information stored. When some object or incident relating to crime is shown to him, his brain recognises the same. The recognition is recorded from the brain activity.

3.3 NATURE Forensic psychology, as already seen, is the application of psychology in the dissemination of justice. Psychology in itself means the study of human behaviour, a person’s thought processes, his intentions, his attitudes toward his fellow-beings, towards life and his concepts of right and wrong and his thinking about his duties towards the society and vice versa. Above all, what he thinks of himself is important. 3.4 CLASSIFICATION For purposes of its use in the dissemination of justice, forensic psychology processes are divided into the following classes: 1. Clinical 2. Experimental

3. Statistical

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4. Psycho-therapy

5. Consultancy

3.4.1 Clinical Forensic Psychology

:

|

Clinical forensic psychology involves entering into a personal relationship with the subject being studied by the forensic psychologist so that the subject can be evaluated in all the aspects. In short, it is subject-centred. The clinical approach often develops into a personal relationship, which may raise some . ethical problems sometimes. The clinical approach evaluates the subject in its entirety: environmental influence, educational contributions, marital influence and family background. In a case of killing of an intruder, the husband claimed that he killed the intruder because the fellow had assaulted his wife. The wife claimed that her husband was not at home and the intruder had entered the house and did not leave the house in spite of her warning him a number of times. As he threatened to overpower her, she in self-defence shot at him and killed him. The court called in a forensic psychologist to resolve the issue. It appeared that the husband was really not present at the scene at the time of occurrence. The case was adjudged as a case of killing in self-defence. It ended in acquittal. (CH) The maximum use of clinical psychology is in road accident cases where damages are claimed for possibly non-existing injuries or trauma. Clinical psychology has also assisted in allegedly false rape cases. A young lady approached the police that someone was pestering her through obscene calls. The police checked all the incoming calls for a number of days but there were no such calls. When she persisted in her complaints, she was got checked from a psychologist who concluded that there were no such calls. She was

told accordingly and asked to stop pestering the police. (CH) Rash drivers who are prosecuted may sometimes seek the help of a forensic psychologist to establish mitigating circumstances for the cause of the accident. Clinical forensic psychology has also proved useful in cases of nervous victims or witnesses. Hypnosis has been successfully employed in some cases. A sex criminal attacked two girls. The girls offered resistance. In the fight he killed one of the girls and raped the other. The girl was so frightened that when the police would start interviewing her about the assailant she would swoon. Ultimately it was decided to put her under hypnosis for interrogation. The girl

not only gave complete description of the culprit but also informed the police that

she had seen him, more than once, before the occurrence also. The police was sure that the culprit was a local person. They also reconstructed the photograph (photofit method). When the girl was shown the photograph she swooned again,

confirming thereby his identity. (CH)

3.4.2 Experimental Forensic Psychology Experimental forensic psychology has become a convenient handmaiden in

the dissemination of justice. It can analyse, explain and predict the facts in such definite terms that it is simply amazing. It is helpful to solve many types of legal

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problems whether they are criminal or civil in nature. It can be judged from the following illustrative situations where experimental psychology has served the cause of justice: In a case of an accident due to rash driving it was essential to check the truthfulness of a person who gave the evidence that he could read the registration number of the offending vehicle. The witness was asked to note the number of a running vehicle at a particular speed from the distance given by the witness, undér the lighting conditions of the incident at the spot where the accident had occurred. He could not read the number. (CH) Whether a plea for diminished responsibility can be accepted for a given reason beyond the control of the accused person can also be ascertained by experimental psychology. In a case the accused alleged that the accident has been caused because he had taken some medicine. The accused was given the same dose of the medicine, which had caused the accident without his knowledge. The person was observed to see if the drug has adversely affected his faculties and thus could have caused the incident. The medicine did not affect the accused. (CH) Experimental data may be needed in certain claim cases to ascertain the validity or otherwise of the claim.

In a case of death of a worker due to an accident in the factory, the management claimed that the accident was due to negligence of the worker. The relatives of the worker, on the other hand, claimed lack of adequate safety measures. Previous records were checked. New experimental data was generated. It was found that the machines did need additional safety measures. The management had to pay appropriate compensation. (CH)

Ordinarily, the experimental work should be conducted at the site of the incident, simulating the conditions of the incident. But sometimes the experiments have to conduct in the laboratory or where the subject is housed, including the jail rooms or at the premises of the jail. As long as the subject and the authorities are willing to cooperate, the site of the experiments poses no serious problems. Experimental forensic psychology has been extensively utilised to establish corpus delicti and the identity of the culprit. 3.4.3 Statistical Forensic Psychology

Evaluations of statistical data of forensic importance relating to! forensic psychological studies of a subject have always been important and have been utilised extensively over the years. The main sources for the data are: 1. The personal history of the subject in its entirety, especially relating to psychological aspects, is important. The data is obtained from the members of the family, friends of the subject, his schoolmates, schoolteachers and colleagues. If he is a member of a club, the staff and

the members of the club may also be in a position to provide necessary

data.

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data about the 2. Writings and spoken words often provide useful refined personality of the writer/speaker. Some research workers havenality of the technique to a degree that they are able to indicate the perso ce has been the subject from, these studies alone. The branch of the scien named as Psycholinguistics. 3. Interviews and interrogations are the main stay of statistical data. It is more reliable also, as the scientist himself is collecting it. Tools and ‘ techniques of interrogation are legion. Experimental data in some cases is indispensable to generate adequate

statistical database. It must be understood that statistical data has been misused

in the past. It can be misused in the future also. Besides, statistics gives probabilities only, which are not understood by some courts.

3.4.4 Forensic Psychotherapy

Forensic psychotherapy has come up in a big way as help in criminal justice system. As the very name indicates it means treatment to the offenders, victims or even to the witnesses to further the cause of justice. It takes many forms: 1. Culprits, victims or witnesses who are dazed, may need psychotherapy to normalise them. 2. Some accused persons are emotionally so upset that they are not in a position to stand trial. Psychotherapy stabilises them and thus enables them to stand trial. 3. Psychotherapy helps victims and witnesses to remember details of the occurrence, which they have forgotten. 4. Psychotherapy allows assessment whether a person is telling truth or lies. The treatment can convert a liar into a truthful person.

5. Psychotherapy has been extensively utilised in treatment of offenders, especially of juvenile delinquents, first offenders and all those who have been assessed to be amenable to psychotherapy. 6. Psychotherapy is assuming great importance and is being introduced in the jail for their inmates to make them useful citizen after their release from the jails.

3.4.5 Forensic Psychological Consultancy Forensic psychologist, as consultant, is playing an increasingly important role in the dissemination of justice. He is being consulted by:

!. Courts, about the danger potential of a criminal to the society, about the personalized punishment to the offender, in order to inflict: minimum damage to his personality and hence to the society, yet the justice is also done to the society at large. 2. Advocates, for their clients to find out if:

* The client is fit to stand trial or not * The plea of temporary insanity at the time of commission of crime, can be taken or not

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e If the mental age of the offender can be proved to be such that punishment, alternative to imprisonment, could be pleaded. e

If the provocation of the victim, beyond tolerance limit, could be

shown in the defence plea. The need for consultancy in family problems is becoming more pressing, especially relating to the custody of the child. Whether the custody of the father or the mother or of a third party would be in the interest of the child, often calls for the opinion of a forensic psychologist. This is especially so when both the parents or either of them have unsociable or criminal tendencies. The services of forensic psychologists are being utilised increasingly in handling and rehabilitation of the prisoners. Their services are becoming indispensable in cases of juvenile delinquents, to determine the patterns of punishment and treatment to normalise their psychological and _ social personalities. The psychological treatment is also increasingly envisaged for the impulsive criminal.

3.5 PROBLEMS Forensic psychology is expanding its field of application in all aspects of criminal justice system, with the passage of time. It is being utilised currently to provide answers to the following types of problems: 1. Can criminal responsibility be ascribed to the subject? 2. Is the subject competent to stand trial, wave his constitutional rights or execute a contract or a will, in view of the alleged malfunctioning of the brain? 3. Can the psychologically incompetent subject be made competent by psychotherapy to perform his legal obligation? . Does the subject suffer from a brain injury? If so, to what extent? or. Was the subject, at the time of the commission of crime insane or dazed, temporarily, due to emotional break down, influence of drugs or liquors or due to physical injury, to claim diminished responsibility? 6. Is the subject suffering from amnesia? If so, what is its nature and the extent? Or is he shamming amnesia to avoid criminal responsibility? 7. Does the subject have criminal tendencies? Has he committed crime(s) previously? 8. Has the employee committed crime? Is he likely to commit crime again? 9. Can recidivism be prevented in the given individual? 10. Is it possible to remove the stigma of imprisonment from the mind of the subject? 11. What should be appropriate punishment to the subject, especially if he happens to be new to the crime and is also a young person? Imprisonment?

Fine?

Suspended

sentence?

Probation?

Or,

can

psychotherapy replace punishment? 12. Is psychotherapy useful to prisoners? To all? Or, to which person or types of persons?

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due to his quicker _ Should the given juvenile subject be treated as adult or vice versa? mental, physical and emotional development, _ Did the subject make true or false confession?

telling the truth? _ Are the victim(s), culprit(s) and the witnesses

Does the subject have suicidal tendencies? ne or Are the alleged obscene communications or the phone calls genui phony? Is the mental aberration of the subject sufficiently acute to warrant his dispatch to a mental asylum? Does the repeated violence of husband and wife inter se indicate marital incompatibility? 20. How can the interests of the child be served best, by giving the custody of the child to mother or to father; or, to a third party?

In addition, forensic psychology can give: :. Identification basis of a subject 2. The extent of loss of earning due to incapacitation Capacity to earn after the injury Identification of the schizophrenic (or the like) persons osBuilding personality picture of the subject from his writings (psycholinguistics), action and behaviour while committing the crime; or, from

the modus operandi.

3.6 COLLECTION OF EVIDENCE Forensic psychological evidence is collected from the following sources: . . . .

Case history studies Covert and overt observations Interviews and interrogations Experimentation

. Research 3.6.1 Case History Studies

In all psychological evaluations case history study forms the first step towards the goal. This involves the study of the behaviour of the subject in the past for as long a period as possible along with his current behaviour towards all concerned. The sources for the information are mainly: ¥ The family: parents, brothers and _ sisters, husband/wife, sons, daughters and relatives living with the family or visiting the family frequently. 2. Family friends who know the family and the subject intimately. 3. School and collegemates and other friends of the subject. - Partners, colleagues, superiors and subordinates who come in contact frequently with the subject.

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5. Club members and its staff, if the subject is a member of the club. 6. Contribution and behaviour of the subject in governmental or nongovernmental organisations including clubs, if he is a member of the organisations. Case studies provides a wealth of information about the behaviour and personality of the subject if the studies are carried out meticulously.

3.6.2 Observations The case histories of the subject(s) are highly valued in the total evaluations. They are not often complete or truthful because of the biased information sometimes being given by the interviewees intentionally or otherwise. Besides, the information is given by such persons who are not professional observers. Consequently they often miss important details essential to build a correct psycho-portrait of the subject. Observations by the forensic psychologist are, therefore, essential. The observations are made in all aspects of the subject's life: at home, in the office, in the social dealings, execution of business, religious

leanings, etc. The observation should be spread over a period consistent with the need of the case and the limitations imposed by the court and the counsel vis-a-vis time and expenditure factors. The psycho-personality portrait should be as complete as possible.

3.6.3 Interviews and Interrogations Interviews and interrogations form the backbone of psycho-diagnostics. Case studies are good but the available details are often few and their trustworthiness doubtful. Likewise observations are good source of information but they are time-consuming and in actual fieldwork. They are not practical due to the demand for early reports. Interviews and interrogations consume less time and | in competent hands they can work wonders.

The ability of the psychologist lies in winning the confidence of the subject and knowing what ticks him and what ticked him to a particular action. This is possible only if the psychologist is able to establish a personal rapport with the subject by instilling in his mind that the interviewer is with him and whatever he is doing is for his benefit. Once this rapport is achieved the subject opens up and provides all the data to reconstruct his psycho-personality to give answers to various questions like why? What for? When? Who? Where? How? Etc. The interviews are conducted in special rooms (clinics) ideally. The room has

to be free of all sorts of distractions. No other person other than the psychologist and the subject should be present in the room. If the dialogue is to be recorded, it should be done covertly. Sometimes makeshift arrangement has to be made when the subject is in jail or in a hospital. Even in the situations the principle of privacy must be observed. Some psychologists carry their own tents with them to the sites, others requisition them at the site, and still others obtain some room,

on request, from the authorities of the institutions.

The interviews are conducted in a relaxed atmosphere and the time period of the interview is not long to cause fatigue or depression. Often more than one interview is needed to reach the inner reaches of the subject.

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background The interviewing is facilitated if the psychologist has the sitated the knowledge of the subject and the incident, which has neces d procure psychological appraisal. Whenever possible the psychologist shoul the information before initiating interviews. 3.6.4 Experimental Approach

.

Among the various approach in Forensic psychology, experimental approach provides the most convincing evidence, if the experiments are performed properly and demonstrated effectively. The first-ever-case of experimental psychology saved a train driver from conviction in a case of train accident. The charge was that the driver failed to stop the train in time and thus caused the death of the victim. Forensic psychologist showed experimentally that the response time in this case was short and the driver could not stop the train given the same speed and distance to stop. The judge appreciated the experiment and acquitted the driver. (CH)

The experimental work has to be adopted according to the nature of the case and the evidence. The following examples illustrate the nature and effectiveness of experimental approach. 1. Ina case of road accident the claimant alleged that he could not use his left leg. An experiment was organized covertly. While he was limping on the road, a cracker was exploded behind his back. The claimant thinking it an explosion of a bomb ran fast. The act of running was videographed (covertly). The video

show finished the claimant's claim. (CH) 2. An airman was charged for his acts of omission and commission. He claimed temporary insanity due to influence of drinking. He was made to drink the same quantity of same illicit liquor in the same interval. Not only he became drunk, but he was violent also. In addition his condition deteriorated so much that he had to be hospitalised for considerable period. On the affidavits of the witnesses who saw him drink and his behaviour, the charge against him was withdrawn. (CH)

3.7 PSYCHOLOGY IN INTERROGATION The most conspicuous use of Forensic Psychology has been in the field of detection of deception, commonly known as Lie Detection. Forensic psychology has come in a big way to get at the truth in a number of ways. The following modes are being refined increasingly. 1. Psycho-Physiological Detection of Deception (PDD) . Psychological Stress Evaluator (PSE) . Hypnosis

Truth Serum whN a . Brain Printing

3.7.1 Psycho-physiological Detection of Deception (PDD) Psycho-physiological mode of the detection of deception is one big step

forward in crime handling. The detection of deception is also known as lie detection. The most important mode which has been experimented with

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extensively is polygraphic method. The instrument used for the purpose is known as Lie Detector or Polygraph. During the early years of the present century psychosomatic disorders, also known as psycho-physiological disorders received a good deal of study by psychologists, psychiatrists and physiologists. What is meant by this phrase “psychosomatic disorders” is simply that certain disorders of the body, or soma, are due to psychological events, such as strong emotions. The theory emphasises a close relationship between ‘ body ‘ and ‘mind ‘ and the interaction between the two is named psycho-physiological reaction. The instrumental detection of deception is dependent upon this interaction. The other name given to the lie detection is ‘Psycho-physiological Detection of Deception’ (PDD).

Although the theory of psychosomatic interaction appears to be a new development, yet historically it is as old as human thinking about mind and matter. There are enough instances where this theory had been successfully applied for medical diagnosis. The modern lie detection techniques are also based on the principles of psychosomatic interaction. The term means that the emotions experienced by an individual cause certain type of physiological disturbances. The emotions and the physiological effects are always found to go together. Thus the emotions of a person can be visualised from the physiological manifestations and Vice versa. The first scientific use of this principle for crime investigation dates back to 1895, when Lombrosso conducted experiments on actual criminal suspects and

demonstrated that there is a change in the suspect’s blood-pressure and pulse rate when he tells a lie. From 1914 onwards, the experiments were seriously pursued to establish that the feeling of guilt in a culprit induces fear (fear of exposure and entrapment). It brings in physiological changes. The blood pressure, the pulse-rate and the respiration are affected prominently. The experiments also indicated that these reactions are governed by the automatic nervous system of the body and, therefore, lie, generally, beyond the conscious control of most of the individuals. The traditional polygraph (lie detector) is in fact a product of such early experiments. It was, however, around 1920 that Larson and Keeler, for the first

time, independently developed a type of instrument, which came to be known as polygraph. The instrument could simultaneously record an individual’s blood pressure, pulse-rate and respiration during interrogation. Keeler further refined the instrument by adding the electro-dermal galvanometer to record the

electrical

resistance

of the skin. It is this version

of the instrument,

which

constitute the traditional polygraph.

3.7.2 Scientific Basis The traditional polygraph

: the principle that perception

or works on consciously held feelings of guilt produces a defence reaction in the form of physiological changes, e.g., in the blood-pressure, pulse-rate, respiration rate and in the electrical resistance of the skin known as G.S.R. The fear of detection and entrapment induces a person to lie. This psychological phenomenon causes in an the mental excitation. Physiologically the effort put forth by the individual

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as ’ defence mechanism ’, — attempt to conceal the excitation, known glands secrete the hormone the adrenal glands. The stimulated adrenal steps up the blood pressure and adrenaline, which on entering the blood stream rate of pulse and respiration of the individual.

~

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Fig. IlI-1 Polygraph in Operation.

3.7.3 Method A corrugated

rubber tube is tied around the subject’s chest (the pneumograph). It measures respiratory changes. An inflated cuff is wrapped round the upper arm (the sphygmograph). It measures the cardiovascular changes. An electrode is attached to the palm or fingers. It measures the electrodermal response (GSR). A transducer is attached to the thumb (the plethysmograph). It measures blood volume reflecting the pulse rate. All these measurements are recorded simultaneously in the form of traces on a graph paper individually. These recordings on a graph paper, collectively, are known as polygram. It is evaluated to find out whether during the lie detection test the subject experienced emotional stress from any of the questions asked, or showed no reaction.

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195 ) egtira tion

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Fig. III-2 Polygram showing respiratory and cardio-vascular responses of a deceptive subject. Note the difference in the response of relevant question Nos. 3, 5, 8 & 9 to irrelevant question Nos. 4 and 7. Question No. 6 was a control question for toning up the subject emotionally.

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Fig. II-3 Polygram showing respiratory and cardio-vascular responses of a nervous but truthful: subject. The subject reacted equally to all the questions relevant (3 & 5) or irrelevant (1, 2,4 & 7). The control question at No. 6 could not arouse the subject emotionally.

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aches ‘are In questioning the subject, generally the following basic appro followed: 3.7.3.1 Relevant- Irrelevant Question Technique (R/IQ)

In this technique, both relevant and irrelevant questions, pertaining to the case in hand are asked. The irrelevant questions to the case under investigation are similar:

¢ ‘Is your name Mr. X?’ Or, e ‘Did you take tea in the morning?’ The irrelevant questions are interspersed with questions, which are relevant to the crime such as: ¢ ‘Did you steal the jewellery?’ Or, ¢ ‘Did you shoot with a revolver?’ The difference in the physiological response to relevant and irrelevant questions indicates whether the person is lying or not. ~

3.7.3.2 Peak of Tension Technique (POT)

In the Peak of Tension technique only one pertinent but emotionally toned question, after several other control questions of irrelevant nature is asked of the subject. The irrelevant questions build the tension, which is released after the relevant question has been asked. The technique is dependent for its usefulness on the fact that a guilty person may possess knowledge which no innocent person could possess. And question regarding this knowledge would produce emotional reactions in a guilty person, while innocent person would show no reaction to the question. The difficult aspect of a lie-detection test, however, is the interpretation of the polygrams. In analysing, evaluating and interpreting a polygram, following aspects are carefully considered. ¢ Simultaneous occurrence of suppression in respiration and increase in blood pressure immediately after the subject's reply. ¢ Decrease in blood pressure several seconds after the reply. ¢ Heavier breathing, 15-20 seconds after the reply, to a relevant question. ¢ Slowing up of subject's pulse beat after the questioning is over and the subject is told that no more questions would be asked of him. * A general upward trend of the entire blood pressure curve during the test is indicative of tension due to feeling of guilt. * Interpretation of Electro-dermal responses is based on certain upward movement of the tracings due to changes in the electrical resistance of the skin of the subject due to perspiration. * Regarding Electro-dermal response (GSR) it may, however, be noted that the exact nature of these responses is not yet completely understood. The authorities differ considerably in their opinion. It is rather surprising that although in the experimental deception tests conducted

in the laboratory, GSR offers reliable deceptive criteria, in

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actual field cases similar high degree of accuracy is not often available as in other measurements of physiological responses, such as, blood pressure and pulse. The aspects, which are considered for evaluation and interpretation of the polygrams, will become clear from the illustration given below: In a murder case the suspect denied knowledge whether he had seen the victim after sunset. He also denied the charges that either he committed the murder or has the knowledge as to who committed the offence. In this case RIQ (relevant irrelevant question technique) was followed (Fig. III-3). Questions Nos. 4 and 7 were irrelevant: e ‘Did you take tea in the morning?‘ ¢ ‘Can you read Hindi newspaper?’ To arouse the suspect emotionally a control question (S. No. 6) was asked: 6. ‘Can you murder some one?’. Questions at S Nos. 3,5, 8 and 9 were relevant. They were, respectively: e ‘Did you see X (victim) after sunset?’ e ‘Do you have any information as to where did X go after sunset? ’

e ‘Did you murder X?’, and lastly, ¢ ‘Do you have any knowledge as to who murdered X? ‘ The plus (+) and minus (—) signs on the polygram are indicative of the suspect's reply in affirmative or negative, respectively. The changes in the tracings of respiration, blood pressure and pulse at relevant question in comparison to irrelevant questions are indicative of deception. Particularly, the suspect's physiological reactions to questions at S. No. 8 and 9 indicate that he was directly involved in the crime which he later admitted to the police when

confronted with the test results. (CH) 3.7.3.3 Controlled Question Technique

In this technique controlled questions are asked. These questions relate to the associative evidence already known to the interrogator. Only the culprit can show reaction to the questions, as he alone knows them. The questions are inter-

mixed with irrelevant questions. The reaction is recorded in the polygram like the other techniques 3.7.4 Operational Environment

For successful operation of polygraph, apart from the fact that the instrument should be highly sensitive, there are a few other essential conditions, which must be met. These are:

3.7.4.1 The Examiner . A high degree of accuracy in conducting deception tests with the aid of a polygraph depends upon the educational background, the personality, the integrity of character and the experience of the examiner. An experienced examiner can easily differentiate a false response from a deceptive one.

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|

3.7.4.2 The Subject

must ensure that the subject Prior to the polygraph examination the examiner is in good mental and physical condition: ion, kept hungry or © He has not been exhausted from intensive interrogat made to suffer physical abuse. © He is not under the influence of drugs, etc. e He has no physical or mental illness. e He is stabilised and has overcome nervousness. 3.7.4.3 Interrogation Room

:

rt

r The set up of interrogation room plays an important role in achieving greate accuracy in deception tests. The room should preferably be sound proof with no wall decorations, models, telephone, table lamp, etc. to divert the attention of the subject. Only a concealed tape recorder should be used, if need be. There should be none present except the examiner and the subject in the interrogation room. In short, the interrogation room should give an impression of absolute privacy to the subject, with comfortable and peaceful surroundings. 3.7.4.4 Subject's Rights The critics of polygraph technique emphasise that the technique involves an intrusion into the privacy of the subject. In order to counter such criticism,

certain rights of the subject have been formulated. These rights are respected. These are: ¢ Only a qualified examiner is to examine the subject. ¢ The subject must be declared fit for polygraph examination.

¢ He must be informed of the reasons for the polygraph test. ¢ He should know how the polygraph functions. e He must consent to take the polygraph test. He can refuse to submit to polygraph test. e He must not be exposed to mental and physical abuse. e He must not be subjected to prolonged questioning. 3.7.5 Application and Utility Since the development of polygraph, it has been widely applied in criminal

investigation by the police, especially in USA and Japan. However, of late, the polygraph has also been used elsewhere and for other purposes: ¢ Recruitment of police and other personnel. ¢ Apart from the police department the Federal Bureau of Investigation and the department of Defence, Banks and other organisations are also utilising the lie detector as an aid for investigation undertaken by them. ¢ The big business and industrial concerns in USA use the lie detector for checking the honesty of their employees. Specific utility of polygraph and the allied deception tests can briefly be summarised as follows:

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e It can detect deception. e The guilty can be induced to confess to his crime. ¢ It can discriminate between the innocent and the guilty. ¢ Itcan replace the third degree methods used in interrogations.

e Itcan narrow down the field of inquiry for the police. e Itcan check the veracity of the statement of a witness. e Itis an effective tool to ascertain and check the honesty of candidates or employees.

3.7.6 Limitations One of the main

difficulties in conducting a lie-detection test is the nervousness shown by many truthful or innocent subjects under the conditions of police interrogations. The nervousness may be due to fear of being involved in a crime, which he has not committed or due to a guilt complex from some other offence committed earlier. Such nervousness is usually manifested in the polygraph chart by the general erratic character of the tracing (mainly blood pressure). In such tracings usually similar type of physiological responses can be observed to both relevant and irrelevant questions (Fig. III-3).

A biased attitude of the examiner can affect the diagnosis. If the examiner believes that the suspect is guilty he is prone to find evidence of his guilt on the polygraph chart. Similarly, if he believes that subject is innocent, he is prone to find evidence of innocence on the chart. This is especially true with new-comers in the profession. Other sources of error are the unresponsiveness of the subject; some unobserved muscular movements, physical or mental illness. The examiner must strictly follow the essential conditions for the successful operation of a polygraph.

3.7.7 Criticism, Rebuttal The lie detector and other deception tests have been able to prove their worth as a unique aid to investigation. But the basic technique of detecting deception by interpreting the polygrams has also been subjected to criticism for its reliability and validity by the judiciary, labour unions and occasionally by the public as well. The basis of such criticism is the element of subjectivity in the interpretation of polygrams. This apart, the measurements of the physiological changes upon which the deception test are based still have not gained sufficient scientific recognition from physiologists and psychologists. Other adverse views are that the polygraph is:

¢ Not sufficiently accurate ¢ Not reliable ¢ Misused, and ¢ Humiliating and degrading for the person taking the test. To rebut such criticism, the experts observe that an able and experienced polygraph examiner, by taking into account the specific deception criteria can easily eliminate the subjective element from the interpretations.

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where the The claims of the experts have been demonstrated experimentally examiners, objectives were to determine whether or not the professional polygraph working independently of each other, are able to detect deception successfully from the analysis of polygraphs only. The examiners were given polygraph charts pertaining to actual field cases only. No other factual data with regard to the polygraph charts such as history of the case, test question, subject s behaviour, etc. were supplied to the examiners. In three experiments, accuracy1mjudgement was reported as 75 %, 87.8 % and 86 %o respectively. If the examiner$ad an access to the background of the case, test questions and behaviour of the subject, the accuracy percentage would have been much higher. (CH) Another objection against the use of polygraph is its inflated blood pressure cuff. The critics argue that the same is inconvenient, painful and a psychological torture. The objection, however, is not legitimate. Firstly, because the duration of the lie-detection test is very short, approximately 4 to 5 minutes, during which the inflated cuff certainly would cause no extensive physical pain. Secondly, if a slight discomfort for a few minutes can yield success in garnering the truth, the effort and method is far better than the prolonged interrogation the subject may otherwise have to bear. Lastly, the psychological feeling of torture is eliminated during the pre-interrogation interview with the subject. The inconvenience due to the cuff can be explained to him at that time. Further, the cuff has since been modified. It is no longer painful. All said and done, the lie-detector is, for the detection of deception, an effective and valuable weapon, indispensable aid in the investigation of crime. 3.7.8 Legal Status By and large, lie-detector evidence has limited judicial recognition. In a few courts of America polygraph test results have been recognised for their value as an aid to investigation and in some cases the expert evidence relating to polygraph has been accepted. The experts in areas like fingerprints, firearms identification questioned documents etc. have been widely acclaimed. But the polygraph experts have not received acceptance and recognition from the court.

It is unfortunate when the polygraphists have established 95 to 98% accuracy of the lie-detector in detecting deception or the truthfulness of the subjects in criminal investigations. On the basis of relevant scientific data on the liedetector, it is strongly felt the courts should accept deception test results because it can furnish a fairly effective method and technique for the exposure of deception in a subject. Since polygraph interrogation is the best available method to detect deception, the time has come for the courts to admit this type of

evidence.

The Chicago Bar Association Committee of Criminal Law undertook a study on the polygraph and its role in the administration of criminal justice. The committee concluded as follows: ° ¢ Polygraph has a place in the detection of crime because of psychological effect on persons, who are in fact guilty of crime. ¢ There may be 5-30 % errors in the test results, depending upon the ability of the examiner and other factors.

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e Unqualified operators could cause unnecessary injury to innocent persons. e Refusal to take a polygraph test should have no bearing on the presumption of innocence. e The polygraph is not a substitute for the competent detection and investigation of crime. * Due to the fallibility of the results of polygraph examination should not be admitted as evidence in court cases. The present position regarding the acceptability of lie detection test results is

that in some of the courts of USA it has been accepted as legal evidence. There are instances where the courts have recognised and utilised the polygraph test to base decisions. In USA, out of 23 states, 11 have enacted legislation to create a licensing authority for polygraphists to conduct certain specific type of polygraph examination, like cases of disputed paternity. In remaining 12 States, no such legislation has yet been enacted. The only other countries where polygraph has been put to extensive use in criminal justice system are Japan and Israel. The legal status here is no different from that in USA. In Japan some of the courts have accepted the polygraph test results. The use of lie-detector in Canada or in European countries, e. g., U.K., France,

Germany, etc. is not extensive. But it is on the increase.

In India, a beginning was made by the Central Forensic Science Laboratory, Central Bureau of Investigation, New Delhi, by providing the facility of polygraph for crime investigation purposes. A number of other institutions have since introduced the facility. The polygraph test results do not appear to have been utilised in the courts. However, there is no law, which forbids the use of

lie—detector in criminal investigations. In fact section 45 of the Indian Evidence Act is wide enough to accept the polygraph evidence. The lie-detectors are in fact providing useful assistance in criminal investigations in thousands of cases. Corroboration of circumstantial evidence is not legally required. Theoretically also, it is not necessary. But in practice most of the courts are hesitant to base their convictions, as a matter of abundant caution, on the sole testimony of

experts. However, there are reported cases where convictions were based upon the expert evidence alone. There can be no hard and fast rule in this regard. The circumstances of each case determine the weight of expert evidence.

3.8 RECENT ADVANCES IN DETECTION OF DECEPTION The main innovation in the traditional polygraph has been the induction of computer to record and analyse the physiological response and data, though some innovations in the input devices to increase the number of recording, to decrease the discomfort and reduce the time for examination have also come up. Kircher and Yanka did the pioneer work to produce computer assisted polygraph system. They also developed the algorithm for fieldwork. Now instruments have come up with software, which sample, process and evaluate the data automatically with the help of the algorithm, for diagnostic purposes.

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es: Computerised polygraphs have the following advantag |. Operational training need less time. 2. Provide better interpretable data. 3. No frequent calibrations as in traditional polygraphs distortation. 4. Data can be stored/printed.

*

due

to pen

5. Physiological signals analog can be digitized and algorithm can be developed.

3.8.1 New Input Devices

Electroencephalograph is a new device as far as PDD is concerned. It records the cognitive process of recognition. It utilises the Event Related Brain Potential (ERP). For example if the weapon of offence is shown to the subject and if he happens to be the culprit, he will recognise the weapon and EEG trace will show change in the wave pattern. The mode of identifying the culprit is called brain Printing or Brain Finger Printing on the pattern of DNA finger printing. Additional research is needed to make the technique more useful, in spite of the claims of 100% accuracy by some of its protagonist.

3.8.2 Non-Invasive Sensors/Transducers The

important

non-invasive

cardiovascular

device

is Finapres,

which

replaces blood pressure cuffs. Finapres is a transducer, applied to a finger, which responds to blood volume changes, which are recorded by the computer to give systolic/ diastolic pressures and heart beat rate. Likewise voice response of answers ‘yes’ or ‘no’ to question put to subject is also being examined through voice spectrum analysis software. This examination is different from the analysis through Psychological Stress Elevator (PSE) which analyse subsonic laryngeal microtremors for stress. The main thrust is to develop additional software to analyse the statistical PDD data. It is hoped that better software in the coming times will improve the PDD data evaluation. An instrument utilising the neurosciences named ARIS (Automatic Response Indicator System) has also come up. It utilises homeostatic communication of the brain with the outer brain parts. It is believed that Central Nervous System (CNS) controls the working of the outer parts. The control is disturbed by deception. The instrument (patented) measures the disturbance. ARIS algorithm consists of blood pressure, respiration, electrodermal response, movement and EEG.

3.8.3 Psychological Stress Evaluator

Psychological stress evaluator (P.S.E.) is an instrument like the lie-detector. It

measures the stress on the subject, which he undergoes while telling lies. Part of

this stress may be revealed in his voice, but mostly it is found in the inaudible

vibrations (tremors) which the speaker under stress emits from the voice organs (vocal cord). The instrument records these inaudible tremors, and thus indicates

the falsehood or truthfulness of his statements.

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to answer

simple but well organized

203

questions.

Questions which are not related to the crime (Irrelevant Questions), which the

subject will answer truthfully, and questions which relate to the crime( Relevant Questions),

where

the subject will tell lies, if he is the culprit, are carefully

intermingled. The voice is then recorded on a magnetic tape.. This tape is then ‘fed’ into the P.S.E, which differentiates truth from falsehood in the same ways as the lie-detector does. The instrument is claimed to be superior to the polygraph. It can be used covertly. It is simpler, less bulky—only a tape recorder need be used during interrogation. The recorded evidence can be checked and verified by a second expert also. Besides, it can be used to evaluate recorded telephonic conversations. | The P.S.E. is yet to establish itself. It is hoped that it proves useful in criminal investigation.

3.9 HYPNOSIS Hypnosis is the process in which the subject (person under interrogation) accepts the suggestion of the hypnotist non-critically. The reasoning faculty of the individual is suppressed. Hypnosis has been used successfully in medicine. It is being used increasingly in criminal investigation in the following situations: 1. When the victim has forgotten the details due to extreme fright or emotional breakdown. In a case of murder (of one girl) and rape (of a second girl), the second was so frightened that she could not give the details of the culprit. She was put under hypnosis. She gave complete details. When the facial features reconstructed from her description given under hypnosis, and the portrait drawn from the description, was shown she at once exclaimed that he was the culprit. (CH ; . Mendacious witnesses tell the truth under hypnosis . Malingerers, who fake physical injuries, can be identified.

_ Falsehood of a charge preferred against a person can be checked. . Hidden physical evidence, such as corpus delicti, weapon of offence, etc. N WwW oF may be disclosed by the culprit (subject) under hypnosis. toughen In addition, hypnosis helps in building character in police officers,

spies and saboteurs. Hypnosis is a double-edged weapon. It can be misused by the criminals: stion 1. Persons can be induced to commit crime under the hypnotic sugge nalities of _ the extent to which a subject can go depends upon the perso the subject and the hypnotist, especially on the latter’s skill. his disciple. With In a recent case, a Tantaric inveigled a rich widow to become became intimate also. passage of time he not only won her complete confidence but well that she got his The Guru had an eye on the property. He hypnotised her so lockers also. In addition name entered as the authorised person to operate her bank paying any money. he got a sale deed of her flat executed in his favour without

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He got himself Later he persuaded her to create a trust of her vast landed property. spell went nominated as the chief executive of the trust. At this stage the hypnotic (CH) off. She is fighting the Tantaric in the courts to recover her property. 2. Persons can be hypnotized to gift away their property. 3. Persons can be induced to give false confessions, false alibi, or made to forget certain events, including criminal acts, like forgeries, etc. Hypnosis has yet to travel long to become an accepted technique in police investigations in India. However, the potential is unlimited. It is especially useful where children, women

and nervous persons are involved as victims or

witnesses. They perform better under hypnosis

It is believed reasoning power the truth. Some persons. These

3.10TRUTH SERUM that if a person is administered al drug which suppresses his _ without affecting memory and speech, he can be made to tell drugs have been found to create this twilight state in some drugs are actually being administered in some countries

including India. Truth serums (or sera) are no serum at all. They are drugs, sometimes used

clinically. A few of the best known drugs are Seconal, Hyoscine (scopolamine), Sodium Pentothal, Sodium Amytal, Phenobarbital. These drugs are administered through injections. ““iey produce a state of semi-conscious in the subject. The reasoning faculty of the individual is affected. Truth drug administration suffers from many drawbacks. Firstly, the person to administer them has to be a highly qualified physician. Secondly, it is always difficult to determine the correct dose of the drug, which varies not only due to the physical constitution of the subject, but also his mental attitude and will power. Besides, the clever subject could hoodwink the operator by faking the state of semi-consciousness and tell lies, which are useful to him.

Truth drugs have never been popular in police interrogation anywhere. They have now given way to instrumental methods. They are used to interrogate spies only where dose can be changed and correct dose found by experiment especially when the instrumental methods have failed to extract the truth. The Delhi State police used recently truth serum drugs to extract information from one of hardened terrorists when other methods failed to get the information.

3.11 BRAIN PRINTING Another instrument base upon the recognition of associative evidence by the brain, resulting in additional electrical activities have also been developed and patented. When a culprit, victim or witness is shown an object, a scene or a situation, which is connected with the crime, his brain recognises the entity. The recognition creates activity in the brain. This activity is recorded by an instrument Encephalograph and the trace thus obtained is called Electroencephalogram (EEG). The brain printing can provide useful information if the following bases are met with:

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1. There should be reliable measure to record the brain stimulation — this

has been achieved through electroencephalograph (EEG). 2. The existence or absence of the information with the subject. It is indicated by the electroencephalograph response.

3. Brain Printing is based upon the premise that the individual cannot control his brain activity. The premise seems to be highly suspect. 3.11.1 Importance

The brain is a storehouse of all the information a subject possesses. If the subject is involved in a particular activity he has the information stored in his brain. All the criminals and their associates have information about their criminal acts. Therefore if we can reach this information, we can establish their

involvement or innocence and also the part played by them in a particular act. Thus, it can provide foolproof evidence against them without external sources such as written or oral evidence. As brain of the culprit always records the occurrence, therefore the evidence is always available. Recent advances in neuro-sciences have given a ray of hope that the stored information in the brain can be tapped accurately, non-invasively and objectively which can provide clinching evidence in a crime situation. However, the techniques involved need a lot of spadework before they can provide through brain printing, the big breakthrough in scientific criminal investigations. According to its protagonists it is useful specifically in: 1. White collar crimes.

2. Burglary and theft cases. 3. In offences against person, including murder and rape cases. 4. Identification of terrorist, saboteurs, spies, arsonist, etc.

5. Identification of potential criminals /crime situations. The advantages of the technique are claimed to be: 1. Always available evidence 2. Accurate

3. Cost effective 4. Time effective |

Non-invasive Quick

NoNon-subjective (computer process the details and interpretation) hence no bias 8. Human-right savvy

3.11.2 Process The process of brain printing is simple. It involves: |. Sensors are strapped around the head in the form of a band. to the 2. A number of pictures (crime-relevant/ crime-irrelevant) are shown ty subject. The culprit’s involvement is indicated by the electrical activi

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should of the brain when crime related pictures are shown. The subject erime show no brain electrical activities when pictures not relating to the of are shown. The innocence of the subject is proved by the absence electrical activities when the subject is shown the mixed pack of pictures.

3. The brain activity is picked up by the sensors and recorded in a computer in a waveform. The electrical activity changes if the subject recognises any familiar object, action or word at the screen.

7

4. The analysis of the changes in the wave pattern indicates whether the subject recognised the particular object, action or word, relevant to the crime and shown on the TV screen or not. If the subject was the culprit or a partner, he would recognize the item and the fact is found from the

waveform. If the subject is innocent the item would not stimulate brain activity and hence no additional electrical activity will take place. In this process no questions are asked, unlike the polygraph method. In India Forensic Psychology has yet to make a mark in the dissemination of justice. It has to catch the attention of the various wings of the criminal justice system for its exploitation. But there is no doubt that Forensic Psychology is a potent weapon in the fight against crime and handling criminals, to reduce their number, to induce them to follow the path on the right side of the law. The younger generation are finding it tough to compete, to be one with the Johnses and to lead a satisfied life. The society has lost faith in religion and social values. They are increasingly marching towards living dangerously, towards crime. They need help to avoid downhill slide. Psychology in general, and Forensic Psychology in particular, can and has to help to avoid the fall. 3.12 CASE LAW

3.12.1 Lie Detector Evidence Another breakthrough has been made in the acceptance of polygraph (lie detector) evidence by courts. The Wisconsin

Supreme Court, in a landmark

decision on 4 April, 1974, reversed its 40-year-old rule and decided that lie detector evidence was admissible in a criminal case. Polygraph evidence now has reached the same level of scientific reliability as evidence produced by the science of fingerprints, ballistics, voice-prints and electroencephalographs, according to the court. This decision reverses the former rule in Wisconsin State v. Bohner,' which was first set out in the Federal case, Frye v. United States.*

In the Stanislawski case, an appeal was taken from a jury conviction for rape. A polygraph test had been administered both to S., and to the complaining witness by the police, but due to the law in Wisconsin at the time, results of the

tests could not be introduced in court.

(The tests showed the defendant to be

telling the truth and the witness to be lying.) In overturning the conviction of S., the Supreme Court stated: 1. 210 Wis 651 (1933). 2. 293 F. 1013 (DC Cir 1923).

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Under the test of general acceptance of scientific standing in the field in which it belongs, there has been a marked change in acceptance of polygraph testing in the forty-plus years since Bohner and 50-plus years. since Frye. There is a widespread use of polygraph testing by industries, banks, insurance companies, police departments, and governments, including the armed forces. The business of private polygraph examiners increased eight to ten times in the decade 19501960. The court further found: ad polygraph. tests have moved..... to such degree of standing and scientific recognition that unconditional rejection of expert testimony based on polygraph testing is no longer indicated.

The new rules and qualifications of admissibility were adopted from a case decided by the Arizona Supreme Court: State v. Valdez'. The results of a lie detector examination were admissible for two purposes: a to corroborate other evidence of a defendant's participation in the crime charged” and , “If he takes the stand such evidence is admissible to corroborate | or impeach his own testimony.” 4a

The court set up four conditions which must be met before such testimony is admitted: |. That the district attorney, defendant and his counsel all sign a written stipulation providing for defendant’s submission to the test and for the subsequent admission at trial of the graphs, and the examiner’s opinion thereon on behalf of either defendant or the State. 2. That notwithstanding the stipulation to admissibility of the test results is subject to the discretion of the trial court, /.e., if the trial judge is not convinced that the examiner is qualified or that the test was not conducted under proper conditions he may refuse to accept such

evidence.

3. That if the graphs and examiner’s opinion are offered in evidence the. opposing party shall have the right to cross-examine the examiner ‘respecting:

(a) the examiner’s qualifications and training; (b) the conditions under which the test was administered;

(c) the limitations of and possibilities for error in the technique of polygraph interrogation; and (d) at the discretion of the trial court, any other matter deemed pertinent to the enquiry. 4. That if such evidence is admitted the trial judge should instruct the jury that the examiner’s testimony does not tend to prove or disprove any clement of the crime with which a defendant is charged but at most tends only to indicate whether at the time of the examination defendant 1. 91 Ariz 274 (1962).

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ucted was telling the truth. Further, the jury members should be instr that it is for them to determine what corroborative weight and effect such testimony should be given. ity of The Wisconsin decision was the further step in the increasing acceptabil polygraph evidence in U.S. Courts." 3.12.2 Insanity as Defence

;

.

We may briefly notice the evidence bearing on the plea of insanity. Since 1958 the appellant was an employee in the Stores Branch of the Northern Railway Headquarters in Baroda House, New Delhi. In 1958 and 1959 he had altercations with other clerks in the office. On May 20, 1959 his superior officer observed that he was prone to lose temper in no time. In his moments of excitement he became dangerous and used to hit his colleagues with any thing that he could lay his hands on. But at the time of his greatest excitement he could distinguish between right and wrong. After May 1959 he worked at his desk as a normal man. In March, 1960 he again quarrelled with another clerk.

He was suspended and sent for medical examination. At this stage he was suffering from mental illness. On October 12, 1960 he was examined by a psychiatrist who found that he exhibited symptoms of acute schizophrenia and showed disorder of thought, emotion and perception of external realities. The psychiatrist said that he was harbouring certain delusions. The nature of the delusions is not stated. It is not proved particular delusion or hallucination. The appellant was put on a drug named Largactil and was given convulsive electrotheraphy treatment. On January 12, 1961 he was cured of his illness and was advised to join his duties. On resuming his duties the appellant worked in the office in the normal manner. There is some evidence that on the morning of November 25, 1961 and the preceding night, the appellant complained that he was unwell and took medicine. But on the morning of November 25, he went to his office as usual. He was late in attendance and was marked absent. He applied in writing for one day’s casual leave stating that he had an urgent piece of work at home. Nobody noticed any symptoms of mental disorder at that time. He left the office at about 11.30 a.m. and returned home alone. At 1.45 p.m. he stabbed Leela, Parbati and Raghubir with a knife. He concealed the knife and a search for it has proved fruitless. At 2.45 P.M. the investigating officer arrived on the spot, arrested the appellant and interrogated him. He was then found normal and gave intelligent answers. On the same date he was produced before a magistrate. His brother was then present but the magistrate was not informed that he was insane. On November 27, he was interrogated by an inspector. It does not appear that he was then insane. On November 30, the appellant’s brother filed an application before the committing magistrate stating that the appellant was insane at the time of the occurrence. The appellant was later remanded to judicial custody. On receipt of 1. King, D. P. 1974, Case Notes, USA Criminologist. 9 (34), 39; State v. Stanislaw ski,

62 Wis. 2d. 730 (1974), Wisconsin Supreme Court.

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another application from his brother he was kept under medical observation trom December 16 to December 23. On December 19 the medical officer noted that the appellant was indifferent to his surroundings and personal cleanliness, preoccupied in his thoughts muttering to himself, making meaningless gestures, losing track of conversations, given to delayed and repetitive answers and unable to give detailed account of incidents leading to his arrest. On December 23, he was declared to be a lunatic though not violent. The psychiatrist noted that the appellant had a relapse of schizophrenia and was suffering from disorder of thought, emotion and loss of contact with realities. From his attitude and manner of talk he was found to be aggressive. On September 6, 1962 the psychiatrist reported that the appellant was cured and was in a position to understand proceedings in court. The commitment order was made on January 4,1963. The trial started in February 1963. The appellant was sane at the time of the trial.

The group of ailments dubbed schizophrenia is discussed in James D. Page’s Abnormal Psychology, Ch. XI, pages 236 to 261 and Modi’s Medical Jurisprudence and Toxicology, 14th Ed., pages 349 to 401. Schizophrenia is a general term referring to a group of severe mental disorders marked by a splitting or disintegration of the personality. The most striking clinical features include general psychological disharmony, emotional impoverishment, dilapidation of thought processes, absence of social rapport, delusions, hallucinations and peculiarities of conduct. The question is whether the appellant is criminally responsible for the acts done on November 25, 1961. Section 84 of the Indian Penal Code says: “Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.” To establish that the acts done are not offences under section 84 it must be proved clearly that at the time of the commission of the act the appellant by reason of unsoundness of mind was incapable of either knowing that the acts were either morally wrong or contrary to law. The question is whether the appellant was suffering from such incapacity at the time of the commission of the acts. On this question, the state of his mind before and after the crucial time is relevant. There is evidence of a medical character that between October 12,

1960 and January 12, 1961 he was suffering from schizophrenia. He was completely cured of this disease on January 12, 1961 when he resumed his

normal duties. He had another attack of this disease in the middle of December, 1961. The attack lasted till September, 1962 when he was found to be normal

again. But it is to be observed that the defence witnesses do not say that even during these two periods the appellant was incapable of discriminating between right and wrong or of knowing the physical nature of the acts done by him. After the appellant was cured of the disease on January found to be normal. He had a highly strong temperament

12,1961 he was and was easily

his greatest excitable. But there is positive evidence that even at the moment of

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January 12, excitement he could distinguish between right and wrong. From his dutiesin a upto November 24, 1961 he attended his office and discharged

l. normal manner. On the morning of November 25, 1961 his mind was norma He went to and from his office all along. He wrote a sensible application asking for casual leave for one day. At 1.45 P.M. he gave normal and intelligent answers to the investigating officers. Nothing abnormal in him was noticed till December 16, 1961. The thing in favour of the appellant is that though he had a motive for attacking Baburam, no clear motive for attacking the child Leela or Parbati is discernible. But there is clear evidence to show that he knew that his act of stabbing and killing was wrong and contrary to law. He concealed the weapon of offence. The knife could not be recovered in spite of searches. He bolted the front door of his house to prevent arrest. He then tried to run away by the back door. When an attempt was made to apprehend him he ran back to his house and bolted the door. He then tried to disperse the crowd by throwing brickbats from the roof. His conduct immediately after the occurrence displays consciousness of his guilt. He knew the physical nature of stabbing. He knew that the stabbing would kill and maim his victims. On a comprehensive review of the entire evidence the two courts below concurrently found that the defence of insanity under section 84 was not made out. We are unable to say that the verdict of the courts below is erroneous. If a person by reason of unsoundness of mind is incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law he cannot be guilty of any criminal intent. Such a person lacks the requisite mens rea and is entitled to an acquittal. But it is not established in the present case that the appellant was suffering from this incapacity. The general burden is on the prosecution to prove beyond reasonable doubt not only the actus reus but also the mens rea. The prosecution satisfactorily discharged this burden. The appellant was not insane at the time of the killing and stabbing and he knew the consequences of his acts. We must hold that he is criminally responsible for the acts.

In the result, the appeal is dismissed.!

CS RO

1.

Jar Lal v. Delhi Administration, AIR 1969 SC 15.

Chapter 4

COMPUTERS SYNOPSIS 4.1

IMPORTANCE

4.1.1

Police work

4.1.2

Forensic Science

4.1.2.1

Criminalistics

4.1.2.2

Chemical Analysis

4.1.2.3

Biological Analysis

4.1.2.4

DNA Profiling

4720

Anthropological Evidence

4.1.2.6

Facial Reconstruction

4.1.2.7

Skull Superimposition

4.1.3

Medico-Legal Work

4.1.3.1

Subcutaneous Injuries

4.1.3.2

Post-mortem Examination

4.1.3.3

Medico-legal Research

4.2

COMPUTERS AND LAW

4.3

NATURE

4.3.1

CPU

4.3.2

Input Devices

4.3.3

Output Devices

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4.5

COMPUTER CRIMES

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4.5.1

Nature

4.5.2

Motives

4.5.3

Characteristics

4.5.4

Investigative Impediments

4.5.4.1

Hi-tech Crime

4.5.4.2

International Crime

4.5.4.3

No-Scene Crime

4.5.4.4

Faceless Crime

4.5.4.5

No-time Crime

4.5.5

Classification

INVESTIGATION

4.5.5.1

Information Piracy and vandalism

4.5.5.2

Theft of Information Services

4.5.5.3

Organised crime

4.5.5.4

Infringement of copyrights

4.5.5.5

Theft

4.5.5.6

Wire Tapping

4.5.5.7

Data Destruction

4.5.5.8

Virus

4.5.5.9

Logic Bombs

4.5.5.10

Spy Software

4.5.5.11

Money Laundering

4.5.5.12

Electronic Funds Transfer

4.5.5.13

Electronic Personation

4.5.5.14

Hackers

4.5.5.15

Crackers

4.5.5.16

Software Piracy

4.6 COMPUTER CRIMINALS 4.6.1 Employees 4.6.2 4.6.3

Computer Experts Other computer criminals

4.6.4

Handling

4.6.5

Laws, Legislation

4.7

PREVENTION

4.7.1

The Basics

4.7.2

Access

4.7.2.1

Passwords

4.7.2.2

Cards

AND

TRIALS

COMPUTERS

4.7.2.3

Biometrics

4.7.3

Secrecy

4.7.4

Integrity

4.7.4.1

Staff

4.7.4.2

Accountability

4.7.4.3

Logging

4.7.4.4

Encryption

4.7.4.5

Physical Protection

4.8 4.8.1

COMPUTER CRIME INVESTIGATION Basics of Investigation

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COMPUTERS 4.1 IMPORTANCE Computers are being used extensively not only in science and industry.but also in household work and for entertainment. Today one cannot even think of education,

communications,

space

research,

defence

weaponry,

travel

and

transport, publishing industry, etc. without computers. In short computers have become indispensable.

4.1.1 Police work Computers have also invaded the police department in a big way to improve its functioning, all round. They are extensively utilised in all aspects of its functioning. The major applications are: Modus Operandi Records Fingerprint Records Weapon possession records Vehicle registration Records Traffic Control Photofit Reconstruction of Facial Features. Psycho-linguistic Analysis Brain Printing Lost or stolen vehicles Records

Absconders’ Records

Missing Persons’ Records National and International Communications including e-mail, Internet and Fax facilities

Equipment and Resources Information Manpower Availability and Deployment Service Records of the Personnel of the Force

Crime Cases Records Court Cases Records Record of Suspects Record of Drug Users, Peddlers Digital Photography Image Enhancement Police Interrogations. Computers are also being used extensively by the organisations and other wings of the criminal justice system: 214

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4.1.2 Forensic Science In Forensic Science Institutions the computers are being used in all aspects of their work. In addition to the usual office management, they are being extensively used in:

work

including

manpower

4.1.2.1 Criminalistics e Evaluation, processing and recording of the Scene of Crimes. Digital cameras in conjunction with computers are increasingly replacing the traditional photography. Storage of crime scene ‘photographs and others (mug photographs) is also being done in the computers. They can be displayed on monitor or on TV screens. Or, their prints can be prepared.

e Searches and comparisons of fingerprints are no longer manual. Computers are carrying out the work with high efficiency. Processing and enhancement of faded fingerprints is also being done with computers. National Crime Record Bureau (NCRB), Ministry of Home Affairs, Government of India, has developed a system termed as FACTS—an acronym for Fingerprints Analysis and Criminal Tracing System. The system uses scanner to convert the fingerprint image into digital data, which is stored in a computer. When a new fingerprint is to be evaluated,

it is converted

into digital data, stored in the same

computer. On demand, the computer carries out the search for similar data. On finding correspondence, the computer reveals the details of the person from whom it has come. The whole work is carried out at astounding speed. ¢ Computer technology has proved a boon for processing track marks evidence: ¢ Processing of holograms e Enhancement of indistinct images ¢ Comparison of track evidence also adopted computer technology in its ¢ Forensic Ballistics has functioning mainly in the following evaluations: * Recording particles in gunshot residues, their nature, number, dimensions and positions, in conjunction with Scanning Electron Microscope. The record is utilised extensively for the identification of the shooter, of the firearm injuries, for determining the range of fire, etc. * Data relating to Ballistic Tables has also been computerised. The factors like air resistance, structural and compositional

features,

etc., which introduce errors are better managed with computerised computations. * Striations comparison found on crime projectiles with the corresponding stored data, via scanning is also done, however, without significant advantage. Variations in each firing process bring in variations, which hamper the exploitation of the technique

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nology the extensively. However, with image enhancement tech problem has been tackled to a great extent. at different ° Where the comparisons of bullets have be to carried out it and distant places, the image transfer via internet has made possible to do so. © Data on firearms, ammunition, pellet spread of various shotguns at various ranges is maintained routinely by most of the laboratories . in the computers for day-to-day consultations. ¢ The computers are becoming indispensable in the evaluation of documents: ¢ The comparison of signatures is being attempted via scanning, digitalisation of images of signatures and comparison of the

digitised data. This technique can reduce bank frauds considerably. e Typescript examination has been facilitated considerably by computers. They help to find out additions, alterations and

obliterations by evaluating the spacing patterns, linear and vertical alignment variations and defects. e Faded and mutilated writings are better evaluated by image enhancement technology.

¢ Enlarged prints of very high quality permit better evaluations and comparisons of the handwritings, signatures, initials, additions and other alterations. ¢ Comparison of seals, stamps, logos, insignias, etc., is facilitated by computers in conjunction with scanners. In a recent case, the signature of the victim were partly on a bank loan form and partly on a stamps paper sticked on the form, the signature part on the stamp paper was barely visible. The victim did admit that he had signed the form but not the stamp paper the deputed signature was put under a scanner and the colour of the signature was gradually reduced. At one stage the true picture of the portion of the signature on stamp paper could be obtained. It was found that unextrapolated signature part on the stamp paper was forged. (CH). 4.1.2.2 Chemical Analysis

Interpretation of instrumental analysis of poisons, drugs and other chemicals is now being done increasingly by the instruments themselves. They contain the software, which carry the Library of the analytical data of the standard sample materials analysed by the instruments. Software, thus, on command, compares

this data with the data generated by the clue material analysed by the same instrument automatically and the result is displayed on the screen of the monitor. The instruments also provide printouts of the findings in the form of traces and data. Practically all the instruments and technique are covered by inbuilt computer evaluations and interpretation system. The following are, however, the ones, which have made the work of the Forensic Chemist easy, reliable and efficient. They not only reveal the identity but the quantity also.

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Atomic Absorption Spectrophotometer Neutron Activation Analysis wNpSpectrographs Microprobe a Scanning Electron Microscope, with E.D.X. system. GLC, HPLC, TLC, HPTLC GS-MS, UV,IR, NIR, FTIR, Spectrophotometers.

2OND Microscopes-Quantimat 10. Comparison Microscope

The computerised instruments are being utilised for evaluations of all sorts of clue materials including: 1. Poisons - Narcotics and psychotropic substances ca Glass, Computerised

Data Bank on their properties like Refractive Indices, Densities, etc. are available Paints: They are being evaluated for 16 parameters through computer software specially created for the purpose.

Ol

Microtraces: dust, dirt, soil, plant residues, animal residues, etc.

Liquors: for composition, adulteration, identification, quantitation for the components, etc. . Drunkenness is an increasing menace. Computerised instruments like computerised breath analysers indicate the extent of drunkenness among drunken drivers and provide printouts at the spot itself. Computerised arson detectors confirm the arson nature of the fire at the spot itself. Computerised GS-MS identify initiators, accelerants, promoters, etc., in

arson Cases. 10. Explosive Detectors are computerised instruments which detect explosives and explosion products through their vapours. Comparison of data from various explosion sites may inter-link the serial explosions. 4.1.2.3 Biological Analysis Computers are being utilized in the evaluation of biological evidence of all types. They are extremely efficient in processing and interpreting biological evidence. Computers have made themselves indispensable in the following evaluations:

a 4.1.2.4 DNA Profiling DNA profiling has been the biggest break through in Forensic Science of all times in Forensic identifications. It has come almost hundred years after the discovery of fingerprints for personal identifications. Computers have helped to

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molecules. The comparison of - evaluate and compare the fragments of the DNA

material may identify the profile of a suspect with the profile of the evidentiary can do. or eliminate the suspect as the criminal as no other evidence

can be used to All body fluids, skin, flesh, even bone marrow or hair roots

develop DNA profiles. 4.1.2.5 Anthropological Evidence

mets

A lot of data relating to bones and skeletal remains including that on dentures, skulls etc., has been gathered and stored in computers. The data is being utilised to identify and ascertain various aspects of the deceased to whom the remains could belong: e Age, sex, height and built of the subject

¢ ¢ ¢ e e Due

Cause of death Time of death Deformity, injury or any bone disease Facial Reconstruction , Skull Superimposition to the availability of extensive data the interpretation are quite accurate.

4.1.2.6 Facial Reconstruction ; Facial reconstruction is an important aspect and aid in the identification of the deceased person from the skull. A lot of data has been generated about the thickness of skin/flesh at various sites of the face. The sculpturing material is plastered to various thickness’ in accordance with age and sex of the subject, on the skull itself or on its sturdy cast. With appropriate skin tint, eyes, ears, etc., a life-like face is created. Computers have, more or less, dispensed with the above reconstruction technique. The computer is fed with the skull structural data and other facial feature data and cranial structure is created in three dimensions on the monitor with special software. The facial features in flesh-like shades are created and contoured according to depth/thickness data already available with the computer. The facial figure thus obtained is digitised and the obtained data is compared with similar data generated with that of the suspected subject. The computerised reconstruction has not only speeded the process but it has increased the accuracy manifolds. It has also greater manoeuvrability. 4.1.2.7 Skull Superimposition

Skull superimposition on the photograph of a suspected subject, for identification purposes, have been in use for decades now- since the Ruxton case in which the technique helped to established the identity of the victims for the first time in the forties of the last century. Computers have speeded up the process tremendously. They have improved the accuracy also, many times. 4.1.3 Medico-Legal Work Doctors are not only utilising computers in the treatment of the patients but

medico-legal experts are also using computers in solving complex medico-legal problems:

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4.1.3.1 Subcutaneous Injuries

In medico-legal cases it is usually difficult to evaluate internal injuries, especially when the injured is still alive. Computerised scanning devices evaluate the nature and extent of damage, to determine whether the injury is grievous or otherwise. In fatal cases it helps to ascertain their contribution toward the cause of death.

4.1.3.2 Post-mortem Examination In mass disasters post-mortems are conducted mainly to identify the victims. The identification data of each individual is collected and serially stored in the computer. This data is then checked and compared with the available data of the suspected deceased persons, collected from the relatives and other persons who knew the victims including the doctors who had treated the victims in their life-time. The data for the purpose relates to: e Dentures, broken, extracted or repaired teeth and their alignment defects, which provide excellent evidence. e Previous bone injuries and their X-rays and deformities. They have proved excellent features for identification purposes. ¢ Scars, tattoo marks and birth marks, if available, that provide excellent evidence. ¢ Anthropometric measurements for developing portrait Parle. ¢ Description of wearing apparel. Similar descriptions and data are also kept in cases of unknown and unclaimed dead bodies. Computerised data is also fed into the computers and relayed over the network or internet. They have been identified and their relatives located frequently through this mode. 4.1.3.3 Medico-legal Research

In medico-legal work one of the trickiest problems which has defied an accurate solution, is the finding of the time of death. This is because it involves many variables: ¢ Health of the subject. ¢ Cause of death. ¢

Environmental conditions, like wind, high or low temperature.

e Existence of special circumstances like addiction. * Up-keep of the body: exposed to elements, covered with snow, water , sand, earth, etc. Computers are now being utilised to record the data of these variables. The synthesis of the data of these variables, it is hoped, would give more accurate results. 4.2 COMPUTERS AND LAW their dayComputers are being used increasingly by lawyers and judges, in to-day work to store, classify and locate: ¢ Correct laws. ¢ Correct case law.

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¢ Correct sources of scientific help. e Precedences and conventions.

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.

The huge libraries are now giving way to computers, CDs and Floppies. On the flick of the mouse or on pressing of a button the information on the required

the topic, whether it is on law or on expert evidence, is before the judge or

lawyer, whoever has requisitioned the same. Again, if it is so required, a , printout of the information can be obtained. Outstanding luminaries in law even go beyond. They record the summaries of the evidence on day-to-day basis. They anticipate and note the possible line of defence and collect appropriate material to rebut the same. The simpler uses of computer are:

¢ Keeping inventory of the cases on day-to-day basis. e Prepare brief on the case. e Prepare a daily roaster. The lawyers and the judges are somewhat slow in picking up the technology but the advantage are so many that no lawyer worth the fight or an enlightened judge can ignore the onslaught of the computers.

4.3 NATURE Computer is a device to store, preserve, process and reproduce data on demand in the desired form. It is a complex instrument with still more complex components. It started with computing figures and digits. Now all types of data, digits, letters, pictures, graphics, voice, action can be preserved, processed and reproduced or created at unbelievable speeds, with uncanny accuracy. Its complexity involves high technology. Yet the instrument is so streamlined that with practice one can use the instrument usefully without knowing the technicalities involved. As this discussion is meant for non-technical potential users, the technical details have been omitted. The computer has essentially the following components:

1. Central Processing Unit (CPU). 2. Input, throughput and output devices

4.3.1 CPU Central processing unit is the main part of the computer. It contains the memory, storage of information and the system and application software. The nature, extent and capacity of the computer determine the configuration of the computer. Special software for specific purposes is also inducted. Microprocessors have drastically reduced the bulk of the computers. 4.3.2 Input Devices e Input devices are a keyboard, a microphone (sound input), scanners (for

graphic inputs) and obtained network/Internet connection. Keyboard is the main input device. Downloading from Internet is becoming an important input (as well as an output device). Likewise scanner is an optional input device. But its utility is increasing everyday.

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4.3.3 Output Devices

Output devices vary. Most important and perhaps indispensable is the monitor. Printer is optional, important device for output purposes. Network and Internet modem connects the computer with outside computer world, which are used both for input and output purposes. Network connects the computer via cables and microwave towers. It may be 1. Local Area Network (LAN) 2. Wide Area Network (WAN).

The two systems are also used by organisations for internal connectivity, for secrecy and security of the information. 3. Internet.

Internet to start with was connectivity among a group of computers. Now it is a global network of computers and provides world-wide connectivity. There are a number of organisations, which provide connectivity to other computers through their network. They use microwave towers or satellites for the interconnection. The network of networks is called Internet. Internet connectivity may be termed a technology. It has no tangible site. The intangible Internet activity site is called cyber space. Internet has been compared to spider web, but the Internet covers the whole world and known as World Wide Web (WWW). It connect any two computers, using Internet, anywhere in the world. The connecting media does not involve physical entities in the usual sense.

4.4 COMPUTER WORK Computers handle data of all sorts. They carry out a number of tasks relating to data: 1. Compute . Store . Arrange, rearrange

Compare . Transfer to other files Print printouts (with printers) Transmit or receive (FAX)

Provide E-mail facilities ONAMAYWN © Provide wealth of data information available on the Internet through Internet modem. The tasks are performed by computers with speed and accuracy which make them indispensable in all organisations.

4.5 COMPUTER CRIMES The advent of computers is not a one-sided blessing. On the one hand it has and has completely revolutionised the functioning of science and technology nkable made possible certain scientific developments, which were unthi

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public in otherwise. On the other hand, it has created a big headache to the t general and the police in particular. The criminal has not been slow to exploi the potential of the computers.

4.5.1 Nature Computer

crimes r compute can be:

are illegal activities

involving computer

systems.

A

q

1. Object of crime 2. Instrument of crime

3. Repository of evidence pertaining to crime The criminal has exploited the criminal potential of the computer for varying motives: e Gains: Frauds, counterfeiting of currency

* Duplication of signatures, documents, etc.

° Spying e Revenge

¢ Theft of intellectual property e Mischief e Offences against person Computer crimes are a different species. There is continued explosion of computer crimes. The losses are colossal. Further, like the universe, they are expanding in all directions with’ the lightning speed. The investigations are extremely difficult and often the criminal goes unpunished. The main hindrances, which the police face, are: e Global dimensions

High-tech crime

Inadequate or non-existent laws on national or international level ¢ Inadequate international co-operation ¢ Inadequate governmental or public defence

4.5.2 Motives Computer crimes are committed mainly for money. However, there are other motives also, which are:

1. Personal Vendetta

2. Blackmail

3. Ego 4. Mental aberrations 5. Mischief

6. Sexual gratification 7. Steal vital secret information

8 . Destroy, damage or change vital computerised various installations

control

systems

at

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In view of the above the computer crimes need special attention of the governments and also of all those who are concerned with the criminal justice system.

4.5.3 Characteristics Computer crimes have the following features: 1. Intangible Evidence.—The evidence relating to the computer crime is intangible. The evidence may have been erased, damaged or secreted. The correct facts may not come to light. It may not come to notice even for a long time. Even if it comes to notice, the evidence connecting the criminal with the crime is often not available, or, it is insufficient to permit prosecution or conviction of the culprit. 2. Substantial Losses.—The incidence of computer crime, in India, is fairly

low. The main reason being that the computerisation is yet in its infancy. Besides the crime is high tech crime. Reserve Bank of India has reported only one crime (up to 1998) in which the overdraft limit was raised for the borrower.

This is in spite of the fact that other bank frauds value-wise and volume-wise have increased substantially. The losses in USA, however, are indicators of the

shape of things to come. The losses in term of millions of dollars for the various types of frauds there are: e Fiduciary Frauds = >24 e Software Piracy = 321 ed Stic ¢ Sabotage through logic bomb e -Unauthorised Access (Penetration)

>8

3. Prevalent Climate.—As in other crimes, computer crimes are facilitated or inhibited by the prevailing working climate: ¢ Checks and controls e Financial and societal stresses ¢ Risk standards e Ethical standards ° Existing laws e Identification modem of the cone artistic e Strategy evolved to prevent such crimes e Efficient or inefficient investigative agencies 4.5.4 Investigative Impediments Computer crimes are different from the usual crime vis-f-vis investigations. There are no eyewitnesses, no usual evidentiary clues, no documentary evidence worth the name. Even the computer misused, may have only erased data which may be beyond the comprehension of a normal investigator or even of an expert. Computer crimes are difficult to investigate for the following reasons:

| , | 4.5.4.1 Hi-tech Crime is Computer Crimes are hi-tech crimes. Besides, the information technology the proper changing very fast. The normal investigator does not have

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background in information technology. Special investigators (or team) have to be created to carry out the investigations. The FBI has done it. CBI should'do it and create Computer Crime Investigation Cell. The Cell should also have private computer specialists (organisation), honest and reliable who can provide latest technical know-how for the purpose.

4.5.4.2 International Crime Computer crime may be committed in one country. The resultant fall out may be in another country. Often there is no trail. Besides, jurisdictional problems arise. Interpol does help but it has its limitations. The usual crime scene is the cyber-space. The Computer terminal may be anywhere even at Delhi or New York. The criminal need not indicate the place. And he does not. Besides, he erases the telltale marks of his handiwork. Often the only evidence he leaves of the crime is the loss to the victim.

4.5.4.3 No-Scene Crime Computer-satellite-computer link can be anywhere. An input device need not be even a computer. A debit or credit card can do the trick anywhere. 4.5.4.4 Faceless Crime The criminal has just to drum a keyboard and drums of money are taken, away,

no

personal

exposure,

no

written

documents,

no

signatures,

no

fingerprints, and no voice. The criminal is truly faceless.

4.5.4.5 No-time Crime The commission of computer crimes is done with the lightning speed without leaving any trace relating to the time element. It may take days, weeks, even months and years before the crime is discovered. By the time the little evidence of the crime may have also vanished completely.

4.5.5 Classification Computer crimes have, by some, been classified as: 1. Internet Crimes 2. Computer Frauds 3. Computer Crimes Internet crimes are those crimes, which involve Internet in their commission.

The ultimate effect of the activity is on the computer or the computer user connected to the Internet. The following computer crimes have been accepted as Internet crimes:

|. Logic and time Bombs E-mail bombing Induction of virus or worm Introduction of Trojan Horse Child pornography, Child sexual abuse Hacking WN NQF Hijacking

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8. Piracy 9. Theft

10. Blocking of Service 11. Intrusion (Break-in), Spoofing, Spanning. 12. False propaganda 13. Espionage Eavesdropping Conversion channel

14. Disruption

of

service,

financial

system,

air

traffic

control,

communication system

15. Promotion of terrorism The Internet crimes are also known as cyber space crimes

Computer frauds involve embezzlement or defalcations tampering with computer data, record or programme, etc. Computer

crimes

are

those committed

with a computer:

achieved

by

theft, forgery,

counterfeiting etc. The difference, if any, however, is academic only and has been ignored and the two terms “fraud” and “crime” have been used interchangeably in the present discussion. The major types of crime are: 4.5.5.1 Information Piracy and vandalism

Electronic intrusion has serious security ramifications. It has vast personal, social, political and economic damage potential through electronic eavesdropping. This is possible through: e Scanner ¢ Cables. They act as antennas. e Electromagnetic signals of the computers. ¢ Network or Internet.

Information worth crores of rupees is stolen every year.

4.5.5.2 Theft of Information Services ¢ Mobile Phone Cloning ¢ Telephone cards’ counterfeiting ¢ Illegal access to telephone boards 4.5.5.3 Organised crime

Drug trafficking, child pornography, obscene literature/films are being promoted through Internet and computers. 4.5.5.4 Infringement of copyrights Infringement of the copyright is one of the most serious computer crimes.

Software piracy entertainment programmes are often duplicated and sold in the market; causing heavy losses to the copyright holder. } | 7 4.5.5.5 Theft Theft of equipment, accessories and proprietary items 1s quite common. Computer as a whole or its parts may be stolen. Software may be stolen. The

the usual crime is on the increase. But this is a computer crime, which has parameters of normal theft cases.

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fetch 4.5.5.6 Wire Tapping It is high potential crime. Automatic Teller Machines (ATM) are high Trisk targets for the bankers. Those ATMs where the cables can be approached without being discovered easily are prone to the depredation of the defrauder. The necessary data of the debit or credit cards used in the ATM bank can be recorded and copied for misuse through wire-tapping. A lot of money can be taken out with this stolen data before the fraud is found. The task is difficult but not impossible. The criminal gets hold of-~the telephone line connecting the ATM with the bank computer. He attaches a wireless microphone to the line and records the signals when a customer is using the ATM. After he leaves the machine, the criminal plays back the signals, tripping the machine to release cash. An accomplice, who is at the ATM, collects the money. The debit goes to the victim whose ATM card data had been stolen,

recorded and used. A few years ago, a telephone operator in Japan tapped an ATM wire and defrauded customers from three different banks of considerable amount before he

was caught. (CH) 4.5.5.7 Data Destruction The data stored in a computer can be destroyed, contaminated, changed. Usually the following techniques are used to destroy the data: ¢ Manual e Virus

¢ Logic bomb . Manual technique is used for immediate destruction of the data. It is equally effective for changing or contamination of the data. It is the same process by which genuine deletion or substitution is done. It is simple. Even a novice can use the technique. Usually disgruntled employees use it. The current data, important stored data or the command software are the targets of the vandalism.

4.5.5.8 Virus Virus is an input malicious programme, a sort of secret command. Software programmed to replicate itself like virus to either slow down or destroy the data or functioning of a computer. 4.5.5.9 Logic Bombs

A logic bomb is also a secret software program, which is introduced to destroy the data or the functioning of the computer on the command of this logic bomb. The logic bomb may be: ¢ Time-targeted ¢ Data output targeted In the former logic bomb, the destruction of the data or command module takes place at the time fixed by the logic bomber in the secret command. In the latter, the destruction takes place when the operator processes a particular data or command module. The extent of data destruction depends upon the logic bomb command.

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Only computer programmers can introduce logic bombs, or viruses. An ordinary computer operator cannot do so. The logic bomber ensures that it cannot be erased easily. Usually he hides the programme within a seemingly harmless item. Two employees, one being computer specialist, employed by an organisation got dissatisfied with the organisation. They introduced two logic bombs in the system. The first bomb was to erase the command programme of the computer on a particular date. It did. The logic bomb consisted of only 45 lines of instruction. The second logic bomb was to “explode” when the computer was to be tuned toa particular programme. It did. Fortunately the organisation had kept hard copies of all the important data which was critical to restore the computer functioning. But the restoration work cost was over a million dollars and seven days of non-functioning of the computer. Both the employees were traced, tried, convicted and imprisoned for the computer Cc

crimes. (CH) 4.5.5.10 Spy Software

Spy software is utilised to find out PASSWORDS and other vital “entry” information to a computer system. The entry is gained through an innocent looking item like an e-mail greeting. The message introduces the software and allows the eavesdropping. 4.5.5.11 Money Laundering

In “Aladin and the Lamp” story, the wizard exchanged new lamps for old dirty black lamps. The modern computer wizard facilitates change dirty black money into white shinning dollars, pounds and also secreting them in some secret Swiss Bank without even the bankers being aware of the same by credit cards, super smart cards or electronic fund transfers through any of the machines which accept deposits. “Hawala” like operations, which rocked the Indian political scene in the nineties, would no longer occur. The computer is becoming the big Hawala agent. It transfer with lightning speed the money to any accounts across the borders, to any part of the world, in spite of the fact that the governments may have laws to restrict foreign currency inflow or outflow. It has promoted underground or parallel banking. Political and criminal Mafia are amassing wealth abroad in secret coffers or building castles secretly and with impunity. E-commerce is also making the traditional checks and counter checks redundant. Any amount of money can be dumped into an account anonymously in a country, which allows complete privacy to its banking customers.

4.5.5.12 Electronic Funds Transfer Electronic money transactions are becoming increasingly common. Transfer of money from one bank to another, from one branch to another branch, or, value

for goods received paid electronically is becoming routine mode. Many modes exist:

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° Electronic Fund Transfer through computer machines.

TRIALS ie

e Automatic Teller Machines (ATMs) e Various types of cards: Credit Cards, Debit Cards, Smart Cards, Super

Smart Cards, Optical Memory Cards, etc.

e Internet

Crimes associated with these modes of transfer of money are: . ¢ Diversion of money from rightful to fraudulent payee ¢ Credit cards are copied and data misused ¢ Credit cards are stolen e Unauthorised persons use lost credit cards e White cards are used in place of originals e Wires are tapped and necessary data stolen to operate ATMs account e Withdrawals and deposits are manipulated to others accounts ¢ Tele marketing money is transferred from the victims’ accounts without providing the promised goods worth the money In one computer operation a dishonest computer operator by instructing the computer got one per cent of the interest from all the saving fund accounts transferred to his account. (CH)

4.5.5.13 Electronic Personation In e-commerce individuals, their writings, signatures, voice, etc., do not figure. It is only through PASSWORDS that identity of an individual is established. Thus stolen Passwords are working havoc. Illegal money transfer, diversion, collection and expending are increasing. The anonymity of electronic personation is causing extensive damage. Better electronic identities through biometrics promise better personation prevention. 4.5.5.14 Hackers Hackers are intruders intruding into the computer facilities of other persons or organisations unauthorisedly. The modus operandi is simple. They steal passwords and enter into the security system of a computer system. They access the classified information and use the same for: 1. Mischief Gains Destroying data Utilise the paid time on their Internet. Bee a Manipulate debit/credit accounts or limits. Usual hackers are: 1. Students 2. Information technology enthusiast 3. Egoist

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4. Zealots of fringe organisations 5. Spies and agents of other governments or competitors Hackers, like those mentioned above (especially 5), can certainly cause a lot of damage, inconvenience and disturbance in the functioning of the system.

4.5.5.15 Crackers In recent times the art or craft of cracking computer has reached high level. The cracking is achieved by: 1. Trojan Horse: A malicious programme is created and sent on WWW with secret software to secure entry into the computer system. The computer uses the programme and thus provides the entry to the system to the hacker.

2. Password Sniffing: The wire is tapped and the access password obtained. 3. Bribing Computer service staff: The persons who repair and service computer can gain entry comparatively easily. They are bribed to gain entry into the system.

4. Bye-passing: The computer is entered by bye-passing the password. 5. Piggybacking: The entry is gained by attaching the computer to the connections of the authorised user into the computer system of the target computer and lifting the entry code. 4.5.5.16 Software Piracy Software piracy is a serious crime. In USA copyright holders lose 15 billions of dollars due to this crime every year and the amount is increasing every year. The pirated software cost only the films and disks. Consequently the pirated software is dirt cheap as compared to non-pirated stuff. Thus, software piracy is a roaring business everywhere.

Software piracy is an expanding crime. The ‘industry’ has unlimited scope for software piracy. However some special programmes are being developed to counter the menace.

4.6 COMPUTER CRIMINALS Who are the computer criminals? They are: 4.6.1 Employees Disgruntled employees, ex-employees, temporary employees often succumb

to the goddess of the quick buck. Besides, negligent and highly obliging employees also contribute heavily toward computer crimes. They fall pray to the charm of the cone artist easily. The honesty angle of the employees being posted to the sensitive posts, at promotional stages and at the stages when duties of substantial importance are being assigned to the individuals, should be checked. The service rules should be made where clearing of honesty angle should be an essential ingredient. The clearing process must utilise the modern scientific and technological aids, including the following:

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e Polygraph tests. ¢ Psychological stress evaluator test. ¢ Brain printing e Graphological evaluations. Information technology is highly technical. Those who are to use the technology must not only know how to handle it, but they must also know their pitfalls and how to avoid them. Unfortunately, the management-employee relationship, which was based upon trust for a long time, no longer exists. Hence checks and balances must form essential part of the system. 4.6.2 Computer Experts

Computer programmers and computer consultants; individuals and firms, know that how a little change in the programming (computer instructions) can make big changes in its functioning for financial aberrations (for gains from the competitors) or for mischief. Some of these specialists are certainly inveigled by the charm of the easy and plentiful money and go astray. They “utilise” their skills to make a fast buck, some of the multimillion dollar worth of frauds are by these computer and cyber space experts. 1. A life insurance company utilised computer to collect about 2000 crores dollars illegally. 2. Stanely Mark Rifkin, a computer programmer collected 10.2 million dollars in one go. 3. Two computer programmers caused damaged worth about one million dollars to the computer system of an organisation. 4. Evenanon- expert churned out receipt worth over rupees 27 lakhs. Unfortunately computer experts are essential and indispensable. Big organisation must have such experts on their pay-role, but their integrity must be checked periodically. Those who cannot have experts of their own, must choose part-time experts of proven integrity. Wayward experts can prove extremely costly. ‘Eternal Vigilance’ is the word to cope with the specialist crook. 4.6.3 Other computer criminals:

¢ ¢ ¢ e ¢

Competitors, both indigenous and foreign Hostile (even “friendly”) foreign powers Detectives Mischief mongers Hackers in varied forms.

It has been estimated

that in USA, number wise, the disgruntled, retired,

dismissed or temporary employees commit about 75 per cent. of the computer intrusion crimes.

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4.6.4 Handling It is heartening to note that the Indian government is aware of the positive and negative potential of the information technology. It has created a ministry to deal with the various aspects of cyber world. It is hoped that the technology will receive due impetus to usher in the new era, and take necessary step to tackle the high-tech crimes which it is bound to generate including those relating to banks. 4.6.5 Laws, Legislation The Government of India has already enacted an Information Technology Act, keeping in view that the existing enacted laws in India, were inadequate to deal with cyber crimes, as cyber crimes could not be visualised by the law

makers, when the laws were made. The three main streams of laws were enacted long ago. The Indian Penal Code was enacted in 1860, and The Indian Evidence Act in 1872. Only The Criminal Procedure Code has been re-enacted in 1973. But in 1973, vision about computer crimes was not clear in India and hence the

same were not taken into consideration. It was, therefore, apparent that new laws had to be framed to permit efficient handling of the cyber crime, the cone artist and the intangible evidence thereof. The Indian experience in the actual functioning of information technology is limited. The experience relating to cyber crime is still less. It was, therefore, imperative that the experience of the developed

countries,

where

the crime

is prevalent for the past few decade

should be utilised. The organisation which have developed expertise in this respect are:

1. Organisation for European Co-operation and Development (OECD) The organisation has already issued a set of guidelines. They continue updating the same. The publications should be useful. 2. The United Nations Organisation (UNO) It has published a crime control manual. It is a very useful guide. It is updated periodically. It should be consulted. 3. Some countries like UK, USA, Germany, Japan and France have framed laws relating to computer frauds. Consultation of all these works can go a long way to make better laws. India has utilised the available expertise and framed the ‘The Information Technology Act, 2000’. It is a good beginning. But it has to be updated periodically as the experience relating to its functioning is gained.

4.7 PREVENTION Even with the best of laws, with efficient investigating agencies and full national and international co-operation, the successful right conclusion in cyber crime investigation will remain a difficult proposition in most of the crimes for the reason already mentioned. The emphasis, therefore, should be on the prevention of cyber crimes. A lot of research is going on to make the system completely secure. Tangible results are also forthcoming. However, the information technology is advancing ing at such a pace that its security system is not keeping pace with the advanc

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ts. He tries.to be technology. The con-artist pursues and peruses the developmen ity specialist on one step ahead of the security system developments. The secur It is hoped the the other hand tries to reverse the position. This is a race. righteous wins. the Philosophically prevention of computer crime is real homework. Secure an unending race target. Pursuit of the computer criminal on the other hand, is

t the in the cyber space against time, against the unknown criminal, agains

intangible

data

in

all

its

varied

forms

and | processes,

(input,

output,

throughput). Prevention, therefore, should be easier, less expensive and more

successful.

. see 4.7.1 The Basics If computer (or IT) crimes are to be prevented, the trinity of security must be

scrupulously maintained properly:

Controlled Access

Harden the Target

Eternal Vigilance

Fig. IV-1 4.7.2 Access Only authorised persons should have access to computer. Even close colleagues should not be allowed to use/misuse the computer. Evolve an adequate system of identification and authorisation of control and access: 4.7.2.1 Passwords Access to computer is frequently controlled by passwords. The management should ensure: ¢ Passwords shguld be personal, secret and unique. “One password-one person” should be the rule. If an operator changes, the access password to the computer should also change invariably. ¢ Password should be alphanumeric and longish —- not easily picked up by unauthorised person. ¢ Password should be changed periodically. The importance of the data being handled should determine the periodicity. After the specified period the password should pass off automatically.

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¢ The operator using the password must know (or made to realise) that

all work done on the computer with the password will be his responsibility — he should acknowledge this in writing, and cautioned

not to pass on the password to any person, however close or intimate.

4.7.2.2 Cards Authorisation through cards insertion is another or additional security system. The card is inserted in the computer and the computer allows access to the specified data/information in the computer. Unless the card is stolen and misused, the card provides adequate security. Two types of cards are in use.

e Magnetic strip cards. They carry the authorisation and identification data in MICR. The computer reads the message and allows/disallows access to its specified data. ¢ Microchip cards. They contain a microchip with memory. The computer does the identification. It allows or disallows access, depending upon the data on the card.

4.7.2.3 Biometrics Access through biometrics data is ae most secure in-thing in data protection. It permits access to the computer only to the authentic user. Retina images

fingerprints and voiceprints are being utilised for the purpose. They are individualistic and hence offer excellent security against the intruders. Their complex nature, however, has been the bane for their universal adaptation. 4.7.3 Secrecy

There is enormous data in the ots Often a user needs only limited data for his Bona fide use. Whenever possible a user should have access only to the relevant data. The other data should not be accessible to the non-user. It should be safeguarded with passwords against the unauthorised intruders. 4.7.4 Integrity

It is essential to preserve the integrity of the data stored in the computers. It should not be possible for an intruder to alter, destroy or contaminate the stored data. The following steps help: 1. The routine computer workers should have one-way computer terminals, so that the operators should not be able to alter or erase the

data in the computer. 2. The operator should not abuse or allow the abuse of official computers for personal purposes. . The operator should use only authorised data. . The operator should alter only authorised data. The operator should not leave the open computer unattended. All changes in the vital computer data should be authorised/ wDNF supervised at least by two persons. The data should be checked before and after the changes in all important cases.

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7. Alterations of data include additions, deletions, modifications, creation, storing and transport of data. The work must be trusted not only to competent persons but they should also be highly trustworthy. The supervisor must check the work. 8. The operator must be assigned the duties/responsibility in writing.

9. The working instructions must be given in black and white. A certificate that the same have been read and understood should be obtained. The certificate helps to fix the responsibility and accountability in- case something goes wrong. 4.7.4.1 Staff

The most important entity for security against computer crime is the proper selection and training of the operators. The integrity of staff employed in computer work should be above board. In addition, they must be intelligent, experienced and dedicated to their work. Further, they must be checked periodically for their integrity through scientific methods, as a part of the system, routinely. A person may be highly intelligent, extremely efficient, yet if his integrity is doubtful, he is positively a potential source of serious trouble and hence a great liability to the organisation. There should be stringent rules and practical action modes to keep an organisation free from the dishonest employee at all levels. The importance of this aspect is apparent from the fact that the staff commits seventy five per cent. of the computer crimes or they are committed with their collusion. The following steps keep the bunco at bay: 1. Create security consciousness.

2. Screen, for security, even the highest, who are involved with security sensitive data. 3. Train staff in security management. 4. Do not assign temporary or new staff to sensitive seats. 5. Provide action plan to the concerned if and when computer crime is committed. The supervisory staff has to be computer literate so that they can understand how the system works. They should develop an eye to detect criminal activity and, thus, ensure against the onslaught of the criminal. A drill for the supervisory staff should be evolved and the drill should be carried out periodically to ensure crime-free working of the system. The supervisory staff has, of course, to know the working of the computers. 4.7.4.2 Accountability

It is important to fix responsibility in case a crime is committed. This is possible if exhaustive working instructions and rules are framed and kept updated. A copy of these rules should be provided to each member of the staff. The member of the staff should provide not only a receipt of the same but also furnishes a certificate that he has read and understood the rules. The staff must realise that any crime committed through their access mode or computer is their responsibility.

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4.7.4.3 Logging Logging is keeping the record of the work done on/with the computers. Proper logging helps to find out: e The time of occurrence of crime. e The nature of occurrence: intentional or accidental. ¢ The possible perpetrator. ¢ The extent and ramification of the crime. Proper logging is the main source of information for ultimate processing of the computer crime. It should, therefore, be introduced in the working schedule of the computers, even if new software may have to be introduced in the system. There are various logging systems for various types of applications:

° Security log. ¢ Transaction log. ¢ Work log. Induction

of date, time and user’s name

are useful, especially when

the

computer is being used by a number of persons. It is not a necessity in personal or stand-off types of computers when only one person is using them. The information is still useful if the computer is handled or mishandled by an unauthorised person. The supervisory staff must check periodically that the logging is being done properly and that no unauthorised activities/ work has been done on the computer.

4.7.4.4 Encryption

Computers

are

being

utilised

extensively

to

transmit

information,

entertainment materials, teaching materials, messages etc., through network and

Internet, through cables, microwave transmitters or through satellites. The transmission and receipt of these messages has to increase progressively in the coming times. It can be misutilised by the unscrupulous if it is not protected. Coding has been extensively utilised to keep the information confidential and secret. Encryption technology to code the messages is therefore the necessity of our time. The only alternatives to encryption are: 1. Dedicated lines. They are too costly especially for long distances. They are being used for Local Area Network only. 2. Special modems: Two modems work in tandem, one at the dispatch site and the other at the receipt site. They recognise signals from each other and thus messages are conveyed. 3. Dial back facility. In this mode the information is transmitted only when the party at the receiving end dials back for the message. 4. Optical fibres: For local area network if, instead of usual cables optical fibre is used, the messages can be protected from wire-tapping. The optical fibres do not emit electromagnetic rays which, thus prevents interruption and misuse of the messages. '

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Encryption has been in use in other modes of transmission also, especially in wireless message. The same technology, with additional modern safety features, can be used to transmit messages among networks. 4.7.4.5 Physical Protection Theft, destruction of computers, induction of virus and logic bombs and erasing and alternations of data in computers are hard realities. Besides, accidental fires, arson, explosion and natural calamities like earthquake,

hurricane and storms are also realities, which have to be provided against. Computers and computer contents, therefore, need physical protection. Physical protection has to follow usual safety pattern. Additional safety measures needed for computers are: 1. Duplicate tapes, diskettes of data, command and log systems should be preserved at off-site places. 2. The duplicate files should be updated periodically. 3. The functional ability and the utility of the duplicates should be checked periodically. The back-up information, thus preserved, proves invaluable guide in case of computer crimes. They may indicate the perpetrator, permit the assessment of the losses and the reconstruction of the original facility. Computer crimes in India are yet limited but they are round the corner. They are.truly colossal, global and novel. Their investigations are highly intricate and daunting. Prevention is the best alternative to investigation. It is comparatively easier.

In a case offraud a forger forged receipts with the help of a computer. The genuine signatures of the victim were scanned on to a computer and the signatures of the victim were printed in blue ink on the receipts worth 40 lakhs of rupees. The duplication and their perfect ‘replication’ revealed the crime. (CH) 4.8 COMPUTER CRIME INVESTIGATION Investigation of computer crimes where the computer itself has been stolen, broken and burnt follow the usual techniques used in investigation of crime against property and offers no special problem. The other crimes involving computers are tampering with software either while handling the computer or through Internet or network. Both types of crimes need thorough knowledge of computers. Computer experts are indispensable in the investigation of such crime.

4.8.1 Basics of Investigation The investigation techniques of computer crimes have to be varied according to the nature of the crime. However certain basic aspects may be mentioned here. |. The investigator must understand the functioning of the computer, the cyberspace and the Internet. He has to be either a computer technologist. Or, he must procure the services of computer expert. 2. Even when information sent via Internet is deleted or overwritten it can be recovered. It needs skill to locate and collect it.

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3. In crimes involving Internet, the information is distributed on many computers. The information could be coded. Successful investigation is possible only with the help of a computer expert. It is not feasible to collect all the hardware. A selection has to be made and the computer expert is the right person to do so. ¢ 4. The evidence in computer crimes as in other crimes, consist of the following: e Instrument of crime. e The object of crime.

e The product of crime. © The modus operandi. They have to be located, identified and collected or recorded. 5. Prevention is far simpler and less costly than investigations. Computer crimes are yet limited in India. But the state of affairs cannot continue for long. Computers have unprecedented potential for unlawful gains, for mischief and for excitement. The potential cannot remain hidden from the criminals. Once they understand its mechanics and its potential, they will let loose hell on earth. The law keepers must prepare themselves to fight and maintain control over the imminent onslaught of the menace.

4.9 CASE LAW 4.9.1 Computer Records Confession The other aspect on which great emphasis has been laid by learned counsel for the appellant is regarding the manner of recording of the confessional statement. Evidence of P.W. 131 ASI Kamlesh is of great importance. The confessional statement runs into 9 pages. The witness has categorically stated that she had recorded the confessional statement on computer as per the dictation of the DCP. In her cross-examination, she has stated that the time taken was 6 hours. The accused has taken a stand that his signatures were taken on blank papers. As noted above, the accused never made a grievance about any deficiency in the confessional statement till 19-4-1995. That is of great significance. Merely because the confessional statement was recorded in a computer, it cannot be a ground for holding that the confessional statement was not voluntary. Similarly, as DCP has given a certificate in typing when the requirement is that certificate has to be “under his own hand” that is urged to be illegal. It would be too technical to discard the confessional statement or doubt its authenticity on that score. This is merely a procedural requirement. The nonobservance does not cause any prejudice to the accused. It has not been shown as to how the accused was prejudiced by the certificate having been typed. Procedure is handmade and not the mistress of law, intended to sub-serve and facilitate the cause of justice and not to govern or obstruct it. Like all rules of procedure, the requirement of record “under his own hand” demands an

approach which would be rational and practical and not otherwise. Such minor deficiency, if any, cannot be considered to be a fatal factor so far as prosecution

case is concerned. There is one more important aspect which needs to be noted.

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Admittedly, the accused was a fugitive and was on the run. At the Indira Gandhi International Airport he was arrested for travelling on a forged passport, it has been accepted by the accused in his statement recorded under section 313 of the Code that he had sought asylum in Germany and was deported from there on refusal of asylum. As the records reveal Shri K.S. Bedi (P.W. 130) brought to the notice of Shri B.S. Bhola (P.W. 121) that on 22-1-1995

the accused wanted his statement to be recorded under S. 15 of the TADA and

requested Shri B.S. Bhola (P.W. 121) to do the needful. Shri Bhola talked toe the accused after sending everyone except his P.A. (P.W. 131) out of the room, and

asked him whether he was making a statement without any fear or duress etc. He was also intimated that the statement could be used in evidence against him. Despite that, the accused wanted his statement to be recorded. Shri Bhola had given time to the accused till 23-1-1995. The 1.0. was directed to produce the accused on the next date at 2.00 p.m. On 23-1-1995 the accused was again produced in the office of Operation Cell, Lodhi Estate. He was asked whether the statement was voluntary or under pressure. After ensuring that all procedures and safeguards have been observed the statement was recorded. A mere statement that requisite procedures and safeguards were not observed or that statement was recorded under duress or coercion, is really of no consequence. Such a stand can be taken in every case by the accused after having given the confessional statement. It could not be shown as to why the officials would falsely implicate the accused. There is a statutory presumption under section 114 of the Evidence Act that judicial ana official acts have been regularly performed. The accepted meaning of section 114(e) is that when an official act is proved to have been done, it will be presumed to have been regularly done. The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor. Such an attitude can do neither credit to the magistracy nor good to the public. It can only run down the prestige of police administration. !

CBX

1. Davinder Pal Singh v. NCT Delhi, 2000 Cri LJ 2034.

Chapter 5

VOICE ANALYSIS SYNOPSIS 5.1 INTRODUCTION 5.2 IMPORTANCE 5.3 NATURE 5.3.1

Phonemes

5.3.2 Variations in Voice 5.4 PROBLEMS 5.4.1

Telephone Utterance

5.4.2 Wire Tapping 5.4.3 Controlled Voice 5.4.4 Transmission Channel 5.4.5 Miscellaneous 5.5 COLLECTION 5.5.1

Mechanical Mode

5.5.2

Magnetic Mode

5.5.3 Electronic Mode 5.5.4 Optical Mode 5.6 EVALUATION 5.6.1

Listening (SRL)

5.6.2 Computer Analysis 5.6.3 Sound Spectrograph

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5.6.4 Automatic Speaker Recognition (ASR) 5.6.4.1

Feature Extraction

5.6.4.2 Feature Comparison 5.6.4.3 Normalisation 5.7 INTERPRETATION 5.8 MISCELLANEOUS 5.8.1

Psycho-linguistic Profiling

5.8.2

Integrity of Recorded Voice

5.8.3 Transcription 5.9 Case Law 5.9.1

Tape Recorded Voice

5.9.2 Tape Recorded Evidence

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VOICE ANALYSIS 5.1 INTRODUCTION Human beings as well as animals produce sound. The former can articulate the sound to produce and create language through which they communicate with one other. The animals cannot articulate their sounds and thus are unable to create a language of their own. The capability of the human being for the articulation of the sound distinguishes him from the other species. The voice of a person as well as that of an animal is unique, personal and basically non-imitable in its entirety. Therefore, it follows that the voice can permit identification of the person, under most circumstances. The voice is a medium through which a person communicates with other person(s). Previously this communication was possible when the persons were present within hearing distance. Most of the time, they could see each other and hence identify the speaker visually. The modes of voice communications have changed drastically in the last hundred years or so. The communicating persons need not be facing one another or be present within hearing range. They can be anywhere in any part of the world, in the sky or even under water, yet they can talk to each other. This has been made possible through the extensive scientific development in communication systems. The common modes in these present days are: 1. Telephones

2. 3. 4. 5.

Wireless telephones Satellite telephony Mobile phones Tape, wire and disc recording and playing the recorded version. The modes of recording voice (cassettes, floppies and discs) are becoming legion and increasing.

6.

Internet communication

The criminal has seen the possibilities for misuse of the various modes of communications

of voice, believing that he will remain

im cognito, and thus

nobody would see and identify him. It is fortunately no longer true. The voice can identify him and pin the crime on to him. Voice identification is practised from time immemorial. It was used to identify the voice of birds, beasts and wild animals. In addition, we depend upon the identification of our kith and kin as much on voice as on visual observations and the voice identifications are sound and correct. The problem arises when

the voice is disguised or imitated. Or, it is the unfamiliar voice of a stranger, or it

is a recorded voice. The misusesof an intitated voice for criminal purposes is mentioned in our sacred

mythology ‘Ramayana’. When Lord Rama left to hunt and catch the golden deer,

Goddess Sita heard her husband's voice, calling for help. The voice was created by Ravana, to make Lakshman move away from the scene, tofacilitate abduction of ita. (CH) Sita. (CH

-

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The major problem in voice identification is that though there exists an interspeaker variation, there are intra-speaker variations also which are due to numerous factors. The identification of birds, beasts or human beings by voice was primitive but it was quite effective, when no disguise was affected in the voice. It however failed when a disguised voice was used. Identification of a human being’s voice made via listening still continues. Both the lay and the expert witnesses give evidence on the basis of aural evaluation of the voice. ‘Instrumental methods have come up in a big way but they are not infallible, as one would wish them to be.

5.2 IMPORTANCE Identification of voice or sound has always been important. It is becoming

increasingly more important when voice mode of communication is being used increasingly in social, entertainment and business matters. It is also becoming an important weapon in the commission of crime. Consequently, to stem the tide of crime, the identification of the voice of the criminal has assumed tremendous

importance. Technically voice or utterance evaluation is important for:

1. Profiling of criminals; 2. Determination of integrity of the utterance; 3. Enhancing the intelligibility of utterance; 4. Transcription and analysis of the disputed utterance; and above all, 5. Identifying the speaker. The voice becomes an important clue material in many a case. In recent times the identification of voice has been effectively used to identify criminals, group of criminals, conspirators, abettors and supporters of criminals: 1. In the Bombay bomb blast case of 1993, the main perpetrator, abettors and controllers were identified through telephone tapping and recording their

voices. (CH) 2. In cricket match fixing, Hansie Cronje, South Africa team Captain, was fixed through telephonic conversations he had with bookies. (CH) 3. In the murder of a press reporter, the main organiser of the murder was allegedly a senior police officer, identified through voice identification. (CH) 4. In the recent terrorist attack on Parliament (i.e. on 13-12-2001), the main organiser a Prof. of Delhi University was identified through mobile phone tapping and recording his voice. The mobile recording was also very noisy. Voice identification plays an important role in the following types of cases: 1. Ransom cases, blackmail, threats, obscene calls, extortion, political or other intimidation. Bomb or fire hoax.

Black box voice identification. Intelligence collections — identification of spies, saboteurs. ay Identification of drug dealers - manufacturers, smugglers, suppliers, Se distributors, peddlers.

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6. Identification of smugglers, their contacts, distributors and sellers of smuggled goods in the country. 7. Handling terrorists — their identification. Identification of their partners, paymasters, supporters, and sympathizers. Collection of proof against them is provided by the identified voice(s). 8. The culprits often deny corruption charges. They claim a frame up. Voice recording along with the use of detective dyes overcomes the frame-up story. 9. Involvement of individuals in planning and execution of murders and other crimes. 10. Illegal deals in money, land or property, use of black money, transfer of money abroad illegally — Hawala transactions, etc. 11. Match fixing. 12. Soliciting — proof thereof. 13. Malingering — identification of the voice of the malinger, which is recorded covertly. 14. Identification of the persons involved in organised crime. Recently one of the gang leaders in Bombay was identified to be talking to a film star, assuring the latter that his rival would be eliminated. The telephonic conversation was recorded and the voice of the involved persons identified. (CH) 15. Identification of pumps.

16. Profiling a person from his utterances. This aspect of building the profile of a criminal is assuming great importance in fixing his place of origin, his social status and mental and emotional personality. Forensic psychologists are doing a yeoman’s job in this regard. 5.3 NATURE

When we expiate energy to create noise, we cause vibrations in the vocal cord and other related organs. They generate voice sound. Other organs involved are lungs, larynx, mouth, tongue, lips, teeth, jaws and other facial muscles, of course activated to do so by the brain, master of all human actions. The nature of the speech sound depends upon the number of organs involved, their dimensions, especially of tongue, mouth, nasal cavities, oral tract and pharynx. In addition to size, the shape, their tissue density, elasticity and positioning also matter. The speech sounds produced by these organs possess various characteristics which form a unique pattern on human ear.

If these sound organs are moved haphazardly, meaningless noise is created. If the sound is articulated, according to a system, it creates voice in terms of word or recognisable sound. The articulated sound thus, form the basis of oral communication between human beings. Coded articulated voice is language. Language consists of two functions: 1. Phonation. In this process acoustic signals ‘Phonemes’ are created. 2. Articulation. Phonemes are modulated to create intelligible words.

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i

5.3.1 Phonemes

They are Phonemes are audible or even non-audible vowels and consonants. characterised by: e¢ Time domain e Spectral domain e Time and spectral domain. Articulation of the sound to intelligible voice (including words) occurs through tongue, lips, palate, teeth and the various Cavities in these organs. As these organs have different dimensions, shapes and sizes etc., the articulations

made by different persons are different. Thus the sounds uttered by different persons vary. The main variants are frequencies and the dynamic range. Pitch of the human sound normally has the following ranges For men

= 90 to 140 Hz

For females

= 180 to 300 Hz

For children

= 300 to 600 Hz

5.3.2 Variations in Voice The human voice varies. Variations in human beings iter se are called inter speaker variations. They are due to many factors, both of organic and nonorganic origin. We have already seen the variations due to organ variations. Non Organic Variations are due to: ¢ Learning process of speech e Regional variations- influence of dialects ¢ Social structures e Educational level. The human voice varies in the same person also, from time to time. The variations are called intra speaker variations. In fact no person can create exactly the same voice even with his best effort under the same situations, created one after the other. These variations are due to: 1. Emotions. Emotions play an important role in speech variations. It is well established that psychosomatic effect can bring in changes in the voice even unintentionally. For example, when a person is asking for a ransom the fear of being caught affects the voice of the person. Likewise when a person is giving specimen utterances, his awareness that it might bring him trouble can bring in subtle change in the voice. The voice analyst has to take such possible variations into account. Rate of utterance oNMode of speech Disease

Mood of the speaker The emphasis given to a word at a particular moment. Physical discomfort interference Intoxication due to liquor or drugs a So oS

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The success or failure of identification of a speaker depends mainly upon: * Inter-speaker variability of the voice. It should be maximal. There is no measure developed for the same so far. ¢ Intra-speaker variability of the voice. It should be minimal. They are not quantifiable so far. Inter-speaker variations should be considerably greater than intra-speaker variations. ¢ The extent of the time period of listening to the disputed voice. ¢ The quality of speech. ° ¢ The instrumental efficiency in the recording and re-conversion of the utterance.

¢ The repetition of words.

e The time lapse between the two utterances. It should be minimal. e Disguise. There should be no disguise. Unfortunately there are ways and means by which the voice can be distorted considerably to create confusion in identification. ¢ The number of possible suspects. It should be limited. ¢ The sample utterances. It should be collected, as far as possible, under similar conditions to those prevailing in the recording of the voice in the crime situation.

¢ The recording device. It should be the same or similar. ¢ Transmission channel.

The originator of voice identification technique has claimed that the factors like age, loss of teeth, tonsils or adenoids does not affect. Likewise, he claimed that the attempts to disguise, mimic others, ventriloquism and whispering etc., does not affect the identification. But the claim is a bare statement, without experimental data and hence cannot be accepted. Extensive research is needed before the effect of the modifying factors can be overcome especially in crime situations. |

5.4 PROBLEMS The operational problems in voice identification are many and varied. They are often inherent to the system and have to be tackled carefully. Some of the technical problems are: 5.4.1 Telephone Utterance Telephone utterances are usually short

in actual crime situation. The criminal is often tense and due to psychosomatic effect the voice is not normal. Further the criminal may— ¢ Intentionally modify the voice ¢ Mimic

¢ Disguise

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The equipment involved also effects: e

Defective

telephone

apparatus,

voice

recording

apparatus

or

transmission device aggravates telephone utterance identification problems. ¢ Telephone recording of voices makes a selection of frequency range. Higher or lower frequency in the voice is not available in the utterance for evaluations. ¢ Transmission channel distortions modify sound. _

5.4.2 Wire Tapping

Wire tapping is also an important source, rather more frequently utilised source for recording the voice of the criminals covertly. The recorded voice is usually free from modifications, mimicry or disguise, because the criminal does not know that his voice is being recorded. Again the usual psychosomatic effect, present in threat, ransom or obscene calls is also absent. However, if the person has taken drugs or is under the influence of alcohol or if the criminal is in poor health, his voice may not be normal. The voice analysis may give erroneous results when compared with normal voice. External disturbances at the site from where the criminal is speaking also affects the recorded voice and create difficulties in its identification. They, however, do not inhibit the recognition of recorded voice of the criminal. The operational blues of recording and transmission devices, however, continue, as in case of telephone calls.

5.4.3 Controlled Voice Controlled utterance for evaluation and comparison with the disputed utterance also needs vigilance:

¢ Collect it at the earliest. Passage of time may affect the health of the person and hence affect the voice, which may increase the difficulties of its comparison with the disputed utterance. ¢ Transmission, recording and reproduction devices have great influence on the quality of the voice. Use, therefore, whenever possible the same equipment for the various processes involved. ¢ Create and record the voice under same or similar conditions whenever

possible.

In spite of efforts to recreate corresponding conditions, certain lacunae remain. For example, the psychosomatic effect due to tension at the time of commission of crime cannot be simulated.

5.4.4 Transmission Channel In telephones speech band width is reduced to the frequency range between 300 to 3.4 KHz. The reduced frequency of the voice, therefore, does not contain those features of voice, which are related to high frequency. Likewise dynamic range is also controlled in telephone transmissions. The features of the voice due to higher or lower frequency are not available for voice analysis. The frequencies and dynamic range available are only those which belong to the recorded range by the telephone and not from above or below this range.

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5.4.5 Miscellaneous Other factors that create problems in the identification and comparison of voice are external noises, transmission rate vis-A-vis recording rate and the malfunctioning of the various devices involved in the process. The differences in the language used in disputed and controlled samples also create problems.

5.5 COLLECTION Voice analysis is by two modes. 1. Speaker recognition by the lay persons who have heard the voice as victims or witnesses. 2. Voice analysis through recorded voice. In the first category the evidence is collected through transcription of the statements of the victim or witness. It does not involve voice analysis, though in some cases, speech analysis (words, phrases, accent, and mannerism in talking) may help to construct a profile of the criminal. It is rare. The identification of the voice through this mode mostly depends upon: ¢ The ability of the listener for speech recognition. ¢ The amount of utterance the person has listened to. ¢ The familiarity with the voice. e The involved period between listening to the disputed and the sample utterances.

¢ The emotional condition of the listener at the time of the disputed utterance.

¢ The personal involvement of the victim. e External noise. The real collection of voice evidence is in the second category of evidence. Here the voice for analysis is almost invariably transposed through transducers. The voice is collected through recording. The following are the usual methods for recording voice:

5.5.1 Mechanical Mode In this mode the famous old phonograph disc of shellac was the first to be introduced. Later the material of the disc changed to wax or tin foil disc. Tin foil drum was also used. This mode of recording is no longer in vogue. Vinyl discs replaced the above mode but they are also becoming obsolete. Motion picture audio track is also a mechanical mode. It is being used in cinematography. It is not used in non-cinematic recordings. 5.5.2 Magnetic Mode It is an extensively utilised mode for voice recording. The major uses of the magnetic recording are:

¢ Micro Cassette Recorder * Compact Cassette Recorder ¢ Reel to reel recorder

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¢ Camcorder Analog Audio Recorder e Video Tape e Answering Machine. They are These recording units are common and are available in the market. often used for recording voice.

Vv | | 5.5.3 Electronic Mode Electronic mode of recording voice is the ‘in thing’, because of its superior quality. It gives life-like reproduction. This is the mode of voice recording in criminal investigation. As the devices used for electronic mode of recording are

not cheap, they are not common. The following devices are useful.

Digital Audio Tape Recorder (DAT) . Digital Computer Cassette Recorder (DCC), Computer Disc Drive, etc. Audio Recorder Computer using tape drive back up or USB port removable chip > orAnswering Machines a Semi-conductor Memory, IC (Integrated chip) memory 5.5.4 Optical Mode CD, CD ROM, CD-1 (interactive) CD-RC (recordable, CD-RW DVD

(Digital Versatile Disc), Mini Disc etc., are the common

(rewritable) modes in this

category. They give extremely fine performance.

5.6 EVALUATION Speaker identification is done in three different modes: ¢ Speaker’s Recognition through Listening (SRL). e Visual evaluation of Voice Spectrogram for Speaker Recognition (SRS). ¢ Automatic Speaker Recognition, through computers (ASR). Usually, one does not depend upon one single method. Most of the laboratories doing voice identification combine the first and last techniques. 5.6.1 Listening (SRL)

Laymen and experts both use listening for recognition. Where identification of a familiar voice is concerned, better identification can be achieved. With an unfamiliar voice listening is not so effective. When a familiar voice is concerned,

the voice pattern image is already in the mind and the brain of the listener. The brain automatically recognises the pattern of the sound and hence the person who is speaking. In crime situations, however, a familiar voice is rather rare. Most of the time the layman has to identify a non-familiar voice. The expert has almost always to deal with unfamiliar voices.

Listening is the first step towards voice evaluation. In some cases it may permit elimination of the suspect. If the pronunciation, accent, dialect, loudness or pitch differs drastically and simultaneously, there is no likelihood of possible disguise, the suspect could not be the culprit. The process of identification

through listening adopted by the experts involves:

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iF Recognition of the characteristic feature in the voice of suspect in the

sample recorded for comparison (or in the disputed utterance). This aspect is more easily said than done, as there are no known speaker specific features. The expert has to depend upon his experience to identify the characteristic features which should be: e Uncommon e Frequently occurring ¢ Consistent ¢ Free from emotional upset or attempts at disguise or imitation. . Comparison. Comparison of the disputed and the sample utterances is usually subjective. The results are largely dependent upon the ability and experience of the expert. Some experts assign positions and dimensions to the various extracted features and compare the data so obtained. The approach appears to be more scientific. However, results are not much different even in competent hands.

The success or failure of aural evaluation of voice depends upon: 1 The age and sex of the speaker and the listener. yA Volume of the utterances. 3. Time period between the two (the disputed and the sample) utterances. Experiments were conducted on the effect of time interval lapsed after listening to the voice; it was found that ability for the recognition of a voice deteriorates rapidly with the passage of time. The number of persons speaking at the crime scene also affects. Experiments show drastic decrease in voice recognition ability when the number of person speaking is increased to five. Absence of existence of disguise. Duality of the speech samples. Influence of the recording devices. Enviromental noises. Pos SSThe non-availability of the supporting visual evidence. 10. Low ( Hm —

' Duration of the speech segment Vibration period of the vocal cord and other sound-connected organs, etc.

Ww

Efficiency of the devices used recording, storing, transmission and reproduction of the voice.

5.6.3 Sound Spectrograph The sound spectrograph is an instrument used to evaluate voice. It converts

the speech into visual representation of its frequency and intensity components. Kersta, an American, introduced the instrument in 1962. It has undergone a sea

change since its induction. Kersta claimed that the spectrograms (named as voiceprints by him) obtained through the spectrograph were unique and individualistic in nature. He further claimed that they were permanent and remained unchanged throughout the lifetime of a person, even when the person grows old and, or loses tonsils, teeth or adenoids. He stressed that even disguise or mimicry has no effect on the voiceprints. However, there was no supporting data or even theoretical basis for these claims. He thought that the voiceprints had the same evidential value as fingerprints. A lot of research work has since been done. It has been found that none of these claims can be sustained except that they are individualistic. In fact there are so many variables involved that it is difficult to obtain corresponding voiceprints even under ideal conditions. So

far, voiceprint evidence has not proved conclusive. There are many pitfalls which can mislead. Al] those who are involved in the utilisation of the evidence should be aware of the current status of the reliability of the evidence so that there is no miscarriage of justice.

Some persons have compared the voiceprint evidence to that of handwriting identification evidence. The number of variables involved therein is equally large. Further, handwriting is also amenable to disguise and forgery. Still lurther, it suffers deterioration due to disease, old age, injury and influence of

intoxication. However, there have been a lot of inputs in the case of handwriting evaluation, and it has achieved a high degree of reliability. Similar extensive inputs are needed before the voiceprint identification can achieve a reasonably high degree of reliability. This has to be achieved because in spite of its lacunae or pitfalls, the evidence of this type is becoming increasingly important. If voice identification does not provide positive proof by itself, it can certainly provide corroboration, indicate leads and help investigations in other ways. And it is doing so in many ways.

ae a

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“A sound spectrograph has four parts: |. Magnetic Recorder Electronic Filters

A rotating drum carrying paper around, on which the spectrogram is recorded +. An electrically operated stylus to record the graph The sound spectrograph analyses require only a limited amount of utterance ata time, which could be recorded in one revolution of the drum. It converts the speech signal into a visual spectrum in the form of traces of the graph. The dimensions and the intensity of the traces are dependent upon the utterance being analysed. The use of computers in conjunction with the spectrograph has increased the volume of the recordings. Recently a personal computer based ead NM

instrument, named

Computerised

Speech Lab (CSL) has been introduced.

It

records, edits and quickly analyses the speech signal. It is possible to carry out the detailed studies of the utterances through segmentation of the recordings, segment-wise. When the voice of a person is subjected to a spectrographic analysis, the sound energy is converted into electrical energy, which operates the stylus and the stylus in turn creates a trace in the form of a graph on the paper on the drum. The graph is known as a spectrogram or voiceprint. The spectrogram has the following elements: 1. Horizontal Dimensions 2. Vertical Dimensions

3. Shade Intensity of the trace Horizontal dimensions represent the time interval of the speech signal. The vertical dimensions indicate the frequency and the darkness indicates the intensity of the loudness of the voice. The visual display of the disputed and the sample utterances (of the same word/text) are compared visually. The patterns have to be different for different persons, but unfortunately they are also different somewhat for the same person. Besides, the external noises make the problems worse. Further, family influences also influence. It is due to these

factors that chances of misinterpretation exist. Besides, the resolution of the spectrogram was limited previously. It has been improved in recent times and will doubtless improve further. Due to inadequate resolution, overlapping of voice spectrograms of the same word, even from different persons, especially from kith and kin, misleads some times.

The process of using the method is simple. The suspect(s) are made to utter relevant word(s) and the voice is recorded on a device similar to one used in

recording the disputed utterance. The recorded voices are then turned into their visual equivalents (spectrograms) through the Sound Spectrograph and the spectrograms are compared and evaluated.

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TRIALS AND INVESTIGATION IN CRIMINAL SCIENCE FORENSIC

VOICE ANALYSIS

253

5.6.4 Automatic Speaker Recognition (ASR) The Automatic Speaker Recognition (ASR) system involves the following: 1. Feature Extraction

2. Feature Comparison 3. Normalisation

5.6.4.1 Feature Extraction Feature extraction is the most difficult task. The feature has to be unique, consistent and free from internal and external influences. It should be easily measureable, not changed with time or health of the speaker and not affected by external noise or transposing equipment. The source of the feature, the word, should be frequently occurring to make it easily available for analysis. It should withstand disguise or mimicry and it should survive the use of various machines, which are used in voice analysis. A lot of work has been done in this

direction. A number of systems have been developed but none has so far given 100 per cent reliable results. The research work continues. 5.6.4.2 Feature Comparison As no speaker-specific features have been discovered so far, all available features are considered for comparison. The following features have been

compared through computers. 1. Linear Prediction Co-efficients 2. Central Co-efficients These features are evaluated and compared through similarities found on the disputed and the test speech templates by a number of systems. The Gaussian Mixture Model is found better than others. If the similarities are within the threshold value, the identity claim is accepted. 5.6.4.3 Normalisation The normalisation process involves elimination or reduction of the inherent variations present in intra speaker utterances of the same text, the influence of

environment and of the devices used in the process of identification. The following process are used for the purpose: 1. Spectral Equalisation 2. Spectral Subtraction 3. Missing Feature Compensation The details of these processes are beyond the scope of the present work. It may, however, be mentioned that complete success to normalise the utterances for forensic evaluations has not been achieved yet.

5.7 INTERPRETATION All forensic identifications aim at reaching individuality. It is possible in some types of evidence. In others individuality has not been achieved. In voice evaluations so far individualisation has not been achieved, where it may be said that the disputed utterances are of Mr. X only and of no other person; in most of

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data to reach certainty. the cases it has not been possible to generéate sufficient able identity of the The evidence can only indicate the poss! ble or the prob achieved. speaker. In some cases fairly high probability has been 5.8 MISCELLANEOUS , notably The evaluation of utterances is useful for many other forensic needs for:

ie Psycholinguistic Profiling

2

ra Determining the integrity of the recorded utterances 3: Transcription of the taped utterances

5.8.1 Psycho-linguistic Profiling

The personality profile of a person can be built up from his utterances. The following factors help to build the personality profile: i. The pitch and loudness of the voice The dialect of the utterance The accent of the speaker The words, phrases and the sentences he uses in his utterances The pronunciation of the speaker The defects in the voice, speech, etc., of the speaker

ON NQF The inter-mixing of the languages, dialects, etc., in the utterances of the speaker The abuse of certain words and phrases The obscenities uttered by the speaker. Foul language is common among criminals 10. The pet words and phrases 11. The points or words of emphasis in the utterances

Profiling of the criminals from language has come up as an important branch of Forensic Psychology. It is assuming greater and greater importance with the passage of time. In the absence of eyewitnesses, psycholinguistic profiling will be of great help in the coming times. 5.8.2 Integrity of Recorded Voice , Integrity of the taped or otherwise recorded voice on various recording

devices sometimes assumes importance, especially in the following situations: if Proving involvement of the speaker in various types of crimes including murders, dacoities, corruption cases, organised crimes, etc. Fixing adultery in divorce cases . Identification of members of the gang or criminal organisations Ascertaining the identity of the speaker who inflames communal hatred or anti-national activities, etc.

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There are a number of ways in which the recorded utterances are tampered with. The main modes of tampering are: 1. Deletion. It is the easiest form of damaging the integrity of the recorded voice. Nw

. Addition. It is also easily done.

3. A complete utterance is synthesised from some innocent recorded speech, utterance or even conversation. The alteration of a recorded voice can be accomplished on all sorts of recording devices. It is comparatively easier to make changes in digitally recorded speech than that on a magnetic tape analog.

It is often difficult to know the deleted text though it may be possible to detect alteration. The success or failure of the detection depends upon the extent of the alterations made. Lesser the volume of the altered text, fewer are the chances of

detection and vice versa. It also depends upon the device used for making the changes. If the alteration is with the same device as used for the original input, the task of detection is more difficult. Above all, it depends upon the technical know-how of the perpetrator, the more conversant he is with the process, a better job of alteration will be done by the perpetrator, increasing thereby the difficulties of the detection and hence of the investigations. 5.8.3 Transcription Transcription is the conversion of the recorded utterances into a written record. The process offers no problems when the person carrying out the transcription knows the language and the text is not encrypted or distorted,

intentionally or otherwise. In the latter cases the evaluation of the voice may need expertise in phonetics, linguistics etc. Besides, in cases of gross distortions of the recorded voice one may have to use frequency filters and other devices to figure out the text. The following is the general process of evaluation: |. Listen to the entire text repeatedly 2. Separate intelligible and unintelligible texts. 3 . If more than one speakers are involved, separate the utterances personwise. 4. Use sound filters. They reduce or eliminate the noise considerably and thus enhance the intelligibility. 5. Break the difficult passages into segments. Subject them to phonetic, linguistic and/or spectrographic analysis, with the help of the specialist(s). Demarcation of the boundaries in the spectrograms often helps.

It is not always possible to figure out the entire text of the utterance. The person carrying out the transcription should indicate: |. The clearly identified text The ambiguous text with their ambiguities The possible text

}Y SS = The uncertain text

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st crime. It Voice analysis has been, and is, a potent weapon in the fight again weapon will be has to be kept updated and sharpened through research. This of evidence needed more frequently in the coming times when the other types will be becoming scarcer.

qn

Tape Recorded Voice

If you fancy scaring the hell out of someone, while remaining totally ‘ disguised, then this is the gadget for you. It has six voice changing options, and digitally changes your voice frequency to enable you to remain totally undetected. The fun possibilities are endless.

Digital Voice Changer

5.9 CASE LAW 5.9.1 Tape Recorded Evidence

This court in N. Sri Rama Reddy v. V.V. Giri,’ accepted conversation or dialogue recorded on a tape recording machine as admissible evidence. In Nagree’s case the conversation was between Nagree and Sheikh. Nagree was accused of offering bribe to Sheikh. In the Presidential Election case,* questions were put to a witness Jagat Narain that he had tried to dissuade the petitioner from filing an election petition. The witness denied those suggestions. The election petitioner had recorded on tape the conversation that had taken place between the witness and the petitioner. Objection was taken to admissibility of tape recorded conversation. The court admitted the tape recorded conversation. In the Presidential Election case,* (supra) the denial of the witness was being controverted, challenged and confronted with his earlier statement. Under section 146 of the Evidence Act questions might be put to the witness to test the veracity of the witness. Again under section 153 of the Evidence Act a witness might be contradicted when he denied any question tending to impeach his impartiality. This is because the previous statement is furnished by the tape recorded conversation. The tape itself becomes the primary and direct evidence of what has been said and recorded. 1. (1971) 1 SCR 399: AIR 1971 SC 1162. 2. (1971) 1 SCR 399: AIR 1971 SC 1162. 3. (1971) 1 SCR 399: AIR 1971 SC 1162.

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257

Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and,

thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape-record. A contemporaneous tape-record of a relevant conversation is a relevant fact and is admissible under section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under section 7 of the Evidence Act. The conversation between Dr. Motwani and the appellant in the present case is relevant to the matter in issue. There is no dispute about the identification of the voices. There is no controversy about any portion of the conversation being erased or mutilated. The appellant was given full opportunity to test the genuineness of the tape recorded conversation. The tape recorded conversation is admissible in evidence. It was said by counsel for the appellant that the tape recorded conversation was obtained by illegal means. The illegality was said to be in contravention of section 25 of the Indian Telegraph Act. There is warrant for proposition that even if evidence is illegally obtained it is admissible. Over a century ago it was said in an English case where a constable searched the appellant illegally and found a quantity of offending article in his pocket that it would be a dangerous obstacle to the administration of justice if it were held, because evidence was obtained by illegal means, it could not be used against a party charged with an offence. See Jones v. Owen.’ The Judicial Committee in Kuruma, Son of Kanju v. R.? dealt with the conviction of an accused of being in unlawful possession of ammunition which had been discovered in consequence of a search of his person by a police officer below the rank of those who were permitted to make such searches. The Judicial Committee held that the evidence was rightly admitted. The reason given was that if evidence was admissible it matters not how it was obtained. There is of course always a word of caution. It is that the judge has a discretion to disallow evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. That caution is the golden rule in criminal jurisprudence.” 2. It is too late in the day to challenge the admissibility of a conversation which has been tape-recorded earlier if the same is relevant. As early as 1956, Bhandari, C.J. in Rup Chand v. Mahabir Parshad* had categorically laid down that such a tape-recording was clearly admissible. The learned Chief Justice had relied on a number of American and English cases in support of his decision. In Partap Singh v. State of Punjab,> the learned judges of the Supreme Court relied

heavily on the tape-recording which had been put on the record by the petitioner. In fact the admissibility of the same was considered self-evidence. (1870) 34 JP 759. 1955 AC 197. 1973 SC 157. R. M Malkani v. State of Maharashtra, 1973 Cri LJ 228: AIR

AIR 1956 Punj 173. WYN af

AIR 1964 SC 72.

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Their lordships expressly adverted to the admissibility and the value of the tape-recorded talk which had been produced as supporting evidence produced by Dr. Partap Singh, the petitioner in clear and unequivocal enunciation of the law is made, however, by

evidentiary part of the that case. A the court of

Criminal Appeal in Rex v. Maqsud Ali and Ashiq Hussain’ in the following terms: We think that the time has come when this court should state its views of the law on a matter which is likely to be increasingly raised as time passes. For many years now photographs have been admissible in evidence on proof that they are relevant to the issues involved in the case and that the prints as seen represent situations that have been reproduced by means of mechanical and chemical devices. Evidence of thir.vs seen through telescopes or binoculars which otherwise could not be picked up by the naked eye have been admitted and now there are devices for picking up, transmitting, and recording conversations. We can see no difference in principle between a tape recording and a photograph. In saying this we must not be taken as saying that such recordings are admissible whatever the circumstances, but it does appear to this court wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded properly identified; provided also that the evidence is relevant and otherwise admissible, we are satisfied that a tape-recording is admissible in evidence. Such evidence should be regarded with some caution and assessed in the light of all the circumstances of each case. There can be no question of laying down any exhaustive set of rules by which the admissibility of such evidence should be judged.

Lastly in Yusufalli Esmail Nagree v. State of Maharashtra’, the learned judges of the Supreme Court in expressly considering this case have observed as follows: The process of tape-recording offers an accurate method of storing and later reproducing sounds. The imprint on the magnetic tape is the direct affect of their relevant incident, a contemporaneous tape-record of a relevant conversation is a

relevant fact and is admissible under section 7 of the Indian Evidence Act. Their lordships in this case noticed the reasoning of Rup Chand’s case? with approval. In this context it is futile now to argue that a tape-recording is not admissible in evidence. Once it is held that a tape-recording is admissible, the manner and mode of its proof and the use thereof in a trial is a matter of detail. That it can be used for the purpose of confronting a witness with his earlier tape-recorded statements admits hardly of any doubt. That it may also be legitimately used for the purpose of shaking the credit of a witness was laid down in clear terms by Bhandari, C.J., in Rup Chand’s case? in the following terms:—

[am aware of no rule of evidence which prevents a defendant who is endeavouring to shake the credit of a witness by proof of former inconsistent statements from (1965) 2 All ER 461 (464). AIR 1968 SC 147. AIR 1956 Punj 173.

VOICE ANALYSIS

259

deposing that while he was engaged in conversation with the witness a taperecorder was in operation, or from producing the said tape-recorder in support of the assertion that a certain statement was made in his presence. That being so, for a use of an earlier tape-recorded statement, the identification of the taped voices is hence a crucial matter and indeed such proper identification is the sine qua non for the use of the earlier tape-recording. The relevant authorities are all unanimous on the necessity of such proper identification of the taped voices. In Yusufalli Esmail Nagree’s case! it was observed as follows:

Ifa statement is relevant an accurate tape-record of the statement is also relevant and admissible. The time and place and accuracy of the recording must be proved by a competent witness and the voices must be properly identified. The cases where the taped voice is admitted thus present no difficulty. However, where the voice is denied by the alleged maker thereof, a comparison

of the same becomes inevitable. As observed by the Supreme Court the proper identification must be proved by a competent witness. Learned counsel has been unable to point out anything in the relevant statute which expressly or impliedly may tend to prohibit such a comparison. At the present stage the nature of the evidence that would be brought forward for this purpose, and whether the court can itself compare the admitted and the disputed taperecording is not yet in issue. I am, therefore, inclined to the view that the orders of the courts below are thus clearly sustainable.” 3. We are left with the tape-recorded conversation which according to the prosecution, corroborates the evidence of P.W. 1. A tape recorder was given to

P.W. 1 to record the conversation. The learned Magistrate while dealing with the recorded conversation on the tape states: I closely observed the playing of the cassette in court and found that it contained substantially the version given by P.W. 1 in court regarding the conversation had by him at the time of alleged payment of amount to him. I may at once point out that I have also had the tape M.O. 3 played in open court and to me most of the conversation was not clear. Even P.W. 1 is of the same view. He states that certain portions in the tape are clear and other portions are not clear. He also states that he does not know the reason for that. P.W. 3 states that the tape recorder was played in the office in the presence of the appellant and others and it contained the conversation between P.W. 1 and the appellant. He would also say that M.O. 3 was played again in the office at 3.40 p.m. and a transcript of the dialogue between P.W. 1 and the appellant was taken in his presence and that is Ex. P. 13 in which P.W. 8 and the three inspectors have attested. In cross examination he admitted that when for the first time tape recorder was played, the entire conversation was not transcribed and therefore it was played again and certain portions in the conversation are tape not clear. P.W. 8, the investigating officer, admitted that he heard the 1. AIR 1968 SC 147. H 350. 2. Dial Singh Narain Singh v. Rajpal Jagan Nath, AIR 1969 P&

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clear. recorded conversation and in some places the conversation is not quite it as a P.W. 8 is not able to say as to who spoke the words ‘Please don’t take the bribe’. In Yusufalli Esmail v. State of Maharashtra, 1968 Mad LJ (Cri) 247, Supreme Court observed: t Ifa statement is relevant, an accurate tape record of the statement is also relevan

and admissible. The time and place and accuracy of the recording must be proved by a competent witness and the voice must be properly identified. One of the features of the magnetic tape recording is the ability to erase and re-use the recording medium. Because of this facility of erasure and re-use, the evidence must be received with caution. The court must be satisfied beyond reasonable doubt that the record has not been tampered with Bearing these observations in mind, we may analyse the evidence in regard to the tape recorded conversation. I earlier pointed out that P.W. 1, P.W. 3 and P.W. 8 say that certain portions of the conversations between P.W. 1 and the appellant recorded by the tape-recorder are not clear. The evidence of P.W. 3 also shows that the tape-recorder was played twice. The most important condition of identifying the voice has not been satisfied in this case. P.W. 8, the investigation officer, admits that he did not examine P.W. 1 with reference to the conversation in the tape. P.W. 1 states in his evidence that he heard the taperecorded conversation for the first time in court (before the trial magistrate). The

evidence of P.W. 1 and P.W. 8 very clearly shows that the voices of P.W. 1 and the appellant have not been identified. Without identifying the voice Ex. P. 13, which is a transcript of the alleged dialogue between P.W. 1 and the appellant was prepared by P.W. 8, the investigating officer. It is not clear as to how in the transcript Ex. 13, P.W. 8 is able to point out the words spoken by P.W. 1 and the appellant. Even in the transcript, we find a reference to the fact that the conversation is broken at a very crucial place. The appellant in his statement states that the conversation has been tampered with. P.W. 1 should have identified his voice and the voice of the appellant in the recorded conversation. But P.W. 8 admits that the tape was never played before P.W. 1. P.W. 1 himself says that he heard tape-recorded conversation for the first time in court. The accuracy of recording has not been proved by a competent witness and the voices have not been properly identified. Under those circumstances it is not safe to rely on this tape-recorded evidence of P.W. 1.!

CBM

l. R. Venkatesan v. State, 1980 Cri LJ 49.

Chapter 6

FINGERPRINTS SYNOPSIS 6.1 IMPORTANCE 6.1.1 Unique 6.1.2 Permanent 6.1.3 Universal 6.1.4 Inimitable 6.1.5 Classifiable 6.2 NATURE 6.2.1 Classification 6.2.2 Arches 6.2.3 Loops 6.2.4 Whoris 6.2.5 Composites 6.2.6 Accidentals 6.2.7 Individuality Features 6.3 LOCATION 6.3.1

Routes

6.3.2 Vehicles 6.3.3 Scene of Occurrence 6.3.3.1

Bathrooms

6.3.3.2

Utensils

6.3.3.3 Leftover Objects 261

2¢ rs2

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6.3.4

Documents

6.3.5

Dead Bodies

6.3.6

Search

6.3.7 6.3.7.1

Development Techniques Powder Development

6.3.7.2

Chemical Methods

6.3.7.3

Wet Methods for Latent Prints Fuming Techniques

6.3.8 6.3.8.7

INVESTIGATION

lodine Fuming

Cyanoacrylate Fuming 6.3.8.3 Metallic Vapour Fuming 6.3.9 Laser Development 6.3.8.2

6.4 COLLECTION 6.4.1

Articles

6.4.2

Photography

6.4.3

Lifts

6.4.3.1

Technique

6.4.4

Plastic Print

6.4.5

Fingerprints From Dead Bodies

6.4.6

Fingerprints in Dust

6.4.7 Specimen Prints 6.4.7.1

Technique

6.4.7.2 Precautions 6.4.8 Single Digit System 6.4.9 Computers in Fingerprints 6.5 EVALUATION

6.6 PRESENTATION 6.7 LEGAL ASPECTS 6.7.1

Specimens and the Constitution

6.7.2 Authorities 6.7.3

Fingerprint Experts

6.7.4

Fingerprints Reports

6.8 MISCELLANEOUS 6.8.1

Palm and Sole Prints

6.8.2

Poroscopy

6.8.3 Body Prints 6.8.4

Fingerprints of Twins

AND

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6.8.5

Transmission

6.9 CASE LAW 6.9.1

Expert Necessary

6.9.2

Fingerprint Evidence

6.9.3

Sufficient Evidence

6.9.4

Improper Presentation

6.9.5

Uncorroborated Evidence

6.9.6

The Court’s Scrutiny

6.9.7

Fingerprint Reports

6.9.8

Fingerprints: Identification Basis

6.9.9

Recovery relating to fingerprint evidence doubtful

6.9.10

Fingerprint evidence rejected

6.9.11

Judge not to act as fingerprint expert |

6.9.12

Nonavailability of Fingerprint Evidence not Fatal

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ARCH RADIAL

LOOP

DOUBLE LOOP

TENLED ARCH

Fig. VI-1

Fingerprints are God's own seals, given to us that we may recognise his greatest creation—MAN.

FINGERPRINTS 6.1 IMPORTANCE The identification of criminals through fingerprints was the first important break-through in the scientific investigation of crime. As usual, the judiciary and the public took some time to believe in the utility of fingerprints as a scientific aid. The same is now recognised throughout the world. The first case in which conviction was based on the basis offingerprint was a unique attempt at hoodwinking the public at large in 1882. An Argentinian widow, with two

live children, wanted to remarry. She found a husband but he would marry her only if she did not bring the children along. She found no way to get rid of the children except by murdering them. She murdered them and raised hue and cry that somebody else had murdered her children. Her fingerprint in blood on the door nailed her lies. She was

convicted for murder. (CH) The fingerprints as evidence are important because of the following features of the fingerprints: ¢ They are unique ¢ They are permanent e They are universal e They are inimitable e They are classifiable ¢ They are frequently available in crime situations, as evidence 6.1.1 Unique

The fingers have papillary ridges. The ridges form complex patterns. The ridge pattern of each finger has individuality of its own. The patterns vary not only from one individual to another, but they are different in the same individual on each finger. Duplication of the pattern has never been observed. Nor the same is expected. It was customary, formerly, to calculate the probability of a finger pattern occurring in a second individual. It is no longer done as the individuality of the pattern is accepted. The probability is considered only, when the print carries limited details due to smudging or when it is incomplete. In a case, the character of a woman was attacked that she had been convicted earlier. Her alleged previous employer and the police official who was investigating the case identified her. On her vehement denial, the magistrate ordered that her fingerprints should be checked. The check revealed that this woman was not the one who was convicted earlier. The name and the features of the woman were so alike that the two witnesses who had seen her for days together made mistake about the identity. (CH)

6.1.2 Permanent The fingerprints of an individual do not change throughout his life. In fact, the ridges appear before birth. They start appearing during third or fourth 265

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month of pregnancy. They remain even after the death of the individual, ull the epidermal skin is destroyed by fire, putrefaction or is eaten by insects orother creatures.

Ina murder case the body of the victim was partially burnt and buried. The same was discovered many days after the burial. The body was completely disfigured and could not be identified. The investigation officer got removed the remaining skin pieces from the tips of the fingers through a doctor. He sent them to fingerprint bureau along wrth the one authentic print of the suspected deceased available on his Will. The bureau

confirmed the identity of the deceased. (CH) It has not been possible to change the epidermal skin through surgery. Even if it becomes possible, it shall be detected through scars or residual skin. It is also not possible to destroy the ridges by rubbing, cutting or burning. These processes temporarily affect them, but when the wounds heel, the original pattern appears again. If the injury (or burn) is too deep, a scar replaces the ridges, but a new ridge pattern does not appear. In short the destruction of epidermis and under layers alone destroys the pattern. Destruction may take place through disease, amputation, burning or surgery.

The permanence of fingerprints permits identification of an individual even after many years, in fact as long as his fingers are not destroyed, if his fingerprint record is available. Many criminals have been identified through this medium after years of absconding. It is the nature’s identity card given to each individual.

6.1.3 Universal All individuals and hence all criminals carry this medium of identification. The finger and toe digits and palmar surfaces of the hands and the feet carry the friction ridges. The fingers have more intricate patterns. They allow easier individualization and classification. A criminal uses his hands in the commission of crime. He leaves marks at the scene of-occurrence or on objects, which come in contact with the hands in the commission of crime. There are, therefore, fair chances of occurrence of fingerprints in all types of crime. If a criminal wears gloves, no fingerprint will be found at the scene. However, by and large the population in India, especially the criminal community, do not wear gloves. They, therefore, leave fingerprints in most of the cases. 6.1.4 Inimitable

Successful forgery of fingerprints has not been reported so far. Near perfect forgeries have been attempted. It is possible that the advancement of science may bring the forgery still closer to perfection but complete success in the enterprise is extremely difficult, if not impossible. The investigating officer, the expert,

the

court

and

the

lawyers,

however,

must

guard

against

such

possibilities, especially in view of the potentialities of the computer. They should make use of scientific tools, which will undoubtedly enable the expert to detect such frauds.

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For all practical purposes it may be taken that it is not possible to forge a fingerprint. This is important because no person can deny his or her fingerprints. The identification through fingerprints, when made on adequate data, is certain and infallible, if they are properly recorded.

6.1.5 Classifiable The scope for the classification of fingerprints is large and yet the work is simple. Records of millions of persons can be classified and kept and retrieved easily. Computerization of fingerprint records, and hence their searches are becoming popular because the computers have increased the efficiency beyond imagination. A search can be made virtually in a jiffy with the computerised records.

6.2 NATURE Palmar surfaces of the hands and of the soles of the feet have friction ridges. The ridges are the raised portions of skin between furrows on either side. They are also known as papillary or epidermal ridges. The ridges flow in various directions giving rise to innumerable patterns. The ridges have small pores, which exude perspiration. It spreads all over the surface.

The evaporation

of the perspiration RUD GES

concentrates

its non-volatile

FURROWS

Fig. VI-2 Magnified view of palmar surface, illustrating the ridges, furrows, pores and the epidermal skin structure.

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constituents, notably, the common

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salt, oils, fats and the albumins. Whenever

the epidermis comes in contact with a surface, they are left thereon iv small quantities. The deposits take the pattern of the ridges. The mark is latent due to the colourless nature of the perspiration residues. But it can be developed to give a visible print. The rough and the fibrous surfaces do not give decipherable patterns. The prints are visible when the surface of the hand is smeared with coloured powders or liquids. The mark may be distinct impression if the receiving surface is pliable such as butter, dust, putty, wet paint, mud, wet clay, kneaded flour, any semi-solid substance or warm wax (paraffin or sealing wax).

6.2.1 Classification

;

There are numerous ridges in a fingerprint. Their lengths, shapes and angles vary so extensively that the combinations of these variations are virtually infinite. Each finger of an individual has a pattern of its own. The patterns have been divided, for the purpose of classification, into categories based upon their general shapes.

6.2.2 Arches The ridges are found in an arch like formation in this pattern. When the height of the arch is small, the pattern is plain arch. If it is considerable, it is tented arch. The pattern has no turned or twisted ridges nor it has a delta generally. 6.2.3 Loops

In the loop pattern one or more ridges form a loop by curving backward.

Consequently there is a delta and a core in the pattern. Delta and core are known as fixed points of a pattern. They do not appear in some incomplete prints.

Loops are subdivided into ulnar and radial loops. The division is based on the flow of the ridges. If the ridges flow towards ulna, the pattern is ulnar. If the ridges flow towards radius, the pattern is radial. The prints on paper, from right hand will be: ° Ulnar, if the ridge flow is from left to right (print 4, in Fig III-2). ° Radial, if the ridge flow is from right to left (print 3, in Fig III-2). The direction of flow would be in the reverse order for ulnar and radial patterns in prints from left hand fingers.

6.2.4 Whorls

Whorls are the simplest to identify. They have at least one ridge forming a complete circle/oval. Whorls have one or more cores and two deltas in complete patterns.

6.2.5 Composites The composites are combinations of any of the above mentioned three patterns. Thus, the Central Pocket loop is a combination of a loop and a whorl,

a Double Loop pattern has two loops mixed up either to form a lateral pocket Loop or a Twinned Loop.

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6.2.6 Accidentals A pattern, which cannot be classified as above, is classified as an accidental. Such a pattern usually has two or more of the above patterns and two or more deltas.

i)

Fig. VI-3 Important Ridge Patterns Loop 4. Ulnar Loop 5. Whor! 6. Whorl |. Ordinary Arch 2. Tented Arch 3. Radial al 9. 1 winned Loop “7 Central Pocket Loop 8. Accident

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.

. It The above classification of fingerprints divides the patterns into groups gh does not lead to individualisation of a print. The latter is possible throu or observation of the minute details, also known as ridge characteristics minutiae. The following types of ridge characteristics (with their shape, size and position) give each pattern an individuality. Angle:—It is the angle formed by two intersecting ridges.

Bifurcation:—It is the splitting of a ridge into two ridges. Break:—It is a short gap in a ridge. Core:—It is the central point of a fingerprint. It helps to identify a fingerprint, as there are tremendous variations of the cores. It is also known as a fixed

point of the pattern. The arch patterns have no chores. Delta:—It is the outer terminus of a pattern, formed by either bifurcation of a ridge, or by the widening of the two ridges, which were running almost parallel up to the point of delta. The complete whorl and loop patterns have | usually two and one delta respectively Divergence:—It is going apart of two ridges. Dot:—It is small dot like raised epidermal skin. Enclosure or Lake:—It is an enclosed area along a ridge by another short curved ridge, connected to the longer ridge at both the ends. Fragmentary ridges:—lt is a disjointed ridge—a sequence of rods (short ridges). Focal Fixed point:—Delta and core are the focal (fixed) points of a pattern.

Fork:—It is the short ridge, which bifurcates from a ridge to form a tongue like structure. It is also called Tongue. Incipient ridge:—It is malformed ridge, incomplete and thin, in between the normal ridges. The ridge may or may not appear in a pattern. Pattern area:—It is the area contained between two type lines. Ridge Count:—Ridge count is the number of ridges between: * Delta and delta ¢ Delta and core point ¢ Delta and any characteristic point ¢ Any two characteristic points It is an easy check point for possible match/non-match. Ridge Tracing:—Ridge tracing is ridge coursing in whorls, from lower left delta ridge to the right delta. If the tracing ridge meets the right delta: ¢ Within two ridges,( less than two ridges above or below the delta), the paitern is ‘M’ (Meeting) type. * Above the delta by more than two ridges, it is ‘I’ (Inner) type. * Below the delta by more than two ridges, it is ‘0’ (Outer) type. Rod or short ridge:—It is a short independent ridge.

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Spur:—lIt is a short appendage to a ridge. Staple:—lIt is the structure formed by two rods, joint at the top by short ridge, at the centre of the pattern. Termination:—It is the free end of a ridge. Tongue:—It is the second name of the characteristic called fork (supra). Trifurcation:—A point where three ridges meet or from where a ridge trifurcates.

gaciosurt

_- FORK

Fig. VI-4 Schematic illustration of some ridge characteristics used in fingerprint identification.

6.3 LOCATION A criminal touches many objects in the commission of crime. They are likely to bear fingerprints. The investigating officer, while locating the fingerprints, in addition to the usual procedures, should: 1. Reconstruct the scene of occurrence mentally. Imagine himself in the role of the culprit and check the possible articles, which he could have touched in the commission of the crime. 2. Leave no fingerprints of his own fingers on the articles. The use of gloves, to handle articles, has been recommended to carry out the search for fingerprints. But gloves should not normally be used. They do not allow full flexibility of the hands. Besides they lead to complacency. The fingerprints on the articles handled may get spoiled. The articles are handled, therefore, from edges or from rough surfaces where it is not possible to develop the fingerprints. 3. Preserve other evidence. A fibre, a hair, a paint flake, a streak of blood or semen stain may be covered by powders or chemicals and get lost. 4. Avoid inhaling powders and chemicals as all the powders and the chemicals are injurious to health, grey powder, iodine and osmium tetra oxide are specially so. 5. Photograph all developed prints along with proper identification marks.

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“4 . 6.3.1 Routes The telltale prints may be found on the doors and windows, knobs and e. The handles, glass panes, locks, etc., touched by the culprit enrout windowsills, polished or dusty, also take up the prints and record the visit of the culprit to the place. A police store (where case property was kept) was burgled. Fingerprints in dust, were found deposited on some articles. The possible suspects were checked and the : correct one identified. (CH) Finger and palm prints, in blood, were found on a door and on an almirah in a murder case. The prints were compared with those of the suspects. They were correctly identified. The culprits were convicted in spite of the fact that there were no eyewitnesses. (CH)

6.3.2 Vehicles The transport vehicles (cars, cycles, jeeps, etc.) are likely to bear prints of their occupants. The portion of the vehicles likely to come in contact with the hands are the outside surface, the door handles, the steering wheel and the mirror. In a famous dacoity case, the dacoits, after looting and killing escaped in a bus. They abandoned the bus later. Fingerprints were found and collected in large number from the vehicle. The fingerprint record was checked. It was possible to identify three of them. The rest of the work was simple. The whole gang was apprehended in a few days.

The fingerprint evidence later brought them convictions. (CH)

6.3.3 Scene of Occurrence The richest source of fingerprints is the scene of occurrence. The culprit must touch or handle some of the objects at the scene. The evidence should invariably be available if it is properly searched at the appropriate time, at the appropriate places. Boxes, furniture and leather, Rexene or plastic goods, such as purses, portfolios and bags should be carefully examined. Fingerprints are sometimes found on broken windowpanes, thrown away bottles, tumblers, furniture and crockery. Bloody fingerprints are sometimes observed on furniture, walls, floor, windowpanes, cupboards and almirahs. They fix up the actual scenes of crime, in cases where the culprit has tried to create a fake crime scene. 6.3.3.1 Bathrooms

The culprit may have visited the bathroom or a water closet. The places should be carefully searched A murder took place in a running train. The compartment was totally sealed and thoroughly searched for evidence. Fingerprints on washbasin tap handle and some other articles were discovered. After screening a large number of suspects the correct perpetrators were identified and convicted on fingerprint evidence. (CH)

6.3.3.2 Utensils If the culprits have taken food and drinks, the likely articles to carry fingerprints are refrigerators, tumblers, plates, saucers, bottles, cups, spoons and utensils. They, therefore, should be examined.

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6.3.3.3 Leftover Objects

The culprit sometimes leaves objects like shoes, papers, tools, weapons of offence, torch or lantern at the scene of occurrence accidentally or otherwise. He may desert his conveyance on his way to or from the scene. These objects have excellent chances of bearing fingerprints. A few years ago, fingerprints of the culprit were discovered on the inside of the back of a watch left at the scene of occurrence. (CH) In a poisoning case, the bottle containing the poison (found near the deceased) was checked for fingerprints. It was possible to identify the correct culprit, from the partial prints available on the bottle, from a number of suspects. (CH) In an arson case the fingerprints were discovered on a bottle of kerosene oil found at the scene of occurrence. They were compared with the fingerprints of several suspects. The correct arsonist was identified. CH) In another interesting case, the culprit was searching the pockets of the victim with blood smeared hands. He happened to touch a piece of paper in the pocket of the victim. He left a faint print in blood on the paper. The piece of paper got conviction to the culprit. (CH)

6.3.4 Documents Fingerprints should be found on anonymous and pseudonymous letters containing abusive or indecent language, threats or complaints. Ordinarily, it is not possible to locate these prints. This is due to carelessness of the addressees or the investigating officers. Such documents should be handled only when absolutely essential. In a government loan case, the document bore a fingerprint impression. The fingerprint, along with the ten fingerprints of the suspect, was sent to the fingerprint bureau. The print on the document did not tally with the specimen fingerprints. However, from the size and pattern of the print the expert suspected it to be a toe print. On comparing the toe print of the suspect with the questioned print, the suspicion was confirmed and the culprit identified. (CH)

6.3.5 Dead Bodies

In infanticides the fingerprints are discovered on the body of the infant. The greasy mass, with which the body of the infant is covered at the time of birth, retains the prints. Recent experiments and researches have indicated that it is possible to develop fingerprints on dead human skin. This will help in identifying the culprits in offences against persons. It will be particularly helpful in cases of rape with murder or murders by manual strangulation. It was not possible to develop fingerprints on the skin previously but now the following technique give success in some cases: 1. Fuming with cyanoacrylate ester, with or without pretreatment 2. Lead dusting followed by X-ray radiograph 3. Magnetic powders 4. lodine fuming

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ng by usual means may The developed prints must be photographed. Lifti ints are the neck, bréasts, follow. The places of interest to locate the fingerpr thighs, wrists and the ankles, etc. 6.3.6 Search suspected to bear A search for fingerprints should be systematic. The area carefully examined fingerprints should be thoroughly checked. The surfaces are diffused with oblique lighting—light thrown at an angle. It is desirable to avoid » light. A semi-dark place is preferable. in this way. Prints Most of the prints (visible, plastic, and latent) are located

cloth, on semi-glazed or unglazed paper, documents, currency notes, raw wood, leather and coloured surfaces are discovered by other appropriate developing agents.

A magnifying lens is not only helpful in locating the prints, but it is also useful to judge the quality of the fingerprints. The use of Polylight (brand name) system is quite convenient for searching fingerprints. Polylight gives radiation, in strong beams, from UV to IR range. They reveal the fingerprints in many a case. The polylight system is portable. It can be used at the scene and elsewhere. The lighting system is available under numerous other brand names. 6.3.7 Development Techniques The following techniques are commonly used to develop latent fingerprints: 6.3.7.1 Powder Development

Powders used to develop latent prints give excellent result on small surfaces, in competent hands. They fail only in case of old prints and prints on rough surfaces. The powders of all shades and varieties have been used. However, the following powders meet most of the situations in fingerprint development— ¢ The grey is used for all dark coloured surfaces. ¢ The black powders is used against light background, and ¢ The fluorescent (anthracene) powder is used for multi-coloured surfaces. Fingerprints developed by anthracene are photographed with ultraviolet rays. The prints developed with fluorescent powders need reversals, that is, the prints are prepared from the transparencies. ¢

Metallic

powders

(aluminium,

copper,

brass,

gold, antimony)

and

universal powder are also used in special situations. The metallic/ universal powders are useful for sticky surfaces. ¢ The use of magnetic powders with Magna Brush facilitates developing fingerprints on large areas.

The powder used should be amorphous, dry and of uniform consistency of flour. It should be stable, somewhat sticky and chemically non-reactive (inert). Fingerprints powders are available commercially. They should be purchased from reliable dealers. The preparation of one’s own powders is not recommended.

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_ The powdering techniques are simple, yet they need experience. In the hands of a novice they generally prove disastrous. Only experienced and qualified operators, therefore, should handle the prints in the crime situations. Powdering is ordinarily done with a camel hairbrush. Atomizers and automatic fingerprints powder spray devices are likely to replace the camel hairbrush ultimately. The new devices save time and reduce the human factor in the work. The automatic sprayer is a boon where extensive searches are required. Likewise Magna Brush with magnetic powders is useful where large areas are involved. The method is quick and almost automatic. 6.3.7.2 Chemical Methods

_

The perspiration materials (sodium chloride, amino acids and oils) deposited by the fingers, are utilized to develop the latent prints by chemicals methods. e Sodium chloride when treated with silver nitrate solution gives silver chloride, which is insoluble. It ultimately gives black colour on exposure to light. e Amino acids react with ninhydrin to give pink colour. e Oils and fats in the deposited residue reduce osmium tetroxide to osmium, which is black in colour. The oils also adsorb iodine preferentially.

6.3.7.3 Wet Methods for Latent Prints The following wet methods are in current use: 1. The Wet Powder method has been tested and used at many crime scenes by the Kyoto Prefectural Police. The fingerprint powder ~ suspension, employed in this method, is prepared in this way: The fingerprint powder is a mixture of aluminum powder 20%; pollen of licopod 70%; and hignum powder 10%. The latter is aluminium powder containing 1 % of an antiseptic agent. It is suspended in liquid mixture of dimethyl ether 15%, dimethyl acetone 80%, and ethyl alcohol 5%. Just before using, put 10 grams of the fingerprint powder in 100 milliliters of the liquid. Mix it well and place it in a spray bottle and gently spray on objects from a distance of 40 centimetres. When spraying a large area, shake the container periodically to keep the contents in proper suspension. Allow sprayed objects to dry at room temperature and then brush the surface with a camel hair brush to obtain the best results. Lift the developed print with gelatin paper (like the opaque rubber lifters used in the USA). The mixture remains effective for only about two hours after Do preparation. Discard any remaining mixture in the bottle after use. not use the mixture after more than two hours after mixing. t. The .. Diazoflourine Method is comparatively a recent developmen than the method is far more effective on paper for latent prints escent prints. ninhydrin method. It utilises the amino acid to give fluor

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Dissolve the chemical in an organic solvent mixture, containing 4% methanol and 2 % acetic acid. Dip the exhibit bearing the latent in the solution for 5 seconds. Take it out, dry it (1/2 a minute) and observe the print(s). If the print(s) is not developed, repeat the dipping/drying processes till the print (s) appears. 6.3.8 Fuming Techniques

A number of fuming techniques are known. The following ones are in current Z use:—

6.3.8.1 lodine Fuming lodine fuming develops fingerprints on most of the surfaces, but the process

is more tedious, troublesome and in certain cases less satisfactory. It is used only where powder methods are not successful for prints on paper, starched clothes, raw wood and leather. ‘There is no chemical reaction between the print material and the iodine. It gets absorbed on the outline of ridges preferentially due to the presence of oils to give brownish tinge. As it is volatile at ordinary temperature, it gets evaporated in due course,

leaving the surface in the original condition,

theoretically, as

some staining always takes place. The surface can subsequently be treated with powders or chemical for development. This advantage makes iodine fuming an ideal tool to locate the latent prints. It is consequently often used as such in spite of certain disadvantages.

The technique requires a fuming tube filled with iodine and calcium chloride separated and held in position with glass wool. Simple blowing through the tube evaporates iodine, which gets deposited on the surface exposed to the fumes.

Fuming is also carried out by heating iodine in a dish kept in a fuming cupboard or fuming chamber. lodine fuming locates sometimes even old latent prints. 6.3.8.2 Cyanoacrylate Fuming

Cyanoacrylate ester in an effective chemical to develop prints on skin, fabrics, plastics and surfaces where powders cannot be used due to stickiness of the surface or for some other reason. The exhibit bearing the latent print, if it is small, is kept in a closed container

containing cyanoacrylate. If the interiors of cars or of rooms are to be searched for latent fingerprints, appropriate amount of the chemical is kept in the closed place and left closed for about 12 hours. The cyanoacrylate fluid is kept in a closed pouch, which is opened and kept in the closed container with the exhibit, or in the car/room. The fume reacts with the amino acids and produce chalky white prints, which can be photographed or lifted on an adhesive tape. The cyanoaerylate fuming has been used successfully to develop and identify: ° A rapist from his fingerprints on pillion cover.

* A drug peddler from his fingerprints on plastic pouch.

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6.3.8.3 Metallic Vapour Fuming There are methods to develop fingerprints on plastics and polythene surfaces. They sometimes do not give the desired results. Metallic vapour fuming has been developed as an additional technique. It is successful only in cases of fresh prints on polythene (even of low density).

The metals used are gold, zinc and metal alloys. They are evaporated in heated chamber, in vacuum. The vapours get deposited on the exhibit. They reveal the prints. 6.3.9 Laser Development

The use of laser in the location and collection of latent fingerprints has given dramatic results. The fingerprints fluoresce under the lasers. They have been used to locate and develop fingerprint on the following surfaces: 1. Paper.—Fingerprints, as old as 40 years have been developed with the lasers. In a dramatic case, a Nazi war criminal was identified through fingerprints developed by lasers. The fingerprints were 40 years old. The Nazi after committing war crimes, and responsible for numerous killings of Jews, had entered America and there joined clergy. At the time of detection he was already a Bishop of Roman Catholic Church, of course with a false and changed identity, now a naturalised citizen of LISA. The USA detected concealment of the real identity. The proceedings of extradition went on for nine years when his false identity was proved through a latent fingerprint found on a document in the German archives. The document, which helped to his real identity was a post card dated 14-6-1941, addressed to Himmiler, one of the closest associates of Hitler. The Nazi denied authorship of the document, which was highly incriminating. The left thumb impression, not only established his authorship but also the real identity of the war criminal. (CH) 2. Metals 3. Plastics 4. Glass

6. Skin of the living/dead persons. The main advantages of the laser detection/development techniques are: 1. Old prints can be developed.

2. No pre-treatment 3. The print bearing any way. 4. The laser can be development of treatment in some For

example,

is needed. surface is not stained, soiled, damaged or affected in used even after some conventional methods for the the latent fingerprints have been tried. In fact the methods enhances the chances of success with lasers. prior

use

of

fluorescent

powders,

ninhydrin,

cyanoacrylate not only gives better images with laser but they increase the visibility of the faint marks. Fluorescent materials spray has to be used in some case, ¢.g., Zinc chloride (1.5-%) solution is sprayed after ninhydrin treated print.

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The main disadvantage was that the equipment was rather heavy. It was not

convenient to carry it to the scenes of crime. Recent developments and research have reduced the weight. It is being used at the scene of crime by some police torces, abroad.

The background surface affects the luminescence generated in the fingerprint. In fact the surface has predominant effect on the success or failure of the method. The technique is simple. It involves:

|. Exposing the suspected print to lasers.

_

2. Observing the prints, made visible, using safety goggles, to cut off the harmful laser rays to the eyes. 3. Photographing the revealed evidence, if adequate, using a filter to cut off the laser rays.

DIRECTIONAL MIRROR AR-LASER

DISPERSAL

FILTER

Fig. VI-5 The Schematic Laser Arrangement for Latent Print Detection.

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An area bearing about three sequential prints can be examined under the lasers in one go. The following types of lasers have been used:— 1. Argon Ion laser

2. Copper vapour laser 3. Neodymium Yttrium Aluminium Garnet laser

6.4 COLLECTION Collection of fingerprint evidence is a specialised job, done by the fingerprint experts. A fingerprint proficient is posted in a district to collect the fingerprints of the convicts. He should form admirable part of the district crime scene team if he is properly trained to collect the latent and other fingerprints from the scene of occurrence. At present the collection of fingerprints from the scene of crime is carried out by the fingerprint experts from the fingerprint bureaus or by the scientist from the forensic science laboratories. The collection of fingerprints varies according

to the nature of the evidence,

which they are available.

the surface and the place at

6.4.1 Articles One should collect the evidence on portable article by collecting the article itself. Mutilation of the prints or breakage of the articles should be prevented by proper and careful packing. Ready-made boards with-holes, nuts and bolts provided in the investigation kits are useful for the purpose. They can be improvised. Rubber, leather and cork washers should be used freely to kéep the article in position. Proper packing ensures:

|. The print-bearing surface does not come in contact with the container or other surfaces of the object or objects. 2. The object does not collide or rattle with the packing material, with other parts of the same object or with the contents of the object. 3. The contents do not seep, spill or fall out of the container bearing prints. They are either properly corked or preferably the contents are taken out. 4. The packet is sealed in such a way that the contents cannot be taken out of the packet without breaking the seal. The seals should be legible and it should not be possible to remove the same, by peeling off the sealing wax. 6.4.2 Photography

Prints should be photographed in all cases wherever possible. Photographs record the prints permanently. In case of damage to the original article, they prove useful evidence. The latent prints can be made more conspicuous by oblique lighting and shading the surface from diffused light. Three photographs, one showing the questioned object in its surrounding, the second showing the print on the object and the third containing the details of the prints should be taken. While taking photographs of the fingerprints one should: 1. Prepare negative of the same size or of smaller size than the print on the object.

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Manage to keep the fingerprints darker than the background. This is achieved by providing background of lighter shade in case the print is found on colorless transparent objects. In other cases, powder of a darker shade than the background is chosen. 3. Photograph at night those latent prints at the scene of crime which cannot be photographed in the daylight.

ho

4. Use panchromatic film of medium or low contrast. 5. Use colour filters to increase the contrast. A set of about ten main shades meets most of the situations. Choose the filter after visual trial.

6. Keep a scale and an identification chit along with the print, while taking the photograph. A ‘fingerprint camera’ that takes up 1:1 photograph is being used by some police forces. It does not cover all the field situations and can be used only as a supplementary device. In fact it can be dispensed with. 6.4.3 Lifts

Fingerprints in dust, or those developed with powders are generally lifted. The process of lifting is simple, a tacky tape is pressed against the print. The dust or powder is picked up by its surface, forming the original pattern thereon. A second or even a third lifting is sometimes possible. But as the quality and clarity of subsequent lifts go on deteriorating, one should ensure proper lift in the first attempt.

Lifting appears to be the most convenient technique to collect fingerprints. It does not require any photographic or other equipment. However, fingerprint experts do not encourage lifling. The process is recommended only where the collection of the original article or the photography of the print is not possible. The reasons advanced are: 1. The lift does not give the nature of the background. Defendants frequently allege that the lifts have been obtained from the vessels used by the accused in jail and falsely shown that they were recovered from the scene.

The lift may not pick up all the details available due to defects in the lifter or in the lifting process. For example, air bubbles or excessive pressure in the lifting damages the ridges. 3. Light pressure on the other hand gives incomplete details.

N

4. The lifts deteriorate with passage of time. The print may, thus, lose the details.

The arguments against lifting are substantial, but not prohibitive. However the use of lifters is not frequent because photography cannot be dispensed with. There are a few situations where lifting proves superior to photography:

|. A fingerprint on curved surface is not adequately covered by photography. Lifting gives better evidence on a flattened surface, though a periphery camera can photograph prints on the curved surfaces.

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- Multi-coloured background surfaces interfere with photography of the prints, lifting is not affected at all. Photography of prints on polished surfaces is difficult due to reflection. The surfaces have no effect on lifting. If a print is found on a fractured surface (say of glass), fractures interfere with the photography. Lifting is not affected so much. Lifting is an important and convenient technique in the preservation of fingerprints. It should be practised and perfected. While lifting fingerprints one should: :.

Use a lifter of good quality only.

There are rubber lifters, transparent tapes, Acetabs and Folien paper. Seek guidance from the fingerprint bureau for the latest and best materials. Lift only perfectly developed prints. Excessive powder on the prints and incompletely developed prints do not give good lifts. Lift prints developed with powder which does not contain chalk. Chalk reacts with the tacky material and spoils the print in due course. Use black powders, whenever possible. Allow only an experienced person to lift the evidence prints. Photograph the print to show the location of the print, with and without lift preferably with an identification chit. . Ensure not to introduce one’s own fingerprints on the lifter. 6.4.3.1 Technique

For proper lifting one should: Take a piece of lifter of a suitable size. Peel off the protective surface. Stick one edge of the piece near the print to be lifted. Press the piece over the print bearing surface gradually and uniformly starting from the struck end with the bulb of index finger. Lift the piece by peeling off, starting slowly from one comer. Cover the lift with the original protective surface.

6.4.4 Plastic Print Casting sometimes is used to preserve plastic prints. The common casting

material is cellulose acetate solution though all other materials which are used to lift tool marks can be used. The former is more common. The casting techniques are substantially similar to those used for footprints and tool marks. ; 6.4.5 Fingerprints From Dead Bodies

The fingerprints of all unidentified dead bodies should be taken because their fingerprints may lead to their identification. The problems of collection of prints from dead bodies vary under different situations:

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° Ifthe death occurred just a short time before, the prints are taken in the . way they are obtained from the living persons. e If the body is in rigor mortis (i.c., the body is stiff) the muscles are loosened by vigorous exercise. If the same proves ineffective, the tendons are cut and fingerprints are taken in the usual way. © If the body has mummified, the digital skin gets shrunk, It is brought to normal condition by immersing it in 3% solution of caustic potash (Potassium hydroxide), till it regains the original form. It is then washed with water and fingerprints are taken. The digital skin can be preserved in formalin. ¢ In some cases the friction ridges wear off from the surface of the hand, in buried corpses. They remain on the inner side of the skin. The digital skin is removed and photographed in transmitted /oblique lighting to get the ridge pattern. 6.4.6 Fingerprints in Dust

Fingerprints and footprints (naked, or even footwear marks) are found on dust deposited smooth surface. Theoretically they are plastic prints but the layer is so thin that it needs different treatment for lifting. An electrostatic method has been developed. The method involves a rubber plastic sheet or film, which is kept over the print. An aluminum foil covers the upper surface. A high voltage is applied to the Aluminium sheet. The high voltage picks up the dust particles and they get attached to the rubber sheet creating the pattern existing in dust on the original surface. The lifted prints can be photographed or preserved as such. The main advantages of this technique, over photography are that the background surface does not interfere and an appropriate shade of the sheet can increase the contrast between the lifted prints and the background surface. Large areas of the suspect surface can be covered on one sheet and a number of impressions can be lifted in one go. They can be studied conveniently at the fingerprint bureau. 6.4.7 Specimen Prints

Specimen prints are collected on specially prepared cards for record purpose. The card form may differ slightly with different bureaux. Basically they are the same. Fingerprint recording work is so simple that it can be mastered by any person in a short while.

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7.10 CASE LAW 7.10.1 Non-acceptability of Evidence 1. The learned sessions judge relied principally for the corroboration of P. W. 10’s evidence on the evidence of P.W. 33, the footprint expert. In para 38 of his judgment, the learned judge stated:

So far as accused 1, 3 and 5 are concerned, their complicity is established, because their footprints were found at the scene.

That is to say, assuming the guilt of accused 1, 3 and 5 because their footprints were found in the bungalow, accused 4, must have been guilty, too, because he was associated with men whose footprints had been proved to be that of the murderers. The opinion of a footprint expert is not admissible, as evidence. If the court is to make any use at all of footprints, it must be satisfied from a comparison of the various footprints that they are those of the persons whom the expert says they are. The value of evidence with regard to footprints is obviously very much less trustworthy than evidence with regard to fingerprints. In a fairly good impression of a finger or even in an impression where only a portion of the finger is shown, there is wealth of detail available to the expert and to the court for comparison. One sees in a fingerprint number of ridges and sweat pores situated along them. In examining a fingerprint, therefore, one not merely compares the general configuration of the finger and all the lines on it, but one is able to study such minute details as the bifurcations and junctions of the ridges and the relative positions on those ridges of the sweat pores. With regard to footprints, on the other hand, it would seem from the evidence and from what we have been able to read from Dr. Hans Gross, book on Criminal Investigation

that one can only compare with the general shape of footprints found with the shape of impressions taken from the feet of the persons suspected. Even in this limited comparison, one has not the same certainty as one would have in comparing fingerprints found as the shape of impressions vary considerably according to the circumstances under which they are made. Footprints made when a person is walking slowly or fast or running slowly or fast or jumping, all create differences, which are material. Moreover, a footprint taken after a person has walked z considerable distance, as was the case here when the murder was committed, is larger than a footprint taken when a person has been at rest, as was the case when footprints were taken from the various persons in the sub jail, including some of the accused and P.W. 10. at page 497 of John Adams translation of the above book, the learned author says: One may then say with Massen and rightly, that the details of all the impressions of a bare foot are in each particular case so distinctive and so characteristic that it is always possible to differentiate them, one from another and recognise again the same impression. This is wholly true only when the impressions in question have been produced under identical conditions...... He then goes on to say that the difficulty increases if the foot is turned or moved. At page 499 he points out the necessity for making a number of trials in order to ascertain the circumstances under which an impression was made. At page 510, the learned author says:

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Another result flowing from these conclusions is that the deductions made are only relative; they can never be expressed by pre-cited data and have only comparative value. It is impossible to give measurements offixed sizes; for the - numerous factors—the size, the weight, and the other corporal singularities of the individual walking, his burden, his gait and the variable nature of the soil differ _ in every case and may be combined in so many diverse ways that it is absolutely impossible to give precise indications on this matter. After discussing the matter further the author says, “If one has but one indistinct footprint and no clue therefrom, another must be searched for.” The only other passage that need be set out is found at page 532: Much prudence must here be exercised (in taking measurements) and nothing undertaken which shows no chance of success. On the one hand the foot itself varies considerably, e.g., it is much smaller in cold weather or after a long rest than during hot weather or after a long march; on the other hand it ts difficult to measure in as much as it is not a regular body and must be measured differently according to the parts dealt with. If we bear all these facts in mind, then we are far from satisfied that the prosecution has proved that the foot impressions seen by the police on M. Os. 17 and 18 and on the portico are the foot impressions of accused 1, 3 and 5.' 2. The learned judge dealt with the testimony of the expert, at some length. His conclusion was that the evidence of the expert came to nothing. He did not direct the jury on the legal value of the testimony of the footprints expert. Section 45, Indian Evidence Act, does not include footprints within its ambit as it does the finger impressions. Notwithstanding this omission, the evidence of footprint expert has been admitted with the qualification that there should be other evidence to bring home the charge to the accused. The rule on the point is that

the opinion of the footprint expert would not by itself suffice to base conviction on and the rule has been applied to testimony of other experts including experts on fingerprints. Considering that footprints as such are not included in section 45, Indian Evidence Act, it is expedient that the comparison of the footprints may be made so that the judge and the jury could see for themselves to what extent the footprints in question coincide. The summing up of the learned judge does not oe any observations on the value of the testimony of a footprint expert, in aw. The appeal is, therefore, allowed and the conviction and the verdict of the jury are set aside. The case shall go back to the Court of the Sessions for retrial. 7.10.2 Admissibility We are unable to accept this contention. The science of identification of footprints is no doubt a rudimentary science and not much reliance can be placed on the result of such identification. The track evidence, however, can be 1. Manmmadhu (in re:), 1952 Cri LJ 1951 (Mad).

2. Ganesh Gogoi v. State of Assam, 1955 Cri L] 437 (Assam).

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relied upon as a circumstance which, along with other circumstances, would point to the identity of the culprit though by itself it would not be enough to carry conviction in the minds of the court. The shoes had been recovered in the search of the house of the accused and the result of the search was proved by calling the search witnesses whose evidence was believed by both the courts with the result that these shoes, having been recovered from his house, the ownership of the shoes was prima facie established to be his even though the accused had alleged that he has not been staying inthe house but had rented the house for some acquaintance of his. There was evidence to show that he and his wife were staying there right up to 10 A. M. on June 9, 1953 on which day the search was made and if this evidence was believed it would go to establish his ownership of the shoes. If he was the owner of these shoes it was quite legitimate to compare the impressions made by these shoes with the mould prepared from the footprints on the spot. The learned additional sessions judge, however, in order to derive further assurance attempted, in the examination of the accused under section 342, Code of Criminal Procedure to see if these shoes which had been recovered from the house of the accused fitted his feet. If the accused has refused to accede to this suggestion of the learned additional sessions judge he would have been justified in doing so and there is -no provision in law by which this demonstration could have been made. The accused, however, agreed to do so and on the shoes being tried on his feet. It appeared that they fitted his feet. Realizing however, that the result of this demonstration would be adverse to his defence he complained that the shoes were too tight for his feet. The learned additional sessions judge, however, thought otherwise and recorded his impressions accordingly. This type of evidence was very strongly criticised by the learned counsel for the appellant as real evidence which was not justified at all by the provisions of section 539B, Code of Criminal Procedure or otherwise and it was urged that it was a matter which prejudiced the defence of the accused. The learned additional sessions judge was certainly not entitled to allow his view or observations to take the place of evidence because such view or observation of his could not be tested by cross-examination and the accused would certainly not be in a position to furnish any explanation in regard to the

same. The whole thing appears to have been done with the consent of the accused and the only criticism which could be legitimately levelled was against the observation recorded by the learned additional sessions judge that: to all appearances they quite fitted the feet of the accused even though he complained that the shoes were too tight for his feet. This observation could not carry the matter any further for the prosecution and the only fact which could be relied upon by the prosecution was that the shoes apparently fitted the feet of the accused and the learned additional

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sessions judge and the assessors were entitled only to take into account the fact that the shoes apparently fitted the feet of the accused though he complained that they were too tight for his feet. This was occular demonstration and the result of such occular demonstration could certainly be taken into account by the learned additional sessions judge and the assessors and they were entitled to come to their own conclusions taking into account the further fact that the accused did complain at the time that the shoes were too tight for his feet. The evidence of the trackers and also the fact that shoes were found in the house of the accused and the impressions made thereby tallied with the moulds prepared from the footprints on the spot were even otherwise enough to establish the identity of the footprints and point to Pritam Singh Fatehpuri as one of the culprits. The case of Pritam Singh Lohara in regard to the track evidence was no different. In spite of the fact that none of the witnesses of the occurrence nor Pritam Singh, the driver, had stated anywhere before that Pritam Singh Lohara had a limp in his gait, the result of the evidence of the trackers was sufficient to establish that one of the culprits made footprints which showed that his way of walking was outwards and he put his right foot more outwards than the left. This was quite characteristic of Pritam Singh Lohara by reason of the limp in his gait and this was further demonstrated by the impressions which he made

when he walked in the district jail with the shoes given to him there on the sandy patch which was specially prepared for the purpose. This evidence in regard to Pritam Singh Lohara also was believed by both the courts below as sufficient to establish his identity as one of the culprits and we are not prepared to differ from their appreciation of the evidence. The track evidence, therefore, was a circumstance which was available to the prosecution against Pritam Singh Fatehpuri and Pritam Singh Lohara.' 2. We examined and compared the footprints for ourselves and in our opinion, there is such a remarkable similarity between the admitted footprints of the accused-appellant, Surajpal Singh and the footprints in blood found on the spot that there is a high degree of probability that the footprints in blood found on the floor of the verandah of the accused-appellant, Surajpal Singh are the footprints of the accused-appellant Surajpal Singh. In Pritam Singh v. State of Punjab,’ Bhagwati J. speaking for the court said: The science of identification offootprints is no doubt a rudimentary science and not much reliance can be placed on the result of such identification. The track evidence, however, can be relied upon as a circumstance which, along with other circumstances, would point to the identity of the culprit, though by itself it would not be enough to carry conviction in the minds of the court.

It was, however, unfortunate that it was not brought to the notice of the court

that the identification of persons from footprints has many facets and all these 1. 1956 Cri LJ 85 (SC).

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facets could not be clubbed together and science of identification from footprints be dubbed as rudimentary science. The identification of persons from footprints may broadly be classified as under: |. Identification from footprints when the footprints show ridge characteristics. In such cases, the science is as accurate as the science of fingerprints. The prints of the foot of a person show ridge characteristics of his fingers and may be used in a similar way for the identification of persons from similarity of ridge characteristics. 2. Identification from footprints which have special characteristics apart from ridge, etc. Some feet have special characteristics such as a scar at a particular place, an extra or missing toe, a deformative peculiarity, etc. In this case, the value of identification is proportional to the number of

peculiarities.

3. Identification of footprints which show neither ridge characteristics nor other special peculiarities. This is what we usually understand by identification from footprints though quite erroneously, because it is only one of the three categories of identification from footprints. This is based on what is known as ‘Gayer System’ as propounded by G. W. Gayer, I. P., in his book ‘Foot Prints’, An Aid to the Detection of Crime for the Police and Magistracy, (1909 First Edition). In this system which is based on the system of the ‘Khojis’, who were professional trackers of Rajputana, a foot has 12 features namely the five toes called Anguta, Dusri, Tesri, Chouthi and Chichi, the head line of the ball of the foot

called Zanjiri, the ball of the foot called Pab, the instep called Talli, the length of the foot from uppermost point of Anguta to the lower most of the heel (Eri) called Chab, the heel called, Eri, the inner margin of the foot called, Bari Assi and the outer margin of the foot called Choti Assi.

According to the author every one of the these twelve features has as much characters as the features of a face. Once a pupil learns to distinguish them at a glance, he is able to recognise a person from his foot impressions as easily as he can from his face. These features and their characteristics are compared with reference to three guidelines; the first is a vertical line going from the highest point of the big toe (Anguta) to the centre of the heel (Eri), the second line is at right angle to the aforesaid line running under the base of the little toe (Chichi) and the

third joins the highest point of the big toe to the top of the little toe and joins the second line. The author further says at page 3: It is obvious that every individual's footprint must have a distinct individuality for even if there were only three common types of each of the features; and we had nothing else to go on, the total possible number of different types would be 531441, so that, on the average, two feet in about every million would be similar. A careful study of the illustrations and of the text will show that these figures do not err on the side of exaggeration.

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*.

Again at page 6, paragraph 30, the author to avoid possibilities of error in identification says: When two impressions are being compared with each other with the object of finding out if both have been made by the same foot one thing must be clearly understood, ifthey are impressions of the same foot they will agree in all essential points and there will be no points of disagreement. If there are points of disagreement and these have not obviously been caused by some peculiarity or irregularity of the ground, or by some accident, it should be at once admitted that the impressions are those of different feet. Rejecting the contention that the study of footprints is not a science in Din Muhammad v. Emperor, Central Provinces Police Gazette, dated 27 May, 1914 pp. 125-130, the court of the Judicial Commissioner at Nagpur (H. J. Stanyon and H. F. Hallifax, A. J. Cs.) as far back as in 1914 held:

Now the knowledge of handwriting and that of finger impressions have been systematised and arranged under general truth and principles by many writers and pursued by many enquiries, and they are both sciences in which a great deal of progress has been made. The knowledge of footprints has similarly been systematised and pursued by trackers, mainly uncivilised and ignorant people in all other respects, all over the world, and also at the Saugar Police Training School under Mr. G. W. Gayer, who has arranged the knowledge he obtained from other seekers and from his own observations and experiments in a valuable monograph entitled ‘Footprints’. The matter is, therefore, undoubtedly a science and the opinion of a person specially skilled in it is a relevant fact, under section 45 of the Evidence Act.

In the instant case the points of similarities are 9 in respect of the right foot impressions, 10 in respect of the left foot impressions and the points of dissimilarities are three only in each case which have been explained by the | expert ( P. W. 13) is due to the different densities of the media in which the foot impressions were made namely, printer’s ink and blood. The comparison has thus stood the test well and, under the circumstances these foot impressions in blood near the place of the incident which are proved to be those of the accusedappellant Surajpalsingh by preponderance of probabilities are a strong incriminating circumstance against the accused-appellant Surajpalsingh for

which he has not accounted.! 3. Both the courts below believed the testimony of P. W. 3, as they could find no cogent reason for discrediting it, which was described as disinterested. The High Court relied on: 1. motive of the accused persons to commit the crime; 2. the accused having been seen along with a stranger on Thursday, the 6th Agrahavan 1369. B.S. by Kazi Noor Mohammad (P.W. 3) while coming out of Batu’s house with bloodstained clothes and a cycle which was being dragged by Majnu Mia as its rear wheel was chained and locked; 1. Surajpalsingh v. State of Madhya Pradesh, 1972 Cri LJ 1668 (MP).

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3. the embarrassment of the accused on being seen by P. W. 3 and the false explanation given by them about the existence of bloodstains on their clothes; 4. the fact that the cycle was taken by Maddassar on the day of the occurrence at about 4 p.m. to the cycle repairer, Bijoy Chakravarti whose shop is close to Majnu’s house and that lock of the cycle was got broken at that shop; 5. recovery of the broken lock from Bijoy’s shop pursuant to the information given by Maddassar; 6. the recovery of the cycle from Maddassar; 7. false explanation by Maddassar that the cycle had been given to him by Batu’s mother; 8. the existence of stains of human blood on the howai shirt worn by Maddassar at the time when P.W. 3 saw him on the day of the alleged murder;

9. the presence of blood marks on Majnu’s nail cuttings; 10. the opinion of the footprint expert (P.W. 22 B. Chakravarti attached to the Forensic Science Laboratory) that some of the footprints found near the dead body resembled those of Maddassar; 11. the fact that in the afternoon of 6th Agrahayan 1369 B.S. after the accused had come out of Batu’s house that house was found locked and on the lock being broken open after three days the dead body was found lying in decomposed condition. for holding that the circumstantial evidence led to no other Saba

aad except

that of the guilt of the accused.’ 7.10.3 Footwear Evidence—Police Padding The recovery of the pair of shoes of the deceased from the courtyard of the

house of the accused also appears to be a case of police padding. After the accused persons had taken care to conceal the weapon of offence, the parts of the dead body, the clothes of the deceased, the photographs of the deceased with Mst. Asma Bi, the letters written by Mst. Asma Bi to the deceased, and had also taken great care to wash the floor of the house which they were occupying to remove all traces of bloodstains there is no earthly reason to suppose that they would have left the pair of shoes of the deceased in the courtyard of their house to enable the police to recover the same. Apart from this there is one more significant aspect which requires consideration. There is no evidence on the record to show that this pair of shoes was the only pair of shoes which the deceased had or that when he was last seen alive he was wearing that pair of

shoes. In the absence of any evidence on the record to show that immediately before the deceased was seen alive he was wearing that particular pair of shoes no inference can be drawn against the accused from this recovery of the pair of 1. Golam Majibuddin v. State of West Bengal, 1972 Cri LJ 1342 (SC). See also Bahal Singh v. State of Haryana, 1976 Cri LJ 1568: AIR 1976 SC 2032.

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shoes. After giving my careful consideration to this aspect of the matter, I find that the so - called recovery of shoes of the deceased does not advance the case of the prosecution at all. The recovery of the pair of shoes under the circumstances does not connect the accused with the crime.’ 2. Learned counsel for the parties, however, in this court referred to a number of decisions of this court as well as of Allahabad High Court bearing on the question of the value of expert evidence on the matter of footprint. Learned counsel for the appellant has contended that the so-called science of detection of crime by means of footprints, alleged to have been left by a criminal at the scene of occurrence, is still too undeveloped to give any basis for forming any judicial opinion with regard to the guilt or otherwise of the accused persons. Learned counsel for the State, however, has contended that the science has developed to such an extent that valuable clues to the presence of an accused can be derived from an examination of the footprint of a culprit left on the scene of occurrence or at relevant points while running away. The first question for consideration in this connection is whether there is any provision in the Indian Evidence Act to make footprint legally admissible. Section 45 has been referred to in this connection, which runs thus: When the court has to form an opinion upon a point offoreign law, or of science or art, or to the identity of handwriting (or finger impressions), the opinions upon that point of persons specifically skilled in such foreign law, science or art, or in question as to the identity of handwriting (or finger impressions) are relevant facts.

The section deals generally with what is called expert evidence. It has been contended on behalf of the appellant that section 45 in terms, refers to finger impressions only and not to footprints, and as such evidence based on the alleged footprint of the criminal compared with his genuine footprint should not be held to be admissible. Reliance is placed in support of this contention on the case of Oomayan (in

re:)*, Paramban Manmmadhu (in re:)°; Ganesh Gogoi v. The State*, and Pritam Singh v. State of Punjab’. The case reported in AIR 1942 Mad 452 is a single judge decision of. Horwill, J. where it has been laid down that experts in footprints are not recognised by the Evidence Act. There is no reference, however, made to any

particular section of the Act. It was, however, further held in that case that:

A magistrate is entitled to take into consideration the evidence of a person, who has seen a footprint and taken the footprints of the accused and found that they are very similar. That evidence ts not, however, sufficient to bring home the offence to the accused in the absence offurther knowledge regarding the differences between one foot and another. Mazahar Ali v. State of Jammu & Kashmir, 1976 Cri LJ 1622 (J&K). AIR 1942 Mad 452. AIR 1951 Mad 737.

AIR 1955 (Assam) 751. he OW Gen AIR 1956 SC 415.

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In substance, therefore, it was held that such evidence could be looked into by a court of law although a person making such comparison could not be regarded as giving expert evidence as provided in section 45 of the Evidence Act. In the case of Paramban Manmmadh (in re:)!, which is a Bench decision of that court, delivered by Horwill, J. Supra) the learned judge held that opinion of a footprint expert is not admissible as evidence.

The learned judge has, no doubt, referred in detail to the value of such evidence giving reasons why such weight should not be attached to such evidence. As regards the Indian Evidence Act, however, there is no reference to any particular provision of the Act nor any discussion of the legal position. In my opinion, therefore, this case cannot be looked upon as a considered authority on the applicability of section 45 of the Evidence Act to decide whether evidence of a footprint expert can be acted upon by a court of law as good evidence. In the case of Ganesh Gogoi, it was no doubt observed that the word ‘footprint’ does not occur in section 45 unlike the word ‘fingerprint’ so that footprint cannot be taken as included within the ambit of that section. The evidence of the witness having held the comparison of the footprint was yet held to be admissible on the ground that the judge and jury could see for themselves as to what extent the footprints coincided. This case, thus, can be

taken to have followed the rational in Oomayam (in re:)*. In the case of Pritam Singh v. State of Punjab,° there is an observation to the effect that the science of identification by footprints is a rudimentary science and much reliance cannot be placed on the result of such identification. The track evidence, however, can be relied upon as a circumstance which,

along with other circumstances, would point to the identity of the culprit though by itself it would not be enough to carry conviction to the mind of the court. That decision also does not lay down that such evidence is not admissible under the provisions of the Indian Evidence Act. If anything, the observation would point to the conclusion that such evidence would not be inadmissible but that much reliance could not be placed on such evidence on account of the undeveloped stage of scientific knowledge in regard to footprint. Learned counsel for the state, however, has drawn our attention to the case of Mannian Velayudhan, which is a Bench decision of the Madras High Court consisting of Govinda

Menon

and

Mack, JJ. printed in the Bihar Criminal

Intelligence

Gazette, dated 6th July, 1956, where there is an elaborate consideration of the applicability of section 45 of the Indian Evidence Act to the evidence given by an expert on the footprint under consideration in the criminal trial. With respect, I agree with the observation of Govinda Menon, J. when his

Lordship held the opinion of an expert in footprints admissible under the heading “science” occurring in section 45. Their Lordship in their judgment expressed their disagreement with the view adopted in the case of Paramban Manmmadhu (in re:)! and the case of Oomayam (in re:).2 In my opinion, the word 1. AIR 1951 Mad 737. 2. AIR 1942 Mad 452. 3. AIR 1956 SC 415.

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“science” which has been defined in the Universal Dictionary of English language, referred to by the learned judge, as great proficiency, dexterity, skill based on long experience and practice, is sufficiently wide to include the evidence of an expert. The learned judge has referred in that connection also to a book Modern Criminal Investigation, by Dr. Harry Soderman, Chief Director of the National Institute of Technical Police, Sweden, wherein he has referred to the fact that

some maternity hospitals in America, where prints of the sole of new born babies are taken for identification purposes, it is considered to be a reliable test for identifying the child. I may also refer in this connection to the fact that section 45 of the Evidence Act, as it stood prior to its amendment by Act V of 1899, did not contain the words “finger impressions” evidently, because the Legislature thought that the section as it stood was comprehensive enough to cover the opinion of all expert in foreign law or scienae or Art. There was, however, a decision of the Calcutta High Court in the case of

Queen Empress v. Fakira Mohammad Sheikh, 1 Cal WN 33 where it was held by Banerjee, J. that the opinion of an expert as to the identity of thumb impression was not admissible under section 45 of the Evidence Act. It was with a view to obviate the conclusion of the learned judge in that case that the Legislature thought it fit to incorporate the words “finger impression” in specific terms. The reasons for the amendment quoted by Sarkar in his book on the Law of Evidence in India are relevant for the present purpose as well. The quotation runs thus: The system of identification by means of such impressions is gaining ground and has been introduced with considerable success especially in the Lower Provinces of Bengal. It seems desirable that expert evidence in connection with it should be admitted, and with that object it is proposed by Clause 3 of this Bill, expressly to amend the law on the subject. In my opinion, that amendment indicates the policy of the legislature regarding progress in science and accordingly, I agree with the opinion of Govinda Menon, J. that the word “Science” occurring in section 45 should be held to be comprehensive enough to include the opinion of the expert in footprints as well. Learned counsel for the appellant has, however, contended that at least in the present case the evidence of the expert should be discarded as valueless, because there was no complete footprint, found on the gramophone record but only a partial footprint. Even the expert admitted in his evidence that no positive opinion of identity could be given by him since the full footprint impression was not available. The expert, however stated further: There is no chance of the photo A being of any other person. The chance is very remote, we are very conservative in our opinion, and unless we get full data we do not give positive opinion. If certain features in one print agree with relative position in another print, then the remaining portion ifappeared would also have agreed. In this particular case the prints of bridge and the heels were necessary for giving a positive opinion. Bridge and heels are missing in the photo marked A.

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Giving reasons for his opinion, he said as follows: I compared the print marked ‘A’ with all the nine specimens of the nine suspects including the prints X, X-1 and X-2. Print marked A by me was found to be similar with the correlative right footprint portion of the suspect Basudeo Gossain marked X, X-l and X-2. The common correlative peculiarities have been marked

out by me on the photographs marked A and X by me. The reasons of my opinion are as follows: They are similar in physiognomy. The distribution of the toes is similar. The nature of the lines at central portions in the toes are similar, which are clear in A and very clear in X. The second toes and the third toes are close in both. The fourth toes and the fifth toes in both are apart. The zanjiri lines below the toes are similar in both, in their concavities and convexities. The ball portion below the toes and zanjiri lines so far available are similar in both. For superimposition check chart, I have traced A and X both on a sheet of glass and have superimposed the tracing of A and X, and of X and A, and they fall in their correlative position.

A look at the photograph of print A, however, shows that the second and third toes are joint which is not the case on the genuine footprint of the portion marked X, X-1 and X-2. The expert (P.W. 6), who came to the court to explain the

position, stated to us that a slight difference was due to the medium. The two fingers (toes) appear to be joint because there might be an external medium such as mud or sweat sticking to the toes of the appellant. That matter, however, has not been explained in the evidence given by him in the court of the judicial commissioner.

In the circumstances, even if the evidence of the expert (P. W. 6) be left out of consideration, the evidence of P. W. 1 Ramkishun Ram would be sufficient to uphold the conviction of the appellant. This evidence, however, stands corroborated also by the fact that he admitted in his examination under section 342, Code of Criminal Procedure that he was made to give his footprint on a gramophone record by the investigating officer holding out a temptation that he would be let off if he agreed to do so. I have already held that this explanation is palpably false. It is obvious, therefore, that the court would be justified in holding that the footprint on the gramophone record was his and the circumstance could be put in weight against him. In the result, it must be held that this appeal has no merit and it must be

dismissed.! 7.10.4 Improper Testimony

1. Now I take up the evidence of the footprint expert. His evidence with regard to footprint is unreliable and inadequate. It would be hardly fair to dub him an expert in footprint because he has got no experience in this line. Prior to this case, twelve years ago he had occasion to examine footprints. He went to the spot and found that there were footprints in blood on the ‘farsi’ (paved floor). He got the footprint on the ‘farsi’ impressed on a plain glass, then traced them on a paper. Several people were made to walk on road filled with earth and from 1. Basudeo v. State of Bihar, 1959 Cri LJ 1355 (Pat).

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footprint, made on earth, he compared them with the footprints traced on paper and taken from the bloodstained ‘farsi’ and he gave opinion that the footprints were of accused Fakirchand. The expert has not given any scientific tests from which he came to the conclusion that the footprints of Fakirchand on earth tallied with the footprints made on bloodstained ‘farsi’. He has not kept the trace of Fakirchand’s footprint impression on the earth on road so that a comparison can be made with the footprint trace taken from the ‘farsi. He does not say whether the pad and toe impression were similarly identical. In fact he assigns very inadequate and unsatisfactory reason for coming to the conclusion that the footprints on the ‘farsi’ at the scene of occurrence are those of accused Fakirchand. The learned judges below have simply accepted the opinion of the expert as gospel truth and they could not form their own independent opinion. In a murder case, before relying on the opinion of the expert as to footprints found near the corpse of the deceased as conclusive evidence against the accused, the judge should form his opinion with regard to the identity of the footprints found near the corpse with the footprints of the accused.! 2. The next branch of Mr. Ghosh’s submission relates to footprints and the nature and effect of the evidence of the expert thereupon, P.W. 16. “The witness (P.W. 16), is the expert on footprints attached to the Forensic Science Laboratory,

Medical College, Calcutta. On 16th August, 1966, he received amongst others one leather slipper of the left foot marked “Y’ by him and 4 specimen footprints marked | to 4. The slipper is exhibit 7 and the specimen footprints are exhibits VII to X. He stated that some comparable features could be deciphered from the slipper marked “Y’. On comparison similarity in features was noticed between the slipper marked ‘Y’ with left foot specimen footprint marked ‘1’ by him. He was ultimately of the opinion that in all probabilities marks “Y’ and ‘1’ are production of the one and the same left foot. Mr. Ghosh has contended that the evidence of the footprint expert is not sufficient to connect the accused appellant with the crime. Upon an analysis of the said evidence we agree with Mr. Ghosh. It is passing really strange that an expert in his ultimate opinion would depend on probabilities and not on firm conviction in the absence whereof the said evidence would become dangerously thin indeed and the court of law would not take that by itself into consideration for the purpose of fixing the guilt of the accused. The expert having reached the point of interrogation or of probability, cannot be relied upon for the purpose of a conviction in a case under section 302, Indian Penal Code. It is difficult for us to comprehend as to how the expert was satisfied by comparing the specimen footprint of the accused, as taken, marked ‘1’ with the slipper of left foot, marked ‘Y’. It is also difficult to understand as to how marks ‘Y’ and ‘1’ being photographed in superimposed manner in his presence and enlarged thereafter could be of any material help in connecting the accused with the crime. Apart from the nature of the evidence of the expert as discussed above, the science of identification by footprint impression is still an imperfect science and 1. Fakirchand v. State of Madhya Bharat, 1955 Cri LJ 1073 (MB).

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it is inexpedient to place reliance on the result of such identification. Several authorities on the subject have been referred to before us, apart from the case law cited on the point, both by Mr. Prasun Chandra Ghosh and Mr. S. Banerjee, the learned D.L.R. In support of his contention Mr. Ghosh has referred to the observations of Charles E. O'Hara and James W. Osterburg made in their book ‘An Introduction to Criminalistics’. In the 4th printing (1960) of the said book the

authors have observed at page 107 that: It is not always a simple matter to identify the shoe of suspect as being unquestionably shoe that made the shoe impression at the scene of the crime. The large-scale manufacture for a few predominant brands of shoes give the defence counsel grounds of establishing a strong doubt concerning the unique correspondence between the cast of the impression and the defendant's shoe. In many cases, the sole of the cast is without characteristics except for the shape of shoe. The era of cheap shoes has led many people to the habit of purchasing new shoes rather than repairing old ones.

By referring to the principles laid down therein about the walking pattern, Mr. Ghosh has submitted that the method as adopted in the present case, upon his own admission of P. W. 16, has not conformed to the norms enjoined in this behalf. Mr. Banerjee has referred to the book on ‘Footprints’ by G. W. Gayer (Ist Edn. 1909). At page 6, the author has observed that: When two impressions are being compared with each other with the object of finding out if both have been made by the same foot, one thing must be clearly understood, ifthey are impressions of the same foot they will agree in all essential points and there will be no points of disagreement. The difficulty in present case is regarding the two impressions as sought to be compared by the expert and there even the expert has only found ‘some comparable features’ and not an agreement in all essential points. Mr. Gayer has further observed at page 12 of the said book that: It is useless to compare measurements offeet with measurements of impressions of feet left on the ground because the sole is very liable to spread when pressure is brought on tt. We agree with the said observation and hold that the said difficulty obtains in the present case also. Mr. Banerjee referred in the next place to the treatise on ‘Modern Criminal Investigation’ (5th Edn.), by Dr. Harry Soderman and John O’Connell. The learned authors have observed that: From the view point of criminology, sole-print are not as important as finger and palm prints, but occasionally they may have some measure of importance. Thereafter the authors have discussed the classification for this purpose as devised by Wilder and Wentword and by Dr. Emil Jerlov of the Maternity Hospital of Halsingburg, Sweden. As to the identification of footprints it has been further observed in the said book at page 166 that: In order to get a true picture of the formation of the foot in different positions it is necessary to take four different footprints, namely, in normal standing position, in

walking, in a standing position with pressure on the outer portion of the foot, and in a standing position with pressure exerted on the inner part of the foot.

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It, would, therefore, appear that the comparison as made in this case is defective and no fool-proof opinion can be advanced on the basis of the same. We may refer in this connection to the well-known treatise on Criminal Investigation, as adopted by J. Collyer Adam (1924 Edn.) from the “System der

kriminalistik” of Dr. Hans Gross. The same is an authority on the subject and has been referred to by G. W. Gayer and also both by Dr. Harry Sodderman and John J. O'Connell and by Charles E. O’Hara and James W. Osterburg. As to the importance and use of footprints the learned author has observed at page 325 of the said book that: As a rule footprints are but seldom found where they are wanted. Moreover, when they exist, they are rarely entire and complete, and for that reason are considered of no value ......-. On the other hand when well preserved traces do exist, the essential thing is to be able to interpret them and to know how to make good use of them. On this science is dumb and has hardly even approached the question. As to the reproduction of footprints, he has further observed at page 363 that: We trust it is unnecessary at this stage to repeat that all important impressions must be reproduced. One can hardly imagine an investigating officer so indifferent or so inexperienced as to experiment with the original footprint itself. It is, however, a fact that such persons exist, so that we cannot tao strongly point out the danger of damaging an impression. Unfortunately, however, the examination in this case of the foot impression suffers from the said defect and the method as adopted has been quite unsatisfactory and has resulted in a serious prejudice to the accused appellant. In this connection reference has been made to several decisions on the point. Mr. Ghosh has referred to the decision in Bhikha Gober v. Emperor’ by Chief Justice Beaumont and Mr. Justice Sen, Chief Justice Beaumont delivering the

judgment held at page 460 that it is not sufficient: that the foot-marks tallied with the accused's shoes. That may mean no more than that these marks were made by shoes of a size corresponding to the size of the accused's shoes. That is not enough. There may be a large number of shoes in village of the size of the accused's shoes. The evidence must go further and show that the marks had some peculiarity which was found in the shoes of the accused, and would not be found in most other shoes. The next case cited in that of In re Paramban Manmmadhu,? Mr. Justice Horwill

and Mr. Justice Rajgopalan observed at p. 740 that:

The opinion of a footprint expert is not admissible as evidence ......... The value of evidence with regard to footprints is obviously very much less trustworthy than evidence with regard to fingerprints ...... With regard to footprints, on the other hand it would seem from the evidence and from what we have been able to read from Dr. Hans Gross’s book on Criminal Investigation that one can only compare with the general shape of footprints found with the shape of impressions taken from thefeet of the person suspected.

1. AIR 1943 Bom 458. 2. 1952 Cri LJ 1951 (Mad).

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The next case cited by Mr. Ghosh is that of Ganesh Gogoi v. State of Assam! Chief Justice Sarjoo Parasad and Mr. Justice Ram Labhaya delivering the judgment observed at page 54 that: Section 45, Evidence Act, does not include footprints within its ambit as it does the finger impressions. Notwithstanding this omission, the evidence offootprint expert has been admitted with the qualification that there should be other evidence to bring home the charge to the accused. The rule on the point is that the opinion of the footprint expert would not by itself suffice to base conviction on and the rule has been applied to testimony of other experts including experts on fingerprints.

A reference was also made to the decision by Mr. Justice S. C. Misra and Mr. Justice U.N. Sinha in the case of Basudeo Gir v. State of Bihar? Mr. Justice Misra referred to the various authorities and decisions on the point and observed at page 586 that: In my opinion, the word “science” which has been defined in the Universal Dictionary of English language, referred to by the learned judge, as great proficiency dexterity, skill based on long experience and practice, is sufficiently wide to include the evidence of an expert.

Mr. Justice Sinha agreed with the said view and referred to the two previous decisions by the Patna High Court, namely, in the case of State v. Karu Gope,? and in the case of Ram Karan Mistri v. State of Bihar, wherein the opinion of the expert was considered “on merit without any reference to section 45 of the Indian Evidence Act.” It is quite true that in section 45 of the Indian Evidence Act there is no mention of footprint impression in specific terms. As a matter of fact the words “finger impression” were added by section 3 of the Indian Evidence Act, 5 of 1899. In this context it would be pertinent to refer to the case

of Queen-Empress v. Fakir Md. Sheikh? where Mr. Justice Banerjee held at page 35 that:

“though the comparison of thumb-impression is allowable, such comparison must be made by the court itself; and the opinion of the expert as to the similarity of such impression is not admissible under section 45 of the Indian Evidence Act.” It is also pertinent to consider that in Ceylon section 45 of the Indian Evidence Act has been amended to include the words “palm impression” wherever they occur in this section. Therefore, the state is not in a flux so far as Ceylon is concerned. However, as has been held in AIR 1959 Pat. 534 such evidence by an expert on footprint could come within the ambit of the word “science”, as used in section 45 of the Evidence Act. The utmost bounds of

human thoughts are, however, ever expanding and the outer periphery of science are extending everyday. The expression “science” is accordingly acquiring a wider connotation in the world today. Identification of people by 1. AIR 1955 Assam 51.

2. AIR 1959 Pat 534. 3. AIR 1954 Pat 131. 4.

AIR 1958 Pat LR 246

5. (1979) 1 Cal WN 33.

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smell or even by their teeth are now in vogue and are considered to come within the ambit of “science”. Forensic Odontology or the science of identifying people by their teeth was recently relied upon for the detection of crime in the High Court at Edinburgh. The cloud, however, has been lifted and the point settled in

the case of Pritam Singh v. State of Punjab,‘ decided by Mr. Justice Bhagwati, Mr Justice Venkatarama Ayyar and Mr. Justice Sinha, Mr. Justice Bhagwati who delivered the judgment observed at page 423 that: The science of identification offootprints is no doubt a rudimentary science and not much reliance can be placed on the result of such identification. The track evidence, however, can be relied upon as a circumstance which, along with other circumstances, would point to the identity of the culprit though by itself it would not be enough to carry conviction in the minds of the court. We hold, therefore, that it is unsafe to base a conviction on the basis of the expert’s evidence alone regarding footprint or sole print. As considered in the light of the observations made by the various authorities on the subject and in view of the principles laid down in the different cases on the point, the science of footprint or sole print or of track evidence appears to be still in an embryonic stage. It may have travelled beyond the stage of crude empiricism but has not yet

reached the stage of an exact science.” 7.10.5 Footprint Evidence—No Data

Next we come to the footprints stained with blood found in the courtyard. We find from the evidence of P.W. 19 that he found 5 footprints. He selected three out of those as fit for examination. Amulaya Chandra Sahu (P.W. 28) and Durvodhan Barik (P.W. 21) were directed by him to take photographs. Thereafter glass tracing was done by him. Specimen footprints of Basu and Kanhu were also taken. Only one footprint was found suitable and on comparison the specimen footprint of Kanhu resembled the footprints as reflected in Exts. 14, 15, 16 and 16/1. He proved the report Ext. 20. P.W. 19 stated:— “\.«.1n the opinion Ext. 20 we are definite that the footprint marked ‘A’ as Exts. 14, 15, 16 and 16/1 has resemblance with the footprints in the document marked ‘X’. In report Ext. 20 we said ‘some resemblance’ because the footprints in Exts. 14, 15, 16 and 16/1 were partial footprints which completely tallied with the corresponding part of the footprint reflected in the document marked ‘X’ for identification which is the full footprint of Kanhu Barik. True it is the reason assigned by me today in the foregoing lines do not find place in Ext. 20 because these details were not at all necessary. There was no ridges and therefore, the number of ridges taken into consideration does not arise.......” The reasons in support of the said opinion are lacking. The report is not conclusive proof. Evidence of experts after all is opinion evidence. The opinion is to be supported by reasons. The court has to evaluate the same like any other evidence. The reasons in support of the opinion, if convincing, make the opinion 1. AIR 1956 SC 415.

2. Bhulakiram Koiri v. State of West Bengal, 1970 Cri LJ 403 (Cal).

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acceptable. There is no place for ipse dixit of the expert. It is for the court to judge whether the opinion has been correctly reached on the data available and for the reasons stated. We quote from the decision of the Supreme Court in Murarilal v. State of Madhya Pradesh, AIR 1980 SC 531: 1980 Cr LJ 396. (Para 4). “s1+--But the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts in general, are unreliable witnesses—the quality of credibility or incredibility being one which an expert shares with all other witnesses, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification offingerprints has attained near perfection and the risk of an incorrect opinion is practically non-existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. An expert deposes and not decides. His duty is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgement by the application of these criteria to the facts proved in evidence”. Their Lordships further stated in para 11:—

ae Reasons for the opinion must be carefully proved and examined ..... In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of a handwriting expert may be accepted .....

Following the aforesaid dictum of the Supreme Court and agreeing with the counsel for the appellant, we exclude the evidence of footprints as in Exts. 14,15,

16 and 16/1 and Ext. 20 and the evidence on this question as given through P.W. 19 from consideration, as having no probative value. It is worthwhile to note that the expert does not say that the specimen footprints were identical with the foot prints as per Exts. 14, 15, 16 and 16/1. On the contrary, in Ext. 20 he says that there was “some resemblance”. He admits that there were no ridges and so, consideration of ridges did not arise.! ‘It was, however unfortunate that it was not brought to the notice of the court that the identification of persons from footprints has many facets and that all these facets could not be clubbed together and science of identification from footprints be dubbed a rudimentary Science!’ Naik, 1972

C4 1. State of Orissa v. Kanhu Charan Barik, 1983 Cri LJ 133. Also see Mangobinda Swain v. State of Orissa, 1978 Cri LJ 127; Shankaria v. State of Rajasthan, 1978 Cri LJ 125: AIR 1978 SC 1248.

Chapter 8

TOOL MARKS SYNOPSIS 8.1 IMPORTANCE 8.1.1

Frequency

8.1.2 Permanency 8.1.3 individuality 8.1.4 Linkage 8.1.5 Reconstruction 8.2 NATURE 8.2.1

indentations

8.2.2 Scrapes 8.2.3 Saw Marks 8.2.4 Drill Holes 8.2.5 Prints 8.2.6 Broken or Severed Parts 8.2.7 Contact Marks 8.2.8 Extraneous Material 8.3 LOCATION 8.4 COLLECTION 8.4.1

Articles

8.4.2 Casts 8.4.2.1

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8.4.2.2 Dental mass 8.4.2.3 Adhesive tape 378

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solutions 8.4.2.4 Latex and plastic 8.4.2.5 Wood's metal 8.4.2.6 Plaster of Paris 8.4.3 Packing

8.4.4 Standards 8.4.5 Extraneous materials 8.4.5.1 Questioned traces 8.4.5.2 Standards 8.5 EVALUATION 8.5.1 Principles 8.5.2 Techniques 8.5.2.1 Mechanical fit 8.5.2.2 Side by side match 8.5.2.3 Composite match 8.5.2.4 Striagraphy 8.5.2.5 Superimposition 8.5.3 Sufficient Evidence 8.6 Case Law 8.6.1 Button Evidence 8.6.2 Mechanical Fit

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TOOL MARKS 8.1 IMPORTANCE The tool marks have great evidentiary value in criminal investigation: 8.1.1 Frequency

A criminal often uses some tools in the commission of a crime. If he is prying open a window, he uses a crow bar or a screw driver; if he is opening a lock, he uses a ghost key, a master key or a cutter; if he is felling a tree, he uses an axe or a saw, if he has entered the house after creating a hole inthe wall he has used some digging implements: like a spade or shovel. If he stolen copper wire or cable he must have used wire cutters. Thus, the occurrence of tool marks is almost universal in all types of crimes. 8.1.2 Permanency

A tool is made of a hard metal. The surface on which it leaves marks is ordinarily, made of softer material. The tool is not damaged in the process to any appreciable extent. If the tool is not extensively used or misused and if the same is properly maintained, the marks are reproducible almost indefinitely. Thus a criminal can be linked to a crime even after a long interval through the tool (recovered from the criminal) and the tool marks collected from the scene.

8.1.3 Individuality The tool marks like fingerprints, foot and footwear marks and marks on bullets and cartridges provide a definite link between the crime and the criminal. For example, a piece of wire is stolen (by cutting). The cut end left at the scene is sent to the laboratory alongwith the tools recovered from the suspect, the wire is found to have been cut with the tool recovered from the suspect, the theft is pinned to him. This is so because no two tools even of the

same make and batch, made one after the other will have identical surfaces and leave identical marks on the surface cut, grazed or scratched by them. 8.1.4 Linkage

A culprit usually uses the same set of tools in the commission of the same type of crimes. If the tool marks from the various crimes are compared inter se and found identical, the crimes are linked.

8.1.5 Reconstruction Careful study of the nature, position, direction and number of tool marks help in the reconstruction of a crime and thus it is possible to verify the prosecution or defence version of the crime. In a murder case, the accused pleaded that he was attacked by the victim with a sword. He threatened the victim with a gun. The victim in the meanwhile allegedly gave a sword blow to the barrel of the gun. It went off and killed the victim. The gun had a cut mark on its barrel and the story appeared to be correct. The crime was enacted in the laboratory with the gun and the sword. The gun was 381

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TOOL MARKS 8.1 IMPORTANCE The tool marks have great evidentiary value in criminal investigation: 8.1.1 Frequency

A criminal often uses some tools in the commission of a crime. If he is prying open a window, he uses a crow bar or a screw driver; if he is opening a lock, he

uses a ghost key, a master key or a cutter; if he is felling a tree, he uses an axe or a saw, if he has entered the house after creating a hole in the wall he has used some digging implements: like a spade or shovel. If he stolen copper wire or cable he must have used wire cutters. Thus, the occurrence of tool marks is almost universal in all types of crimes. 7 8.1.2 Permanency

A tool is made of a hard metal. The surface on which it leaves marks is ordinarily, made of softer material. The tool is not damaged in the process to any appreciable extent. If the tool is not extensively used or misused and if the same is properly maintained, the marks are reproducible almost indefinitely. Thus a criminal can be linked to a crime even after a long interval through the tool (recovered from the criminal) and the tool marks collected from the scene.

8.1.3 Individuality

The tool marks like fingerprints, foot and footwear marks and marks on bullets and cartridges provide a definite link between the crime and the criminal. For example, a piece of wire is stolen (by cutting). The cut end left at the scene is sent to the laboratory alongwith the tools recovered from the suspect, the wire is found to have been cut with the tool recovered from the suspect, the theft is pinned to him. This is so because no two tools even of the same make and batch, made one after the other will have identical surfaces and leave identical marks on the surface cut, grazed or scratched by them. 8.1.4 Linkage

A culprit usually uses the same set of tools in the commission of the same type of crimes. If the tool marks from the various crimes are compared inter se and found identical, the crimes are linked.

8.1.5 Reconstruction Careful study of the nature, position, direction and number of tool marks help

in the reconstruction of a crime and thus it is possible to verify the prosecution or defence version of the crime. In a murder case, the accused pleaded that he was attacked by the victim with a sword. He threatened the victim with a gun. The victim in the meanwhile allegedly gave a sword blow to the barrel of the gun. It went off and killed the victim.

The gvin had a cut mark on its barrel and the story appeared to be correct. The

crime was enacted in the laboratory with the gun and the sword. The gun was 381

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cocked and held in the firing position. A number of blows were given with the sword with full force by a second person. However, the gun did not go off. Surprisingly, it was observed that the sword did not create any cut mark on the barrel. Instead, its sharp edge of the sword folded; it was, therefore, apparent that the sword had not caused the cut mark on the gun. The accused was confronted with the evidence. He confessed that he had created the mark with a Khukhri. The second version was verified to be correct. (CH)

8.2 NATURE Tool marks evidence is essentially of the following types: 1. Indentations *

Scrapes

Saw marks Drilled holes Cm Prints (from printing blocks, numbering and dating machine) ie Mar ye 6. Broken and severed parts 7. Contact marks Strictly speaking only the first four types are tool marks. But as the others involve similar principles it is better to consider them here.

8.2.1 Indentations An indentation is caused by a tool when it is pressed upon a surface without sliding motion, i.e., by static impact. The mark contains the outline of the tool

surface with its irregularities, which comes in contact with the impacted surface only. The clarity and individuality of the mark depends upon the surface of the tool, the force of impact and the nature of the recipient surface.

Fig. VIII-2 Air rifle pellet mark on wind screen of a jeep allegedly fired by some culprit.

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The following tools leave indentations: 1. Hammers . Punches Dies

. Metallic seals and stamps OP WNStones, bricks and other articles used to cause impact 6. Maces

Sometimes, tools like knives, chisels, jimmies, crow bars, screw drivers and axes also leave indentations.

It is often possible to connect a tool positively with an indentation left at the scene of occurrence, which decisively links the criminal with the crime. 8.2.2 Scrapes

The scrape marks are caused by the sliding contact of a tool with the recipient surface. The surface is scratched in a characteristic fashion depending upon the irregularities (nicks and protrusions) of the scratching surface of the tool. All tools causing indentations create scrapes if there is sliding motion. In addition, the following types of tools commonly create scrapes: 1. Cutting tools: swords, knives, axes, scythes, shears, wire cutters, hatchets, scissors and the like. Chisels, can-openers, crow bars, screw drivers . Pliers and wrenches used to turn nuts, bolts and pipe fittings . Shovels used to dig earth . Pieces of projected stone, brick, metal or wood scratching against an object in motion (e.g., a vehicle) when the latter slides against the former 6. Marks on a bullet, firing pin scrapes, etc. Scrape marks are found in the form of lines (striations). The width, depth and inter-distances of the scratched lines vary to a certain extent depending upon the angle of application, the force used and the relative hardness of the two surfaces.

8.2.3 Saw Marks Saw marks including hacksaw marks are a class by themselves. They permit identification of the tool only in rare cases. When the whole length is cut through, the saw or the hacksaw leaves its pattern of the cut surface. It indicates

the number of teeth per unit length. If some teeth are broken, their number, position and shape may allow positive identification of the saw or hacksaw.

8.2.4 Drill Holes Holes dug by drills and bits in wood are frequently troublesome for identification purposes. If the hole is not through and through, the bottom of the hole carries the indentation of the surface of the tool. A positive identification of this indentation in respect of the tool may sometimes be possible, through the indentation.

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Punched hole on a metal sheet (e.g., a tin openers hole in a can) is often identifiable in respect of the tool causing the hole because the tool leaves scrape mark on the can also.

P% oe : bs

$s

a YS

S

& xy

Fig. VIII-5 Identification of the method used to escape from jail. Different methods used for cutting iron bars. 8.2.5 Prints

Prints from printing blocks are identified positively, as every printing block has its own defects of omissions and commissions.

TOOL MARKS

385

Numbers and dates printed from numbering and dating machines have, likewise, individualities which allow identifications. In an interesting case, a lottery ticket without carrying any serial number was stolen from the printing press. When the prize of the lottery was declared, the winning ticket number was printed on the ticket and produced to claim the prize. The authorities were surprised to find two tickets of the same number. They suspected that either the same number has been printed on the two tickets or some person has forged one of the tickets. It was possible to identify the correct and forged tickets from the numbers by comparing the same with the standard numbers. (CH) The identification of forged trade marks, designs, emblems, forged letter heads, identity cards, order forms, and currency notes is based on the identification of the defects of their respective blocks.

Fig. VIII-6

Fig. VIII-7

Fig. VIII-8 A piece of button (Fig. VII-6) left with the shirt and another piece (Fig. VII-/) fallen at the scene. Mechanical fit (Fig. VII-8) of the two established the presence of the wearer, the culprit, at the scene.

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*

8.2.6 Broken or Severed Parts Broken and severed parts of articles recovered from the scene of occurrence and those from the person, house or vehicle provide a definite type of evidence if a ‘hand-in-glove’ fit is obtained. The variety of the evidence in this type is in fact limitless. Broken or severed articles can be a bone, a nail, a tooth or piece of skin, a tool, a glass, a wooden piece, a leaf, a clothe, an ornament, machinery, a twine, a board, a pipe, a stolen

wire, a plastic hose, a paper sheet, a page or pages from a book or magazine or a newspaper. A few years ago a fragment of a button found adhering to the coat, linked the criminal with the scene of occurrence. The major part of the button had come off and fallen at the scene during the scuffle. (CH) The culprit sometimes changes the ends of the severed or broken parts intentionally or otherwise. The severed end can still be connected with its counterpart. The presence and continuity of the microscopic scratches on the pieces prove useful. The scratches may be natural or due to manufacturing defects. A finger nail carries natural striations. A piece of finger nail can be identified in respect of the finger from which it has come even after years.

Fig. VIII-9 A wooden piece left at the scene fitted snugly to gun of the suspect. It established the use of the gun at the scene of crime.

In one draw of a state lottery, nobody claimed the second prize at first. Later a ticket torn into many pieces was produced for the prize. The number of the ticket was on two pieces. It was necessary to find out if the pieces bearing the number came from one and the same ticket or not. The torn edges of the pieces did not give any definite indication. The background (security) printing was, therefore, examined. It was found that there was a gap of space of sixteen letters in the printed writing, whereas they were supposed to be in continuation.

The two pieces bearing the number had obviously come from different tickets. (CH)

TOOL MARKS

387

A number of cases were examined in the laboratory where mechanical fit linked the crime and the criminal. 1. Broken glass piece on a vehicle in a hit and fit run case was identified to the victim vehicle through mechanical fill of the glass piece. 2. A piece of cloth left in the barbed wire at the scene formed part of the shirt of the suspect from which, it had torn off. 3. A piece of paper used as wad in a muzzle loader was from a newspaper recovered from the house of the suspect.

8.2.7 Contact Marks Articles which are joint together by glue, nails or rivets exchange contact marks. If they are detached, changed or stolen, the fact that they were originally attached can be established from the presence of the contact marks. A stolen tyre or a detached registration number plate of a vehicle or an ornamental piece fitted to a vehicle and fallen off in an accident are identifiable in respect of the vehicle. In a murder case, the culprit speared his victim to death. In the process the blade got struck in some bone and came off the stick to which it was attached. The culprit ran away with the stick. Later the blade was extracted from the body and the stick was recovered from the suspect and sent to the laboratory. The stick attached to the spear head through two nails. It bore characteristic scratches from the two nail holes on the conical surface of the stick. A wax cast of the hollow of the blade end was prepared and taken out. The examination of the marks on the wax cast and conical portion of the stick indicated the common source of the marks. A positive link between the crime and the culprit through the stick was established. (CH) In a hit and run case, the investigating officer recovered some paint flakes from the scene of occurrence. When the suspected vehicle was recovered, it was possible to fit one of the paints flakes on the vehicle in spite of the fact that an attempt had been made to cover the spot with fresh paint. (CH)

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yy LYM

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4

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Fig. VIII-10

/ Y

,

¥ VATA

GE We

Ms

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Fig. VIII-12 Parts (Fig. VIII-10 and VIII-11) ofa broken gun left at the scene fitted snugly to give the complete (Fig. VIII-12) gun. The parts linked the scene with the suspect.

8.2.8 Extraneous Material The tools carry dust particles, paint, polish and fragments of metals and wood from the place of contact. Similarly if the tool is originally dirty, it may deposit the dirt at the place of contact. This type of evidence should be common. With modern scientific instruments, it is possible to evaluate the traces quite accurately. The evidence, therefore, should be searched, collected and got evaluated.

In a case of murder, the culprit used a sawn-off gun. He left the gun at the scene to pass it as a case of suicide. Fresh cutting of the barrel search the house of the suspect culprit. The search gave tiny metallic particles. Chemical analysis of the same indicated that hacksaw had been used to cut the barrel. the crime. (CH)

however made the police a hacksaw, which carried and of the barrel metal It linked the culprit with

8.3 LOCATION The location of the tool marks depends upon the nature of the crime. If earth or masonry work has been dug out, the shovel or the other digging appliances

TOOL MARKS

389

leave their marks on earth and masonry work. If ‘the trees have been felled and stolen, axe marks are found on stumps of the trees. If planned planks had been stolen, tool marks connect the planks with the original source. If a house has been broken open, the tool marks are found at the point of entry (window, door, ventilator, wall or roof), on the locks, safe doors or on the cup-boards which

have been broken open. They may also be found on the points of contact on wall, furniture and door, if the tool has touched the same in a glancing blow. If telephone, telegraphic or electric wires or cables are stolen, the cut ends at the scene carry marks of the cutting instruments. The cut end may even give a ‘hand-in-glove’ fit with its counterpart recovered from the suspect. Rubber cables and hoses do not retain identifiable tool marks. They cannot be identified in respect of the tools in most of the cases. The type of the cutter used can be indicated sometimes. The analysis of rubber material may prove useful.

When the entry has been made by breaking glass window, the clothes of the accused are likely to carry glass fragments. The chips may permit identification of the glass recovered from the site through mechanical fit or by comparing trace elemental profiles. In hit and run cases, the culprit’s vehicle may carry glass fragments, broken parts of the machinery or paint chips from the victim’s vehicle, or, vice versa. The fragments or broken parts may connect the run away vehicle through mechanical fit with the corresponding part of the victim’s or culprits vehicle, as the case may be. If a thief has removed a head lamp or other parts from a vehicle, the two parts carry contact marks or impressions of nails or bolts. The pattern of contact marks connect the thief (if the stolen item or part is recovered from him) with the theft. Tool marks are found on all types of surfaces and materials, wood, metal,

stone, masonry, paint, earth, paper, cloth, sealing wax, plastics and leather. In fact anything which comes in contact with a tool, may pick up the tool marks. The tool marks are ordinarily visible as such. However, scratches in wood, paint and the like may need oblique torch light and a semi-dark place. The } magnifying lens may help. Iron pieces and fragments are conveniently located from the debris with the help of magnets. They may form part(s) of the tools used by the culprit. Specific indentations or scratch patterns, imprinted by the victim or his vehicle on the offending vehicle, may provide irrefutable evidence of violent contract.

8.4 COLLECTION

8.4.1 Articles Whenever possible, the original articles bearing the questioned tool marks are

collected. Before removal, however, it is ensured that the position of the article

with respect to its surroundings is properly established through description, photographs and sketches. Three photographs indicating the position of the

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article, the position of the mark on the article and the details of the mark are taken. The last photograph may have to be a macrophotograph taken with artificial light. An identification chit containing the case reference and the initials of the investigating officer and the photographer, is placed before the photographs are | taken. When the article is too big for convenient handling, the mark bearing portion (of wood, metal and masonry work) is cut, separated, sealed and sent in the usual way. All articles bearing tool marks are collected. It is not desirable to pick and choose. Similarly all suspected tools should be collected. The tools collected should not be used by the police to prepare test marks, etc., as test marks are prepared by the expert himself.

8.4.2 Casts Sometimes it is not possible to collect the article or its part bearing the marks. The casts of the tool marks are, in such cases, prepared and collected. The following are some of the important materials and techniques to cast tool marks: 8.4.2.1 Plasticine Plasticine is available in most of the places and the casts with the same are easy to make. But they are not good. They do not pick up fine details and are easily deformed. They are prepared only when they are not required for permanent record or when the area bearing the marks is small. A lump of plasticine is taken and pressed in between two wet glass plates to give it smooth surfaces. The slightly moistened smooth area is pressed against the mark. The plasticine picks up the details. The moisture prevents sticking of the plasticine to the surface. 8.4.2.2 Dental mass Dental mass (like Kerr’s dental mass) is available with a dental surgeon or a chemist selling dental materials. It can pick up fine details and record the marks permanently.

The material is kneaded under hot water and when it is soft and uniform in texture, it is pressed between two glass plates to give smooth surfaces. The material, while still warm and pliable is pressed against the tool marks and left at the site for some time. It picks up the marks. On cooling it becomes hard and hence permanent record is thus obtained. 8.4.2.3 Adhesive tape

Adhesive tape used to lift fingerprints can be used to lift shallow tool marks. It does not give good results in deep scrapes and indentations. 8.4.2.4 Latex and plastic solutions

Latex is rubber juice and is useful to collect tool marks. It is a good material for scrape marks but it is not so good for indentations especially deep ones, as, due to stretching, the dimensions of the lifted marks change.

TOOL MARKS

391

The material is poured over the surface bearing marks. It is then allowed to dry for about six hours. The thin film or sheet formed is peeled off. Plastic solutions (for example, cellulose acetate solution) are equally useful to

lift the marks and are processed in a similar way. Thermoplastic powders of low melting point and of light colour are equally useful. The molten material is poured over the marks. On solidification, it is picked up. It carries the marks.

8.4.2.5 Wood's metal Wood's metal is an alloy which melts at a low temperature (99°C). It is used to cast indentations with appreciable depth on metal or other surfaces. The alloy is melted and poured into the mark. It solidifies on cooling and picks the details from the mark. 8.4.2.6 Plaster of Paris Plaster of Paris is useful

when

the dimensions

of the

tool marks

are

appreciable. The material is not so good to pick up the fine details.

Plaster of Paris of the highest quality available, should be used. All casts of tool marks are properly marked for identification purposes. If it is not possible on the cast itself, a card is attached either to the cast or to the container containing the lifted mark. | 8.4.3 Packing

The packing of the evidence should ensure safety against breakage, contamination and loosening. Whenever possible the articles are placed in a cellophane envelope. The open ends are closed and the envelope is packed with cotton wool or clean dry rag padding in a suitable container. The marks, in no case should come in contact with the packing material. If the climate is humid and hot, a tool or the marks on iron and steel articles

may rust. The mark may get damaged. A thin oil film is applied over the surface to prevent rusting, if the oil film does not damage the marks and there should be no extraneous deposit on the surface.

8.4.4 Standards Sample tool marks are prepared by the laboratory staff (and not by the investigators) preferably using similar material in which the tool marks are found at the site. If the material is hard, sample marks are prepared on softer material. In place of steel, iron, brass or copper, sheets of lead, zinc, tin or aluminium are used to prepare test marks. The whole working surface of the tool is used to obtain complete set of marks from the questioned tool. The angle at which the tool is applied has an important bearing on the clarity, number and dimensions of the scrape marks. The questioned mark is, therefore, carefully studied to get rough idea about the angle at which the tool

was applied. The sample marks are obtained at this angle. But it is often difficult to judge the correct angle of application. Therefore, a number of sample marks

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are obtained by changing the angle of application of the tool by about 10° for each sample. It is convenient to get the trial sample marks on plasticine or on lead sheet. When

the most suitable angle is discovered, the sample marks are

obtained on the material corresponding to the original material or the one selected as substitute. 8.4.5 Extraneous materials

8.4.5.1 Questioned traces When traces of extraneous materials are found on the tool, it is placed in a cellophane envelope before despatch. When the traces of the material are found on the scratched surfaces the articles is placed in a cellophane envelope. If it is not possible to do so, the traces are collected on a paper with a fine and clean camel hair brush, or by the techniques used to collect microtraces. They are enclosed in chemist fold and the paper packed and sealed as usual.

8.4.5.2 Standards It is difficult to collect correct control sample of extraneous materials from scratched surfaces. Therefore, whenever possible, this work is entrusted to the laboratory by sending the article itself to the laboratory. Alternatively, the suspected surface is scratched close to the questioned area, with a clean similar tool, approximately to the same depth as the questioned scratch. The material thus scratched is collected, packed and dispatched. Control sample of the extraneous material deposited by a tool on a surface is collected from the tool, the toolbox or pockets of the culprit. | 8.5 EVALUATION 8.5.1 Principles

Practically and theoretically it is impossible to get two tools which are exactly alike, even when they are manufactured consecutively in a rigidly controlled manufacturing process with the most sophisticated precision machines controlled through computers. Most of the tools used in the commission of crime are not manufactured under such controlled conditions. They frequently show gross difference in addition to ever present microscopic variations. Wear and tear and repair introduce sadditional nicks which give easily identifiable individuality to each teol. If a tool is extensively used after the commission of crime especially on hard surfaces, the working surface of the tool changes. The extent of change depends upon the extent of use or misuse. It may not be possible to identify the tool marks in respect of the tool if the working surface of the tool has drastically changed. 8.5.2 Techniques

Tool marks are examined and compared visually and with the stereo and comparison microscopes. Sometimes casts and photographs are used for comparison.

TOOL MARKS

(C)

(Fig. VIII-13)

393

—(S)

A piece (C) of a broken sword found at the scene fitted with the sword (S) recovered from the suspect.

8.5.2.1 Mechanical fit

In cases involving broken or severed parts of an article, a mechanical fit is tried first. Positive mechanical fit provides a conclusive proof that the parts originally formed part of the whole. For illustration purposes, the fit is photographed at various positions to get the complete contour picture.

Sometimes the contour of the broken parts is not clear enough due to changes on the edges. In some cases where the article has appreciable projections and depressions at the cross-section they provide suitable material for comparison. The irregularities on one part are cast and compared with the irregularities on the other part. They match if they originally formed one article. This is done when mechanical fit cannot be done. The broken or severed ends may carry microscopic details on the outer surface such as striations, some deposit, some defect, logo, etc. The marks are

often introduced in the manufacturing process or later by wear and tear. Or, _ they may be parts of the decorative patterns introduced by the manufacturer on the article. A few years ago a train accident caused considerable loss of life and property. A sabotage was suspected. But before the witch hunting was started, the laboratory staff was called to the scene of occurrence. A thorough search at the site gave an odd looking twisted iron piece. It was found to form originally afish-plate nail. A detailed examination of the same, revealed: (1) The nail could be twisted only by mechanical force. (2) The flatening of the nail could take place only if a very heavy roller pressed tt.

(3) The twist suggested that the nail was held in a hole having strong edges when twisted. The pattern of events became clear. It seemed that the nail was placed in the space between the joint of the two rails. It made the speeding train to jump of the rail and caused the accident. Further check at site confirmed the thesis. The twisted

nail fitted into one of the joints.

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Was the nail placed by the saboteurs ? It was difficult to answer the question from the physical evidence alone. However, the accident had taken place near a town. The saboteur would have chosen a secluded place. It was therefore presumed that probably children placed the nail in the rails. Interrogation confirmed the same later. (CH) 8.5.2.2 Side by side match

Most of the indentations, punch marks and prints from blocks, dating and numbering machines are compared when the disputed and the examplar are placed side by side. The main points of defects and wear and tear, their sizes, shapes and inter-distances are examined and compared to find out if the marks have a common source. The examination and comparison is facilitated by a transparent graph sheet placed over the photographs of the two marks taken with the same magnification/reduction. 8.5.2.3 Composite match

A composite photograph is convenient to prove the identity of the common source of indentations and prints. The photograph is taken through a comparison microscope. The images of half of each of the two questioned and test marks are adjusted at the dividing line. If the two halves complete the original mark without any appreciable divergence, the identity of the common source is established. The technique is very useful and convincing. The marks should have sufficient dimensions and a number of nooks and corners to show a match or a divergence.

Fig. VIII-14

Fig, VIII-15

A punch used to change serial numbers of cars, recovered from a suspect, pinned the theft of a stolen car to the suspect. Digit 7 found on stolen car (Fig. VIII-14) and the test prepared on a lead piece (Fig. VIII-15) showed identity of common source.

TOOL MARKS

395

Fig. VIII-16 A composite photograph of marks found on copper wire edge at the scene (C) with those obtained on test wire with the pliers (T) recovered from the suspect.

A few years ago, some members of the railway staff ganged up. They would collect the used tickets, redate them and sell them to new passengers.

On investigation dating dies were recovered from the suspects. Some of the resold tickets were found to have been redated with the dies. (CH) The identity of the common source of the questioned and the test scrape marks is established through the study of the questioned and the standard marks with a comparison microscope. The lines observed in the questioned mark show continuation in the test mark only if they have come from the same source. The technique is used invariably to examine and compare all types of striation marks. A comparison camera, in place of a comparison microscope gives similar results. It does not offer any advantage over the comparison microscope. It is not used in practice. The composite matching can be done without comparison microscope or comparison camera. Two photographs of the test and questioned marks are cut at the appropriate corresponding positions and pasted in position to show the match. 8.5.2.4 Striagraphy An instrument, striagraph, has been developed

to study the contour of

striations on studied. The graph paper of the graphs

The

different objects. A delicate probe moves over the surface being changes in depth and elevations are accentuated and recorded on separately for the questioned and the test marks. The comparison indicates the identity or non-identity of the common source. instrument does not offer any advantage over the comparison

microscope. It is, therefore, of theoretical interest only.

8.5.2.5 Superimposition , | Superimposition techniques can be used for indentation, scrape, punch and

print marks. But it is used mostly for indentation and punch marks. Two techniques are known:

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1. In photographic superimposition a print is prepared from one of the marks, say from the questioned mark. A transparency is prepared from the test mark. The photograph and the transparency have the same magnifications or reductions to get corresponding dimensions. The match is studied by placing the transparency over the photographic print. Various land marks should correspond - overlap. 2. In the second technique, test mark is: printed on an adhesive transparent plastic sheet, and covered with another clear plastic sheet. The print is now like a transparency. The test mark print is placed on the questioned mark to show the match. If necessary, the contrast is increased by smearing the tool with a suitable fingerprint powder.

8.5.3 Sufficient Evidence What is sufficient evidence in tool marks to declare identity of the common source ? It is a difficult question to answer and no generalisation is possible because the nature of marks vary from tool to tool. The experience of an expert is an important guide in this respect. In indentations even a single characteristic formation may be sufficient. In scrape marks, one should be careful against being misled by accidental match of a few lines. There should be no appreciable divergences and at least half a score lines should match in the test and crime exhibits. Finer striations are more trustworthy than the coarser lines. Ina blind murder case, the dead body of a young girl was found in a grave-yard. The only evidence she carried on her person was a characteristic bite mark on her breast. The police investigations showed that she did not belong to the area and nobody has seen her in those parts. On detailed considerations the police believed that the girl had come to the place with a boy (from a nearby college) who could be her killer. The dental casts were obtained from all the boys (over 400) of the college. Most of them could be eliminated easily. About half a score dental casts were ultimately left. A galaxy of dentist examined the mark and the cast and after due deliberations, they identified the cast of the teeth which had caused the bite mark.

The suspect was given death sentence on the sole bite mark evidence. (CH). It has been noted that dimensions and clarity of a mark depends upon the angle, force and the direction of the application of the tool. The presence or absence of certain marks both in the crime and the test exhibits is often observed, it should not be mistaken for non-identity. Contour match offers a different problem in elastic materials. The broken or severed edges in the material often get deformed in the process. They do not show proper fit. The manufacturing defects and wear and tear marks on the two parts should be searched for additional evidence. Trace elemental profiles’ comparison of the disputed and the specimen materials can help in many cases. In glass fragments, stone pieces and other hard substances, mechanically fit even through one millimeter is sufficient to constitute identity of the common source.

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397

8.6 CASE LAW

8.6.1 Button Evidence That apart, the button which was recovered gives a direct clue to the presence of the accused at the time when the offence was committed. It is seen from Ex. P. 6/A that the upper button on the cuff of the coat recovered from the accused was missing and the button recovered from the room where the deceased was murdered matches the button and supplies the missing one. The report of the forensic expert is that the button of the accused’s coat establishes that it is the similar one. For this reason the accused had denied that the coat and the sweater belonged to him and the learned advocate on his behalf has urged in support of that plea that these were not recovered from the accused and the recovery memos were all fake and were written subsequently. Accused in the statement under section 342 in answer to question 19, that he had signed the recovery memos dealing with the sweater, coat and blanket said that it was incorrect. He further said that he was made to sign three blank papers in the Thana and that he was filing a copy of the application in this connection while he was in the judicial lock up. Again in answer to question 35 whether he has anything else to say he stated categorically that on the Ist February, 1967 he was taken to the Thana at 5 p. m., on the 2nd February he was produced before the court from where a remand was taken and that on 7th February, 1967 the S.H.O. obtained his signatures on three blank papers in respect of which he had sent an application after he was taken to the judicial lock up. This statement goes counter to the facts stated in the application of remand made to the magistrate on 2nd February, 1967 which was earlier extracted. A perusal of that remand application would show that these recoveries had already been made on the Ist and so there could be no question of his signatures being taken on the blank papers on the 7th for purposes of cooking up the recovery memos which according to the accused were not recovered on the 1st. The coat and the sweater were recovered from his room while the shoes and socks from his person as he

was wearing them. There can be no doubt of the ownership being that of the accused."

8.6.2 Mechanical Fit Accused No. 3 led the police party and the panchas to a place near a small temple of a deity. Accused No. 3 took out a Dharia from the hedge of thorns. The Dharia was attached. A panchanama was made. The Dharia which was attached had its blade broken. There were blood like stains on it. Article 13 was the

Dharia produced in court. The blade which was found from the scene of offence near the dead body and the dharia which was attached matched. The High Court saw the two pieces matched completely at the broken edge and there was no doubt in coming to the correct conclusion that the broken piece of blade was broken from this particular Dharia and the remaining portion which was recovered according to the prosecution from the hedge was the other matching

part of it.

CBU 1. H.P. Administration v. Om Parkash, 1972 Cri LJ 606: AIR 1972 SC 975. 2. B. Bhikha v. State of Gujarat, 1971 Cri LJ 927 SC.

Chapter 9

FIREARMS SYNOPSIS 9.1 IMPORTANCE 9.2 NATURE 9.2.1

Firearms

9.2.2

Firearm Parts

9.2.2.1

Barrel

9.2.2.2 Action 9.2.2.3 Stock 9.2.2.4

Firing pin or striker

9:2.2.8 Breech face 9.2.2.6

Chamber

9.2.2:7 Extractor and ejector 9.2.2.8 Barrel 9.2.2.9 Choked barrels 9.2.2.10

Leed

9.2.3 Classification 9.2.3.1

Smooth bore

9.2.3.2 Rifled bore 9.2.4 Single-Shot Firearms 9.2.5 Repeaters 9.2.5.1

Self-loaders

9.2.5.2 Automatics 9.2.5.3 Assault rifles

FIREARMS

9.2.6 Ammunition 9.2.6.1 Case-less cartridges 9.2.6.2 Smokeless powder 9.2.6.3 Gunpowder 9.2.6.4 Projectiles 9.2.6.5 Cartridge case 9.2.6.6 Wads 9.2.7 The Firing Process 9.3 THE PROBLEMS 9.3.1 Firearms 9.3.2 Fired Ammunition 9.3.3 Firearm Injuries 9.3.4 Medicolegal Problems 9.3.5 Muzzle-Loaders 9.3.6 Live Ammunition 9.4 LOCATION 9.4.1 The Victim 9.4.2 The Culprit 9.4.3 The Scene of Occurrence 9.4.4 The Firearm 9.4.5 The Ammunition 9.5 COLLECTION 9.5.1 Firearm 9.5.2 Cartridge Cases 9.5.3 Bullets 9.5.4 Slugs and Shots 9.5.5 Clothes 9.5.6 Live Ammunition 9.5.7 Glass Fragments 9.5.8 Discharge Residues 9.5.9 Injuries 9.5.10 Bullet Holes 9.5.11 Test Exhibits 9.6 EVALUATION 9.6.1 Principles 9.6.2 Class and Individual Marks 9.6.3 Test Exhibits

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9.6.3.1

Ammunition

9.6.3.2

No firearms

9.6.3.3

Defective firearms

9.6.3.4

High velocity rifles

INVESTIGATION

9.6.3.5 Damaged firearms 9.6.3.6

Recovery

9.6.3.7 Cleaning 9.6.4

Examination

9.6.5 Stereoscopy

9.6.6 Comparison Miscroscope 9.6.7 Comparison camera 9.6.8 Striagraph 9.6.9

9.6.10

Periphery camera

Photographic comparison

9.7 SPECIAL SITUATION 9.7.1

Damaged Cartridge Cases

9.7.2 Damaged Bullets 9.7.3 Burnt Bullets and Cartridge Cases 9.7.4 Smooth Barrel Marks

9.7.5 Buckshots and Pellets 9.7.6 No Firearm 9.8 GUNSHOT RESIDUES 9.8.1 9.8.1.1

Nature Black Powder Residues

9.8.1.2 Smokeless Powder Residues 9.8.2

Location

9.8.3

Detection

9.8.4 Collection

9.8.4.1

Dry methods

9.8.4.2

Wet methods

9.8.4.3. Collection of organic residues 9.8.5 Evaluations 9.8.5.1

Visual examination

9.8.5.2

Infra-red photography

9.8.5.3 Soft X-rays radiography 9.8.5.4

Dermal nitrate test

9.8.5.5

Walker's test

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9.8.5.6 Harrison and Gilroy’s test 9.8.5.7 Price’s spot test 9.8.5.8 Neutron activation analysis 9.8.5.9 Flame-less atomic absorption spectrometry 9.8.5.10 Scanning Electron Microscopy (SEM) 9.8.5.11 X-Ray fluorescence 9.9 RANGE OF FIRE 9.9.1

Muzzle Patterns

9.9.2 Scorching 9.9.3 Blackening 9.9.4 Tattooing 9.9.5 Powder Residues 9.9.6 Metal Particles 9.9.7 Wad Distribution 9.9.8 Pellet Patterns 9.9.9 Direction of Wound 9.10 FIREARM INJURIES 9.10.1

Nature

9.10.2 Wound Ballistics 9.10.2.1

The target site

9.10.2.2

The velocity

9.10.2.3

Constructional features

9.10.2.4

Range

9.10.3 9.10.3.1

Identification Pink coloration

9.10.3.2 Blackening 9.10.3.3

Tattooing

9.10.3.4

Dirt ring

9.10.3.5

Foreign materials

9.10.3.6

Charring

9.10.3.7 Contusion 9.10.3.8 Characteristic wounds 9.10.4

Postmortem Reports

9.10.5

Evaluation

9.10.6

Injury

9.10.7

Nature of Firearms

9.10.7.1

Pistol and revolver injuries

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9.10.7.2

Rifle injuries

9.10.7.3

Shotgun injuries

9.10.7.4

IN CRIMINAL

INVESTIGATION

Muzzle-loading firearm injuries

9.10.7.5 Zip guns injuries 9.10.8

Postmortem or Antemortem Injuries

9.10.9

Fatal Injuries

9.10.9.1

Extraordinary acts

9.10.10

Age of Injuries

9.11

RECONSTRUCTIONS

9.11.1

Scene

9.11.2

Photographs of the Scene

9.11.3

Victim’s Clothes

9.11.4

Medico-legal Report

9.11.5

Arms and Ammunition

9.11.6

Basic Ballistics

9.12 DURATION OF FIRE 9.12.1

Gunpowder Residue

9.12.2 Carbon Monoxide 9.12.3

Mercury

9.12.4

Bloodstains and Flesh

9.12.5

Rust

9.12.6

Dust

9.12.7

Nitrite Variations

9.13 MUZZLE-LOADING FIREARMS 9.13.1

Percussion Caps

9.13.2

Projectile Charge

9.13.3 Wads 9.13.4

Powder Charge

9.14 IMPROVISED FIREARMS 9.14.1

Importance

9.14.2

Classification

9.14.3

Characteristics

9.14.3.1

Barrel

9.14.3.2

Chamber

9.14.3.3

Action

9.14.3.4

Lock

9.14.4

Firing Process

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9.14.5

Evaluation

9.15 MISCELLANEOUS 9.15.1

Freak Firearms

9.15.2 Toy Firearms 9.15.3

Penetration Power

9.15.4

Range of Firearms

9.15.5

Comparative Calibres

9.15.6

Bore Diameters

9.15.7

Conversion Barrels

9.16 9.16.1

PRESENTATION OF EVIDENCE The Expert

9.16.2

Exhibits

9.16.3

Experimental Data

9.16.4

Illustrations

9.16.4.1

Cartridge cases

9.16.4.2

Bullets

9.16.4.3

Range

9.16.5

Medical Evidence

9.16.6

Language of the Experts

9.16.7

Cross-Examination

9.16.7.1

To discredit the expert witness

9.16.7.2

To clarify evidence

9.16.7.3

To prove inadequacy

9.16.7.4

To elicit additional evidence

9.16.8 9.17

The Court and the Expert

CASE LAW

9.17.1

Unsatisfactory Report

9.17.2

Photographs not indispensable

9.17.3

Ballistic expert’s vacillating Report

9.17.4

Scientific Evidence v. Eyewitness Account

9.17.5

Acceptability

9.17.6

Expert Evidence not Essential

9.17.7

Inconclusive or Negative Evidence

9.17.8

Linking Evidence

9.17.9

Bona fide of Expert

9.17.10

Inordinate Delay

9.17.11

Inadequate Evidence

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Data

9.17.13

Contradictory Evidence

9.17.14

Number of Firearms

9.17.15

Illusory Discrepancy

9.17.16

Number of Murderers and the Murdered

9.17.17

Missed Cartridge as Evidence

9.17.18

Wads as Evidence

9.17.19

Firearm Evidence

9.17.20

Location and Recovery of Projectiles through X-Rays

9.17.21

Non-Recovery of Projectiles

9.17.22

Safe Custody and Genuine Recovery

9.17.23

Critical Appraisal of Identification Evidence

9.17.24

Range of Fire

9.17.25

Injury-Firearm Linkage

9.17.26

Identification of Firearm Injuries

9.17.27

Dimensions of Injuries

9.17.28

Firearm Injury Frauds

9.17.29

Close-Range Phenomena

9.17.30

Self-Defence or Murder

9.17.31

Tragedy of Errors

9.17.32

Accident or Murder

9.17.33

Direction of Fire

9.17.34

Number of Firearms

9.17.35

Number of Shots

9.17.36

Carrying Gun

9.17.37

Scene of Occurrence, the Dispersal of Shots, etc.

9.17.38

Correct or Incorrect Inference

9.17.39

Sequence or Events

9.17.40

Conflicting Versions

9.17.41

Presentation

9.17.42

Insufficient Data

9.17.43

Probable and Categorical Evidence

9.17.44

Enhance or Exit Wound?

9.17.45

Ballistic Evidence Essential

FIREARMS

Fig. [X-1

Scene after the removal of victim.

405

FIREARMS 9.1 IMPORTANCE The use of firearm in criminal offences is of frequent occurrence. In fact they figure prominently in most of the heinous crimes like murders, dacoities, robberies, assassinations and mob violence and also in police encounters and firings. The firearm evidence, therefore, is important in criminal investigations and trials. The firearm evidence pertaining to their identification through fired ammunition is well established. It is now on the same footing as the fingerprint evidence. The individuality of the marks imprinted by a gun on a fired cartridge or on a bullet is universally recognised. The assertions of the expert that no two firearms even of the same make and batch and made one after the other leave identical marks on fired ammunition are accepted like the assertions of the fingerprint experts that no two fingerprints from two different fingers even from the same person are alike. Convictions have been awarded and maintained solely on the basis of the firearm evidence. It is, however, necessary that the link between the evidence and the culprit is properly established. The firearm recovered from the culprit, which fired the fatal bullet or the cartridge case recovered from the scene, should be proved to be in the possession of the accused at the time when the crime was committed. The firearm evidence helps to:

1. Decide whether the given incidence is a case of murder, accident, killing in self defence or suicide. 2. Determine the sequence of events. 3. Verify versions.

4. Establish the number of directions, directions, ranges and the number of firearms. 5. Distinguish between real and fake incidence. 6. Ascertain whether the injury is fatal or non-fatal. 9.2 NATURE 9.2.1 Firearms A firearm is a device to hurl a projectile or projectiles. The force is supplied by the creation and expansion of gases usually from the burning of powder charge. In air rifles and pistols the motive force is given to projectiles by the expansion of compressed air.

According to Indian Arms Act, a firearm means arm of any description, designed or adapted to discharge a projectile or projectiles of any kind by the action of any explosive or other forms of energy and includes: l. Artillery, hand grenades, riot pistols or weapons of any kind designed or adapted for the discharge of any noxious liquid, gas or other such things. 406

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407

2. Accessories for any such firearm designed or adapted to diminish the noise or flash caused by the firing thereof. 3. Parts of and machinery for manufacturing firearms and cartridges, platforms and appliances for mounting, transporting and servicing artillery.

Those firearms which can be easily handled, carried and operated by a single person are called ‘small arms’. They include handguns, (pistols and revolvers) which are fired with one hand; shoulder arms which are fired from the shoulder (shotguns, rifles and muskets) and other firearms like machine and sub-

machine guns. The latter are automatic and fire a large number of rounds in a short time. The firearms which are commonly met with, in crime situations, in India are:

1. Shotguns

2.

Revolvers

3. Pistols 4. Rifles 5. Sub-machineguns 6. Machine guns 7. Muzzle Loaders 8. Improvised firearms. There are ample variations of the firearms in each category. The most commonly used weapons are 12 bore shotguns and improvised firearms. 9.2.2 Firearm Parts A firearm has a barrel, an action and a stock.

9.2.2.1 Barrel The barrel of firearm provides space for the expansion of gases and a housing (chamber) for the cartridge in most of the firearms. The chamber is on one end of

the barrel. The bore and the chamber are connected in many firearms through a tapering surface called ‘leed’. There is no chamber in the barrel of a revolver. The cartridges are housed in a revolving cylinder. For this reason the firearm is known as revolver.

9.2.2.2 Action The action consists of the mechanism

for loading, firing, extraction and

ejection of the cartridges, the magazine and the safety devices, if any. The arrangements for the location of the devices vary in different firearms.

9.2.2.3 Stock The stock of a firearm holds the other parts in position and provides support for firing purposes. In automatic and semi-automatic pistols, the stock also carries the magazine. For the identification of fired ammunition in respect of the firearm following parts are important:

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Fig. IX-2

Parts of a guns. 1. Breech face 2. Breech lever 3. Safety catch 4. Triggers 5. Trigger guard 6. Firing pins 7. Chamber 8. Barrel 9. Extractor.

9.2.2.4 Firing pin or striker

It is the part of the firearm which, on pressing the trigger, moves forward and strikes the cartridge. It is located in the breach block in shotguns, in the bolt heads (also known as breach block) of bolt action rifles and in the moving breech block in automatic and semi-automatic firearms. It forms part of the hammer in revolvers. It is the most important part for the identification of fired cartridges. The firing pin indentations are invariably present in all fired cartridges. The indentations alone permit identification of the firearms in about ninety-eight per cent. cases.

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409

Fig. [X-3 Firing pin impressions (C and T) from the common source.

9.2.2.5 Breech face The area surrounding the firing pin hole is the breech face. It seals the barrel from the chamber side and holds the cartridge case when the latter is pushed back due to expanding gases on firing. It comes in close contact with the base of the cartridge and the irregularities of its surface are imprinted on the cartridge. The breach face is the second most important part of a firearm from the point of view of identification of a fired cartridge in respect of the firearm which fired it. The marks are particularly important in cartridges developing high pressure. The cartridges fired from standard shotguns in most of the cases, do not carry sufficient breach face marks. On the other hand rifles developing high pressures imprint conspicuous breach face marks.

Fig. IX-4 Firing pin scrape marks indicating the common source.

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9.2.2.6 Chamber The chamber surface of a firearm also has microscopic imperfections. These irregularities on the surface usually do not mark the fired cartridges because the diameter of the chamber is larger than the diameter of the cartridge. The cartridge, therefore, does not come in very close contact with the surface of the chamber. Sometimes there may be some abnormality or some extraneous material deposit in the chamber which may reduce its effective diameter. If a firearm is made by a local blacksmith, the required tolerance in the chamber may be absent and the cartridge is housed tightly in the chamber. On firing, the cartridge case expands and comes in close contact with the chamber surface

and gets imprinted with the chamber marks. 9.2.2.7 Extractor and ejector

These parts of a firearm are of various designs and forms. They come in contact with a cartridge case fired through the firearm and imprint their surface irregularities on the same. The marks are often insufficient for identification purposes. They are characteristic only in a few cases to allow identification of the firearms. The marks provide useful class characteristics in ‘no gun’ work to identify the type of firearm used to fire a given cartridge.

9.2.2.8 Barrel The barrels of all firearms imprint marks on all fired projectiles which fit tightly in the barrels. In rifled firearms the marks are from the imperfections of the lands and the grooves, mostly from the lands of the barrels. Likewise, in smooth bore firearms the slight (microscopic) imperfections in the inner surface of the barrels imprint the projectiles with striation (line) marks. Balls, slugs and bullets fired from smooth bore firearms have been identified in respect of the used firearm in a large number of cases from the striations which the latter leaves on the former. The bore of a barrel is also called calibre or gauge. It is measured in milimeters in most parts of the world. In united Kingdom and in some Commonwealth countries it is measured in thousandths of an inch. It is measured in hundredths of an inch in Unites States of America. The calibre of a firearm is usually nominal. Its exact measurements frequently differ from the nominal bore size. Thus, the diameter of the bore of .38 revolver is about .334 inches only. The actual diameter of a bullet also differs from its nominal calibre,.

9.2.2.9 Choked barrels When the diameter of a barrel of a shotgun is the same throughout the barrel bore, it is called true cylinder. The bore of a shotgun is sometimes reduced near the muzzle end. That is, the diameter near the muzzle end is slightly smaller than the diameter of the bore of the rest of the barrel. The barrel is said to be choked. The choke is full, half, quarter or improved cylinder, if the diameter at the muzzle end is reduced by one, half, one quarter and about one tenth of a

millimetre respectively. The choke increases the effective range of a shotgun by increasing the concentration of pellets per unit area at the target. For example, for every

FIREARMS

411

hundred pellets fired, seventy pellets will fall in a circle of seventy-five centimetres at a range of thirty metres in a fully choked barrel. The number of

pellets falling in an equal circle under similar conditions for a true cylindrical

barrel is forty only.

Fig. IX-5 — Breech face marks, unusual pattern, sufficient to establish the common source.

9.2.2.10 Leed : When a bullet is pushed out from the cartridge case to barrel and before it sets into the grooves, it slips over the leed and gets imprinted with the slippage marks. They are often useless for identification purposes but the bullets which fit loosely in the barrel and do not get imprinted with the barrel marks may be identified sometimes in respect of the suspected firearm through the slippage marks left by the leed, by special techniques.

Fig. IX-6 Chamber marks, often unavailable, but in this case sufficient to establish the common source.

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9.2.3 Classification Firearms have either smooth or rifled barrels.

9.2.3.1 Smooth bore The shotgun, the muzzle-loading gun, the musket and the signal pistols are smooth-bore firearms. Here the barrels are smooth and cross section of the bore inside forms a circle at any point. The projectiles fired are, ordinarily, pellets and shots (small lead balls). Single projectiles, like balls and slugs (ordinary or rifled) are also fired.

Shotguns with rifled barrels are known but they are rare. They have, in most of the cases, two shallow grooves. The grooves increase the range and accuracy the ball charge is fired. ‘Paradox’ shotguns are similar in of aim when performance. In these guns a few inches of the barrel near the muzzle end are engraved with grooves. A shotgun is a short range firearm. It is meant for hunting small game. It does not give very accurate aim when a single projectile is fired. The necessity of

accurate aim is obviated when a cartridge with a large number of pellets or shots is fired. The spread of shots covers increasingly larger area with the increasing range due to dispersion of pellets or of the shots. Shotguns are designated with reference to the size of their bore. If the diameter of the bore of a shotgun is equal to the diameter of spherical lead ball weighing one-twelfth of a pound, the gun is called a 12 bore gun. If the ball equal in diameter to the diameter of the shotgun, weighs one-eight pound, the gun is called an 8 bore gun and so on. When the bore diameter of a firearm is less than half an inch, the same is designated in thousandths of an inch, e.g.,

0.410 musket.

9.2.3.2 Rifled bore Rifled firearms have grooves and lands in their barrels. The grooves are canal like furrows cut out in the form of spirals. They are cut from the barrel by giving a regulated twist to the cutter or to the barrel to get the groove in the required shape. The number, angle of twist, direction, depth and width of the grooves vary with various manufacturers. Two to seven grooves are common though multimicro-groove firearms (firearms with shallow and numerous grooves) are also coming in the market, though not common. The raised portion between two grooves is called a land. The number, direction, and twist of lands are the same as the corresponding measurements of grooves. The width may or may not be the same. The lands and sometimes grooves engrave markings on the projectiles passing through the barrel. The width, depth, twist and direction of the lands and grooves on the projectile provide class characteristics of the firearm. The finer details of the striations in the grooves and lands give the individual characteristics of the barrel. Pistols, revolvers, sporting rifles, service rifles and machine

guns are the

important firearms of this class. They are commonly used in offences.

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413

Functionally, the firearms are: 9.2.4 Single-Shot Firearms

Target pistols, some rifles and most of the shotguns are single shot firearms. The firearm has to be loaded for each firing. Double barrelled shotguns are also of this class, though two shots can be fired without reloading, one from each

barrel. 9.2.5 Repeaters

A firearm may be a repeater. The firearm has a magazine to house two or more cartridges. Extraction, ejection and reloading is done in a single manual operation. Some shotguns and most of the old bolt action service rifles belong to this, class. Pump action shotgun also belong to this class.

9.2.5.1 Self-loaders A firearm may be a self-loader (semi-automatic). When a self-loader firearm is fired, the fired cartridge case is ejected and a fresh cartridge from the magazine is loaded automatically. Thus, it is ready for a second fire. The process of extraction, ejection and reloading is repeated on second and subsequent fires till the magazine is exhausted. Pistols and modern service rifles belong to this class. 9.2.5.2 Automatics An automatic firearm has all the qualities of a self-loader. In addition after firing the first shot, the firearm automatically goes on firing cartridges as long as the trigger is kept pressed and the magazine is not exhausted. Some pistols , Sub-machine guns and machine guns belong to this class. They often have an arrangement to change them from automatic to semi-automatic action.

9.2.5.3 Assault rifles Assault rifles have both automatic and semi-automatic actions. These rifles are being used extensively in the services all over the world. AK 47, AK 74 are quite infamous in our country because of their misuse by the terrorists. The Indian Government has also come up with INSAS 5.56. Firearms are also muzzle-loading, breach-loading or magazine-loading. The terms are self explanatory. 9.2.6 Ammunition According to Indian Arms Act, ‘Ammunition’ means “ammunition for any

firearm and includes: 1. Rockets, bombs, grenades, shells and other like missiles.

2. Articles designed for torpedo service and submarine mining. 3. Other articles containing or designed or adapted to contain explosive, fulminating or fissionable material or noxious liquid, gas or other such thing whether capable of use with firearms or not. Charges for firearms and accessories for such charges.

Fuses and friction tubes. Parts of and machinery for manufacturing ammunition. 5NQo . Such ingredients of ammunition as the Central Government may by notification in the Official Gazette specify in this behalf.”

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The Act, thus, includes a variety of articles in its definition of ammunition. But for our purposes ammunition means the cartridges, propellants and the projectiles commonly used for small arms. The important parts of a cartridge are; the powder charge, the projectile charge, the cap composition and the shell. The shell holds the powder, the projectile charge and the cap composition. The powder charge is separated from projectile charge with wads, especially in shotgun ammunition. 9.2.6.1 Case-less cartridges

An innovation in the manufacture of cartridges is a case-less cartridge. An RDX based powder charge is moulded and attached to the bullet. They are fired from specially made firearms.

Fig. IX-7 Ejector marks, available in auto-loaders. Only rarely they are sufficiently clear to establish common source.

9.2.6.2 Smokeless powder

Smokeless powder is now almost universally used as a propellant for small arms ammunition. The active constituents of the powder are nitroglycerine and nitrocellulose.

When

only one active constituent

(nitrocellulose)

is used

as

propellant, the powder is called single base powder.

Nitroglycerine is not used alone in the manufacture of ammunition for its extremely high power and corrosive action on barrels. When the two ingredients are used together, it is called double base powder. The active constituents are mixed with other substances (commonly barium nitrate, potassium dichromate,

vaseline and the like) to modify the properties of the powder charge to suit the specifications. The powder is made in various shapes and sizes to get required ballistics. It is commonly found in the form of flakes, tubes or rods. It may be porous or nonporous. The rate of burning increases in case of porous powder or powder in the from of tubes. The powder with increasing rate of burning are called progressive powders.

FIREARMS

‘

MTS

The exact shape, size and chemical composition of a powder vary with different manufacturers. Therefore, differentiation and identification of the powder is possible. 9.2.6.3 Gunpowder The gunpowder consist of potassium nitrate, sulphur and charcoal roughly

in the proportions of 75:15:10. The powder is not suitable for high velocity ammunition as large amounts of the powder are required to get high velocity. Besides, it gives irregular ballistics and leave a considerable amount of solid residue which tends to foul the barrel. The recoil is also considerable when large - quantities of black powders are used in a cartridge. The gunpowder is still used in India for refilling shotgun cartridges and in muzzle-loading firearms. It is extensively used in fireworks. In a murder trial, the defence counsel cashed upon the ignorance of a medical witness. He stated that the blackening around the wound observed by him was caused by black powder. He believed it was not caused by smokeless powder.

The defence counsel later ascertained that the cartridge allegedly fired by the culprit and found at the scene of occurrence contained smokeless powder. The defence counsel argued that the gunfire injuries onthe person of the victim was caused by a cartridge containing gunpowder as propellant and the cartridge allegedly fired by the accused contained smokeless powder. He therefore, could not be the murderer. He got acquittal for the murder. The prosecution filed an appeal in the High Court against the acquittal. Test firing was done in the presence of the counsels. It was shown that blackening is caused with cartridges containing smokeless powder as propellant. On the request of the defence counsel the colour of the target was made to correspond roughly with the colour of the deceased (brown paper was used) and it was covered with the clothes of the deceased in some test shots. Blackening was observed even under these conditions from the alleged distance. The firearm involved in the crime and cartidges recovered from the accused (similar to those involved in the crime) were used for test purposes. (CH) 9.2.6.4 Projectiles

The projectiles have different shapes, sizes, weights and constructions. Pellets, shots and balls are used in shotgun and musket ammunition. The size and number of the pellets and shots vary with different types of cartridges. The nomenclature of the cartridges with respect to the size of pellets and shot is the same in India as in United Kingdom and other Commonwealth countries. It is different in United States of America and in other countries.

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TABLE Projectile charge of cartridges Number

LG SG Special SG SSG AAA BB 1 2 3 + 5 6 Y 8 9 Dust

No. of pellets per 28.35 gs. 6 8 11 15 35 70 100 120 140 170

220 270 340 450 580 2770

Pellets diameter mm. 9.14 8.43

Pellet weight in gs. 4.54 3.54

7 BT 6.83 5.16

2.58 1.89 0.81

4.09 3.63 3.41 3.25 3.05 2.79 29 2.41 2.21 2.03 1.2192

0.40 0.28 0.24 0.20 0.17 0.13 0.10 0.08 0.06 0.05 0.0109

The usual quantity of the shot charge in 12 bore shotgun cartridge is about thirty grams. It varies from twenty-five grams to about thirty-five grams. Sometimes slugs of special constructions (rifled) are used in shotguns to give them spin to increase their range and to make the aim more accurate. Bullets are used as projectiles in rifled firearms. They are made of lead alloy. High velocity projectiles have jackets made of copper, cupro-nickel alloy or steel. The core of the jacketted bullet is ordinarily of lead alloy. Steel bullets and bullets, which have partly steel core are also being used currently in service ammunition.

Lead bullets are used in revolvers and sometimes in pistols. They are not suitable for cartridges developing high velocity because lead bullets get deformed due to excessive heat produced. Nor are they satisfactory for magazine loading firearms because they obstruct the loading mechanism, sometimes. Jacketted bullets are being used increasingly now both for pistol and revolver ammunition. The bullets have various shapes and forms. They may be stream-lined, boattailed or with flat base. They may have a flat nose, a round nose, a pointed nose or a pencil nose. The bullets may be short, medium or long. A bullet may or may not have cannelures (corrugated circular surface). The lead bullets have cannelures. Some grease is placed in the cannelures for lubrication purposes.

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The nose of the jacketted bullet may be thin, hollow, exposed or cut for greater wounding effect due to fragmentation. The bullets are also called dum dum bullets. Their use has been prohibited in military ammunition. They are used for hunting purposes. They have greater killing power. Hollow point bullets are being used increasingly in service ammunition. The diameter of a jacketted bullet is slightly larger than the diameter of the barrel for which it is meant. This seals the barrel and prevents escape of gases. Besides, it ensures proper setting (housing) of the Bullet in the barrel and hence correct spin. The diameter of lead bullets is either equal or slightly less than the diameter of the barrel. Lead bullets expand and fill the bore. Larger diameter would cause excessive fouling. 9.2.6.5 Cartridge case

Cartridge cases are belted, rimmed, semi-rimmed or rimless. In the first three types, the diameter of the base is larger than the diameter of the cylinder of the cartridge, while in the last one it is either equal or smaller.

The cartridge case is either cylindrical throughout or it has a neck depending upon the ballistics required for the ammunition or the cylinder is tappered. The tubular portion of the cartridge case may be made of paper (common in shotgun ammunition in India), or it may be made of metal. Plastics are also gaining popularity especially for shotgun ammunition. Brass is the commonest material used for shells though iron and aluminium are also being used. The base is made of metal and in metallic shells it is a continuation of the shell. A percussion cap is fitted in separately. The cap is made of copper or brass or cupro-nickel alloy. In rim fired cartridges not only the base is a continuation of the shell but also there is no separate percussion cap fixed to it. The cap composition is placed inside the rim around the base. The function of the anvil is carried out by the turned edge of the rim.

9.2.6.6 Wads Wads are found usually in shotgun ammunition only. The wads in the shotgun cartridge are an over-shot wad under-shot wad, over-powder-charge wad and a cushion wad. The wads keep the various components of the cartridge in position. Cushion wad is intended to seal the barrel to prevent escape of gases, it is made of felt or paper. The overshot wad (which is waxed) also keeps away the moisture. The overshot wad is kept in position by crimping the edges of the cartridge or by turning the edge inside. Some manufacturers cover the projectile by star-shaped crimping only. An innovation of great importance in the structure of wads is the power piston wad. It is a single plastic structure insisting of three parts. ¢ Rectangular sleeve ¢ A cushion ¢ An overturned cup, as over power device. The power piston wad has advantages over the conventional wads.

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¢ They seal the barrel and prevent escape of gases from the sides, hence greater power.

¢ Sleeve prevents deformation of the projectiles, hence more unform pattern are obtained. In rifled firearm ammunition the bullet itself seals the mouth of the cartridge case. Sometimes a wad separates the bullet from the powder charge. The wad keeps away the grease put in the cannelures. The base, cylindrical surface and the top wad of a cartridge may carry legend giving its size, type, year of manufacture and its make. The information is ordinarily in abbreviations which differ with different makes. The information is often important. In an important conspiracy case it was necessary to establish the country of origin of the ammunition recovered from the accused. It was found that ammunition was manufactured during second world war by the British Government and could

have come from the suspected country. (CH) 9.2.7 The Firing Process When the trigger of a firearm is pressed, it releases the hammer or the striker with considerable force. The striker compresses a pressure sensitive material

(cap composition) contained in the percussion cap, by its impact. The material catches fire and give out heat which puts the powder charge on fire. The powder is quickly changed into gases. The large volume of gases so produced develops high pressure. The projectile is forced out of the cartridge and pushed through the barrel. By the time it comes out of the barrel, it acquires high velocity and moves towards the target. The velocity of the projectile goes on decreasing with the increasing distance it traverses, mainly due to air resistance and force of gravity. They ultimately neutralize the forward motion of the projectile and it falls down to the ground.

If a target is met in between, the projectile strikes the target with a force equal to its kinetic energy (= 1/2 mv*: ‘m’, denotes mass and ‘v’ the striking velocity of the projectile). The kinetic energy transferred, causes the destructive effect at the target.

A projectile coming out of a rifled firearm has two motions— forward velocity and angular spin. That is, while the projectile is moving forward, it is also rotating around its longitudinal axis. The spinning motion of the projectile helps it to lessen the air resistance. The loss of velocity is thus slower and the trajectory is flatter. Consequently the aim and range of the projectile improve considerably. The pressure developed in the cartridge is tremendous. It varies from 470 to 3200 kilogrammes per square centimetre. It is transmitted equally in all directions. The cartridge case is pushed backward and expands all round. The case, therefore, comes in close contact with the gun parts (firing pin, breech face, chamber, extractor and ejector) and picks up marks from the same. The clarity of the marks depends upon the cartridge case, the tolerance allowed in the various parts of the firearm and the pressure developed in the cartridge.

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In self-loaders and automatic firearms, either the recoil of the cartridge case or

a very small part of the expanding gases is utilised to push backward the cartridge case and the movable parts of the firing mechanism. At appropriate place an ejector is placed. The ejector pushes out the cartridge case through a suitably located vent for the cartridge case when the latter strikes it in its backward motion. When the force of the recoil or gases is spent, the firing mechanism, due to its spring action, comes forward to its original position. In its way it takes up a fresh cartridge from the magazine and puts it in the chamber. The action stops here in self-loaders. Trigger must be pressed a second time to repeat the firing and reloading.

In automatic firearms, the firing pin is also released. It hits the cartridge and fires it. The whole process is repeated until either the magazine is exhausted or the trigger is released. Automatic and semi-automatic firearms throw out the cartridge cases at the scene of occurrence automatically. In a murder case, the eye witness stated that there were two shots fired by the culprit from a semi-automatic firearm. The police had recovered only one fired cartridge case. Non-recovery of the second cartridge case weakened the prosecution case. (CH) In muzzle-loading firearms, the powder charge is introduced through the muzzle and covered with some wads. The charge is rammed in position with a ram rod. The projectile charge is also introduced through the muzzle, after it, covered with wads and rammed into position. A percussion cap is placed upon the nipple of the firearm, the hammer is cocked and the firearm is ready for firing. When the trigger is pressed the hammer is released. It strikes the percussion cap, compressing the cap composition to give a flame. The flame puts the powder charge on fire through the nipple. The powder residue, the torn percussion cap, the projectile charge and the wads form important clues in cases where muzzle-loading firearms have been used.

9.3 THE PROBLEMS The evidence in cases involving firearms relates to arms, ammunition and injuries. 9.3.1 Firearms The following questions are asked relating to firearms: 1. Is the firearm in working order ? . Is it liable to fire accidentally ? . Has it been used ? If so, when ? . Has it been used in some other crime ? . Has it been used as bludgeon ? _ Can it lead to its owner through resuscitation of tampered serial NHN W & nO numbers or otherwise ?

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7. Has it been tampered with ? If so, when?

8. Is the weapon an improvised firearm? 9. Is the given device a firearm in accordance with the Arms Act ? 10. What is the make, model and calibre of the firearm?

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Gra

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4

or

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id

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Fig. IX-8

Parts of a 12 bore cartridge. 1. Wads 2. Case 3. Metallic base 4. Percussion cap 5. Primer touching the anvil 6. Powder charge 7. Cushion wad 8. Pellets.

9.3.2 Fired Ammunition The following information is sought about ammunition: 1. Has the spent ammunition been fired from the given firearm ? 2. What is the calibre, make and model of the firearm from which it was fired ? 3. Has the recovered ammunition been fired from one or more firearms ? 4. Is given fired ammunition similar to the live ammunition recovered from the suspect ? 5. Is the fired ammunition recovered from the suspect and from the scene, fired from the same firearm ?

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. How many lands or grooves are on the bullet? . What is the direction and pitch of the twist? . What is width of the lands and grooves? . What is the depth of the grooves? Is the firing pin mark on the missed cartridge identifiable in respect of the given firearm. 1aF What is the size of the given pellets or buckshots. 9.3.3 Firearm Injuries

The injuries provide information on the following points: 1. Are the given injuries caused by a firearm ? If so, what type of firearm and ammunition had been used? . Are the injuries suicidal, accidental or homicidal? What is the range of fire? How old is the firearm injury? FP 7oNIs the given injury an entrance or exit wound?

9.3.4 Medico-legal Problems The medical officer who carries out the postmortem in a shooting case is

required to answer the following questions: 1. Did the victim die of gunfire or could the death be attributed to some other cause ?

Are the injuries on the deceased the result of gunfire? If so, what type of firearm and ammunition has been used? . What was the range of fire to cause the injuries on the victim? Note.—The

questions (2) and (3) should be answered by a firearm

expert rather than by a medical officer. 4. How long could the victim survive after the fatal injury? 5. Could the injured perform the acts attributed to him after the injury?

9.3.5 Muzzle-Loaders In muzzle-loading firearms the problems are: e If the used percussion caps were fired from the suspect firearm. le If the lead shots recovered from the victim were cast in the mould recovered from the suspects or, If the shots recovered from the victim and the accused were prepared in the same mould. . If the shots recovered from the victim carry identifiable barrel or ram rod marks. If the lead or lead shots recovered from the body and the accused could come from the same source. If the wad material, paper or rags, recovered from the scene or from the victim could match with similar material recovered from the accused.

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6. If the gunpowder found at the scene or on the body of the victim and the powder recovered from the accused could come from the same source. 9.3.6 Live Ammunition

Sometimes live ammunition figures as evidence. Its evaluation can establish: 1. Whether the given material is ammunition in the legal sense. 2. What is the calibre, nature and make of the given ammunition. 3. Whether the ammunition is fireworthy.

9.4 LOCATION The following sources carry firearm evidence: 1. The victim.

2. The culprit. 3. The scene of occurrence.

4. The firearm. 5. The ammunition.

9.4.1 The Victim The body of the victim carries evidence as: 1. Injuries.

2. Projectiles. 3. Bullet holes in clothes.

4. Marks on the clothes and skin due to hot gases or discharge residue. Firearms injuries are sometimes difficult to locate, especially when small calibre projectiles at low velocity have caused the injuries. It is the work of the medical officer. The investigating officer should get complete details about the nature and number of injuries from him so that he understands the case better. The victim may carry muzzle impression of a firearm around an injury in a contact shot. Muzzle impressions indicate the type of firearm used and its contact range.

The path of the projectile in the body of a victim is important. It leads to ascertain the range and the direction of fire. The determination of extent of damage due to a firearm injury is equally important. The data help to find whether the shot was fatal or not. It is also useful to determine the quantum of compensation whenever damages are claimed in non-fatal accidents. The victim carries powder residues, bullets, balls, slugs, pellets and sometimes wads and their fragments in the body. They are important clues and establish a link between the criminal and the crime. Sometimes they help in establishing the range of fire. 9.4.2 The Culprit

The culprit may carry powder and primer residues. They are deposited on the hands and arms of the culprit. The deposit, if identified, establishes that the culprit had fired a firearm.

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If a firearm is discharged through a glass pane from close range, glass particles are blown back. They fall on the clothes and on the body of the culprit. They provide a useful link to connect the culprit with the crime. If the culprit carries a firearm in his pocket the firearm picks up dust and fluff of the pocket. If the firearm is thrown away after the commission of the crime, the same is linked with the culprit through this dust and fluff of the pockets in some cases.

A culprit may destroy the firearm after the commission of a crime. If the house and the hide-outs of the culprit are searched, fired ammunition used previously in the firearm may be recovered. This ammunition may match with the incriminating evidence recovered from the victim or from the scene. The evidence, thus, links the criminal with the crime like the recovery of firearm itself. In a murder case, no firearm could be recovered from the suspect. However, some previously fired cartridges were recovered from the house of the suspect on search. The two sets of the cartridges were proved to have been fired from the same firearm. The suspect was linked with the scene. (CH)

The location and collection of previously fired cartridges and bullets should also be useful in cases where the culprit has damaged or tampered with the firearm. The practice is gaining popularity with the criminals in recent years. If the ammunition recovered from the house of the suspect and the ammunition recovered from the victim or the scene is found to have been fired from the same firearm, the presumption of guilt becomes even stronger especially if the tampering with the firearm is also proved.

9.4.3 The Scene of Occurrence The scene is an important place for the collection of the evidentiary clues. The evidence can be the firearm itself. In a suicide case, the position of the firearm is important. The firearm may be in the hands of the person who has committed suicide or it may have fallen close by. Elaborate arrangements are necessary if the firearm is to be discharged from a distance. In an interesting case, the firearm was found in the right hand of the victim, whereas, the victim was known to be left-handed. Homicide rather than suicide was, therefore, suspected. Investigation confirmed the suspicion. (CH) Fired cartridges are often found at the scene of occurrence. In semi-automatic and automatic firearms they fall at the scene as they are ejected automatically after each fire. In other firearms, the culprit often reloads his firearm and leaves

the fired cartridge or cartridges at the scene. Theoretically, the culprit can and should take away the cartridge cases, but it does not happen in practice. The emotional disturbance and the urge to escape from the scene of crime at the earliest, usually, prevent the culprit from collecting the fired cartridge cases. In automatic and semi-automatic firearms, it is possible to locate the position of the culprit at the time of fire, as the cartridge cases are thrown out in a definite direction and toa certain distance, depending upon the firearm. The projectiles may have been embedded in the walls, doors, furniture, trees and ground at the scene. The situs should be carefully examined and projectile recovered. The position of the projectile help in the reconstruction of the crime.

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In a multi-murder case, it was alleged that the culprit killed the victims after tying them toa tree. The stump of tree was examined. No bullets, their fragments or even their marks could be discovered on the stump of the tree. The version of the complainant was, therefore, rejected. (CH) When a shotgun is used, wads and their fragments fall on the scene unless they are found inside the body of the victim. Their position establishes the direction and range of fire. Bullet dents and ricochet marks on doors, furniture are useful to reconstruct the occurrence.

windows,

walls,

floor

and

9.4.4 The Firearm The firearm itself is the most important piece of evidence. The criminal does not leave it at the scene unless he plans to show the crime as a suicide or accident case. The make and model type, serial number, its firing capacity, calibre and barrel length etc. should be recorded. The firearm is often recovered from the person or the house of the culprit unless he has hidden, destroyed or thrown away the same. In the latter cases, the investigating officer should imagine himself in the role of the culprit and follow the route of the culprit’s departure from the scene. He should check all likely places where the firearm could have been disposed off conveniently without attracting attention. Trained police dogs also help to locate the firearm. The recovered firearm links the criminal with the crime through identification of fired bullets or cartridge cases recovered from the victim or from the scene. The recovered firearm may carry fingerprints. It should be carefully handled and processed for the same. The barrel of a firearm may have gunshot residues which helps to establish the approximate time of fire. The presence of rust or dust in the barrel indicates that the firearm has not been used for some time. It can, thus, eliminate some suspected firearms and consequently their owners. The firearm may carry blood, flesh and skin from the victim, if the crime was committed by firing a contact shot. The materials establish a link between the victim and the firearm.

Filing of the firing pin and the breach face may be only partial destruction of the original thumbprint of a gun.

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A standard firearm has a serial number and also carries the name of the manufacturer. They help in locating the owner. Even the damaged serial numbers and the make can be deciphered through chemical processes. A few years ago, a firearm was received in the laboratory to decipher its erased serial number. Resuscitation of the number connected two murders. The firearm had been stolen from a police officer after killing him. The murder remained untraced till then. (CH) Firearm reports and flashes sometimes figure in criminal cases. However, definite opinion about them is not yet possible.

9.4.5 The Ammunition The live ammunition has great forensic importance. It provides the right material for test purposes. It is ordinarily recovered from the house of the accused. In case the culprit has spent all, the source of ammunition for test purposes is the arm and ammunition dealer from whom the culprit purchased the ammunition. Fired bullets and cartridge cases are recovered from the victim or from the scene .They carry thumbprint of the firearm which fired them. Thus they link the criminal, from whom the weapon is recovered, with the crime. Fired ammunition at the scene of occurrence occasionally carries fingerprints of the culprit. They are of great evidentiary value.

9.5 COLLECTION

9.5.1 Firearm The firearm may carry fingerprints, fibres, blood, flesh, hair or any other extraneous material. Or, it may be loaded and may go off while being handled and thus prove fatal to the investigating officer or person standing nearby. The investigating officer, therefore, should:

1. Ascertain whether the weapon is cocked or not, its safety catch is on or off, the firearm is loaded or not. 2. Handle the firearm in such a way that even if it goes off it does not injure anybody by ensuring that nobody faces the muzzle of the firearm. 3. Consider the firearm safe only when one can see through the barrel and the magazine, if any, is detached. 4. Hold the firearm from a place where neither the existing evidence (like fingerprints) is destroyed nor new evidence is introduced. The firearm is held from the sling, ring, trigger guard or from the corrugated surfaces on the butt. 5. Search for extraneous evidence like hair, fibres, bloodstains, skin, flesh,

paint or dust. These items may not be adhering to the firearm firmly and get lost. They are detached and packed in small separate cellophane pouches before the firearm is processed for fingerprints. 6. Avoid touching the inside of the barrel. The presence or absence of “rust, fouling, dust skin, flesh, blood and other materials can lead to

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important conclusions. If anything is introduced in the barrel, the evidence is lost. The barrel should, therefore, be capped.

. Check the breech face of the firearm. It may bear marks in dust or grease. They are photographed. The breech face may carry enamel or paint from the cartridge fired through firearm. The materials help in the identification of the cartridge. . Avoid carrying the firearm in a pocket or in a dirty or dusty container. It is likely to introduce dust or dirt in the barrel which can mislead the expert.

. Put identification marks (initials with date) and get signatures of the

witnesses on the firearm. The signatures are put at a prominent part like barrel, action block or stock and not on an interchangeable part. It is better to scratch detailed particulars (F.I.R. No. with date, and name of the police station) on the firearm, at a place where other evidence is not

disturbed. 10. Place it in a cellophane envelope if it is a handgun. The envelope is put in a box with rags or cotton padding, so that the firearm does not rattle inside. It is then packed and despatched to the laboratory with usual formalities. he Take exhaustive notes: ¢ The position of the, firearm with respect to other articles is recorded

¢

¢ ¢

¢

with the help of sketches and photographs. The conditions whether the firearm was found loaded or not, whether the safety catch was on or off and whether the firearm was cocked or not, are recorded. In the case of revolver the position of the fired and live cartridges is shown with the help of a sketch. The nature, quality and quantity of the extraneous evidence discovered and recovered is recorded. The make, serial number, proof marks, decorative designs, the dimensions of the firearm and its important parts are noted especially if there is any peculiarity in design, construction and mechanism. The source of the seal, if it is not the seal of the investigating officer and the number of seals put on the parcels is noted and a specimen impression of the seal kept on the file. Another impression is sent to the expert.

e The addresses of the witnesses are recorded.

¢ These instructions are in addition to those documentation of the scene management (supra).

mentioned

in

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Fig. IX-10 The serial number and other identification marks on a 12 bore DBBL gun.

9.5.2 Cartridge Cases In the collection of the cartridges investigating officer should: F. Detach any extraneous matter adhering to it without fingerprints, if any, and collect the same in the usual way.

mutilating

Preserve fingerprint, if any. Initial the cartridge case, preferably inside, with a pin. Record the legend found on the cartridge case in the case diary. he Pee If more than one cartridges are to be packed in the same box, put each cartridge case in a cellophane envelope and pack these envelopes in a box with sufficient padding to avoid rattling. 9.5.3 Bullets

A bullet is either extracted from the body of a victim or recovered from the furniture, wall, floor or earth. It may be found fallen at the scene. The bullet is often damaged and unless carefully handled, the evidence on the same is

destroyed in the extraction process. The bullets from dead bodies are extracted by medical officers. They should: he Establish the exact location of the bullet through X-rays. he Extract the bullet with hands covered with rubber gloves. If a pair of forceps is to be used, its tips should be covered with rubber or plastic covers to avoid destruction or damage to the striations existing on the bullet. Avoid to pry out a bullet from its seat, if it is embedded in bone.

Cut the piece of bone containing the bullet if a bullet is embedded in a bone. The bone is broken in such a way that the bullet is not damaged in the process.

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5. Put identification marks (initials) on the base or on the tip of the bullet. Ina recent multi-murder case, one of the pleas of the defence for acquittal was that the medical officer, who had extracted the bullets and their fragments from the dead bodies, could not identify them at the time ofgiving the evidence. The doctor had not put any initials on the bullets. (CH) The investigating officer is to collect the bullet found in furniture, wall, wood,

floor or earth. Whenever possible, he should send the original article containing the bullet to the expert. The bullet may

carry traces of sand, paint, wood

or fibre when

it has

ricocheted. The traces can be detected through microscopy, they must be protected properly. 9.5.4 Slugs and Shots Slugs, shots, pellets, wads and powder residues often figure in criminal

investigations. These articles are marked individually for identification purposes whenever possible. The slugs, shots and pellets may carry identifiable barrel marks sometimes. While extracting them from the body of the victim, care should be taken to prevent damage to the marks, as in the case of bullets. 9.5.5 Clothes The powder patterns and projectile holes on the clothes being collected should be protected. 1. The clothes are dried before packing if they are wet. 2. The marks are protected with a cellophane sheet. The cover sheet is attached with an adhesive tape. 3. The name of the owner, the date of recovery and the identification marks are put on the clothes at an inconspicuous place. 4. The clothes are packed in sturdy dust-proof bags after thorough drying. Plastic or cloth bags with plastic lining are useful.

9.5.6 Live Ammunition The whole lot of the live ammunition found with the suspect is collected and despatched to the forensic science laboratory through a special messenger observing all formalities. It is properly packed and handled to avoid accidental explosion due to friction or other causes. 9.5.7 Glass Fragments

Tiny glass fragments are difficult to collect from the clothes. The clothes, therefore, should

be sent to the laboratory. Otherwise,

the collected

glass

fragments should be placed in a glass vial or in a clean small envelope and despatched to the laboratory in the usual way. 9.5.8 Discharge Residues

Discharge residues are deposited on the hands of a person (a culprit or victim of a suicide) who had fired a gun. The suspect is taken to the nearest forensic science laboratory, if possible. Alternatively, the discharge residues are collected as under:

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1. About

two millimeter

thick molten

429

wax

is deposited

slowly, on the

hands of the suspect. The cast is peeled off and placed between two inflexible plastic sheets and joined with adhesive tape or cement. It is packed and forwarded in a suitable card-board box. 2. The hands of the suspect are swabbed with clean surgical cotton wool dipped in dilute acetic acid, hydrochloric acid or nitric acid (5%). The dilute acids dissolve the discharged residue, which (including swab) is

collected in a clean glass vial. The vial is properly corked, packed and forwarded. 3. Adhesive

tape, collodion solution, cellulose acetate solution are also

used to lift powder residues from hand. 9.5.9 Injuries

Injuries are examined by medical officers who carry out the post-mortem examinations. But in certain cases a firearm expert is required to know the nature of the injuries and the damage to determine the nature of the firearm used and the range of fire from which the firearm was discharged. This information assumes great importance sometimes. The expert gets the correct details from the post-mortem reports, the injury diagrams and the photographs of the injuries. The photographs should preferably indicate the dimensions of the injuries. If the firearm or the ammunition or both have been recovered from the suspect the same should be sent alongwith other documents to the laboratory. The laboratory staff is then in a better position to evaluate the injuries.

9.5.10 Bullet Holes The original articles, bearing the bullet holes, dents, or other marks are collected whenever possible. Alternatively, scaled sketches and photographs showing the details of the marks, their positions on the item and also the position of the article with reference to other articles at the scene of occurrence are obtained. ) The expert should be called in important cases to examine the scene of occurrence.

9.5.11 Test Exhibits Test exhibits are prepared by the experts themselves. The investigating officer should not fire and send cartridge cases, bullets and test patterns to the experts. The best test exhibits are obtained if the same arm and similar ammunition is used for the test purposes. Therefore, the recovered ammunition (and arms) should be sent to the laboratory.

9.6 EVALUATION The identification of fired cartridges, bullets and balls in respect of the firearms through which they have been fired is the most important work in forensic ballistics. Like fingerprints the identifications are positive. The following principles, procedures and special situations are involved in the work.

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9.6.1 Principles The parts of a firearm which come in contact with a cartridge or bullet are,

firing pin, the breech face, the extractor, the ejector, the chamber, the leed and the barrel. They are made of steel by cutting, hammering, filing reaming and polishing. The tools used in their manufacture are applied at random. The cutting surfaces of the tools used, continue to change because of wear and tear they suffer due to their action on steel. The finished surfaces of the relevant portions of all firearms are, therefore, never alike even when the two surfaces are made with the same set of tools, one after the other. Consequently all firearms, even the two barrels of the same firearm, show complete individualities. That

each firearm possesses an individuality of its own has been established by actual experiments carried out in the initial stages of the development of this science. A long barrel was bored and grooved with the same set of tools. It was then cut into six pieces and fitted to six firearms. The bullets fired through the six barrels were correctly identified in respect of the individual barrels of the six firearms. The peculiarities of the surfaces of a firearm are enhanced with the use of the firearm because of wear and tear and accidental damage. When a cartridge is fired, the irregularities of the surfaces imprint their patterns on the case or the bullet because of close contact under pressure. These patterns are also called thumbprint of the firearms and permit their individualisation. The cartridge cases and bullets are ordinarily made of comparatively softer material than the steel of the firearm. The marks producing surfaces, therefore, do not change substantially for thousands of shots and the fired ammunition can be identified even when the firearm is recovered after a long interval. If the firearm is ill-kept, misused or intentionally tampered with, the surface may change. The extent of variations will depend upon the changes so made. The fired ammunition may or may not then be identifiable. Each case has to be decided by actual experiments. + In a murder case, the firearm was buried underground for many months. After careful cleaning it was possible to identify the fired bullet, in spite of the fact that the firearm had rusted extensively from outside. (CH) Sometimes a very old firearm is used in the commission of crime. Due to extended use over long periods, the barrel of the firearm gets ‘washed’ and its bore becomes larger. A bullet fired through such a firearm does not ‘house’ properly in the barrel and hence it is not imprinted with identifiable marks—the thumbprint of the firearm. Ordinarily, this does not happen during the interval between the commission of the crime and recovery of the firearm. Some criminals use previously fired bullets in cartridges of higher calibre. For example, .32 fired bullet is placed in a 12 bore cartridge and fired. This misleads the investigating officer. He searches for a rifled firearm rather than a shotgun. It complicates the investigations. A few years ago, a culprit killed a man by a gunshot. He was caught ‘red-handed’. He admitted the firing before the police and handed over the gun with a cartridge case in its barrel.

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On post-mortem the doctor recovered a fired bullet from the body of the victim. At trial the culprit pleaded false implications and got acquittal because the projectile recovered from the victim was fired from a rifled firearm. Presumably, the culprit had put a fired bullet in the shotgun cartridge. (CH) If a cartridge of lower calibre is fired through a firearm of a higher calibre, its bullet does not fit in the barrel and often does not take identifiable marks. If

some marks are discovered on the bullet, they are compared with fired test bullet of the same calibre as the firearm. In some cases it gives useful match. Sometimes a loose bullet is marked imperfectly and the test bullet of the right calibre does not give correct match. In such cases a lead bullet or a slug (specially prepared) of slightly larger diameter than the bore is pushed through the barrel. It takes up most of the marks from the barrel and provides useful test material. ,

9.6.2 Class and Individual Marks The position, size, shape and depth of firing pin, breech face, extractor, ejector and chamber marks on a fired cartridge case constitute class characteristics while finer details in the marks give the individual features of the firearm. Similarly, the number, the width, depth, direction and pitch of the lands and grooves on a fired bullet indicate class characteristics of a firearm while finer details in the lands and grooves are individual characteristics of the firearm. Class characteristics are common on the ammunition fired from firearms of the same make and model but they differ with different makes and different models of the same make. Individual features are so named because they are always different and no two firearms have the same characteristics. The class characteristics are useful in quick eliminations. The nature of a firearm and possible make is indicated by the class characteristics. This indication is useful when the firearm is not recovered immediately and there are a number of suspects.

9.6.3 Test Exhibits The identification of fired ammunition is always carried out by comparison of marks with text exhibits. Ordinarily, two test cartridges are fired. But in the case of some firearms even one cartridge may be sufficient. In certain high grade firearms the marks are not clearly imprinted, when even a dozen cartridges may have to be fired. The number of test cartridges is not material. The limiting factor is only the clarity of the marks. If clear marks are obtained on the first cartridge, it is not necessary to fire a second cartridge. Formerly, it was suggested that a number of cartridges should be fired and the test exhibits be studied inter se to establish the thumbprint of the firearm. It is no longer necessary because individuality of each firearm is established. However, the expert firing the test exhibits should ensure the cleanliness of the surfaces imprinting the marks.

9.6.3.1 Ammunition Ammunition of the same make and batch is used for test purposes whenever possible, though it is not necessary and not always possible. Ammunition recovered from the suspects, if any, is often used for test purposes if it is of the same make.

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9.6.3.2 No firearms In case no firearm is recovered from a suspect, but fired ammunition is recovered from him or his residence, the same is used for comparison purposes.

Fig. IX-11 Sealed and signed chit (one rupee note with serial number!) fixed on a gun. The gun is not properly sealed. It should be covered with a cloth after placing in a cellophane sheet.

Fig. IX-12 Even macrophotography can identify bullets (C and T) under favourable circumstances as in the above case.

9.6.3.3 Defective firearms In defective firearms, it is not always possible to fire a fully loaded cartridge for test purposes. Some of the charge is, therefore, removed. If the questioned exhibit is a cartridge case, the projectile charge of the round is removed. If a bullet is the questioned exhibit, the powder charge is reduced to about one-half to one-third. 9.6.3.4 High velocity rifles

In high velocity rifles, it is inconvenient to recover a bullet when a fully loaded cartridge is fired. The powder charge is, therefore, reduced to about onehalf to one-third.

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9.6.3.5 Damaged firearms In some cases the questioned firearm may be so damaged that it cannot be used to get test exhibits. In such cases, impints of relevant portions of the

firearms are cast on suitable material and the cast is compared with the recovered fired ammunition. If the crime exhibit is a bullet, a test bullet is obtained by pushing a bullet of the same calibre through the barrel. In a case of dacoity and murder the firearm was so damaged that no test cartridge could be fired. A bullet was extracted from a cartridge and pushed through the barrel. It provided an excellent match. (CH) 9.6.3.6 Recovery

When only a cartridge case is the crime exhibit, the projectile charge is not collected. The cartridges are fired at a firing range and the cases are collected. For the recovery of projectile charge a number of materials and devices have been suggested and used. A bullet recovery box, however, has been found simple, convenient and safe. It is a long box about 2 metres long and about 25 centimetres square in cross-section. It is open from one side through which the projectiles can be fired. It is filled with clean cotton waste and separated into five to six compartments. The upper plank forms the lid of the box. When a bullet is to be recovered, the shot is fired in a bullet recovery box. The

bullet due to spin, forms a ball of cotton around it and gets stopped at a short distance. The marks are not damaged. Rags, water, soap and paraffins have also been suggested and used by some. They do not offer any advantage over the cotton waste or cotton wool. Pellets and buckshots

are recovered in a water drum with a false conical

bottom. The shots or pellets collect at the bottom. 9.6.3.7 Cleaning The bullets and cartridges are cleaned before they can be examined and compared. Dust and dirt is removed with a cotton wool swab. The grease from the surface is cleaned with benzene. Dilute acetic acid and dilute hydrochloric acid are also used to clean the surface. If the surface of an exhibit is highly reflective it cannot be conveniently examined or compared. The surface is dulled by smoking it over burning

magnesium. A thin coat of magnesium oxide is deposited which decreases the reflectivity of the surface appreciably. Glare is reduced by using a polarizer.

9.6.4 Examination Visual examination allows quick eliminations and thus save a lot of time in cases involving a large number of firearms. It gives the position, size and depth of the firing pin, breech face, extractor, ejector and chamber marks. Sometimes

there may be gross characteristic indentations which permit quick identification or elimination of a suspected firearm in respect of a cartridge case. Visual examination of bullet indicates the calibre, the number of lands and grooves,

their depth, width, direction and

twist. Some

firearms

are easily

eliminated by the visual examinations though positive identifications are rare.

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Visual examination is carried out with ordinary light, thrown at different angles. 9.6.5 Stereoscopy

Stereoscopy offers three dimensional study of a mark. It gives a truer and better picture of the mark than two dimensional study. Thus, stereoscopy is superior to other modes of examinations. In fact the stereoscopic examination alone can provide positive identification of the cartridge case exhibits. Test and crime cartridge cases are placed side by side. They are properly illuminated by spot-light lamps. The light falls on the two cartridge cases at the same angle. The examination is started with the lowest magnification of the

stereomicroscope and progressively increased for detailed examination. At higher magnifications, the cartridges are examined in turn because both are not covered in the field simultaneously. The examination is carried out of the relevant surfaces only. The cartridges are rotated through 360° and tilted if necessary. Stereoscopic examination of bullets rarely gives positive identifications. The examination does facilitate the comparison work. It gives the idea as to what should be looked for in the comparison microscope. 9.6.6 Comparison Miscroscope

Comparison work is best carried out with a comparison microscope. The instrument is in fact a combination of two microscopes, where the images formed by the two objectives are brought in focus in the same eyepiece through prisms. A comparison microscope has, ordinarily, arrangements for photography. Thus the comparative study and the match found visually is recorded photographically for presentations, in a court, if necessary. The instrument has mechanical stages. They allow up and down and left or right movement of the exhibits. The exhibits can also be rotated through 360°. The exhibits are illuminated by two spot lamps with arrangements for adjusting height, angle of illumination and the intensity of the illumination. Some makers provide single fluorescent tube light lamp. 9.6.7 Comparison camera

Comparison of the marks is also carried out through comparison camera. The instrument does not offer any advantage over comparison microscope and is, in fact, inferior in many respects. 9.6.8 Striagraph

Striations on projectiles have also been studied with an instrument called Striagraph. The instrument is of little practical utility. 9.6.9 Periphery camera

A periphery camera has come into use for the study of striation marks on bullets. It records the marks of the whole cylindrical surface of a bullet on a plain sheet of film. Similar sheets prepared from test and incriminating buffets allow easy comparison of the marks.

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The device is suitable when the examination is to be carried out at a number of places without the actual crime exhibit, as a number of photographs can be prepared and sent to different places. Internet has dispensed with the necessity of sending strips or photographs. Transmission through internet reaches the concerned destinations. The instrument does not give satisfactory results in deformed bullets. Besides, it does not offer any advantage over the comparison microscope for routine work. 9.6.10 Photographic comparison

The comparison microscope and other comparison devices are useful and convenient but they are not indispensable. All comparisons can be made by an ordinary microscope and a photomicrographic camera. A camera with bellow extension and close-up attachment can replace photomicrographic camera if necessary.

Fig. IX-13 An excellent striation match.

9.7 SPECIAL SITUATION 9.7.1 Damaged Cartridge Cases

,

In illegally made country-made firearms fired cartridge cases are extensively damaged. Percussion caps may be found pierced or blown off or the shells may be found burst. Identification is often possible even in such cases because they carry numerous marks from the firearms.

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9.7.2 Damaged Bullets

Crime bullets are rarely recovered in their original shape. They are often deformed and fragmented. Some portion of the bullet, however, remains undamaged. It carries sufficient details to permit identification of the firearm. Lead bullets in some cases, may not retain the barrel marks. High velocity jacketted bullets often break up but the jackets frequently retain identifiable marks. 9.7.3 Burnt Bullets and Cartridge Cases

The culprit may have thrown a cartridge case in a fire after the occurrence. If it has not melted,

the marks

may

be found

on

the exhibit

which

allow

identifications. Lead bullets ordinarily lose all identifiable marks, while jacketted bullets and metal bases of cartridges retain the marks. In a murder case, the body of the deceased was burnt. The investigating officer, however, recovered a lead mass from the ashes. It was carefully studied and it was found that it originally formed a bullet. The defence version that the deceased died a natural death was consequently proved wrong. The bullet, however, could not be identified in respect of the suspected firearm. (CH) In another case of murder, followed by arson; a burnt cartridge base was examined. It was possible to identify the firearm which had fired the cartridge. (CH) 9.7.4 Smooth Barrel Marks Bullets, balls and slugs are also fired through smooth-bore firearms. The projectiles are marked by the barrel irregularities in the form of scratches, which are characteristic and allow identification of the barrel from which they have been fired. Similar bullets, balls and slugs are fired through the firearm for test purposes. Alternatively, bullets or slugs of the diameter of the bore are prepared and pushed through the barrel of the firearm. They pick up the barrel marks. The comparison of the crime and test exhibits identifies the possible common source.

9.7.5 Buckshots and Pellets Formerly, the identification of buckshots and pellets fired through a smoothbore firearm was considered impossible. Experiments in the author’s laboratory have proved it otherwise. It appears that buckshots packed between the wads in a cartridge, are pushed through the barrel without any appereciable sideway or turning motion. The buckshots and pellets on the periphery scratch against a segment of the inner surface of the barrel. They take up the marks from these segments (corresponding

to a land of a rifled barrel) like bullet. The marks have been

found consistant to a given segment of a barrel. Test marks are obtained on a specially prepared slug which fits in tightly in the barrel. When it is pushed through the barrel (without turning motion) or fired it takes up marks from the whole internal surface of the barrel. The comparison of the marks on a buckshot or a pellet with the marks on the slug is carried out with a comparison microscope like a bullet.

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Buckshots and pellets are sometimes housed in a sleeve placed in a cartridge. The sleeve protects the pellets or buckshots against scraping in the barrel. Such buckshots or pellets will not take up the barrel marks.

Fig. IX-14

Striations on pellets and test slugs can be matched liked striations on bullets.

9.7.6 No Firearm Sometimes the firearm used in a crime is not recovered in the early stages of the investigation. The investigating officer usually seeks guidance about the nature and number of the firearms involved. The available fired ammunition is provided. The class characteristics of the marks on the fired ammunition give an idea about the number, nature, calibre and possible make of the firearms used. In a famous multimurder case, fired projectiles (bullets fragments, bullets, buckshots and some wad pieces) were recovered from the bodies of the victims. By careful examination it was possible to indicate that four firearms: two revolvers of .32 and .38 calibres, one .30-06 rifle and one 12 bore/ shotgun had been used. (CH) 9.8 GUNSHOT RESIDUES The gunshot residues (GSR) are produced when a cartridge is fired from a firearm. They are also known as firearm discharge residues or powder residues. The term GSR has become popular for the gunshot residues and shall be used frequently in the discussion on the subject. The GSR are found on:— 1. The hand(s) of the person who fires a gun. 2. The target around the projectile holes, including clothes, exposed skin, ete.

3. The firearms—its inner and outer surface, the fired cartridge cases and the projectiles involved. 4. The articles around the target or around the shooter.

5. The intermediate targets.

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The examination and the evaluation of the GSR helps to solve a number of problems:—

1. Has the given gun been fired? Has the given projectile or the cartridge case been fired? Did the suspect shoot? In fake suicide cases the question may be crucial. Is the given wound a firearm injury? Is the given hole (on clothes, bones, furniture, etc.) a ane hole? What was the firing range? eS Se ef

7. When was the given gun, projectile or the cartridge case fired? 8. Is the given wound or the hole an entrance (or an exit) hole?

9.8.1 Nature Gunshot residues are complex mixtures of materials produced in the gunshot firing. Their composition depends upon:— 1. The nature of the formulations of the propellants and primer mixtures. 2. The composition of the projectile materials.

3. The barrel scrapings.

9.8.1.1 Black Powder Residues Forty to sixty per cent. of the combustion products of black powders are gases and the rest are solids. The gaseous products are carbon monoxide, carbon dioxide, hydrogen sulphide, nitrogen, oxygen and water vapours. The solid residue consists of carbon, sulphates, carbonates, thiosulphates, sulphides and sulphites of potassium, unconsumed charcoal and sulphur. The black powder is not used in modern ammunition. The evaluation of its residues is needed rarely, only in those cases where the muzzle loading guns have been used or home filled cartridges, using the black powder have been employed. The primer mixtures contain mercury fulminate, antimony sulphide, antimony oxide and potassium chlorate. In some primer mixtures potassium chlorate is replaced by barium peroxide, barium nitrate and lead peroxide. Likewise, mercury fulminate in some primers is replaced by a mixture of sulphocyanide of copper or lead, TNT, teteryl and sulphur. The primers contribute oxides of barium, antimony, copper, lead, potassium chloride and mercury to the gunshot residues.

9.8.1.2 Smokeless Powder Residues The detectable inorganic materials in the modern smokeless powders’ GSR are.

1. 2. 3. 4.

Lead, from the bullets and the primers. Barium, from the primers. Antimony, from the primers. Copper, from the jacket.

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Fig. IX-15 Lead, Antimony and Barium from the GSR through EDX, with SEM. The presence of the elements is a sure indication of the GSR.

5. Iron from the barrels. 6. Carbon

monoxide,

absorbed

in the skin and

the flesh, from

the

propellants.

7. Nitrates, from the inorganic oxides and from the propellants. 8. Nitrites, from the propellants 9. Zinc, from the jacket. 10. Nickel, from the Nickel coating of the shells in some cases. 11. Carbon particles The detectable organic component of the GSR are:— 1. Nitro-cellulose, the unburnt or the semi-burnt part of the main component of the propellant. 2. Nitro-glycerine, the unburnt or semi-burnt part of the double base propellants, if used.

3. DPA (Diphenyl amine), used as a stabiliser in all the single base propellants. It constitutes roughly 1% of the propellant weight. 4. Ethyl centralite, used as stabiliser in double base powders. (~1% by weight).

5. Phthalates, used as the plasticisers. Glyceryl tri-accetate, used as plasticisers. . Nitroguanidine, used as plasticiser. DNT (Di-nitro toluene), used as flash suppressant.

. Bullet ©OND

lubricants.

10. GSR constituents, from the barrel fouling of the previous firing.

ew:

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The smokeless propellants produce mostly gases. The gases are carbon monoxide, carbon dioxide, nitrogen, oxygen and water vapours. Oxides of nitrogen are produced if combustion is incomplete. The solid residues, in addition to those mentioned above, are elemental carbon in a fine state called molecular carbon, potassium carbonate, chloride

and antimonate. They are formed from the materials added to stabilise the powders.

Fig. IX-16 Back-spattered GSR on the back surface of an intermediate target placed close to the main target.

9.8.2 Location The GSR are produced in the firing process. They are light in weight. They, therefore, do not travel very far. They are deposited on:— ¢ The target. ¢ The intermediate target. ¢ The hands, clothes and the body of the shooter.

¢ The articles around the place of shooting. ¢ The inner and outer surface of the firearm. The GSR are also dispersed in the air. Being light particles, they continue in the air for a long time. Besides, they are also transferred to a surface which comes in contact with the air bearing GSR.

9.8.3 Detection The GSR are detected visually, with a magnifying lens and a stereomicroscope. But the visual examination even with the help of magnifying lens or stereo microscope has limited utility. The following techniques for the detection are in vogue:

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1. Infra Red rays photography is useful especially in the case of powder particles on coloured clothes. They reveal the pattern. 2. X-rays reveal lead particles/dust in the deposited GSR. 3. Scanning Electron Microscope has been found exceptionally useful not only to detect GSR but also it can give the size and number of particles. Its ‘quantitative aspect’ has made it indispensable in GSR evaluation. 4. Chemical methods. These tests have been described in some details later in the chapter. Namely, they are:

¢ Dermal Nitrate Test. ¢ Walker's Test.

¢ Spot test for lead. ¢ Harrison and Gilroy’s Test. ¢ Price spot test. The frequently utilised tests for detection are the Walker’s test and spot test. The scanning electron microscopy perhaps, would be more frequently used in the coming times.

9.8.4 Collection The gunshot residues are collected by a number of methods. The important methods are given below:— 9.8.4.1 Dry methods

1. For the collection of the gunshot residues on the hands, molten wax of suitable melting point is gently brushed over the hands till it acquires sufficient thickness (1 to 2 mm). When the wax is set, it is peeled off. It

picks up the gunshot residues from the hand. 2. A solution of cellulose acetate is applied to the site bearing the gunshot residues. It is peeled off on drying. The cast picks up the gunshot residues. 3. The site bearing the powder marks is sprayed with a collodion solution. The film is reinforced with nylon fibre. The reinforced film which picks up the powder residues is peeled off, on drying. | 4. The site bearing the gunshot residues is pressed with an adhesive tape, or with an adhesive aluminium foil, repeatedly. The tape which is kept in a vial with adhesive surface inside the vial, before and after the use. The tape is mounted on a specimen stub for examination.

5. A cellophane sheet impregnated with acetic acid is pressed against the site. It picks up lead.

9.8.4.2 Wet methods -1. A filter paper is moistened with dilute acetic acid. It is pressed against the spot suspected to bear the gunshot residues. They are picked up by the filter paper.

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2. A piece of cotton cloth is moistened with dilute hydrochloric acid (10%) or with nitric acid (5%) and the site bearing the gunshot residues is

swabbed with this piece of cloth, which picks up the residues. The swabs are collected separately from various parts of the hand.

3. The cotton swabs moistened with dilute nitric acid (5%) are used to

swab the site (hands) thoroughly and the collected material is analysed. The swabs are collected from the various parts of the hand and kept separately. 4. The hands are rinsed thoroughly in dilute nitric acid (50 ml of 1 molar nitric acid is used) placed in a plastic bag. The solution thus obtained is freeze dried and is ready for testing purposes. 5. The residues in the barrel are collected by washing the barrel with hot distilled water. The washings are tested for the constituents of the residues. 9.8.4.3 Collection of organic residues

The evaluation of the organic component of the powder residues have also acquired tremendous importance in the recent times. The following are the important collection techniques:— Swabbing.—A small cotton wool ball, a clean cloth piece, or a filter paper is moistened with an organic solvent (acetone, ether or alcohol) and the site is swabbed. The swabs are collected and extracted.

Tape lifting —An inert tape of suitable width ( 2-3 cms. ) is taken and the site is taped. The tape is used as such, or extracted and the extract is utilised for further testing. Vacuum lifting —The techniques are especially useful to collect the GSR from the clothes. The material deposited on the filter disc is extracted with a suitable solvent for further processing.

9.8.5 Evaluations A lot of research has been carried out in recent times to evaluate the powder residues. Excellent techniques have come up to identify and give both the qualitative and the quantitative estimates of the constituents of the gunshot residues even in micro and nanogram quantities. The following tests are used:—

9.8.5.1 Visual examination If the firearm is discharged from a close range, the visual examination may reveal burning, blackening, tattooing, etc. Their presence indicates a gunshot injury or a gunshot hole. The hand magnifiers (a low power stereo microscope should be preferable) and a strong light improves the detection,

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Fig. IX-17 No GSR around the clean hole in a wooden door hard contact shot!

9.8.5.2 Infra-red photography

If the bullet holes are on coloured clothes, the presence of gunshot residue is masked. Infra-red photography proves useful in such cases. The gunshot residues become visible in the photograph.

=** ’

'?

.

“¢ . Lees

Fig. IX-18 IR photography reveals GSR on dark cloth, indicating close range fire

9.8.5.3 Soft X-rays radiography The lead metal is opaque to X-rays. A soft X-ray radiograph of the hole, reveals the radio opaque deposits around the hole in a characteristic pattern,

indicative of a gunshot fire.

9.8.5.4 Dermal nitrate test Dermal nitrate test was frequently used prior to 1950 to identify the shooter. The test is simple. The nitrates are picked up on a paraffin wax cast as described earlier. The residues on the cast are treated with diphenylamine dissolved in strong sulphuric acid. The formation of blue colour spots indicates nitrates. They are, in turn, indicative of the presence of the gunshot residues.

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ny

As certain common materials give positive reaction with the above tests, the method is no longer used.

on 9.8.5.5 Walker's test Walker’s test is widely used even today. Its simplicity and greater specificity makes it a convenient test.

A desensitised glossy bromide paper is taken. It is treated with 2 naphthylamine 4 :8-disulphonic acid (5%). The bromide paper is placed over a table with the treated surface on top. The cloth bearing the gunshot residues is placed over the bromide paper. It is covered with a towel moistened with 20% acetic acid and the arrangement is pressed with a hot electric iron for about five to ten minutes. Dark red spots on the bromide paper indicate the gunshot residues. A modified version of the test is as under:—

A piece of filter paper is moistened with acetic acid. It is pressed against the target surface. It picks up the gunshot residues. The filter paper is then sprayed with a solution of 2 naphthylamine sulphanilic acid and citric acid. The pink coloured specks indicate nitrite particles. They, in turn, indicate the gunshot residues. The test is useful to:—

1. Identify the bullet entrance holes and wounds. 2. Determine the range of fire. 3. Ascertain whether a firearm, bullet, cartridge, etc., has been fired or not.

4 . Estimate the approximate time of fire. The diminishing intensity of the

colour formed is the indicator of the time elapsed. 5. Identify a shooter. 9.8.5.6 Harrison and Gilroy's test

Harrison and Gilroy’s test determines the presence of lead, antimony and barium through spot test. The gunshot residues containing the metallic constituents are collected on a piece of cotton cloth (moistened with dilute hydrochloric acid) as described earlier. The cloth is, then, tested as under:—

1. A dried piece of test cloth is treated with one drop of triphenyl methylarsonium iodide alcoholic solution (10%). The appearance of an orange ring, in about two minutes’ time, indicates the presence of antimony. 2. The test cloth bearing the orange ring is dried and two drops of sodium rhodizonate solution (5%) are put in the centre of the ring. Red colour

development, inside the ring, indicates lead, barium or both. 3. Tne test cloth is dried again. A drop of dilute hydrochloric acid (1: 20) is placed on the red spot developed in (2) above. If the colour changes to blue,

lead

indicated.

is indicated.

If the colour

does

not change,

barium

is

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The test is useful to identify a shooter or a bullet hole. The test is, however, not popular. It gives unstable colours. The three elements interfere with one another. The results are not quantitative. 9.8.5.7 Price’s spot test This technique involves the identification of lead through a standard spot

test using, sodium rhodizonate solutions. The gunshot residues are collected from the hands on a piece of cloth moistened with 1% hydrochloric acid. The test does not offer any advantage over Harrison Gilroy’s test. 9.8.5.8 Neutron activation analysis

The examination of gunshot residues by Neutron Activation Analysis depends upon the presence of antimony and barium. When the gunshot residues are exposed to neutron bombardment in a nuclear reactor, antimony and barium capture one neutron each to give radioactive antimony (Sbi>; , SP; 39) and radioactive barium

(Bajag, Ba, 39). The radioactive nuclides emit gamma rays. Evaluation of the energy and half life help identify and estimate the isotopes. The estimation is usually done by comparing with the standards. Neutron activation analysis is a highly sensitive technique. However, it is cumbersome:— 1. It needs a reactor for the neutron source, which are scarce. 2. It is time consuming.

3. It needs a lot of pre and post-activation chemical treatment of the samples. For example, sodium and chloride ions from perspiration have to be eliminated for a proper estimation. 4. The technique is not suitable for analysis of lead, which is the most important metallic constituent of gunshot residues. 9.8.5.9 Flame-less atomic absorption spectrometry An atomic absorption spectrometry is an extremely sensitive and convenient

technique for the evaluation of the gunshot residues. It can detect the elements in nanogram and picogram ranges. Atomic absorption spectrometry works on a very simple principle. An element absorbs the radiation of the same wave length as it emits when excited. The suspected

element

(in gunshot

residues)

is taken

into an atomiser

(a

graphite tube or a Tantalum strip) and is excited by heating. The radiation from a discharge tube with the suspected metal electrodes is passed through the atomiser. The loss of intensity in radiation gives the measure of the quantity of the metal in question. The technique is useful and popular for the examination of the gunshot residues. It is less costly, consumes less time and is applicable for lead estimations also.

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9.8.5.10 Scanning Electron Microscopy (SEM) Scanning electron microscopy is the most impressive and effective method to evaluate the gunshot residues:— 1. It photographs the powder residue particles at site. The specific shapes of the lead particles indicate the gunshot residues. 2. It provides the elemental analysis of the elements in the powder residues. 3. The analysis is non-destructive in nature. 4. It gives the number of the particles per unit area. In scanning electron microscopy a fine beam of electrons is focussed on the material under study. The electron beam has the following effects:—

e It generates X-rays. The generated X-rays are used to find out the elemental composition of the material with an X-ray analyser as the X-rays are characteristic of the element. ¢ It gives cathode luminescence. When the electron beam falls on certain materials, it creates luminescence, specific of the element(s) involved. The spectral analysis of the light indicates the elements involved. e It creates back-scatter. Some electrons are reflected back (back-scatter).

The photographs obtained from these electrons have 3-dimentional effect which permit the topographic evaluations of the surface GSR particle in a much better way. e It

provides

high

magnifications/resolution.

SEM

can _ give

magnifications of the order of a hundred thousand times with high resolution and thus provides an excellent tool for the structural studies

of the GSR Particles on the surface. The scanning electron microscopes have been introduced in most of the Forensic Science Laboratories. They should help to evaluate the gunshot residues more etticiently. The paraffin lifts, adhesive tapes, cellulose acetate or the collodion lifts are used to evaluate the gunshot residue under a scanning electron microscope. Characteristic spheroid shapes indicate the presence of lead globules. Identifications of antimony and barium, through EDX, make the identification certain.

In recent times, the scanning electron microscope has been programmed to search for the powder residue particles on the clothes of the victim or on the various lifts. Identification and analysis is carried out simultaneously and automatically. The work of the analysts has thus been reduced considerably. Unfortunately, the cost of the equipment is high and thus it has not been adopted for routine analysis to the extent the utility of the technique demands. In prosperous countries the scanning electron microscope has become indispensable to the ballistics laboratories.

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SE

S92

ENT=28.@0

BE

inage

D=

kV

447

}

im.

14.00 -KeX Mag> Detector= SE!

Fig. IX-19 GSR particles through SEM.

9.8.5.11 X-Ray

fluorescence

Another method of choice for the analysis of the gunshot residues is the use of the X-ray fluorescence. The technique has been extensively used to carry out both qualitative and quantitative elemental analysis of the residues. The comparative low price of the needed equipment, the simplicity of the technique and of the operation, and the highly efficient results make it one of the most convenient methods for the evaluation of powder residues.

Auto-radiography, photoluminescence, lead isotopy, emission spectroscopy and polarography have also been employed.

|

9.9 RANGE OF FIRE Determination of the range of fire is an important aspect of forensic ballistics. If proper photographs, sketches, description of the injuries, the suspected firearm and the required ammunition is available, fairly accurate estimate of the range can be made.

9.9.1 Muzzle Patterns When a firearm is pressed against the human target and fired, the muzzle of the firearm leaves an imprint on the target. The existence of the muzzle pattern, therefore, indicates a contact wound. Such wounds are often observed in suicide cases. The whole charge (projectiles, wads, if any, smoke, unburnt or semi-burnt

powder particles and hot gases) enter into the target. No burning, blackening, and tattooing phenomena are observed around the entrance hole. Instead, they are observed inside the wound when carefully examined. If there is no space for the expansion on the gases inside, they come out through the entrance hole and in the process often tear the surface around the hole and evert the edges. The edges are found ragged (torn in star shape). The wound appears like an exit wound.

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9.9.2 Scorching

Scorching effect on the target is caused by the flame or hot gases. It is not caused by the hot projectiles as is commonly believed. It is a sure sign that a firearm has been discharged from a close range. Hot gases can travel forward only to a limited distance which varies from a few centimetres in the case of pistols and revolvers to a few decimetres in the case of rifles and muskets, usually not beyond one metre. The burning range depends upon the length of the barrel of the firearm and the age and the nature of the powder charge. Scorching is also known as singeing, burning or charring. It is often confused with blackening, dirt-ring and the contusion caused by the impact of the projectile. Burning can be distinguished easily from blackening and dirt-ring. Swabbing the surface with spirit, removes the dirt and blackening while charring remains. Contusion ring is distinguished from the burning effect through its shape and microscopy. The contusion in the form of a regular round or oval ring, burning is irregular, comparatively. It is especially so if the weapon has flash holes. 9.9.3 Blackening Blackening around the wound is caused by the deposition of smoke particles by all types of powders at close ranges. The intensity is maximum in the case of

gunpowder, less in semi-smokeless powder and least in smokeless powder with the same quantity and from the same range. The colour also varies slightly. It is black in gunpowder and greyish black in smokeless powder. Smoke particles are formed due to the burning of the powder charge. They are propelled out alongwith the projectile charge. Being light particles, they soon lose their velocity and get deposited on any material available in the path. The blackening range is roughly three times the burning range.

Fig. IX-20 Wounding effect of a gunshot injury on skin. 1. Dirt ring 2. Contusion ring. 3. Smoke deposit 4. Tattooing.

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9.9.4 Tattooing Tattooing is caused by the embedding of unbunt or semiburnt powder particles into the surface of the target. It is also called ‘peppering’ stippling. These particles are slightly heavier than the smoke particles. They, therefore, retain motion to some what longer intervals and consequently cause tattooing at a distance of about one and-a-half times the blackening range. The age and quality of the powder charge has predominant effect on the range and intensity

of tattooing.

9.9.5 Powder Residues The amount of powder residues left at the target is dependent upon the range. If experiments are performed with the same weapon and similar ammunition, the range can be determined fairly accurately. The maximum powder range in handguns is about one meter. It is often determined in cases of alleged suicides.

9.9.6 Metal Particles Metal particles produced by lead fouling and scraping of the projectiles etc., form part of the ejected charge. They, being heavier, travel to a longer distance than the powder or smoke particles range. The range upto which these particles travel varies with the firearm and the ammunition. Roughly they are found about a metre beyond the powder range. The particles are, ordinarily, not visible to the naked eye. They are detected by soft X-rays or by chemical tests. 9.9.7 Wad Distribution A number of wads are found in shotgun, ammunition. They are projected alongwith the other charge. They enter the target upto about three metres. If they are not obstructed, they scatter from five metres to about ten metres or more. If the distance between the victim and the wads is known, the range of fire can be determined. A more accurate estimate of range can be made by test firing with the suspected firearm and similar ammunition. The weather conditions have an important effect upon the scattering of wads. They may be blown far away or retained near depending upon the direction and velocity of the wind at or immediately after the time of firing. The weather should, therefore, be taken into account for the determination of the range of fire

from wad distribution. The cushion wad being heavier, goes to much longer ranges.

9.9.8 Pellet Patterns The area covered by pellets fired from a shotgun is proportional to the distance between the muzzle of the firearm and the target. Greater the range, greater is the area covered. The spread is affected by the length of the barrel of the firearm, the muzzle of the firearm (whether choked or not) and the condition

of the ammunition. If test experiments are performed with the suspected firearm and if the ammunition of the same make and batch is used the pellet patterns provide fair estimate of the range.

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Generally, in a standard shotgun, the whole charge enters the body en masse upto a range of about two metres, forming a rat-hole varying in diameter from about two centimetres to about six centimetres, depending, mainly, upon the distance between the muzzle and the target, the constriction (choke) of the muzzle and the size of the pellet charge. There is a rat-hole surrounded by individual holes from two metres to about seven metres. In buckshot charge the individual shot may form its separate hole from a range of three to four metres. The separation of the holes is usually complete from about ten metres onward, especially in buckshot charge. The spread of pellets at various ranges with different degrees of chokes is given below for rough estimation:

TABLE Pellet spread varies with range and choke Range in Metres

10 15 20 25 30 35

Spread circle diameter in centimetres True Cylinder 54 71 88 105 122 140

Improved Cylinder 38 aD 72 89 106 124

Half Choke

Full Choke

31 od 58 73 90 108

23 33 45 59 75 94

The above table is not applicable to improvised pistols and guns made illegally by local blacksmiths which do not conform to any specifications. The barrels are either too loose or too tight. The lengths of barrels are often short. The inner surface is rough. Consequently the spread of pellet is not only different from standard firearms but it varies in the same firearm from one shot to another. These firearms do not lend themselves to reliable range determinations. For standard firearms with half choke a rough idea of the range is obtained from the fact that every metre of distance is equal to 3 cm. of dispersion. Mathematically: | D=3R R is the range in metres and D is the diameter of dispersion in centimetres.

9.9.9 Direction of Wound If the direction of wound is not parallel to the ground level and the angularity is not due to deflection of the projectile inside the body, a fairly accurate estimate of the range of fire can be made. At least, the prosecution or the defence story of the occurrence can be verified. In an appeal against the conviction in a murder case, the prosecution story of the occurrence was challenged by the defence. The deceased had been killed by pistol

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fire from across the street when the deceased and the accused were standing on their respective roofs which were at the same level. The wound of exit was five centimetres higher than the entrance wound level. The street was three metres wide. The defence produced a bust and a long probing rod. They tried to prove that the line offire met the roof level at about two metres from the position of the victim. They argued that the deceased, therefore, could not have been killed by the accused who was, at least, a metre away from where the line offire met the roof level. Careful study of the height of the deceased and accused, position of entrance and exit wounds and the thickness of the body revealed both mathematically and graphically that the killing was possible from across the street. The defence in their demonstration had made errors by decreasing the body thickness and increasing the height of the exit wound, thus increasing the angularity. The sentence was maintained. (CH)

9.10 FIREARM INJURIES The firearm injuries are examined by medical doctors. But a firearm expert has to evaluate them frequently. If each performs his function well and sticks to his field, no trouble arises. If they cross into others territory, there is often

confusion. It is, therefore, desirable that they understand their roles and perform them well. The correct evaluation of firearm injuries is important in reccnstructing a shooting incidence. The burden of firearm expert testimony is increasingly shifting from the identification problems of firearms and fired ammunition to the reconstruction of the sequence of events to verify a given hypothesis. Is it suicide, accident, murder or self defence? The true story is often disclosed only by correct appreciation of firearm injuries.

9.10.1 Nature Ordinarily a firearm injury has three parts: 1. The entrance wound. 2. The exit wound, and 3. The internal wound.

In some cases, when the projectiles are retained inside the body there are no exit wounds. Sometimes the entrance or exit wounds are invisible. Here the projectiles enter or go out through the natural openings like mouth, anus etc. Cleavage of tissues may start or end at a hidden place. An assistant sub-inspector was murdered by unknown culprits. He was hit by a rifle projectile in the back of the neck. There was no visible exit wound. It was thought that the projectile must be lodged inside. Thorough X-Ray screening did not give any lead. On probing, it was discovered that the track led to mouth. The absence of the projectile could then be understood. It had escaped through the

mouth. (CH)

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Firearm entrance wounds may be circular, oval, key shaped, ragged or explosive. The last category (sometimes confused with wounds caused by explosives) is caused usually by high velocity projectiles. Ordinarily, the entrance wounds have smaller diameters than the diameters of the projectiles. Sometimes they may have equal or larger diameters. The exit wounds are frequently irregular, occasionally circular and at times gaping. The dimensions are, ordinarily, larger than those of the entrance wounds or the diameters of the projectiles causing the same.

The internal track may be a straight tunnel or it may be zig-zag due to deflection of projectile. Sometimes the track is multichannel due to fragmentation of the projectile or due to the formation of secondary projectiles. The track may end inside the body. The projectile causing the injuries would be found at the site. At times there is a small entrance wound approximately equal to the diameter of the projectile but inside a tunnel, many times larger than the diameter of the projectile is discovered. The exit wound is also much larger than the size of the projectile. From the exit wound protrudes damaged muscles, flesh bone pieces, blood clots, like the mass of lava spread at the crater of a volcano. Extraordinary injuries: incisions, abrasions and contusions are also caused sometimes by firearms. They do not have usual three parts. They can often be confused with injuries from weapons other than firearms.

9.10.2 Wound Ballistics When a projectile strikes the human body, it depresses and compresses the skin, flesh and bone tissues underneath. The continued pressure stretches them beyond the elastic limits. They break down if the projectile has sufficient velocity, otherwise, only contusion is caused. The skin which was stretched under the impact of the projectile is pierced. The hole on the skin appears smaller than the size of the projectile which created the wound.

The minimum velocity, known as threshold velocity, required to penetrate the skin has been found to be 40 to 50 meters per second. The threshold velocity for bone penetration is 60 metres per second. The projectile continues its onward progress till it leaves the body through an exit hole. Or, its energy is spent beforehand in overcoming the resistance offered by the clothes, skin, flesh and bones. The projectile is found lodged at the situs under the circumstances. Wounding effect of a projectile depends upon (1) the target site, (2) the velocity, (3) the constructional features, and (4) the range.

9.10.2.1 The target site

A human body is not a uniform medium. It is about 80% water. But it is not uniformly distributed. At places there are bones, at other places, veins, nerves,

muscles or blood vessels. Thus, the vulnerability is unevenly distributed. They are all covered by skin. The total outer skin of a human body has a surface area of about 5000 square centimetres. It has been calculated after careful consideration of the anatomy of the human body, that about 43% of the total

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area (about 2150 sq. cms) covers body parts (organs, cavities, nerves, blood vessels, etc.) which are easily damaged. If a hit is made at these body parts serious damage is caused. Like-wise similar anatomical consideration has led to the findings that on average the depth of protective tissues on the frontal side of the body is 0.6 cm. only, whereas average depth is more than five times (3.3 cms.) on the back side of the human being. Thus a frontal attack is likely to cause more serious wounds than the injury from the back-side. The difference in wounding effect will be apparent dramatically only when the velocity of the projectile is around the threshold velocity.

The body part hit by a projectile necessarily plays an important part. If a projectile cuts the skin only, it does not do much harm. Likewise, a projectile may hit a finger or a toe of a person without the latter being very much the worse for it. But if a shot injures the brain, the heart, the spinal cord or aorta of a person, the person is disabled (stopped) almost at once. Often the injury is fatal. It is against this background that the elephant hunters try to reach the brain of the game through the area in between the ear and eye, though it is a circle of the diameter of about ten centimetres only.

The part of the body hit is responsible for the extent of shock. The shocking power of a projectile varies from person to person unless vital parts are hit and seriously injured. This explains the extreme bravery shown by Pathans in Anglo-Afgan Wars. Mark VI .303 projectiles used by Britishers had effective velocities lower than 600 metres per second. They did not cause explosive wounds. Consequently the projectile did not cause sufficient shock (in physical sense). The Pathans though hit at non-vital parts, continued fighting. 9.10.2.2 The velocity

The velocity of a projectile has great influence on the nature and extent of damage caused to the body tissues. The energy of a projectile is proportional to the square of the velocity (E = 1/2mV7’). If we double the velocity, the energy of the projectile becomes Four times, if we treble the velocity the energy of the projectile becomes nine times. This extreme influence of the velocity is, therefore,

too evident to need further comment. The formula, E=l/2mV2, does not tell the whole truth. When the Mark VI .303 bullets did not stop the Afgans, the Britishers used Dum Dum bullets which

were soft at the nose. They fragmented and caused extensive wounds. The Dum Dum bullet had no greater energy than the standard Mark VI bullet. Actually, the energy was slightly less. But in terms of capacity to cause serious injury, it was far superior. The same effect was achieved without softening the nose in Mark VII bullets. Here the velocity was increased to about 750 metres per second. They usually caused ‘explosive wounds’ at these velocities. The wounding effect on velocity considerations can be studied in four velocity zones: 1. Velocities under 400 m/s. 2. Velocities from 400 to 600 m/s.

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3. Velocities from 600 to 1100 m/s.

4. Velocities beyond 1100 m/s. In the first zone no abnormal wounding phenomenon is observed. The projectile does not fragment or deform to any appreciable extent unless it strikes a bone. The extent of deformation and deflection, if any, depends upon the amount of resistance and the angle at which the projectile strikes. In the second zone the projectile behaves midway between similar projectiles in the first and the third zone. Lead bullets and expanding bullets start mushrooming. The extent of mushrooming depends upon the striking velocity, the constructional material and features of the projectile and the resistance offered by the situs. The tissue damage is greater, because the cross-sectional (also called projection area) increases as the projectile progresses forward. The projectile may or may not be retained inside the body. If it goes out, the exit wound is much larger than the entrance wound or the diameter of the projectile.

The most dramatic and important effect of velocity of a projectile in the third zone is te produce explosive wounds. For the formation of explosive wounds, the following explanations are given: 1. The high velocity projectile creates a vacuum behind it. As it enters the body, the air behind rushes in at a terrific speed and disrupts the body tissues. The explanation alone is not quite sufficient. The explosive wounds are caused even on targets kept and fired at in vacuum. 2. The body parts hit by the projectile themselves becomes effective secondary missiles and cause extensive damage to the body. 3. The projectile fragments and these fragments cause extensive injuries. 4. The gyratory motion of the projectile is very high. A .303 Mark VII bullet spins at the rate of 300 r.p.s. at the muzzle. The loss of revolutions is not more than 10 per cent. per second. The tissues, which come in contact with the projectile, are set into motion and churnned. These tissues are torn off the adjoining tissues. The process inflicts injury on the tissues far beyond the immediate vicinity of the main track of the projectile. Gyratory motion alone cannot be responsible for explosive wounds as experiments with small non-spinning spheres produced explosive wounds. But it is well established that the wounding effect of a rotating bullet is far more extensive than that of non-rotating bullet. This is due

to the fact that the projectile deviates from the line of flight. The deviation (called ‘yaw’) tendency is 800 times more in body tissues than in air. The projectile after a short passage in the tissue (say 5 cm) may be slanted by 50° to 90°. Thus the projection area (cross sectional area of the bullet) will be many times the area when it is travelling in noseonward position. The transfer of energy is, therefore, many times more. As the damage is directly proportional to the energy transferred the rotating bullets cause much more damage than the non-rotating bullets.

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5. Experiments with high velocity projectile fired in water, gel block, anasthetized animals and cadavers have cleared the mechanism of the ‘explosive effect’ of the injuries caused by high velocity projectile to a great extent.

The passage of a high velocity projectile is found to have the following effects: 1. The projectile compresses the air in its front. It starts a shock wave. The intensity of the shock wave depends upon the velocity of the projectile and the energy transferred by the projectile to cause the shock wave. A projectile (.5 cm diameter steel sphere) with a velocity of 1000 m/s causes a shock wave which compresses the target with a pressure of about 45 atmospheres (46 Kg/cm?) which alone is sufficient to kill a person. The shock waves are repetitive, but the intensity falls off almost immediately. The shock wave pressure falls off rapidly with time and distance.

2. A temporary cavity is formed which is many times larger than the size of the projectile causing the same. Its size depends upon the total energy transferred by the projectile. It has been calculated that the volume of the cavity is 7.85 cc/Metre Kg of the energy transferred by the projectile to the tissues. The volume is about 27 times the value of the permanent cavity. This cavitation is responsible for breaking bones and tearing muscle far away from the path of the projectile.

The temporary cavity collapses after the passage of projectile, in a short time but due to inertia it pulsates and it is only after a few pulsations that the temporary cavity finally closes down to permanent cavity but in the meanwhile extensive damage is caused to the tissues. 3. The major damage to the tissues is caused by the fast moving projectile which compresses and cuts the tissues in front and on the sides causing the permanent cavity and the extravasation of the tissues along the permanent cavity. The cut tissues are thrown away from the track, while, the compressed tissues are violently thrown against other tissues and are badly lacerated. These body tissues form the extravasated zone. The volumes of the permanent cavity and zone of extravasation are 0.32cc. and 3.75 cc. for every Metre-Kilogram energy transferred. ‘Explosive’ wounds are usually caused by service and sporting rifles. The striking velocity must be above 600 metres per second to cause such wounds.

In the fourth zone the velocity of the projectile is very high, above 1100 metres per second. Very few cartridges are made which propel projectiles approaching or having velocities of the above order. Consequently there is no detailed study of the wounding effects of such projectiles. However, it is mentioned that the effect of the projectile on the game is instantaneous death—as if the game has been struck by lightning. Once a prairi dog was hit by a projectile travelling at 1100 metres per second. The projectile hit the dog in the right fore paw. It killed the dog instantaneously. A modern cartridge developes a velocity of about 200 to 1400 metres per second. These velocities are developed only if the powder is allowed to burn ina

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confined space. If the burning is not confined, the projectile is pushed out as soon as the pressure inside the cartridge case is sufficient to open the mouth. This pressure ordinarily is insufficient to propel the projectile at velocity sufficient to kill persons. If such an accident is reported, it is probably fake. Murder lurks behind the story.

9.10.2.3 Constructional features The constructional aspects of a projectile has profound influence on the wounding effect. The main determinants of the constructional features, are: proper penetration and adequate tissue de.uage. Proper penetration of the projectile in addition to velocity, depends upon its proper shape and structural material. The ideal shape, to overcome resistance of air, for the projectile has been found in streamlined bullets. They have been discovered after experimenting

with spherical balls, cylindrical bullets, cylinder-conoidal bullet, boat-tailed bullets, etc. The sharpness of the pointed nose—spitzer nose, of the projectile helps in greater penetration. The ideal projectile (streamlined) needs extreme care to manufacture so that

the centre of gravity coincides with the centre of the shape (form). If the two are separated even by . 0025 centimetre the projectile will strike about 25 centimetres away from the target at 600 metres. The stream lined bullets, therefore, have not become popular and are not used in actual practice. Most of the projectiles, therefore, have flat base or are boat-tailed. These projectiles have excellent penetration power. If the projectile is hard (inflexible) and has sufficient sectional density, it will

pierce the body (skin, flesh and bone) without getting damaged. For this purpose bullet has a heavy core, made of lead, and it is covered with comparatively hard material, like copper. The lead core gives proper sectional density to ensure proper ballistics. The envelope ensures proper penetration. The tips of projectiles may be weak. It may be hollow, exposed or cross-cut. The envelopes may have different thicknesses at different places. Such projectiles are called expanding bullets. They expand on striking and cause extremely serious wounds having almost immediate shocking and hence stopping powers. The expanding projectiles are not intended to be used against human beings. But criminals seldom bother about such niceties. In the famous Kairon murder case, one of the victims was hit with a soft point high velocity projectile. It hit the person on one side and created exit hole on the other side. The whole mass inside appeared to have been torn out. The exit hole was several centimetres in diameter. Only the jacket found stuck in the spinal cord was recovered. (CH) The constructional features of bullets have undergone a seachange. The modern service and assault rifles of the worid usually have: ¢ Smaller diameter ( ~ 5.5 mm).

¢ High velocity (> 900 m/s). * Full jacket.

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¢ Hollow point.

¢ Steel core alongwith the lead core in some. They cause devastating wounds. For example M16, USA service rifle bullets expand so much (explode) in the body that the tiny lead fragments give the appearance of a snow storm on X-ray photograph.

9.10.2.4 Range

The increasing range of fire in addition to reducing the velocity of the projectile, influences the wounding effects in the following ways: 1. The lighter ejecta is dispersed. It does not reach or enter the target. 2. The initial instablity of the projectile is overcome. The powder gases, smoke, semi-burnt or unburnt powder residue, metallic particles, dirt and wads, if any, constitute the lighter ejecta. They are important in the wounding effects only when the firearm is fired, pressed to the skin (contact wound) or from very close range (near contact wounds). Under these

conditions, the ejecta enters the body en masse. The expansion of the gases take place inside the body. The wound has the following characteristics:

¢ The damage inside gives the appearance of an explosion. The damage may not appear so extensive outside. e Often there is no charring, blackening or tattooing on the outer margin of the injuries. The phenomena is seen inside the wound. ¢ The outcoming gases evert the margins. The injury may look like an exit wound. Sometimes, the damaged or undamaged organs (like the intestines) may protrude from the wound. e If the wound is at a place where the skin is close to the bone, some powder gases may enter in between the skin and the bone and tear the skin in a characteristic fashion to give ragged wounds. The bone, in addition to crater formation suffers from multiple fractures. ¢ The shot charge will spread inside the body though there is only one entrance hole. ¢ Wads of a shotgun can inflict fatal injuries from close range. ¢ Even if there are no projectiles and the powder has burnt in a confined space the blast alone may cause fatal injuries. The effect of the instability of the projectile in the initial stages of its flight on the nature of the wounds is immense. The projectile is wobbling, it may not, therefore, strike in nose-onward position. Instead it may strike in side-onward position, producing what is known as ‘key hole’ wound. If the projectile ricochets or brushes against some light material, it may also produce key-hole at the target. The extent of instability of a projectile depends upon a number of factors dependent not only on the projectile, but also on the firearm and the cartridge.

9.10.3 Identification The necessity of identification of firearm injuries may be evident from the following cases:

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_ Ina murder trial, a number of injuries were found on the thigh of the ‘victim’ who had allegedly killed the deceased in self-defence. The injuries were circular holes; 3 mm. in diameter and about 2 cm. deep. The pellets had allegedly bounced out of the holes after striking the bone. The impossibility of bouncing out of the pellets from 2 cm deep flesh was pointed out. The defence story was disbelieved and the ‘victim’ was later convicted for murder. (CH) 2. Ina multi-murder case the convicted persons filed an appeal on the plea that the eye-witness on whose evidence they were convicted, was not present at the scene. The presence of the eye-witness had been proved by the prosecution through firearm injuries which he had allegedly received at the scene. The doctor had extracted some pellets from the wound. The extracted matter proved to be sand and grit. The injury was probably fake. The High Court acquitted the convicted persons. (CH) . Some years ago a culprit faked an injury on his person and produced himself before a doctor. The doctor after examining the injury extracted a buckshot. He informed the police. The police registered a case under section 307 IPC. The culprit was allegedly an unknown person.

After a few hours, the police found a dead body in the same village to which the first ‘victim’ belonged. General inquiry led the police to the fact that the deceased and the ‘victim’ were dead enemies. The investigating officer suspected that the ‘victim’ probably was finding a foolproof alibi for the time of murder. It proved true. The buckshot extracted from the injured had never been fired from any firearm. (CH) . In a murder case the doctor recovered two pellets from the victim. The pellets had flattenings on the surface. There were six flat surfaces in three pairs on each pellet. In each pair the two surfaces were parallel. It could happen only if the pellets were hammered by changing the hammering position thrice in each case. The injuries were consequently fake. (CH)

Fig. IX-21 The case of hammered pellets. The fraud of the alleged ‘victim’ was revealed by the presence of 3 pairs of parallel surfaces.

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Firearm injuries are identified either from the extraneous deposits or from the characteristic damage produced by the shots. Extraneous deposits include absorption of carbon monoxide, blackening, tattooing, dirt ring, presence of foreign materials: wads, projectiles or their fragments. Characteristic damage includes burning (also known as charring or scorching), contusion, characteristic through and through wounds, and special wounds such as explosive wounds, ragged wounds, rat holes, etc.

The above facts should be known to the persons who carry out the postmortem examination. As their importance in the reconstruction of crime is immense, they have to be understood by all concerned.

9.10.3.1 Pink coloration If a shot is fired from a very close range or in contact with the skin, some carbon monoxide (produced in the combustion of propellants gets absorbed by the skin and flesh. It gives pink coloration around a wound which indicates a firearm injury. 9.10.3.2 Blackening | Blackening is caused by smoke deposit. Smoke particles are light. They do not travel afar. Therefore, smoke deposit, i.e., blackening is limited to a small range. The range varies with:

1. The powder.—Black powder gives denser blackening and upto a longer range than semi-smokeless powder which in turn gives denser blackening than the smokeless powder. The quantity of powder also matters.

2. The firearm.—Some firearms permit complete and proper combustion. They gives less smoke. 3. The ammunition—Ammunition deteriorates with age. Old ammunition consequently gives more smoke. All types of ammunition, even the one containing smokeless powder, give smoke. The colour of the smoke is grey though it may look blackish grey in black powder and light grey in smokeless powder. Blackening does not mean intense black deposit of carbon particles. In a murder trial the defence counsel cashed upon the ignorance of a medical witness. The medical officer found blackening around the wound, which he believed to have been caused by black powder (and not by smokeless powder). He stated accordingly in cross-examination. The cartridge involved contained smokeless powder, while the counsel got confirmed from ballistics expert. The counsel argued that: © The injury was caused by cartridge containing black powder. ° The suspect cartridge contained smokeless powder. © The suspect, therefore, could not be the culprit.

He got acquittal for the accused in the trial court. The State went in appeal. The High Court called in expert help.

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The expert showed that blackening was caused by the cartridge of the same make and batch containing smokeless powder from the alleged distance even when the target was covered by the clothes worn by the deceased, by actual experiments with the same gun. (CH) 9. 10.3.3 Tattooing

.

Tattooing is also known as peppering or stippling. It is the deposit of unburnt or semiburnt powder particles under the skin. The particles are slightly heavier than the powder particles. They are propelled to slightly longer distances. Tattooing, ordinarily, cannot be removed with a swab.

9.10.3.4 Dirt ring Dirt is deposited by some projectile around the wound. The projectiles often carry grease on them. Dirt gets collected on the grease which, in turn, is deposited around the wound, when they enter the body. In shotgun ammunition, shots are rubbed with graphite. A small amount of graphite is carried by the shots, which they deposit around the hole when entering the body. Dirt may be picked up by the projectile while passing through a medium (clothes or mud walls), or, in ricochet, from the surface from which the projectile

has ricocheted. This dirt may be deposited around the entrance hole. Existence of a dirt ring indicates the entrance side of a firearm injury. It does not give range. 9.10.3.5 Foreign materials Projectiles or their fragments and sometimes wads are found inside the body. Their presence not only permit the identification of the firearm injury but they also permit a fairly reliable guess of the firearm and the range.

In Kairon murder case, in which a former Punjab Chief Minister and three others were killed, the culprits could not be traced for sometime. It was possible, in the meanwhile, to determine the nature of the firearms (which were: a .32 revolver, a .38 revolver, a .30 rifle and a 12 bore shotgun) from the projectiles and their fragments recovered from the deceased. (CH) 9.10.3.6 Charring Charring (also called scorching, burning, singeing, etc.) is caused by flame or hot gases produced in the combustion of powder. The same is found in shots fired from very close ranges. The site, the shape and the extent are characteristic. Charring produced by firearms can be distinguished from burning by other modes.

Charring is often confused with blackening, tattooing, dirt ring or even contusion rings which are described as charring. In charring the body tissues are affected by heat. The effects are different. Blackening can be removed with a cotton swab. Charring cannot be removed in this way. It is distinguished from other phenomena by careful physical and microscopical examination.

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9.10.3.7 Contusion The edges of a wound are contused by the impact of the projectile. The colour of the contusion is from reddish dark to bluish black. The colour varies some what with the age of the injury. Contusions take the form of a belt around the wound. It is of uniform width.

The contusions are differentiated by microscopical examination of the tissues. The tissues are ruptured and swelled (extravasation). There may or may not be any extraneous deposit.

9.10.3.8 Characteristic wounds Through and through wounds, ragged wounds, rat holes, explosive wounds and key holes, by their characteristic nature, allow, in most of the cases, determination of the fact that they have been caused by firearms. 9.10.4 Postmortem Reports

The characteristic deposit and damage for the identification of firearm injuries are available to the medical officer carrying out the medicolegal examination. Others, who are vitally interested in the study of the firearm injuries, the court, the counsels and the firearm expert, do not and cannot always observe the injuries. They have to depend upon the doctors. Worse still they have often to go only by the scanty descriptions made by them. The method of recording and collecting firearm injury evidence must undergo substantial improvements if we are to identify and evaluate firearm injury properly. In our parts both the judiciary and the counsels are well aware-of the definite nature of the evidence relating to identification of firearms in respect of the fired ammunition. They seldom question it. Now the pressure is on correct evaluation of the firearm injuries to interpret whether they are firearm injuries at all. If so what is-the-» re and calibre of the weapon. Could injuries indicate the sequencéof events to verify a given hypothesis? Or, what is the range and direction of fire, etc.? Consider the following cases: 1. The injuries on a deceased was a rat hole about 5 centimetres in diameter surrounded by small orifices. The alleged distance of fire, for the only shot fired was about 8 metres. Certain books on medical jurisprudence indicated that separate holes for separate buckshots (pellets) are formed from 4 metres onwards. The defence argued that small orifices might have been caused by the shot fired by the accused but the rat hole—the killing shot—must have been caused by some other person. The accused 1s, therefore, not the murderer according to the prosecution evidence itself.

Is this argument correct ? (CH) 2. The number of shots fired by the accused as observed by the eyewitnesses were two. The evidence given by the medical officer indicated four shots. Ifthey were really four shots, two shots must have been fired by some other person. This second person could have caused the fatal injuries. Why prosecute the accused alone? (CH)

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id fe

4

Fig. IX-22 Was the victim shot twice or four times? Extensive experiments showed injuries 1 to 4 were results of one shot

3. A dead body was discovered in a jungle. A shotgun and a bandolier was lying close by. The person had one entrance wound in the right iliac region. The injury had gone steeply upward and inward. The charge of a 12 bore cartridge was found lodged near the left armpit inside the skin. The relatives alleged murder. Could it be suicide or accident ? Or, was it murder ? (CH)

The firearm injury evidence is acquiring increasing importance. It is, therefore, esential that the data collected is correct and adequate. It could be done in the following ways. Z. A firearm expert should be present in cases involving medicolegal

examination of the firearm injuries. Z. Medical officers who carry out medicolegal work should have thorough

training in relevant aspects of forensic ballistics. It shall be big wastage to train all the medical officers for the purpose. Only specified doctors (police surgeon, medicolegal experts, forensic medicine experts), should handle medicolegal work. 3. The medical officers while carrying out medicolegal examination should collect and record evidence keeping in view the following:

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* The clothes of the victim should be collected invariably. They should be packed, stored and transported in such a way that the evidence on the same does not get destroyed in the processes. They should be sent to firearm expert in all cases. In a murder case, some injuries on the deceased were skin deep only. The defence counsel argued that it was so because the projectiles (buckshots) had spent their force and consequently were fired from a long range. The fact contradicted the version of the eye witnesses who alleged shooting from less than three metres. When the clothes were examined, not only exit holes gave away the lie, but the presence of nitrite particles around the entrance holes indicated a close range. The injuries were skin deep only because the shots had grazed the skin only (CH)

¢ The victims of shooting be X-rayed invariably to locate the projectiles before the postmortem. e All the firearm injuries should be photographed alongwith a scale before and after cleaning the wounds. The washings should be sent to a forensic science laboratory. ¢ Contusion, dirt ring, blackening, tattooing and scorching should be distinguished by chemical and microscopical examination. They must be recorded in writing at the time of medico-legal examination.

¢ Dimensions of each injury and interdistances between various injuries be recorded properly. An entrance wound should be studied and described more carefully.

¢ The projectile track should be followed from the entrance wound to the exit wound in all fatal cases. The damage should be carefully assessed. If there are any broken bones in the track, they should be mentioned. ¢ The entrance, the exit and the internal track should be located carefully on the diagrams so that height, angle, direction, deflections (if any), dimensions, broken bones and tracks of secondary projectile (if any) could be ascertained from the diagram itself. More than one charts may be used, if necessary. ¢ The whole projectile charge including wads (if any) should be recovered undamaged. They help a lot in the reconstruction of the crime. The positions of the various items or pieces recovered should be indicated on the diagrams and described fully. ¢ The medical officer should use layman’s language to describe involved body parts and processes. In a murder trial it was necessary to determine the site of entrance, exit wounds, etc. to reconstruct the sequence of events. The medico-legal report was covered in such technical jargons that no head or tail could be made out. The local civil surgeon also failed to locate the various injuries. The original medical officer was not available. Ultimately the effort to disgorge the contents of the report was given up. (CH)

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The outline diagrams of the body in which injuries are shown need change. The background in diagram kept blank at present should have millimetre graph printed in very light blue or green ink. If the height of the person is known the graph will help to find out: 1. Height of the injury. 2. The exact location of the injury. . The interdistances between the injuries. . The direction and size of the internal track. The dimensions of the injuries, though it should be described also. . The area covered by the various injuries—important to determine fw no the range in shotgun injuries. 7. Deflection of the projectile, if any. The importance of human sketches on graph papers cannot be over emphasized. It can improve the understanding of the medico-legal reports tremendously. The introduction of these graphic sketches is all gain. There are some indirect advantages also. The officers carrying out the medicolegal examination will be more careful in describing the nature and location of the injuries. Besides, the troublesome descriptions in technical terms, will not be needed so much in the reconstruction of the events.

9.10.5 Evaluation Proper evaluation of injuries ascertains whether the given injuries are: 1. Firearm injuries. 2. Fatal or non-fatal. 3. Post-mortem or ante-mortem.

4. Such that the person could carry out the alleged activities after receiving the injuries in question. 5. In consonance with the given sequence of events, the range of fire, the number of shots fired or the number of firearms used, etc.,

In addition, the evaluation of firearm injuries can indicate the nature of the firearm and the age of the injuries in some cases. 9.10.6 Injury

The projectiles fired by the firearms have certain shapes, velocities and kinetic energies which differ from most of the other agents causing injuries. The shape of wounds, the destructive effect on the tissues, presence of foreign bodies (of specific shapes and composition) and the track help to identify the given injury whether it is due to firearm or not, as already discussed. 9.10.7 Nature of Firearms The wounds indicate the nature of firearms used. The firearms commonly

encountered in criminal investigations vis-a-vis their injuries are given below:

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9.10.7.1 Pistol and revolver injuries

Pistols and revolvers fire low velocity projectiles, the velocities vary from two hundred to four hundred metres per second. The entrance hole and the track correspond roughly to the diameter of the projectile. The exit wound, when formed is often larger in size. Usually jacketted bullets are used in pistols, whereas in revolvers both lead and jacketted bullets are used. When fired from close range, former often form exit wounds. Sometimes they are obstructed by bones and retained in the body. Lead bullets seldom form exit wounds. Both types of projectiles are damaged on impact with bones. 9.10.7.2 Rifle injuries

Rifles fire projectiles with muzzle velocities of about 800 metres per second or more. The striking velocities are high to cause devastating ‘explosive’ wounds. The projectiles often fragment. 9.10.7.3 Shotgun injuries

The nature of the injuries caused by the shotgun is greatly altered by the range. Contact or near contact wounds look like explosions. Close range shots upto about three metres give rat holes varying in diameter from about 2 to 6 centimetres. From about 2 metres to 10 metres the projectiles may form a rat hole surrounded by individual pellet holes. Beyond 10 metres most of the shots form separate holes. The buckshots may separate earlier. For example, n L.G. cartridge may give individual injuries for each shot from a range of about 2 metres. The area covered by the pellets vary with the range and the choke characteristics of a gun. ’ Ordinarily, the shotguns projectiles do not form exit holes except when buckshots are used from close ranges. 9. 10.7.4 Muzzle-loading firearm injuries

The muzzle loading shotgun is the only muzzle loading firearm used in our country to any extent. The nature of the injury depends upon the quality and the quantity of the powder and the projectile charges, adequate wading and proper initiation. The end result may be as good as in a standard shotgun or as poor or poorer than in a zip gun (improvised firearm). 9.10.7.5 Zip guns injuries

The nature of injuries in improvised firearms vary from one firearm to another. As the firearms differ, no generalizations are, therefore, possible. 9.10.8 Postmortem or Antemortem Injuries

It is necessary to establish that a given firearm injury is antemortem to refute the defence allegation that the given firearm injury is postmortem, introduced by the prosecution to strengthen the evidence against the suspect. Antemortem injuries bleed profusely while postmortem injuries bleed little

unless some blood vessel is punctured. If the injuries are made on a dead body which is still hot, it may bleed somewhat. Besides, older injuries may have inflammation or healing scars.

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9.10.9 Fatal Injuries

A firearm injury is often fatal due to hemorrhage, shock or other complications. However, if a vital part (brain, heart, spinal cord or aorta) is not affected and the injury is attended to immediately the person may survive especially if there is no serious loss of blood. 9.10.9.1 Extraordinary acts

A victim sometimes performs certain extraordinary acts before he collapses. The defence in such cases argues that the victim must have died of some cause other than the firearm injury, because the latter should have at least stopped the victim immediately. This argument is not justified. The human body (and mind) sometimes behave in an extraordinary way. They can perform acts which are considered improbable on medical considerations. 9.10.10 Age of Injuries It is sometime required to find out the age of the injuries. It is ascertained from:

1. The quantity of blood shed when the injury is still bleeding. 2. The inflammation or putrefaction of the injury. 3. The extent of healing. The treatment given has important bearing on the extent of healing. Only an experienced doctor can estimate the age of the injuries with any accuracy.

9.11 RECONSTRUCTIONS The reconstruction of the sequence of events in a shooting case is becoming as already mentioned, increasingly important. The defence often attempts to discredit the prosecution version and vice versa. As the circumstances of each case vary, only general principles can be mentioned. However, the following are the basic factors which must be considered to verify a given hypothesis.

9.11.1 Scene Get a clear picture of the scene of occurrence. For this purpose get complete description of the scene with sketches and photographs. Whenever possible, visit the scene. In a recent case a girl was killed by a boy in the house of the latter. As the two belong to different religions, there was at once a great agitation. Preliminary police investigation, however, led to the view that it was probably an accident. Immediate proof, however, was needed. The public had to be convinced one way or the other. The main inexplicable points relating to firearm evidence which led to public suspicion, were: ¢ The left side of the face was completely blown off. It did not look like a firearm injury at all. It looked as ifthe face has been either blown off with an explosive or battered with some heavy irregular instrument. ¢ The body of the girl was found in a room whereas some marks of projectiles were found outside the room on a wall, almost ninety degrees to the alleged line offire.

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The following evidence was collected: ° The head of the girl was X-rayed. Most of the charge of a 12 bore cartridge was located inside the head. e The pattern of blood stains flesh and bone pieces, fired wads and pellets revealed the trajectory so truthfully that the same could be understood even by the representative of the public and marks on the outer wall could be explained. The pellets which produced marks outside the room, had been deflected from the target after striking bone and gone out of the window. The tell tale marks produced by blood, bone and skin pieces indicated the path of flight of the potential trouble maker projectiles. (CH) 9.11.2 Photographs of the Scene The photographs of the scene of occurrence must be obtained and studied

carefully: In an alleged suicide the actual examination of the articles at the scene and the photographs showed following discrepancies in firearm evidence: The projectile after coming out of the body was resting near the muzzle of the firearm. Later the dent, the bullet had made, was discovered elsewhere. The firearm (a revolver) allegedly grasped in cadaveric spasm in the hand was found to have a live cartridge at 12 O'clock. There should have been a fired shell, instead, in this position.

The photographs and material exhibits records completely contradicted the suicide theory of the death. (CH)

9.11.3 Victim’s Clothes The clothes of the deceased

or the injured must be examined

carefully,

preferably, by putting them on to mannequin. In a murder trial the prosecution story alleged that two shots were fired by two persons one from the back side and one from the right side. There were three wounds described by the doctor on the deceased. One was on the left side one on the right side and one was on the back (postmortem report). The doctor had not indicated which of them were entrance or exit wounds. It was therefore, decided to examine the clothes. On the shirt there were only one hole. It discredited the prosecution version. (CH) 9.11.4 Medico-legal Report

The medico-legal report along with the statement of the doctor with crossexamination, re-examination, if available, should be studied carefully. A dead body was found in a jungle. The body was identified. The deceased had gone on the previous day for hunting. The body was found to have one gunshot injury on the upper right part of the abdomen just above the hip bone . The direction of the injury was steeply upward and inward. All possible alternatives were considered and it was found that the injury could be caused only in two positions. In one, the gun could have gone off when the person

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was standing with his gun resting on the ground on the right hand side and the muzzle touching the situs of the injury. In second position, the injury could be caused when the person was lying on the ground and a second person had to fire at him, also from a lying position. As the second alternative was illogical, only the first one could have actually happened. The gun was found prone to accident. The contention of the relatives of the deceased that the victim was murdered, was rejected. (CH)

A medico-legal report without diagrams is incomplete. The diagram should be got prepared from the doctor who had carried out the medico-legal examination.

Alternatively, the help of some other medical officer who has sufficient experience of the work should be obtained to prepare the diagrams. If the medical officer had taken radiographs to locate the projectiles and the bone fractures, the radiograph or the copies of the radiographs should be obtained.

9.11.5 Arms and Ammunition The firearm and the recovered ammunition, live and fired, should invariably

be examined. After the theoretical reconstruction, experimental reconstruction should be carried out. It not only confirms the thesis, it also helps to convince the court. In an allegedly suicide case, the police recovered a .32 revolver from the scene of occurrence. The bullet recovered from the body of the victim was of .38 calibre. It could not have been fired from the firearm. (CH). In another case, a felt cushion wad was recovered from the body. The cartridge case allegedly recovered from the scene of occurrence, was of a make in which paper cushion wads were used in cartridges instead offelt wads. (CH) Once a 16 bore wad was recovered from the body of the deceased while a 12 bore gun was suspected to have been used. (CH) In a murder trial the deceased had a number of injuries. There were three skin deep abrasion on the left shoulder, one rat-hole on the cheek near the ear and one through and through injury below the left jaw. The medical officer in crossexamination indicated that these injuries had been caused by three shots. According to eye witnesses only one shot had caused these three sets of injuries. It was, therefore, essential to establish whether the injuries were caused by one shot or three shots.

The pattern and direction of injuries were carefully studied, The clothes worn by the deceased and the projectile charge extracted were examined. From the data, it was found that the injuries could be caused by one shot only. If the cartridge containing L.G. shots was fired when the head of the victim was turned towards the left. The pattern of injuries could be duplicated from one to about three metres on a model. The results were demonstrated in the High Court. (CH) In a recent case, a person started examining a loaded self-loading pistol. It was open space. The person pressed the trigger once or twice. The firearm did not go off. In the meanwhile, the owner who was bathing nearby, saw the man handling

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the pistol. He came running and started snatching the pistol. It went off and killed the owner. Originally murder was suspected. The firearm was examined. It was found defective. The firearm should have worked only when the safety catch is pressed in the grip and the trigger is pulled. In this case the person pulled the trigger without pressing the safety. While snatching the pistol, the safety grip was accidentally pressed, the pistol went off, though the trigger was not pressed. Normally it should not have happend ifthe weapon were not defective. (CH)

9.11.6 Basic Ballistics Basic ballistics of the firearm and ammunition in question should be known. 9.12 DURATION OF FIRE It is useful to know when a particular firearm was discharged. But it is difficult to fix the correct time. The following observations are helpful. 9.12.1 Gunpowder Residue

In black powder ammunition, discharge residues undergo chemical changes with the passage of time. It is possible to form a rough estimate of the time of fire from those changes.

Hydrogen sulphide gas formed is detectable in the barrel for about twentyfour hours, provided the breech end of the firearm is not opened and the muzzle is capped. Sodium sulphide formed changes into sodium sulphite. The change takes place in three to four days. Sodium sulphite ultimately changes into sulphate. The change is complete in about seven days.

9.12.2 Carbon Monoxide If carbon monoxide is detected in the barrel, it is a sure sign of recent fire. The

gas can be detected only for a few hours. If the breech end is opened or the barrel is blown through, no gas is left. Long barrelled firearms retain the gas for longer intervals. 9.12.3 Mercury

Mercury is obtained from mercury fulminate, used in primers. When a cartridge containing fulminate is fired, mercury is deposited in the barrel. It estimation, quantitative and qualitative Its slowly. evaporates. spectrographically; gives some idea about the time of fire. The weather conditions and the way the firearm is kept affect the results. In practice the method is extremely difficult. Mercury fulminate is used in most of the cartridges made in India.

9.12.4 Bloodstains and Flesh Bloodstains and flesh may sometimes be found on firearms in contact or near contact wounds. The age of the stains or flesh can indirectly indicate the time of fire. | 9.12.5 Rust If a barrel is not cleaned and oiled after firing, it starts rusting. The extent of rusting depends upon the nature of the steel, the nature of powder, the cap

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composition, the weather conditions (temperature and humidity) and the length of time, it has been allowed to rust. The amount of rust may, therefore, permit

rough estimation of the time of fire. The humidity and temperature of the atmosphere and presence of catalysts (like potassium chlorate and other salts which are present in powder residues affect the rate of rusting tremendously. They should be taken into consideration for correct conclusions.

9.12.6 Dust The amount of dust deposit gives an idea when the firearm was used last. In a recently fired firearm there should be no dust deposit. The weather conditions and the way the firearm is kept, affect the amount of dust deposited. 9.12.7 Nitrite Variations The gunshot residues of smokeless powder left in the firing process (in barrels, in cartridge cases and on bullets and pellets) were investigated in the author’s laboratory. The residues have been found to contain an unstable compound which gives nitrite test. The amount of available nitrite decreases with the passage of time. It is detected with the usual diazo reaction and the variations in its quantity are estimated through the variations of colour intensifies of the dye formed. It is possible, with this technique, to estimate the time of fire within certain limitations. It is hoped that the technique proves useful to date the firing of the guns, the cartridges and even the bullets. This may indirectly lead to determine the time of death in cases involving firearms.

9.13 MUZZLE-LOADING FIREARMS Muzzle-loading firearms are frequently used in the commission of crime. The following evaluations are possible when they are used. 9.13.1 Percussion Caps

Percussion caps are normally blown to small pieces. In some cases, however, they may retain identifiable marks. Test percussion caps are fired, without powder and projectile charge. The hammer marks thus obtained, are studied and matched in the usual way. 9.13.2 Projectile Charge In muzzle-loading guns, often home-made pellets and buckshots are used. The lead of the charge is analysed for trace elemental profile. The profile is compared with similar profile obtained from the lead recovered from the house of the accused. Due to presence of trace element as impurities, often the common source is identified. If the buckshots have been moulded by the accused at home the mould marks are available from the mould or from the buckshots recovered from the accused which are compared and identified.

A few years ago, a ball was recovered from the body of the deceased. It was homemade ball. Some balls and the moulding device was recovered from the house of a suspect. The mould marks found on the incriminating ball when compared with the marks on the test moulds prepared from the moulding device confirmed the common source of crime and test balls. (CH)

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Sometimes the ball may carry ram rod marks. Comparison of the marks with the test marks taken on lead or plasticine may identify the common source.

9.13.3 Wads Rags or pieces of paper are used as wads in muzzle-loading guns. The wads fall on the scene of occurrence. Comparison of the rags or the pieces of paper with those recovered from the house of the suspect may sometimes indicate the common source of origin.

9.13.4 Powder Charge Gunpowder is used as propellent in muzzle-loading guns in India. The

examination of the gunpowder recovered from the scene and from the suspect

may indicate common source. 9.14 IMPROVISED FIREARMS The improvised firearms are also known as country-made firearms, home-made firearms, pipe-guns, zip guns, etc. These firearms are made by the ordinary blacksmiths to no particular specifications, nor any standard raw material is used. These weapons have short span of life and most of them are extremely dangerous. The word “improvised” indicates the nature of the firearm. It is more appropriate to refer to this class of firearms as Improvised Firearms, rather than dubbing them as country-made firearms, etc. However, the names: ‘countrymade’ and ‘improvised’ are being used in this country frequently. Both the names are being used in this discussion without any distinction. The country-made firearms are improvised by the culprits from readily available materials, either personally or with the help of a local blacksmith. The demand for the improvised firearms has increased so much, in recent times, that there are gangs of criminals in many parts of the country, who manufacture the improvised firearms on commercial scale. There is a considerable demand for these weapons in Uttar Pradesh, Bihar and in some border States and the demand is increasing. They are often manufactured to fire the ammunition which the culprit gets easily, either from the illegal market or from his friends. The simplest improvised firearm which has been used in a crime case, was an tron tube in which a .22 cartridge could be fixed. The firing was done simply by hammering the base head of the cartridge. (CH) The advent of the country-made firearms is the result of the stringent controls on the manufacture and sale of firearms and ammunition and also of the licensing policy for the firearms. No person in India can get a firearm licence and keep a gun unless his name is cleared by the police after the verification of his antecedents. Likewise, the ammunition can be purchased only by a firearm licence-holder, the quantity of which is limited by an insertion in the firearm licence itself. The culprits who need arms and ammunition tap the clandestine markets. Or, they go in for the improvisations. The trade in improvised firearm, in India, has also been promoted by the fact that the cost of the firearms, especially of handguns, is very high. The normal criminal cannot afford it. Hence the trade goes on flourishing.

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The country-made firearms, as already seen, are the non-standard firearms. They are not tested or ‘proved’ for their fire-worthiness. The weapons, therefore, are usually imperfect contrivances which are highly dangerous even to those who use them. Besides, they are also not amenable to the standard techniques

used for evaluating the forensic ballistics problems generated by them. The data pertaining to the standard firearms has no relevance in relation to the improvised firearms. 9.14.1 Importance

The firearms equalise the weak and tye strong. They spell death to those against whom they are used. The posséssion of the weapon thus confers a superiority to its possessor over those who do not possess them. They are, therefore, frequently used in the commission of crime, in settling scores with the opponents or cowing down those who do not possess firearms, or to frighten the victim(s) in crime situations. As the legal possession and legal trade is highly restricted, the needy clientele has to go in for the country-made firearms in a big way. So much so, that in India, a fairly large percentage of firearms used in crimes is of the improvised variety. The percentage varies from state to state, from about twenty-five per cent. to over fifty per cent. Therefore, these countrymade firearms, are of a great importance in criminal investigation work. The country-made firearms, involved in heinous crimes, provide clinching linking evidence. The evidence has, however, to be evaluated properly. Formerly, only limited evaluations of the evidence were possible. Fortunately, over the past decades new grounds has been broken and these very countrymade firearms provide practically the same evidentiary value as is possible from the standard firearms.

9.14.2 Classification The classification of country-made firearms cannot follow the classification practice of the standard factory-made firearms. They are classified with reference to the ammunition used in them. Thus, we have 12 bore firearms and .303 firearms. The former fire 12 bore cartridges and the latter the .303 cartridges. As the ammunition of the other types of firearm is not easily available and is very costly, country-made firearms for the other bores/calibres are rare, though some times revolvers of the .32 and .38 calibres are also seen.

The country-made firearms are also classified according to the manner in which they are fired. Thus, we have the shoulder firearms or the handguns. The country-made handguns are more popular as they can be conveniently concealed and carried. The country-made firearms, by and large, have smooth bore barrels, though some handguns do carry rifling, often in a crude form, more to satisfy the purchaser than to improve the ballistics of the arm/ammunition.

9.14.3 Characteristics Country-made firearms have the usual parts: 1. The Barrel

2. The Action 3. The Lock

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9.14.3.1 Barrel Country-made firearms have non-standard barrels. They are often pieces of iron or steel pipe used in the sanitary or electrical work. They are seldom manufactured by boring of the steel rods. The length of the barrel varies from about 10 centimetres to 25 centimetres in the case of handguns, and is about 60 centimetres in the shoulder firearms. The barrels of the discarded muzzle loading guns are also cut and used for the country-made 12 bore firearms. The following points are note-worthy about the barrels in such guns:— 1. The diameter of the bore/calibre seldom corresponds to that of a standard firearm. It varies from 1 cm to 2.5 cm psually. It may even vaty from one point to another in the same barrel. sah 2. The bore surface is seldom smooth. It may have nidEes,and valleys, protrusions, pits, etc.

3. The thickness of the barrel wall differs from one firearm to another. 4. The barrels often have a welded seam (to form a pipe made from a sheet) which is the weakest structural feature of the barrel. The barrels of the country-made firearms which are intended to fire .303 cartridges, have the following noteworthy characteristics:— 1. There is no rifling in the barrel. ie 3

2. The diameter of the barrel varies from 7 to 13 mm. It is not masbaiporhs 3. The barrel is usually thick but varies from firearm to firearm. —_ 4. The bore surface is rough. It carries pits and protgesions. ridgesand eae sbi valleys. The barrels of the other bores or calibre country-made firearinis have bartels characteristics similar to those mentioned above. The loose, rough and the non-uniform barrels are responsible for the varying ballistic performance of the ammunition from one shot to another. Improper materials, the presence of joints, protrusions, pits, etc., in the barrels make these weapons highly dangerous for the user. Interestingly, the weapon becomes less dangerous to the victim as the ammunition does not acquire the intended velocities. Both the aim and the range suffer drastically. However, they still remain highly dangerous at close ranges, at which they are used.

9.14.3.2 Chamber The country-made firearms usually do not have specially made chambers. In most of them the barrel end serves as the chamber and there is no special provision (leed) or separation of the chamber from the barrel bore. If the bore diameter is more than the diameter of the base of the cartridge, a special arrangement (some sort of adapter attached to the chamber end) is made to prevent the slippage of the cartridge into the barrel. In the extremely crude weapons the slippage is prevented by wrapping a piece of cloth or paper around the cartridge tube.

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The chambers of country-made firearms, if they exist, do not have the proper dimensions, nor do they have any arrangement for seating the cartridge

correctly. Consequently, the cartridge often rests loosely in the chamber, which is an important factor for varying ballistics given by the same firearm from one shot to another. The loose chambers also cause cartridge bursts. A tight chamber imprints the

chamber irregularities on the cartridge tube, which facilitate their identification especially in those cases where the percussion cap has been pierced or blown off.

Fig. IX-23 Short chamber of an improvised. 303 pistol, created chamber edge (leed) marks on the fired cartridges, which permitted identifications of the common source.

9.14.3.3 Action The hammer, trigger, and the firing pin (striker) are the important parts of the action mechanism. Often the hammer is cocked manually. It is held in the cocked position through a spring mechanism. When the trigger is pressed, it releases the hammer and the spring makes the hammer strike the firing pin with a considerable force. The firing pin, in turn, is pushed forward and strikes the percussion cap, thus exploding the cartridge. The main distinguishing characteristics of the action are:— 1. The firing pin is more or less a headless nail. In some cases, the head (of the nail) was also observed. It is propelled forward by the striking hammer and kept pushed in, in its new position. Often it is slightly longer than needed and pierces the percussion cap. Thus, gases leak backward. This reduces the forward propulsive forces and hence the velocity and the kinetic energy of the projectiles.

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2. The piercing of the cap complicates the identification of the firing pin mark on the cartridge case in respect of the firearm containing the firing pin. However, backward leakage of gases, through the pierced hole, permits better impact of the base of the cartridge with the breech face and hence better transfer of breech face marks on to the base of the cartridge. As the breech face of the country-made firearm is crudely finished, it carries numerous irregularities which leave their marks on

the cartridge case and are exploited for the identification of the fired cartridge. 3. In some cases the firing pin continues to be sails against the cartridge as there is no spring action to take it back. In such cases, when the cartridge is being taken out, the protruding firing pin scrapes the percussion cap and base of the cartridge. It creates the scrape marks which provide ample evidence to link the fired cartridges with the weapon from which the cartridge has been fired.

It is against this background that the identification of a fired cartridge in respect of the used country-made firearm is often easier rather than difficult. 4. The firing pin in a country-made firearms can be easily replaced. The clever criminals have at times replaced the firing pin or mutilated its original surface characteristics. The fraud does not help much. The breech face marks provide the necessary identification data.

Fig. IX-24 The firing pin of an improvised firearm would not retract. On opening the breech, it scraped the base. Corresponding scrape marks provided the identification.

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In an interesting case, a criminal, after killing his victim with a gun, went to a blacksmith and got the firing pin replaced. He also obtained a receipt from the blacksmith for the service rendered. Later on the weapon was recovered by the police. It was sealed in the presence of the accused (culprit) and a magistrate and sent to the laboratory. The forensic scientist still gave a positive opinion linking the cartridge case recovered from the scene with the weapon recovered from the accused. At the trial stage, the defence counsel produced the receipt (dated in between the date of murder and the date of handing it over to the police) of the repairs. The prosecution counsel was upset. The ballistics expert was called for the evidence. He clarified that though the firing pin marks differed on the test and crime cartridge cases, there was still ample evidence, in

the form of breech face marks, to link the firearm with the crime cartridge. The replacement of the firing pin, the fraud played by the culprit, did not succeed. (CH)

9.14.3.4 Lock The locking systems of the country-made firearms are notoriously unreliable. There is no proper barrel-stock coupling system. The locking device is often a nail and hole arrangement. In some cases the overlapping of parts make them unsafe. Often there is a gap between the breech block and the barrel. The gap promotes a cartridge burst. 9.14.4 Firing Process The poor construction of the firearms affects the firing process in the following ways:— 1. A longer and non-retractable firing pin pierces the percussion cap of the cartridge. It adversely affects the initiation of the powder charge,

modifying the intended ballistics of the ammunition. 2. The gap between the breech face and base of the cartridge allows the backward movement of the cartridge. Sometimes the cartridge bursts and seriously affects the development of adequate pressure, which in turn affects both the aim and the range. The extent of the effect varies from firearm to firearm and even from one shot to another shot. Metallic pieces may fly when a cartridge bursts, injuring the shooter or bystanders. 3. Over-sized chambers promote lateral expansion which affect the development of a forward pressure. In some cases the cartridge bursts, which seriously affects the ballistics of the ammunition. 4. An oversized barrel bore allows the escape of the gases from the sides. It affects the ballistics of the process in the following ways:—

¢ The gases escaping from the sides do not contribute towards the velocity of the projectiles. The kinetic energy of the projectiles is reduced. ¢ The escaping gases do not build up the pressure. It gives incomplete combustion. It reduces the velocity of the projectiles.

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¢ The projectiles, due to the above reasons, have lower wounding power. . The oversized bore prevents a continuous bullet-bore contact. The random contact may or may not imprint adequate contact marks on the bullet for the bullet-barrel linkage.

. In undersized barrel bore the weapon may burst, but it seldom happens. It is probably due to the incomplete combustion, backward movement of the cartridge, punctured percussion cap, bursting of the cartridge itself, etc., which help prevent the firearm burst. . The combustion of the powder charge of the ammunition meant for a long barrelled firearm is not completed in the short-barrelled countrymade firearms. Consequently, the semi-burnt/unburned powder particles in considerable amounts are also ejected along with the projectiles and other ejecta. . The incomplete combustion inhibits a complete and _ proper development of pressure. The projectiles, therefore, do not acquire standard velocities or striking energies. The wounding power of the projectile fired from a country-made firearm is considerably reduced. . The country-made firearms do not have rifling. The projectiles fired from them, therefore, do not acquire a spin. The aim and range are consequently, seriously affected, even when the bullets fired are of standard rifle ammunition. 10. As the semi-burnt/unburned powder particles are also hurled along with the other ejecta, the powder range may, thus, increase. The data for standard firearms do not hold good for the country-made firearms. Li. The rough bore surface may scrape the metal particles from the projectiles. They travel to a greater distance than those in standard firearms and may give false estimates of the range, if the data of the standard firearms is used for the range determination. a2: In an excessively large bore, the bullet may get bent due to striking against the barrel walls at an angle. The bent bullet may mislead the investigator as the bent bullets are also met within ricochet. je* In both the oversized and undersized bore barrels, the wads may get

damaged or marked in a particular fashion. The characteristic change may help the wad-firearm linkage.

9.14.5 Evaluation The evaluation of evidentiary clues in the improvised firearm follow the usual pattern for corresponding clues in the standard firearms. 9.15 MISCELLANEOUS

9.15.1 Freak Firearms Freak firearms do not conform to standard patterns. They usually give the appearance of some innocent articles. The shapes of a fountain pen, a walking stick, an umbrella, a handstick have been imitated to construct freak firearms.

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The basic requirements of a firearm, i.e., a barrel and a firing mechanism are present in all freak firearms. They fire standard or specially made ammunition.

Fig. IX-25 Cartridges burst on tubular part in defective make-shift firearms. The burst pattern are similar.

9.15.2 Toy Firearms

They look like standard firearms, but they do not fire standard ammunition. They fire blank cartridges or do not fire any cartridge. The firearms are used by children as toys, by actors on stage in theatrical performances, or they are used to frighten animals or human beings with or without firing blank cartridges.

9.15.3 Penetration Power Penetration power of a firearm and its ammunition is measured from the penetration of the projectile in soft pine wood. Wooden planks of soft pine wood 2.54 centimetres (1.0 inch) thick are stacked parallel to one another at intervals of 2.54 centimetres (1.0 inch). The firearm is fired from a standard close range of

152.4 centimetres. The total thickness penetrated is measured. Any air rifle or gun firing a projectile which penetrates 2.54 centimetres (1 inch) of soft pine wood, needs licence from the government, in India. Similarly, a handgun firing a projectile which penetrates 1.27 cm. (0.5 inch) needs a licence.

Penetration powers of air rifles vary. Those which cross the above limits need licence. Others do not. 9.15.4 Range of Firearms A firearm has a maximum range upto which its projectile can travel and then falls to the ground. It has a fatal range upto which if the projectile hits a vital part, it proves fatal. It has an effective range upto which a shooter can take aim

and make a kill. These ranges are given in the table below. They are only rough estimates. They vary with different firearms and ammunition even of the same type due to certain factors.

FIREARMS

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TABLE

Firearms ranges Firearm

Effective

Range in Meters Dangerous

Maximum

75 1000 200 75 75

1000 2000 1000 500 150

2000 Over 3000 1000 800 300

Pistols and Revolvers Service Rifles Rifled slug /ball Shotgun Buckshot Small pellets

9.15.5 Comparative Calibres It is useful to know comparative calibres of firearms expressed in millimetres, in hundredths of an inch and in thousandths of an inch. TABLE

Equivalent bore diameters

mm.

Hundredth of an inch

Thousand of an inch

5.6 6.35 6.5

22 25 Bas .26

.220 .250 .250 .260

7.0

.28

.280

75 7.62

.30

.300 .300

7.63

32

320

7.65 ft 7.9

ee» ako

320

35 38 40

.380

8.0 9.0 10.35 10.75

A445

Al AA

11.00

44 A5

445 455

11.2

A5

455

TL.2o

_

480

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9.15.6 Bore Diameters Shotguns are designated by bore such as 12 bore, 16 bore and so on. They do not convey the diameter measurements. It is useful to know the bore number and their diameters.

TABLE Bore diameters of various smooth bore gauge Bore or gauge 4 6 8 10 12 14 16 18 20 24

Diameter in inches 935 919 835 775 729 693 .662 .637 615 oe

Diameter in centimeters 2.67 2.334 2.121 1.968 1.852 1.760 1.682 1.618 1.562 1.47

9.15.7 Conversion Barrels In some firearms the same stock and action is used with ammunition and

barrels of different calibres. Such a firearm can mislead the investigation. A criminal may use a 9 mm. barrel and ammunition for the commission of a crime. Later he fits a 7.63 mm. barrel with the firearm. The investigating officer would feel that the 7.63 mm. firearm would not fire 9 mm. ammunition. He, therefore, searches for some other firearm whereas the same firearm has been used. He

should be vigilant about such possibilities. The fired cartridges, even though of different calibres, will bear similar marks from the firearm. The projectiles will bear different marks depending upon the barrel used.

9.16 PRESENTATION OF EVIDENCE A firearm expert who has the rank of an Assistant Director, Deputy Director or a Director of a Forensic Science Laboratory is not required to give evidence in person. The report of the expert, alone, is considered sufficient as evidence. Others have to appear in person to prove their reports. The expert giving the evidence, establishes himself as an expert, identifies the exhibits, he has examined in the laboratory, produces test exhibits prepared at the time of examination, gives experimental details and the conclusions from the observations made by him. He illustrates his conclusions by photographs, if necessary. 9.16.1 The Expert

An expert appearing in the court states his qualifications, training and experience, both in related field and in actual firearm examination. He makes

FIREARMS

481

mention of his research work and papers read in seminars, conferences and meetings and published in journals. The qualifications and experience are, thus, brought on record for the convenience of the court to decide whether the person giving evidence is an expert under section 45 of the Indian Evidence Act or not. Section 45 of the Indian Evidence Act requires that only those persons can give expert evidence who are specially skilled in the art or science, in which they are expressing their opinions. The idea of placing the qualifications of the expert on record is therefore, to show that by education, training and experience the expert is specially qualified to express an opinion on the subject in hand. If the court, prosecution and the defence do not question the bona fide of the expert, his evidence is accepted as expert evidence.

9.16.2 Exhibits The expert gives opinion relating to exhibits already examined by him in his laboratory. He puts identification marks on the exhibits at the time of the examination. The identification marks are ordinarily the case number (of the police station or of the laboratory) and the initials of the expert with date. If there are more than one exhibits.of the same type, they are given a different serial numbers. It is sometimes: not possible to put identification marks on some exhibits as they are too small. In such cases, the expert checks the seals and contents of the packets which carry the identification marks and testifies that it is the same packet in which the exhibits were returned. The original packing cover in which the expert had received the exhibits is also preserved and produced in the court. It is customary to send the cover alongwith the exhibits without destroying the seals thereon whenever possible In a murder case the prosecution produced a rifle in the court. When checked by the expert, the rifle did bear his initial but other identification marks did not tally. The police store was contacted again and correct rifle was brought. The rifle originally sent belonged to another case. (CH) The cartridge cases are marked as C/] to C/n, the bullets as B/1 to firearms as FA?/1 to FA/n. Other articles are marked A/I to A/n.

B/n and

9.16.3 Experimental Data

The expert gives briefly the details of the experiments and his observations. If he has prepared test exhibits, charts and photographs he produces them in the court. The expert also marks the test exhibits for future identification.

9.16.4 Illustrations The firearm evidence is technical in nature. The observations are made through microscopes. Correct idea about these experiments cannot be given by description alone. These observations, are, therefore, illustrated through photographs for the convenience of the court and the counsels. The findings of the expert are not based upon photographs. The photographs are not necessary for the expert to come to a conclusion. His main forte is microscopic examination. But a layman cannot carry out microscopy. Nor, it is convenient to carry microscopes to the court.

482

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No

9.16.4.1 Cartridge cases

A cartridge case may carry indentations or scrape marks. The latter are illustrated like striation marks on bullets. The former are illustrated with side by side photographs of crime and test cartridges, often taken through a comparison microscope on the same negative. The photographs are pasted on a chart. The prominent indentations are marked thereon by drawing lines and giving corresponding numbers. These indentations are explained by notes in the margin of the chart. All types of indentations (firing pin, breech face, chamber, extractor and ejector) are illustrated in the same way. Composite, juxtaposition and superimposed photographs are sometimes produced but they do not offer any superiority over the side by side photographs. In fact the former are sometimes confusing to the layman. He cannot appreciate the small dimensional differences and certain omissions and commissions due to difference in the pressures developed in different cartridges in the same firearm. The use of photographic illustrations in the court is decreasing. A judge cannot distinguish whether a photograph is taken from a crime or a test projectile. The judge has to depend upon the expert. If the expert is dishonest, instead of comparing crime and test exhibits inter se, he may use test exhibit in place of crime exhibit also and show matching data. The courts have realised this lacuna and now do not insist upon photographic illustrations in firearm cases.

The expert should be brief and methodical. But the brevity is not achieved at the cost of clarity. 9.16.4.2 Bullets Bullet identifications are illustrated through juxtaposition match. The prominent lines which show continuation across the dividing line on crime and test exhibits, are sometimes numbered on the dividing line. The matched striations are usually from one groove or land. But if the number of lines is inadequate, more than one lands or grooves are photographed.

The bullets may also be illustrated through side by side photographs. It is not possible to give the minimum points of similarities for a definite identification. In bullet identification, however, continuation of about ten lines across the dividing line should be considered sufficient, provided, there is no characteristic divergence which cannot be accounted for. The class characteristics

(the diameter

of the bullets, the number,

direction

and

the

dimensions of lands and grooves) must tally. Fine lines in land or groove marks are more important than big and deep scratches from the identification point of view. It must be kept in mind that a perfect duplication of marks is impossible even when the ammunition of the same make and batch is fired from the same firearm one after the other.

FIREARMS

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9.16.4.3 Range The patterns of scorching, blackening, tattooing, deposition of metal particles or of dispersion of pellets (in a shotgun) are illustrated through test patterns obtained on filter paper targets. Photographs of the pattern with scale are also

prepared for permanent record.

9.16.5 Medical Evidence A medical witness gives his findings and opinion about firearm injuries in a proforma prescribed for postmortem report. The report should have: 1. Complete description of the injuries with their positions, dimensions and directions. 2. Asketch showing the positions and sizes of the injuries. 3. Photographs of the injuries with scale. 4. The nature, quantity and position of the foreign matter (projectiles and wads), recovered.

5. Radiograph of projectiles in the body. 6. Presence or absence of contributery cause of death. For example, the person may be suffering from some disease. 9.16.6 Language of the Experts

The expert is expected to bring the technical evidence to the level of a layman. He achieves this by using simple, clear and understandable language. Technical terms are avoided as far as possible both in the report and in the statement before the court. If technical terms are used, they are carefully explained.

9.16.7 Cross-Examination Cross-examination of an expert should be aimed at proving a point. It should be properly thought out and the sequence of questions should be logical. Haphazard cross-examination may in fact damage the case. The counsel has ordinarily the following aims in cross-examination. 9.16.7.1 To discredit the expert witness

Incompetency of an expert is established through questions relating to his qualifications, training, experience, research publications, membership of societies and participation in seminars, conferences and meetings on the subject. It is futile to try to discredit a qualified, experienced and well-established expert. But it is criminal to accept an imposter as an expert. A few years ago one of the High Courts rejected the expert evidence because the ‘expert’ had examined only one case in twelve years. Besides, he did not carry out satisfactory tests, nor did he produce test exhibits so as to enable the court to come to its own conclusion. (CH) If the expert has a bad reputation, the evidence is discredited by quoting excerpts from previous judgments, where the evidence of the expert had not been believed and his honesty has been questioned.

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9.16.7.2 To clarify evidence

“Eye-witness accounts, medical reports and other physical evidence often conflict with the firearm evidence. Clarification and elucidations in such cases prove extremely useful. The defence counsel may point out apparent discrepancies in different types of evidence. 9.16.7.3 To prove inadequacy

The evidence produced by an expert may be incomplete or insufficient. If the defence counsel has detected these defects, he can successfully challenge the

expert evidence. For example, if test exhibits are not produced, the evidence may be got rejected, if the expert is unable to identify the exhibits as the same as were examined in the laboratory, the evidence becomes suspect and if the expert has

not produced the data on which his report is based and by which the evidence can be understood, the evidence is not accepted. 9.16.7.4 To elicit additional evidence Sometimes the additional to arms and ammunition may turn tables: 1. The variation in the manufacturers of the wad and the fired cartridge case brought an acquittal to an accused person. 2. The non-presence of the projectiles in the body and there being no exit wound proved fake nature of the injuries. 9.16.8 The Court and the Expert

An expert is to assist the court. He should, therefore, give evidence without bias. The court is to form its own opinion. It is, therefore, essential that the court gets clarification from the expert on all points which are important and where the expert can assist. It is all the more important in view of the fact that the prosecution or the defence counsels are interested in those facts only which are helful to their cause. By intelligent questioning, they may not allow an expert an opportunity to give complete facts. It is the duty of the court to get the same through court questions. In an interesting trial, the judge asked most of the questions (574 out of 825) from one doctor. In appeal, the appellant submitted that it was improper for the judge to take over the functions of the prosecution and defence counsels. The appellate court, however, rejected the contention and remarked that the judge is empowered to ask any number of questions, in any form relevant or irrelevant, vide section 165 of the Indian Evidence Act. (CH) A judge presides at a criminal trial not only to see that no innocent person is punished but also to see that a guilty man does not escape punishment.

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487

9.17 CASE LAW 9.17.1 Unsatisfactory Report

An expert opinion in firearm identification case should produce facts and not opinion which cannot be checked. Being the head of the Forensic Science Laboratory, the expert should know his responsibility towards the administration of criminal justice. He should give up the habit of producing his bald opinion. The expert should, if he expects his opinion to be accepted, put before the court all the material which induced him to come to his conclusion so that the court, although not an expert may form its own judgment on these materials. Bald opinions are of no use to the court and often lead to the breaking of very important links of prosecution evidence which are led for the purpose of corroboration.

The opinion given by Sri Prem Singh, Ballistic Expert, is bald and there is no data or reasons to arrive at the conclusion that the hole already there on the trousers of the injured could be caused by the pellet extracted from the calf of the injured. There is no opinion that the pellet extracted from the calf of the injured could be fired from the gun, Ex. 3, belonging to the appellant, nor could it be possible for the expert to give such an opinion because the gun was a muzzleloading gun. The size of the shot recovered from the calf of the injured is . 5075". There is no evidence of the size of the shots that were fired by the expert. The shot extracted from the calf of the injured was admittedly not fired by the expert in the test firing. Thus his opinion that the hole found on the trousers of the injured could be caused by the pellet extracted from the leg of the injured cannot be accepted. This opinion cannot be called as an expert’s opinion so as to corroborate the ocular evidence on record. If the opinions of the Doctor and of the Ballistic Expert are ignored then the only evidence left is of the injured himself and of the two witnesses namely Tara Dutt Bhat (P.W. 2) and Pani Ram (P.W. 3). As has been stated above Tara Dutt

Bhatt (P.W.2) is admittedly the uncle of the injured. He claims to have gone along with the injured to see she-buffalo at a nearby place and while returning this occurrence took place. But these facts are wanting in the FIR. Similarly, P.W. 3 Pani Ram has stated that the appellant was abusing him and assaulting him on the main road. The injured Hari Charan Bhatt and the witnesses Tara Dutt Bhatt who were returning after seeing-she-buffalo saw this occurrence and accosted the appellant that he had become old enough to come out on the road and hurl abuses. These facts are also wanting in the FIR. These facts appear to have been introduced in the evidence simply to make the presence of Tara Dutt Bhatt and Pani Ram probable at the time of occurrence. A suggestion has also been given to Pani Ram that he was ‘Halwaha’ of the injured. In these circumstances the oral testimony does not repose much confidence. It is also noteworthy that if the prosecution version is correct, the quarrel was going on between the appellant and Pani Ram. There was no occasion for the injured Hari Chand Bhatt to intervene and to pass any remarks against the appellant. This also makes the prosecution story highly unbelievable.

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Thus a close scrutiny and analysis of the entire prosecution evidence show that some facts which were wanting in the FIR were introduced in the evidence in order to make the presence of Tara Dutt Bhatt (P.W. 2) and Pani Ram (P.W. 3)

more probable. The occurrence took place in the evening on road when admittedly a large number of persons were present but none of them was examined. A great suspicion arises from the cuttings and over-writings in the injury report and Bed Head Ticket and also from the discrepancy in paras 4 and 5 of the Expert’s report, Ex. Ka-2. Opinion of Ballistic Expert cannot be said to be an expert opinion and has to be discarded outright. Enmity between the injured and the appellant is admitted. In these circumstances, the possibility of false implication of the accused cannot be ruled out.

Before parting with the case it may also be pointed out that the muzzle of the gun when it was recovered from the appellant was found full of rust which was indicative of the fact that it was not used at all since long. P.W. 6 Prem Singh, the Expert, did not make any chemical analysis of the ingredients found on the walls of the muzzle of the gun. He has vaguely denied that what was found on the walls of the muzzle was rust. It is significant to note that he has stated that the residuary remains on the walls of the muzzle after the firing of test shots on analysis were found to contain lead and nitrate. This is highly misleading. Analysis of such remains after firing of test shots was not needed. It is clear that the contents found on the walls of the muzzle before firing of the test shots were not examined and so it cannot be said whether it was rust or traces of ammunition. Probability that the muzzle of the gun was full of rust at the time when it was recovered from the appellant cannot, therefore, be completely ruled out. That negatives the prosecution case that it was from the gun of the appellant that the shot in question was fired. It has come in evidence that only one shot was fired. No pellets were found around the place of occurrence. Only one pellet entered the calf of the injured. It also seems highly improbable that the appellant would have chosen such an occasion to hit the injured when by his side in close proximity 3 or 4 other persons were also sitting. In view of the above discussion, the prosecution has not successfully proved its case against the appellant and so the conviction of the appellant on the evidence

on

record

cannot

be sustained.

The

appeal

must,

therefore,

be

allowed. 9.17.2 Photographs not indispensable The evidence of P.W. 26 is also attacked by the defence on the ground that he

has not taken the microscopic photographs of the pin marks of the cartridges and furnished the other data of the microscopic findings shown by the diagrams to satisfy the court that the characteristic pin marks of the cartridges M.O. 15 recovered in this case are found to be identical with that of the test fired cartridges. In the case of Ramanathan v. State of Tamilnadu, 1978 Cri LJ (SC) 318:

(1978 Cri LJ 1137), it is held by the Supreme Court as follows: 1. Gopal Singh Gorkha v. State of Uttar Pradesh, 1991 Cri LJ 1239 (HC).

FIREARMS

489

It is true that there has been considerable difference of opinion amongst the investigators regarding the use of photographs in a court for the purpose of illustrating the matching of the markings and while it may be that microscopic photograph, when taken with due care and in the best of conditions, may enable the evidence to be placed on the record in a visible form, it cannot be denied that a court would not be justified in rejecting the opinion of an expert who has examined the markings under the comparison microscope simply for the reason that he has not thought it necessary to take the photographs. In view of this law laid down by the Supreme Court, the evidence of P.W. 26

cannot be rejected merely on the ground that he has not taken the photographs of the cartridges concerned. He has also explained that he could not take the

photographs for want of films.! 9.17.3 Ballistic expert’s vacillating Report It is well-settled law that evidence of witnesses to the occurrence cannot be

thrown overboard merely because they are interested and partisan witnesses. All that the law demands is that their evidence should be scrutinised with great care and caution to safeguard against the normal temptation to falsely implicate others. The trial court had adopted that appropach in evaluating the evidence of the eye-witnesses. On a critical examination of their evidence it concluded that their evidence stood corroborated by medical evidence, in that, it disclosed that Ali Mohammad had received as many as 18 injuries (13 incised wounds, 2 gun shot wounds, 2 abrasions and one contusion) whereas the deceased Siraju had

sustained five injuries (four incised wounds and a swelling). The evidence of P.W. 1 also stood corroborated by the evidence of P.W. 6 Zafaruddin who wrote the FIR Ex. Ka. 3 at the behest of P.W. 1. The contents of the FIR also corroborate the testimony of P.W. 1. The find of blood, etc., from the scene of occurrence

noted in the Panchnama proved through P.W. 7. Om Prakash also lends corroboration to their testimony. It was, therefore, contended that the High Court failed to come to grips with the evidence and approached the matter in a perfunctory manner. The deceased Ali Mohammad

had, as stated earlier, suffered as many as 18

injuries. Injuries Nos. 12 and 13 are described as gun shot injuries. They read as under: Injury No. 12:—4 circular gun shot wounds of entry 3/4 cm x 3/4 cm with abraded margins on top of nose and right side of cheek near nose in an area of 5 cm. x 5cm. No tattooing or blackening. Injury No. 13:— One circular gun shot through and through wound of entry x exist wound 3/4 cm x 3/4 cm on right side upper lip. No tattooing or blackening. These two injuries are undoubtedly gun-shot injuries. Dr. Mathur, who performed the post-mortem, states that these injuries could be caused if fired at from a distance of over 4 feet. There were corresponding holes in the shirt worn 1. S.G. Gundegowda v. State, 1996 Cri LJ 866.

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by the victim. The medical officer does not say that the aforesaid two injuries were possible by a single shot. However, Shri Badul Rai, the ballistic expert, opined that the said two injuries could have been caused by a single shot fired from a country-made pistol. He deposed that if the shots were fired from a short distance of 8 to 10 feet all the pellets would have entered the body en masse and would have caused an exit wound thereby discrediting the evidence of the three witnesses that the shots were fired from 2 '/, to 3 yards. The witness, however, admitted that his estimate regarding the distance from which the shot was fired was based on standard ammunition and not country-made weapons. But when cross-examined he stated that the single shot must have been fired from a country made weapon from a distance of eight feet. The fact that there was no tattooing or blackening is indicative of the fact that the shots were fired from not too short a distance. The High Court took no notice of Dr. Mathur’s opinion in this behalf. The evidence of the three eye-witnesses as to the distance from which the shots were fired is a mere estimate. Even though the ballistic expert initially opined that injuries Nos. 12 and 13 could be the result of a single shot he vacillated and stated that the possibility of the said two injuries having been caused by two different shots could not be ruled out altogether. He merely stated that the greater probability was that they were the result of a single shot. In other words the ballistic expert was not positive in his view. In this nebulous state of the evidence of the ballistic expert we are of the view that the High Court was wholly wrong in doubting the direct evidence of the three eye-witnesses on this ground. Where the expert evidence is obscure and oscillating, it is not proper to discredit the direct testimony of the eye-witnesses on such uncertain evidence. In such a situation unless the evidence of the eyewitnesses is shaken by some glaring infirmities, it would not be proper to doubt the correctness of their statements. We are, therefore, of the opinion that the High Court was wrong in its conclusion based on the vacillating evidence of the ballistic expert." 9.17.4 Scientific Evidence v. Eyewitness Account

In other words, the position is that if we discard this part of the evidence of the eye-witnesses which has come to light for the first time in the sessions court, then according to medical evidence, the deceased would have got two gunshots whereas it was never the prosecution case that Ram Narain Singh or any other accused fired a second shot at the deceased at any time. The medical evidence, therefore, clearly falsifies the prosecution case regarding the manner in which the deceased was hit. Even the ballistic expert on a question by the court deposed as follows: “In case ifit is a straight fire, and ifthe right arm is kept just in front of the chest, then it is possible that these injuries could be caused by one singlefire”. Thus, according to the ballistic expert’s evidence, unless there was cogent material and reliable evidence to show that the deceased had kept his right arm in front of his chest, the deceased could not have sustained less than two injuries. The evidence of Surjit Singh and Joginder Singh of this point appears to 1. Anvar-uddin v. Shakoor, 1996 Cri LJ 1270 (SC).

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us to be clearly an afterthought and cannot be accepted. Thus the prosecution has not been able to explain how the deceased died by sustaining gunshot injury. Furthermore, the evidence of Dr. S.S. Walia shows that there were two gunshot injuries on Teja Singh, namely, injury No. 1 which by itself was sufficient to cause his death, and injury No. 4 which was also the result of the

gunshot. The doctor has further opined in his cross-examination that both injuries Nos. 2 and 4 could have been caused from a distance of less than 4 feet and that there was blackening both in injury Nos. 4 and 2 which were on the uncovered parts of the body. The doctor further deposed’ that there was corresponding burning of the shirt by injuries Nos. 2, 3 and 4. If this be the position, then injury No. 4 is not at all explained. The blackening on injury No. 4 clearly indicates that this was also a gunshot injury and the ballistic expert has also testified to this effect at p. 60 of the High Court paper book that in case the blackening which has been reported by the doctor in injury No. 2 and injury No. 4 were not the actual blackening due to the powder gases then it is possible that it could be from one single fire. The doctor, however, says nothing of this sort. Thus a combined reading of the evidence of Dr. Walia, the medical expert and Mr. J.K. Sinha, ballistic expert, clearly establishes that the deceased died of two gunshot injuries and the prosecution has not been able to explain this important circumstance. For these reasons, therefore, the evidenceof the two eye-witnesses Surjit Singh and Joginder Singh is wholly inconsistent with the medical evidence as also the evidence of ballistic expert and must be rejected on that ground alone, apart from other inherent improbabilities which appear in

their evidence and which have already been pointed out. Where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistic expert, this is a most

fundamental defect in the prosecution case and unless reasonably explained, it

is sufficient to discredit the entire case.! 9.17.5 Acceptability

While the sessions judge believed the testimony of the eyewitnesses, the learned judges of the High Court were of the opinion that they were unable to accept the assertion of the eye-witnesses that they actually saw the appellant with a pistol by the bed-side of the deceased. The High Court, however, relied upon the circumstantial evidence in the case in upholding the conviction of the appellant. There was motive for the crime and a few days before the killing of Daya Ram, the appellant had held out a threat against him. The appellant was arrested fourteen miles away from his village which is the place of occurrence. He produced a pistol (Ex. III) from his house in circumstances which clearly showed that he only could have known of its existence there. The opinion of the firearms expert clearly established that the cartridge (Ex. I), found near the cot of Daya Ram, was fired with the pistol (Ex. III) produced by the appellant. All these circumstances, in the opinion of the High Court left no doubt that the appellant murdered Daya Ram by shooting him with his pistol. 1. Ram Narain v. State of Punjab, 1975 Cri LJ 1500: AIR 1975 SC 1727.

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It was next urged on behalf of the appellant, that it was impossible for a cartridge to have been near the cot of Daya Ram, because after the shot had been

fired the cartridge would still remain in the barrel of the firearm. This again is pure speculation. That the cartridge was ejected from the firearm is certain. Why it was ejected, none can say. It may be that the miscreant reloaded his weapon to meet any emergency. The evidence of the sub-inspector is clear that on his arrival at the place of occurrence the cartridge Ex. 1 was handed over to him by the witness Khamani who cannot be said to be unfavourable to the appellant. The courts below had no reason to disbelieve the evidence in the case that the cartridge Ex. 1 was found near the cot of Daya Ram and we can find no extraordinary circumstance to justify as saying that the courts below took an erroneous view of the evidence. The real question is, whether it is safe to act upon the opinion of the firearms expert that the cartridge Ex. 1 was fired from the pistol Ex. III produced by the appellant and none other, because without that evidence the circumstantial evidence in the case would be insufficient to convict the appellant of the crime of murder. The opinion of the firearms expert, based on the result of his tests, does

not seem to have been challenged in cross-examination or before the High Court. If there is no reason to think that there is any room for error in matters of this kind and it is safe to accept the opinion of the expert, then clearly it is established that the cartridge Ex. 1, found near the cot of Daya Ram, was fired

from the pistol Ex. II] produced by the appellant. To satisfy ourselves we have looked into the works of some authors dealing with the marks left on cartridge and shell cases by firearms in order to ascertain that there is no error in the opinion of the firearms expert in the present case. Kirk in his book Crime Investigation at page 346 states: “Fired cases are less often encountered in criminal investigation than are bullets, but when found they are usually of greater significance because they receive at least as clear markings as do bullets, have a greater variety of such markings, and are not ordinarily damaged in firing... The questions which may be asked as a result offinding such materials are similar to those that require answers when only bullets are located. In the ordinary case, quite definite answers can be given. This is true both of shotgun shells and of cartridge cases from pistols, revolvers, and rifles....In general, it is possible to identify a certain firearm as having fired a particular shell or cartridge, it is often possible to identify the type of make of gun which fired it, though in many instances this must be tentative or probable identification only”. After dealing with the marks left by breech-block, firing pin impressions, marks from extractors and ejectors, marks due to expansion, magazine marks and loading mechanism marks, he states: “Summarizing, the cartridze or shell case usually carries markings which are quite distinctive of the gun in which the charge is fired, and can be used for positive identification of the latter. These marks arise from a variety of contacts with various parts of the gun, an analysis of which is useful in determining the type of weapon in case no suspected gun is available... Thus, the recovered shell or

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cartridge case is one of the most useful types of physical evidence which can be found in shooting cases.” Soderman and O’Connell in their book Modern Criminal Investigation also deal with the subject and they refer to the marks from the firing pin, the extractor, the ejector, and the breech block. After referring to comparison being made of the cartridge or shell fired from a firearm for the purpose of test, they state at page 200: “If they are in the same position in relation to one another and their general appearance is the same, one may conclude that they have been fired from a pistol of the same make. An absolute conclusion about the origin of the shells, however, can be reached only after a photomicrographic examination of the markings from the breech block on the rear of the shell...” Identification, with the aid of the enlargement, should not prove difficult. The characteristic scratch can be easily seen. A photograph of the incriminating shell and one of a comparison shell should be pasted side by side on cardboard, and the characteristic marks should be recorded with lines and ciphers, following the same method as that used tn the identification offingerprints”.

In Taylor’s book on Medical Jurisprudence, Tenth Edition, Vol. 1, at page 459, it is stated: “It is never safe to say that a cartridge case was not fired from a given pistol unless the marks are quite different, and a case which bears no marks at all may quite well have been fired from the same pistol as one which leaves well-defined marks. In general, however, though it is unlikely that all marks will be equally good, it is usually possible to obtain definite information from the marks of the firing pin, extractor, ejector or breech-block on the base or rim or from grooves or scratches on the surface. In weapons of the same manufacture the marks are of the same general nature, but in each weapon there are individual differences which usually enable it to be definitely identified”.

The expert’s evidence in this case shows that he had fired test cartridges from the pistol Ex. III. He found the individual characteristics of the chamber to have been impressed upon the test cartridge Exs. 9 and 10 and that exactly identical markings were present on the paper tube of the cartridge Ex. I. He made photomicrographs of some of these individual marks on Exs. 1 and 10. In giving his reasons for his opinion, the firearms expert stated that every firearm has individual characteristics on its breech face, striking pin and chamber. When a cartridge is fired, gases are generated by the combustion of the powder, creating a pressure of 2 to 20 tons per square inch. Under the effect of this pressure the cap and the paper tube of the cartridge cling firmly with the breech face, striking pin and chamber and being of a softer matter the individualities of these parts are impressed upon them. By firing a number of test cartridge from a given firearm and comparing them under a microscope with the evidence cartridge, it can definitely be stated, if the marks are clear, whether the evidence cartridges had been fired or not from that firearm. It seems to us that the firearm expert made the necessary tests and was careful in what he did. There is no good reason for distrusting his opinion. The learned judges of the High Court

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examined the photomicrographs in question and were satisfied that there was no ground for distrusting the evidence of the expert. They were accordingly justified in coming to the conclusion that the cartridge Ex. 1, found near the cot of Daya Ram, was fired from the pistol Ex. III produced by the appellant from his house. There can, therefore, be no room for thinking, in the circumstances established in this case, that any one else other than the appellant might have shot Daya Ram. He was, therefore, rightly convicted for the offence of murder.

The appeal is accordingly dismissed." 9.17.6 Expert Evidence not Essential

1. Whilst we are on this point, we may briefly indicate the nature of the prosecution case so far as the use of the guns is concerned. The appellant Gurcharan Singh had fired two shots, one of which killed Sukhjit Singh and the other Gurdial Singh. The appellant Surjit Singh had fired three shots, two at Arjan Singh and one at Piara. The evidence seems to show that Surjit Singh loaded the gun once in the presence of the witnesses and whilst so doing, he put two cartridges in the gun and the spent cartridges in his pocket. The two empties which had been sent for expert examination were found and picked up on a thoroughfare in front of the house of Jarnail Singh. Apparently, the prosecution case is that these two cartridges had been fired by the appellant Gurcharan Singh from Arjan Singh’s gun picked up by him. In any event, the report shows that the two cartridges had been fired from the same gun. That is why the failure to prove the report cannot be said to have prejudiced the appellant's case at all. Mr. Purushotam, however, argued that a ballistic expert should have been

examined in order to ascertain whether the gun surrendered by Daljit Singh had been used at all. But this argument is obviously untenable for the simple reason that this gun was surrendered more than a week after the incident and it takes no imagination to realize that when Daljit Singh surrendered the gun, he must have cleaned it so as to remove any evidence about its use on the date of the incident. It has, however, been argued that in every case where an accused person is charged with having committed the offence of murder by a lethal weapon, it is the duty of the prosecution to prove by expert evidence that it was likely or at least possibie for the injuries to have been caused with the weapon with which, and in the manner in which they have been alleged to have been caused; and in

support of this proposition, reliance has been placed on the decisions of this court in Mohinder Singh v. State of Punjab. In that case, this court has held that where the prosecution case was that the accused shot the deceased with a gun, but it appeared likely that the injuries on the deceased were inflicted by a rifle and there was no evidence of a duly qualified expert to prove that the injuries were caused by a gun, and the nature of the injuries was also such that the shots 1. Kalua v. State of Uttar Pradesh, 1958 Cri LJ 300 (SC): AIR 1958 SC 180. Also see

Meera Puri v. State of Nagaland, 1971 Cri LJ 539 (Assam and Nagaland). 2. AIR 1953 SC 415.

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must have been fired by more than one person and not by one person only, and there was no evidence to show that another person also shot and the oral evidence was such which was not disinterested, the failure to examine an expert would be a serious infirmity in the prosecution case. It would be noticed that these observations were made in a case where the prosecution evidence suffered from serious infirmities and in determining the effect of these observations, it would not be fair or reasonable to forget the facts in respect of which they came to be made. These observations do not purport to lay down an inflexible rule that in every case where an accused person is charged with murder caused by a lethal weapon, the prosecution can succeed in proving the charge only if an expert is examined. It is possible to imagine cases where the direct evidence is of such an unimpeachable character and the nature of the injuries disclosed by post-mortem notes is so clearly consistent with the direct evidence that the examination of a ballistic expert may not be regarded as essential. Where the direct evidence is not satisfactory or disinterested or where the injuries are alleged to have been caused with a gun and they prima facie appear to have been inflicted by a rifle, undoubtedly the apparent inconsistency can be cured on the oral evidence of a ballistic expert. In what cases the examination of a ballistic expert is essential for the proof of the prosecution case, must naturally depend upon the circumstances of each case. Therefore, we do not think that Mr. Purushotam is right in contending as a general proposition that in every case where a firearm is alleged to have been used by an accused person, in addition to the direct evidence, prosecution must lead the evidence of a ballistic expert, however, good the direct evidence may be and though on the record there

may be no reason to doubt the said direct evidence.' 2. The last argument which Mr. Anthony has urged before us is that the prosecution should have examined a ballistic expert in this case and since no expert has been examined, it cannot be said that the prosecution has proved its case that the appellants caused the deaths of the two victims by shooting from the rifles which they carried. In support of this argument, Mr. Anthony has referred us to the decision of this court in Mohinder Singh v. The State’.

Now, the story about the recovery of this revolver is very interesting. According to the defence, Amin Lal was carrying a revolver and when he was hit with a lathi by Sajjan Singh, the revolver fell down from his hands and Yudhbir Singh picked it up and fired it at Amin Lal. Now this revolver was carried away by Yudhbir Singh to his house and said that he produced the same before the police investigation officer. On the other hand, according to Gurbux Singh, it was the accused Sajjan Singh who after his arrest produced the pistol and two live cartridges before him. It would thus appear that the revolver had been produced by one of the accused persons on the allegation that it was carried by Amin Lal and had been used by Yudhbir Singh in self-defence after it had fallen down from Amin Lal’s hands. It has not been the prosecution case that it is this revolver which had been used by Yudhbir Singh. It may well be 1. Gurcharan Singh v. State of Punjab, 1963(1) Cri LJ 323 SC: AIR 1963 SC 340. 2. AIR 1953 SC 415.

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that the revolver has been deliberately surrendered by the accused in order to introduce complications in the case. We think, in such a case it is difficult to understand for what purpose the prosecution was expected to examine the expert. Therefore, in our opinion, the decision in the case of Mohinder Singh,} has

no application to the case before us.? 9.17.7 Inconclusive or Negative Evidence

The ballistic expert could not connect the two pieces of the bullet with the rifle but nonetheless he opined that a shot was fired from this rifle and the weapon was a fit one and could be utilized for firing. In these circumstances the inability of the expert to connect the two fragments of the bullet with the rifle could not be a circumstance necessarily leading to the inference that the said bullet was not shot from the rifle. Any expert may be ballistic or otherwise, can only give an opinion evidence. In a case where eye-witnesses are reliable and testify definitely to the weapon of attack any opinion of an expert even if it indicates a circumstance which does not exactly fit in prosecution story would be of no avail and can easily be ignored. All the same in the instant case, the opinion of the expert cannot be stated to negative the prosecution version in any

manner.* 9.17.8 Linking Evidence

There are certain other factors to which our attention has been drawn by the learned counsel. His submission is that the prosecution also rested its case on the fact that the cartridge which had been found and taken over by the investigating officer had been fired by the gun of the appellant. There is no controversy that 10 cartridges had been sold to the appellant at Varanasi, as it has also been admitted by the appellant himself in his statement under section 342 of the Cr.P.C. The seller of the cartridge, namely Santosh Kumar Mukherjee,

has been examined in the case and he has proved the original cash memo which he had given to the appellant which has been marked Exhibit 2. He had also brought the carbon copy of the cash memo. He also proved the sale voucher, which is Exhibit 3, and also the signature of the appellant thereon which were marked Exhibit 3/1. Learned counsel urged that the gun and the cartridge had been sent to the arms expert, who has been examined as P.W. 6 in the case. His evidence was required to determine whether the cartridge which had been seized was used in the gun produced by the appellant or not is that on 25-71966 he had received a double barrel gun along with one fired cartridge case. He found the left barrel of the gun coated with a quantity of fouling, indicating that it was fired previously and the gun was in perfect working condition. With the said gun he fired two cartridges and compared the three fired cartridges under comparison microscope and found similar striker and breech face markings on the percussion caps of the fired cartridges. He proved his report which was marked Exhibit 5, and explained that next to balls, L.G. shots were the biggest,

having 6 shots in each 2 '/," cartridge.4 AIR 1953 SC 415. Jaidev and Hari Singh v. State of Punjab, 1963(1) Cri LJ 495 (SC): AIR 1963 SC 612. State of Himachal Pradesh v. Ram Singh, 1973 Cri LJ 150 (Simla). WN State

of Bihar v. Hanuman Koeri, 1971 Cri LJ 182 (Pat).

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9.17.9 Bona fide of Expert Mr. Prasad’s contention is that it has not been established in the case that P.W. 6 was entitled to claim that he was an expert so that his evidence could be made admissible. Prosecution had not asked any question so as to indicate that

he had sufficient training, knowledge and experience as to justify him to be called an expert and, as such, it is urged that his opinion could not be the last word on the subject. This part of the submission cannot be accepted, because no challenge was made in cross-examination. Besides, it is for the court to decide the question of competency or fitness of a witness who claims to be an expert. In this case I am satisfied that the learned judge before whom P.W. 6 was examined appears to have been satisfied that he was firearm expert under government of Bihar, therefore, his competency cannot be now questioned at this stage.

The next question that, however, still remains to be determined is the value of the evidence of P.W. 6. Learned counsel has contended that the record does not furnish the materials which had helped the expert in coming to his conclusion as he has done in this case and the court has not the advantage of looking into those materials so as to hold that the expert was justified in the opinion that he has given. Besides, it is said other materials have not been produced and as such, there can be no guarantee that the expert had either examined the gun and the cartridge with the help of those materials at all. If, on the other hand, he had

so done, whether his conclusions had been rightly arrived at.! 9.17.10 Inordinate Delay

It is significant to note this connection that the gun and the cartridge had been received by P.W. 6 on 25-7-1966, but his examination was not completed

until 13-5-1967. He even admitted in his cross-examination that he might have commenced the examination a day or two earlier, though he did not remember the exact date of the commencement of the examination. This inordinate delay in the examination of the ballistic expert is to be deplored and it is unfortunate that in such serious cases, the expert does not attach sufficient importance for speedy examination and submission of his report. I might also mention that the occurrence in the present case having taken place between the 5th and 6th July, 1966, the charge-sheet could not be submitted until 25-7-1967, and the expert

(P.W. 6) is largely to be blamed for this delay. It is to be hoped that the attention of the authorities concerned and particularly of firearms expert (P.W. 6) will be drawn to these observations so that thereafter there may not be such deplorable

delay in such matters.’ 9.17.11 Inadequate Evidence

No doubt, the gun has been recovered from the house of the accused, as stated by PWs 6, 7 and 9. This gun was sent to the ballistic expert. But the pellets recovered were not sent to him. It has been mentioned in the report of the ballistic expert: “It is not possible to say when the gun was last used for firing as final products of residue have already been formed”. 1. State of Bihar v. Hanuman Koeri, 1971 Cri LJ 182 (Pat).

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There is also no other evidence to show that the shot was fired from this particular gun. So without any convincing evidence that the gun was used by the accused, mere recovery of the gun will not in any way help the prosecution." 9.17.12 Data Coming back to the submission of learned counsel on the evidence of P:W. 6, I think that the submission must be accepted as correct. It also finds support from a decision of the Supreme Court in Kalua v. State of Uttar Pradesh*. In Kalua’s case, the accused was convicted for the murder of the deceased by shooting him with a country-made (improvised) pistol. A cartridge was found near the cot of the deceased, and the accused was arrested fourteen miles away from his village which was the place of occurrence. He produced a pistol from his house in circumstances which clearly showed that he only could have known of its existence there. The evidence of the firearm expert showed that he had fired four test cartridges from the pistol produced by the accused. He found the individual characteristics of the chamber to have been impressed upon the test cartridges and that exactly identical markings were present on the paper tube of the evidence cartridge. He made photomicrographs of some of these individual marks on the test cartridges and the evidence cartridge, and gave his opinion that the cartridge found near the cot of the deceased was fired from the pistol produced by the accused. The High Court held, which was approved by the Supreme Court, that the firearms expert has made the necessary tests, he appeared to have been careful in what he did. There was no good reason for distrusting his opinion. It would, therefore, appear that in the said case all the materials which had helped the firearm expert in coming to his conclusion were produced in the trial court and the High Court had the advantage of considering those matters and was satisfied that the firearms expert had carefully made the necessary tests. In the instant case, no material has been furnished and, therefore, we are unable to hold whether or not the firearms expert, namely, P.W. 6 had been careful in carrying out the necessary tests before giving his opinion as contained in the report and testified to the court. This is a serious infirmity in the prosecution case. The learned standing counsel had, however, urged that since P.W. 6 was not crossed-examined on these matters, it must be assumed that the method of examination by the expert of the gun and the cartridge was no longer open to doubt. There is no justification for this argument, because the prosecution is under duty to produce every scrap of material which would help in coming to a just decision in the case, irrespective of the fact whether those materials go against the prosecution or in its favour. 9.17.13 Contradictory Evidence

The appellant, who had a rifle with him shot at Labh Singh from behind his back as he was attempting to run away. Labh Singh died on the spot. The small intestines were torn up and the left kidney was found smashed. The circular wound of entry at the back of the deceased 1/4" in diameter, had burnt and inverted margins according to the doctor who conducted the post-mortem 1. State of Bihar v. Hanuman Koeri, 1971 Cri LJ 182 (Pat). 2. AIR 1958 SC 180.

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examination. The ballistic expert deposed that if there were burnt edges of the wound, the distance between the muzzle and the victim would only be a few inches and not more than nine inches. This opinion is in substantial accord with what is found in some of the text books on medical jurisprudence. For instance, it is stated in Taylor’s Principles and Practice of Medical Jurisprudence, Vol. I, 10th Edn., at page 441, under the heading “Burning of the Wound”:

It is impossible to state rules as to the precise distance from which it is impossible to produce marks of burning, for this depends on the quantity and nature of the power, the method of charging, and the nature of the weapon. It is unusual, however, to get marks of burning beyond a yard or a yard and a half with a shotgun, or at more than half a yard with a revolver. According to the medical evidence, therefore, the shot was fired from very

close range about 9 inches to a yard or a yard and a half but according to what was shown to the draftsman of the plan by the eye-witnesses the rifle was fired from a range of about 25 feet. This difficulty cannot be surmounted, as was sought to be done by the High Court, as the eye-witnesses were not giving an estimate of the distance but showed to the draftsman the particular spots where the appellant and the deceased stood at the time of firing. Thus, in the face of the medical evidence, the testimony of the eye-witnesses cannot be safely accepted.!

9.17.14 Number of Firearms 1. Neither the genuineness of the recoveries of the empties from the roof of the house of Bhag Singh nor the recovery of gun Ex. P. 12 from the person of Bhag Singh at the time he was apprehended has been challenged on behalf of the defence nor the correctness of the opinion given by the ballistic expert has been challenged on its behalf. It has, however, been urged by Shri Dara Singh, counsel for the appellants that according to the statement given by Shri J.K. Sinha, Assistant Director, Forensic Science Laboratory, Chandigarh P.W. 20,

who examined and tested the three empty cartridges, Ex. P 13/1.3 recovered from the roof of the house of Bhag Singh appellant, they were fired from gun, Ex. P. 12 used by Bhag Singh appellant and that no empty cartridge has been recovered used in the gun, with which Mehar Singh appellant was armed and with which, according to the evidence of the eye-witnesses, he fired one shot at Basant Singh deceased. The question of recovery of empty cartridge dropped from the gun of Mehar Singh appellant will arise only, if there is evidence to show that after Mehar Singh fired his shot at Basant Singh, deceased, he emptied his gun. It is nowhere stated by any of the eye-witnesses, and no such question was asked from them in course of their cross-examination, that after

Mehar Singh had fired his shot he emptied the gun.”

2. The learned counsel further contends that it was doubtful that 12 rounds

would have been fired. He points out the number of injuries received by the 1. Santa Singh v. State of Bihar, 1956 Cri LJ 930 (SC): AIR 1956 SC 526. Also see

Mansuri v. State of Bihar, 1955 Cri LJ 1092 (Pat); Khatak Singh v. State of Madhya

Pradesh, 1957 Cri LJ 1138 (MP); Abdul Samad v. State of Orissa, ILR (1964) Cuttack 623.

2. Bhag Singh v. State of Punjab, 1971 Cri LJ 903 (P&H).

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villagers. But these injuries support the prosecution story. From the injuries on the various persons examined by Dwarka Nath Prasad, P.W. 41, apart from the persons who had died and whose bodies had been held to have been cremated by unidentified persons, it appears that 20 persons had received gunshot injuries; one of them had as many as 14 lacerated wounds and another had 10 lacerated wounds. Apart from that there is no reason to doubt the oral evidence

given in this case that a number of rounds were fired.’ 9.17.15 Illusory Discrepancy

The only point, which has been canvassed seriously before us by Mr. Umrigar who appeared in support of the appeal, is that the story put forward by the prosecution, namely that Thanni was killed by a pistol shot fired by Nawab Singh is materially contradicted by the medical report and the evidence of some of the prosecution witnesses. It is pointed out that the medical report shows that there were a number of gunshot wounds in the body of the victim and in Ex. P-6 it is clearly stated that an empty 12 bore cartridge was recovered from where the body of the victim lay. It is argued that in these circumstances the prosecution story, that Thanni was killed by a pistol shot fired by Nawab Singh cannot possibly stand; and in cases like this where death is due to injuries or wounds caused by a lethal weapon, it is incumbent upon the prosecution to prove by expert evidence, if necessary, that it was likely or at least posstble for the injuries to have been caused with a weapon with which they were alleged to have been caused. The point, it may be noted, was not raised before the High Court either during the hearing of the appeal or even at the time when the appellant applied for leave to appeal to this court. It seems to us that the point is without substance and the apparent discrepancy upon which the learned counsel lays stress appears on close examination to be wholly illusory. The prosecution story undoubtedly is that Nawab Singh carried a pistol with which he fired at Thanni. The pistol, however, was country made one and P.W. 6 expressly states that 12 bore cartridges could be fired in such pistols.

This story was accepted by the additional sessions judge and there is nothing improbable, therefore, in the recovery of a 12 bore exploded cartridge being found near the body of the victim, or in the presence of multiple injuries in his body. It is not the case of the prosecution that only one shot was fired by Nawab Singh. It may be further mentioned that the expression gun fire was used in the ordinary and colloquial sense by the prosecution witness and the evidence clearly indicates that they did not mean that the shot was fired from a gun and not from a pistol. The contention of the learned counsel must, therefore, fail.?

9.17.16 Number of Murderers and the Murdered As a mere proposition of law, it would be difficult to accept the argument that the sentence of death can be legitimately imposed only where an accused person is found to have committed the murder himself. Whether or not sentences of 1. Ram Prasad Sharma v. State of Bihar, 1970 Cri LJ 496: AIR 1970 SC 326. 2. Nawab Singh v. State of Uttar Pradesh, 1954 Cri LJ 738 (SC): AIR 1954 SC 278.

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death should be imposed on persons who are found to be guilty not because they themselves committed the murder, but because they were members of an unlawful assembly and the offence of murder was committed by one or more of the members of such an assembly in pursuance of the common object of that assembly, is a matter which has to be decided on the facts and circumstances of each case. In the present case, it is clear that whole group of persons belonged to Laxmi Prasad’s faction, joined together armed with deadly weapons and they were inspired by the common object of exterminating the male member in the family of Gayadin. Ten of these persons were armed with firearms and the others with several other deadly weapons, and evidence shows that five murders by shooting were committed by the members of this unlawful assembly. The conduct of the members of the unlawful assembly both before and after the commission of the offence has been considered by the courts below and it has been held that in order to suppress such fantastic criminal conduct on the part of villagers it is necessary to impose the sentences of death on 10 members of the unlawful assembly who were armed with firearms. It cannot be said that discretion in the matter has been improperly exercised either by the trial court or by the High Court. Therefore, I see no reason to accept the argument urged by Mr. Sawhney that the test adopted by the High Court in dealing with the question of sentence is mechanical and unreasonable.! 9.17.17 Missed Cartridge as Evidence The cartridges were sent to the Forensic Science Laboratory. There is the

evidence of Mr. J.K. Sinha and his report is marked Exhibit P-21. He said that two sealed parcels were received in the laboratory on 12th May, 1969. One of the sealed parcels contained one .303 bore rifle marked ‘A’ by him. That is the rifle received from the appellant. The second sealed parcel contained two .303 fired crime cartridge cases and one .303 missed cartridge. His evidence was that the two fired crime cartridges had been fired through the .303 rifle. His opinion about the missed cartridges was that the firing pin impression on the missed cartridge tallied with the firing pin impression on the .303 rifle marked ‘A’. He examined the two fired test cartridges. He also examined the test cartridges under a comparison microscope for individual characteristic markings present on them. He compared the same with individual characteristic markings present on the fired or crime cartridges. On comparison, he found that the firing pin marks present on the test cartridges tallied with the firing pin marks present on the crime cartridges in their individual characteristics. Dr. Sinha said that the fired cartridges were fired through the rifle marked ‘A’ and could not have been fired from any other rifle even of the same make and bore because every firing pin has its own individuality. He took photomicrograph which showed some of the similar individual characteristics. The rifle was under a sealed cover. It was opened in this court. The magazine chamber was found to have the same number as in the report Exhibit P-10. The submission on behalf of the appellant that there was difference between the 1. Masalti v. State of Uttar Pradesh, 1965 (I) Cri LJ 226: AIR 1965 SC 202.

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number of the rifle in the magazine chamber and in the report was, therefore, not acceptable. The entire evidence was rightly believed by the High Court. The High Court then correctly confirmed the capital sentence. The appeal fails and is

dismissed.! 9.17.18 Wads as Evidence We have a vague indication that these two jointly, or one of them, might have had something to do with the killing of Khandiya because the corpse was found just outside their house and the killing was with a muzzle-loading gun and Chema has a muzzle-loading gun and further, though these points are not so definite, the wadding found in one of the gun shot wounds in the corpse was similar to the wadding found in Chema’s house, and the gun itself had signs of having been used sometime before the examination. The problem then is whether this is sufficient, and if so, whether they were acting with a common intention, or, which comes to the same thing, each abetting the other, and if each was acting independently which of the two it was. In the absence of common intention the evidence has to be led pointing to one out of the two because the shooting of the gun was a one-man job whoever it was. The result is that apart from the statements attributed to either of the accused persons there is really no evidence against either jointly or individually. Something like a circumstance is found in the fact that a muzzleloading gun had been used; but even that is not very illuminative because it has not been brought out that Chema is the only owner of a muzzleloading gun in that village. Wadding of the type found in one of the wounds and also in Chema’s house is of a common variety; but assuming that Chema Bhilal’s gun had been used and then put on the dung heap, that by itself while creating suspicion may not point to one or the other definitely as the offender. One of the two might have used it. Each of them had at different stages been anxious to take the blame on himself or herself and spare the other and each indicated that they were justified in shooting Khandiya. If there was any other evidence we could pin the responsibility on one of the two definitely or even make out common intention; but we have nothing. Thus, it would be a case of no common intention and uncertainty to which of the two had shot. Further, if one takes into account the recorded statement of the woman, then again it would be a case of justification in self-defence as the person killed was trying to abduct her with the intention of compelling her to sexual intercourse. If we reject that statement, nothing is left. The only conclusion a court can arrive at is that it is a fit case for the benefit of

doubt to both the appellants.” 9.17.19 Firearm Evidence The reasons 4, 5 and 7 mentioned above from the trial court judgment may be taken up together. Either there was delay in giving information to the police or unexplained delay in the various steps taken by sub-inspector Sis Ram. The 1. Mukhtikar Singh v. State of Punjab, 1971 Cri LJ 1298 (SC): AIR 1971 SC 1864. 2. Chema Maharaja v. State of Madhya Pradesh, 1969 Cri LJ 1291 (MP).

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police station was at a distance of about 3 kilometres from the hospital. It does not stand to reason that the Ruka sent by the doctor took more than two hours to reach the sub-inspector at the police station and that the latter took an hour and a half in reaching the hospital after receipt of the Ruka. The copy of the First Information Report was received by the Illaka Magistrate at 7.30 A.M. in the morning. Although there was no evidence in support of the suggestions thrown on the side of the respondent, the possibility of the suggestions being true could not be ruled out. Viewed in the background of the very suspicious story of the apprehension of the respondent on the 2nd March, 1970 at Agroha turning the story of snatching the fore-end of the gun by Manphool becomes very doubtful. From the evidence it is not clear how far this Agroha turning is from village Kajla. But Jagdish, P.W. 10, it is interesting to find, happened to be at Agroha turning just by chance although he is a resident of a village 20 miles away from there He is also related to the deceased. He was a witness to the seizure of the gun from the person of the respondent at Agroha turning. His evidence was too crude on its face to inspire any confidence as to the arrest of the respondent at Agroha turning with the Phattiless gun. The High Court, in our opinion, has wrongly accepted this evidence as against its rejection by the trial court. It is strange that Sis Ram could find the respondent present at the Agroha turning just by chance and P.W. 10 also a ready witness by chance. In this background the suggestion on behalf of the respondent that his licensed gun was taken away from his house soon after the occurrence in the same night although not proved by any evidence, does cast doubt on the prosecution story as to the manner of Manphool’s catching hold of the Phatti. P.Ws. 4 and 5 are also

licensed gun holders. If the story of separation of the Phatti on Manphool’s pouncing upon the respondent was correct, the three persons present at the scene of occurrence, if at all they were present, could have succeeded in catching the respondent with his gun. It was a single barrel gun and after one shot was fired it could not be reloaded on detachment of its fore-end. There would have been, therefore, no fear or risk in the witnesses pursuing and apprehending the respondent with his gun at or near the place of occurrence. There are houses of persons around the scene of occurrence. The occurrence is said to have taken place at about sunset time. There must have been present independent persons in the village to watch the occurrence if it did take place in the manner alleged. But there was no such witness coming forward. The High Court remarked that some persons came immediately after the occurrence. But none of them was examined to say whether any of the three eye-witnesses was present at the scene of occurrence or any of them told the persons who arrived there the name of the respondent as being the assailant of the deceased. 9.17.20 Location and Recovery of Projectiles through X-Rays We cannot part with this case without making reference to certain defect in the investigation and in the conduct of the doctor (P.W. 64) who held the postmortem examination on the dead body of Prawakar. According to the post-

mortem report there were gunshot wounds. The entrance wound was noticeable 1. Bahal Singh v. State of Haryana, 1976 Cri LJ 1568: AIR 1976 SC 2032.

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but not the exit wound. It was the duty of the medical officer (P.W. 64) to have

directed X-ray examination of the dead body to determine if bullets were located in the body. It was the duty of the 1.0. to see if bullets were inside the dead body and if those bullets, if recovered, were proved by ballistic examination to have

been shot from the revolver (M.O. XXXVI) which admittedly belonged to Srinivas and from whose possession it was recovered. We cannot disabuse our mind of the impression that this omission cannot but be deliberate. The matter was so patent that no investigating officer would ignore it.! 9.17.21 Non-Recovery of Projectiles

The medical evidence disclosed that Shiv Singh, the deceased, had three gunshot wounds in his body, all in front; two on the chest and one in the stomach. All the three wounds were on the left side of the front of the body. The doctor said that any one of the three injuries would have proved fatal in itself and that all the three wounds could be caused by a single discharge from a gun. Unfortunately none of the shots or the bullets have been recovered. If they had been recovered, it would have been easy to determine whether they were

fired from one gun or two. One of the guns alleged to have been used was a breech-loading double barrel gun with hammer action. The other was an old fashioned muzzle-loader. Presumably, the type of shot used in the more modern weapon would have been different from the crude pellets or slugs one would expect in a muzzle-loader. Appellant B had admitted his guilt from the start and has taken all the blame on himself. Appellant A, on the other hand, has denied throughout that he has taken any part in the shooting though he admitted he was present at the scene with a gun in his hand too. The fact on which everyone is agreed is that two shots were fired. But the question is whether B fired both as he said or whether he fired one and A fired the other. The medical evidence does not disprove the defence version. The doctor said one shot could have caused all the three wounds. If one, then of course two could equally have caused three wounds and those two shots could have been fired by one person. The postmortem examination does not prove the contrary. The unfortunate omission to recover the shots or slugs in the body has deprived the court of evidence which might have been of great value on this point. The defence version was that B had the double barrel gun and that he fired two shots from it. A did not use his gun which according to the defence, was the old fashioned single barrel muzzleloader. Therefore, in the absence of any reloading the double barrel gun would have both barrels barren of live rounds and would be found in an unloaded condition. The muzzle loader, unless it was already empty, would still be loaded. Now, it has been accepted throughout that the muzzle-loader was found loaded when it was seized. The question is about the double barrel gun. One of the witnesses to the seizure admitted that only one gun was found loaded though he could not remember which one. There is no reason why his admission should be brushed aside. It accords with the defence version in a very material and important particular. The appeal of A is allowed.? 1. State of Orissa v. Ram Chandra Bhoi, 1965 (2) Cri LJ 525: AIR 1965 Ori 175. 2. Hate Singh v. State ofMadhya Bharat, 1953 Cri LJ 1933 (SC): AIR 1953 SC 468.

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9.17.22 Safe Custody and Genuine Recovery 1. After having been taken through the evidence on record, we have no doubt regarding the complicity of Paramjit Singh and Gurdev Singh. Paramjit Singh,

according to the testimony of the eye-witnesses, was armed with a rifle and Gurdev Singh with a gun. Paramjit Singh in his statement before the committing magistrate admitted that he had a rifle, but, according to him, he had already sold that away. Gurdev Singh undoubtedly owned licensed gun P-1. According to the evidence of Dr. Ajit Singh who performed post-mortem examination on the body of Sukhdev Singh, Sukhdev Singh had a number of bullet injuries. Sukhdev Singh had also number of injuries caused by gunshots. The evidence of the eye-witnesses with regard to the part played by Paramjit Singh and Gurudev Singh is thus in conformity with the medical evidence. Although Paramjit Singh played the leading part in the assault on the two deceased persons, his rifle could not be recovered as he absconded after the occurrence and remained absconding for a period of more than eight months till his arrest on April 11, 1972. Gurdev Singh surrendered himself in the court of judicial magistrate Sunam on August 17, 1971. It is in the testimony of Shri J.K. Sinha, Assistant Director, Forensic Science Laboratory that three of the crime cartridges which were received in the laboratory on August 11, 1971 has been fired from licensed gun P-2 of Gurdev Singh. According to the evidence of sub-inspector Ajit Singh (P.W. 19) and Mann Dass (P.W. 4) gun P-2 was recovered in pursuance of the

disclosure statement of Gurdev Singh subsequent to his surrender in court. There is no material to warrant the inference that gun P-2 was secured by the police before Gurdev Singh surrendered in court on August 17, 1971. ASI Amrik Singh (P.W. 20) has deposed that he recovered a number of empty cartridges from the place of occurrence. Out of those empty cartridges, three were found by Shri Sinha to have been fired from gun P-2 of Gurdev Singh. There could, in our opinion, be hardly any doubt on the point that the three cartridges fired from the gun of Gurdev Singh were found at the spot because those empty cartridges were sent to the ballistics expert long before the arrest of Gurdev Singh and the recovery of his gun. It is significant that gun P-2 of Gurdev Singh is his licensed gun. No question of foisting a licensed gun upon Gurdev Singh could possibly arise in the very nature of things. It was also not possible to falsely show the recovery of three empty cartridges which had been fired from that gun because at the time those three empty cartridges were sent to the Forensic Science Laboratory, the police was not in possession of gun P-2 of Gurdev Singh. The despatch of the three empty cartridges which had been fired from the licensed gun P-2 of Gurdev Singh lends assurance to the evidence about recovery of those cartridges from the place of occurrence. The fact that three of the cartridges fired from the gun of Gurdev Singh were found at the place of occurrence goes a long way to corroborate the testimony of the three eye-witnesses regarding the

complicity of Gurdev Singh.! 2. Be that as it may, the failure of the prosecution to establish the motive for the crime does not mean that the entire prosecution case has to be thrown over1.

Charan Singh v. State of Punjab, AIR 1975 SC 246: 1974 Cri LJ 1253.

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board. It only casts a duty on the court to scrutinize the other evidence, particularly of the eye-witnesses, with greater care. The High Court was fully conscious of the need for such caution, and rightly observed:

The absence of proof of motive has this effect only that the other evidence bearing on the guilt of the accused has to be very carefully examined. Indeed, the High Court did so. The conviction of the appellant mainly rests on the evidence of Bhagwan Kaur P.W. 2, which had been corroborated in material particulars by independent evidence, including that of the ballistic expert, Mr. J.K. Sinha. *

*

+

*

*

Then, there was the testimony of Mr. J.K. Sinha, ballistic expert who after examination of the empties (which were found at the scene of murder on the 18th December) and the licensed gun of the appellant, opined that those empties had been fired through the barrel of this gun. Mr. Singh, however, contends that no empty cartridges had, infact, been found at the spot, and that this circumstantial evidence had been fabricated after the arrest of the appellant and seizure of the gun which took place on the 19th December. +

*

*

*

*

The courts below have for cogent reasons rejected the defence contention and accepted the prosecution version that the appellant was taken into custody alongwith his gun, on the 24th December. We find no fault with that reasoning.

The gun having been seized by the police on the 24th, there was no scope for fabrication, nor any ground for doubting the genuineness of the empties picked up from the scene on the 18th December, and which on the 24th December were no longer in the possession or control of the investigating officer. They were as deposed to by Shri J.K. Sinha, P.W. 12, in the possession of the Forensic Laboratory since the 21st December. The testimony of Shri J.K. Sinha had not been seriously challenged in crossexamination. In his opinion the crime cartridges had been fired from the gun of the appellant. Thus the ballistic evidence confirmed the connection of the

appellant with the crime.! 9.17.23 Critical Appraisal of Identification Evidence In regard to Balak Ram, there is a concurrent finding that the shot fired by

him caused the death of Radhey and we see no reason for taking a different view. The evidence in regard to the part played by him is natural and consistent and is corroborated by the opinion of the ballistic expert. Such corroboration was lacking as against others. The evidence of the ballistic expert shows that the bullet (Ex. 27) which was extracted from Radhey’s body was fired from the pistol (Ex. 5) belonging to Balak Ram. Mr. Anthony made a severe attack on the evidence of the expert and in order to show infirmities in that evidence he read out to us various passages from The Identification of Firearms and Forensic 1. Nachhittar Singh v. State of Punjab, 1975 Cri L] 66 SC. ai -

ft

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Ballistic by Major Gerald Burrard; J.S. Hatcher’s Test Book of Firearms Investigation, Identification and Evidence (5th Edn., 1946) and Modi’s Medical Jurisprudence and Toxicology. We have considered these submissions but are unable to see a reason strong enough to justify a reversal of the concurrent view taken by the two courts. The normal rule that this court does not reappraise evidence in such cases must apply. Stated briefly, Mr. Anthony’s contention is that the bullet (Ex. 25) which was

recovered from the scene of offence must have been the one which after hitting Tribeni Sahai made an exit wound and since that bullet, according to the ballistic expert, could not have been fired from Balak Ram’s pistol (Ex. 5), he

cannot be held guilty for causing the death of Tribeni Sahai, Mr. Anthony says that the evidence of the eye-witnesses stands falsified by the evidence of the expert. The difficulty in accepting this connection is that there is no warrant for saying that the bullet Ex. 25 must be the one which passed through Tribeni Sahai’s body. Mr. Anthony spent considerable time in showing that the striations on the bullet (Ex. 27) which was extracted from Radhey’s body are of a different pattern from the striations on the test bullets fired from Balak Ram’s pistol. The evidence of the expert has been closely considered by the High Court and we consider

their finding on this aspect as open to no exception.! 9.17.24 Range of Fire

Ballistic Expert (P.W. 12) has opined in his report (Ex. P-12) that judging from the area of dispersion of the pellet holes on the shirt and body of the deceased, the gun must have been fired from a distance of 10 to 15 yards. He has further stated in the report that if the gun had been fired from a distance of 8 to 10 feet, as contended by the accused, some type of blackening would have been present on the shirt; but he did not find any blackening on the shirt (article-E), which the deceased was wearing. In his report as well as in his testimony, P.W. 12 has expressed the opinion that the distance from which the shot was fired at the deceased would not be less than 10 to 15 yards. In spite of elaborate crossexamination, nothing whatever has been brought out to discredit the testimony of this witness or to doubt the soundness of the opinion expressed by him. It is, no doubt, true that Dr. Gurjar (P.W. 2) has stated in his evidence that he had found burn-marks at five places on the shirt of the deceased and that in view thereof, he was of the opinion that the distance between the assailant and the victim, at the time when

the gun was

fired, was

not more

than 10 feet.

Significantly, no mention whatever has been made by P.W. 2 in the postmortem report that there were any burn-marks or charring marks on the body of the deceased at the places of entry of the pellets. Nowhere, in the course of his observations concerning the external appearance of the body of the deceased, do we find any mention by the medical officer of burn-marks. It is only in the concluding portion of the post-mortem report, under the heading “remarks regarding articles sent for examination alongwith the dead body” that there is a 1. Balak Ram v. State of Uttar Pradesh, 1974 Cri LJ 1486: AIR 1974 SC 2165.

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description of the shirt of the accused, as having been burnt in about five places. The said shirt which the deceased had been wearing at the time of the occurrence had been forwarded to the Ballistic Expert also, and after examining it P.W. 12 has clearly stated in the report (Ex. P. 12) as follows:

“Shirts-1 having bloodstains and 5 holes on the front left side (three of big size and two of small size). There is no blackening present around the holes”. P.W. 12 has confirmed the truth of this observation in the oral testimony given in court. We, are satisfied that the adverse comments made by the High Court against the conduct of the medical officer (P.W. 2) are fully justified. In our opinion, the High Court acted rightly in disbelieving the evidence given by P.W. 2 on this aspect and accepting as true the observations made by P.W. 12 in his report (Ex. P. 12). The expert opinion given by him in the said report as well as in his oral testimony was rightly relied on by the High Court." On one material point range of firing of the gunshots which killed the deceased, the questions arise: From what distance the gunshots—which killed the deceased—were fired? Is the evidence consistent with the prosecution case of the gunshots having been fired from the wall of Kamraj’s house which is at a distance of 38 feet? The medical evidence of the doctor P.W. 8 who held the postmortem examination finding that there were as many as five gunshot wounds on the deceased all over the body—left lateral side of the forehead, left side abdomen lateral, left shoulder joint, upper third of the lateral side of the left arm, middle third of the right arm—is indicative of the wide dispersion of the pellets purporting to fix the distance from which the gunshots were fired.

In this context the evidence of the investigating officer P.W. 12 furnishes useful materials to fix the distance of the fatal gunshot firing. He found two pieces of lead were lying on the outer verandah of the deceased close to the wall; one lead piece was stained with lime and the other with green colour, which is wood paint, as it appeared to him, the wooden frame of the Jaffrey put on the verandah of the deceased was white washed with lime; M.Os. III and IV were

the two pieces of lead, the two pieces of wads M.Os. VIII and IX were lying on the step to the outer verandah of the deceased; M.Os. III and VIII and IX were sealed in the presence of witnesses under the seizure list Ext. 24. The investigating officer also found three pieces of lead M.Os. V, VI and VII lying on the outer verandah of the house of P.W. 10, Pravakar and close to the wall on the verandah, a piece of was M.O. X was lying on the step to the outer verandah of P.W.

10, Pravakar;

M.Os. V, VI, VII and X were

seized in the presence of

witnesses under the seizure list Ext. 25. The investigating officer also found a small hole in the bottom part of the wooden frame of the Jaffrey put on the verandah of the deceased; cut and seized that part of the wooden frame which is M.O. XXII. Further he found two small holes on the outer side of the wall of the deceased that stands on the outer verandah; similarly he found two small holes on the wooden frame of the Jaffrey put on the verandah of P.W. 10, Pravakar

standing on his outer verandah. These small holes on wooden frames and on the walls indicate marks of violence by gunshots. The investigating officer cut 1. 1983 Cri LJ 977: AIR 1983 SC 575.

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and seized bottom parts of the wooden frame of the Jaffrey of P.W. 10, Pravakar containing the hole and these are M.Os. XX and XXI, he seized the cut pieces of wood M.Os. XI, XII and XIII in the presence of the witnesses under the seizure list Ext. 26. The significance of all these seizures made by the investigating officer read with the medical evidence of five gunshot wounds on different parts of the body is that it shows that fatal gunshots were fired from such a distance as it consistent with the width of the Rasta between the step of the deceased’s house where the deceased was hit with the bullet and the road side wall of the house of accused Kamraj. The question of distance of gunshot firing is considered from the point of view of certain recognised medico-legal principles, namely these. When a firearm is discharged from a distance, there will to total absence of the characteristics of a ‘near’ discharge; ingraining of unburnt particles of powder is absent if fired from beyond ten feet; at a distance of twelve to fifteen feet, there is an absence of a main wound as all the pellets enter individually covering an

area of about ten inches in diameter; at this distance the pattern formed by the entering shot will consist of small groups at a distance of thirty feet all the shots enter as individual pellets without any grouping and cover an area of about twenty inches in distance; these examples must of course be considered as a general guide in determining the distance at which the weapon was discharged; there are so many circumstances to be considered such as, length of barrel, choke or cylinder, black or smokeless powder, size of shots, etc. (Cox’s MedicoLegal Court Companion, 4th Edition p. 33). Considering the evidence in the present case in the light of the medico-legal principles, it is abundantly clear—from the manner the pellets from the gunshots dispersed widely all around—that the gunshots were fired from a distance more than thirty feet, namely, thirty feet, which is the distance of the accused Kamraj’s road-side wall from the step of the deceased’s house where the deceased was hit with bullets—pellets scattered or dispersed all around. The dispersal of the pellets speaks for itself about the distance. In the ultimate analysis the question arises: Is the circumstantial evidence sufficiently strong to support the order of conviction under section 302/34 in this case? The position in law as settled by the Supreme Court is in substance this: Where there is no eye-witness to the murder and the case against the accused depends entirely on circumstantial evidence, the standard of proof required to convict the accused on such evidence is that the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with innocence of the accused. It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case where the various links have been satisfactorily made out and the circumstances point to the accused as the probable assistant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no

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explanation, which, if accepted though not proved, would afford a reasonable basis for conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain." 9.17.25 Injury-Firearm Linkage

A faint attempt was made by Mr. Ray that the prosecution has failed to establish that the gunshot injuries on the deceased were from the gun (M.O. II). The contention is frivolous and was rightly abandoned later on. It is the common case of the parties that there was only one gun at the time of occurrence and that gun belonged to and was held by accused No. 1 on the spot. The finding being that the deceased died as a result of gunshot injuries, it was not necessary for the prosecution to further establish that the injuries caused by gunshot were from the gun (M.O. II). The conclusion that the gunshot was through M.O. II is irresistible on the common case of the parties and no further proof is necessary as is required in some cases of gunshots.* 9.17.26 Identification of Firearm Injuries

The trial court seems to have overlooked this statement and confined itself to the less specific statement of Ajit Singh given at the trial. The fact remains that at the earliest, in the committal court, the appellant clearly alleged that Baldev Singh had been killed with a sua by the complainant party. This version was put to Dr. H.C. Gupta, who had performed the autopsy of Baldev Singh, in crossexamination, even in the committal court. The doctor replied that he could not rule out the possibility of these injuries having been caused with a sua. This opinion was not discussed by the trial court. The learned judges of the High Court also did not advert to it. Although in examination-in-chief, the doctor had

said that these injuries were ‘likely to be caused by a firearm’, the circumstances on record definitely point towards the conclusion that the injury was probably caused with a sharp-pointed weapon and not with a gun. The injuries were triangular. The dimensions as noted by the doctor were: (i) 3/4" x 1/2" x 3/4" on the front of the neck in the mid-line about 11/2" below the chin; (ii) Lacerated wound 1" x 1/2" x 1/3" on the back of the neck about 1" below the hair line.

A gunshot wound of entry caused by a single pellet or ball is ordinarily circular or oval in shape. If these injuries were the result of a gunshot fired from close range, with all the pellets piercing en masse through the neck, there should have been scorching, blackening and tattooing in and around the wound of entry. The wadding, or round cardboard pieces or pellets should have been found inside or outside the wound near the body. Nothing of this kind was found. Furthermore, the very story of Ajit Singh firing at Isher Singh, but instead hitting his own brother was improbable. According to the prosecution, Isher Singh was then interlocked in a struggle with Baldev Singh. If that was so, there 1. Kishore v. State of Orissa, 1967 Cri LJ 1155 (HC): AIR 1967 Ori 118. 2.

Paramananda Mahakud v. State of Orissa, 1970 Cri LJ 931 (HC).

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should have been some gunshot injury on Isher Singh. But the doctor did not find any such injury on him. The above negative and positive circumstances are tell-tale. Taken in conjunction with the doctor’s opinion given in cross-examination, they probabilise the defence version that the injuries to Baldev Singh were caused with a sharp pointed weapon—and not with a firearm—by the complainant party.

We have, therefore, no hesitation in holding that the learned judges of the High Court were in error in upholding the conviction of the appellants for the murder of Baldev Singh, merely, on the basis, of what they termed “plausible explanation” rather than positive and convicting proof given by the

prosecution. We would therefore, set aside that conviction.! 9.17.27 Dimensions of Injuries We reserve for the end of this chapter a clinching piece of evidence which establishes that Tahsildar did not shoot Dudh Nath, inasmuch as we shall

show in what follows that the latter was shot with a bullet fired from a .303 bore rifle and not a .500 bore rifle, the only weapon attributed to Tahsildar by the prosecution witnesses. What we call the clinching piece of evidence derives from the medical evidence with regard to Dudh Nath’s injury. This evidence discloses that the wound of entry of the bullet was in front of the abdomen and was 1/4" x 1/4" in size, while the wound of exit was on he

back and was 1/3" x 1/3" in size. In the trial court no one paid any attention to the nature of the bullet causing an injury of these dimensions, and everyone seems to have assumed that it was in fact from a .500 bore rifle bullet. We considered

this assumption

of doubtful

validity, hence

we

heard

learned

counsel specifically on the point and also consulted Taylor’s Medical Jurisprudence and Major Julian S. Hatcher’s Fire-Arms Investigation, Identification and Evidence. Referring to high-velocity bullets Major Hatcher observes at page 202 of his book: “The skin wound of entrance always corresponds in size to the diameter of the bullet used. It is very common for-the aperture of entrance to appear smaller than the diameter of the bullet but this is an illusion, since the wound invariably admits a projectile similar to the one which caused it”. The small appearance is due to elasticity and shinkage of the skin. It is also a fact that the wound of exit is usually larger than the wound of entrance. But no authority has been cited before us which could suggest that, unlike a wound of entry, the wound of exit can be smaller than the size of the bullet which causes

it. During the hearing of the appeal we invited the learned state counsel to produce an expert before us who might give such an opinion, but he was unable to produce one. Bullets of both .500 and .303 bores were produced before us, and by measurement we found that a .500 bore bullet has a diameter of exactly half-aninch, while that of a .303 bore bullet is slightly less than one-third of an inch. 1. Bhoor Singh v. State of Punjab, 1974 Cri LJ 929 (SC): AIR 1974 SC 1256.

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These measurements, coupled with the expert opinion contained in the above mentioned standard work, leave no room for doubt in our mind that Dudh Nath’s injury was caused by a .303 bullet and not by a .500 bullet, and we

should like to point out that we are strongly of opinion that if the prosecution case that Tahsildar fired the rifle Ex. 1, which is of .500 bore, were true, Dudh

Nath’s entry and exit wounds would have been larger than that found by the medical officer. In point of fact, the wounds which were actually found by the medical officer are typically those caused by a .303 bullet. This finding would exculpate the appellant of Dudh Nath’s murder. Incidentally, for the benefit of subordinate courts we should like to point out that where a particular weapon is stated to be responsible for a certain injury, the witness should be asked to explain whether or not that weapon could cause the injury in question. In the instant case the omission to do this with regard to

the injury of Dudh Nath and Karna has led to unnecessary difficulty.’ 9.17.28 Firearm Injury Frauds

After hearing both sides we are of opinion that the appellant’s conviction cannot be sustained. There are several circumstances which throw a doubt with regard to the appellant being the author of the gunshot injury received by the injured, Sansar Singh. Firstly, the first information report was lodged after a delay of three days, although it was admitted, that the injured person was conscious throughout after the receipt of the injury. Secondly, the gunshot injury was on the back of the victim and in his deposition he did not say that immediately after the receipt of the injury he turned back and saw his assailant. Of course, the courts below have imagined this explanation, which the injured himself had not chosen to put forth. The third circumstance which enhances the suspicion about the identity of the assailant that the victim’s statement was recorded by the police under the Code of Criminal Procedural 17 days after the occurrence and 5 days after his discharge from the hospital. No explanation of these delays is coming forth. The 4th circumstance is that an attempt was made by the prosecution to rope in the other two brothers of the appellant who have been acquitted by the High Court. Fifthly, the conviction rests mainly on the uncorroborated testimony of the injured. His father (PW 1) who had lodged the report came after the incident and was not an eye-witness of the incident. PWs 3 and 4 who were cited as eye-witnesses in the FIR, did not support the prosecution case at the trial, Sixthly, there was past enmity between PW 1 and his son (PW 2) on one side and the appellant and his brothers on the other. The occurrence took place after dusk at about 7.30 pm.? 9.17.29 Close-Range Phenomena

The nature of the wounds said to have been inflicted on account of the gun being placed on the chest and fired does not fit in with the allegation. It is true that the doctor was not questioned about it. In fact the doctor made the statement that these wounds were due to the gun being fired by being placed on the chest or from within a range of one yard. We are of opinion that in this the 1. Tahsildar Singh v. State of Uttar Pradesh, 1958 Cri LJ 424: AIR 1958 All 255. 2. Satbir v. State of Uttar Pradesh, 1982 Cri LJ 1744.

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doctor was wrong and probably got misguided on account of the black margins of the wounds. The black margins of wound are never due to the firing of the gun from very close range but are due to something different. Taylor says at page 430 of his Principles and Practice of Medical Jurisprudence, Volume I, 10th Edition: The edges of the wound commonly show a narrow ring of discoloration due to the removal of a layer of epithelium by the passage of the bullet. The surrounding skin may be scorched or not, and there may be a zone of blackening or peppering with grains of powder, according to the distance from which the weapon was fired. And again at page 431:

All entrance wounds, if examined, will be found to have a zone of denuded epithelium immediately surrounding the orifice. This is caused by the spin of the bullet and tends to dry and become discoloured shortly after death. It should not be confused with the marks due to powder for it gives no indication of range. And again at page 441: The bruised and dark appearance which a gunshot wound sometimes present, even when the weapon is discharged at a distance from the body has led to the supposition that this effect was due to a burn and that the bullet burnt the parts which it touched, but this idea is not correct. The projectile never becomes sufficiently heated to acquire the power of burning.

Of course no scorching of the wounds could have been possible in this case when the victims had several cloths on, even if the firing had been from very close range. And that again shows that the doctor’s opinion was due to the existence of black margins and not due to any scorching of the surrounding skin. Again Taylor says at page 430. We must distinguish between near wounds and far wounds. Usually when a weapon is discharged in contact with or within an inch or so of the body the gases which pass out with the bullet enter the tissues and thereafter expand causing tearing of the skin or clothes very often in the form of a cross or a split. Most of the powder is found inside the tissues, but there may be traces of blackening, burning and tattooing around the entrance hole—if the weapon is discharged at a short distance from the skin the effect of the gases is lost and the entrance wound look like a hole which might be caused by pressing a lead pencil into the tissues. It is rounded with inverted edges and surrounded by a zone of singeing, blackening from the smoke and tattooing from the impaction of small particles of powder in the skin. The clothes did not show such tearing or splitting. It is, therefore, clear from the condition of the clothes which the victims were wearing that the gun does not appear to have been fired by its being placed on the chest or very close to the chest after the victims had fallen down. The position of the first two wounds on Girdhari is also not very consistent with the position of the gun. It is not expected that he would be lying on the left side when the gun would be so

fired.! 1. Sheo Shankaer v. State of Uttar Pradesh, 1953 Cri LJ 1400: AIR 1953 All 652.

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2. Coming to the 9th and the last reason mentioned above it would be noticed that shirt of the deceased was found to be torn at two places. His dhoti was also torn and kachha was found torn at some places. It was not Manphool’s evidence that Ram Sarup while going with him was wearing torn and tattered clothes. He was, therefore, obliged to give an explanation for their being found torn. The explanation was that while putting Ram Sarup on the bullock cart the clothes got torn. The trial judge found it difficult to swallow this explanation. In our opinion the High Court was wrong in accepting it. In the circumstances of the case the probability of the clothes being torn and especially of the kachha in the manner suggested by the prosecution, was not there at all. On the other hand, it was quite legitimate to think that Ram Sarup had a scuffle with his assailant and the clothes got torn in that scuffle. Neither Manphool nor P.Ws. 4 and 5, perhaps, saw the occurrence. It is also clear that the gun was fired by the assailant at Ram Sarup’s thigh from a very close range. The muzzle of the gun at the time of fire must not be more than a foot away from the thigh. The doctor who did postmortem examination found a piece of cardboard torn in four parts and a metallic pellet in the left thigh of Ram Sarup. There was burning of the margins of the wound of entry. The doctor was not quite right in saying that it is due to heat of the bullet or the pellet. And this showed that the gun was fired from a close range. The High Court was also of the same view. The ocular version of the occurrence given by the prosecution witnesses 2, 4 and 5 does not indicate that the gun was fired by the respondent after he had come very close to the deceased. Rather, according to the evidence of Manphool it was fired from a

distance of about 1-1/2 pondas, i.e., about 7-1/2 feet.' 3. While we are on the medical evidence it would be appropriate to mention that there was no tattooing or charring on any of the firearm injuries which, according to the doctor, shows that the firing was done from a distance of more than 4 feet. In the First Information Report Bal Kishore has stated that as soon as he, his father and sister, reached the culvert, Subhash “touching the chest” of Ram Sanehi “with the barrel of his gun” said that he shall not leave him alive. Shyam Narain thereupon exhorted Subhash not to delay and fire immediately; Subhash then fired three shots in quick succession, one of which misfired. The trend of the FIR is that Subhash fired the first two shot at Ram Sanehi from a point blank range, in which event, indisputably, there would have been tattooing and charring around the injuries. Bal Kishore has attempted to offer an explanation that what he meant to say in his complaint was that Subhash trailed his gun “towards’, Ram

Sanehi’s chest and not “on” his chest. This

explanation is an after-thought and in the circumstances difficult to accept. Thus in another important respect, the medical evidence falsifies the case of the prosecution.?

9.17.30 Self-Defence or Murder For ascertaining as to whether or not the shots or missiles, which caused the injuries of Dial Singh deceased and Swaran Kaur, were discharged from the 1. Bahal Singh v. State of Haryana, 1976 Cri LJ 1568: AIR 1976 SC 2032. 2.

Subhash v. State of Uttar Pradesh, 1976 Cri LJ 1521: AIR 1976 SC 1924.

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same cartridge, we called and examined Dr. B.R. Sharma, Director of the Forensic Science Laboratory, Chandigarh, in this court, to assist us with his

expert opinion.

Dr. B.R. Sharma is definitely of the opinion that the two shots found in the parcel, Exhibit P. 1, i.e., one extracted from the wall of Sardul Singh and the

other picked up from near of house of P.W. Malagar Singh, had been fired from a 12 bore cartridge of standard L.G. size, while in the case of the third shot found in the parcel, Exhibit P. 2, the expert opined that it had been fired from a 12 bore cartridge of L.G. or S.G. size. The reason given by the expert, is, that the two shots found in the parcel, P. 1, weighed 4.41 grams and 4.24 grams, and that portions of lead from these shots had probably chipped off. The standard weight of L.G. and S.G. shots, according to the expert is 4.54 grams and 3.54 grams, respectively. The deformation of the two shots indicated that they had been fired from a gun.

As regards the shot found in the parcel, exhibit P. 2, the expert stated that it was in a greatly deformed condition and probably some of its lead had chipped off. Its weight was 2.76 grams, which weight was greater than the weight of a shot from any other cartridge of standard specifications than L.G. or S.G. The spherical shape of the undamaged portions of these shots indicated that they were factory-made. In an L.G. cartridge of standard size there are 6 shots, in all, while in an S.G. cartridge of standard size there are 9 shots. The diameters of L.G. and S.G. shots are 0.36" and 0.33", respectively. After examining the pictorial diagrams prepared by Dr. Satish Chandra and Dr. Jatinder Singh about the location of the wounds of Swaran Kaur and Dial Singh deceased, respectively, the expert explained that the shots during their passage through the body of Dial Singh, had suffered deformation, flattening and expansion by

their impact with the bones and because of resistance of the flesh. This explains why the dimensions of two of the wounds on Swaran Kaur were greater in cross-sectional area than those of the entrance wounds found on Dial Singh. Dr. B.R. Sharma was further asked that if in his opinion the injuries to both the aforesaid persons were caused by shots discharged from the same fire, why then the injuries to Swaran Kaur were at a lower level (just above and near about the knee) than those found on the deceased (which were at the level of the

nipple). He replied that firstly, the shots had, after entering the body of Dial Singh, deflected downwards. This, according to the witness, was particularly

true in the case of injury number 1, the exit wound of which was at lower level than its entrance wound. Secondly, Dial Singh deceased must have instinctively ducked while receiving the shots or at the instant when the shots came out of his body. It is in the evidence of Joginder Kaur, P.W. 5 that immediately after the gunfire the deceased was seen in a bending position and staggering with his hands placed on his wound towards the doorway of Malagar Singh. It was thus probable that the deceased at the time of receiving the shots, or, at any rate, a split second thereafter when the shots were coming out of his body, had by sheer reflex action dipped.

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There is, therefore, nothing unbelievable in the categorical version of the eyewitnesses that Dial Singh and Swaran Kaur were hit by the same gunfire made by Mohan Singh. Mr. Mahajan contended that the shape of the entrance wounds on the body of Dial Singh was quite circular, which meant that the victim was standing erect when he received those wounds. This argument is not tenable. Firstly, the doctor has noted that the margins of these wounds were irregular, also. Secondly, the deceased might have started

ducking simultaneously with the impact of the shots and continued doing so when the shots were travelling through his body. Furthermore, the shot which caused injury number 1, while travelling through the body of the deceased, had fractured the rib. It must have, therefore, deflected in its course. Even pictorial diagrams (which may not be very precise) prepared by the doctor, show that the exit wound of this injury was at a somewhat lower level than its entrance wound. This gives some indication that the shots after piercing the body of Dial Singh, travelled in a somewhat downward direction.

It may also be noted that the distance between the deceased and Swaran Kaur at the time of the gunfire has not been fixed with precision. According to Karam Singh, P.W. 4, when the gun was fired he was standing behind Dial Singh deceased at a distance of about 4 Karams and Swaran Kaur was at a distance of one Karam from the witness. P.W. Malagar Singh has also stated that at the crucial moment, Swaran Kaur was standing in the lane towards that side where P.W. Karam Singh, his wife and mother were present. In the note appended to the site-plan, Exhibit PN, it is mentioned that Swaran Kaur was at point number 3, at a distance of about one Karam from point number 1, where the deceased was hit. This note is obviously wrong. It does not conform to the evidence given by the witnesses at the trial. The distance between points 1 and 3, measured by a scale, is more than 1/2". The scale of the site-plan is 10 Karams equal to an inch. If the points 1 and 3 have been marked accurately, the distance of Swaran Kaur at the time of the gunfire from the deceased was about 4 or 5 Karams, i.e., roughly 21 to 30 feet. Thus, even if the

deceased had ducked only to a small extent when the shots hit him, then also the slightly downward direction of the shots coming from the body of Dial Singh could have hit Swaran Kaur in the region of the thigh and roundabout the knee. Effective range of an L.G. cartridge, fired from a 12 bore gun, according to Dr. Sharma is 100 yards. It is in the prosecution case that Mohan Singh had fired at the deceased from a distance of about 4 Karams, i.e., about 22 feet or so. Swaran Kaur, as already discussed, was about 4 Karams behind the deceased. This means, she was about 8 or 9 Karams, i.e., about 50 feet or so, from Mohan Singh appellant, at the time of firing of the shot. The very fact that four of the shots had pierced through the body of the deceased, while lending assurance to the ocular account of the prosecution witnesses with regard to the distance from which the gun was fired, also strengthens the inference that those shots were of a relatively high-powered cartridge, most probably of an L.G. cartridge. Shots of an L.G. cartridge fired from a distance of about 20 or 25 feet could, even after

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piercing to cause did not velocity

through the body of the deceased, have enough power left in them so as fracture of the femur bone of Swaran Kaur. The circumstance that they pierce through the body of Swaran Kaur further shows that their at that time was lower than what it was at the time of hitting Dial Singh. The story that the deceased was also armed with a pistol which he first fired at Teja Singh but injured Swaran Kaur and then had reloaded the same and was about to fire same at Mohan Singh, does not inspire confidence. It has an aura of improbability. If the deceased had come to assist Karam Singh against Teja Singh and others when Karam Singh, according to the defence allegation, was assaulting Teja Singh, then there is no reason why a shot allegedly fired by the deceased from such a close range failed to find its mark on Teja Singh. It is nobody’s case that the deceased or any other person on the complainant side wanted to harm Swaran Kaur who was standing near P.W. Karam Singh. If the shot which hit Swaran Kaur had been fired by the deceased, who was also quite close to Karam Singh—there should have been blackening, tattooing or charring around the wounds of Swaran Kaur. No such blackening, etc., was noticed by Dr. Satish Chander, absence whereof also indicates that the shots which hit

Swaran Kaur had been fired from a distance beyond 6 feet.! 9.17.31 Tfagedy of Errors It is said that after he had covered a few steps and had arrived near the water-hut (pyaoo) the appellant fired three shots at him with his rifle. The three shots after killing him pierced through his body and hit three more persons on the platform, namely, Hari Singh, Rameshwar Singh and Kailash Chandra.

They were also badly hurt. This shocking incident was seen by several persons including Chandra Prakash Tewari P.W. 22, Mahesh Chandra P.W. 6, Dudhi Ram P.W. 2 Ganga Das P.W. 3 and Pushkar Singh P.W. 23. All these persons apprehended

and disarmed

him. Chandra

Prakash

Tewari,

then took the

appellant to the police station. There Chandra Prakash Tewari deposited the rifle of the appellant at the police station. The appellant pleaded not guilty and claimed to be tried. He admitted that on 21-10-77 he had been escorting 14 Down along with rakshaks Bholey Prasad, N.P. Mathew and Mahendra Singh. He and Mahendra Singh happened to be in a compartment at the rear end of the train while the others were in front part of the train. Sri D.N. Misra who happened to be in mufti dress met him and enquired from him as to how many rakshaks were on escort duty in the train. He did not disclose the number of rakshaks on escort duty in the train and this led to an exchange of hot words between them. Sri D.N. Misra felt irked and tried to snatch away his rifle. He asked him not to snatch his rifle. He did not listen to him and continued with his unlawful activity. Apprehending that he might lose the rifle he fired three times in defence of his property. The third shot hit D.N. Mishra and he fell down dead on the platform. According to him, nobody arrested him on the platform and he himself surrendered at the police station.

1. Mohan Singh and Teja Singh v. State of Punjab, Cri Appeal No. 414 of 1969 (P&H). Also see Hate Singh v. State of Madhya Bharat, 1953 Cri LJ 1933 SC.

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We have heard the learned counsel for the parties at sufficient length and after doing so we are firmly of the view that this appeal must be allowed. We find that the court below has not approached this case from a proper angle with the result that it fell in error and passed a wrong order of conviction against the appellant. It is true that the appellant admitted to have fired upon D.N. Mishra causing fatal injuries to him but this admission on the part of the appellant, in our opinion is not sufficient to fasten the guilt of murder on him. The burden which rests on the prosecution to establish its case beyond a reasonable doubt is neither neutralised nor shifted because the accused pleads the right of private defence. The prosecution must discharge its initial traditional burden to establish the complicity of the accused and not until it does so can the question arise whether the accused has acted in self-defence. This position, though often overlooked, would be easy to understand if it is appreciated that the Civil Law rule of pleadings does not govern the rights of an accused in a criminal trial. Unlike in a civil case it is open to criminal court to find in favour of an accused on a plea not taken up by him and by so doing the court does not invite the charge that it has made out a new case for the accused. The accused can be convicted only when the prosecution succeeds in proving that the incident in question had taken place in the way as alleged by it. The prosecution must stand on its own legs and cannot take advantage of the weakness of the defence. Nor can the court, on its own, make out a new case for the prosecution and convict the accused on that basis. It is now well established that when the very substratum of the evidence given by the eye-witnesses examined by the prosecution is found to be false, then the only prudent course left to the court is to throw out the prosecution case in its entirety. In the instant case we find that the eye-witnesses examined by the prosecution have not cared to disclose the true picture of the incident. According to the prosecution witnesses the appellant had fired three shots at D.N. Mishra and all these shots hit him. After killing D.N. Mishra these shots pierced through his body and they hit three persons more, namely, Hari Singh, Rameshwar Singh and Kailash Chandra. Hari Singh succumbed to his injuries a few hours later but Rameshwar Singh and Kailash Chandra were lucky to survive. One of the shots had lodged itself in the body of Hari Singh and the same was recovered from his body at the time of post-mortem examination. The court below did not avail of the services of a ballistic expert to get that shot examined. In this court we sent that shot to the ballistic expert for examination and report. The ballistic expert examined and stated before us on oath that he did not find any rifling marks on the shot. He was, therefore, unable to give a definite opinion whether the shot examined by him was a rifle bullet. However, we think that it could not have been a bullet because no rifling marks were found on it. If that is so, then it means that Hari Singh did not die of a rifle shot fired by the appellant. Obviously, therefore, he died of a shot that had been fired by somebody else. The prosecution story that he died of a shot fired by the appellant is, therefore, patently false. The falsity of the prosecution case becomes apparent from another fact also. Rameshwar Singh had received a lacerated gunshot wound 8 cm x 3 cm muscle deep. He was also said to have been injured from the rifle shot fired by the appellant. The

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ballistics expert examined by us is of the opinion that a rifle bullet cannot cause a lacerated wound measuring 8 cm x 3 cm muscle deep. This opinion of the ballistics expert was not challenged by the prosecution. Thus, from this it again follows that Rameshwar Singh did not receive his gunshot wound from the firing done by the appellant.! 9.17.32 Accident or Murder

1. The fourth is that the gun, which the deceased Asghar Ali carried, after having obtained it under unexplained suspicious circumstances was a very defective weapon. According to Nigam, ballistic expert (P.W. 7), it was a 12 bore double barrelled breech loading hammerless gun. Although the normal trigger pull of such a gun is about 6-7 lbs. the trigger pull of this weapon was only 2 lbs. According to the witness: If the cocked gun is thrown on the ground the butt-end giving it a jerk, the gun, Article A, fires automatically. If the barrel of the gun, Article A, is struck with some force with any hard substance, the gun discharges.

In cases where the trigger pull is low possibility of accidental discharge is there”.

The expert does not mention regarding its safety catch. When we examined the gun ourselves, we found that though it had a safety catch, it was so jammed that it did not work. There is no evidence to show that the police constable,

Asghar Ali, was aware of all these defects and had taken precautions against its accidental discharge. It may well be that he did not know about the defects or may have thought, without properly testing the weapon that the safety catch was on, without realising that it was not on but jammed. Whatever that be, the prosecution has not explained why the deceased was carrying such a gun

loaded with cartridges.” .

The only question for consideration is whether the evidence on the record could justify the finding of the High Court that the gun went off accidentally, or whether it was fired intentionally to commit the murder of Smt. Tulsa Bai. In this respect the following facts and circumstances have been fully established. The gun (article ‘C’) which was recovered from the room of the respondent near the dead body and was taken in police custody, was sent for examination by the ballistic expert (P.W. 10). He has stated that he found the gun in working condition and that its barrel showed signs of discharge. He has also stated the pellets which were recovered from the dead body could have been fired from it. The above facts and circumstances are themselves quite sufficient to prove, beyond any doubt, that Smt. Tulsa Bai died as a result of gun shot injury from the gun of the respondent and in no other manner. We have carefully examined the question whether the gun could have been fired in the scuffle to which reference was made by the respondent to Jawahar Lal (P.W. 6) and Ram Narain (P.W. 7). It is important to remember that Smt.

Tulsa Bai was unwell and had been administered an injection of chloramine a 1. Gantam Lal v. State of Uttar Pradesh, Cri LJ 1187. 2. Nirbhai Singh v. State ofMadhya Pradesh, 1972 Cri LJ 1474 (MP).

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little while ago. She was lying on her bed. The respondent also gave out that he was unwell and was lying on another bed nearly. It is difficult to understand why he, in that situation, should have thought of going to the field at that hour. Even if he wanted to go to the field, there was no necessity for him to load the

muzzle-loading gun inside his room, and to ignore his wife’s protests against his going when she was ill and did not want him to go. But apart from this, there are two important facts which completely disprove the theory of accidental firing which was set up by the respondent's counsel in the High Court. Firstly, we find from the statement of (P.W. 14) that there were two apertures

on the posterior fold of the left axilla of the deceased with blackening of the skin around them and the apertures were in the nature of wounds. On internal examination, he found that there was fracture of two ribs of the left side on the

back. The two apertures were side by side. If it had been true that the gun went off accidentally during the scuffle with the wife the injuries would not have been on the back of her body but on some such part as could possibly come within the range of the gun during the scuffle. The position of the gunshot injuries, therefore, disproves theory of accidental firing and shows that the shot was fired while Smt. Tulsa Bai was lying with her back towards the respondent. It is also significant that the doctor was not even asked whether the injury could be caused in a scuffle by accidental firing. On the other hand, we find that the statement of the medical officer that if the firearm had been discharged very close to the body, the pellets would have entered the body en masse causing one wound, and not two apertures side by side, was allowed to go unquestioned. Secondly, if there had been a scuffle, and if the shot had been fired while Smt. Tulsa Bai was preventing the respondent from going away, her dead body would not have been found lying on the cot, as it has been stated by S.I. Bhanwar Singh that the dead body was lying on the bed as shown in map Ex. P-5. We are, therefore, satisfied that the High Court misread the evidence in arriving at a completely contrary conclusion. It is true that both Jawahar Lal (P.W. 6) and Ram Narain (P.W. 7) had stated that the respondent told them

about accidental firing during a scuffle with his wife, but it was not the respondent’s own case during the trial that the gun went off accidentally. On the other hand, he took the plea that he heard the gunshot while he had gone out to answer the call of nature and that it was Jaswant Singh who was responsible for the firing. It was only when the courts did not accept that version, that the respondent's learned counsel thought of turning round and making his contention about accidental firing even though the respondent did not find it possible to set it up as a plea in his defence. The High Court also lost sight of the fact that the story of scuffle was not corroborated by the evidence on the record, and it erred further in stating, without any reason, that statements of

Jawahar Lal and Ram Narain were sufficient to discharge the onus of proving accidental firing. The High Court tried to explain away the incapacity of Smt. Tulsa Bai to have any scuffle with her husband by saying that a stiff opposition need not have been offered by her and that “by touching the gun or any other part of the body of the accused the deceased may have desired the accused not

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to go to the field”. But if there had been some such touching, it could not be called a scuffle and would not have led to the firing of the gun. In this respect also, the High Court misread the evidence on the record. The High Court has stated further that the “position of the injury” also showed that the injury “suffered by the deceased was not intentionally caused by the accused”. It has further been stated by the High Court that “if the accused wanted to kill her, it is not likely that he would have caused the injury on the arm near the axilla”. The record, however, reads otherwise for as has been pointed out, the position of the injury was at the back and was by itself sufficient to exclude any possibility of accidental firing during the course of a scuffle. It is difficult for us to appreciate what exactly is meant by saying that if the accused wanted to kill his wife, it was not likely that he would have caused the injury on the area near the axilla. The report of P.W. 14 shows that the gun shot caused apertures on the posterior fold of the left axilla and fractured two ribs on the left side of the back. The High Court, therefore, misread the evidence in holding that the injury was caused on the arm near the axilla. What the medical officer had stated was that he found charring on the left arm, and not that the injury was located there. Moreover, the High Court did not appreciate that even a gun shot injury on the arm or the axilla would have been sufficient to cause death and that, as it happened, the injury on the back did prove fatal. It may be that the prosecution was not able to prove the motive for the crime, but that could not possibly matter when the circumstantial evidence on the

record was sufficient to prove, beyond any doubt, that it was the respondent and no one else who intentionally caused the death of Smt. Tulsa Bai.’ 9.17.33 Direction of Fire Mr. Basi Reddy in a forceful argument advanced the theory that the wound inflicted on the body of the deceased could not have been caused, if the first accused took a conscious aim at him. In support of his argument he relied upon the statement made by the eye-witnesses before the committing magistrate to the effect that the first accused wrested the gun from the hands of the second accused. It is said that, in the course of the wresting, the gun must have gone off

accidentally and hit the deceased.

Reliance is also placed upon the evidence of the doctor in support of this theory. The doctor, as P.W. 4, says that the wounds

Nos. 4 and 5 were exit

wounds at the same level and that the deceased must have been shot from within about 10 yards. In cross-examination he further adds that the entry and exit wounds were almost on the same level in line with the first lumber vertebra. But he concedes that it is possible that there was a slight deflection on hitting the vertebra. The wounds found on the body were described by him as follows:— (1) A circular wound

11/2" in diameter

(edges inverted) 4" from

the

umbilicus and 6" from left nipple in the anterior axillary line (vertically paralleled to nipple line and a little away 11/2" to 2") with a part of the intestine projecting outside the wound.

1. State ofMadhya Pradesh v. Dig Vijay Singh, 1981 Cri LJ 1279 (SC).

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(2) An abrasion 1" diameter leftwards to the first wound. (3) A contusion 3" x 2" around the first wound.

(4) Five performed wounds 11/2" in diameter in the right side of the abdomen in the lumber region 3" above the right iliac crest. (5) A perforated wound 11/4" in diameter in the right arm at the level of

the medical condyle in the right humerus. Relying upon these wounds and the opinion of that when a person shoots another of about the distance on the side of abdomen, it is impossible would cause wounds almost in the same level in line To put it differently, the argument is that, if

the doctor, it is contended same height from a short to cause an injury which with the lumber vertebra. the first accused shot the

deceased on the side of the abdomen, the bullet could not have passed in a

straight line from one side to the other but should have passed only in (the direction in which the gun was placed, i.e., the wound should have been not in

a straight line, but in a slanting direction. The learned advocate also made a demonstration with a gun showing that the trigger could easily be released with a slight pressure. It is true that, the wound might not have been caused in the manner now found on the dead body. Even then, there is no guarantee that the bullet would pass only in a slanting direction corresponding to the way in which the gun was held, for there might have been a deflection of the bullet when it came into contact with the vertebra. The evidence has not made it clear that the trace of the wound was also in a straight line. But we do not think it is advisable to speculate on the basis of theoretical considerations. The first accused is 19 years old and the second accused is 65 years old. They were pursuing the deceased. The first accused found his father’s hand shaking. He took the gun from him and shot the deceased. The first accused obviously must have been in an emotional state and he could not have had an opportunity at the time to take aim as he would have done in ordinary circumstances when he would shoot an animal or bird. In the hurry, he would have taken the gun from his father and released the trigger immediately. It is not possible to say in what position he kept the gun when he released the trigger. The fact that the witnesses stated that he aimed at the deceased cannot be taken to mean that he aimed at the deceased in the manner he would have done

under ordinary circumstances. We cannot, therefore, reject the evidence of the eye-witnesses relying upon some theoretical considerations based upon the nature of the wound. We, therefore, hold that the first accused committed the offence of murder.!

The contention on which considerable emphasis has been laid by the learned counsel for not believing the eye-witnesses is that their evidence is in conflict with the medical evidence. We shall, therefore advert to the medical evidence at

this stage. PW/12 has deposed that he found the following injuries on the dead body of the deceased Gamu: 1. T. Munirathnam Reddi (in re:), 1955 Cri LJ 917 (SC). Also see Rama Swami v. State of Tamil Nadu, 1951 (2) MLJ 630.

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of entry) 2" x 1", lung deep, in left infra

clavicular region, 11/4" lateral to left sternoclavicular joint, charring of margins of wounds, margins inverted, wound directed downwards, backwards, and laterally. 2. Gunshot wound (wound of exit) 31/2" x 11/4", lung deep, middle of

left side of the back, 2" lateral to midline at the level of the lower part of the scapula.

3. Lacerated wound 1/4" x 1/4" muscle deep, 2" above the wound No. 2. On opening the dead body, it was further found that the Ist and 2nd ribs on the left side were fractured on the anterior side (front) and 5th,

6th and 7th ribs were fractured posteriorly (back). Pleura was ruptured at two places. Fluid blood was present on the left side, about 400 ml. A

lacerated wound 2" x 2" through and through in the upper half of the left lung was found and the lungs were collapsed. Left pulmonary vessels were ruptured. The injuries, according to the doctor, were sufficient in the ordinary course of nature to cause death. He recovered 15 pellets from the dead body at the time of post-mortem examination. Out of these pellets, 12 were of small size and three were of big size and a few of them were lying loose in the wounds of the back and others were removed by dissection of skin around the wound on the neck. All were situated within an area of a circle of about 3" diameter from the centre of the wound on the back. In the wound of back, amongst the pellets, a few were of small size and bigger sized ones were also lying there. The edges of injury No 3 were inverted and irregular. The learned counsel has laid great emphasis on the following portion of the statement of PW. 12 Purushottamdas Vyas: “On the post-mortem appearance I am of the opinion that the wounds were caused most probably by one shot. But I cannot say definitely because of the fact that the pellets were of two different sizes and I am not expert about the pellets” ..... “The edges of injury No. 3 were everted and irregular. The edges of injury No. 2 were also everted and irregular. The margins of injury No. 1 were regular and oval shaped and inverted. It is correct that on the body of deceased Gamu there was only one entry of gunshot wound and of that entry there were two exit wounds. Injury No. 3, the exit wound, was probably due to exit of two pellets. The wound of entry and the exit wound were through and through........” “There was no scorching or tattooing around the wound No. 1. The distance of the firearm must have been between 1 to 3 feet from the victim”. There is a three-pronged attack of the learned counsel. His contention is that according to the direct evidence there were two fires which hit the deceased, whereas according to the medical evidence there was only one entry wound and two exits. Therefore, the direct evidence is belied.

There is a three pronged attack of the learned counsel. His contention is that according to the direct evidence there were two fires which hit the deceased

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whereas according to the medical evidence there was only one entry wound and two exits. Therefore,

the direct evidence is believed.

Another

branch of his

argument in this connection is that the gunshot wound in the chest of the deceased caused a big hole which must have resulted in profuse bleeding, but no blood was found from the hut in which the first shot is said to have been fired upto the place where the deceased fell dead on account of the second gunshot in the back. The third branch of his argument is that no wads and pellets were found inside the hut. It may be pointed out that P.W. 12, was not a very experienced doctor when he had appeared in the witness-box. He passed his M.S. examination in 1971 and had entered in government service on 26th December, 1970. This was admittedly the first post-mortem examination he had performed. He is also not definite in his opinion whether the injuries in question were the result of one gunshot or of two gunshots. He has qualified his opinion by stating that the wounds were caused most probably by one shot but he cannot say definitely because of the fact that pellets were of two different sizes. No doubt at another place the witness has stated that there was one entry of gunshot wound and there were two exit wounds and injury No. 3 was probably due to exit of one or two pellets. The evidence of the doctor, in our opinion, does not exclude the possibility of there being two gunshots which may have struck the deceased. May be, that the second gunshot alleged to have been fired from behind by the assailant while the deceased was running, was not effective. On the basis of indefinite opinion of the medical expert as in the present case, we are not prepared to reject the direct evidence.

Learned public prosecutor has also urged that most of the pellets of the second gunfire may not have hit the victim on account of wide dispersion and the eye-witnesses may have thought that the second, shot hit the back of the deceased. The explanation furnished by the learned public prosecutor cannot be said to be altogether devoid of force. In Mohanlal v. State of Rajasthan', it was observed that:— “There is always a tendency to over-emphasize discrepancies between the evidence of eye-witnesses and medical testimony. These discrepancies should be treated and appraised just like other discrepancies in the statements of the witnesses. It cannot be forgotten that the eye-witnesses may not give a very correct and accurate account of the version and may at places make exaggerations or may fail to give correct facts either on account of lapse of memory or on account of inability to observe minutely or to recite correctly. It should also be borne in mind that some times the medical officers also do not bestow sufficient care while performing examinations and their opinions may not be properly formed on account of inadequate or defective examinations or lack of complete knowledge. It is, therefore, hardly fair

to expect a complete and perfect correspondence between the medical evidence and the eye-witness testimony. Naturally, therefore, the court 1. 1960 Raj LW 565: 1961 (1) Cri LJ 155.

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may carefully examine the discrepancies and if it is reasonably open to arrive at a substantial and true version of the prosecution case, the courts should not adopt the easy course of throwing away the prosecution case on the alleged discrepancies between the medical evidence and the eye-witness testimony”.

In Nankhusingh v. State of Bihar', their lordships of the Supreme Court observed as follows:— “When a person fires at a place where there are two persons, one witness may think that it is fired at one person and the other may think that it was fired at the other. Merely because the inference drawn by one witness which may not fit in with the inference drawn by the other the factum of the firing at the place where the injured persons were, cannot be rejected. It cannot be held that the witness is a liar and he wanted to falsely implicate the appellant and others”.

Again in Nihal Singh v. State of Punjab, an argument regarding contradiction between medical evidence and direct evidence was repelled by their lordships of the Supreme Court in this way:— “Another fact relied upon by the learned additional sessions judge in discrediting the eye-witnesses is that the witnesses stated that the deceased gave a Takwa blow on the head of Nihal Singh, but the medical examination showed only a small abrasion on his left thumb. The High Court explained that the witnesses must be describing only the movements of the accused with their weapons and they could not obviously give evidence as to where a particular weapon hit the body, for that would depend upon not only the manner in which the person wielded their weapons but also on the movement of the victim. A hit aimed at the head may, if the victim moves aside, miss altogether the body of the victim or fall on a part of his body different from that aimed at. There is certainly force in what the High Court said”. Applying the reasoning adopted by their lordships of the Supreme Court in the cases cited above, the so-called contradiction or conflict between medical evidence and direct evidence pointed out by the learned counsel in the present case is, in our opinion, clearly explicable. May be, that the second shot did not hit the victim and the witnesses may have got an impression that the shot hit the victim on the back. May be, that only a few pellets of the second shot hit the victim and the rest went amiss. In our opinion, nothing turns upon this socalled contradiction or conflict between medical evidence and direct evidence. In respect of P.W. 5, Smt. Jannat’s statement, the learned counsel has drawn our attention to another discrepancy and it is this that Smt. Jannat states that the victim was at a distance of about one pace (roughly five feet) from the muzzle, whereas according to P.W. 3, Khanu, the accused fired the gunshot which hit Gamu from a distance of about six to seven paces. In our opinion, nothing substantially turns upon the discrepancy in the distance. 1. (1972) 3 SCC 590: 1972 Cri LJ 1204. 2. AIR 1965 SC 26: 1965-I Cri LJ 105.

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In Janak Singh v. State of Uttar Pradesh', their lordships of the Supreme Court observed as follows:— “According to Dr. Ghosh’s evidence, none of the three entry wounds showed any blackening or tattooing. Obviously, therefore, the firing did not take place from a very close range but from some distance at least. No doubt, the three eye-witnesses gave different distance ranging from two to six paces. But they could hardly be expected to have marked at the time the precise distance at which the person shooting the firearm was. They, therefore, gave an estimate of the distance at which he was from the victim. It is wonder that the distances they deposed varied. Nothing can, therefore, turn on such variation”. In this connection, the learned counsel has laid much emphasis on the fact that no blood marks were found either in the hut, where the first shot is alleged

to have been fired, or outside the hut upto the place where the victim fell after the alleged second shot. The learned counsel has argued that looking at the size of the wound caused by the first shot, there must have been profuse bleeding and some blood must have fallen on the ground. But since there is no evidence that there was any blood either in the hut or on the way, the direct evidence is false. In our opinion, the argument, though it appears attractive, has no substance. We have it in the evidence that due to winter season the deceased was putting on a shirt and a woollen coat. Further, he had pressed the wound while running, with both of his hands. The clothes of the victim were found soaked with blood and it is quite possible that no such quantity of blood may have fallen either in the hut or on the way as may be collected for the purpose of investigation. A lot of blood spread out at the place where the victim fell. It is also possible that the man might have bled internally after receiving the first gunshot wound. Thus, in our opinion, absence of blood marks in the hut or on

the way is sufficiently explained.’ 9.17.34 Number of Firearms Dr. S.C. Pandiya who performed the post-mortem examination has described in his evidence the injuries received by Ram Sanehi. In all he found 7 injuries on the dead body out of which injuries 1, 3 and 7, injuries 2 and 4, and injuries 5 and 6 are interconnected. Injury No. 1 is described as a “shot wound” with its entry above the left nipple. Injury No. 3 is described as multiple rounded abrasions on the left side of the chest. Injury No. 7 is the wound of exit on the right scapular region, corresponding to injury No. 1. Injury No. 2 consists of 8 gunshot wounds of entry below the right nipple while injury No. 4 consists of multiple rounded abrasions above the right nipple. Injury No. 5 is a gunshot wound of entry on the back of the left forearm while injury No. 6 is the corresponding wound of exit near the ulnar aspect of the left forearm. The evidence of Dr. Pandiya and the description of the injuries given by him ir ‘he post-mortem report tend to show that two different kinds of firearms were y the assailants of Ram Sanehi. Injury No. 1 was caused by a bullet and 1972 SC 1853: 1972 Cri LJ 1177. "in Khan v. State of Rajasthan, 1976 Cri LJ 821.

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that is clear not only from the description of the injury but from what Dr. Pandiya has stated in his evidence. He says: “The bullet, which had entered through injury No. 1 went out straight after emergency from injury No. 7”. Injuries Nos. 2 and 5 were caused by pellets. This shows that whereas injury No. 1 was caused by a firearm of the nature of a rifle, injuries 2 and 5 were caused by an ordinary gun. The medical evidence thus falsifies the eyewitnesses’ account according to which, the appellant Subhash alone was armed with double-barrelled gun, the other appellant Shyam Narain being armed with a lathi. The objective inference arising from the nature of injuries received by the deceased has a significant impact on the prosecution, which has been overlooked by both the sessions court and the High Court!

9.17.35 Number of Shots 1. The total number of used cartridges which were recovered from the scene of offence were five. The Ballistic Expert has expressed his opinion that all the five cartridges were fired from the rifle which was seized from the appellant. Having given our anxious consideration to this submission urged by learned counsel for the appellant we are unable to accede to it. Having regard to the fact that the appellant had used a dangerous weapon like a rifle (being a police constable he must have known that it was a dangerous weapon) and having regard to the fact that he had fired at Kaptan Singh as many as five shots, one of which was fired after Kaptan Singh was hit by a bullet and collapsed on the ground, it is impossible to accept the contention that the appellant had not done the act with the intention of causing his death. It is naive to argue that the intention was merely to frighten him or to cause grievous hurt for it overlooks the two salient features viz. (1) as many as five shots were fired from his 303 rifle

and (2) that he fired a shot even after Kaptan Singh had collapsed on the ground having been hit by one of the shots. 2. As we did not find ourselves in agreement with the above opinion in some of its aspects, especially that covering the type of projectile which caused injury No. 5, we had the entire matter examined by Dr. B.R. Sharma, Director, Forensic Science Laboratory, Chandigarh, to whom gun Exhibit P. 3 and the projectiles recovered from the dead body were made over for observation and opinion, he being a ballistic expert who was examined as C.W. 1. He was of the view that injuries Nos. 1 to 4 could have been caused by a single shot fired from gun Exhibit P. 3 and that injury No. 5 could have resulted from another shot discharged from the same gun. He was subjected by Mr. Sibal to a lengthy and searching cross-examination during the course of which he made the following points:—

(1) Injuries Nos. 1 to 4 could have been caused thus. The shot was fired from a distance of about 3 to 8 feet. The left shoulder of the victim was nearest to the muzzle.of the gun and his head and face were turned towards the left. Three of the pellets caused injury No. 4. Two of them 1. Subhash v. State of Uttar Pradesh, 1976 Cr LJ 1521: AIR 1976 SC 1924.

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and the wads caused injury No. 1 and a single pellet resulted in injuries Nos. 2 and 3. (2 Injury No. 5 was caused by a shot from a distance of 2 to 5 feet, so that the charge entered en masse, although the whole of it was not recovered from a dead body. Tattooing and blackening should have been present in the case of this injury. The opinion of doctor (P.W. 2) that this injury was caused by a projectile having a diameter of about 1”, is not correct. —

(3) In the case of both the shots, the ammunition used could have consisted

of L.G. cartridges. (4) Charring is more often than not confused with the deposit of dirt around the wound or with contusions caused by the impact of the projectile. Tattooing would be observed in the case of a wound caused by a shot fired from a distance upto 8 feet. (5) Injuries Nos. 1 to 4 could not have been caused by a shot fired from a

distance of “within 2 feet”. This opinion is based on the impossibility of injuries Nos. 2 and 3 having been caused by a separate shot. (6) In the case of injury No. 4, the pellets skipped. If they had entered the body at the seat of the injury, the damage caused would have been extensive. On the left shoulder part of the shirt of the deceased were observed five holes, three of which indicated entrance of the pellets and two their exit, two of the former being in line with the latter and fifth one being very small in size with its location just above the other two entrance holes. (7) The phial said to contain the small pellet recovered from one of the

wounds comprised in injury No. 4 had inside it only pieces of dried blood and no pellet. The science of ballistics on which the testimony of Dr. Sharma (C.W. 1) is mostly based attaches quite some importance to the factors determining the distance from which a firearm causing a particular injury was probably discharged and we think it only right to take note at this stage of standard treatises on the subject. Reference may be made with advantage to the following passages appearing at pages 236 and 237 of Modi’s Medical Jurisprudence and Toxicology (1969 Edition): The effects produced by small shot fired from a shotgun vary according to the distance of the weapon from the body, and choking device. A charge of small shot, fired very close to, or within a few inches, of the body enters in one mass like a single bullet making a large irregular wound with scorched and contused edges, and is followed by the gases of the discharge which greatly lacerate and rupture the deeper tissues. Particles of unburnt powder expelled from the weapon behind the missile are driven to some distance, through the wound, and some of them are found embedded in the wound and the surrounding skin which is also singed and blackened by the flame and smoke of combustion. The exit wound of a close range

shot shows greater damage of tissues than the entrance wound, the margins are everted, but there is no evidence of blackening or singeing. At a distance of one to

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three feet small shot makes a single aperture with irregular and lacerated edges corresponding in size to the bore of the muzzle of the gun, as the shots enter as one mass, but are scattered after entering the wound and cause great damage to the internal tissues. The skin surrounding the wounds is blackened, scorched and tattooed, with unconsumed grains of powder. On the other hand, at a distance of six feet the central aperture is surrounded by separate openings in an area of about two inches in diameter made by a few pellets of the shot which spread out before veaching the mark. The skin surrounding the aperture is not blackened or scorched, but is tattooed to some extent. At a distance of twelve feet the charge of shot spreads widely and enters the body as individual pellets producing separate openings in an area of five to eight inches in diameter, but without causing blackening, scorching or tattooing of the surrounding skin. At a distance of about 50 feet a pattern measuring about 14 inches from a fully choked barrel and about 28 inches from an unchoked barrel are produced and at about 100 feet the spread pattern on the target is about 30 inches from the fully choked barrel and 50 inches from an unchoked one. The scattering of shot depends upon the size of the gun, the charge of the powder and the distance of the gun from the body. As the distance increases, the damage caused by a single pellet diminishes. *

*

*

*

*

If over shot cardwad is found in the wound it indicates that the shot was fired from less than two yards while its absence suggests more than two yards. In conclusion it must be noted that it is not easy to give a definite opinion about the distance from which a firearm was discharged. According to Taylor's Principles and Practice of Medical Jurisprudence (Ed. X, Vol. I,) p. 441, no general rule can be laid down. This is what John Glaister says on the subject at pages 244 to 247 of his work of the same name (1962 Edition):—

These weapons have for their projectile, collections of small shot which vary in size, depending upon the type of cartridges employed. The small shot or lead pellets are held in position by wads, one placed between the powder and shot charges, the other on the top of the shot charge, and held in position by the end of the stout paper cartridge case turned over against it. After firing, the pellets disperse soon after their exit from the barrel, and this dispersion increases with the range. The degree of dispersion can be controlled to some extent by a ‘choking’ device near the termination of the barrel. This takes the form of a slight construction which varies in degree in different weapons. To describe this, such terms as ‘full choke’ and ‘half choke’ are used. In certain weapons there is no ‘choke’ device. If a shot is fired close to the body surface, up to a few inches, the shot enters as en mass, and in addition the liberated gases and flame lacerate the tissues, which show evidence of burning, carbon deposit, and powder tattooing. The wads may be forced into the wound, and this may prove an important clue to the class of cartridge used. When the gun has been fired at from 1 to 3 feet from the body, a more or less irregularly circular wound about 1!/, to 2 inches in diameter will be produced.

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There will be evidence of some degree of scorching, carbon deposit, and tattooing. So far as dispersion is concerned, with a ‘half-choke’ gun the pellets will show a spread of about 5 inches in diameter at a range of 5 yards, about 12 inches in diameter at 10 yards, about 16 inches in diameter at 15 yards, and

about 20 inches in diameter at 20 yards. To determine the dispersion at the same ranges with a gun of ‘full choke’ an approximate method is to deduct a quarter from the measurements of these diameters of spread. At a range of over a yard and up to about 3 yards, evidence of burning disappears and probably only faint tattooing will be found. Beyond a yard, the entering shot produces an irregular wound, and, as the result of commencing dispersion of the pellets, individual pellet holes may be detected. When smokeless powder is used, blackening and tattooing will be less marked at all ranges than with black powder.

Accurate estimations of the pellet patterns at different ranges are not possible, since so much depends upon the idiosyncrasies of individual cartridges. This is due to the fact that the cardboard wad is so frequently dislodged in an oblique fashion that turbulence of the shot occurs within the barrel and thus affects the pellet patterns at other than close ranges. With regard to the size of the area of wounding produced by a sporting gun, almost irrespective of choke, an approximate estimate, at different ranges, may be obtained by using this simple formula: If X = range in yards, then the diameter of the wounds = (X+1) inches. It should be clearly understood, however, that the dimension of the area of wounding, as calculated in the foregoing, is that of the cone of the shot spread, measured on a plane perpendicular to the line of fire and upon a relatively flat surface.

Taylor in his famous work entitled “Principles and Practice of Medical Jurisprudence” (1965 Edition), states at page 283:— Shotguns fire a charge of lead pellets which, if fired from a full ‘choked’ (narrowed) cylinder spread to a pattern which, measured in inches, is about the same as the distance in yards.

And again at page 295—

As the amount of ‘choke’ or narrowing of the bore is of importance in keeping a shot charge together, it is vital to know which barrel has been fired. Discharges from unchoked barrels may begin to spread at 2 or 3 feet from half-choke at 3 or 4 and full-choke at 5 or 6 feet. At page 296 he adds— Whatever the nature of the charge or projectile, a portion of the powder always escaped combustion at the time of discharge and each grain then acts like a minute projectile, contusing the skin, producing ecchymosis and often lacerating it ifthe weapon is fired at a close range. The clothing may be burnt, and the skin scorched by the flame of hot gas, and particles of powder may be actually driven into the skin causing ‘tattooing’. Powder marks are more easily seen when the older black powder is used. Smokeless powders are more completely burnt, and leave, as a

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rule, less deposit. The grains being colourless are less easily detected, and may entirely escape observation unless a hand lens is used. We may assume that marks of burning, or blackening, or of tattooing from powder indicate that the weapon was fired from a near distance, certainly within arm’s reach. All the three authors above quoted appear to unanimous that in judging the distance from which a firearm was discharged, the appearance and nature of the resultant wound cannot be said to afford a sure criterion and that any deductions based thereon would lead at best to a very rough estimate. We have given our most careful consideration to the medical evidence in the light of the above quoted authorities on medical jurisprudence, the deposition of Dr. B.R. Sharma and the contention of Mr. Sibal and our conclusion is that the latter cannot prevail and that the opinion of the ballistic expert, substantially in accord as it is with the said authorities, deserves acceptance. It is true that if the

edges of the wound covered by injury No. 2 were found charred, that injury could not have been caused by the same shot from which resulted injuries Nos. 1 and 4, these two injuries, according to Dr. Sharma, having been the result of fire from a range of 3 to 8 feet. It must be held, however, that it was the contusing

effect of the impact of the projectile or the dirt ring around the wound covered by injury No. 2 that was mistaken for charring; for, as pointed out by Dr. B.R. Sharma (C.W. 1), injuries Nos. 2 and 3 could not have been caused by a separate

shot inasmuch as such a shot would have produced a larger entrance wound and should also have resulted in more than one exit wounds. The dimensions of the wounds covered by injuries Nos. 2 and 3 unmistakably indicate that these wounds were caused most probably by a single pellet and such a pellet would properly be relatable to the shot which caused injury No. 1. In this connection reference may be made not only to the proximity to each other of injuries Nos. 1 and 2 but also to the fact that only two pellets were recovered from inside the head of the deceased, a fact indicative of the rest of the charge from the shot not having gone into the entrance wound covered by injury No. 1, even though the wads were all recovered from the occipital region. These factors, about the existence of which there can be no doubt, show that the charge did not enter en masse but had spread to some extent at the stage of impact and are incompatible with the existence of charring in the case of injury No. 2. It further clearly appears that the “small pellet” which the doctor (P.W. 2) claims to have found embedded in the centre of the three wounds comprising injury No. 4 was nothing more than dried blood and all the pellets which had caused these wounds had skipped the shoulder. This follows not only from the fact that only pieces of dried blood (and no pellet) are contained in the relevant phial but also from the relative position of the wounds on the shoulder part of the shirt of the deceased. And if this be so, it cannot be said that the pellets,

which caused the three wounds just above-mentioned had lost most of their momentum by the time they struck the deceased and had, therefore, been fired from long range. And once this conclusion is reached and the charring part of injury No. 2 is ignored, no improbability attaches to injuries Nos. 1 to 4 having resulted from a

single shot. If the ammunition used by the assailant was an L.G. cartridge and

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the victim’s face was turned towards the left, his shoulder being the part of the

body nearest to the muzzle of the gun, part of the charge (three pellets) could well have grazed the shoulder and ran past it through the shirt, another pellet could have gone into the left cheek and out at the seat of injury No. 1 along with the wads, breaking the jaw and getting lodged, after deflection, in the occipital region; so that in such a situation injuries Nos. 1 to 4 would be just the injuries that would result. In so far as injury No. 5 is concerned, we have not the slightest hesitation in holding that the doctor’s opinion about the diameter of the missile which caused it being an inch or so, is wholly unreliable; nor has Mr. Sibal been able to give us the description of any weapon from which such a missile was likely, in the circumstances of the case, to have been discharged. On the other hand, as pointed out by Dr. B.R. Sharma (C.W. 1), the injury could have been caused by fire from a shotgun, the range being such that the charge would enter en masse. It is no doubt true that according to Dr. Sharma, the injury should have been marked by tattooing and blackening. But then we are not very sure if the doctor (P.W. 2) conducted the autopsy with such care as not to have missed noticing

tattooing and blackening in the case of injury No. 5 if it was actually there; nor are we convinced that tattooing or blackening was really present in the case of injury No. 5 such as may have been capable of detection by the naked eye. As pointed out above in one of the passages cited from Taylor’s work, marks left by unburnt smokeless powder which is colourless are less easily detected “and may entirely escape observation unless a hand lens is used”. It has also to be borne in mind that the charge would enter en masse and produce a wound of the type of injury No. 5 even if the shot causing it is fired from a range of about 6 feet provided the barrel used is a full-choke barrel and in such a case the chances of the presence of detectable tattooing may not be very bright. In this view of the matter we hold that injury No. 5 could well have been caused by a charge proceeding from a shotgun and that the recovery of only a single pellet such as could have formed part of that charge from inside the body of the deceased is attributable only to the autopsy being not as thorough as it should have been.! 9.17.35 Carrying Gun

Though both the courts found on facts that the petitioner has committed an offence under section 27 of the Arms Act, Iam unable to agree with the same. It is very doubtful whether the petitioner was armed with a gun at all the time of the occurrence. The petitioner has clearly stated in his statement that there was a wordy quarrel at the time of the alleged occurrence and that P.W. 1 had falsely implicated him as if he was armed with a gun and attempted to shoot him. One clinching circumstance rendering the version of the revision petitioner probable is that if he really had a weapon, P.Ws. 1 and 2 who claimed to have overpowered the petitioner when he was alleged to have attempted to use the gun, could have seized the gun also. P.Ws. 1 and 2 would not have allowed the petitioner to go away with the gun when they would say that they had overpowered him. The gun was seized subsequently only from the house of the 1. Om Prakash v. State of Haryana, 1971 Cri LJ 1109 (SC): AIR 1971 SC 1388.

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revision petitioner. I am unable to accept the evidence of P.Ws. 1 and 2 in this case that the petitioner was armed with the gun at the time of the incident. On this point alone, the petitioner will be entitled to an acquittal. Even assuming that he had a gun at the time of the occurrence, since both the courts found that he had not used the gun, it cannot be said that he was carrying the gun with the intention of using the same for unlawful purpose. When the purpose for which the gun was said to be used is negatived, the question that the gun was taken with the intention of using it for an unlawful purpose does not arise. Therefore, the conviction and sentence imposed on the

petitioner are set aside.!

9.17.37 Scene of Occurrence, the Dispersal of Shots, etc. 1. The third contention was the one which Mr. Dixit elaborated.

His proposition was that the medical testimony contradicted the eye-witnesses’ version and that contradiction rendered their account unacceptable. According to Dr. Ghosh’s evidence, none of the three entry wounds showed any blackening or tattooing. Obviously, therefore, the firing did not take place from a very close range but from some distance at least. No doubt, the three eyewitnesses gave different distance ranging from two to six paces. But they could hardly be expected to have marked at the time the precise distance at which the person shooting the firearm was. They, therefore, gave an estimate of the distance at which he was from the victim. It is wonder that the distances they deposed varied. Nothing can, therefore, turn on such variation.

2. But counsel pointed out that injury No. 1 showed six entry wounds in the left back, injury No. 5, four such entry wounds in the thigh and injury No. 7 in the left leg, one such entry wound. According to him, therefore, eleven pellets

had actually hit various parts of the deceased’s body, which fact must indicate the extent of dispersal of the shot. He suggested that considering the area of dispersal the shot could not be single shot as deposed by witnesses, and secondly, that it could not have been fired from a short distance also deposed by them. In particular, he relied on the observation by the trial court that an S.G. cartridge contains nine pellets only and, therefore, the fact that the three entry wounds were caused by eleven pellets clearly suggested that there must have been at least two shots fired and not one. He also emphasised that the area of dispersal from the victim’s back to her left leg also suggested that it could not have been one but two shots which could have caused all the three entry wounds with eleven pellets having caused eleven injuries at three different places. In support of his theory, he relied on the finding by the police (Ex. Ka 10) of five tiklis of cardboard and one flattened round shot at the well which according to him was again indicative of more than one shot having been fired at. It is clear that entire argument was based on the assumption of a wide dispersal of the shot. The facts of the case and the evidence on record, however, do not support the assumption. The three entry wounds, besides the account given by the eyewitnesses,

clearly established

that the deceased

1. §S.S. Sundaram (in re:), 1975 Cri LJ 1196 (Mad).

was

shot in her back from

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behind. If she was sitting, as described by the eye-witnesses, in a crouched position, her back, her left thigh and her left leg would more or less be, as already stated, in a perpendicular line. It will be noticed that injuries (v) and (vi) are entry and exit injuries prima facie indicating that the pellets which entered into the victim’s left thigh penetrated through and through. The same is the position with regard to injuries (vii) and (viii) on her left leg. Two alternatives thus suggest themselves. Either that the same pellets which went through her left back (entry wound No. (i) and came out through the chest (exit wound No.

(ii) hit the thigh and the coming out through and through also penetrated her left leg, both of which were in a line, or the three parts of her body were not in a straight line and different pellets dispersed from the shot penetrated the three limbs independently of each other. In the case of the first alternative, there would be no question of a wide area of dispersal. In the case of second alternative, also, the dispersal would not be in any wide area. The site plan produced by the prosecution also makes it clear that there could not have been much distance between the victim and her assailant and, therefore, there was not much scope for any large dispersal of the shot. Such a conclusion is in harmony with the doctor’s evidence, the places where the pellets entered into the victim’s body and the evidence of the two eyewitnesses. It is true that in all at least eleven pellets entered into the victim's body at three places. The trial court observed that an S.G. cartridge would contain nine pellets. But as the High Court observed that was a personal observation made by the court without any such evidence. There was no evidence to show that the cartridge in question was an S.G. cartridge. No argument can thus be founded on an assumption that the cartridge was an S.G. cartridge. The police found five tiklis but they could be cardboard tiklis in which the pellets must have been packed. Their seizure by the police at the spot could not solve the question whether one shot was fired or more. Likewise, in the absence of evidence as to what kind of pistol was used by the assailant, passages cited by counsel from works on firearms can hardly be of any relevance. The fact of the matter was that the eye-witnesses were emphatic that it was the appellant who fired at the deceased with a country-made pistol, and that he fired once only. That evidence was backed by the opinion of Dr. Ghosh who equally emphatically opined that all the six gunshot injuries could be caused by a single shot. That evidence was acceptable to both the courts and nothing has been substantiated before us which can justifiably impugn that evidence. Counsel could raise only conjectural alternatives as against the eyewitnesses’ account as to how the incident occurred. Such conjectural alternatives cannot be substituted in place of accepted evidence of those who actually saw the incident!

9.17.38 Correct or Incorrect Inference 1. During the course of investigation seven cartridges were recovered at the place of occurrence. One empty cartridge and one misfired 12 bore cartridge were found near the dead body of Tota Singh. Five empty cartridges were found 1. Janak Singh v. State of Uttar Pradesh, 1972 Cri LJ 1177: AIR 1972 SC 1853.

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lying on the southern Chabutari where Murti was washing clothes. A licensed DBBL gun was recovered at the instance of Gurdas Singh. An SBBL gun was recovered on being pointed out by appellant Bawa Singh. Four of the cartridges, according to the evidence of the ballistic expert, P.W. 13 Dr. M. Johari, had been fired from the single barrel gun recovered at the instance of Bawa Singh. Dr. Johari was definite that misfired cartridge were neither from the doublebarrel gun of appellant Gurdas Singh nor from the single-barrel gun of appellant Bawa Singh. This clearly established the use of a third gun in the occurrence as was the prosecution case. Dr. Johari could not give any definite opinion about the other two empty cartridges as to whether they were fired from the DBBL gun of appellant Gurdas Singh. The findings of the ballistic expert and exemption of two persons from trial did create some confusion in the prosecution evidence and perhaps led the witnesses to make some changes or embellishments in their evidence. Nonetheless as found by the courts below, in material particulars the evidence of the eye-witnesses was trustworthy, credible and truthful.’ 9.17.39 Sequence or Events

1. It may be mentioned here that the site plan, relied upon by the High Court to give 7 feet as the distance between the door and the place on the sofa where Thakar Singh was sitting, was prepared by a draftsman, Bakshi Singh, P.W. 10, on 24-2-1970, at a time when the sofa was not there at all. He admitted that he had shown the sofa and its distance from the door only on enquiry from the investigation officer. We do not think that such a statement could be admitted in evidence. Moreover, even if we assume, for the sake of argument, that this

distance was 7 feet and, also that there was a chick, as deposed by the witnesses, the shooting could easily take place from a distance of 6 feet by inserting the barrel of the gun by the side of the chick and taking aim while taking the cover of the wall adjacent to the door. Dr. G.S. Gambhir, the medical officer, who had performed the post-mortem examination, said, after looking at the injuries of Thakar Singh: “These injuries were caused when the nozzle of the gun was at a distance of about 6 feet from the body. These injuries could not be caused ifthe nozzle was 4 feet away from the body. By nozzle I mean ‘muzzle’ of the gun barrel”. He also said:— When the distance is less than 4 feet or 4 feet, the pellets enter the body en masse. If the distance is more than 4 feet, then the pellets will spread and will enter the body within a diameter of 2 inches from the main hole. In the present case there are three separate openings adjacent to injury No. 1 and there were four small openings around the second injury. I have not noted the exact distance of the various openings with regard to injuries Nos. 1 and 2. Upto a distance of 3 feet the pellets do not spread. My opinion is based on Modi’s Medical Jurisprudence. 1. Gurdas Singh v. State of Rajasthan, 1975 Cri LJ 1218.

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The following injuries were found on the body of Thakar Singh: One circular wound about 2” in diameter with lacerated margins on the front of the chest, slightly on the right side of the middle line. There were three small separate openings adjacent to the main wound. One circular wound about 1s,” in diameter with lacerated margin over the left shoulder joint. There were four small openings adjacent to main wound.

These injuries show that Thakar Singh’s back was probably turned towards the door when he was first hit. Perhaps that is why he was first struck on his left shoulder joint. He must have turned slightly after the first shot. Hence, the other injury is on the front of the chest on the right side. If the assailant had actually entered the room and shouted “Thakar Singh” and shot, the injuries would be right in front. In that case, there could have been no injury on the left shoulder joint. It may be mentioned here that the F.I.R. lodged by Joginder Singh does not mention that the assailant had shouted ‘Thakar Singh’ before shooting at him. He admitted this omission but gave no explanation for it. Medical evidence also revealed that there was no blackening, tattooing, scorching, charring or singeing around the main wounds. It was, therefore, contended before us that the shooting must have taken place from a distance of more than 4 feet. The High Court had explained the absence of blackening and charring by observing that the cartridges inside the gun bore the word “smokeless” and opined that the shooting need not have been from a distance of more than 4 feet. It seems to us that the High Court had assumed that the cartridges found in the gun were actually of a kind which would not cause blackening or charring or singeing and that these were the very cartridges used by the murderer. The requirements of a technically proper proof were wanting on this point. The ballistic expert, called in as a defence witness, was not even questioned on the point. Here, we may refer to the evidence of ballistic expert Shri J.K. Sinha, D.W. 10,

Assistant Director of the Forensic Science Laboratory, who was not produced by the prosecution probably because he had made a report showing that it was not possible to connect the cartridges with the gun as the impressions made by the hammer were too indistinct. The gun was proved, from its licence, to belong to Mohan Singh, the son-in-law of Thakar Singh. It was not sent for examination of any fingerprints on it. Had there been such evidence of the appellant's fingerprints on the gun, it would have furnished strong corroborative evidence. In the circumstances of the case, we find it difficult to link the gun with the actual weapon with which the murder was committed. It is not inconceivable that it was left deliberately outside by someone to confuse the investigating authorities. ! 2. The question outside” the shots

various matters mentioned in the judgment of the High Court on the “whether the shots were fired from inside the drawing-room or from are so convincing that one could not but come to the conclusion that were fired from inside the drawing-room and not from outside. The

1. Datar Singh v. State of Punjab, AIR 1974 SC 1193.

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various findings of bullet marks on the wall, the calendar, the door pane in the

light of the evidence of the ballistic expert did not leave any scope for even a shadow of doubt that the doctor was hit by a gun fired from inside the drawingroom. The assailant at the time of firing was not and could not be visible to persons outside as the shots were fired from a place inside the drawing-room which was south-east of the western door. And that is the reason that Kalika did not say that he saw Shamim firing the shots at Gautam. He merely deposed to the fact of the former proceeding to the western room immediately after the firing. It may also be added that the fact that the shots were fired from inside the drawing-room was neither disputed in the High Court nor before us.

For the reasons stated by the High Court in its judgment, we unhesitatingly endorse its view that the shots were fired from the 20 bore DBBL gun which was recovered from the eastern room and the licence of which was in the name of Sikandar Jahan, stress was laid before us that P.W. 14, Sia Ram

Gupta, the

ballistic expert, had deposed with reference to the two empty cartridges found at the spot that the shots could have been fired from the 20 bore DBBL gun of Sikandar Jahan: the expert was not definite about it. We find no force in this.!

9.17.40 Conflicting Versions 1. The High Court noted that a number of contradictions were pointed out in the account given by the eye-witnesses P.W. 3, P.W. 4, P.W. 5, P.W. 6, P.W. 7, and

P.W. 31 and that the prosecution has not been able to explain the injuries which Nadar had on the palms of his hands which injuries, according to the High Court, indicated that he was protecting himself against gun fire. It is also observed that the contradictions were not minor as they related to the spot of the murder, the fields through which the accused passed and the manner in which the killing took place. There is also the question of incompatibility with the medical evidence regarding the distance from which the gun was shot and the way it was shot. It was of the view that the incised wounds were more likely to have been caused after death and the likelihood of a false story of knives of the assailant cannot be ruled out. As regards firing of a pistol, there is absolutely no corroboration and the evidence was characterised as a myth. The igs in the shirt could have been only caused by the firing of the pistol and nothing collected on the spot showed that Sohrab fired a pistol or he fired a pistol on Sobalsingh. The story of the pistol was, therefore, discarded. Notwithstanding these findings, the High Court found that there was unanimity in the evidence of all the witnesses that Sohrab fired the fatal shot or shots with a gun given by Nadar. This was corroborated by the medical evidence which indicates that the injuries on the deceased were due to gunshot injuries. There is also the evidence of the incident having taken place in a field in which the deceased was found and there was unanimity on the point that Nadar handed over the gun to Sohrab and Sohrab fired a shot on Sobalsingh who fell down after which a second shot was fired. The version of the accused that the gun shot injuries were caused accidentally will not be believed. The defence story that Nadar was

easing himself when he was attacked all of a sudden after which a scuffle 1. Shamim Rahmani v. State of Uttar Pradesh, 1975 Cri LJ 1654: AIR 1975 SC 1883.

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between Sohrab and Sobalsingh took place resulting in the accidental firing of the gun was difficult to be comprehend. The High Court however dealt with the several contentions urged in respect of the story that Nadar had handed a gun to Sohrab which he could have easily fired himself or that Nadar who is said to have caught Sobalsingh from behind should have been the first to have been injured, or that the directions of the injury on Sobalsingh indicates that the firing was from below when Sohrab was at a higher level, or that the witnesses could not have been seen from the place where they were or that Sohrab fired at Sobalsingh, or that he fired it when its barrel was at a distance of 11/2 cubits from Sobalsingh were all discussed, but they were not considered to throw any doubt on the main version of the eye-witnesses that it was Sohrab who had fired the gun while Nadar held the deceased. The conclusions of the High Court have been set out as under: The argument that the shooter should have been at a level lower than the victim and such a state has not been told by witnesses. Rather the story clearly excludes such a possibility has, no doubt, some merit ifwe accept the story of the prosecution witnesses as told by them. We do not fully accept the same. In fact they saw the incident from a distance and the detailed descriptions are all inferences as even admitted by one of them. A man running for life and a mare following would be away quite far from the witnesses. Number of fields mentioned by the witnesses intervened the witnesses and the spot. In fact it has been a point taken up by the defence that on account of the distance they could not see. What we feel is they could see the broad facts, Sohrab’s running on a mare, broad and easily visible actions that one could see from a distance. The rest of the details are imaginations and inferences. Nadar’s injuries on his palms cannot be explained strictly on the basis of the prosecution version; but as we have seen the details are unbelievable, we can only say the witnesses could not see how the injuries on Nadar’s palms were received. They were received undoubtedly on the spot and when gun was fired, Sobalsingh was no doubt held or appeared te have been held by Nadar from a distance. He must have tried to move, that moment was responsible for injury to his palms. The unassailable story, therefore, remains is that Sohrab fired a gun at Sobalsingh and Nadar handed over the gun to him. Both of them are, therefore,

guilty. 2. Harish Chander expressed a desire to see how the pistol is fired. The accused took out the pistol from his pocket and after removing the magazine from the pistol placed it on the bed. Harish Chandra asked him if the weapon was ready to be fired and the accused replied that there was a bullet inside. The accused took out the bullet and then demonstrated to Harish Chandra how the pistol is used. Harish Chandra also took the pistol in his hand and pressed the trigger by pointing it towards the roof. Harish Chander handed back the pistol to the accused who after loading it with the bullet and magazine, put it in the pocket of his pant. In the meantime Nirmal Kanta entered the room and she also desired the accused to demonstrate how the pistol is fired. The accused again 1. Sohrab v. State of Madhya Pradesh, 1972 Cri LJ 1302: AIR 1972 SC 2020.

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removed the magazine from the pistol by aiming it at forehead. On receipt of the alleged that Lalita had also

539

the pistol but omitted to take out the bullet. He fire the deceased. The bullet hit the deceased in the bullet injury Nirmal Kanta fell to the ground. It is in the meantime come into the room. Lalita asked

Harish Chander to call Asha Rani, mother of the deceased,

who reached the

spot within a few minutes. Nirmal was removed to the Irwin) Hospital where she succumbed to the:injury on 8th September, 1970. The post-mortem on the dead body of Nirmal Kanta was ae amea on 8th September by Dr. Vishnu Kumar (P.W. 1). He found an oval wound 0.5 cm. x 0.4 cm., width 0.2 cm. on the front of middle of the forehead 1.8 cm. above the bridge

of the nose. The doctor gave the opinion that the pistol had been fired from a distant range because there was no singeing, blackening or tattooing around the above injury. He also gave the opinion that the above injury was sufficient in the ordinary course of nature to cause death. The accused in his statement at the trial admitted his marriage to Lalita Devi. He also admitted that he has a son named Rajinder Kumar from his first wife. The accused denied that on 5th September 1970 he had gone to invite Harish Chander and Nirmal Kanta for a game of cards but stated that they had decided to go for a picnic on the following day, that is, 6th September. He further admitted that on 6th September at about 10 A.M. Harish Chander and Nirmal had come to his house. The accused admitted that the pistol Ex. P. 1, the magazine Ex. P. 2, the cord Ex. P. 3 and the fired bullet belonged to him. The

accused stated that he had taken out the pistol from his almirah and placed it on the cot. The accused admitted that at the request of Harish Chander he had demonstrated to him as to how the pistol is used. The accused stated that before Nirmal Kanta had come into the room he had placed the magazine and the bullet inside the pistol and put it on the cot. The accused stated that Nirmal Kanta had requested Harish Chandra to show to her as to how the pistol is fired and that Nirmal Kanta had received the bullet injury while Harish Chander was demonstrating to the deceased as to how the pistol is fired. The accused admitted that Nirmal died as a result of the bullet injury. Soon after the occurrence Sewa Ram had gone to the shop of Krishan Gopal (P.W. 9), and told him that one girl had shot herself in his house. Krishna Gopal informed the police of the occurrence as told to him by the accused. The accused did not stick to this version at the trial it appears advisedly, for the medical evidence showed that the pistol had been fired at from some distance. Before the committing magistrate the plea taken by the accused was that it was Harish Chander who had killed Nirmal Kanta accidently. On a careful perusal of the testimony of Harish Chander and P.Ws. 4 and 5 we are of the view that there is no clear and convincing evidence on the record

with regard to the alleged motive.' 3. In the background of the above contentions, it is unnecessary to go into a detailed discussion as to the manner of death or the nature of weapon used for 1. Sewa Ram v. State, 1976 Cri LJ 242.

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the purpose. It can be safely presumed that the deceased met her end at the alleged time and place from a gun shot fired from M.O.L with the cartridge M.O. ll. Suffice it to say that the doctor who held the post-mortem found one circular wound 1!/," in diameter situated in the right flank below the rib margin of the right side, 6" from the spine and 11" from the shoulder in the midaxillary line. The surrounding skin was blackened and scorched. A small lacerated portion of the liver tissue was protruding. The wound was 6" deep and its direction was horizontal to the foot. Besides these, there was an ecchymosis 2" x 1" x 1" behind the elbow joint of the right arm. On dissection, the material things that he found within the wound were six pieces of round cardboard and eight pellets from the liver tissue, which were sent to the investigating officer. These were examined

by P.W. 3, the ballistic expert according to whom, the gun was fired from an approximate distance of 3 to 4 feet from the victim, and that angle of firing was approximately little over right angle to the surface of the body. The ecchymosis was explained to be due to fall after receipt of gunshot. P.W. 3 is the ballistic expert and his report, Ex. 6, shows that the gun, M.O. I

was in good working order and that the residue from the right barrel indicated that M.O. II (the empty cartridge) had been fired from that barrel of the gun. To certain suggestions indicating a case of suicide he has in his cross-examination negatived the theory when he stated that in view of the site of the injury and the angle of fire it is not possible that the injured could have shot herself to death. He further stated in cross-examination thus: “A person with longer arms than myself may be able to shoot the gun, M.O. I, at himself. If the gun, M.O. I, is firmly placed in position and then the trigger pressed by manipulation with a stick-like-article, it might be possible to shoot oneself”. But such a contingency can be safely ruled out in view of the positive evidence in the case that the gun had been placed in a Khatuli-(small charpoy) 1.¢., in its original position along with the rifle and the barrel was not towards the direction of the deceased. Further the cartridge, M.O. II, after firing, had been taken out from the magazine and placed on the table nearby. Such a situation is only possible when the assailant, after firing the shot, had enough time first to extract the cartridge and then place the gun and the empty cartridge in their respective places along with such other articles of the house as was found by the investigating officer.

The statement of the investigating officer concerning materials is thus: “I found that the double barrel gun and a rifle had been placed on a Khatuli 3'/, feet from the head of the deceased. M.O. I is that gun, and M.O. IV is that rifle. The muzzles of both the guns were pointing towards the east. I also found that two 12 bore empty cartridges had been placed on a table over the khatuli and one of those cartridge cases smelt of gunpowder indicating recent firing. M.O. II is that cartridge case smelt of gunpower. There were two other 12 bore live cartridges lying on the table. The overshot wad, M.O. III was laying to the side of the dead body in line with the gun shot wound on the dead body. I seized the gun licence,

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Ext. 10 on production by the accused and some other live cartridges which were inside a locked box, vide seizure list Ext. 11. +

*

+

*

*

At my bidding the accused had himself opened the lock of the box”.

9.17.41 Presentation It is further clear that the recovery was not made from the residential portion but from the place where cattle are tied and the fodder is kept. The object was admittedly hidden from human gaze. The accused has farm-servants. It cannot be presumed that the place is not accessible to these farm-servants especially when it is a place for tying cattle. The exact location and its distance from the gate are not clear from the record. Under these circumstances, it cannot be held that the thing hidden at a place accessible to others in the house inhabited not only by A-I but also by another was in the conscious or voluntary possession of accused.

It was the duty of the prosecution to prove against the accused that M.O. 2 belonged to him, that he had secreted it or that he was in actual possession of the thing recovered. Mere physical presence of the accused in proximity to the object cannot by itself be an incriminating circumstance unless it can be held that he was in conscious and intelligent possession of that object. Merely because he is the head of the joint family or the owner of the house, he cannot be credited with constructive knowledge of a hidden thing. Possession must imply knowledge and there would be no possession when there is no knowledge. It requires no elaborate argument to state that possession without knowledge lacks the element of mens rea or criminal intention which is essential for an offence. It cannot also be said that the weapon was under the control of the accused within the meaning of the Arms Act. “Control” under the Arms Act means that the accused must have power over the weapon so that he can direct its custody, production, use or disposal in some manner. Thus, in the instant case, it cannot be held that the said country-made smooth bore firearm which was lying buried in the manger at a place accessible to others was in the conscious or voluntary possession and control of the first accused. The offence under section 19(f) of Arms Act, is not, therefore, made out against him.

The prosecution has relied on the report of the Chemical Examiner and the expert evidence of P.W. 38. The report of the Chemical Examiner is to the effect that the barrel washings of the pistol (M.O. 2) were examined and the combustion products of the smokeless powder in them were detected, though the time of firing could not be stated. The Chemical Examiner has further stated that he examined the margins of the rents of item X and the scrappings from item XIII for products of combustion of gunpowder but he did not detect the products of combustion of gunpowder in either various items with the assistance of the firearm expert of the Crime Branch C.1.D., Madras are that:—

1. Lal Chhatrapati Sai v. State of Orissa, 1976 Cri LJ 1342 (HC).

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(i) Item XII (M.O. 2) is a country-made pistol capable of firing a 12 bore cartridge and is in working order. (ii) M.O.7 was fired from M.O. 2. (iii) M.Os. 8 to 10 could have formed part of 6 size 12 bore cartridge like

M.O. 7 and could have been discharged from the same; and that: (iv) The pellets recovered are of No. 6 size and the pistol was discharged

from a distance of 6 feet which can be concluded, having regard to the injuries described in the post-mortem certificate. P.W. 38 in his deposition states that he fired a test cartridge with M.O. 2 and compared the pin-mark on M.O. 7 with the aid of a comparison microscope and he found agreement in shape and other finer striations and, therefore, he was of opinion that M.O. 7 was fired from M.O. 2. As regards M.Os. 8, 9 and 10 he states that they could have formed part of M.O. 7 and could have been discharged from it. He further states that the barrel washing of M.O. 2 was taken’ and the combustion products of smokeless powder were found but the exact time of firing could not be stated. In cross-examination he says he did not take any photos of the pin-points, etc., that a similar cartridge like M.O. 7 could be fired in a revolver of the same bore, even if hand-made, will have its own

individual characteristics, in casting the pin-marks. In scientific criminology the main principle of forensic ballistic is to establish whether a given bullet or cartridge was used in a particular weapon. The scientific knowledge during the past thirty years in this regard has advanced considerably. It is now possible not only to tally the cartridge fired with the gun used but a number of other important facts can be decided though with varying degrees of probability. Among these are the distance from which a shot was fired, the approximate time when the weapon was last fired and other questions of similar nature. These are all the questions that require solution in the present case. As pointed out above, the cartridge was not found at the place of occurrence. But, it was at altogether a different place.

It is necessary that it should be first connected with the pellets that were ejected and then with the weapon that discharged the same. This is possible if not only the time of firing M.O. 2 tallies with the time of the incident but also the thumbprints of the gun on the cap and base of the cartridge tally with those found on the disputed cartridge and further the pellets are traced to the firearm in question. The conclusions of the firearms expert and the chemical examiner in this particular case do not take us far in the murder. So far as the pellets are concerned, the results arrived at by the firearms expert do not appear to be conclusive. They only seem to bear the impress of a mere probability though with regard to the pin strike and finer striations on the base or the cap of the cartridge the opinion expressed seems to be definite and conclusive. But, unfortunately, he has not produced the test cartridge for comparison purposes. The learned advocate on that account has argued that unless the data be supplied or the enlarged photos be produced so that the opinion of the expert may be verified by the court, the court ought not to accept the opinion of the expert without

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satisfying itself of the correctness of the same. Reliance has been placed in Balija Pulayya (in re:), AIR 1941 Mad 88 (I), Harendranath Sen v. Emperor, AIR 1931 Cal 441 (J) and Fakir Mohomed v. State of Madhya Pradesh, 1967 Cri LJ 1197.

We feel that the test cartridge ought to have been sent to the court so that the court could be satisfied of the identity of the thumbprint of the gun on the breech face of both the cartridges.

As we have observed above, forensic ballistic concern with investigation of firearms and ammunition and of problems arising from their use for purposes of legal evidence. The firearms can be broadly divided into two main classes: (1) smooth bore arms; and (2) rifled arms. In the first comes the shotguns or the firearms like M.O. 2. M.O. 2 cannot be confused with an automatic or selfloading pistol which ejects the empty cartridge at the spot nor with a revolver which has a rotating magazine called cylinder. Whatever its size, M.O. 2 is only a smooth bore country-made firearm. The rifles, revolvers, automatic and self-loading pistols and machine guns fall under the above-mentioned second class. The barrel of the second class being furnished with spiral grooves imparts spin to the bullet, thereby giving not only accuracy and penetrating powder but also the markings and the other characteristics of the barrel which carry individual peculiarities.

_

But, shots discharged from a smooth bore firearm scatter over an area that increases roughly according to the distance of the target from the gun, and besides these missiles do not bear the individual characteristics of the barrel so effectively as in the rifled arm. That is the reason why the pellets from a shotgun, though can be measured, weighed and subjected to chemical analysis, cannot establish the identity of the gun that fired them though in the case of bullets from a rifled arm the identification of bullets is possible with the help of a microscope and expert’s services. Lemoyne Synder in his book on Homicide Investigation at page 100 discussing the bullets from a rifled arm states as follows:— When a lead bullet is fired through this barrel, these characteristics of the gun barrel will be transferred to the sides of the bullet so that bullets fired from a certain barrel will have characteristics which are peculiar to that particular firearm and to no other. In like manner other machine parts of the mechanism, such as the firing pin, extractor pins, the breech facing will likewise impart marks to the primer or shell which are characteristics of that particular weapon and to no other. Thus, it is possible, when a bullet is found, in a dead body or any empty shell near where a gun is fired, to tell whether that bullet or shell was fired in any particular weapon which may be suspected of having fired the fatal shot. C.J. Poison in The Essentials of Forensic Medicine at page 166 with regard to shotgun missiles states that:— The pellets from a shotgun can be measured, weighed and subjected to chemical analysis, although the results have a relatively limited value.

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Thus, in this particular case where the pellets have been discharged from a smooth bore barrel firearm the expert’s opinion cannot take us far. The pellets unlike the bullets do not bear the impress or the characteristic marks of the barrel of a particular weapon which distinguish them from those of the barrel of any other like weapon. The size of the pellets alone is not a dependable test not when their actual number is not correctly ascertained can they be in any manner connected with M.O. 7 to any degree of probability or certainty. It must be remembered that even in cases of bullet evidence the expert evidence should come before the court by means of photomicrographs. Nigel Morland in An Outline of Scientific Criminology at page 96 under the caption “Court and Bullet Evidence” states:— Expert evidence of the highly technical kind with forensic ballistic deals, is usually presented to the court by means of photomicrographs that show the various significant points of agreement. The preparation of these demands a high degree of skill if all the relevant points are to be brought out and the possibility of error executed. It is a tribute to the way in which such work has been handled that, new though forensic ballistics is as compared with other sciences, courts today readily accept its evidence. Thus, it is evident that the evidence with regard to identity of pellets not only labours under inherent want of precision but also is most unsatisfactory. The case of the prosecution that the missiles at the scene of occurrence were discharged from M.O. 2 must, therefore, fail. No doubt, the thumbprint of the gun on the cartridge plays an important part in establishing the identity of the gun provided the suspected cartridge can be connected with the incident, but in this regard too there is no material on record that the trial shots conducted have given the thumbprint of the gun in perfect unison with that on the suspected cartridge, M.O. 7. Lemoyne Synder on Homicide Investigation at page 100 while describing figures 32 explains the fired shell in the following manner:—

When a cartridge is fired the explosion not only forces the bullet out of the barrel, but with equal force it drives the shell back against the breech of the gun. The primer, being made of soft metal, will pick up any scratches or tool marks on the breech facing and these markings on the primer will be characteristic of that particular firearm and none other. Nigel Morland in his book on An Outline of Scientific Criminology at page 91 characterises these markings as thumbprint of the gun and describes them as below:— When afirearm of any kind is discharged, the gases generated by the combustion of the charge have two effects, they eject the bullet from the muzzle with — considerable velocity, and they drive back the cartridge against the breech face of the weapon. The pressure with which the latter occurs is sufficient to cause the cap and base of the cartridge, which are of comparatively soft metal, to take an imprint of the breech face, in much the same way as a piece of wax pressed on to a seal takes an impression of the design. It is this imprint which enables cartridges to be identified as to having been fired from a particular gun.

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While describing the method of examining cartridges, at page 92 he states as follows:— Broadly, therefore, the method of determining whether a cartridge has been fired from a given gun—often an important factor in crime investigation—is as follows: Several trial shots are fired from the gun it is desired to test. The markings made on the cartridges are compared with those on the suspected cartridge.

By a process of comparison and minute examination according to a fixed plan, identity can be established or disproved with a probability of error so remote as to be entirely outside practical consideration. To put the problem simply, it may be stated thus: the trial shots give the thumbprint of the gun. Has the suspected cartridge the same thumbprint? If it has, identity is established; if not, it is certain that the gun and the cartridge do not ‘marry’. In practice, as would be expected, the matter is not so simple as this and many difficulties and complications arise. To start with not only the marks already mentioned on the base of the cartridge and on the cap, but those on the body, or tubular part, have to be considered. There are others that provide clues, such as the indentation made by the firing pin and by the mechanism for ejecting the spent cartridge. The pressure of the cases formed by the explosion also plays a part in determining the nature of the thumbprint, since, owning to slight differences in the charge as between cartridge and cartridge, certain marks may appear on one cartridge, and not on another. This makes it clear that even the examination of cartridges requires minute care and thorough satisfaction for correct conclusions. The court drawing an inference from the opinion of the expert, therefore, should be satisfied of all these. This is possible only when the requisite material is brought before it.

Evidently but for M.O. 7 which is said to be a suspected cartridge, no test cartridges has been produced before the court so that the identity of the marks on the suspect may be established with the test cartridge. Indubitably, the evidence on record is scanty and does not connect M.O. 2 either with M.O. 7 or with the pellets that were discharged at the place of occurrence. As we have pointed out above the expert has expressed his inability to determine even approximately the time at which the gun must have been last fired. The chemical examiner’s conclusion with regard to the range of firing too based wholly on the injuries described in the post-mortem certificate is not much dependable. The diameter of the area in which the pellets lay is not ascertained for any estimate is based on tests with the suspected weapon. The overshot card or wad may also be a determining factor. But evidently that has not been made the basis for his conclusion. We think it unnecessary to enter into a detailed discussion in this behalf. It is, however, clear that the evidence of the expert or the chemical

examiner in this case is of no help in establishing the identity of the pellets with the gun, M.O. 2. Neither M.O. 2 nor M.O. 7 can, therefore, be said to be an incriminating object in relation to the murder of the deceased. Thus, it is neither

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proved that A-4 or A-1 had owned or possessed M.O. 2 and M.O. 7 nor is it established that these were used for the murder of the deceased.!

9.17.42 Insufficient Data It seems that the learned judges of the High Court were not at all impressed by the evidence of the expert, which they characterized as unsatisfactory and they were not also confident that the gun (Ex. P-16) had been used in causing the injuries to Dalip Singh. This appears from the following observations made by them in their judgment: The gun P-16 was identified by Jita Singh as the gun with which Mohinder Singh fired at him and Dalip Singh but he identified the ‘gun’ because of a brass plate of its butt end. We have seen the gun. Its brass plate could be of no use for the identification of the gun. Again commencing on the nature of injuries found on the body of Dalip Singh:

What kind of bullet it was which, though it had blackened the area where it entered the brain showing that it had been fired from not far away, did not shatter the brain, we do not know? What kind of projectile it was, which entered the body (which if the evidence is to be believed it was fired at from a few feet at Dalip Singh) and passed through the body without shattering the inside of the chest or causing extensive damage therein is also not known. Mr. Sethi (counsel for the accused) quoted Taylor's book on medical jurisprudence and Hatcher's book on ballistics and argued that the firing must have been from a place between 800 and 1,200 yards away in order that the projectile may pass through and through the body and not shatter it. That, of course, presupposes that the barrel of the gun (using the word ‘gun’ in the generic sense) is grooved which caused a projectile to go forwarded with a rotatory motion of something under a quarter of a million revolutions a minute and travelling at the rate of about 2,000 miles an hour when it leaves the gun. We do not know whether the barrel of this gun (Ex. P-16) is grooved or not. It is a single barrelled gun and is country made. The likelihood is that the barrel is not grooved. On a careful reading of the judgment under appeal, it appears that the learned judges of the High Court strongly felt that they had no adequate explanation in the oral evidence before them for certain puzzling features of the injuries on Dalip Singh. This is exactly what we also feel in this case, and it seems to us that the evidence which had been adduced falls short of proof in regard to a very material part when an injury is caused by a lethal weapon, it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the alleged weapon. It is elementary that where the prosecution has a definite or positive case, it must prove the whole of that case. In the present case it is doubtful whether the injuries which are attributed to the appellant were caused by a gun or by a rifle. Indeed, it seems more likely that they were caused by a rifle than by a gun, and yet the case for the prosecution is that the 1. K. Thimma Reddi (in re:), 1957 Cri LJ 1091 (AP): AIR 1957 AP 758.

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appellant was armed with a gun and, in his examination, it was definitely put to him that he was armed with the gun (P-16). It is only by the evidence of the duly qualified expert that it could have been ascertained whether the injuries attributed to the appellant were caused by a gun or by a rifle and such evidence alone could settle the controversy as to whether they could possibly have been caused by a firearm being used at such a close range as is suggested in the evidence. It is clear, and it is also the prosecution case, that only two shots were fired at Dalip Singh, and one of the crucial points which the prosecution, had to prove was that these shots were fired in such manner and from such distance as is alleged by the eye-witnesses. There is, in our opinion, a gap in the prosecution evidence on a most fundamental point and the error which has been committed by the courts below is to ignore the gap and decide the case merely upon the oral evidence of three witnesses, two of whom are mere chance witnesses and not altogether independent persons and the evidence of the third witness is open to criticism on the ground of his partisanship as well as the improbability of his having been able to see the firing at his brother after he had himself been shot at the back of the head. The learned judges of the High Court, after commencing upon the entire evidence, say in their judgments: We are thus left with the evidence of three witnesses of the prosecution together with the state of wounds as shown by the medical evidence and an unsatisfactory statement of the expert.

They reject the evidence of the expert, and they consider the nature of the wounds to have created a serious difficulty in the case. Having arrived at this conclusion, it was a serious thing to rest the appellant’s conviction wholly upon the oral testimony in the case which has remained unchecked and unconfirmed by expert evidence. The real position appears to be that the prosecution case cannot be said to be wholly proved but only partly proved if it is permissible to use such an expression. This court, as was pointed out in Pritam Singh v. The State, will not entertain a criminal appeal except in special and exceptional cases where it is manifest that by a disregard of the forms of legal process or by a violation of the principles of natural justice or otherwise substantial and grave injustice has been done. It seems to us that the present case comes within the rule laid down because the appellant has been convicted notwithstanding the fact that the evidence is wanting on a most material part of the prosecution case.! 9.17.43 Probable and Categorical Evidence According to the prosecution case Swaran Kaur, the aunt of the appellant, was standing behind Dial Singh when the appellant shot at him and the shot which entered the body of Dial Singh came out and hit Swaran Kaur. The prosecution evidence itself is that Swaran Kaur was trying to dissuade the

appellant and his people from quarrelling. Therefore, she must have been in front of him and could not have been behind Dial Singh. Moreover, even 1. Mohinder Singh v. State of Punjab, 1953 Cri LJ 1761 (SC): AIR 1953 SC 415.

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according to the prosecution evidence she was at least 25 or 30 feet behind Dial Singh when the shot was fired by the appellant. A third circumstance is that whereas the injuries on the deceased were in the chest the injuries on Swaran Kaur were a little above the knee and below the knee. These three circumstances improbablise the prosecution story of the shot fired at Dial Singh going through his body and then going further and hitting Swaran Kaur, femur being fractured. The rib of the deceased was also fractured. In this state of the evidence the learned judges of the High Court thought it necessary to examine a ballistic expert. They have relied heavily on his evidence in order to sustain the conviction of the appellant. We have carefully gone through his evidence and are of the opinion that it does not help to establish the prosecution case, at least not beyond reasonable doubt. According to the expert the parcel, Ex. P-1, contained two shots and the parcel P-2 contained one shot. The shots in parcel P-1 weighed 4.41 gms. and 4.24 gms. The correct weight of L.G. and S.G. shots is 4.54 gms and 3.54 gms. respectively. Therefore, the two shots in parcel Ex. P-1 were discharged from a cartridge of L.G. size. This part of the evidence may be accepted as correct even though there is some difference between 4.54 gms., 4.41 gms. and 4.25 gms. The shot contained

in parcel EX. P-2 was

found

to weigh 2.76 gms.

It could,

therefore, be either an L.G or S.G. shot. The expert, however, says that the general shape of the undamaged portion indicated that the shot was possibly an L.G. shot. He was not categorical about it. He was sure that it was a factory made one. There are 6 and 9 shots in L.G. and an S.G. cartridge of standard size respectively. Now in this case there were five injuries on the deceased all caused by shots. There were three injuries on Swaran Kaur. Even assuming that all these three injuries were caused by three injuries of the shots which entered Dial Singh’s body, a position which we find it difficult to accept as natural in view of the force with which they have entered Swaran Kaur’s body, there were two more

shots, one found in the wall of Sardul Singh’s house and another found in front of Malagar Singh’s house. There are thus seven shots the presence of which has to be explained. The learned judges of the High Court thought that the shot found in front of Malagar Singh’s house could have dropped from the person of Dial Singh when he was moving in the house of Malagar Singh or dropped from his apparel in which it had got caught after piercing through a wound. This is a proposition which appears to us to be far fetched. There is no evidence to support such a proposition. The expert was not asked about it, nor was the doctor who conducted the post-mortem. It appears to us that the shots which could pierce through a body and hit another person at a distance of 30 feet and cause grievous injuries to that person cannot drop from the body of the first person or get caught in his apparel after piercing through his wounds. It also appeals to us that the shots which passed through the body of Dial Singh could not have travelled another 30 feet and hit Swaran Kaur with such force as to fracture her femur. Furthermore, the location of the injuries on the body of Swaran Kaur compared to the location of the injuries on the body of the deceased person cannot be explained as easily as was thought possible by the

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learned judges of the High Court. The expert stated that the shots after entering the body of Dial Singh, had deflected downwards and this was particularly true in the case of injury number one; secondly, that Dial Singh must have instinctively ducked while receiving the shots at the instants when the shots came out of his body. It is not possible to accept that all the three shots which entered Swaran Kaur could have deflected downwards. If Dial Singh had also ducked then the shot which was deflected could have gone still lower and could not have hit her at all. The evidence of Joginder Kaur that immediately after the gunfire the deceased was seen in a bending position and staggering with his hand placed on his wound cannot support this conclusion. A gunshot takes much less than a split-second to enter a body and we are unable to agree that Dial Singh could have ducked and that might have been responsible for the shots which entered his body finding a lower target when they came out of his body. The expert stated that he came to the conclusion that the injuries on Dial Singh and Swaran Kaur were probably caused by one gunfire only. It must first of all be noted that he is not categorical about it.

The reasons for his conclusion are the dimensions of the injuries. He had not seen the injuries and it would need superhuman ability to come to a conclusion on this subject by merely looking at the description of the injuries or even the photographs given by the doctors. The dimensions of the injuries noted by the doctors cannot be correct to the extent of 1/100th of an inch. Most of the expert’s answers are not categorical. He did not have an opportunity of seeing the injuries of the shots himself. He was mostly giving his answers on the basis of

observations made by others and measurements noted by them. A small difference in the measurements one way or the other might make all the difference to the final result. We think it would be unsafe to place implicit reliance on the evidence of the expert for the reasons we have already given and hold that the shots which hit Swaran Kaur and which resulted in the death of Dial Singh were fired from the same gun ina single shot.’

9.17.44 Enhance or Exit Wound? Now we advert to the argument that the nature of injuries disclosed that the shot was fired while the injured was running and hit him from the back. It is mainly based on the medical evidence of first examining Dr. R.K. Mishra (P.W. 23) and the death summary Ex. P/38. In these, gluteal wound is mentioned as the entry wound. The Doctor has not given any reason for this opinion, but, the observation appears, prima facie, contradictory to medical opinion expressed by

eminent Doctors or experts in their text-books of Medical jurisprudence. The gluteal wound was larger in size, i.c., 1” x 1” and had everted margin. The wound at the root of scrotum was smaller in size i.e. °/,” x '/,” and had inverted margins. The area of injury to the muscle surrounding the scrotum for 31/,”, is of no importance as the skin and muscle in that area are in, more or less, loosely hanging state in a man. So the real size of the wound would be the

spot where the stiff muscle starts. The size of which was af? x Sf owith 1. Mohan Singh v. State of Punjab, 1975 Cri LJ 1865 (SC).

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inverted margin. A wound of entry is smaller in size than the wound of emergence. The wound of entry has inverted margins and wound of emergence has everted margins. In Modi’s Medical Jurisprudence and Toxicology, Twenty first Edition at page 264 this opinion is mentioned: “The wound of entrance in distance shot is usually smaller than the projectile due to the elasticity of the skin, and round when the projectile strikes the body at a right angle and oval when it strikes the body obliquely. The edges of wound are inverted......... The wound of entrance and its edges are irregular and everted ................ The edges of both the wounds of entrance and exit may be everted in fatty persons due to protrusion of fat in the wounds, and in decomposed bodies from the expansive action of the gases of putrefaction................. ”. In a book on the subject namely: “Forensic Science in Criminal Investigation and Trials” by Dr. B.R. Sharma, Ph.D., Director, Himachal State Forensic Science Laboratory, Shimla, at page 275, it is observed regarding wounds caused by fire arm that when velocity of a fired shot exceeds 600 meter per second and up to 1100 meter per second, it also causes wound of the nature of blast effect. Thus, the wound in the loose skin around the testicles of the deceased could be because of such effect also. At the same page it is also mentioned that if a projectile comes out of the body the exit wound is larger than the entrance wound. So the laceration in that area after testicles of the size 3'/, x 3” with irregular margin is explainable on this theory of blast effect of a fired shot. Even in Gaur’s book namely Fire Arms, Forensic, Ballastic, Forensic Chemistry and Criminal Jurisprudence (2nd Edition, 1989) it is observed at page 82 that wound of exit is usually larger than the wound of entrance, unless on the way through the body the projectile is intercepted by some bones and, there is some deformity or disintegration in the projectile. Shri K. Kumar in his book “Forensic Ballistics in Criminal Justice” based on his

experience as Directors of Ballistics Laboratory of various States, making a scientific exposition of gun shot wounds, compares wound of entrance and wound of exit as under: Wound of Entrance

Wound of Exit 1. Size

Appears smaller than the wound of exit due to inversion. Greater the

Appears larger than the wound of entrance due to eversion. May

distance, smaller Contact shots are

appear smaller than the entrance if the entrance wound is a contact

the appearance. exception to this

phenomena due to stretching of surface

shot.

skin.

2. Shape Regular, i.e. circular when the bullet hits at right angles and oval when it hits and penetrates in an angular direction.

The shape is of irregular size.

3. Nature Punctured and lacerated.

May at times appear as incised

particularly

with

high

velocity,

tapered and pencil point bullet.

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4. Margins

Usually

inverted,

but

in case

of

wound on fatty part of the body, the entrance wound may appear as everted due

to

protusion

surrounded

with

of

fat.

abraded

May

be

collar and

Usually everted, abraded collar, contusion, tattooing, blackening, burning,

carbonsiation,

etc.,

are

absent.

contused. A quantity of grease may be deposited. There may be blackening, scorching, tattooing, singeing, of hair in case of close range shot. Microscopical examination of skin and subcutaneous tissues around the wound of entrance will disclose evidence of carbonisation,

swelling and homogenisation of dermal collagen apart from the deposit of dark particles.

These opinions in the eminent books on Medical jurisprudence cannot be ignored because of the opinion of the Doctor in this case, given without reason and without support of authority. Even if the Doctor was produced by the prosecution itself, the court is bound to see whether there is real conflict between the medical evidence and other evidence from the fact observed by the doctor. Thus, after having observed the size of the wounds and inverted and everted nature of the margins, the Doctor was required to give the opinion why he considers the gluteal wound as of entry. He has not done so. The opinion is contrary to the opinion of renowned experts. Similarly on what basis the death summary relates the gluteal wound as entry wound is not known!

9.17.45 Ballistic Evidence To justify the opinion of accused argued that as the in the post-mortem report,

Essential the High Court, learned counsel for the respondentsdoctor had not made a mention of gun shot injuries his later deposition before the police regarding the

nature of the injuries should not be accepted. We cannot accept such a plea either legally or factually. There is no obligation on the doctor to describe the origin or cause of the injuries in the post-mortem report as he stated in his deposition in the Court. Otherwise also we find that a mention of fire-arm injury is factually made in one of the columns of the post-mortem report. It is further contended that as the doctor had stated that “due to putrefaction the normal anomy of tissues is disturbed, so collar of abrasion showing two zones of inner grease and outer of abrasions was not possible for me to distinguish”, the medical report could not be relied upon. In support of his contention, the learned counsel has referred to Modi’s Medical Jurisprudence and Toxicology—

Twenty-second Edition where it is stated that putrefaction follows the disappearance of the rigor mortis, and that as the rigor mortis was present, putrefaction could not have been noticed by the doctor. We have perused the opinion of the learned Author and find that in the same heading “Putrefaction of Decomposition and Autolysis” it is stated that “putrefaction follows the disappearance of the rigor mortis, but this is not always the case; since, in 1. Vijay Singh v. State of Madhya Pradesh, 2000 Cri LJ 650.

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Northern India, especially during the hot months from April to October, it commences before rigor mortis has completely passed off from the lower extremities.” It is not disputed that the occurrence had taken place in Northern India during the period, referred to by the learned Author. Pointing out to another defect of not sending the weapon of offence, the guns, to the Ballistic Expert for examination for his expert opinion, it is argued that the creditworthiness of the case is totally demolished entitling the respondents the benefit of acquittal. In support of his contention, the learned counsel relied upon a judgment of this court in Sukhwant Singh v. State of Punjab, 1995 (3) SCC 367 wherein it is held that: “There is yet another infirmity in this case. We find that whereas an empty had been recovered by P.W. 6, ASI Raghubir Singh from the spot and a pistol along with some cartridges were seized from the possession of the appellant at the time of his arrest, yet the prosecution, for reasons best known to it, did not send the recovered empty and seized pistol to the Ballistic Expert for examination and expert opinion. Comparison could have provided link evidence between the crime and the accused. This again is an omission on the part of the prosecution for which no explanation has been furnished either in the trial court or before us. It hardly needs to be emphasised that in cases where injuries are caused by fire-arms, the opinion of the Ballistic Expert is of a considerable importance where both the firearm and the crime cartridge are recovered during the investigation to connect an accused with the crime. Failure to produce the expert opinion before the trial court in such cases affects the creditworthiness of the prosecution case to a great extent.”

In that case the evidence of the two eye-witnesses was held inadmissible as they were not examined in terms of section 138 of the Evidence Act and the court did not rely upon the sole testimony of Gurmej Singh (P.W. 3). In that context the court observed that failure to produce the expert opinion affected the creditworthiness of the prosecution case to a great extent. Nowhere it was held that on account of failure to produce the expert opinion the prosecution version in all cases should be disbelieved.

In the instant case the Investigating Officer has categorically stated that guns seized were not in a working condition and he, in his discretion, found that no purpose would be served for sending the same to the Ballistic Expert for his opinion. No further question was put to the Investigating Officer in crossexamination to find out whether despite the guns being defective the fire print was in order or not. In the presence of convincing evidence of two eye-witnesses and other attending circumstances we do not find that the non-examination of the expert in this case has, in any away, affected the creditworthiness of the

version put forth by the eye witnesses. '

CB%O 1. State of Punjab v. Jugraj Singh, 2000 Cri LJ 1503 (SC).

Chapter 10

DOCUMENTS SYNOPSIS

10.1 IMPORTANCE 10.2 NATURE 10.2.1 Letters 10.2.2 Financial Documents 10.2.3 Orders 10.2.4 Records 10.2.5 Tickets 10.2.6 Examination Papers 10.2.7 Wills 10.2.8 Historical Documents 10.2.9 Posters 10.2.10 Books 10.2.11 Burnt or Damaged Documents 10.3 THE PROBLEMS 10.3.1 Handwriting 10.3.1.1 Holograph 10.3.1.2 Anonymous letters 10.3.1.3 Alterations 10.3.1.4 Figures and mark 10.3.2 Typescript 10.3.3 Writing Materials 553

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Paper

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10.3.3.4 Pencil 10.3.3.5 Erasers

10.3.4

Mechanical match

10.3.5 Burnt Documents

10.3.6 Secret Writings 10.3.7 10.3.7.1

Miscellaneous Erasures

10.3.7.2 Indented writing 10.3.7.3 Sequence of stroke 10.3.7.4

Gum, adhesive and sealing wax

10.4 LOCATION 10.4.1

The Victim

10.4.2 The Culprit 10.4.3 The Office

10.4.4 The Lockers 10.4.5 Other Sources

10.4.6

Admitted Writings

10.5 COLLECTION 10.5.1 10.5.1.1

Admitted Writings Authenticity

10.5.1.2 Period 10.5.1.3

‘Like’ admitted writings

10.5.1.4 Admitted text and questioned signatures 10.5.2 Request Specimens 10.5.3 Typescript Specimens 10.5.4

Burnt Documents

10.5.5

Fragile Documents

10.5.6 Damaged or Torn Documents 10.5.7 10.5.7.1

Preservation of Documents Lamination

10.5.7.2 Minimum handling 10.5.7.3

Exposure

10.5.7.4

Identification marks

10.5.7.5 Alterations

AND

TRIALS

DOCUMENTS

10.5.7.6

Torn documents

10.5.7.7 No new folds 10.5.7.8 Chemical treatment 10.5.8

Record

10.5.9

Legal Possession

10.5.10

Reference marks

10.5.11

Unusual Circumstances

10.5.12 Transport

10.5.13

Movement

10.6 EVALUATION 10.6.1

Preliminary Examination

10.6.2

Basic Equipment

10.6.3

Principles

10.6.3.1

Individuality

10.6.3.2

Natural Variations

10.6.3.3 Fundamental Divergences 10.6.3.4 Personal Features 10.6.4 General Qualities 10.6.4.1

Pictorial effect

10.6.4.2 Rhythm 10.6.4.3 Style 10.6.4.4

Movement

10.6.4.5 Pen position 10.6.4.6 Line quality 10.6.4.7 Skill 10.6.4.8

Tremors

10.6.5 Writing Habits 10.6.5.1

Headings

10.6.5.2 Pet words and phrases 10.6.5.3 Paragraphing 10.6.5.4 Spacing 10.6.5.5 Alignment 10.6.5.6 Punctuation 10.6.5.7 Figures and abbreviations 10.6.6

Individual Characteristics

10.6.6.1 Pen pressure 10.6.6.2 Shading

555

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INVESTIGATION

10.6.6.3 Pen pause

10.6.6.4

Pen lifts

10.6.6.5 Starting and ending strokes 10.6.6.6 Hesitations

10.6.6.7 Retouchings 10.6.6.8 Embellishments 10.6.6.9 Abbreviations 10.6.6.10 Placings 10.6:6.11

Slope

10.6.6.12 Size 10.6.6.13 Connective strokes 10.6.7 Language

10.7 10.7.1 10.7.2 10.7.3 10.7.4 10.7.4.1 10.7.4.2 10.7.4.3 10.7.4.4 10.7.4.5 10.7.5 10.7.5.1 10.7.5.2 10.7.5.3 10.7.6 10.7.6.1 10.7.6.2 10.7.7 10.7.8 10.7.9 10.7.10

SPECIFIC PROBLEMS Simulated Forgeries Simulated Forgery Indicators Genuine Signatures Traced Forgeries Carbon copy tracing Indented tracing Tracing paper Transmitted image Scanned image Identification Model Trace residues Duplication Disguised Handwriting Characteristics Identification of disguise Forgery over Genuine Signatures Transplanted Signatures Genuine Writing Denied Hand-Printing and Block-Lettering

10.7.11

Additions and Substitutions

10.7.12 Anonymous Letters

10.7.12.1

Contents

10.7.12.2 Authorship

AND

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DOCUMENTS

10.8 TYPE MATERIAL 10.8.1 identification 10.8.2 Principles 10.8.2.1 Features 10.8.3 Age of Typescript 10.8.4 Typist 10.8.5 Alterations 10.8.6 Alteration check points 10.8.7 Make and Model 10.8.8 Other Writing Machines 10.9 INKS 10.9.1 Nature 10.9.1.1 Indian ink 10.9.1.2 Iron tannate ink 10.9.1.3 Dyestuff inks 10.9.1.4 Ball pen inks 10.9.1.5 Logwood inks 10.9.1.6 Alkaline inks 10.9.1.7 Special inks 10.9.2 Pencils 10.9.3 Examination

Visual examination 10.9.3.2 Magnifiers 10.9.3.3 Filters 10.9.3.4 Invisible rays 10.9.3.5 Spectrographic analysis

10.9.3.1

Chemical tests 10.9.3.7 Chromatographic analysis 10.9.3.8 Electrophoresis

10.9.3.6

Spectrophotometry 10.9.4 Video Spectral Comparator 10.9.5 Age of Ink 10.9.5.1 Colour changes 10.9.5.2 Smudging 10.9.5.3 Diffusion pictures 10.9.6 Ink age markers 10.9.7 Faded Writings

10.9.3.9

557

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10.10

PAPER

10.10.1

Nature

10.10.2

Examination

10.11

ERASURES

10.11.1

Techniques

10.11.2

Detection

IN CRIMINAL

10,07. 7 Dimensions 10.11.2.2 Lighting 10.11.2.3 Stereoscopy 10.11.2.4

Ultra-violet rays

10.17.2.5 Photography 10.11.2.6 Solvents 10.11.2.7 Chemical action 10.12 SECRET WRITINGS 10.12.1

Invisible Inks

10.12.2

Miniature Writings

10.12.3

Latent Photographs

10.12.4

Codes and cyphers

10.13 BURNT DOCUMENTS 10.14 | AGE OF DOCUMENTS 10.15 OBLITERATIONS 10.16 SEQUENCE OF STROKES 10.17 INDENTED WRITINGS 10.18 CLOSED ENVELOPES 10.19 WRITING INSTRUMENT 10.20 10.20.1

PRESENTATION The Expert

10.20. 1.1 Bias 10.20.1.2 Dogmatism 10.20.1.3 Moral conviction 10.20.1.4 Assistance 10.20.1.5

Qualifications

10.20.1.6

Court appearance

10.20.2 The Evidence 10.20.3 10.20.3.1

Presenting counsel Prior consultation

10.20.3.2 Examination-in-Chief

INVESTIGATION

AND

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DOCUMENTS

10.20.3.3 Opposing expert 10.20.3.4 Exhibits 10.20.3.5 Legal aspects 10.20.3.6 Re-examination 10.20.4 Cross-Examination 10.20.4.1 Aim 10.20.4.2

Temper

10.20.4.3 Bare reports 10.20.4.4 Haughty counsels 10.20.4.5 Diffidence 10.20.5 The Judge 10.21

CASE LAW

10.21.1

Expert Evidence not Essential

10.21.2

Expert Evidence Essential

10.21.3

Evidence Admissible

10.21.4

Evidence Reliable

10.21.5 Appraisal 10.21.6

Court Scrutiny of Handwriting

10.21.7

Court as Expert

10.21.8

Specimens

10.21.9 Admitted Standards 10.21.10 Photographs 10.21.11

Forged Postcards

10.21.12

Copies Admissible

10.21.13 Authorship from Contents 10.21.14 Typescript 10.21.15

Interested Witness

10.21.16

Corroboration Needed

10.21.17

Brief Reports

10.21.18

Reports Inadmissible

10.21.19

Reasons and Illustrations

10.21.20

Specimen Writing—During Trial

10.21.21

Specimen Writing—During Police Investigation

10.21.22

Paper Tear Evidence Admissible

10.21.23

incomplete Evidence

10.21.24

Refusal to give Specimen—Contempt of Court

10.21.25

Evidentiary Value

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10.21.26 10.21.27

SCIENCE

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INVESTIGATION

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Magistrate as Handwriting Expert Specimen Signatures in open court

10.21.28 Indefinite expert opinion 10.21.29 Judge as Handwriting Expert 10.21.30 Court can act as Handwriting Expert 10.21.31 Comparison of Signatures without the aid of Expert 10.21.32 Court should use Expert Help 10.21.33 Typewriting identification evidence admissible 10.21.34 Admissibility of Reports

DOCUMENTS

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Fig. X-12

Clandestine sale discovered from the discarded carbon paper recovered from a dust bin in a police raid on the premises ofafirm. Transmitted light photography gave out the writing clearly.

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575

The source of a series of anonymous letters could not be traced for sometime. After a long wait a letter was received on which some indented writing was suspected. The evaluation of the same gave a name and a platoon number. When the local training institution was checked, the person with the name and platoon number could be located. Further investigation led to the writer of the anonymous letters. He was a room mate of the person whose name was discovered on the letter in

indented writing. (CH) 10.3.7.3 Sequence of stroke

The determination of sequence of strokes is an important task to fix the responsibility of the executant where additions have been made allegedly after the execution of the document. In a government office certain important documents were lost. It was essential to fix the responsibility. The documents were allegedly handed over by one person to another under signatures. When the peon-book was closely examined, it was found that in the sentence relating to the handing over of the document, one of the lines of a letter had crossed one of the letters in the signature. The crossed line was found over the signature through ESDA. The person handing over the document was prosecuted for the theft of documents and forgery. (CH) 10.3.7.4 Gum, adhesive and sealing wax

The examination of gum, adhesive and sealing wax is required when it is suspected that a letter or packet has been opened by an unauthorized person.

10.4 LOCATION Location of questioned documents is not difficult in most of the cases. The document is produced by the culprit or the affected party. At times, however, where documents are to be collected from a huge record of years in big firms and government offices, the work becomes difficult. In such cases expert help to understand the working of the establishment concerned is necessary.

10.4.1 The Victim Anonymous letters, forged cheques, money orders, receipts, currency notes, permits, ration cards, passports, orders, identity cards, letters of recommendation and the like are with the victim.

10.4.2 The Culprit The forged wills, account books, permits, ration cards, passports, currency

notes, order books, identity cards, historical documents, authority letters and the like are with the culprit.

10.4.3 The Office Genuine or forged authority letters, records, examination papers, account books, attendance registers, sale and purchase deeds and the like are in the affected office.

10.4.4 The Lockers Important documents are kept in bank lockers by some persons. The bank lockers are becoming increasingly important source.

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10.4.5 Other Sources Questioned posters are found in the affected area. Secret and spy letters are found by interception of the post. Burnt documents are found at the seat of fire. It may be a fire place, a stove or an open place. Bits of torn documents are collected from waste paper baskets, dust bins or debris heaps. They are sometimes found scattered inside, outside or around the house. 10.4.6 Admitted Writings

Admitted writings are found in the office where the person is employed. Applications for appointment, leave or loan, acquittance rolls, pay, fingerprint records, office notings, orders and acknowledgements are important for the purpose. Admitted .writings are available with the utility services water supply, electricity supply and municipal authorities. Cancelled cheques and specimen signatures are with the banks. Telegrams and other postal records are available with the post offices, income tax returns are found in the income tax office.

Admitted writings are found in the college, university or training institution where the suspect or the victim studied. Admitted writings are letters to friends, relatives, businessmen, associates, insurances, and finance companies, lawyers and the like. Vakalatnama is an important source of authentic signatures. Financial transactions, sale deeds, contracts, mortgage papers, lease deeds, sale slips, stock certificates, etc., are good sources of admitted writings. Signatures and other writings, given by a person in case(s) other than the case in hand, are useful admitted writings. They prove especially useful in those * cases where the person whose writing is required is dead. In a case of forged will the alleged testator was dead. His signatures were not available. He had contested a property dispute case, some years ago. The record of the case was summoned and the signatures there on compared with disputed signatures. (CH) Admitted writings are written by the suspect when he is not aware that the writing could be used for comparison purposes with a questioned document. They show natural handwriting characteristics. They allow detection of disguise in specimen writings. Admitted writings are essential to evaluate most of the document problems involving handwriting. No effort, therefore, should be spared to collect the right type of admitted writings. 10.5 COLLECTION 10.5.1 Admitted Writings

The following points should be kept in mind while collecting admitted writings:

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10.5.1.1 Authenticity The admitted signatures and writings should be authentic. Some signatures are written by proxy. If such signatures are submitted for comparison, the whole investigation will proceed on the wrong lines. The admitted signatures and writings should be accepted as authentic only when the same are proved genuine by independent evidence or accepted by the concerned person as his writings.

10.5.1.2 Period The admitted writings and signatures should belong to the period during which the questioned document was executed. Some writings should belong to the periods immediately before and some immediately after the execution of the questioned document. The handwriting in the formative stage, for example, the handwriting of school children and even of college boys undergoes major changes. If set handwriting is compared with the handwriting of the formative stage, inconclusive results are obtained. Old age, illness and accidents affect the writing abilities of a person. If the suspect has suffered illness, accident or has grown old, the fact should be taken into consideration while collecting the admitted standards and the expert should be informed accordingly. Illness and old age sometimes deteriorate the handwriting drastically. 10.5.1.3 ‘Like’ admitted writings

If questioned writing is an anonymous letter the admitted writings should be letters. Similarly, bills, cheques or forms signed in the normal course, to correspond to the questioned documents, should be collected. If the questioned writings are entries or initials in a register there must be some genuine similar entries in the same or similar registers. Contemporary writings should be collected whenever possible. In a bank fraud where a banker put his initials in token of having received a bearer cheque for depositing the proceeds in the bank account of the customer. Instead, the banker cashed the cheque. The banker denied his initials on the deposit receipt. Over 900 standard initials were sifted to find “perfect” match to the disputed initials. The initials were collected from: (1) Attendance registers. (2) Rotation of duty order register. (3) Maintenance of account books. Over 100 initials were located and demonstrated to correspond to that of the suspect, which indicated that he was the probable writer of the initials. (CH) If similar admitted documents are not available, admitted writings which

contain all or as many as possible words, letters, digits, figures and their combinations should be collected.

N

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TRIALS

Some persons sign different types of documents differently. For example, they write their first name to their friends and relatives when signing letters to them. They write their initials and surnames in official correspondence. They usually put abbreviated initials in token of having seen or taken possession of a document. Some people have special style of signatures for documents:relating to money especially in bank accounts. The corresponding type of admitted writings are collected, otherwise the comparison is often difficult.

As only the likes can be compared, admitted writings in the same script, the same letter form (small or capital), the same style (letter-printing or cursive writing and the writing written with the same or similar materials (pen, ink and paper) should be collected. 10.5.1.4 Admitted text and questioned signatures

A person pens his signatures more frequently than any other single word or a combination of words. Consequently he goes on simplifying or modifying the letters in the signatures to save time. When the signatures are compared with the letters and words of the text, they look different. Therefore, it is not correct to conclude from the comparison of the text and signature that they are not written by the same person. Positive identification of signatures when compared with the text is possible in some cases. Written text may, therefore, be provided if admitted signatures are not available for comparison. 10.5.2 Request Specimens

The following principles should be kept in view while collecting request specimens: 1. An expert may fail to identify a questioned writing because of insufficient standards for comparison. A large number of standards has never been a handicap. 2. Only the ‘likes can be compared’. 3. Whenever possible actual text should be dictated. If for the secrecy or the obscenity of the language it is not desirable to dictate the same text maximum number of words and important word combinations occurring in the questioned document should be included in the text prepared for dictation. 4. Dictation should be given at three different speeds, on separate sheets. At a slow speed, where the suspect can have time to embellish his writings.

Ata fast speed. The fast speed is important because the culprit shall not be able to effectively hide his handwriting characteristics. At normal speed. 5. If the questioned items are signatures, about 30 signatures should be obtained on each of the three different sheets. If the material is a long text, selected paragraphs are dictated to get writing on three sheets of paper. The three sheets are written at different speeds. The writing

DOCUMENTS

579

speed is adjusted by the dictation speed. Whenever possible the suspect should not be aware of it. Each sheet should be removed when it is completed. . The suspect should be told about the style he is to write in, viz. cursive,

pen-printing, block-lettering or a mixture of all these. He should never be shown the original questioned writing, nor he should be given the text (even typed copy) to copy. . Space for writing is important. Whenever possible similar blank document for specimen writing should be provided. If the questioned document is a cheque or a lined paper, similar blank cheque, or lined paper sheets should be provided. If printed blank forms are not available, electrostatic copies of the blank forms should be provided. . Two more sets of similar specimens are obtained on two different dates with an interval of a few days each time.

. The spellings and punctuations should not be dictated. They prove useful in the identification of the culprit in some cases. 10. It is effective to frame a paragraph describing an event or telling a story unrelated to the crime in hand. All the essential letters, digits and their

combinations in the paragraph should be introduced. The suspect often gets engrossed in the description and, therefore, fails to attempt to disguise his habitual handwriting.

11. §2.

Ls, 14.

iD.

Readymade paragraphs or forms for all situations are not quite effective. The suspect should not be given prior notice for taking specimens, if possible. If the questioned writings consist of only block-lettering or handprinting, quantity of specimen writings should be more extensive. Specimens are obtained in the presence of a magistrate. He certifies each sheet to this effect. The specimen sheets should contain the information relating to the case (FIR No.), the suspect’s name, age, health. Those aspects which are likely to affect his handwriting such as intoxication, injury or weakness must be mentioned. The suspect should sign each sheet and put the date thereon. The investigating officer should put his signatures or initials on each sheet with date. It must be remembered that very few document cases are alike. The investigating officer, therefore, must use his intelligence to get proper specimens.

10.5.3 Typescript Specimens In the collection of typescripts, all the points mentioned above should be kept in mind and applied intelligently. In addition, the following observations may

also be kept in new:

.

580

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INVESTIGATION

AND

Ne: .

TRIALS

. If the type faces are dirty, five sheets of specimens should be obtained before cleaning and five sheets and after cleaning the dirty faces. . If the ribbon is worn out, five sheets of specimens each with the worn out ribbon and with a new ribbon should be obtained.

. If the plate of the typewriter is uneven, it does not give even typescript. Even specimens are obtained if the paper being typed is padded with a few sheets of paper. Five sheets of specimens each before and after the insertion of padding should be obtained.

4. Whenever possible questioned text should be typed for specimens. . When the questioned document was typed a long time ago, admitted typescript of the dates immediately before and after the date on which the questioned document was typed should be collected. . If the dating of the typescript is required, properly dated typed documents should be obtained for an extended period covering the alleged period of the questioned writing. They are available in the office where the typewriter was used. . The pressure with which the letters are typed is practically the same with experienced typists but it varies tremendously with novices. The clarity of formation of letters and spacings vary to a certain extent if the questioned and specimen texts are typed with appreciable pressure difference. Therefore, some specimens, typed with different pressures, should be obtained.

A rough idea of pressure is obtained from the indentations caused on the paper by the type faces, better observed on the back side of the paper. . If typed carbon copies are the questioned documents, some carbon copies should also be prepared as specimens. . The number, make and model of the typewriter, the name of the typist, etc., should be put on each typed specimen sheet.

eee.

Fig. X-13 Apparently completely burnt record of a firm salvaged to get some useful data.

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581

10.5.4 Burnt Documents Burnt documents are found in cases of wilful destruction of documents, arson and accidental fires. They may be partially burnt, carbonized or ashed. Burnt documents are extremely fragile. If mishandled they change into small bits, useless for evaluation purposes. Whenever possible, expert from a forensic science laboratory, to collect the burnt documents, should be called. Burnt documents are collected in a cardboard box of convenient size. A cotton wool padding is placed at the bottom and the document is gently brought into the box. Another cotton padding is gently placed at the top.

Sometimes the burnt document needs strengthening before it can be collected. It is done by spraying dilute solution of polyvinyl acetate. In collecting burnt documents one should: 1. Handle the burnt documents to the minimum extent. 2. Not straighten the folds. 3. Collect separate 4. Prevent running

charred documents or their ashes from different places in boxes. exposure of the burnt documents to strong wind or put under a fan.

10.5.5 Fragile Documents Old documents or those exposed to sun, heat or action of chemicals become

fragile. They need careful handling. The most convenient method to handle a fragile document is to laminate it and then handle in that form. It is helpful if the document is reinforced with polyvinyl acetate solution. The document should not be folded. 10.5.6 Damaged or Torn Documents A suspect may tear the incriminating documents in small bits, throw them in water closets or chew and eat them if he fears raid and search. If these damaged

documents are recovered before complete destruction it is possible to reconstruct or restore them and find out the contents: 1. If the collected document is wet, dry it at room temperature before packing. 2. Collects the pieces of documents from different places in separate packets.

10.5.7 Preservation of Documents The trials relating to document cases , sometimes take years to complete. The

documents, therefore, need careful handling and preservation.

10.5.7.1 Lamination Get all the important documents laminated such that only the edges of the plastic sheet get fused. 10.5.7.2 Minimum handling

Handle the document to the minimum extent possible. The document is never carried in pocket as it is likely to get damaged. Use xerox copy in place of the original.

ey>

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10.5.7.3 Exposure

Do not expose the document to strong light, heat or moisture. When documents are required to be preserved in humid climate for a longtime, place them in a closed space with some desiccants and anti-mould agent.

10.5.7.4 Identification marks Do not put identification marks on a document. An electrostatic copy of the document should be kept for identification purposes. It is not always possible. In such cases the identification mark is placed at an inconspicuous place so that the questioned writing is not disturbed. When secret writing or erasure is suspected this too should not be done.

10.5.7.5 Alterations The document should not be cut, trimmed, torn, pinned, punched, tagged or

joined by adhesive tape. Avoid stappling also. When it is necessary to put documents together, painted paper clips are used. Or, the documents are placed together in an envelope.

10.5.7.6 Torn documents Place the torn documents in between two polythene sheets. The writing on both sides can be studied without handling them. The plastic sheets are held together with adhesive tape or cement.

10.5.7.7 No new folds Do not fold the documents or unfold them unnecessarily. Avoid introducing new folds.

10.5.7.8 Chemical treatment Do not treat a document with any chemical for any purpose whatsoever without proper authority. It requires practice and knowledge. It is entrusted to the most experienced examiners only. 10.5.8 Record Keep the record of a questioned document through an electrostatic copy. A copy of the document is not prepared by tracing the writing from the questioned document. An attested electrostatic copy of a document is a legal substitute for the original for most purposes. 10.5.9 Legal Possession Like other articles of evidentiary value the recovery of a questioned document is recorded in the case diary. Other legal formalities are also observed.

10.5.10 Reference marks The documents are marked for reference purposes. It is better to have a uniform marking system. The most convenient one is to mark the questioned documents as Q, Q, Qo). Q,, :the specimen document as S, S, S,........-. S, and the admitted documents as A, A, Ag... A, The questioned, specimen and admitted documents are kept, at least, in three separate envelopes unless they are all in one register or file.

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583

Only the relevant papers, not the whole files, are sent to the examiner. The

irrelevant papers (from the point of view of examination) may get lost.

10.5.11 Unusual Circumstances If there are allegedly unusual circumstances

(intoxication, illness, old age,

moving vehicle) in the execution of the questioned, specimen or admitted documents, they are mentioned in the forwarding letter. 10.5.12 Transport

The documents are sent to the examiner through special messenger. In important cases, the investigating officer himself takes the documents to the examiner. If documents are sent through post, railway or motor transport, they should be insured against loss and theft, for a nominal amount.

10.5.13 Movement The movement of the document from one person to another should be properly recorded so that if they are lost or mutilated, the responsibility could be fixed. 10.6 EVALUATION Identification of handwriting of a person is time consuming. Never submit the documents to unqualified, self-styled experts. It needs a lot of experience, study and patience. The identifications are based upon certain principles and detailed evaluation of study of personal handwriting characteristics. It has developed a terminology of its own. 10.6.1 Preliminary Examination

The preliminary examination of a disputed document is done to find out if the document is fit for detailed examination or not. Usually it is checked whether the disputed document is: 1. Normal? 2. Free from alterations? 3. Free from trimming? 4. Free from obliteration? 5. Free from the infirmities of: e Old age? ¢ Intoxication? ¢ Disease? The preliminary examinations of the standards is also done to find out if the standards are: * Authentic, proved to be from the alleged source or accepted by the purported person?

¢ Adequate/sufficient?

¢ Contemporary? ¢ Disguised or otherwise?

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The preliminary examination thus, determines the adequacy, authenticity and integrity of the input materials and lays down the foundation for detailed examination. 10.6.2 Basic Equipment

The examination of document, in its totality, needs a long array of equipment. However, for most of the situations (especially for handwriting evaluations) the following equipment is adequate: 1. A good quality magnifying lens with inbuilt illumination arrangement. 2. An assortment of cameras and their accessories capable to take photograph up to 1:1 size. 3. A good source of light, the intensity of which can be varied and the light can be thrown at various angles. 4. An X-ray examination type of light box for transmitted light. 5. A stereomicroscope. 6. An ultraviolet lamp. A VSC or a polylite if possible. 7. A transparent graph plate. 10.6.3 Principles

10.6.3.1 Individuality The handwriting of a person has a personality of its own which is different from that of any other individual. It is unique.

Fig. X-14 Forged signatures of a Chief Minister, later President, were identified in respect of the forger by synthesizing the ‘signatures’ of the Chief Minister from the general writing of the culprit. He disguised his handwriting characteristics in request specimens. S-1 are genuine signature of the Chief Minister.

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Writing is a conscious act but repetition makes it a habit and the writing becomes a subconscious act. The output to start with is the sum total of schooling, training, writing experience, environments and Occupation in addition to mental, physical and emotional make-up. It is influenced by changes in life. No two persons can have the same experience in life and, therefore, their writings will always vary.

10.6.3.2 Natural Variations Natural variations in handwriting are subjective. They vary in nature and number with different individuals but the range of variation for an individual is more or less constant with the same individual. Natural variations are due to the fact that our brain does not work like a computer. It gets distracted easily both by the external and internal influences. Likewise our finger, hand and arm are not printing machines to recreate the same writing time and again. Further, the handwriting of a person shows some variations due to: 1. Fatigue. . Illness. Age.

Writing materials. Writing position.

. Physical disturbance (such as movement in a train). Writing with the hand other than the one normally used. Emotional disturbance.

HD PEW CP NAN Lack of concentration

during the writing period. 10. Influence of drinks or drugs.

These variations affect the pictorial effect, line quality, size and slant. They do not change the fundamental characteristics. However, with limited writing it may not be possible to identify the writer in some cases. In guided handwritings, where the hand of the writer is held by some one else, there is little which is identifiable. Guided signatures are the result of the working of two minds. The result cannot be attributed entirely to any of the two writers. No expert opinion is possible in such cases. 10.6.3.3 Fundamental Divergences

The identification of common source of two handwritings can be established only if in addition to similarities observed, there are no fundamental divergences. General similarities are found in persons having been to the same school or their being the members of the same family. For example, the handwriting of sons and fathers, brothers and sisters or mothers and daughters may show general similarities. When the writings are closely examined, many basic differences which allow individualization of the handwritings are discovered.

10.6.3.4 Personal Features Handwriting is identified by a careful study of personal features. They are:

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1. General qualities.

2. Writing habits. 3. Individual characteristics.

10.6.4 General Qualities The following general qualities are noted and compared:

10.6.4.1 Pictorial effect The pictorial effect of a writing shows the skill of the writer. The handwriting may be clumsy, artistic, forceful, hesitating, laboured, or nervous. A clumsy handwriting indicates little writing experience. It is common with the illiterate or the semi-literate. Artistic handwriting indicates artistic bent of mind. Forceful writing is found in persons who write with abandon. Hesitating and laboured writing is by persons who are ill, old or feeble. It is very common in simulated or traced forgeries. Some persons are nervous and it is evident from the irregularities in their writings. The pictorial effect is the general appearance of the writing. A forger, if he is to succeed, must imitate the pictorial effect. One, therefore, must not go by the pictorial effect. ‘Appearance are deceptive’ is literally true in handwriting identification.

10.6.4.2 Rhythm Rhythm is found in the handwritings of educated persons with ample writing experience only. Rhythm is indicated by the flow of the writing, correct line quality and punctuation and proportionate formation of letters and figures. It is the product of writing and reading experience and cannot be imitated.

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Fig. X-18 Writers acquire different writing movement habits. Finger movement (Fig.-X-15) gives disjointed small-sized writing. Hand movement (Fig. X-16) slightly larger. Forearm movement (Fig. X-17) gives long and broad writing, whereas whole arm movement (Fig. X-18) is adopted only when one is writing on the wall or board. Most people combine finger and hand movement with some arm movement.

10.6.4.3 Style Style primarily depends upon the initial training but it gets modified according to individual whims and adoption of certain forms which appeal to the individual. The style may be round, angular or a mixture of the two. It may be artistic or simple. 10.6.4.4 Movement The writing may have been executed with the movements of the fingers, the wrist, the forearm, the whole arm or a combination of some of these. The writing by moving fingers is slow and the size of letters is small. Rhythm is usually absent. School children or illiterate persons generally use it. In writing with a hand movement the wrist acts as a fulcrum. The result is a slow and laboured writing. The pictorial effect is usually poor. The use of forearm for writing is common with writers who write with speed. The writing is smooth and symmetrical. The whole arm movement writing is possible when the arm does not rest on a support. The writing is usually large and sometimes clumsy. The writings on a wall and on a black board are written with a whole arm movement. Most of the experienced writers combine finger, hand and forearm movements.

10.6.4.5 Pen position

The pen may be held at an angle to the writing surface, varying from 15° to 90°. Usually it is held at about 60°. The angle of the pen with reference to the base line also varies and is useful in the identification of handwriting. Again, the nib of a pen is held at an angle. Consequently the nib wears in a characteristic fashion. If the pressure is on the left hand side, the left part wears more than the right part and vice versa. A few individuals may put equal pressure on both the parts.

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10.6.4.6 Line quality

The lines written by an experienced writer are smooth and uniform. The starting, finishing and embellishment strokes are natural and smooth. Connecting strokes are uniform and continuous except where the writer habitually lifts the pen to complete or modify the letters. On the other hand, in simulated and traced forgeries there are frequent pen pauses, pen lifts and hesitation marks. The lines look laboured and drawn especially at starting and finishing points, connecting and embellishment strokes and on curvatures of certain letters. The line quality can, however, be poor if the writer is: 1. Weak and feeble. Illiterate or semi-literate. Unfamiliar with the script. Using other than the normal hand to execute the writing. Writing in a moving train or in an unnatural position. Oe gee 2 Using defective pen, paper, ink or support.

In handwritin § evaluation the line quality is important. Ifthe questioned writing exists on a stamp (Fig. X-19), the background shade of the stamp is eliminated by filter photography.

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10.6.4.7 Skill The skill acquired by a person depends upon his initial training, writing experience and his emotional and intellectual personality. He cannot improve upon it. A person with inferior skill cannot simulate the writing of a person with superior skill. He can thus be easily eliminated as the suspect. 10.6.4.8 Tremors Tremors are natural in the handwriting of some persons who are old, sick,

drunk or illiterate. These tremors have a pattern of their own. In simulated tremors, the forger is likely to place them at wrong places and the shape and size of the tremulous curves are different. The fraudulent nature of the writing can, therefore, be established.

10.6.5 Writing Habits Writing habits are formed

in the long process of learning and using a language. The following points are noted:

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h Fig. X-21

Natural tremors are due to old age, certain diseases, influence of drugs and liquor. Natural tremors cannot be imitated. 10.6.5.1 Headings

Some writers give headings to their writings not only at the top but to the paragraphs also. The ways of introducing, and concluding a subject also have personal characteristics. 10.6.5.2 Pet words and phrases Certain’ words, phrases

and sentences

are favourite

Their presence, frequency, use or misuse psycholinguistic analysis. 10.6.5.3 Paragraphing

with some

writers.

are useful clues especially in |

The habit of paragraphing one’s ideas depends upon education and use of the language. The correct or incorrect use of paragraphs, their frequency and their average sizes are important.

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10.6.5.4 Spacing

Spacing of the words ina line, of lines in a paragraph and of paragraphs in a text are valuable points to be studied. Spaces left as margins on the left and the right hand sides are characteristic of the individual. 10.6.5.5 Alignment

Alignment of writing lines with an imaginary base line and with other lines, of the signatures with the base line and of various lines in an address are distinctive features. Alignment of letters in signatures, inter se, is highly characteristic habit.

10.6.5.6 Punctuation The shape of punctuation marks, their position and frequency, the choice of a particular punctuation sign, under-scoring and bracketing are all characteristic of writing habits. 10.6.5.7 Figures and abbreviations

The arrangement of figures, use and frequency of abbreviations and the choice of certain letter formations are all products of habit. 10.6.6 Individual Characteristics Individual characteristics of a handwriting are the most important factors to determine the authorship. They usually survive disguise and simulation in most of the forgeries. They are carefully studied. 10.6.6.1 Pen pressure

Some writers write with heavy pressure causing indentation in the writing line. Some persons put heavy pressure on certain words and letters only where they sub-consciously want to lay emphasis. Normally a moderate pressure is used to achieve the necessary shading of the letters and to get proper pictorial effect. The lines are lightly indented in such writings. The pressure may be uniform, graduated or impulsive. Some Writers write very lightly. Their writings are usually smooth and rhythmic. The lines are also of uniform thickness and quality. Those who write with heavy pressure are slow writers. Illiterate persons ordinarily write with heavy pressure. 10.6.6.2 Shading

Shading in a writing may be continuous, graduated or impulsive. Shading varies with different individuals in its occurrence, form, frequency and intensity. Even if a hard nib is used, it is possible to study the shading pattern microscopically. Shading pattern of an individual is highly characteristic. It is not easy to imitate it. The forger imitates shading through retouching. But a simple microscope reveals the retouching. The natural shading pattern of the forger also appears at different places and proclaims the forgery. In ball pen writing, shading has limited utility.

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10.6.6.3 Pen pause

Experienced and well-trained writers do not ordinarily pause in writing the letters of a word. Pen pause is natural in the writing of illiterate persons who find it difficult to execute the writing. The pen pause from the forger’s pen is different from the pause of an illiterate person though the reasons for the pause are the same. The pen pauses in a forgery are in the starting stroke, ending stroke, embellishments at difficult formation and connectives. The pen pause in genuine writing will be either throughout the writing or only at difficult formation but not in the starting strokes. The pen pauses deposit extra ink. Sometimes the pen slips. It is indicated by the presence of an independent start. The pen may slip ahead from the place where it was stopped before it restarts the writing. Pen pauses are detected through a magnifier or a microscope.

10.6.6.4 Pen lifts Certain writers lift their pen when certain letter formations are met with. For example, they lift pen to put a dot, to cross a ‘t’, to correct shading by retouching, to complete an incomplete letter or to modify a certain letter in a particular way. When the genuine signatures do not contain any pen lifts consistently, pen lifts in the questioned signatures indicate forgery. If the writer is in the habit of making pen lifts, the number and positions of the lifts are carefully noted. The number and positions vary in the forged signatures. The positions of pen lifts in forged writings are sometimes at very unlikely places such as in the starting or the ending strokes or in the embellishment, or at the top or base of a long letter where normally nobody lifts a pen. The pen lifts in genuine writings are quite conspicuous, while in forgery they are often covered by retouching to give the impression that the writing is continuous.

10.6.6.5 Starting and ending strokes Experienced writers start writing with a flourish of the pen in the air. When

the pen touches the paper, the flourish continues and gives a fine starting line. The fine and tapering stroke is absent in forgeries. Instead the initial stroke is as thick as the rest of the writing because it is drawn rather than written. Sometime it is even thicker. Similarly the ending stroke in a fluent writing tapers to a fine tip. In forgeries the ertd points are blunt. The blunt ends are particularly conspicuous in the strokes which end horizontally or downwards. 10.6.6.6 Hesitations The starting and ending strokes in a forgery show hesitations through

tremors or lack of firmness. When a forger starts a forgery, he is not certain whether he will be able to do the job efficiently or not. Hence the hesitation is observed in the starting strokes. In the ending stroke he fears whether he has been able to forge the signature well or not. In contrast, in genuine signatures,

these strokes are done rather more freely than the rest of the writing. When, therefore, hesitation is observed in these strokes, they indicate forgery.

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Hesitations are also found in vertical lines and especially in curvatures, loops, ovals and bulbs. eepe 10.6.6.7 Retouchings

Retouching in genuine handwriting is done to complete, clarify or to produce a pictorial effect in some letters. There is no effort to hide it. Retouching in fraudulent writings on the other hand is intended to imitate the shading pattern of the genuine writer or to hide pen lifts or pen pauses. The retouchings are, therefore, easily distinguished.

10.6.6.8 Embellishments Certain writers improve pictorial effect of their writings, particularly signatures, by embellishments (also known as rubrics). They are flourishes of the pen. These embellishments are peculiar to a writer. The embellishment strokes are observed in the starting or in the ending of letters or with the underscoring line after the signatures.

10.6.6.9 Abbreviations Experienced writers, consciously or unconsciously start simplifying letters and words which they frequently write. Sometimes the simplification is so peculiar that it is a highly characteristic feature of the handwriting. Simplification of signatures is a continuous process. It is possible sometimes to estimate roughly from the simplified pattern the period of the signatures, provided admitted signatures are available in sufficient numbers for an extended period, covering the questioned period. 10.6.6.10 Placings The positions of dots, crossing strokes and placing of punctuation marks are highly characteristic. The habit is observed in a sufficiently large amount of writing. In one or two freak instances, the placing patterns may differ even in genuine writings. 10.6.6.11 Slope

Every forger tries to change the slant of his natural writing if he is trying to disguise his handwriting. He succeeds in the effort, if the questioned writing consists of a few words only. The forger reverts to the habitual slant in any extended writing. The forger is seldom able to change the degree of slant substantially in rapid writing. When an effort has been made to change the slant, the writing offers a bad pictorial effect. There is a mixture of various slopes in different letters or in the same letter at different places. Slants of the staffs of the letters ‘f’, ‘g’, ‘h’, ‘j’, ‘k’, ‘p,q’,‘t, “y’ should be studied. Slope is measured or estimated only in long letters. It is a difficult process and also not free from errors.

10.6.6.12 Size The relative sizes of letters and words become almost fixed with the passage of time with a writer. The length, breadth and size of the curves of various letters and words are personal characteristic features. Even if a disguise is tried, the ratios of the length and breadth of letters and words will remain constant. The comparison of the ratios is useful to detect forgery.

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10.6.6.13 Connective strokes Like pen-lift, joining of letters inter se is high characteristic habit. Length, shape and positioning characterise the strokes. The signatures in free hand forgeries are ordinarily larger than the genuine signatures. 10.6.7 Language Document experts use certain terms to describe formations of letters and parts thereof. It is useful to know these terms. There is nothing technical or difficult about them. They are convenient to clarify handwriting evidence.

Angular hand.—When the turnings in the formation of letters are angular (as against round curves), the hand is said to be angular. Arc.—A curved line in a letter (e.g., round bottom of ‘I’) is an arc.

Beard.—The starting embellishment stroke is called beard. Body.—The main portion of a letter, word or a text is known as its body. Ina letter it is the letter without the initial and ending strokes. Buckle ——A small loop or oval made in a letter (e.g., middle loop of ‘k’ is called buckle).

Bulbs.—A small circular enclosure like one in the end of letter ‘b’ is called bulb. Connective Stroke-——The line joining two letters is called the connective stroke. Feathering —Spreading of the ink on the paper is called feathering.

Foot.—The portion of a letter resting on the base line is called foot of the letter. Graduated or explosive shading—When the shading in a letter gradually increases or decreases it is called graduated shading. If it is irregular, it is called ‘explosive shading’. Hiatus —When ink is missing from a portion of a continuous line, it is called hiatus. It is either due to pen lift, ink failure or due to the pen jump. Hook.—The hook like formation in the beginning and at the ending of a letter is called a hook. Loop.—The closed oblong curve in a letter, such as upper parts of ‘I’ or of ‘h’ is called loop. Oval and ‘Eye’.—Closed oval-shaped formation is called an oval. The inside of loop or in an oval is called ‘eye’. Retracing —When a stroke is superimposed on a previous stroke by bringing back the pen over the line, the process is called retracing. Round hand.—When various letters are written without bringing in sharp angles, the handwriting is said to be round. Shoulder—The upper portion of a curved letter (e.g., curved portion of letter ‘m’) is called its shoulder.

Spur.—An ending stroke is called a spur. Staff—Long straight stroke in a letter is staff.

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Wedge.—A wedge like formation in a letter (e.g., crossing stroke of ‘t’) is called wedge.

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Fig. X-22 Various terms used by the experts in describing the peculiarities in letter formation 10.7 SPECIFIC PROBLEMS

10.7.1 Simulated Forgeries Simulated forgeries are those in which the forger tries to imitate the handwriting of another person—the victim. They are also known as copy, free hand or imitation forgeries.

The success of the forger depends primarily on his education, artistic skill patience and practice. It also depends partly upon the victim. If the victim is illiterate or semi-literate, his writings are easy to forge. If the design of the writing (even of an educated person) is simple, the writing is more readily forged than when the design is complex. If the penmanship of the victim is of higher skill, it is more difficult to forge his writing. The amount of questioned writing is an important factor in simulated forgeries. It is comparatively easy to forge initials of a person, it is also easy to add one or two small words or digits to a text. Short signatures are easily imitated while long signatures are difficult to forge. It is almost impossible to forge a long text. In free hand forgeries, the forger suppresses his own handwriting characteristics and adopts the handwriting characteristics of another person. It is a difficult task and is accomplished only to a limited extent—it can deceive a layman including the victim but an expert detects the forgery. A simulated forgery may be done by copying an available model. Or, the model may be in the mind of the culprit who has seen the model at some other time. The forgery in the latter case is poorer and easier to detect. A forgery can never be perfect. The feeling of guilt, the fear of failure and the possibility of punishment is always oppressing the mind of the culprit. It creates

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mental and physical tension. Therefore, even when the culprit has perfected the art of copying and amount of writing he is copying is small or the writing being copied is of higher skill, some lacunae remains in the forgery. It proclaims itself before the eyes and instruments of an expert. In imitation forgeries it is possible to establish the fact that forgery has been committed, it is generally not possible to identify the forger. 10.7.2 Simulated Forgery Indicators Simulated forgery is indicated by the following features: 1. Same model for all the disputed signatures. 2. Written without rhythm, speed, abandon.

3. Drawing-like unnatural appearance. 4. Thick start and end strokes. 5. Line quality defects: kinks, bends, pauses, hiatus, defective curves, loops, crests, troughs. 6. Careful retouching. 7. Corresponding pictorial effect. 8. Inconsistent sizes, shapes slants and curvatures of various letters and formations.

Simulated forgery fails to click. Forgery of signatures involves a double process for success. The forger must discard all his own writing habits of two decades or more and at the same time assume the unfamiliar habits of over two decades of another writer, the victim. The perfection is not possible. Forgery can generally be detected because of differences in habitual skill, of formational style, size proportions emphasis, simplifications, speed of writing, firmness writing strokes, pattern of shading, degree of skill, fundamental muscular movement and line co-ordination, rhythm, continuity, pen position and freedom in writing, which affect quality, alignment, placings, pictorial effect etc. They are very well demonstrated in the above questioned and admitted signatures. The culprit has failed to copy the handwriting of the victim convincingly.

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The principles and the identification features of a forgery of handwriting have already been discussed above. They are summarized here. The principles are: . Every handwriting has an individuality. . There are natural variations in the handwriting of a person. Ww N . Inconspicuous features have great importance. . There should be no fundamental divergence in the questioned and sample writings, if written by the same person. . The forger, for disguise, can introduce variations but he cannot sustain them. 6. It is not possible to identify the forger in all forgeries. General qualities of a handwriting are: . Pictorial effect.

Rhythm.

Style. Movement.

Pen position.

. Line quality. . Skill.

The writing habits of a writer are found from: 1. Headings, introductions and conclusions. . Paragraphs, their frequency and size. . Margins.

Spacing in words, lines and paragraphs. Alignment in lines, words, letters, etc. . Punctuations.

. Arrangement of figures and abbreviations. Wh fF ONAN Speed. The individual characteristics are studied from:

Pen pressure. Shading. Pen pauses.

Pen lifts.

Starting and ending strokes. Hesitations. Retouchings. Embellishments. Yr Fea © SoS Abbreviations.

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10. Placings.

Slope. ya Size. 3; Intra and inter letter size proportions. 14. Emphasis. Ti

10.7.3 Genuine Signatures The hallmarks of genuine signatures: i Written rapidly. as Have rhythm when written by an experienced writer in proper health.

Rhythm is not found in the case of the writing of an illiterate, a very old person or a person suffering from serious illness. Rhythm may also be absent in writing of person under the influence of liquor or drugs. In a case a person was so addicted to drinking that he could write properly only when he had imbibed alcohol; otherwise his hand would quiver. (CH) . Written with abandon.

¢ ¢ e ¢

May miss certain formation., May introduce certain other forms. Conspicuous corrections, if any. End strokes with flourish.

. Smooth lines, curves, ovals, bulbs, etc.

Subconscious emphasis on certain formations. No stickler to a model. Graduated release of pressure. Abundant natural variations but within a range. . Consistent slant, alignment and letter proportions. fF ©ONDA 10. Consistent marginalisation of certain formations, subconsciously. LL Corresponding simplifications. 12. Corresponding consistent pattern of pen-lifts, crossings, embellishments, etc.

13. Dimensional semblance.

10.7.4 Traced Forgeries From an expert's point of view, a traced forgery is the crudest forgery. But a

good traced forgery can easily mislead a layman. There are quite a few cases, where tracing was not suspected by the victim or by the investigating officer during investigation. It came to light only in the laboratory. Forgery by tracing is carried out from an available model adopting one of the following techniques: | 10.7.4.1 Carbon copy tracing A carbon paper is placed over the document on which the signatures are to be duplicated, the model signatures are placed over the carbon paper. A dry

ny

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pen, stylus or any other pointed device even a pin is moved along the outline of the signatures with some pressure. A carbon copy of the signatures is obtained on the document. The carbon outline thus obtained is completed with ink and pen.

Fig. X-24 Forgery by tracing, using a carbon paper is more frequent than the other tracing techniques. It is the easiest to detect. Carbon outline and carbon particles at places can be easily seen through a magnifier or a microscope.

10.7.4.2 Indented tracing

If a model signature is placed over the document to be forged an outline of the signature is traced with a sharp and hard point, an indented impression of the signature is obtained on the document being forged. The indented outline is covered with ink and pen.

Fig. X-25 Inking of an indented outline of signatures is another technique for traced forgery. It is also comparatively easily identified. Uncovered indentations at places and canal like depression under the inked portions reveal the indentations.

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10.7.4.3 Tracing paper

The model signature is first traced on a tracing paper. The paper is then placed over the document being forged. A hard pointed pencil is used to trace the outline of the signature. An indented impression is obtained. The forgery is completed by inking the same, as above. 10.7.4.4 Transmitted image

If the document to be forged is placed over the model signature, on a glasstopped table which is strongly illuminated from below, an outline of the signature appears on the document to be forged. The outline is inked. A window pane can replace a glass-topped table if necessary. The dimensions of the signatures can be varied by projecting the model signature on a transparent sheet through a photographic enlarger on the document, being forged. 10.7.4.5 Scanned image

A scanner (of a computer) is an instrument of choice to copy the signatures of a person. A scanner can pick up signatures and store the digital image in computer. The computer can print it on any document in any colour. High quality imitation can thus be achieved.

10.7.5 Identification | Traced forgeries are identified easily from the following special features: 10.7.5.1 Model The culprit may have used a wrong model. It may be an old or a recent model. It may not, therefore, tally with the normal signatures of the alleged period.

10.7.5.2 Trace residues If any of the first three methods has been used to trace the signatures, the traces of indentation outline or carbon deposits inside or outside the ink line are detected under a stereomicroscope. 10.7.5.3 Duplication

The traced signatures are replicas of the model signature chosen. If the questioned signature is replica of another signature, it indicates forgery by tracing. It has been observed that a man cannot write anything twice exactly alike. There are always some natural variations. In signatures of small size one has to be careful. The writing habits of a person are so fixed that near perfect duplication may be achieved. However, other defects in the signatures proclaim the forgery. A traced forgery is compared with a model by one of the following methods: 1. The two documents are adjusted in transmitted light till the writings superimpose. If the dimensions are similar, they indicate common source of origin and hence forgery. 2. A size to size transparency of one of the signatures is prepared and superimposed over the other. 3. Composite photographs of the forged and model signature are prepared to see if the various projections (nooks and corners) are at relevant positions or not.

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4. The forged signatures and its model are placed side by side, and covered by a ruled glass or transparent plastic graphic sheet. Enlarged photograph of the same gives the dimensional comparison. In traced forgeries handwriting characteristics: movement, line quality, crossing and dotting, pen lifts, shading, retouching and punctuations are not normal and, therefore, allow identification of the forgery.

Though the traced nature of the forgery can be established, it is not possible to identify the forger through handwriting evaluation. The recovery of tracing paper, the model or the carbon paper carrying the model are likely to prove useful to link the culprit with the crime. 10.7.6 Disguised Handwriting

A dishonest person may sign or write a document with the prior intention to deny it later. The document is ordinarily written or signed in a disguised hand.

10.7.6.1 Characteristics A forger makes the following changes to disguise his handwriting: 1. He varies the slant of the writing. Often it is inconsistent. 2. He changes the size of the letters, words, figures and punctuation marks.

3. He adopts other than the commonly used forms of letters. Frequently it is inconsistent. 4. He simplifies letters and words. 5. He increases legibility or illegibility of his writing by changing the speed. 6. He uses capitals and small letters indiscriminately. He also changes the shape of the capitals. 7. He adopts pen-printing and block-lettering. 8. He avoids paragraphing, punctuation and correct spellings. 9. He introduces tremor in his writing. 10. He writes in circles, curves or upside down or vice versa. 11. He writes using other than the normal hand. The pictorial effect is drastically changed. 12. He introduces or eliminates rubrics (flourishes) and embellishments in

the capitals. 13. He changes the pictorial effect of signatures. 14. He uses different embellishments. 15. He uses slow speed in writing. It lacks rhythm. 16. He uses abnormal spacing. Disguise may be successful when the questioned writing is small in a document. For example, it may be possible to hide one’s handwriting characteristics in one or two letters, initials or in a small signature, but one’s personal characteristics appear in any extended writing. This is because:

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1. Itis not possible to give up a habit acquired in a lifetime. 2. The forger does not know the main identifying features. He makes changes in apparent pictorial effect, but basic individual characteristics remain.

Oo

The belief of the forger that change from small to block letters and vice versa or adopting pen-printing or using the second hand instead of the usual hand in the execution of the fraudulent document, will hide his personal writing characteristics is also without basis. The changes change only the pictorial effect. The form adopted by him bears the imprint of his personality and gives him up if suitable standards for comparison are made available.

Fig. X-26A Better skill in Signature Q) vis-a-vis the admitted signatures A, and A, proclaims Q, as forgery, beyond doubt.

10.7.6.2 Identification of disguise

:

Disguise in specimens is easily checked if normal admitted writing is available. If disguise has been adopted in all the fraudulent documents, it is

found from the following observations:

|

1. There is evidence of conflict between the style adopted by the culprit and his normal writing style. The culprit tries to hide his normal characteristics, while habits bring them up to the forefront. The conflict is evident from the haphazard pictorial effect of writing, the presence of different slants in the same writing (even in the same letter written at different places), and different designs adopted, for the same letter in

the same or similar words.

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The culprit is conscious when he writes in an assumed

form. The

writing, therefore, is slow, drawn, irregular and inconsistent. There are

frequent hesitations, pen lifts, pen pauses and patchings. . The disguise is usually limited to capital letters, slant and pictorial effect. The remaining identification features remain intact. They permit the recognition of the disguise. The

inconsistencies

in slant size, forms,

etc., are

the hallmark

of

disguise. They reveal disguise. The changes in letter or other formations indicate disguise. Indications, eliminations or changes in embellishment or underscoring strokes. The

changes,

induction

or

eliminations,

in

abbreviations

and

simplifications. 10.7.7 Forgery over Genuine Signatures

The genuine signatures of a person may be obtained on a blank paper in good faith or by trickery, or, an innocent document of no value may be changed by trimming, erasures, alterations, additions or substitutions into an important

document. Handwriting identification of the signatures in such cases does not prove useful to establish the fraud. Extraneous evidence on the document may, however, lead to useful results: i2 The dimensions of the paper may prove to be different than the normal size. . The edges may have been trimmed. . The surface may carry erasures. Once a matriculation certificate had altered name, role number and parentage of the person. Only a few digits relating to the original roll number could be figured out. Further check with the university records led to the original owner of the certificate. (CH) . The writing may be in two different hands. If it is typewritten, it may have been typed on two different machines. Even if the typing has been done on the same, re-insertion can be detected.

Two pens may have been used. The writings may be crowded at relevant places. In. a receipt, the amount and the reasons for payment were subsequently written in the margin. The added text was in continuation of the first line. The margin space was not used in other lines. (CH) Crossed strokes provide a clue to the sequence of writing. Seals and stamps may be forged. The feathering of ink across a fold on the document indicates fraudulent additions. 10. The date on which the fraudulent document is executed should be checked to ascertain whether the victim was at the alleged station or whether he was capable of executing the document.

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11. Signs of tagging, pinning, clipping, reverse printing on another form (paper) due to long contact and staining may lead to its genuine source.

An interesting case. Fig X-27 is the photograph of a receipt presented by the culprit of having delivered goods. The piece of paper of this receipt was cut from an ordinary letter given to the culprit in routine. The carbon copy of the letter could be located and the relevant part is in Fig. X-28. Fig. X-29 is the superimposed photograph of the original Fig. X-27 and its carbon copy Fig. X-28. It left no doubt that the receipt was spurious

10.7.8 Transplanted Signatures Money receipts are mostly signed on a revenue

stamp pasted on the document. In fact no payment over a certain amount is considered valid without a revenue stamp. The stamp carries major portion (body) of the signatures while the starting and ending letters or strokes may be on the main document. The forger sometimes lifts the signed revenue stamp and uses it to forge a document. The extraneous evidence rather than handwriting identification helps to establish the forgery. 1. The stamp carries additional adhesive and fibre from the previous surface. 2. The stamp is soiled. > The edges are frayed. 4. The beginning and the ending of the signatures are in different pen and ink.

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5. The whole signature is sometimes re-inked. Ink used is often different. 6. Ink especially at the edges of the stamps feathers due to fresh application of adhesive. 7. The stamp edges may carry abrupt endings of the writing strokes. os)

The revenue stamp on the fraudulent document different period.

may belong to a

10.7.9 Genuine Writing Denied A person may find it convenient to deny his genuine signature or writings on a document to avoid responsibility resulting from signing or writing the document. Ordinarily, it is not difficult to identify the genuine signatures if

suitable standards for comparison are available. Genuine signatures or writings have the following peculiarities in addition to those already mentioned: 1. The signatures or writing will not be a ‘drawing’. The line quality will be smooth, forceful and rhythmic.

2. Genuine writing will have the natural variations in letters, words and digits.

Fig. X-30

Transplantation of signature on stamp is common but crude type offorgery. Here a used stamp bearing the signature had been lifted from a place and pasted. The leftover letters have been completed. The forgery ofthis type is easily detected ifscrutinized properly.

10.7.10 Hand-Printing and Block-Lettering The identification of block-letters and letter-printing is equally easy if sufficient amount of corresponding hand-printed and block-letter writing is available.

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The specimen material should contain the same letters, words and figures written with similar writing instrumertt on similar writing surface.

10.7.11 Additions and Substitutions The identification of the authorship of an addition, substitution or alteration in a document involving changes or modifications in a few letters, digits or a few words only may or may not possible. If the changes are extensive and are not obscured or interfered with, it may be possible to identify the writer. The changes are identified from inks, spacing, differences in pens and erasures. The authorship of changes is identified from the handwriting characteristics. 10.7.12 Anonymous Letters

An anonymous letter may be for blackmail. If it is so, it must touch the victim at a sore point such as his sexual misbehaviour or dishonest dealings, the exposure of which is likely to cause him great distress. It also gives detailed instructions to the victim for handing over the reward for non-disclosure. The blackmailer usually assures the victim that there would be no further demands.

Fig. X-33 Cheque raising is offrequent occurrence. In the present case ‘six’ hundred has been changed to ‘sixteen’ hundred. The original writing (top) does not look so suspicious but filter photography (bottom right) and ultraviolet rays (bottom left) make the forgery so evident!

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An anonymous letter may carry a threat. Political, religious and industrial leaders and men in high positions often receive such letters. The letters focus attention on some of their unjust and undesirable acts. An anonymous letter may contain hints to the identity of the person. These hints may be intended to implicate some persons who happen to be the enemies of the writer. An anonymous letter may be addressed to the writer himself to attract the attention of the family or the authorities. If it is a threat letter to a businessman, his accounts should be checked. The person may be trying to stage a burglary or fire to avoid legal payment or to collect insurance money. An anonymous letter may be a recommendation letter. The writer is often a member of the family. The inefficiency and negligence of others in contrast to his good work is sometimes discussed. An anonymous letter may be for revenge. It contains disclosures about the character and illegal acts of a person. The allegations may be totally or partially correct or they may be just the work of imagination. An anonymous letter may be found at the scene of occurrence. It may be written by the culprit or the victim. It gives information about the crime, the culprit or the victim. A few years ago, a letter was discovered in the underwears of a deceased person. It disclosed that he was expecting death at the hands of his paramour and her new lover. The letter when discovered was partially washed and the writing had faded. The authorship, however, could be traced to the deceased through his authentic writing. (CH) An anonymous letter may contain abuses or indecent language. The writer thus gives vent to his pent-up feelings.

An anonymous letter may be a practical joke. Or, it may be the work of an unbalanced mind of a maniac. Most of the anonymous letters should be ignored.

10.7.12.1 Contents Close study of the contents of an anonymous letter by a police officer and a laboratory expert makes it possible to find out: 1. The education level of the writer. 2. The social status of the person. 3. The sex, age and mental poise of the writer. 4. The purpose and provocations for writing the letter. 5. The nationality and occupation of the writer. In recent times the building of writer’s profile has come up. A Forensic Psychologist, well-versed in psycholinguistics can provide a fairly useful accurate portrait of the culprit. 10.7.12.2 Authorship

The writer of an anonymous letter is identified from the possible suspects through the study of:

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. . . .

Handwriting. Writing materials. Language. Fingerprints. The document may carry fingerprints of the writer. WNTracing materials. If some persons are suspected to write anonymous or letters, they are identified through marked stationery and postal stamps. The source from where the suspect purchases these items is found and the items are secretly marked. When a fresh anonymous letter is received, the secret marks are checked. They indicate the source of origin.

It is not, ordinarily, possible to disguise the handwriting characteristics in an anonymous letter because of its extended length, even through hand-printing or block lettering. However, in cases of anonymous letters to political, religious and social leaders, it is difficult to locate the possible suspects. 10.8 TYPE MATERIAL 10.8.1 Identification

Identification of typescript with reference to a typewriter is comparatively an easy task. The degree of certainty in identifications is of the same order as in the case of fingerprints, tool-marks, or identification of fired cartridges and bullets in respect of a firearm. Osborne the great authority on questioned documents has rightly observed: If a specimen of typewriting shows clear impressions and includes numerous characteristics and ifsuitable standards are available, it is possible to show with the highest degree of certainty that a document was or was not written on a particular typewriter. ‘Entirely new machines show slight but persistent divergences which can be seen upon close examination. Hilton, another great living authority on questioned documents has observed: Every typewriter is individual, as tolerances allowed in typewriters give variations sufficient for individuality. The variations are increased by wear and fear.

10.8.2 Principles As in fingerprints, firearms and tool marks, no two typewriters give identical typescript, even when they are manufactured in the same factory, one after the

other and are new. The manufacturing process of typewriter requires virtually hundreds of parts and hundreds of operations by hundreds of men scattered all over the world. It is impossible theoretically (also observed practically) to have two typewriters made exactly alike. Every machine has an individuality. Even if a person (the best of mechanics) tries to make two machines exactly alike, he will not succeed. It has been tried and ended in failure.

The wear and tear, due to expensive use and abuse increases the variations in the typewriters:

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. The type faces chip. . They get filled up and affect the clarity. . The type bars bend and twist and change the alignment of the letters and digits. 4. There is gradual wear of the type faces and other parts. The wear is useful in dating the typescript on a document. Some variations in typescript of the same typewriter, at the same time and by the same typist do occur due to: ie Difference in pressure with which the keys are pressed. 2. Defective ribbon. De Defective platen. 4. Dirty type faces. oe Difference in typing rhythm due to different moods.

Unless the typewriter is mishandled or misused, the typescript typed today is identifiable even after a long interval.

10.8.2.1 Features Typescript is identified from the following features: ei Sizes of the letters vary from 6 to 16 letters per inch, though commonest

size are 10 and 12 letters per inch, known as ‘pica’ and the ‘elite’ designs respectively. There are usually six single spaced lines in an inch. These sizes are also expressed in metric system in some countries. In addition, proportional spacing typewriters, in which different typed letters occupy varying space are also common. Increasing use of computers is making the typewriter an outdated machine, but they are still extensively used in India. It will take some time before they become obsolete. Design of the letters, digits and punctuation signs vary with different makes

and

models.

The

notable

differences

are

in letter designs,

proportions of the letters or digit parts, sizes, shapes and positions of the punctuations, dots, bars, serifs, and the sizes and curvatures of the ovals of the letters and digits.

. Imperfections in typescript due to alignment are individualistic in nature. Letters are seldom typed in the centre of the rectangles as intended. They are often ‘off the feet, and twisted sideways, upward or downward. Alignment defects are also due to the faulty typing by the typist, but they are easily eliminated either by examining the typescript typed by different persons or by examining an extended text. The defects are not duplicated. A letter can assume intermediate positions.

one of the major nine positions, or, any of the

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ALIGNMENT-DEFECTS Fig. X-34 A chart to indicate the alignment defects in typescript. The manufacturer of a typewriter wants the letter to be in the centre of the given space but due to slight imperfections in the manufacture, in the fitting, and due to use (wear and tear) it is seldom in the centre. It acquires any of the remaining eight positions (or intermediate positions). Other letters, digits and figures behave likewise. Thus the variations in typewriters due to alignment alone are infinite and no two typewriters, even fresh from the factory are exactly alike.

4. Type-face defects: breaking, chipping, denting and twisting (introduced either at the manufacturing stage, during transit or due to constant use) are very useful to individualize the typewriter. In an important case, the machine was found damaged and no words could be typed. Impressions of the individual letters and digits, however, could be obtained. The questioned typescript was identified from the defects in the type faces alone. (CH) 5. Space variations due to slippage and skippage, improper working of the ribbon gadget or irregular margin due to defect in the margin stop of a machine, help in individualizing a machine. 6. Temporary defects such as defective ribbon, clogged type-faces and rusty and dirty bars introduce certain identifying features. They are useful only rarely, till the machine is not .cleaned and serviced.

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Fig. X-35 A comparison chart of typescript of questioned and specimen texts, pasted side by side. They reveal a wealth of individual characteristics—wear and tear in letters (fonts) and alignment defects. The individuality of the typewriter is established like that of a fingerprint.

Comparison of typescript has been facilitated by the advent of projectina’ comparator. The comparator permits comparison of the questioned and specimen typescript by side by side make superimposition or over and under positions. The computer with a scanner also allows side by side comparison or comparison by super imposition. 10.8.3 Age of Typescript The age of the typescript is determined from the progressive increase in the type defects consequent upon its continued use. If dated typescript for an

extended period, before and after, including the period in question is available, it is possible to ascertain the age of the document. The dated typescript of a typewriter is found in the office where the typewriter was used. The age of the questioned document is found from the dated documents, which have similar set of defects, distinct from less or more defects, corresponding to earlier or later periods. Sometimes a forged document is alleged to have been typed on a date on which the alleged typewriter in question was not even in existence. It is easy to

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detect such frauds. For example, typewriters in Indian languages except for Hindi typewriters, were not in existence before 1950. If a document is allegedly typed before 1950 in an Indian language (except Hindi) it will evidently be a forgery, Hindi typewriter came into existence in 1910. 10.8.4 Typist

Identification of a typist is only a possibility with varying degree of probability. No prudent examiner can say that a typescript was typed only by a particular typist. The following observations indicate the typist: 1. Peculiar alignment due to characteristic shifting of the key. 2. Punctuation, arrangement of paragraphs, margins, headings, use of

capitals, choice of optional symbols, use of abbreviations, length of lines and method of writing figures, amounts and fractions. 3. Spellings and phraseology. 4. The technique of correction, cancellation, interpolations and overwritings.

Extensive typed material is examined before the possibility of typing is attributed to a particular typist.

10.8.5 Alterations It is comparatively easy to detect alterations in typescript. If the typewriter used for additions is different, the difference in type faces permits identification. If the same typewriter is used, the alignment of lines varies because it is impossible to reinsert the paper, once taken out, in the same position on a typewriter. Misalignment, however minute, is detected and demonstrated by microscopic examination and magnified photographs. If the ribbon has been changed in between, the difference in the tint due to change in ribbon is noticeable and indicates the additions. Spacing of words and lines may also help.

10.8.6 Alteration check points Check the following points if additions are suspected to a document: 1. One or more type design? One or more typewriter? . Vertical and horizontal alignment? . Alignment of margin? One or more ribbon? . Typescript pressure? Amount of ink deposit? Spacing consistent? Same paper for the multi-leaf whole document? SNAMAYWN 9. Sequence of writing consistent?

10.8.7 Make and Model In the absence of a typewriter, the make and model of a typewriter can be indicated. Extensive specimens of typewriters of different makes and models are kept, studied and compared for the purpose.

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10.8.8 Other Writing Machines The discussions relating to typescript are equally applicable to similarly written materials by proportional spacing typewriters, electric or electronic typewriter cheque writers, adding machines and the like except that the modern electronic typewriter allows easy changes in the fonts and spaces.

10.9 INKS The examination of ink is one of the most difficult and yet important tasks in the examination of documents. The variety of inks is very large. The amount of ink available for examination is extremely small. An ounce (28 grammes) of dry ink gives six miles unblotted ink line. The examiner has to content himself with about one millimetre of the ink line which may be blotted. The analysis of ink is, therefore, undertaken, only when it is vital, by experienced workers. 10.9.1 Nature The following types of inks are common:

10.9.1.1 Indian ink It is carbon suspension in water. The ink is made stable by the addition of glue. The colour is improved sometimes by the addition of Prussian Blue. The ink was commonly used in India in schools with reed pens and by the petition writers in writing important documents. The use of ink has decreased tremendously in the recent past. The ink has become absolete, for all practical purposes. The ink is highly stable and is not affected by chemical reagents. It is neutral and does not damage the paper. It does not penetrate into the paper. It can be removed by scraping or by wetting and blotting. The black colour may have different shades: black, brownish or yellowish black. They permit differentiation and identification of the inks. 10.9.1.2 Iron tannate ink A mixture of tannic acid and gallic acid extracted from wood when mixed with ferrous (iron) salts, gives a colourless liquid which on drying and aging gives black colour. The ink as such is not suitable. It is mixed with dyestuff to give proper shade some acid and phenol is added to give stability. The common blue-black ink belongs to this class. It is permanent ink. It changes colour in course of time from blue-black to black (due to change of iron from ferrous to ferric state). Its stains on the clothes are not washed off easily. It is used in important document work throughout the world. 10.9.1.3 Dyestuff inks

The most popular inks these days are dyestuff inks manufactured from a number of dyes, particularly from nigrosine dyes. They are available in all colours and shades. They are washable and are not permanent inks. They fade with time. The fading period depends upon the individual dye. 10.9.1.4 Ball pen inks

Ball pens have become very popular because of their convenience in use. Ball pen inks are dyestuffs suspended in a suitable vehicle. Vegetable oils were used as vehicle for the dyes formerly. They are still being used in cheaper varieties. Glycols are increasingly being used as vehicle in modern ball pen inks.

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A ball pen which uses ordinary pen ink has also been invented. It uses a sapphire tip (ball) contained in a platinum housing.

A suspension of carbon (graphite) in a fluid gives liquid lead pencils. They are like ball pens. 10.9.1.5 Logwood inks Logwood extract with potassium dichromate gives a permanent ink. It is not used in our country to any appreciable extent.

10.9.1.6 Alkaline inks Alkaline inks are manufactured from dyestuffs and copper or vanadium complexes. They are quick drying and permanent inks. 10.9.1.7 Special inks

1. 2. 3. +.

Printer’s ink.—It contains carbon, adhesive and drying oil. Cancellation ink.—It is used in post offices. It is similar to printer’s ink. Stamp-pad ink.—It contains dyestuffs, glucose and glycerol or glycol. Typewriter ink.—It contains dyestuff and oil (castor oil). It may contain carbon for permanency.

10.9.2 Pencils 1. Lead pencils—Normally contain graphite and clay. The extruded ‘lead’ is glued in wood. 2. Copy Pencils—In addition to graphite and clay, copying pencils contain dyestuffs. They are called copying pencils because a copy from a dense copy pencil writing can be prepared. They are also known as indelible pencils because it is not easy to remove copying pencil writing—the dye spreads all over the surface. The composition of lead and copying pencils varies, hence they permit identification. 3. Coloured pencils—Coloured pencils are crayons. They contain dyestuffs dissolved in waxes. 4. Coloured chalks——Coloured chalks are sticks of calcium sulphate mixed with dyestuff. 10.9.3 Examination Examination of inks

is carried

out

to find

out

additions,

obliterations,

erasures and the age of the writing, or to restore faded writings.

10.9.3.1 Visual examination The colour and shade variations are carefully noted with angle-poise table lamp and spotlight. The observations are made with light falling at various angles and in transmitted light. The examination reveals apparent discrepancies and erasures. 10.9.3.2 Magnifiers

The examination is facilitated by magnifiers. Stereomicroscope is especially useful. Some manufacturers provide arrangements for transmitted light and a

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10.9.3.3 Filters Filters of different colours are helpful in detection of differences in ink shades and evaluation of faded writings or writings obscured by obliteration or by highly coloured surfaces. A quality scanner in a computer system has also colour filtering arrangement. It gives excellent results. 10.9.3.4 Invisible rays

Soft X-rays, ultraviolet rays and infrared rays are useful to study the variations in inks. A Video Spectral Comparator (VSC) is useful to carry out these studies

Fig. X-35 Infrared photography reveals the place of posting of an anonymous or pseudonymous letters. In the present case figure (above) is an infrared photograph of the postal stamp ‘Park street* both in English and Hindi is revealed clearly.

10.9.3.5 Spectrographic anaiysis If metals are suspected in an ink, spectrography,

especially with laser microprobe, of a small amount of ink writing, proves useful to give their nature and quantity.

10.9.3.6 Chemical tests The inks may be acidic, alkaline or neutral. They may be attacked or may resist the attack of oxidizing or reducing agents. The action and time of reaction is noted. The chemicals used for the tests are: chlorine or bromine water and stannouschloride, potassium permanganate and sodium hydroxide solutions. They differentiate the inks. Many other chemical reagents have been used in the past and are being used by some experts, but they are useless in the context of modern development of other refined methods. 10.9.3.7 Chromatographic analysis

Thin layer Chromatography (TLC), is useful in distinguishing different types of dyestuffs. It separates out the dyestuff constituents. It has proved handy for ink analysis. There is no streaking. In fact TLC is the most frequently used to differentiate and identify inks.

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10.9.3.8 Electrophoresis

The inks are subjected to electrical field. The dyestuff constituents separate out in bands due to differences in their mobilities. 10.9.3.9 Spectrophotometry

;

The dyestuffs can also be identified by spectrophotometry and their chemical nature determined after separation through chromatography. 10.9.4 Video Spectral Comparator ‘ Video Spectral Comparator is another instrument of choice which helps in the identification and comparison of inks. The writing under study is exposed to various wave length of the spectrum (usually U.V., visible and infrared rays).

The effect of these rays on the inks is displayed on a monitor (T.V. Screen). The system has also proved useful for faded or obliterated writings. 10.9.5 Age of Ink The determination

of age of ink is not an easy task. The following

observations are helpful: 10.9.5.1 Colour changes

Only the blue-black ink changes its colour from blue-black to black. The change is gradual and is affected by factors like quality of paper, storage conditions, exposure to sunlight, air, humidity, etc. 10.9.5.2 Smudging

Fresh ink is easily smudged, while old ink takes time to dissolve in water and other reagents.

The smudging is due to the dissolution of dyestuff. The dyestuff becomes insoluble or fades away with time. Or, it is masked by the iron tannate formed. Therefore, the time taken for the solution of the ink in a solvent and smudging is an important indication of the age of ink. 10.9.5.3 Diffusion pictures

Inks often contain sulphate or chloride ions from the acids added to it. They diffuse into the paper with passage of time. If the paper is treated with lead acetate or silver nitrate, sulphate or chloride ions precipitate out as lead sulphate and silver chloride and give the diffusion pictures. The age of the writing is directly related to the extent of diffusion, indicated by the diffusion pictures. 10.9.6 Ink age markers

In view of the importance of determining the age of documents manufacturers of ink in certain countries add age markers—chemicals—to the ink. The material changes progressively with the passage of time. The extent of change indicates the period and hence the age of the document. Ink age markers are usually radioactive substances. Ink age markers have not been used in India, so far.

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10.9.7 Faded Writings

The restoration of faded writings is possible where the ink used contains iron

or other metal. The iron-tannin ink is the commonest restored by:

ink in the class. It is

1. Exposing the paper to moist hydrogen sulphide. Writing appears black. Hydrogeri sulphide may be replaced by ammonium sulphide; 2. Contrast photography using filters (e.g., yellow) or by photography with ultraviolet rays;

3. Electrostatic Detection Apparatus (ESDA), may reveal writing in some cases. 4. lodine fuming followed by photography, may help in some cases. 5. Writing in ink or pencil containing carbon may be read through infrared photographs. Dyestuff inks ordinarily do not leave residues which can be developed to restore the original writing. 10.10 PAPER

10.10.1 Nature Paper essentially consists of cellulose obtained from rags, straw or wood. The material is beaten to small shreds and their suspension in water is passed over a continuous moving wire gauze screen. Water is sieved through the screen and the shreds get interlocked with one another due to constant shaking of the carrier screen. By the time the paper reaches the end of the screen, it is drained off most of its water content and acquires sufficient strength for further processing. A water mark is given to the paper at this stage where the impression in relief is pressed on to the paper with a dandy role bearing the mark creating die.

The paper thus obtained, is like a blotting paper and is useless for writing purposes. To make paper suitable for writing purposes the pores of the paper are filled with a loading material, like kaolin (china clay) or calcium or barium

sulphate 2 added to the suspension of the shreds. The surface of the paper is still rough. Rosin mixed with alum is commonly used to. glaze paper in India. Starch, gelatine, latex, wax and plastic resins are also used. Finally the paper is passed through hot rollers. They dry the paper, smoothen its surface and give gloss to the surface. The process is called calendering. Research in paper industry has brought certain improvements. For example, wet strength of the paper is increased by wax or resin treatment. Paper has been prepared from synthetic fibres like nylon (for enhanced strength) and special surface treatment has given N.C.R. (no carbon-paper required) paper. This paper does not require ribbon or carbon paper to prepare typescript documents. Security paper carries special surface treatment. High denomination bank notes carry a security thread, firmly interlocked in the fibres of the paper.

10.10.2 Examination The following items are observed in the examination and comparison of paper:

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Dimensions: length, breadth and thickness. . Weight per unit area. . Colour. . Fluorescenc~. . Loading material: checked chemically and spectrographically.

Sizing material: Checked chemically and by spectrography. WN PF ND . The nature of the fibre: Studied by chemical, microscopical and staining techniques. 8. Water marks: studied through transmitted light and with ultraviolet rays. 9. Wire-gauze marks. 10. Opacity, stains and erasures, 11. Ruled lines on the paper. 12. Artificial aging. 13. Ash. The detailed discussion of the methods is beyond the scope of the present work.

10.11 ERASURES Disputed documents often carry erasures: some unwanted date, word, figure, letter or digit is removed by erasures. 10.11.1 Techniques

The following techniques are used to remove unwanted material: Mechanical erasures.—The area bearing the unwanted writing is scraped or rubbed to remove the writing with a razor, penknife, a sharp blade, eraser or

even a fine sand paper. The process disturbs the surface. The extent of abrasion of the surface depends upon the nature of the ink, writing surface and the technique employed for the removal of the writing. Solvent action.—Certain inks are readily soluble in solvents like water, alcohol, acetone, petrol, chlorohydrocarbons and tetrahydrofurans. The writings are repeatedly swabbed with a suitable solvent. The ink gets dissolved and is removed by the swab. Chemical action.—Oxidizing and _ reducing agents like potassium permanganate solution, chlorine or bromine water and sulphurous acid decolorize the writings. They are extensively used. Detergent action.—Certain inks especially carbon inks are easily removed by detergents. They detach the inks from the surface and it is removed by swabbing. Trimming.—Certain unwanted entries are removed by trimming the paper. It is possible only if the unwanted writing is on one side or on a corner of the document. Sometimes trimming has been done even in the middle of the paper.

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In an interesting case a person died, leaving his two daughters, heir to considerable immovable property. His brothers thought that family property should not go to the daughters. They forged a Will from father side, in which he gave all the property to these brothers. The signatures of the test at or were available in some other document. They trimmed off the non signature part of the document and pieced signature bearing part to the last page of the typed Will, cutting off the blank paper, with the help of a tape. The process was clumsy. The following glaring acts of omission and commission declared the forgery: 1. The length of the pieced paper was less vis-a-vis the other two leaves of the Will. 2. In the process of piecing the ink of the signature was smudged. They wrote over the signature with a different pen and ink. 3. The handiwork was clumsy. They forged another signature of the testator which again was done so carelessly that it proclaimed forgery. The forgers have, however, taken care to use the same paper for three leafs documents. (CH) 10.11.2 Detection Both physical and chemical methods are used to detect erasures and to read or restore the original writing.

10.11.2.1 Dimensions Length, breadth and thickness of the given document is checked on all sides. The document is further checked for repairs.

Fig. X-37

Tampering of the lottery ticket is revealed by the disturbed fibres.

10.11.2.2 Lighting

, The document is examined under ordinary light at various angles. Grazing light and transmitted light are particularly useful. They reveal mechanical erasures in most of the cases. Angle-poise lamp and spotlight lamp are useful for the examination. A VSC or a polylite system of light provides not only visible light but also

ultraviolet and infrared radiation. They are now being used increasingly for evaluation of documents.

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10.11.2.3 Stereoscopy The examinations of erasures is best carried out with a stereomicroscope. A zoom type of stereomicroscope with a tilting stage and a transmitted light arrangement is preferable for the purpose.

Fig. X-38 A crudely forged Will, in which the testator’s signature bearing paper piece was taped to the last trimmed page of the text. In the patching process the signatures were disturbed. Another signature was forged. The second signature had to be inked, as initially ball pen was used which was not prelevant on the alleged date of Will. The stereomicroscope revealed the patch work as well as the over-inked signatures.

Stereomicroscopy with oblique and transmitted light often reveals the original writing. The reverse side surface of the document is also examined. It sometimes reveals the writing due to reverse printing by the dirty backing material. The writing on the surface is inverted. It is read with the help of a mirror or through a reversed photograph.

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10.11.2.4 Ultraviolet rays

Chemical erasures and those in which solvents have been used are often detected easily through the difference in fluorescence at the erased and tunerased surfaces. Fluorescence may also reveal the original text especially in chemical erasures. Mechanical erasures are also detected through ultra-violet rays.

10.11.2.5 Photography

Photography using a contrast film with transmitted light frequently reveals the site of erasures and sometimes the original writings. Photography with ultraviolet rays often reveals the original text. Photography with infrared rays is useful in those documents in which infra-red opaque inks have been used. All inks containing carbon and some permanent inks are opaque to infrared rays. The rays reveal the site of erasure and allow reconstruction of the original writing.

10.11.2.6 Solvents Erased writings, written with indelible pencil, are often restored by alcohol vapours which intensify the colour of the ink. The document is placed in a closed chamber containing alcohol in a dish. The alcohol vapours are allowed to develop the writing.

10.11.2.7 Chemical action Hydrogen sulphide, ammonium sulphide, and hydrogen ee ae after coming in contact with a moist iron salt give black or red colour. Some inks contain iron and therefore erased writings (written with these inks) are often restored by the action of these reagents. Tannic acid and other organic reagents which give coloured compounds with iron are also used to restore the faded writing.

10.12 SECRET WRITINGS Prisoners convey messages in secret writings to their sympathizers, friends or relatives outside. The prisoners may be criminals, international spies, political offenders, members of secret societies and subversive groups. Secret writings are also utilized by international spy rings or criminal gangs outside the prison.

10.12.1 Invisible Inks Invisible inks are also known as sympathetic inks. The nature of the inks varies tremendously. Simple substances like water, body secretions (saliva, urine, perspiration), tea, milk, sugar, fruit juice, soap, tooth paste, medicine, perfume and the like have been used by the criminals who have limited resources at their disposal, especially inside a jail. On the other hand, the invisible inks may be highly complex chemicals. The writings may be decipherable only with ultraviolet rays, infrared rays, soft X-rays or colour reactions with specific reagents. The ink may be heat or light sensitive, or, it may have a radioactive substance and its presence in specific words forms the text of secret writing. The rest of the writing, thus, forms cover for the message. Invisible writings on documents are evaluated in a laboratory. Most of the secret writings allow identification and evaluation of the writings because the

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surface of the paper carrying the writing is disturbed at the place of writing and the extraneous matter is deposited therein. Either the disturbed surface or the extraneous matter makes it possible to find out the writing. The following observations are made: 1f The document is examined with ordinary light falling at various angles.

Grazing light and transmitted light are often useful. . The above observations are repeated using a stereomicroscope. Sometimes, in addition to finding the presence of the secret writing, it is possible to read the original message also. . A large number of ‘inks’ fluoresce in ultraviolet rays. The secret message may thus be revealed. The differential absorption and reflection of ultraviolet rays may also help to decipher the secret message. . If the secret ink contains some heavy metal, opaque to infrared rays, the writing, is revealed in an infra-red photograph.

. X-rays opaque metal salts become visible with soft X-rays either in a radiograph or on an X-ray screen. . If radio-active substances have been used to tag certain words in a text, the same can be found out with a Geiger Counter. . Iodine fuming reveals secret writing in many cases. It also does not disturb or spoil the document extensively. Differential absorption of iodine fumes at the place of writing reveals the text. . Writing with silver nitrate solution becomes evident when exposed to strong light. Similarly writings with body fluids or fruit juices become evident when the document is heated. Certain salts and organic compounds are also affected by heat. The heating is done with an electric iron. . Coloured powders and solutions are employed only when the document is not important and it is not to be sent to its destination because coloured powders and solutions disfigure the document and may spoil other writings. However an electrostatic copy must be obtained before employing coloured powder and solutions. 10. Chemical methods depend upon the correct diagnosis of the sympathetic ink. Reagents are then employed which give coloured compounds with the inks. The documents are first tested chemically to know the nature of the ink used and then the appropriate reagent is applied to develop the writing. 10.12.2 Miniature Writings The secret message may be sent in the form of a microphotograph. Even a photograph of the size and shape of an inconspicuous dot may carry all the

necessary information of a secret message. They are evaluated through a microscope or through enlarged photographs.

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10.12.3 Latent Photographs

A secret message may be conveyed in the form of an undeveloped photograph on a film or a bromide paper. The recipient develops and fixes it to read the message. If it falls into wrong hands, the message gets destroyed as soon as it is exposed to light. If a police officer comes across a packet containing some material wrapped in black, red or brown paper, he should open the same in a dark room only. If a piece of sensitive photographic film or paper is found, it should be got developed for evaluation.

If necessary a similar latent photograph can be prepared and despatched to the destination. 10.12.4 Codes and cyphers

Messages in codes and cyphers are extensively used to convey secret messages. They are used in military, police and other administrative departments. Government employs highly complex codes and cyphers while codes used by criminals are simple. If sufficient coded material is available, it is usually possible to decode the same.

Fig. X-39 Photograph of a letter in code. The cyphers were simple and the contents could be evaluated.

10.13 BURNT DOCUMENTS Burnt documents are evaluated using the following techniques: 1. Visual examination reveals some of the writing. It is photographed. 2. If the original ink contained carbon or other infrared opaque ink and the document is not fully burnt, the writing is revealed by an infrared photograph. 3. A charred document placed in contact with a photographic film or plate affects the emulsion differentially to reveal the writing. 4. Sometimes silver nitrate solution helps to read the charred writing. The document is placed over a glass plate in a photographic enamelled tray. A second glass plate is placed over it in such a way that it does not come in contact with the document. Silver nitrate solution is put in the tray. The writing appears grey against black background.

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| 10.14 AGE OF DOCUMENTS Age of a document sometimes assumes importance. It is indicated by the following observations: 1. The age of paper can be a rough index of the age of the document. The document cannot be older than the paper itself. The age of paper is ascertained from the factory where the paper was manufactured. The watermarks, the composition of the fibre, sizing and loading material used are useful for the purpose. Some paper manufacturers keep a record of the water marks and put some sign which indicate the year of manufacture. The reference to the manufacturer, therefore can get the age of the paper.

In the case offorgery of Hitler's diaries the same could be prove because the optical brightners used for the paper fibres were not known in Hitler's time. (CH) The age of the paper may be roughly estimated from its condition. 2. Age of writing is given by the age of the ink. 3. The use of a particular pen points to the age of the document in some rare cases. For example, in India the use of ball pen before 1950 was practically nil. Therefore, a document written with a ball pen is unlikely to be prior to 1950.

4. The revenue stamps carry distinct marks indicative of the period of their printing. A revenue stamp can, therefore, indicate the age of the document. The security press at Nasik therefore can give the age of the document. . 5. An office changes its seals from time to time as they become defective with passage of time or become out-dated. The comparison of the seals and stamps gives the idea about the age of the document bearing a seal mark, provided authentic dated corresponding seal marks are available.

6. The contents of a document may contain references to events which happened after the alleged date of the writing of the document. Such a document is evidently a forgery. 7. The alleged writer or signatories of a document may not be in existence or present at the alleged station on the material date. 8. The age of a typewritten document may be indicated by the age of the typescript.

The document may have been artificially aged. The following techniques are employed: 1. The document is placed in a chimney. The smoke of the hearth ‘ages’ the document. 2. The document is soiled with dust or dirt. 3. Heating or exposing the document to sun or ultraviolet rays ‘ages’ the document.

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4. Iodine fuming or treatment with other chemicals (e.g., sulphurdioxide, permanganate solution) ‘ages’ the document. 5. An old paper is removed from old books. The document is prepared on the paper. The ink on the document indicates the forgery. It is possible to detect the artificial aging of a document in a laboratory, in most of the cases.

10.15 OBLITERATIONS Sometimes unsuitable writings are obliterated by spreading ink or other dark fluid over it. The obliterated writings are evaluated by the following techniques: 1. Examination under strong light at various angles particularly with transmitted light frequently reveals the obliterated writings when the ink used for obliteration is not too dark or too thick. 2. If infrared rays can pass through the obscuring ink but do not pass through the ink in which the document is written, the writing is revealed in an infrared photograph. 3. Solvents like acetone or tetrahydrofuran may remove the obliterating ink. 4. Ink eradicators remove the obscuring ink. 5. High contrast films on contact printing may prove useful and reveal the writings.

6. Colour filters reveal the writing if the shades of the obscuring and the original inks are different. If obliteration has been carried out with the same pen and ink, soon after the writing, it is often difficult to read the original text. Scoring and abrasion prior to obliteration make the task more difficult. In a recent case, a letter suspected to carry an important address was received. The original address was badly scored and erased. It was then covered with the same type of ink. The obliteration was completed by pasting a piece of paper over the address with a strong adhesive.

Thorough processing gave only partial success. (CH)

el ~

cS

UPC tt ~e

~

ae .

‘

.

RN

a

Fig. X-40

;

.

oy

ee

%

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Fig. X-41

Infrared rays also reveal obliterated writings. (Fig. X-41) is a photograph with ordinary light. (Fig. X-42) is a photograph with infrared rays.

10.16 SEQUENCE OF STROKES The sequence of strokes is studied to find out if some fraudulent addition has been made to the existing text. The crossed strokes of the alleged original and additional writing are studied to find out the order of the strokes. It is a difficult study. Mistakes are made frequently by inexperienced persons. The following points usually help to determine the sequence: 1. The ink will spread from the new line to the old line where the lines cross in some cases. If the ink has spread, the order of strokes is established. A stereomicroscope is useful to study the spreading. 2. The pen may have created a furrow like written line. The upper line shows continuity while the lower one shows discontinuity. 3. With some writing instruments ink is deposited on one side of writing line. The continuity of the ink deposit or its cleavage on the line gives the order of strokes. 4. The fibre along the writing lines is conspicuously disturbed if the pen nibs are defective. The disturbance of the fibre may indicate the sequence of strokes. 5. An Electrostatic Detection Apparatus (ESDA), usually utilized to decipher indented writing, also helps to identify the sequence of strokes. 6. The Scanning Electron Microscope, in finding the sequence of stroke, gives excellent results. With the increase in number of instrument, it would provide effective help to determine the sequence of strokes. The sequence of strokes in pencil lines is indicated by the continuity of striations found in the writing lines written in pencil. Ordinarily, the writing in darker shade appears to be written last. But this is deceptive. Only an experienced examiner can establish the correct sequence of strokes.

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In anonymous or pseudonymous letters indented writings assume great importance. Indentations of the original text on the erased surface are also useful to reconstruct the original writings. Indented writings are detected and read by the following techniques: i: Ordinary light (from an angle-poise or a spotlight lamp) is allowed to fall at grazing angles, around 30°, and its intensity is gradually decreased. The observations are repeated with a stereomicroscope. The examinations reveal the indented writings frequently.

When a document containing indented writing is fumed with iodine, the quantity of iodine deposited varies at the place of the indented writing and the rest of the surface. The contrast allows evaluation of the text.

Fingerprint powders sometimes reveal the indented writing but they spoil the documents. They are not often employed. Coloured solutions have, similarly, limited utility. A solution containing iodine, potassium iodide and glycerine in water is spread over the place containing the indented writing. It frequently reveals the writing. A photograph taken on a contrast film using grazing light often reveals the writing. ESDA (Electro Static Detection Apparatus) is an important machine. It reveals the indented writing in most of the cases. In some cases where other methods, have failed, it has succeeded. However, it is not the end-

all technique. In some cases it has failed to reveal the writing. The apparatus and its functioning is simple. The document is sandwiched between a thin transparent plastic film and a porous copper plate. High voltage is applied to the system and toner is cascadec’ over the film. The toner gets - concentrated on the indented line of the writing and makes it readable.

Fig. X-42 Indented writing revealed by powaering an innocent looking paper.

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10.18 CLOSED ENVELOPES The following observations help to know whether a packet (letter etc.) has been opened or not: 1. The packet is examined under strong light, especially with transmitted light. Additional gum, tearing and accumulation of paper fibres at certain places indicate opening of the packet. 2. Ultraviolet rays may differentiate the additional gum put on the packet. 3. If a seal impression (e.g., postal cancellation stamp) or some writings (even lines across the flap) have originally crossed the flap being opened, on reclosing, some misalignment is bound to occur. 4. Chromatography reveals the differences in gums or adhesives. A small amount of adhesive from the suspected place and a small amount of adhesive from an unopened place when chromatographed, will indicate the additional gum, if any. 5. If a sealed packet has been opened, in addition to the above, the sealing wax used for resealing and the defects in the new seal mark would indicate prior opening. 10.19 WRITING INSTRUMENT It is not possible to identify positively the pen used for writing. It is possible to say whether a ball pen, a fountain pen, a steel pen or a reed pen has been used. But individualization of the pen is rather elusive. However, certain pens

can be eliminated because of their construction, the line formation or due to scratching they may cause.

10.20 PRESENTATION 10.20.1 The Expert The expert is the chief performer in the presentation of evidence. The

prosecution and the defence counsels are his helpers while the courts evaluate the performance. An honest and efficient expert keeps the following points in view while giving the evidence: 10.20.1.1 Bias The real expert is not biased in favour of the prosecution or defence. He acts as an assistant to the court. He is not concerned about the persons involved in the case. He is interested in the evidence he has examined, the data he has generated, the conclusions he has drawn and their presentation to the court in

an intelligible way. 10.20.1.2 Dogmatism

The expert avoids any dogmatism. He avoids statements beyond the dictation of his findings. He, rather, prefers to slightly understate his findings. He understands the limitations of his findings and does not hesitate to state them.

10.20. 1.3 Moral conviction The expert does not identify a handwriting unless he is morally convinced on the basis of his data. For this purpose he studies the evidence thoroughly a

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number of times and finds proof for the conviction. He maintains those conclusions through cogent reasoning and demonstrate them with adequate illustrations.

10.20. 1.4 Assistance The expert is assisted in the laboratory by his staff. He discusses the case with his assistants, colleagues or superiors. But the final opinion is his own.

10.20. 1.5 Qualifications The expert is a properly qualified person with a degree in science and some training with a document examiner of repute. He carries out research. He has examined a large number of cases before he appears in the courts.

The expert is often a member of societies dealing with the subject and takes part in meetings, seminars and conferences discussing the subject. He reads papers in these meetings. He may have published research papers and books. 10.20. 1.6 Court appearance

Most of the lawyers are shy of expert evidence. They leave the matter of presentation to the expert. The expert, therefore, has to be careful in presenting the evidence. First of all the expert qualifies himself as an expert by stating his qualifications and experience, to satisfy the conditions laid down in the Evidence Act relating to expert testimony. The academic qualifications, training, experience in the field and authorship, etc., are briefly described.

10.20.2 The Evidence The expert examines the documents in his laboratory before coming for evidence. He marks the documents for identification purposes. When the documents are produced in the court, he identifies them from those identification marks. After the examination of the document in the laboratory the expert sends a report of his findings to the concerned persons. The report is usually brief. It contains all the relevant information: date and mode of receipt, the number and nature of the documents received and examined and date and mode of despatch etc.

The expert prepares a number of photographs. They are for record, illustration or to decipher or differentiate the writings. Some photographs are taken with infrared or ultraviolet rays or with filters. They all bear identification marks.

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Fig. X-43 ‘No person signs twice exactly alike’ is well established principle to establish traced forgery. Graphic comparison of the three questioned signature show ‘almost’ exact identity of the dimensions, which 1s possible only in traced forgery.

Comparison photographic charts are prepared carefully. Two column charts are effective. If the demonstration relates to letters, digits or their short combinations, they are put in horizontal rows as a number of letters or digits from different documents are shown. If it relates to long signatures or words, they are put in vertical columns. The following points are kept in view: E. The charts carry information relating to the documents from which the letters, words or digits are selected. . Congestion on the chart is avoided.

. Letters, words, digits and figures are arranged functionally in the charts. However, as far as possible, the chart is made pleasing to the eye. The charts bear explanatory remarks and notes so that layman can understand the evidence without much assistance. . The photographs in the illustrative charts relating to handwritings have magnification of about 2 to 5 times. Higher magnifications are required to show erasures, alterations, pen pauses or traces in traced forgeries. . The photographic charts bear serial numbers, given by the expert. When they are produced in the court they bear the court exhibit numbers. 7. The charts bear the signatures of the expert. . The convenient size for photographic charts is 30 x 20 centimetres. When larger charts are required they are folded. Thus the effective dimension is doubled or tripled without increasing the external size of the chart.

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The courts are expected to form their own opinions. A demonstration through photographs is, therefore, of great value. Mere verbal description of the findings will not carry conviction, especially if an unscrupulous person is appearing as an ‘opposing expert’ and misguides the court through a barrage of words. The bare reports and opinions of experts are not valued. The opinions, therefore, must be supported by cogent reasons, preferably accompanied by illustrations. The expert can do so only if he has taken copious notes at the time of examination of the documents. The evidence is understood by a layman only if it is presented in proper sequence. The photographs of the size of documents should be produced in important cases, followed by the illustrative charts. Each chart is produced when the evidence relating to the chart is being discussed and explained.

Q usstioned @3,

Q-4 , Q-5

—_—_—

as Rose usesl i

a4 |

S

retion the

ra

Fig. X-44 Comparison chart of questioned and specimen writings reveals common authorship of the two documents.

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An experienced expert does not use technical words in his statement. If some uncommon term is unavoidable, he explains the same. The language of the expert should not cause confusion; instead, it should simplify the technical aspects of evidence. 10.20.3 Presenting counsel The responsibility of proper presentation of expert evidence is mostly upon the attorney who is producing the expert. If he is negligent, the evidence may be worse than useless.

10.20.3.1 Prior consultation Technical evidence needs careful study and understanding. The counsel, therefore, should consult the expert before he puts him in the witness-box. He should study the evidence thoroughly, examine and cross-examine the expert critically and note down the weak and strong points of the evidence. This is necessary to lay proper emphasis at the right places and the right moment. If he is not convinced by the arguments of the expert, it shall not be possible for him to convince the court later on.

It is not difficult to understand the expert evidence. In fact if the attorney cannot understand it, he should not expect the court or the defence counsel to understand the same. The failure to understand the evidence can be due to two reasons only. Firstly, the expert may be incompetent. In that case, the expert should be changed. Secondly, the counsel may be suffering from a complex relating to technical evidence. In this case, he should shake off the same. 10.20.3.2 Examination-in-Chief The evidence of the expert is recorded in the form of answers to questions. Narrative form is inferior to the question and answer form. The court loses interest in a long narrative, the questioning keeps up the interest. It is possible to record the evidence in question and answer form only if the counsel has understood the evidence properly. Otherwise, he may ignore important points and lay emphasis on wrong points. The counsel should ensure that: 1. He establishes the witness as expert by asking questions relating to his education, training, research and experience. 2. He establishes the corpus deliciti by exhibiting the documents; questioned, admitted and specimens. The documents may have been exhibited, prior to the examination of the expert, who, in such cases,

identifies the documents as those he had examined in the laboratory. 3. He gets the main statement in the report recorded. The report may be exhibited at this or later stage. 4. He asks for detailed reasons in respect of each individual part of his statement.

5. He gets the reasons illustrated. 6. He gets the summary of his conclusions recorded.

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10.20.3.3 Opposing expert

The counsel should find out if an expert is being produced for rebuttal. He should anticipate the defence in consultation with the expert witness. He should ask questions from his own witness relating to anticipated defence evidence. If the defence expert evidence is correctly guessed, the rebuttal can be made to wear off its sharp edge.

10.20.3.4 Exhibits All the documents mentioned in the report of the expert should be exhibited. It is not desirable to drop some of them at -he time the evidence is being given. The expert may have prepared illustrative charts based on evidence found on all of these documents. If some documents are dropped, his charts become confusing.

Fig. X-45 Photographic exhibits should speak for themselves.

If it is proposed to drop some documents, the expert should be informed well in time, so that the expert can modify the charts, if necessary. 10.20.3.5 Legal aspects

The counsel must check the evidence that it is legally sound. If the admitted and specimen writings which the expert has compared with the questioned writings are denied by the accused, the whole evidence becomes useless. The specimen and admitted writings, therefore, are proved or belong to the accused by independent evidence before the expert appears for evidence.

10.20.3.6 Re-examination The attorney listens ta the cross-examination carefully. He takes notes and reexamines the expert on points needing clarifications or amplifications. 10.20.4 Cross-Examination The cross-examination of an expert witness is not an easy and off-hand task. It needs proper understanding of the evidence and a thorough preparation of the case. Nevertheless it is not an impossible task as considered by some

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counsels. If they study the evidence and consult the expert and literature on the subject, the cross-examination can be carried out effectively. 10.20.4.1 Aim The cross-examination of an expert witness must have a proper aim:

1. It may be to discredit the witness. The lawyer must know the background of the witness, his educational career, training, experience, research and publications. They can be probed and verified. Insufficient basis of his expertise can be exposed. If an expert is an impostor, he must have received rough treatment in other trials. They are brought home by cross-examination. However, if an expert is disbelieved in a particular case, it does not mean that he is to be disbelieved in all other cases. If the expert is dishonest, and is known to sell readymade opinions, the same is proved by proper cross-examination. If the expert is honest, well qualified and experienced, it is futile to try to discredit the witness.

2. It may be to question his findings. An inexperienced expert may have based his findings on insufficient data or on wrong observations and inferences. The error is proved either by producing a reputed expert in rebuttal, or by thorough cross-examination on the points on which he has based his findings. 3. The conclusions may have been over-emphasized by the expert. The fact is brought out by careful cross-examination. 4. It may be to elicit information to support defence version of the case. For the purpose, the questions are so framed that the witness should reply in ‘yes’ or ‘no’. 10.20.4.2 Temper

The defence counsel should keep his temper even, when he is not getting straight replies to his questions. Once the temper is lost, it shall not be possible to carry out the cross-examination purposefully. 10.20.4.3 Bare reports

The counsel for the complainant may be inexperienced. He may fail to get the conclusions fortified by reasons and illustrations. Bare reports or opinions should not be accepted as evidence. In such cases. The defence counsel does not cross-examine the expert witness. He simply states that the expert has not produced any worthwhile evidence, and, therefore, he would not waste the time of the court on unnecessary cross-examination. He brings out the hollowness and weakness of the expert evidence at the time of arguments. The court ordinarily discards such evidence which has not been well reasoned out and illustrated. 10.20.4.4 Haughty counsels Some counsels are too conceited to study the evidence thoroughly. They start cross-examination of an expert witness without proper preparation. They jump

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from one aspect to another and get confused. Sometimes they strengthen the case against their clients by covering the loopholes left in the examination-inchief.

10.20.4.5 Diffidence Some defence counsels do not feel competent to cross-examine an expert. Others are made to feel so because the court thinks they are incompetent to do so. In the latter case the counsel can pursue cross-examination only at the cost of incurring displeasure of the court. An expert should be produced in such cases, for rebuttal, even to cross-examine the expert. The defence counsel in the latter alternative, however, should participate actively in the cross examination of the expert.

10.20.5 The Judge

The judge is to see that justice is done in every case. The expert, the prosecution and the defence counsels are just to assist it. It has to evaluate the evidence

and

form

its own

opinion.

The judge,

therefore,

should

try to

understand the evidence and utilize it in the dissemination of justice. The prosecution counsel may not present the evidence properly. The defence

counsel tries to elicit information which is helpful to his client. It is the duty of the judge to get the complete picture. If the expert wants to explain certain points to which the defence or prosecution counsel objects, it should either over-rule the objection or record the evidence through a court question. The judge is not an idle spectator. He should get clarified all aspects of evidence which may have remained unexplained, unelucidated and unamplified through court questions, if necessary. 10.21 CASE LAW 10.21.1 Expert Evidence not Essential 1. Marmik’s statement that the appellant had written the endorsement on the postal receipt has been accepted by the High Court. It is not necessary to examine a handwriting expert in every case’ of disputed writing. The investigating officer stated that he did not send the specimen writing of the appellant for comparison with the endorsement on the postal receipt as he could not secure admitted writings of the appellant though he tried his best to obtain his admitted handwritings. He was not further questioned to explain why he considered it necessary to have admitted writings of the appellant in order to obtain the opinion of the handwriting expert about the disputed writing when specimen writings of the appellant were available. The explanation of the investigating officer seems to have been on account of practice. It appears from his statement that he sent certain questioned documents along with the admitted handwritings and specimen handwritings, signatures and initials of accused Nos. 1 and 2 to the government examiner of questioned documents. The practice may be sound or not but the bona fides of the conduct of the investigating officer cannot be questioned. The High Court, however, further considered that the material provided by the writing on the acknowledgement receipt was very scanty and the investigating officer might have felt that the

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subsequent handwriting would be feigned or disguised and that any comparison with the same would be deceptive. Such considerations might have been in the mind of the investigating officer but he had not stated them to be his reasons for not obtaining the opinion of the handwriting expert. The High Court cannot be said to have been in error in taking these further reasons into consideration and holding that no adverse inference can be drawn against the prosecution from the fact that the opinion of the handwriting expert has not been phiaings with respect to the endorsement on the acknowledgement receipt.

2. This statement is not factually correct also as the trial court had itself compared these writings and signatures with certain other writings which had been proved to be of the respondent. A court is competent to compare the disputed writing of a person with others which are admitted or proved to be his writing. It may not be safe for a court to record a finding about a person’s writing in a certain document merely on the basis of the comparison, but a court can itself compare the writings in order to appreciate properly the other evidence produced before it in that regard. The opinion of a hand-writing expert is also relevant in view of section 45 of the Evidence Act, but that too is not conclusive. It has also been held that the sole evidence of an handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person’s or not. It follows that it is not essential that the handwriting expert must be examined in a case to prove or disprove the disputed writing. It was, therefore, not right for the learned judge to consider it unsafe to rely upon the evidence of the complainant in a case like this, 1.e., in a case in which no handwriting expert had been examined in support of his statement. 10.21.2 Expert Evidence Essential

1. A comparison of the signature of the first defendant in Ex-A-1 with those found in Exs. B-4 to B-10 brings out the clear differences between the two. While the admitted signatures are in a free and flowing hand, the disputed one appears to be a laboured and constrained one. D.W. 2 says that in his signature ordinarily there will be spacing between the first two letters and the third letter and that the final two letters are written one over the other. In the admitted signature, the first two letters are written over one another and there is spacing between the 2nd letter and the 3rd letter whereas it is not so in the case

of the disputed

signature.

In this case, we

have

not had

the

advantage of a handwriting expert scrutinizing the signatures and giving his opinion on the genuineness or otherwise of the disputed signature. This is certainly one of those cases where expert evidence would have been of great use. But for one reason or other that was not done in the court below. The learned counsel for the appellant suggests that the document may now be sent to an 1. Srichand K. Khetwani v. State of Maharashtra, 1967 Cri LJ 414 (SC). 2. State v. Vinaya Chandra Chhotalal Pathi, 1967 Cri LJ 668

(SC).

Also

see

Basawarayaswami (In re), 1967 Cri LJ 1536 (Mys); Ranjit Sinha v. State of Bihar,

(1963) 2 Cri LJ 36 (Pat).

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expert but we think the request is rather too late for the suit is of the year 1950 and six years have passed by. The appellant also filed an application for admission of other documents containing first defendant’s signatures for comparison. It is alleged in the affidavit filed in support of the petition that said documents were sent to the High Court in Appeal No. 812 of 1948, and, after the appeal was disposed of, they had been returned to the District Court, Anantapur and they were still there. But that appeal was disposed of in February 1951, whereas the suit out of which this appeal arises, was dismissed on 25-2-1952 and the plaintiff had every opportunity to file the documents in the District Court if he had intended to use them for the purpose of comparison. There are no grounds for admitting the fresh document sought to be filed in this case. No doubt, a comparison of the signatures without the help of an expert may not afford a conclusive test in the case of expert forgeries. But, in this case, the

disputed signature appears to belong to a class different from the group of admitted signatures. It is not as if the admitted signatures were scribbled on some unimportant papers but they were all affixed to promissory notes wherein

the first defendant was undertaking a liability.’ 2. In view of the respective contentions of the parties the only question that falls for determination in this appeal is whether the learned Magistrate was justified in acquitting the respondents of the charge under section 63 of the Copyright Act, for absence of any expert opinion to prove that the offending books of the respondents were reproduction of the book printed and published by the de facto complainant. It appears from the impugned judgment that in insisting upon an expert opinion in deciding such a case the learned Magistrate relied upon a Division Bench judgment of this court in the case of Sita Nath Basak v. Mohini Mohan Singh; reported in AIR 1924 Cal 595. It is interesting to find that the case arose out of the copyright, which is the subject-matter of this appeal. It was held therein that the court should be reluctant to sit as an expert to decide the question of infringement of copyright and the proper course, in ordinary circumstances was to get the opinion of experts. On a careful perusal of the judgment in that case I find that the above view was expressed primarily on the ground that the court would have to take great pains and would have to waste its valuable time to ascertain how far the piracy extended and it was desirable therefore to seek opinion of expert to compare the works and to ascertain the details to avoid excessive expenditure of time and labour. The court also pointed out that such a course was also necessary as the court might not be conversant with the alphabets of the book. In view of the above judgment, this court, in ordinary circumstances would have referred to the matter to the learned Magistrate to get the evidence of experts to ascertain whether the offence under the Copyright Act, was committed or not for the learned Magistrate was not justified in recording an order of acquittal for absence of any expert opinion. When the books were before 1. Venkataswami v. Laxminarayana, 1959 Cri L] 428 (AP).

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him the court could have on its own motion, examined such experts for ends of

justice. But then considering the fact that the offences were allegedly committed in the year 1972 and the case was instituted in 1973, such a direction would cause further delay. That apart considering the contents of the book I do not think it necessary to get the evidence of experts particularly when this court is acquainted with the alphabets. As pointed out in the judgment of Sita Nath Basak (supra) in ordinary circumstances expert opinion is necessary particularly when the contents of the book are such that the court, being not an expert cannot decide whether there is a piracy or not. Considering all these facts and aspects; I proceed to decide whether the books printed and published by the respondents can be said to have infringed the copyright of the book owned by the de facto complainant. Before doing so it will be necessary to state the nature and

contents of the books.! 10.21.3 Evidence Admissible 1. In our view, the legal position enunciated in Fakhruddin’s case? cannot be said to be inconsistent with the ratio of any one of the earlier decisions to which reference has been made therein. Now it is no doubt true that the opinion of a handwriting expert given in evidence is no less fallible than any other expert opinion adduced in evidence with the result that such evidence has to be received with great caution. But this opinion evidence, which is relevant, may be worthy of acceptance if there is internal or external evidence relating to the document in question supporting the view expressed by the expert. If after comparison of the disputed and the admitted writings by the court itself, when the presiding officer is familiar with that language it is considered safe to accept the opinion of the expert then the conclusion so arrived at cannot be assailed on special leave on the mere ground that comparison of handwriting is generally considered as hazardous and inconclusive and that the opinion of ,the handwriting expert has to be received with considerable caution. The question in each case falls for determination on the appreciation of evidence and unless some serious infirmity or grave failure of justice is shown this court would normally refrain from reappraising the matter on appeal by special leave. The trial court in this case agreeing with the principle of law enunciated by this court compared the relevant documents and arrived at the conclusion that they have all been written in one hand. The learned second temporary Session Judge on appeal after referring to the comparison of the disputed and specimen writings by the trial magistrate himself compared those writings with the help of the expert’s opinion and his report and came to a definite conclusion “that the disputed handwritings tally with the specimen handwriting”. In the High Court also the learned single judge, after referring to the decision in Fakhruddin case (supra), observed as follows:

I have myself made a comparison of the specimen writing of the applicant with the writing contained in the two letters. I have not the least doubt that the writing in the post-card and the writing in the admitted writing of the applicant are the 1. State of West Bengal v. Nitya Gopal Basak, 1985 Cri LJ 202 (Cal). 2. AIR 1967 SC 1326.

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same. Thus, I have no reason to differ from the finding recorded by the courts below. No serious attempt was made on behalf of the appellant to find fault with the approach of the three courts below. There is, therefore, no ground made out for interference by this court with the appellant’s conviction. Unfortunately, the record is not before us otherwise we would have also tried to examine for ourselves the disputed and the specimen handwritings. However, in view of the concurrent decisions of the three courts below we did not consider it necessary to adjourn the hearing of this case to have the documents before us for our examination. ! 2. Mr. Kohli said that these cases establish that the evidence of the handwriting expert is worthless and the court cannot compare the writing for itself and the only possible evidence should have been of one who either saw Fakhruddin write or was familiar with the writing. We had sent for the writings which are disputed and the writings with which they were compared with a view to observe for ourselves the similarities and differences between the two and to verify whether the conclusions of the handwriting expert were proper or not. Mr. Kohli contended that this was not open to us. We do not agree. Evidence of the identity of handwriting receives treatment in three sections of the Indian Evidence Act. They are sections 45, 47 and 73. Handwriting may be

proved on admission of the writer or by the evidence of some witness in whose presence he wrote. This is direct evidence and if it is available the evidence of any other kind is rendered unnecessary. The Evidence Act also makes relevant the opinion of a handwriting expert (section 45) or of one who is said to have familiarity with a particular writing. Thus, besides direct evidence which is of course the best method of proof, the law makes relevant two other modes. A writing may be proved to be in the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an expert competent to do the comparison of handwritings on a scientific basis. A third method (section 73) is comparison by the court with a writing mace in the presence of the court or admitted or proved to be the writing of the person. Both under section 45 and section 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case the court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become an handwriting expert but to verify the premises of the expert in the one case and to appraise the value of the opinion in the other case. This comparison depends on an analysis of the characteristics in the admitted or proved writings and the 1. Ram Narain v. State of Uttar Pradesh, 1973 Cri LJ 1187 (SC). Also see Bhagwan Kaur v. M.K. Sharma, 1973 Cri LJ 1143: AIR 1973 SC 1346; State of Himachal Pradesh v.

Kishan Dayal, 1952 Cri LJ 1128 (HP); Channu Lal v. Rex, AIR 1949 All 692; Ram Bharosey v. Emperor, AIR 1936 All 269.

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finding of the same characteristics in large measure in the disputed writing. In this way the opinion of the deponent, whether expert or other, is subjected to scrutiny. Where an expert’s opinion is given, the court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the court must play the role of an expert but to say that the court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness. Therefore, to satisfy ourselves whether the testimony of the handwriting expert is acceptable or not, we, sent for the record and compared the disputed writings with some comparable material. There were two such writings which were claimed as standard. One was a register maintained at the office of the Association in which there was a signature in three places in Hindi which purported to be that of Fakhruddin (Ex. P-56). The other was a writing which Fakhruddin made to the dictation of the police officer in jail (Ex. P-61). These were of course not admitted by Fakhruddin and the question had to be first decided which of the two or both could be said to be approved standard material. Mr. Kohli urged that Ex. P-56 could not be so treated as there was no proof that the signatures were made by Fakhruddin. In this submission Mr. Kohli is right. The evidence of Tahir Ali, P.W. 14 which has been relied upon is not definite on this point. He does not say that the signatures were of Fakhruddin who was the accused in the case. He only says that the person whose signatures were made in the register, signed it and this leaves the matter at large. There is, however, proof that the other writing was made by Fakhruddin, the appellant. The sub-inspector, P-W. 33 took the precaution of having two witnesses P.W. Nos. 16 and 27. Of these P.W. 16 did not identify the appellant as the writer but the other P.W. 27 did. Exhibit P-61, therefore, furnishes the necessary comparative material. Mr. Kohli said that the expert took both Exs. P-56 and P-61 into account to reach his conclusion that the disputed writing was that of the appellant and he might have been persuaded to this view on the strength of Ex. P-56. This is not a correct reading of the evidence. The expert said that Exs. P-56 and P-61 and the disputed writings were all by the same person as they possessed the same individual characteristics. In other words he proved that all these writings

agreed in characteristic features. He proved that Exs. P-56 and P-61 were by the same writer but as we need not go to Ex. P-56 we may leave it out altogether and the conclusion of the expert that Ex. P-61 and the disputed material were written by the same person thus remains unimpaired.

We sent for these writings and compared them to satisfy ourselves about the accuracy of the expert’s observations. Exhibit P-61 and the disputed writings on the applications are so clearly written by the same person that one hardly needs expert guidance. Numerous idiosyncracies in one are faithfully reproduced in the other and leave no manner of doubt as to the authorship of the applications.

They were written by the appellant. As the applications are ostensibly by different persons the conclusion is inescapable that Fakhruddin was making applications in diverse names and collecting iron sheets in this manner. Once

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the offence of forgery is established the proof of the other offence is clear. Fakhruddin’s conviction for the offences other than conspiracy was, therefore,

soundly grounded.! 3. So far as the appellant Ram Chandra is concerned the circumstantial evidence against him in respect of both the offences is clear. On the finding that the various ransom letters are in his handwriting and on the finding that a very large number of the noted currency notes which formed the ransom money was traced to his possession, there can be no doubt as to his conviction under section 386, Penal Code. It may be that normally it is not safe to treat expert evidence as to handwriting as sufficient basis for conviction. But in this case the authorship of the letters has been held by the courts below to be that of appellant Ram Chandra, on various items of external and internal evidence already noticed above in addition to the opinion of the expert. As regards the charge against him under section 364, Penal Code, for kidnapping, though there is no direct evidence, the various ransom letters categorically state that the missing boy is in the custody or control of the writer. Therefore, it is asserted therein that on payment of the ransom money, the boy will be restored at a particular time and place. We find it hard to believe that this can be mere pretence in order to strike terror in the mind of the father of the boy and to obtain money. It is to be noticed that the ransom letters started from the day next after the disappearance of the boy and they continued pouring in, right up to 4th July, a period of over three weeks. It appears to us to be extremely improbable that a person can keep up the pretence for so long if he had not the absolute confidence that there was no chance of the boy returning until the time which he had to take for bringing about payment of the ransom. The tone of these letters justifies one of two inferences, viz., either the boy has been already murdered as the confession suggests, or the boy, having been kidnapped is kept in effective custody so as not to be able to escape. We have, for reasons already given, felt it unsafe to convict the appellant Ram Chandra of the offence of murder. But there is absolutely no reason why his very admissions in the various letters of which he has been found to be the author, should not be treated as clear evidence against him that he has obtained the custody of the boy by kidnapping. It is true that the boy has not, in fact, been restored as promised in the various letters. But

this by itself is no indication that the boy had not been kidnapped by persons of whom the writer of these letters is one. It may be recalled that though the boy was not restored on the 5th July, as promised, there was a further letter from the same writer dated the 5th July promising to restore the boy later on. This promise may not have fructified since before it has received the appellants were arrested. We are of the opinion that the circumstances lead to the conclusion that the appellant, Ram Chandra is guilty of the offence under sections 364 and 386 of the Indian Penal Code. It may also be mentioned that though we have considered it unsafe to act upon the confession as basis for the conviction in respect of murder, there is no reason why the confession in so far as it relates to the two offences of kidnapping and extortion should not be taken into 1. Fakhruddin v. State ofMadhya Pradesh, 1967 Cri LJ 1917 (MP).

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consideration as against this accused to lend assurance to the conclusion we have reached against him insofar as these offences are concerned based on

circumstantial evidence.! 10.21.4 Evidence Reliable Shri Gopaiji Misra, Assistant Director-cum-Assistant Chemical Examiner, Forensic Science Laboratory, Chandigarh, P.W. 10, examined this Haryana Lottery Ticket in dispute Exhibit P-1 bearing No. B. 0623368 and also its number marked Q/I under stereo microscope in oblique reflected and transmitted light. On thorough examination he observed as follows: 1. First two digits from left to right, i.e., 0 and 6 have not been tampered with except inking around these two digits. 2. From third to last digit (from left to right), i.e., 2, 3, 3, 6, 8 are on small

square pieces of papers bearing digits 2, 3, 3, 6 and 8 have been pasted separately. 3. The gaps between these square pieces of papers are clear at the places (a) in the horizontal part below the digits from 2 to 8, (b) in the vertical

upper part between the digits 6 and 2, (c) in the vertical upper part between the digits 2 and 3, (d) in the upper vertical part between the digits 6 and 8, (c) in the middle and lower part of the right side of the digit 8.

4. The overlapping of these small pieces of papers is clear at places (a) in the lower vertical part between the digits 2 and 3, (b) in the lower vertical part between the digits 6 and 8. 5. The digits making the number of the ticket are not in proper alignment. He gave the opinion that the digits from third to last (2, 3, 3, 6 and 8) have been transplanted in the gap made by cutting the original digits on the ticket and that the two digits 0 and 6 are original digits as no patch work could be observed. The inking around all the digits had been done to hide the tampering. He prepared the photographs Exhibits P. H., P. H./l and P. H./2 of the full ticket and the number bearing portion in reflected and transmitted ordinary light. His report is Exhibit P. G., which is signed by him. This witness was crossexamined by the counsel for the accused but nothing could be elicited from him to shake his testimony. He is M.Sc. and Ph.D. in Chemistry and has undergone practical training in Forensic Science Laboratory, Calcutta and Chandigarh and has done

original

research

work,

he is a Government

servant

and

is a

disinterested person. There is nothing on the file to shake his testimony and see no reason to disbelieve his evidence. From the positive statement of this witness, it is established beyond any reasonable doubt that the digits, 2, 3, 3, 6 and 8 of the number of this winning ticket Ex. P-1, in dispute have been replaced by cutting the original digits on the ticket and the number of the ticket and also the 1. Ram Chandra v. State of Uttar Pradesh, 1957 Cri LJ 559 (SC). Also see Ukhasia v. State of Manipur, 1956 Cri LJ (Manipur); Maliah v. State of Mysore, 1956 Cri LJ 253 (Mys).

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digits of this number have been inked with a view to hide the tampering of the

number of the digits.’ 2. But to prove the charge in the present case, the aforesaid conclusion is not of any material consequence, though the learned trial Judge has totally been swayed away because of the aforesaid conclusion reached by him earlier. The sole question for consideration is as to who had filled in the application forms for withdrawal (Exts. 10 and 11) and signed the same. Was it the accused, or the

depositor (P.W. 1), or any body else ? If the conclusion from the evidence is that it was the accused who had filled in the forms as well as signed the same, then the accused must be held to be liable for the offence alleged against him. The accused has admitted that he has entered in Exts. 10 and 11 the pass order and further he has made the corresponding entries in the list of transaction is Exts. 23 and 24, as well as the log book under Exts. 25 and 26, and so also the cash

books (Exts. 27 and 28). In all these documents corresponding entries as to the withdrawals contained in Exts. 10 and 11 have been made by the accused. P.W. 3 in his evidence states that Exts. 10 and 11 did not pass through him and on account of pressure of work sometimes, the postmaster himself was also doing the job of P.W. 3. Even the learned trial Judge himself has believed this part of the evidence of P.W. 3 and has come to the conclusion that due to heavy pressure of work in the seat of the counter clerk (P.W. 3), the accused as postmaster might have personally dealt with the withdrawal applications (Exts. 10 and 11). In the aforesaid context, one will have to examine the evidence of the

Handwriting Expert (P.W. 9), who has categorically opined that it is the accused who has filled in the forms in Exts. 10 and 11 and also made the signatures purporting to be those of the depositor, Artratran Behera. After comparing the admitted writings of the accused with the disputed ones, the Handwriting

Expert has categorically opined that the writings marked as Q-3, Q-15 and Q-21

are in the handwriting of the accused. Q-3 is the portion contained in red-mark which has been filled up by writing, Q-15 is the filling up of the form on the backside which is nomenclatured as “warrant of payment”. Q-21 is the blank portion contained on the same form which has been filled up indicating receipt of payment. The Expert has further opined that Q-9 which is the purported signature of the depositor on the application for withdrawal and Q-27 which is the purported signature of the said depositor in token of receipt of payment on Ext. 10 are not the signatures of the depositor (P.W. 1) and that he has opined by comparing the same with the admitted writings of the depositor in Exts. 3 to 9. Similarly, the Expert has also opined in respect of the writings on Ext. 11. The learned trial judge has lightly brushed aside the aforesaid evidence of the Expert on the ground that there is no corroboration to the said evidence and in my opinion, he has committed gross error in rejecting the evidence of the Expert. Apart from the evidence of the expert (P.W. 9), P.Ws. 3 and 7 who are the coemployees of the post office also state that the writings on Exts. 10 and 11 were those of the accused.

1. Jai Singh v. State, Criminal Appeal No. 1178 of 1972 (P&H High Court).

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In the case of Murarilal v. State of Madhya Pradesh, AIR 1980 SC 531: 1980 Cri LJ 396, it has been held:—

We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight..........

Applying the aforesaid test in the present case to the evidence of P.W. 9, Ido not find any reliable evidence which throws a doubt on the expert’s evidence. If the reasons for the opinion of the Expert are probed, nothing has been elicited in the cross-examination of P.W. 9 to throw any doubt on his testimony. That apart, I find sufficient corroboration in the present case from the evidence of P.Ws. 3 and 7 and again from the statement of the accused himself. This being the evidence, I hold that the prosecution has been able to satisfactorily prove that it is the accused who has filled up the withdrawal application (Exts. 10 and 11) in the name of P.W. 1 and has also forged his signatures thereon. Thus, the charges under sections 467 and 471 of the IPC have been fully established

against the accused.’ 3. It was the case of the respondent that Voucher Ex. P.W. 14/1 was a forged document and had been surreptitiously replaced for the genuine voucher in his return of expenses. The trial court has carefully examined this aspect of the controversy and has dealt with it adequately. The voucher was examined in the Central

Forensic

Science

Laboratory,

Chandigarh,

and has given adequate

reasons for the opinion that there was sufficient evidence to conclude that the voucher Ex. P.W. 14/1, its perforated part left in the cash memo book and the counterfoil did not originate from the cash book Ex. P.W. 14/2 from which, it was stated by Dina Nath P.W. 14, to have originated. The witness categorically stated that the voucher Ex. P.W. 14/1 had been substituted later on. The trial court rightly came to the conclusion that this was really so, and that the statement of Dina Nath about the printing of the offending poster Ex. P.W. 14/4

at the instance of the respondent is unbelievable.” 10.21.5 Appraisal 1. The main criticism of the learned counsel for the appellant against the testimony of Mr. N. Das Gupta is, that his opinion has been contradicted by the expert examined by the defence and that where the charge against the accused

is one of forging a writing, as a rule it is imprudent to convict him solely on the basis of the expert testimony. 1. State of Orissa v. Sapneswar Thapa, 1987 Cri LJ 614.

2. Shiv Chand v. Ujagar Singh, (1980) 2 SCC 1977.

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I have no quarrel with this proposition. It is merely a rule of caution and not an absolute rule of law. There is nothing in law to prevent the court from recording a conviction on expert evidence alone. The reason is that the identification of handwriting is an imperfect science. Experts often give dogmatic opinions unsupported by reasons. The value of the expert evidence,

however, varies with the circumstances of each case and the reasons given by him in support of his opinion. Its value is to be judged with the same yardstick with which the evidence of any other witness is appraised. It is to be seen how far it fits in with the surrounding circumstances and the natural probabilities of the case. If in a given case the evidence of the expert is materially corroborated and confirmed by the other evidence, there is nothing in law to debar the court from recording a conviction of the accused on the basis of such expert testimony. In the instant case, the evidence of Mr. N. Das Gupta finds material corroboration from the circumstantial evidence brought on the record. After going through the evidence of the experts, I am clearly of the view that the evidence of Mr. A.S. Kapur, A. 37/D.W.

17, is not reliable while that of

Mr. N. Das Gupta, P.W. 120, is creditworthy. Firstly, Mr. Kapur did not examine all the original writings which are in question. He only saw photographs of some of them, supplied to him by the accused. Even the examination of these originals made by him in court was only for about one hour. Furthermore, the

surrounding circumstances and the other overwhelming evidence brought on record by the prosecution clothe the opinion of Mr. N. Dass Gupta with a high degree of probability. Particularly, the set habit of the writer, as revealed by the specimen as well as the questioned entries in the passports in committing the same spelling mistakes such as writing the word ‘Belgium’ as ‘Belguim’ etc., goes to show that at least those entries on the passports were written by Mr. Johal.! ; 2. The next category of evidence in this case consists of the evidence of the expert, Mr. Gregory (P.W. 286), with regard to the disputed documents. It has been contended that the opinion of the handwriting expert is a very unsafe basis for conviction. A number of authorities have been cited for this well established proposition. I may mention, in particular, the following: Ishwari Prasad Mishra v. Mohd. Isa, AIR 1963 SC 1728; Ram Chandra v. State of Uttar Pradesh, AIR 1957 SC 381; Kameshwar Nath v. State, 1957 Cri LJ 276 (All);

Sudhindhra Nath Dutta v. The King, AIR 1952 Cal 422; Ambal Bagyam v. Ramayya Padayachi, AIR 1955 Mad 88. In Ishwari Prasad’s case, AIR 1963 SC 1728 (supra), Gajendragadkar, J. (as he

then was) observed: “Evidence given by experts of handwriting can never be conclusive, because it is after all opinion evidence”. It appears necessary for me to point out that opinion evidence cannot, as a general rule, be considered infallible. In Ram Chandra’s case’, their lordships of the Supreme Court did not lay down a general rule of prudence with regard to expert evidence in stronger 1. Manmohan Singh Johal v. State of Punjab, AIR 1969 P&H 225. 2. AIR 1957 SC 381.

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terms than these, “it may be that normally it is not safe to treat expert evidence as to handwriting as sufficient basis for conviction”. And, after making this observation, their lordships accepted the expert evidence as it was corroborated by other evidence including the internal evidence furnished by the writing on the document itself. Even in Kameshwar Nath’s case!,

in which Asthana, J. of this court, cited a

passage from Sircar’s Law of Evidence pointing out the deceptibility of the evidence of handwriting experts, on which strong reliance is placed by the appellants. It was pointed out, relying on Kalicharan Mukherji v. King Emperor’, that there might be such characteristic peculiarities, of a writer as to lead to an irresistible conclusion about his identity from a writing. Mr. P.C. Chaturvedi drew my attention to an unreported decision of this court in Kameshwar v. State, (Criminal Appeal Nos. 1672, 1675) and 2132 of 1958, dated 10-2-1960 (All), in which the accused is apparently the same individual as Kameshwar Nath of the 1957 case. In this case, where facts were certainly very exceptional and remarkable there was found to be what was described as a ‘twin-like resemblance” between the disputed writings alleged to be of the accused and the indisputably proved writings of another individual who had nothing to do with the disputed writings so that the expert and also other witness, who were very familiar with the writing of the accused, were completely misled and were compelled to admit their mistakes when it was pointed out. This case illustrates the danger inherent in evidence relating to identity of an accused person from similarities in writings only. Iam, however, unable to hold that the evidence as to the identity of an accused person, from close resemblance between his admitted handwriting and the disputed handwriting, is even less reliable than evidence as to the identity based upon personal impressions of previously unknown individuals, alleged to have been seen in all kinds of lights in dacoity cases, which courts in this country do accept and act upon. The authorities cited before me only indicate the need for care and caution in judging and utilizing

the testimony of handwriting experts. Apart from the liability to err to which opinion evidence and evidence as to identity in general are specially exposed, the technical terminology of the handwriting expert (his “jargon” as the antiexperts would like to call it) enables the expert to conceal errors and even dishonesty to a degree which an untrained witness cannot attain. No useful purpose will be served by discussing the fallibility and deceptibility of expert opinion evidence and of evidence relating to identity or the abstract general principles about such evidence which are well established. An appellate court has to examine whether the trial court has correctly understood the general principles and then rightly applied them in assessing the worth of the particular opinion evidence upon the data in a given case. Reliable criteria have been scientifically formulated for judging the worth of the evidence of handwriting experts. The trial court has rightly relied upon Jitendranath Gupta v. Emperor, (AIR 1937 Cal 99) and has pointed out that the 1. 1957 Cri LJ 276 (All). 2. 6 All LJ 184.

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evidence of an expert has to be tested with care and caution and has set out the considerations which the learned judge has applied in judging the worth of the expert's evidence in this case. A great deal of emphasis was placed upon the brevity of the reasons given by the expert, Mr. Gregory, in his reports on the disputed documents. Quotations from a work of Mr. Osborn, the well-known authority on handwriting, were made to demonstrate the weight to be attached to the reasons given for an opinion by an expert. There is no doubt that the worth of an opinion can be tested by the reasons given in support of that opinion and not by the bare conclusions of the expert. Nevertheless, the trial Court was, in my opinion, quite justified in pointing out that the opinion can be stated by the expert both by means of a report and by means of the statement in the witness box which must be there in addition. Moreover, as the unsoundness of the expert’s opinion about some writing can be demonstrated by means of his cross-examination, the brevity of his reports is not sufficient to destroy the value of his evidence. Even if the reports given by the expert are very brief in this case, in view of the great number of documents alleged to bear the writings of the accused persons, the expert has supplemented his reasons by his statement in court, and he has been subjected to quite stringent and searching and expert cross-examination. It may be observed that the appellants did not produce an expert in reply to the evidence of the expert produced by the prosecution. In my opinion, the brevity of

the initial statements made by the expert in the form of his reports upon the disputed handwritings of the accused is not sufficient to justify the elimination of the expert’s testimony as worthless in this case. It was argued that Mr. Gregory (P.W. 286) was not really a handwriting expert at all inasmuch as he did not hold any qualification, such as a degree or a diploma possessed by a qualified medical or legal practitioner. This objection overlooks what was pointed out by Dr. W.R. Harrison, Director, Home Office Forensic Science Laboratory of Britain, in a recent book entitled Suspect Documents:

The demand for specialists in the examination of documents is so small that comparatively few qualified men are ever likely to be wholly engaged in this work. No university college of any standing either in Great Britain or America offers a course of study leading to a degree and if such a course were contemplated, it would be a difficult matter to provide either teachers or any thing like full employment for any substantial number of students when qualified. Mr. Gregory has deposed that he is a handwriting expert, with a standing of 32 years at the time when he gave evidence in 1961, and that he had given evidence in more than 2,500 cases all over India. He also stated that he held certificates of competency from leading handwriting experts, including one from Dr. Locard, Ex-Director of the French Police Laboratory and that, in 1948 he

went to England to study the latest developments in his subject at the laboratory of the world famous Scotland Yard. He also stated that he had been an expert placed on the approved list of the Oudh chief court and also a consulting expert of the Criminal Investigation Department of Uttar Pradesh. He has also written a book on the subject. The above mentioned credentials and qualifications of

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Mr. Gregory were, at any rate, not questioned in the course of his crossexamination. However, it is not the apparent qualifications of a handwriting expert which ought to determine the value of the evidence given by him, but the soundness of the reasons advanced by him in support of the particular opinion expressed by him. These reasons are always open to scrutiny by a court of law, and their soundness can be tested by examining the disputed and the admitted writings in the light of the reasons given. The object of expert evidence is to assist the court in forming its own opinions. Even if an expert’s opinion was not reliable in any particular case a court is not-absolved from the duty of forming its own opinion about the disputed handwriting (also see AIR 1937 Cal 99). There are certain well known criteria,

such as the examination and comparison of individual characteristics and idiosyncrasies, which have to be employed by experts as well as by courts in arriving at their conclusions. Mr. C.S. Saran, appearing for some of the appellants, argued that it is very hazardous for a court to act as an expert and to form its own opinions from the individual characteristics, spacing, size, thickness and slant of letters, or the pen pressure at various points, pen lifts, pauses, and the pictorial effect of the whole writing. The task of arriving at a sound opinion is always fraught with difficulties. A court cannot, for that reason, either abandon its duty of forming its own opinions or reject the opinions of a qualified expert merely because his evidence belongs to the variety known as “opinion evidence”. In the absence of better evidence, opinion evidence has to be utilized by courts of law in forming their own opinions. The only effective safeguard against erroneous conclusions is for courts to use their own powers of observation well and to study and use the recognized tests in a manner which satisfied the conscience of the court. I have noted the commendable care and attention with which the trial court has used the opinions of Mr. Gregory (P.W. 286). It arrived at its own conclusions after testing the opinions of the expert by close examination of the documents about which the opinions were given. I have also tested the reliability of the opinions of Mr. Gregory by closely examining the disputed and admitted writings once again for the purposes of forming my own opinions with the help of the expert evidence. Far from finding this method objectionable, I am not able to find any other more satisfactory way of testing the reliability of expert evidence in a case. : In Ram Chandra’s case’ their lordships of the Supreme Court examined the contents of a document and relied upon internal evidence in addition to other external and corroborative evidence before accepting the expert evidence about the writing before their lordships. A comparison of disputed and admitted writings, which are pieces of evidence on record, is also a method of examining the internal evidence of a document and of judging whether it finds support from other evidence on record which is external qua the document containing the disputed writing. Another method of testing whether the opinion of an expert should be accepted or not, suggested by what was laid down in Ram Chandra’s

case!,

is to look

1. AIR 1957 SC 381.

for other

kinds

of circumstantial

or

direct

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corroborative evidence on record. It is certainly hazardous to rely upon expert evidence solely without any corroboration from other kinds of evidence in the case. But, it is seldom that a prosecution case hinges purely on expert opinion evidence. Usually there is also other evidence as there is in this case. My attention has been drawn by Mr. Hamid Husain, appearing for the state, to two cases in which their lordships of the Privy Council examined the disputed and the accepted writings in order to arrive at their own conclusions (See Mahindra v. Mahalaxmi Bank Ltd., AIR 1945 PC 105 at p. 107; and G. Madhavayya v. G. Achamma, AIR 1949 PC 325 at p. 329). Indeed, section 73 of the Indian Evidence Act, empowers courts of law to compare admitted and disputed writings for the purposes of forming their own opinions. The rule of caution is not to base a conclusion entirely upon the court’s own comparison because the court’s function is distinct from and above the role of an expert witness giving evidence on handwriting which is tested by cross-examination: (See Bhagwandin v. Gouri Shankar, AIR 1957 All 119 and Fazaluddin Mandal v.

Panchanan Das, AIR 1957 Cal 924). The court is, however, bound to form its own

opinions with the aid of all the permissible methods, and to arrive at a conclusion where a conclusion can safely be arrived at. Such a conclusion can safely be arrived at where the conclusions, of a court, after comparing the admitted and disputed writings, coincide with the opinions of the expert and are further corroborated by other pieces of evidence. In other words, the method contemplated by section 73 of the Evidence Act, can and ought to be employed by courts in order to test and find corroboration or contradiction of the opinion of the expert. The court does not in such a case function as a handwriting expert itself, but it acts as the authority charged with the duty of arriving at a conclusion with the .aid of all the data upon the record by all legally permissible means at its commands (See Bisseswar Poddar v. Nabadwip Chandra, AIR 1961 Cal 300). With great respect, I find myself in complete agreement with what was laid

down in Fazaluddin’s case', by the Calcutta High Court per K.C.D. Gupta, J.: It is true, ifthere was no evidence before the court as regards the genuineness of the signature, the court could not, in law, rely on its own examination of the signature to supply the evidence because the learned judge could not treat himself as an expert. I am unable to find anything in principle or authority which bars the judge of facts from using his own eyes and looking at the admitted signature along-with the disputed signature in deciding whether the evidence that has been given as regards the genuineness of the documents should be believed or not. If the opinion of the handwriting expert is found by a court to be honest and reliable after subjecting it to the recognized tests of soundness, it can even be considered better evidence than the evidence of indifferent witnesses whose motives are often mixed and whose powers of observation and recollection are very faulty. The observations of the expert are far more careful and guided by scientific knowledge and skill which where they exist must be duly appreciated. Prof. Wigmore the celebrated authority on the Law of Evidence, wrote in 1910 in his introduction to Mr. Osborn’s book on “Questioned Documents” 2nd Edition: 1. AIR 1957 Cal 924.

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A century ago the science of handwriting study did not exist. A crude empiricism still prevailed. This hundred years past has seen a vast progress. All relevant branches of modern science have been brought to bear. Skilled students have focussed upon this field a manifold of appurtenant devices and apparatus. A science and an art have developed. A firm place has now been made for the expert witness who is emphatically scientific and not merely empiric. An objection put forward to the opinion of the expert in this case is that he has admitted that there are deliberate attempts at disguise in a number of writings. The existence of disguise certainly makes the task of the expert and of the

court

more

insurmountable.

difficult.

Certain

The

obstacles

rules have

been

placed

by it are,

formulated

and

however,

not

discussed

by

Dr. Harrison, the Director of the Home Officer, Forensic Science Laboratory in

Britain in his book on Suspect Documents, (1958), as guides for piercing the disguise. These are as follows:

1. Most disguise is relatively simple in nature. 2. Disguised handwriting exhibits less fluency and poorer rhythm than the normal hand: 3. Any change in slope introduced as disguise is rarely constant. 4. Disguised handwriting often contains altered letters. 5. The internal consistency of handwriting introduction of disguise. 6. Originality in disguise is rare. 7. Disguise is rarely consistent.

is disturbed

by

the

8. Certain features are rarely disguised. Another objection put forward against Mr. Gregory as an expert witness in this case was that he had been acting as a consulting expert of the Criminal Investigation Department of Uttar Pradesh. It was, therefore, argued that he could not be impartial in his opinions but must be presumed to be interested in making the prosecution case successful. It has also been suggested that experts are bound to give opinions in favour of parties consulting them. The duty and interest of an expert; if he wants his individual opinion to carry some weight and enjoy a good reputation, is to be scrupulous and impartial. If the expert has some professional pride or even regard for his own self-interest, he will not, for the sake of some small immediate advantage, jeopardize the value of his opinion and degrade the status of his profession by making his knowledge and skill serve as tools of dishonest parties. An expert who gives dishonest opinions is quite certain to be exposed by ruthless cross-examination and to be soon found out by astute courts which do not and should not readily accept expert opinions without rigorously testing what an expert has to say. I do not think that a presumption is a legitimate weapon for demolishing the testimony of an expert with such a background and standing as those revealed by Mr. Gregory. His opinions could certainly be demolished by superior reasons to support contrary conclusions or by convincing proof that they are not honest.

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One of the ways in which the honesty of an expert can be tested is to consider the number of instances in which he has given opinions contrary to the opinions which those who consult him may be presumed to desire. I find that Mr. Gregory has given quite a number of opinions rejecting the disputed handwritings sent to him after comparing them with the admitted handwritings.

In other cases,

I have

also found

that his opinions

are not

dogmatic or obstinate. It has been held in Subodh Kumar v. Soshi Kumar’, that an expert is entitled to more credit if his answers indicate that he appreciates the other side of the case, and can and does look at the problems before him impartially. The general impression created by the replies to the crossexamination of Mr. Gregory, from this point of view also, is quite favourable.

The worth of the expert’s opinions with regard to the handwriting of each appellant can only be judged by examining his reasons and comparing the admitted and the disputed writings about which the opinion was given. As I have already indicated, I propose to adopt the method of judging the reliability of the evidence of the handwriting expert with reference to each accused person. Another test which I propose to employ is to see whether the effect of the expert evidence is corroborated by other kinds of evidence in the case from other sources such as the approver’s evidence about handwritings, the confession, and the evidence of other witnesses. I have already held that the evidence of the approver and the confession of Abdul Hameed can be used in this case for the purpose of finding corroboration for the evidence of handwriting as they are not so unreliable as to merit total rejection even if the part of the approver’s statement relating to the two alleged meetings of conspirators is so thoroughly unreliable that it must be rejected.* 10.21.6 Court’s Scrutiny of Handwriting It has been urged by the learned counsel for the appellant that the learned Sessions Judge has wrongly convicted the accused. The accused had, in fact, paid the amount of Rs. 40 to Rajeshwar Singh in the presence of Sawan Mal and that it was fully proved from evidence but the conclusion drawn by the learned Sessions Judge was quite wrong. I do not agree with the learned counsel for the appellant on this point. After going through the evidence, I am of the view that the learned Sessions Judge was right in holding that it had been proved from the statements of Sarvshri Rajeshwar Singh, Prem Singh Pathania and Swan Mal that the signatures on the money order were not those of Rajeshwar Singh and Sawan Mal. Rajeshwar Singh had denied the receipt of the money. He was a student in the Government Higher Secondary School, Nagpur, and Sawan Mal (P.W.) who is alleged to have signed the money order receipt as an attesting witness in token of payment of the money was a teacher in that school. There is nothing brought on the record by the defence as to why these persons should 1. AIR 1958 Cal 264. 2. Devi Prasad v. State of Uttar Pradesh, 1967 Cri LJ 134 (All). Also see Ravjappa v. Nilakanta, 1962 (1) Cri LJ 441 (Mys); State of Madhya Pradesh v. Dhannelal, 1961 (2) Cri LJ 233 (MP); Amir Chand v. Lok Nath, 1952 Cri LJ 1225 (Nag); Sripada Sinal Duclo v. Goa, Daman, Deo Adm., 1976 Cri LJ 145.

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have been interested in deposing against the accused. It is also pertinent to note that the specimen handwriting of the accused was taken in the presence of the magistrate, who had appeared as a witness for purpose of comparison and the same was sent to the handwriting expert who had not been examined as a witness although a report has been received from him. The prosecution had prayed for examination of the handwriting expert to prove the report but the learned Sessions Judge on the objection of the counsel for the accused rejected the application for examination of the handwriting expert as the name of the handwriting expert did not figure in the list of the witnesses and that the prayer was made at a very late stage and the case was pending since a very long time.

In this court the learned counsel for the appellant has taken up this objection that in the absence of examination of the handwriting expert it could not be said whether the signatures were forged or were those of Rajeshwar Singh and Sawan Mal. That is true but this fact is quite apparent from the record that the accused stated that he did not know English. But on the endorsement he has put down his signatures in English and again when the specimen signatures which have been proved by the testimony of the magistrate as also the investigating officer were written by the accused and that belies the stand of the accused that

he does not know English. The learned Sessions Judge, no doubt, has wrongly rejected the prayer of the prosecution for examining the handwriting expert. But in the absence of the non-examination when the necessary material is there the court under

section

73 of the Indian

Evidence

Act, can also examine

the

disputed handwriting with the specimen handwriting which is taken by the magistrate and is admitted by the accused to have been written by him. From the comparison of the same I find that the disputed signatures are also in the hand of the same person who has written the specimen writing. The accused has furnished a very funny explanation about the specimen handwriting. According to him he does not know English and that the investigating officer had written down on one paper and he asked him to copy the same. He copied out the same with the specimen. It is really unbelievable that an illiterate person can copy the writing and I think the learned sessions judge was right in not accepting this explanation given by him about the specimen signatures and I am of the view after comparison of the specimen handwriting with the disputed one that they are written by the same person, 1.e., the accused. Therefore, the non-examination of the handwriting expert is not

going to make any difference.’ 10.21.7 Court as Expert 1. Now while it is competent on the part of a judge or a magistrate to compare

the disputed signatures with the admitted signature for himself, vide section 73 of the Indian Evidence Act, it is unsafe to rely entirely on such personal comparison. Reference may be made in this connection to the decisions in some

important cases; J.C. Glastaum v. Sonatan Pal, AIR 1925 Cal 485; Darshan Singh v.

Prabhu Singh, AIR 1946 All 67 and Kessarbai v. Jethabai, AIR 1928 PC 277. Thus it 1. Salig Ram v. State of Himachal Pradesh, 1973 Cri LJ 1030 (HP).

. me

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cannot be said that there was a judicial enquiry of the matters before the court; the decision was rather arbitrary and so resulted in manifest miscarriage of justice.! 2. Learned counsel for the appellant has urged that the court itself has assumed the role of an expert in this case. I do not, however, think that the court’s competence to use its own eyes for the purpose of deciding whether the two handwritings placed before it were similar or not can be questioned. It has been held in Parsad Mahto v. Mt. Jasoda Koer*, that where a case against a person depends upon a comparison of the handwriting the court is competent to use its own eyes for the purpose of deciding whether certain handwritings placed before it are similar or not. In a matter of this kind, the court cannot certainly act like an automation accepting without scrutiny an expert’s opinion

as infallible.* 10.21.8 Specimens

1. The only question involved in this revision is whether a court under section 73, Indian Evidence Act, can direct an accused person to give his signatures at the instance of the investigating agency so that after comparison from an expert these could be used against him as evidence. The learned counsel for the State relied on a Full Bench decision of Patna High Court in Gulzar Khan v. State of Bihar’, to argue that such a thing was permitted by law. He also tried to derive help from State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808: (1961) (2) Cri LJ 856. In T. Subbiah v. S. K. D. Ramaswamy Nadar*, Gulzar Khan's case (supra) was noticed but it was not followed. Similarly Kathi Kalu

Oghad’s case was referred and was distinguished. In this case para. 10. Kathi Kalu Oghad’s, case (supra), was reproduced in extenso, in para 14, which contains the facts of that case. The learned judge of the Madras High Court observed: Nowhere in this passage we find that section 73 of the Evidence Act authorises the court to take the finger impression or specimen handwriting of the person present in court in the course of investigation by the police. The learned judge further observed:

This passage makes it abundantly clear that the Supreme Court was not concerned with any other question in relation to the facts of each of these cases. I am, therefore, of the view that there is no basis for the contention of the learned counsel that the Supreme Court has at least indirectly approved the point that the magistrate can take handwriting or signature of the accused in the course of investigation. 1. S.M. Basu v. S.R. Sarkar, 1961 (2) Cri LJ 204 (Cal). 2. AIR 1937 Pat 328.

3. Abhayanand v. State of Bihar, 1959 Cri LJ 893 (Pat). Also see Tilakdhari Bhagat v. Jagat Rai, AIR 1961 Pat 76; N.C. Kolli v. Nannibnand, AIR 1960 Mys 220.

4. AIR 1962 Pat 255: (1962) 2 Cri LJ 84. 5. AIR 1970 Mad 85: 1970 Cri LJ 254.

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Similar view was expressed by a Division Bench of the Kerala High Court in Alovsious John v. State of Kerala’. In view of the above cited judgments it is clear that section 73 of the Indian Evidence Act does not contemplate that the accused can be asked, persuaded or coerced to give his handwriting or thumb impressions at the instance of the police so that these may be, at a later stage, used against him. The learned Additional Sessions Judge took pains to make a detailed reference. The learned magistrate transgressed the provisions of law in directing Dharamvir Singh petitioner to give his signatures at the instance of the police. The order being bad in law amounts to illegality and requires to be quashed. Accepting the reference of the learned Additional Sessions Judge, Ambala, the order is set aside.” 2. What is challenged in this criminal revision application is an order of the city magistrate, 3rd court, Ahmedabad, asking the accused persons, namely the applicants, to go to the police station and give their handwritings and signatures to the police. It is true that the giving of signatures or giving of handwriting is not hit by article 20 of the Constitution as held by their lordships of the Supreme Court in State of Bombay v. Kathi Kalu>. But the question before me is not whether the giving of signatures or giving of handwriting is hit by article 20 of the Constitution, but the question is whether the magistrate has power to ask the accused persons who are on bail to go to the police and give their specimens of signatures and handwriting. The powers of magistrates and police officers are prescribed under various laws. Those powers cannot be enlarged. There must be something in the law for the exercise of power if such power is to be exercised by a police officer or by a magistrate. If there is no provision in the law for the exercise of a power, that power cannot be exercised by a police officer

or by a magistrate or by a judge. The learned counsel for the government and the learned counsel for the complainant rely on section 156 and section 157, Code of Criminal Procedure. Of course, the police has got powers of investigation, but that does not mean that the police can compel an accused person to give his specimen signature and hand-writing. Section 73 of the Evidence Act provides as follows: In order to ascertain whether a signature, writing or seal ‘is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.

The court may direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by such person...... The court may direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so 1. 1966 Mad LJ (Cr) 298. 2. Dharamvir Singh v. State ofHaryana, 1975 Cri LJ 884 (P&H).

3. AIR 1961 SC 1808.

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written with any words or figures alleged to have been written by such person. If the accused is present in court, then the powers given under section 73 of the Evidence Act can be used by the court. But that is not what is being done now. The accused are not before the court and the case against them is still under investigation. No provision of law has been pointed out to me, whereby such a power can be exercised. The revision application is, therefore, allowed and the order passed by the learned magistrate is set aside." 3. The learned Counsel for the appellants contended that the prosecution could not obtain the specimen handwritings of the accused for comparison with the letter (Exhibit P. 1). He has also submitted that the learned Additional Chief

Judicial Magistrate. Bhiwani, did not take any precautions by giving the accused time to think and by apprising them that they were not obliged to give their specimen handwritings. He also did not warn the accused that the disputed letter, if found to be in the handwriting of any one of them, the same could be used against them. A perusal of the court proceedings noted on application (Exhibit P.J.) will go to show that no such precautions were taken by the learned Magistrate. The learned Additional Chief Judicial Magistrate Mr. Vinod Jain was examined by the prosecution as P.W. 4. In his crossexamination, he admitted that before writing statements of the accused, who were not assisted by any counsel, he did not warn them that the statements could be used against them. He stated that though it is not mentioned in the order that the accused were allowed to think, but he allowed them time to think. He further stated that he could not say whether it was necessary for him to append a note about the fact whether time was given to the accused to think or not. He stated further that Sub-Inspector Hira Lal was present throughout in the court when the accused made their statements. The learned Counsel for the appellants in support of his aforesaid contention cited State of Uttar Pradesh v. Ram Babu Misra, AIR 1980 SC 791. In that case, the

Investigating Officer moved the Chief Judicial Magistrate, Lucknow, to direct the accused to give his specimen writing for the purpose of comparison with certain disputed writings. The Chief Judicial Magistrate held that he had no power to do so when the case was still under investigation. The plea of the State was rejected by the High Court and thereafter the matter was taken by the State before the Hon’ble Supreme Court. The Hon’ble Supreme Court held that section 73 of the Evidence Act did not enable to Magistrate to give such a direction when the case was still under investigation. Section 73 of the Evidence Act lays down as under:— “73. Comparison of signature, writing or seal with others admitted or proved,— In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal Keshavlal Trikamlal v. State of Gujarat, 1954 (1) Cri LJ 94 (Guj). Also see State of

‘aharashtra v. Kathi Kalu, AIR 1961 SC 1808; Abdul Gani v. State of Rajasthan, AIR

160 Raj 77.

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admited or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, proved for any other purpose. The court may direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by such person. This section applies also, with any necessary modifications, to fingerimpressions.”

The Hon’ble Supreme Court in Ram Babu Misra’s case (AIR 1980 SC 791) (supra) considered the provisions of section 73 of the Evidence Act and observed as under (para 4):—

“The second paragraph of section 73 enables the court to direct any person present in court to give specimen writings for the purpose of enabling the court to compare’ such writings with writings alleged to have been written by such person. The clear implication of the words ‘for the purpose of enabling the court to compare’ is that there is some proceeding before the court in which or as a consequence of which it might be necessary for the court to compare such writings. The direction is to be given for the purpose of enabling the investigating or other agency ‘to compare’. If the case is still under investigation there is no present proceeding before the court in which or as a consequence of which it might be necessary to compare the writings. The language of section 73 does not permit a court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the court.”

The learned Deputy Advocate General for the State-respondent, on the other hand, contended that the only bar on the Magistrate is that the Magistrate cannot under section 73 of the Evidence Act issue a direction to the accused to give his specimen handwriting. He contended that, in the instant case, as a matter of fact, the learned Additional Chief Judicial Magistrate, Bhiwani, did not

issue any such direction to the accused to give specimen handwriting and it was the voluntary act of the accused to give their specimen handwritings for comparison. After carefully perusing the application (Exhibit P. J) moved by the Investigating Officer before additional Chief Judicial Magistrate, Bhiwani, and the proceedings conducted thereupon by the learned Magistrate, we have no doubt that the Investigating Officer had prayed before the learned Magistrate for obtaining the specimen handwritings of the accused for comparison. The learned magistrate proceeded to record the statements of the accused and it was thereafter that he passed the following order in respect of Jagbir Singh accused on September 10, 1991:— “Present A.P.P. for the State, Both the accused in custody with Investigating Officer Hira Lal, Sub-Inspector of C.I.A. staff, Bhiwani. In view of the statement of the accused, application is allowed. Let specimen handwriting of the accused be obtained.”

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Similar order was passed by the learned Magistrate on September 10, 1991 in respect of Umed Singh accused. The said orders are in substance a direction of the learned Magistrate for obtaining the specimen handwritings of the accused. That being so, in view of the law laid down by the Hon’ble Supreme Court in Ram Babu Misra’s case (AIR 1980 SC 791) (supra) the learned Magistrate had no jurisdiction under section 73 of the Evidence Act to issue such a direction to the

accused to give specimen handwriting. Apart from it, the learned Magistrate did not observe any precautions, while recording the statement of the accused, which contained an admission of the accused Jagbir Singh about the disputed letter being in his handwriting. Resultantly, the report of the Handwriting Expert is of no consequence. Besides it, if the statement of Daya Nand (P.W. 7) be believed that he had suspicion on Jagbir Singh accused about sending the two letters, one to Telu Ram and the other to him, as early as on 6th/7th September, 1991, then the conduct of Daya nand in not expressing his suspicion on Jagbir Singh in the Daily Diary Report No. 4 dated September 8, 1991 (Exhibit P.M.) throws considerable doubt about these two letters being in existence by that time. As a prudent man, Daya Nand-complainant (P.W. 7) was expected to express suspicion on Jagbir Singh, accused in the said report. Faced with the situation arising out of the non-mentioning of the suspicion on the accused in the report registered vide Daily Diary Report No. 4 dated September 8, 1991 (Exhibit P.M.), Daya Nand (P.W. 7) tried to wriggle out of it by saying that he did not make any such statement as is mentioned in the Daily Diary Report (Exhibit P.M.) before S.H.O. Mahender Singh Bhatti. He further stated that, as a matter of fact, it was the S.H.O. himself who got the said report written at his dictation and got the same signed from him. Sub-Inspector Mahender Singh Bhatti (P.W. 12) on the other hand stated, on oath, that on September 8, 1991 he recorded Daily Diary Report (Exhibit P.M.) on the statement of complainant Dayanand. It will, thus, appear that the prosecution evidence is discrepant regarding the recording of Daily Diary Report (Exhibit P.M.) There appears to be no valid reasons to disbelieve the statement of S.I. Mahender Singh Bhatti (P.W. 12) regarding the Daily Diary Report (Exhibit P.M.) having been prepared on the basis of the statement made by complainant Dayanand on September 8, 1991. Dayanand-complainant is a literate person and is a teacher by profession. It cannot be expected that he would sign without any murmur on the Daily Diary Report and without carring to know the contents thereof. In these circumstances, the non-mentioning of suspicion on the accused Jagbir Singh in the said Daily Diary Report (Exhibit P.M.) lodged on September 8, 1991, after the alleged receipt of the letter (Exhibit P. 1) addressed to Dayanand and the letter addressed to Telu Ram, aforesaid, assumes significance and casts a serious and reasonable doubt about the veracity of the prosecution case. Not only this, there is no reference of the letter addressed to Telu Ram, aforesaid in the First Information Report (Exhibit P.L) lodged by Dayanand. The complainant Dayanand mentioned in the First Information Report (Exhibit P.L) about the letter addressed to him and about his suspicion based on the said letter in the following words:— “Now I have full suspicion that Umed Singh and Jagbir Singh have kidnapped my son Manoj Kumar with an intent to kill him. They have either concealed him

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somewhere or have killed him because a letter written by Jagbir Singh has been found in my house vide which ransom of Rs. 25,000 has been demanded. I identify his handwriting. I have kept the letter in my house which I will produce before you.”

In view of what has been discussed above, we are of the opinion that the prosecution evidence does not prove beyond shadow of reasonable doubt the receipt of the said letter demanding ransom from Dayanand and, in any case, there is a great suspicion about the appellant Jagbir Singh writing the said letter and leaving it at the residence of Dayanand.!

4. The question that arises for our consideration is how an investigating Agency is to deal with such a situation? Where should it make such an application? In the face of provisions of sections 24, 25 and 26 of the Evidence Act police cannot force any accused. It cannot record that the writing recovered by the police is written by the accused. It shall be hit by any one of the above said provisions of the Evidence Act. No doubt the answer to this question is very difficult but the court cannot shirk from resolving this controversy. Section - 164, Code of Criminal Procedure is the only section which permits a Judicial Magistrate to record a voluntary confession of an accused. If a Magistrate can record a voluntary confession of an accused on an application made by the police on the production of that accused we find it difficult to accept that under the same provision, i.e. section 164, Code of Criminal Procedure why cannot a magistrate direct the accused whose suspected handwriting has been recovered by the police and if that handwriting is in the form of a confession of his guilt why not such a magistrate competent to direct such an accused on an application moved by the Investigator before it to give his specimen handwriting so that the recovered handwriting of his may be compared with his specimen writing. However, the courts have to comply with all those safeguards to which an accused is entitled under section 164, Code of Criminal Procedure. If the courts are precluded as argued by the learned Counsel for the defence from making any such direction the dictum of police having unfettered powers shall be thrown to winds. Investigation is nothing but collection of facts and circumstances as evidence. Obtaining expert’s opinion during investigation on

a disputed document is nothing but collection of evidence as defined by section 45 of the Evidence Act itself. Thus, in our opinion, section 73 in no way lays any impediment in the exercise of such power by the Judicial Magistrate in the course of investigation. Such a direction may be made under section 164, Code of Criminal Procedure. Learned counsel for the appellant has cited three decisions of the Apex Court—(1) AIR 1980 SC 791: (1980 All LJ 350) (State of Uttar Pradesh v. Ram Babu Misra) (2) AIR 1961 SC 1808 and (3) 1998 SCC (Cri) 1609 (Amarjeet Singh v. State

of Uttar Pradesh) wherein the Apex Court has held that during investigation the magistrate has no power to direct an accused to give his handwriting. Without having any dispute with these decisions, we have probed the issue and we feel that what we have discussed was probably never brought to the notice of the Apex Court while dealing with the situation in those decisions. In one of the 1. State ofHaryana v. Jagbir Singh, 1996 Cri LJ 2545.

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judgment the Apex Court has gone to the extent of directing the Government to amend the provisions of section 73 of the Evidence Act. It is indicative of its anxiety. It has encouraged us to deal this issue in the above manner. As discussed by us, in our opinion, the handwriting opinion, so obtained during investigation, can be read into evidence despite the bar created by section 73 of the Evidence Act. It has been strenuously urged by Mr. Gopal Chaturvedi, learned Counsel for complainant that the intrinsic material provided by document admitting his guilt can still be read in evidence as if there is no order passed by the Magistrate for the appellant to give his handwriting. The application contains only the order of production of the applicant and he has just signed the writings with a note “taken in my presence”. There is no direction of the Magistrate that the accused should give his specimen writing. The appellant was never commanded by the court to do so. The appellant had every opportunity to decline to give his writing. No objection was ever raised by the appellant in this connection. As a matter of fact he had acquiesced to and rewrote the contents of his alleged written confession, which was ultimately sent by the investigating agency to the Government Handwriting Expert for comparison with his specimen writing, ie., the confessional statement of the appellant recovered from the room. He sought adjournment once on the ground of his inability on that day to give his writing. His application for adjournment was rejected but at no point of time the appellant had objected or opposed or declined to give his specimen writing nor the court has ever commanded him to do so. In the result there is no bar to the admissibility of this writing in evidence. It shall be a different question what value can be attached to this confession? The contention is that this written confession has an intrinsic value and the content can legitimately be read by the court. The court itself is competent to compare the disputed handwriting with the admitted writings of the appellant and derive its own conclusions whether the writing is of the same person, i.e. the appellant, and if the court can legitimately come to such a conclusion the admissibility of the document cannot be doubted or challenged. No accused can be compelled to be a witness against himself under the law except as provided by law itself. In that respect he is thoroughly protected, but as earlier stated, the appellant was never compelled by the court. The court had only summoned him but refrained itself from passing any order or direction to the appellant to give his specimen writing or write down the confession again. This we have found on an examination of the record. In the circumstances, we are of the opinion that this confession can be read in evidence and it is not covered by any legal bar. Protection of section 73 of the Evidence Act, so far as the present set of fact and circumstances vis-a-vis this written confessional statement are concerned, is not available at all. We, therefore, hold the opinion of the handwriting expert admissible in evidence. Even if for the sake of argument we accept this

argument, yet we can read its content intrinsically.! 10.21.9 Admitted Standards The prosecution called evidence with a view to show that this permit was not signed by W. Bennet. Whether Mr. Bennet was available to disprove his own 1. Sanjay Goel v. State of Uttar Pradesh, 2002 Cri LJ 625 (All).

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signature is not stated. Of course, he may have left the country. The evidence called to prove that the signature was not genuine was that of Ananta Kumar Purkait, P.W. 5, who was a clerk in Mr. Bennet’s office and claimed to know Mr. Bennet'’s signature. In his examination-in-chief he stated that the signature on Ex. 3 appeared to be like that of Mr. Bennet though he was not sure whether it was Mr. Bennet’s signature. In cross-examination he stated that he was very familiar with Mr. Bennet’s hand writing and that the signature on Ex. 3 appeared to be similar to that of Mr. Bennet. Later be said that he had no doubt in his mind that the signature on Ex. 3 was the signature of Mr. Bennet. If the evidence be true then the prosecution was bound to fail. The prosecution, however, tried to suggest that their own evidence should be disbelieved and they called a handwriting expert. According to that witness the signature purporting to be that of Mr. Bennet on Ex. 3 was not his genuine signature. A handwriting expert’s evidence is of very little value and as the learned Sessions Judge points out, the genuine signature with which the handwriting expert compared the disputed signature was merely regarded as genuine because Ananta Kumar Purkait said it was genuine. This witness had stated that the signature on Ex. 3 was also genuine. It seems to me that the evidence of Ananta Kumar Purkait is much more valuable than that of the handwriting expert. But in any event the evidence failed to establish that the permit was not genuine and as | have said, if there was any doubt in the matter the accused was entitled to the benefit of the doubt and to be acquitted. An attempt was made to show that the writing in the body of the document was not the writing of any clerk in Mr. Bennet’s office. But the evidence of the witness who deposed to this is not accepted by the learned Sessions Judge and rightly, how could a man swear that the handwriting on a document was not the handwriting of any one of a large number of clerks in an office?’ 10.21.10 Photographs

The conspiracy was headed by Yau Mockchi who in a sense was the brain behind the whole racket. The discovery with him of the visiting card and photograph of Laxmipat and the photograph and addresses of Balchand was an incriminating circumstance as Ethyl Wong was connected with Yau Mockchi on the one hand and these brothers at the other. Further, letters and writings of all the brothers were seized which were related to the conspiracy. Unfortunately, the originals were not available at the trial but only photostats of the letters. The photostats have been proved to our satisfaction to be genuine photographs of the letters. The copies were made through the Indian Embassy and bore the certificate. The use of the photostats without the originals was questioned before us but not in the High Court. Since it was a pure question of law, we allowed it to be raised. It is submitted that expert testimony as to handwriting can only be based upon the examination of the originals and not on photographs. It is pointed out that there is nothing in the Evidence Act which makes a photograph of a disputed writing the basis of conviction. Nor, it is submitted, expert testimony can be invited about it. Reliance is placed on

M’Cullough v. Munn?, and Phipson on Evidence, 10th Edition, p. 146. 1. ‘Tamanlal Rathi v. State of West Bengal, 1952 Cri LJ 1951 (Cal). 2. 1908 (2) IR 194.

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In our opinion, this submission cannot be accepted. Apart from the fact that this was not argued in the High Court and the handwriting was admitted there, the law as propounded is not sound. The originals were suppressed by the appellants after they were returned. The order of the Supreme Court of Hong Kong has not been produced before us and we do not know why the original documents were returned. Adequate precaution against the suppression of these documents apparently was not taken. This was perhaps necessary because the offence was a part of an international smuggling racket, in which offenders had to be tried in two different countries and both countries needed the documents as evidence. If the photostats were not available this prosecution would have been greatly jeopardized. Even if the originals be not forthcoming, opinions as to handwriting can be formed from the photographs. It is common knowledge that experts themselves base their opinion on enlarged photographs. The photos were facsimiles of the writings and could be compared with the enlargements of the admitted comparative material. In Phipson’s book (10th Edn.) paragraphs 316/317, the rule as to identification of handwriting is stated from the Code of Criminal Procedure, 1865 as follows: Comparison of a disputed writing with any writing proved to the satisfaction of the judges to be genuine shall be permitted to be made by witnesses, etc...... In dealing with the scope of the rule, Phipson observes: Under the above Act, both the disputed and the genuine writings must be produced in court, and the former, iflost, cannot be compared, either from memory or from a photographic copy, with the latter, and the latter must also be duly proved therein.” (Para 317). Phipson himself in paragraph 316 observes that the production of ‘real’ evidence is not now compulsory. For the first part of the proposition in paragraph 317 reference is made to (1908) 2 IR 194 (CA). That was an action for libel contained in a letter alleged to have been written by the defendant. The original was lost but a photographic copy of the letter was available and the envelope had been preserved. The photograph was seen by the jury but the judge ruled that the photograph was evidence of the contents of the letter but not» of the handwriting and could not be compared with other admitted writings. The jury gave a verdict for the plaintiff which was set aside by the divisional court and a new trial was ordered. At the second trial, the photograph was not tendered but a plain copy was put in. The trial resulted in a verdict for the defendant. The divisional court refused to set aside the verdict. The plaintiff then relied upon Lucas v. Williams and Sons’, claiming that the photograph was evidence. The Lord Chancellor, Holmes, LJ, observed:

The plaintiff would have been justified in putting in the photograph as evidence of the contents of the libel, and apparently it was the only legal evidence by way of copy of its contents; and think they might also on the authority of the decision in Brookes v. Tichborne, [(1850) 5 Ex 929] have used it fur purposes of calling attention to peculiarities of spelling and use of capital letters and punctuation eeeeee

1. (1892) 2 QB 113.

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At the first trial Lord Chief Baron ruled (with which Wright, J., agreed in the King’s Bench): That upon the loss of the original letter the photograph was admissible to prove the contents of that letter, but that it could not be used for purposes of comparison with genuine documents. The above observations have received adverse comments from Wigmore (3rd Edition), Vol. Ill, paragraph 797. The earlier cases probably took into account the possibility of trick photography and the changes likely by adjustment of the apparatus. Wigmore rightly points out that unless we are prepared to go to the length of maintaining that exact reproduction of the handwriting by photography is in the nature of things impossible, the photograph must be admissible in proof. Wigmore then observes:

The state of the modern photographic art has long outlawed the judicial doubts above quoted. All that can be said is that a photograph of a writing may be made to falsify, like other photographs and like other kinds of testimony, and that a qualified witness's affirmation of its exactness suffices to remove this danger—as much as any such testimonial danger can be removed. Accordingly, it is generally conceded that a photographic copy of handwriting may be used instead of the original, so far as the accuracy of the medium is concerned. In the foot-notes to the above passage many cases are cited from various countries and in regard to the Irish case just cited by us, the author observes that it “raised a doubt which was perversely unnecessary”.

On the whole, we think that if the court is satisfied that there is no trick photography and the photograph is above suspicion, the photograph can be received in evidence. It is, of course, always admissible to prove the contents of the document, but subject to the safeguards indicated, also to prove the authorship. This is all the more so in India under section 10 of the Evidence Act to prove participation in a conspiracy. Detection and proof of crime will be rendered not only not easy but sometimes impossible if conspirators begin to correspond through photographs of letters instead of originals. Many conspiracies will then remain unproved because one of the usual methods is to intercept a letter, take its photograph and then to send it on and wait for the reply. But evidence of photographs to prove writing or handwriting can only be received if the original cannot be obtained and the photographic reproduction is faithful and not faked or false. In the present case no such suggestion exists and the originals, having been suppressed by the accused, were not available. The evidence of photographs as to the contents and as to handwriting was

receivable.! 10.21.11 Forged Postcards The post-cards along with some others recovered in the course of different investigations were sent to Nasik for getting expert opinion as to whether the same were forged or not. P.W. 1, B.N. Kulthe, expert in forged currency, 1. Laxmipat Chorasia v. State of Maharashtra, AIR 1968 SC 938: 1968 Cri LJ 1124. Also see S.P. Chokhani v. State ofMaharashtra, AIR 1951 Nag 226.

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the postcards

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produced in court, stated:

They were all in sealed conditions. On opening the parcel Ifound that there was a huge number of postcards and on examination, I found that those were printed from the blocks which were also in the sealed parcels. There were also some genuine postcards in the parcel. The forged postcards have been printed from blocks manufactured by photography, single and reply postcards. The fine details of Ashoka pillar in the stamp have been impaired due to reproduction and the fine lines in the background appear thick and broken at place. The shapes of letters and dotted lines of the address appear thick and irregular in size. The buff paper used for printing the forged post-cards is of a lighter shade in colour and of smooth surface. The forged postcards have been printed 4 on a sheet and cut while introducing stags which are wider than those found in the genuine post cards.

The deposition disclosed that some of the postcards which were examined by P.W. 1 at Nasik were genuine while many of them were forged. Giving reasons for his opinion that he had found the postcards forged, he deposed that the inks used in printing them differed in shades when compared with the genuine postcards. A sealed parcel bearing the seals of the India Security Press, Nasik was opened and the witness stated that the seals on the cloth were genuine. As the appellant was being prosecuted on account of 2,000 forged postcards allegedly recovered from the Everest Printing Press of which he was the proprietor, the witness on being shown the 20 packets containing them identifying the same stated in examination-in-chief: These post-cards are marked packetwise as Ex. P.W. 1/1 to 20 of 100 postcards each.

The cross-examination reveals that the identity of the postcards examined by P.W. 1 at Nasik and those shown to him in court in packets Ex. P.W. 1/1 to 20 was never questioned.! 10.21.12 Copies Admissible

1. On the other hand, Mr. N.S. Bhatia, the learned counsel for the State of Punjab, vehemently contended that no objection was raised about the admissibility of the secondary evidence at the stage of the trial by the counsel for the accused and it is not open for the learned counsel for the appellants now to raise such objection at this stage. The learned State counsel has relied on Subbarao v. Venkata Rama Rao’, wherein it was held that a question of proof of a document is a question of procedure and can be waived, if the objection to the secondary evidence is not taken when the same is being allowed to be recorded. The same objection cannot be allowed to be raised in appeal at the appellate stage. The non-raising of objection in fact amounts to a waiver of formal proof by the party against whom evidence is tendered. 1. Parshotam Dass v. Delhi Administration, 1975 Cri LJ 309. 2.

AIR 1964 AP 53.

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Similarly, it was held in a case reported in Mst. Basanti v. Phole, as to the admissibility of a document, e.g., on the score of the document being a copy, should be taken when the witness who is produced to prove to its contents deposes about it. If such objection is not raised at an early stage of the case, it cannot be entertained later on in appeal. I am in perfect agreement with the authorities cited above. It is to be noted that when the evidence of Sarwan Kumar (P.W. 12), who proved the notices Exhibits PR, PS, PT and PU, was being

recorded, no such objection was raised on behalf of the appellants. The question of proof is a question of procedure and can be waived. If the counsel for the appellants would have taken objection to the admissibility of the said evidence at the trial that there was no proof on the file of the case that the original documents have been lost, it was open to the prosecution to produce some official of the court or any other witness, who could have deposed regarding the missing file in question, and the objection could be met in this manner. I am clearly of the opinion that this contention of the learned counsel for the appellants is without any force, and the secondary evidence adduced by way of the copies of the notices issued to Kartar Singh appellant in the form of Exhibits PR, PS, PT and PU, cannot be ruled out from consideration.

The learned counsel for the appellants next referred to the provisions of section 65, clauses (e) and (f) of the Indian Evidence Act and contended that

according to clause (e) and the proviso thereto, if the original is a public document within the meaning of section 74, only a certified copy of the document is admissible as secondary evidence and no other copy is admissible. He contended that in view of the provisions of section 74 of the Indian Evidence Act, keeping in view clause (ii) of sub-section (1) thereof, the records of the acts

of the official bodies and tribunals are public documents. His contention is that the file relating to the encroachment of appellant Kartar Singh maintained in the municipal office is a public document and according to the interpretation given by him to the provisions of section 65, clause (e) and proviso thereto, only certified copies of the notices could be produced as secondary evidence. He contended that the copies of the notices Exhibits PR, PS, PT and PU, nowhere

contained the certificate by the competent authority that the same are the correct copies of the originals. Therefore, the same are not admissible in evidence. Mr. N.S. Bhatia, the learned counsel for the State of Punjab, on the other hand,

contended that the interpretation sought to be put forth by the learned counsel for the appellants to the provisions of section 65 of the Indian Evidence Act read with its proviso, is untenable and the said provisions cannot be interpreted in

the manner as is being suggested by him. He relied on a case reported in Chikka Veerasetty v. Nanjundachari', wherein it was held that the provisions of section 65 of the Indian Evidence Act, postulate the admissibility of the uncertified copies of the public document if the originals are destroyed. After considering the respective contentions of the learned counsel for the parties, I am of the considered opinion that this objection of the learned counsel for the appellants is without any merit. Clause (c) of section 65, which provides that in case of (e)

1. AIR 1955 Mys 139.

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or (f) a certified copy of the documents but no other kind of secondary evidence is admissible, seems to apply to a case in which a public document is still in existence on the public records and that provision appears to have be an intended to protect the originals of public records from the range to which they would be subject by constant production of such documents in courts in evidence, and the said clause does not interfere with the general rule of evidence

given in clause (c), i.e., in case where the original is destroyed or lost. Where the

original documents have been destroyed and are not available, it is open to the parties concerned to produce uncertified copies in order to prove the contents of the original documents. If the provisions of clause (e) and the other clauses providing for the production of the certified copies of the documents, under section 65 of the Indian Evidence Act are read in the manner as is being sought . to be interpreted by the learned counsel for the appellants, the provisions of clause (c) of section 65 of the Evidence Act would become redundant in case

where the public document has been destroyed and is not available. In my opinion, clause (c) is quite independent of the provisions of clauses (e) and (f) of section 65 of the Indian Evidence Act and would apply to all cases whether they are public documents or otherwise if the originals are proved to have been lost or not available. Therefore, this objection of the learned counsel for the

appellants is overruled.' 2. The next contention of Shri A. Gangadhara Rao for the appellants is that Ex. P-] is inadmissible in evidence and was wrongly admitted in evidence and that it was wrongly and unlawfully used for comparison of handwriting. Ex. P-1 is written in carbon. P.W. 6, the assistant collector of Central Excise has deposed as follows: Ex. P-1 is a carbon copy. The range officer to minimize the scriptory work, was tearing off the counter-foil and putting it underneath the inner foil with a carbon paper in between and writing the manuscript portion in the inner foil. It is an irregular practice. I pointed out such irregularities in the cases of several range officers. Icannot now give their names.

It appears from the evidence that strictly speaking, the foil and the counterfoil ought to have been written independently. If they were so written, each foil would be directly in the handwriting of the officer, who issues it (without being a carbon copy). But, due to the irregular practice followed by the officers to save duplication of their work of writing, the foils happened to be in carbon. In this particular case, it is not known for certain as to how it was written and in particular whether the foil was kept under a carbon paper which, in turn, was under a counterfoil. But, in any case, it appears that, even according to the usual practice, the foil used to be given to permit-holder, was in carbon. In fact, Ex. P-1 was the piece which was issued and which actually functioned as permit and enabled the transport of tobacco successfully and so as to make a semblance of lawful transport. It is the very document which was handed over to P.W. 3 and which 1. Tara Ram Chand v. State of Punjab, 1971 Cri LJ 1201 (HC).

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induced P.W. 3 to believe that the consignment was duty-paid tobacco which was validly transported. To prove the offence concerned in this case, it was Ex. P-l which was essential and had to be proved. Let us suppose that there was a counterfoil of Ex. P-1 written in pencil and that it were also available to the prosecution for filing in evidence. Even then it would not affect the fact that Ex. P-] was a permit and it was Ex. P-l, and not the counterfoil which was in fact utilized for committing the offence and was received and acted on by P.W. 3 and can be identified

by him

as such and that, therefore, it is Ex. P-l which

must be

produced in evidence and proved and not the counterfoil. Section 62 of the Indian Evidence Act runs as follows: Primary evidence means the document produced for the inspection of the court. The document which is said to have been issued by A-l and which actually functioned in the commission of the offence and which was received by P.W. 3 and can be identified by P.W. 3 is, according to the prosecution, Ex. P-l. So, it was itself primary evidence. Therefore, the contention of the learned advocate for the accused that Ex. P-1 is secondary evidence and that the pencil counterfoil would be the original is not acceptable. In Sarkar on Evidence (Volume 1, Tenth Edition) at page 553, it is mentioned as follows: Carbon copies produced by typewriters may for all practical purposes be regarded as equivalent, though the impression on the lower sheets are likely to be imperfect. They are produced by the same stroke which makes the surface impression. In Federal U.S. Co. v. Indiana L. and M. Co., 176 Ind. 328), in the case of machine carbon copy in triplicate, each one was held an original. Explanation 2 to section 62 of the Indian Evidence Act runs as follows: “Where a number of documents are all made by one uniform process as in the case of printing, lithography, or photography each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they, are not primary evidence of the contents of the original.” In the present case, if the writer of Ex. P-| has adopted the usual practice, the counterfoil would be in pencil while the foil (Ex. P-l) would be in carbon. If he

wanted to save scriptory work, it is open to him to place the foil above the counterfoil and write with pencil. In such case, the foil would be in pencil and the counterfoil would be in carbon. But, it so happened that the usual practice was to keep the foil below the counterfoil so that the foil would be in carbon and the counterfoil would be in pencil. But, from the nature of the preparation of foil and counterfoil, both would have been written simultaneously by the same person and by the same strokes of the same pencil. In Nityananda v. Rashbehari', the learned judge of the Calcutta High Court observed as follows:

1. AIR 1953 Cal 456.

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As | have already stated, what was sought to be proved out of Ex. P-1 was the signature which the petitioner was alleged to have affixed to it. It is, however, not the original signature but a copy appearing on a carbon copy. This carbon copy of the signature may be a piece of secondary evidence within the meaning of section 63 (2), Evidence Act, beg a copy made by a mechanical process which ensures its correctness, but simply because it is secondary evidence of a proper form, it does not follow that the prosecution was entitled to adduce it in evidence all at once. According to the prosecution, the original was in the possession of the petitioner, and the case, therefore, came under section 65 (a). Evidence Act, which speaks of documents in the possession of the party against whom they are sought to be used. But in order that secondary evidence of such documents may be given, it 1s essential that the procedure laid down in section 66 of the Act should be strictly complied with. The procedure there prescribed is that the party desiring to make use of secondary evidence must, in the first instance, serve a notice upon the party in whose possession the original may be, ‘requiring him to produce the original and it is only when such notice is not complied with that the right to give secondary evidence arises. There are certain ‘exceptions to the rule’ laid down in section 66 but it is perfectly clear, ‘that none of them applies to the present case’. In that case, the complainant was a private party. He himself wrote the body of the receipt and the accused merely signed it. It was open to the complainant to insist on being given the pencil copy instead of the carbon copy. Still, the complainant’s case was that he took the carbon copy. This version of the complainant was commented upon adversely by the learned judges in the following terms:

The ‘complainant’ came to the court with the somewhat strange story that he entrusted to the petitioner a quantity of gold of the value of about Rs. 3,000 and took care to obtain a receipt from him, but that, at the same time, he allowed the petitioner, who was the guarantor of the receipt, ‘to keep the original with him and was himself content to receive only a copy.’ The manifestly unusual character of a transaction of that kind was commented on by the defence......... In that case, the learned judges held that the carbon copy was not a good basis for comparison of signature for the following reasons: 1. There is authority of books like Osborn or Brewster that carbon copies, particularly copies made on carbon paper used in this country, ‘cannot generally be relied upon’ for purposes of comparison, because the impression made upon such carbon paper is ‘generally irregular and blotched’. 2. The deposit on the carbon paper were ‘generally wiped off when the paper was folded with the result that all traces of the distinctive characteristics of the writings on it became blurred. 3. The accused signed his name on the original of the carbon copy with a fountain pen which was unusual as the common practice was to write with a pencil, if carbon copy were to be available.

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Ground No. 1 states a general proposition, and leaves scope for exceptions in particular cases. The impression in Ex. P-] is not irregular or blotched. It is very clear and was obviously prepared with carbon paper of good quality. So in this case, ground No. 1 does not affect the usefulness of Ex. P-1 for comparison or identification of writing. Whether in a particular case, a carbon writing would be less clear and less fit for comparison and identification of writing than a writing in pencil would depend upon the comparative qualities of the pencil and carbon paper.

If a good pencil were used with a bad carbon paper, the pencil copy would be clearer and fitter for comparison than the carbon copy, but the position would be otherwise if the carbon paper was of a good quality and the pencil of a bad quality. Ground No. 2 also does not apply since, in this case, the carbon copy is good and the impressions are very clear especially as regards the signature. The distinctive characteristics of the writing are all visible and have not become blurred in Ex. P-1. According to the prosecution, in Ex. P-] not only the signature but the entire writing is in the handwriting of A-1 and therefore, ample material is available for identifying the writing as made in the hand of A. 1. Ground No. 3 does not apply to this case for, though it is not known as to whether the counterfoil was in fountain pen or pencil, there is no defect in Ex. P-l, So that decision is easily distinguishable on facts. In Makhan Lal v. State’, it was held by the Calcutta High Court that a carbon copy of a search list with certain ink writings on it was not admissible under section 62, Evidence Act. They further observed that, when a mere glance at the

document would show that even a part from the ink writings the whole of it could not have been made by one uniform process, it would not satisfy the requirements of section 62 and other sections of the Evidence Act. In the present case, there is no contention that there are any ink writings in Ex. P-1 or that there

is any room for doubting the fact that Ex. P-l as well as its counterfoil were made in one writing.

In the instant case, Ex. P-l was written and issued by a government officer (accused-1) in his capacity as government officer, i.e., public servant. In fact, Ex. P-1 was a document issued on behalf of the Central Government as permit. Such permits were being issued, as a general practice to licensees for transport of tobacco and were being accepted and used by them. So, there would be nothing unusual or worth of comment in merchant receiving the permit, Ex. P-l which was written and signed in carbon. When a merchant received a permit in carbon copy issued by the government he would be entitled to use it as primary evidence and he need not call for the pencil copy to be filed as original. The prosecution was not in a position to prove by direct evidence as to who was the person to whom A-1 handed over the permit, Ex. P-l. But the prosecution could and did prove that Ex. P-l was not handed over to P.W. 2 the person in whose favour it was issued. The learned special judge has observed 1. AIR 1958 Cal 517.

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that the T.P.I. permits were in the nature of cheques because they were evidence of duty having been paid on the tobacco covered by them. This observation is substantially correct. In the case of a cheque issued by a person, the foil is always primary evidence, even if it were prepared by copying from the counterfoil. In this case, Ex. P-l is a permit which was issued, irrespective of the general practice by which a counterfoil (corresponding to each foil) was being written and maintained. I am unable to agree that in this particular case, Ex. P-l was only secondary evidence. Assuming for argument’s sake, without admitting, that Ex. P-l is secondary evidence and that the counterfoil was written in pencil and that the counterfoil would be the original, even then. Ex. P-l would be admissible in evidence. The

pencil counterfoil alongwith the other counterfoils in the same book ought to have been in the ordinary course of business left by A-] in the office and ought to be available with the central excise department. There is evidence of an excise officer (P.W. 1) that the book was not found in the office of range No. 3. So, under section 65 (c) of the Evidence Act, secondary evidence can be given of the

contents of that pencil counterfoil when the original has been lost or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. If the foil were in the possession of the accused, then he must have got the possession by fraud, i.e., taking into possession and retaining something which he ought to have left in the government records of his office. Under proviso 3 to section 66 of the Evidence Act, no notice is necessary for producing secondary evidence ‘when it appears or is proved that the adverse party has obtained possession of the original by fraud or force’. Hence, I find that Ex. P-1 was the primary evidence (as we are concerned in this case with what Ex. P-] contains and not with what is contained in a counterfoil of Ex. P-l even if there be one)

and that even if it were secondary evidence, it was admissible in evidence and was rightly admitted in evidence by the learned special judge. The identity of the signature and handwriting in Ex. P-l with the signature and handwriting of A-l has been proved by the witnesses, P.Ws. 6, 8, 17 and 18. They all say that they are familiar with the handwriting and signature of A-l having become acquainted with the writing and signature in the course of their official duties. I do not see any reason to disagree with the findings of the learned special judge that Ex. P-1 is in the handwriting and bears the signature of A-l.' 10.21.13 Authorship from Contents

1. Learned trial judge as well as the learned judges of the High Court have found that there were sufficient number of admitted or proved letters which might well enable Jasawalla and the complainant to identify the signatures of the appellant in the disputed letter. They also laid stress substantially on the contents of the various letters, in the context of the other letters and telegrams to 1. Gutta Sriramulu Naidu v. State of Andhra, (1963) 2 Cri LJ 546 (Andhra). Also see

Makhan Lal v. State, AIR 1958 Cal 517; Nityananda v. Rashbehari, AIR 1953 Cal 456.

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which they purport to be replies and which form the chain of correspondence, as indicating the genuineness of the disputed letters. Learned counsel objected to this approach on a question of proof. We are, however, unable to see any objection. The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents, or of the signature, by one of the modes provided in sections 45 and 47 of the Indian Evidence Act.

It may also be proved by internal evidence afforded by the contents of the document. This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the court. In such a situation the person who is the recipient of the document, be it either a letter or a telegram, would be ina reasonably good position both with reference to his prior knowledge of the writing or the signature of the alleged sender limited though it may be, as also his knowledge of the subject-matter of the chain of correspondence, to speak to its authorship. In an appropriate case the court may also be in a position to judge whether the document constitutes a genuine link in the chain of correspondence and thus to determine

its authorship. We are unable, therefore, to say that the

approach adopted by the courts below in arriving at the conclusion that the letters are genuine is open to any serious legal objection. The question, if any, can only be as to the adequacy of the material on which the conclusion as to the genuineness of the letters is arrived at. That, however, is a matter which we

cannot permit to be canvassed before us.’

2. In our opinion, Ex. P-4 has also been proved to have been written by the appellant. It is true that there is no direct proof that the appellant wrote it, nor even proof by any witness that it is in the handwriting of the appellant. But in law that is not necessary. Section 3 of the Indian Evidence Act says: A fact is said to be proved when after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ° ought under the circumstances of the particu-ar case to act upon the supposition that it exists.

There is nothing in this to show that the proof must be direct. In fact, just as the fact that a murder was committed by an accused may be inferred from circumstantial evidence, it is also permissible in law to infer the authorship and genuineness of a document from circumstantial evidence. In this particular case there are the following circumstances to prove that Ex. P-4 was written by the appellant. (I) It was recovered from inside the house of the appellant. (2) The contents of Ex. P-4 strongly suggest that the appellant was 1. Mobarik Ali Ahmed v. State of Bombay, 1957 Cri LJ 1346 (SC).

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the author. It refers in detail to the relationship between the appellant and Kamala, and in particular it also refers to their stay in the house of Planiasari of Chinnamariamman Koil Street, Kannakurichi, Salem-8. Reading it with the

evidence of P.W. 7 we have no doubt that it refers to P.W. 7. Thus the evidence of P.W. 7 itself lends corroboration to the contents and the authorship and truth of Ex. P-4. (3) It seems to us that the handwriting in Ex. P-4 is similar to the

admitted signatures of the appellant in his statement under section Criminal Procedure before the committal court and the trial court. observe that as a matter of probability it is unlikely that any other out such a letter and kept it on box. Ex. P-4 shows that Kamala was the appellant and that he was not at all happy with her."

342, Code of We may also person write unfaithful to

10.21.14 Typescript

Next it was argued that the letter was not typed on the office typewriter that was in use in those days, viz. article B and that it had been typed on the typewriter article A which did not reach Nagpur till the end of 1946. On this point evidence of certain experts was led. The High Court rightly held that opinions of such experts were not admissible under the Indian Evidence Act as they did not fall within the ambit of section 45 of the Act. This view of the High Court was not contested before us. It is curious that the learned Judge in the High Court, though he held that the evidence of the experts was inadmissible, proceeded nevertheless to discuss it and placed some reliance on it. The trial magistrate and the learned Sessions Judge used this evidence to arrive at the finding that as the letter was typed on article A which had not reached Nagpur till the end of December 1946, obviously the letter was ante-dated. Their conclusion based on inadmissible evidence has, therefore, to be ignored.”

10.21.15 Interested Witness The opinion of Mr. Bennet suffers from the defect that it was given by a remunerated witness. He knew before-hand why he had been called and what the party calling him wished to be proved. The witness stated that 10 days before he came to court he was approached by the appellant about this case. The appellant told him that he repudiated the two signatures on X and Y. The witness was also given a copy of the evidence of the government handwriting expert before he was examined in court. He further admitted that he had been paid his fees in two instalments before he came to depose. It is not improbable that he had an unconscious bias in favour of the appellant. These circumstances to a great extent detract from the weight to be attached to the witness’s opinion.

10.21.16 Corroboration Needed 1. What is more, defence produced documents from Kidderpore Maternity Hospital in 1941, in the records of which the girl who gave birth to the child 1. R. Asrt (in re:), 1972 Cri L] 1226 (Mad).

2. Tarafatullah v. S.N. Maitra, 1953 Cri LJ 129 (SC). Also see H.G. Nargondkar v. State, AIR 1952 SC 343; Chelaji Ganaji & Co. v. Bai Jashodra Bai Shambhu Datt Nishi, BLR 1958 Bom 251. 3. Abhayanand v. State of Bihar, 1959 Cri LJ 893 (Pat).

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signed her name as “Nanda Rani wife of Bani Gupta of 36, Tollygunge Circular Road”. This writing and signature was said to be of Shefali and opinion has been given by handwriting expert to be of Shefali. Shefali Ghose, however, denied having given birth to a child at any time in the Kidderpore Maternity Hospital or having made that writing or signature. There was no direct evidence, nor there was any circumstance to provide evidence that the writing and signature purporting to be of Nanda Rani was that of Shefali. The learned magistrate rightly rejected the claim of Baidya Nath Ghose to prove this writing and signature as being of Shefali because Baidya Nath Ghose does not come within any of the categories mentioned in section 47 of the Indian Evidence Act. In the absence of any direct and substantive evidence on the point, the opinion of the handwriting expert which could have only corroborative value has no use at all. Moreover, the evidence in the expert’s testimony is the reason given by him and not the assertion of opinion divorced from reasons. Having examined the writings themselves in the background of the reasons mentioned by the expert witness I am definitely of the view that the opinion of the expert cannot

be accepted.! 2. As to the value of expert evidence on disputed handwriting their lordships of the Supreme Court have in Ramchandra v. State of Uttar Pradesh, observed that it is not safe to treat expert evidence as to handwriting as sufficient basis for conviction. Their lordships, however, have added that such evidence may be relied upon alongwith other various, items of external and internal evidence

relating to the disputed documents.? 3. | would like to mention in particular that although a handwriting expert (P.W. 7) was examined to depose that some disputed signatures of the District Veterinary Officer, S.P. Dwari (marked X/1 to X/3 compared with his admitted

signatures A/1 to 1/15) were forged according to his report (Ext. 27), such evidence is of inconclusive character, because, in the absence of a finding by the appellants for misappropriation of cash no reasonable conclusion can be drawn that either of the appellants committed the forgery. In this connection the authorities are, AIR 1980 SC 531: 1080 Cri LJ 396, Murarilal v. State of Madhya Pradesh, relied upon in a case reported in (1984) 1 Ori LR 597: 1984 Cri LJ 1289

B.K. Kutty v. State, laying down the principle that it may be hazardous to base a conviction solely on the opinion of the handwriting expert without any independent corroboration. Before closing the case, I would note the contention of Mr. P.K. Ray to the effect that for prosecution of the appellants under section 5(2) read with section 5(1)(c) sanction for the prosecution under section 6 of the Act was neither

obtained nor proved in this case. This contention does not merit consideration in view of the fact pointed out by the learned Special Judge that by 3-5-1978,

Baidya Nath v. Shefali, 1962 (1) Cri LJ 19 (Cal). AIR 1957 SC 381. Abhayanand v. State of Bihar, 1959 Cri LJ 893 (Pat). Also see Ram Chandra v. State of ON Uttar Pradesh, AIR 1957 SC 381; Shakti Kumar v. Subodh Kumar, AIR 1964 SC 529; State v. A. Gopalan, MLJ 1966 (Cr) Ker 67; Sudhindra Nath Dutta v. King, AIR 1952 Cal 422.

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when cognizance of the offence was taken, the appellants had ceased to be public servants, for, appellant Ajodhya had already been retired and appellant Balaram had been dismissed from service. Apart from the decision reported in AIR 1980 SC 522: (1980) Cri LJ 393) State v. Air Commodore Kailash Chand, the latest decision is reported in AIR 1984 SC 684: (1984 Cri LJ 613), R.S. Nayak v. A.R. Antulay, in which it was held that the relevant date with reference to Which

a valid sanction is sine qua non for taking cognizance of an offence committed by a public servant as required by section 6 is the date on which the court is called upon to take cognizance of the offence of which he is accused. In view of this proposition, it was not a case in which sanction under section 6 of the Act was necessary. For the foregoing reasons, in disagreement with the learned Special Judge, I hold that the charges framed against the appellants were not brought home to them beyond reasonable doubt and so the order of conviction and sentence cannot be sustained. Accordingly the same is set aside and the appellants are acquitted. Fines, if realised, may be refunded. Both the appeals are allowed.’ 4. I would next come to the charge of forgery. The case of the prosecution was that a few days after the payment of Rs. 325 by P.W. 1 to the appellant, the latter returned the Registration Book with a false entry purported to have been signed by the Regional Transport Officer (P.W. 7) which had been forged and affixing a false seal. It was in the evidence of P.W. 8, one of the investigating officers, that he had taken the specimen signatures and writings of the appellant in the presence of a Magistrate (Mr. R.K. Hota) and Exts. 17 were the specimen writings and signatures of the appellant. Mr. R.K. Hota had not been examined as a witness

for the prosecution.

It was,

indeed,

unfortunate

that while

examining the appellant, the trial court did not take care to ask him as to whether these specimen writings and signatures had been taken from him. The evidence of P.W. 3, the handwriting expert, was that the signature (Y-l) purported to be that of the Regional Transport Officer had not been written by P.W. 7 as compared by him with his specimen writings. It was not in his evidence that this signature had been written by the appellant. P.W. 7 had not testified that this signature, which was not his, was in the hand of the appellant. As regards the disputed entry (Y-2), the evidence of P.W. 3 was that it was in the hand of the appellant as compared by him with the specimen writings of his. It was not in the evidence of P.W. 7, who was supposed to be acquainted with the writing of the appellant, that this writing was in the appellant’s hand. The appellant had denied to have written ‘Y-2’. The evidence of the Expert (P.W. 3) in this regard had not received any corroboration. There was no specific evidence that the appellant had been instrumental in putting a false seal in the Registration Book. It has been laid down by the Supreme Court in AIR 1980 SC 531: 1980 Cri LJ 396; Murarilal v. State of Madhya Pradesh, that it may be hazardous to base a conviction solely on the opinion of a handwriting expert. But the hazard in accepting the opinion of any expert, handwriting expert or any other kind 1. Ayodhya Prasad v. State of Orissa, 1985 Cri LJ 1401.

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expert, is not because experts, in general, are unreliable witnesses—the quality of credibility or incredibility being one which an expert shares with all other witnesses—but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The science of identification of handwriting is not so perfect, as observed by their Lordships of the Supreme Court. In appropriate cases, corroboration may be sought although there is no rule of law or rule of prudence which has crystallised into a rule of law that opinion evidence must never be acted upon unless substantially corroborated. In the circumstances of the present case, it would not be reasonable and proper, in my view, to base a

conviction of the appellant for forgery in respect of the entry marked ‘Y-2’

without any corroboration.! 10.21.17 Brief Reports

.

In his examination-in-chief Sri Sen gave briefly the reasons in support of his view. He explained that considering presentation, pen-pressure, spacing, relative sizing, terminal, slope, movement, location, etc., the disputed writing

appears to be the writing of the person who wrote Ex. P-17, Ex. P-18, etc. Mr. Chaudhry contended that the reasons given by Sri Sen in support of his opinion were inadequate. It is not necessary for an expert to give reasons at great length in support of his opinion. It is sufficient if the expert gives his reasons briefly. It is always open to the opposite party to require the expert to elaborate any particular point further in cross-examination. Sri Sen gave out opinions from time to time. Exhibit D-4 is his opinion dated 30-6-1951. Exhibit P-30 is his opinion dated 10-12-1951. Exhibit P-31 is his opinion dated 16-7-1952. In Ex. D-4 Sri Sen wrote that, it was necessary to have signatures of Sarju Mal, Shyam Lal and M. Singh for purposes of comparison. Again in Ex. P-30 Sri Sen wrote: Iam unable to identify the writer or writers of the rest of the writings on the basis of the present materials. Sri Sen gave the supplementary opinion (Ex. P-31) on 16-7-1952. Mr. Chaudhry argued that the supplementary opinion carries no weight, as Sri Sen had already stated earlier that he was unable to say anything further without additional material. Sri Kehar Singh, Inspector, S. P. E., Lucknow, is

P.W. 9. He stated before the court that when the expert demanded more documents for comparison, Sri Kehar Singh sent Exs. P-21 to P-26 again. Exhibits P-21 to P-26 marked by the court correspond to six papers, which were marked by Sri Sen at 14 to 19. A perusal of the three opinions (Exs. D-4, P-30 and P-31) shows that, five papers marked by Sri Sen as 1 to 5 were used by him as the basis for comparison for purposes of the two opinions (Exs. D-4 and P-30). But for the supplementary opinion (Ex. P-31), he utilized papers marked by him as 14 to 19 in addition to the five papers marked by him as 1 to 5. It, therefore, appears that when Sri Sen gave his supplementary opinion (Ex. P-31) on 16-7-1952, he had with him some 1. B.K. Kutty v. State, 1984 Cri LJ 1296.

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additional material, which was not in his possession when he wrote Ex. D-4 or

Ex. P-30. It is not, therefore, surprising that, in his supplementary opinion (Ex.

P-31) Sri Sen was able to say something about the writing Q-l1, etc.

Mr. Chaudhry contended that after all Sri Sen’s statement is merely his opinion, and it is not safe to base the appellant’s conviction on the opinion of an expert. Sri Sen’s opinion is not the only material for holding that the disputed writing and signature are the appellant’s writing and signature. We have also got Ram Gopal’s statement on the same point. The statements of Ram Gopal and

Sri Sen are sufficient to prove that Exs. P-3, P-4 and P-5 were written by the accused. These three payment orders purport to have been issued by Sri M. Singh, Residential Engineer. Sardar Harmohan Singh appeared before the court as P.W. 3. He stated that the three signatures purporting to be signatures of M. Singh appearing on the three payment orders are not his signatures. Exhibits P-9 to P-16 are specimen signatures of Sardar Manmohan Singh. In his opinion (Ex. P-30) Sri Sen stated that the person, who wrote the writing marked as 6 to 13, did not write the signatures marked

Q-3, Q-6 and Q-9. Thus from the

statements of Sardar M. Singh and Sri Sen it is clear that, somebody forged signatures, which purport to be the Resident Engineer’s signatures on Exs. P-3, P-4 and P-5. Sri Sen was unable to say which person prepared these signatures Q-3, Q-6 and Q-9. It is, however, clear that the three signatures are forged. Further, the body of the three payment orders was prepared by the accused. The charge of forgery has, therefore, been proved against the accused on three counts. These payment orders were prepared in the name of one Sarju Mal. There is evidence to the effect that, a person purporting to be Sarju Mal was committed for the purpose of cheating. So the offence committed by the accused falls under section 468, Indian Penal Code.! 10.21.18 Reports Inadmissible The document, however, was sent to the expert and it would appear that the opinion forwarded by the expert in writing threw doubt on the genuineness of the document. But the expert was not examined and nothing further was done in that behalf.

The lower appellate court appears to have taken the view that though the expert didnot enter into the witness box and did not prove his opinion, a communication received from him could be regarded as evidence and as such can be considered in dealing with the question as to whether the document is genuine or not.

Indeed, in more than two places in his judgment, the learned judge has referred to the opinion of the expert and he has in fact found that the circumstantial evidence which arose about the genuineness of the document was corroborated by the opinion of the expert. 1. Prem Shanker v. State of Uttar Pradesh, 1957 Cri LJ 108 (All). Also see Haji Mohd. E. Haq v. State, AIR 1959 SC 488; State of Vindhya Pradesh v. Krishna Nand, AIR 1953

VP 21; State of Bihar.v. Karu Gope, AIR 1954 Pat 131.

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Now .in relying on the opinion of the expert the learned judge was really acting upon evidence which had not been proved according to the Evidence Act. The opinion sent by the expert in writing cannot prove itself. It was essential that the expert should have stepped into the witness box and then perhaps for convenience he may have been permitted to put her opinion on the record so as to enable the opponent to cross-examine him in reference to that

opinion.

Unless the expert stepped into the witness box, the opinion expressed by him in a communication to one of the parties could not be treated as evidence under the Evidence Act. Unfortunately the lower appellate court lost sight of this fact."

10.21.19 Reasons and Illustrations From the order it appears that the report of the handwriting expert who examined those documents containing grounds of his opinion has been supplied to the accused and on that basis that point has not been considered. The learned advocates appearing for the petitioner and for accused No. 6 state that no such grounds of his opinion have been supplied. The bare opinion of the Chief State Examiner of Questioned Documents, C. I. D., G. S., Anmedabad has

been annexed with this application. The learned assistant government pleader is not able to satisfy us by showing that the grounds of opinion have been also supplied to the accused. It is, therefore, necessary to consider whether the accused are entitled to claim the grounds or reasons which led the handwriting expert to give an opinion in respect of the writings in question. Section 173, subsection (4) of the Code of Criminal Procedure requires the police officer in charge of the case to furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under sub-section (1) and of the first information report recorded under section 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements, etc. The words “and of all other documents or relevant extracts thereof, on which

the prosecution proposes to rely” would obviously cover not only the opinion but also grounds or reasons for giving such an opinion given by the handwriting expert. If, therefore, the grounds are sought to be relied upon by the prosecution for determining the question of identity of the handwritings of certain documents in the case, they form one homogeneous document and cannot be separated. It is not that his opinion can be exhibited as in case of some other opinions, etc., and it has, therefore to be proved. The expert has, therefore, to be examined and he would have to state before the court his grounds for such an opinion. Those grounds should, therefore, be supplied to the accused if they are sent by him to the investigating officer and that would be in the nature of a statement obtained from him as it were under section 162 of the Code of Criminal Procedure. Besides, the opinion becomes relevant in any such case under section 45 of the Evidence Act. At the same time, section 51 of the Evidence Act provides that whenever the opinion of any living person is relevant, the grounds on which such opinion is based is relevant. In other words, the grounds on which any such opinion is based an opinion which he 1.

Parwat v Sukhdev, 1956 Cri LJ 1069 (Bom).

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ultimately gives are both relevant in any such inquiry and if the prosecution were to rely upon any such opinion as a piece of evidence against the accused in any criminal trial, that has to be supplied to the accused under section 173(4) of the Code. If the grounds are not supplied, the accused would not be able to know on what basis such an opinion was arrived at. He would be put to disadvantage in his defence, and fairness in a criminal trial demands that they have to be supplied to the accused. The accused should not be taken unawares at the time of trial for after all, the intention of the Legislature behind section 173(4) of the Criminal Procedure Code is to apprise the accused of all such evidence that is likely to be produced against him in the case. Now when no such grounds, on which the opinion has been given by the expert, are supplied to the accused, as urged before me, the learned magistrate shall see that the same are supplied to each one of the accused before the trial or inquiry commences. Now so far as the photographic enlargements of the disputed and admitted writings of the accused are concerned, it is difficult to say that they would be covered within the meaning of “and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely” for the reasons that what the prosecution relies upon are the original documents before the court which are said to have been forged and all that the accused are entitled to claim is only the copies thereof. The copies of such documents have been supplied to the accused and there is no grievance in that respect. The photographic enlargements are taken by the handwriting expert with a view to facilitate his work in arriving at the correct opinion in respect of those writings and they cannot, therefore, be treated as the documents on which the prosecution can be said to rely for the case against the accused. If they are, however, placed before the court at the time of giving evidence, they can be taken for the purpose of facilitating the appreciation of the grounds of the opinion given by the handwriting expert and in respect of which his evidence is being recorded. They can as well be seen by the accused at that stage. If, however, they desire to have any photographic enlargements for the purpose of their defence, it would be open to the accused to make a suitable request to the court for being permitted to take such photographs in the presence of any officer of the court. But they cannot claim as of right any such photographic enlargements of such writings made by the handwriting expert for giving an opinion in respect thereof. The learned magistrate was, therefore, right in rejecting that part of the request of the

accused.! 2. It was the submission on behalf of the State, as stated earlier, that the insistence of the accused on the enlarged photographs is not proper because the prosecution does not propose to rely on them. Arguments are advanced before us on the strength of evidence led in the trial court wherein at one stage the handwriting expert said that when he formed an opinion and gave the report with reasons, he had referred to the enlarged photographs and from that he has based an opinion about the particular handwriting before him. It is also stated before us that in answer to the question by the court, the handwriting expert 1. Chander Bhan v. State of Gujarat, 1971 Cri LJ 165 (Guj).

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stated that he could have given the opinion without the enlarged photographs. Now whether he could have given the opinion without the enlarged photographs is something which has been brought from him in a hypothetical way because according to the submissions made before us it was a clear case of the handwriting expert that he had referred to the enlarged photographs for forming the opinion. So first of all we shall have to see whether for giving an opinion and also for forming an opinion about the particular handwriting by the prosecution or defence advocate or the defence expert, or for the assessment of the court it would be necessary to have the enlarged photographs. For that it will be worthwhile to refer to opinions of some experts who have written books on such subjects. The book “Questioned Documents” by Albert S. Osborn, second edition in Chapter V at page 30 mentions that photographs are useful in nearly every questioned document investigation and in many cases it is impossible without them to present the facts to a court and jury in an effective, convincing manner. It further mentions that photographs often make clear what otherwise may be hidden or indistinct, and this fact alone is sufficient reason for their use. It is further observed at page 40 last paragraph that the most important reason for making photographs of a disputed document is that by this means the writing in question can be accurately enlarged so that every quality and characteristic of it can be clearly and properly interpreted whether the facts so shown point to genuineness or to forgery. Hanna F. Sulner in the book “Disputed ‘Document’, 1966 Edition, Chapter 4

has observed: “the only proper presentation of proof and the best way to demonstrate the experts reasoning is through the use of a photo enlargement chart representing his opinion.” It is further observed at page 32: “it is sufficient to say that any attorney involved in a case requiring the type of demonstrative evidence described before, should seek the service of a competent document expert who is familiar with the various techniques and modern methods of photographing documents or portions of a document.” It is further observed in the last paragraph at page 32 that “in most of the questioned document problems it is not only advisable, but imperative to use charts with photoenlargements because without them it is almost impossible to present the facts to the court and jury in a convincing and effective manner.” In the book “Law of Disputed and Forger Documents” by J. Newton Baker, 1955 Edition, in Chapter VII, section 71 at page 117, it has been observed: The enlarged photograph provides invaluable assistance in the comparison of the various signatures, especially when the proportions of the writing are so enlarged that the faintest lines or marks, or erasures or additions, which otherwise could not be seen or were so hidden as to escape casual observation, can be appreciated.” It is further observed: “To proceed with the trial of a disputed signature without specially prepared and sufficient photographs is plain indiscretion and wilful stupidity that usually proves very costly, and the attorney of experience has seen reason to regret having done so. In the book “Scientific Evidence in Criminal Cases” by Andre A. Moonsens, Ray Edward Moses and Fred E. Inbay, 1973 Edition, Item No. 6 in Chapter 2 at

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page 40 reference to scientific reports, it has been observed: “Unless adequate resources are available to the defendant, the State should not have exclusive

pretrial rights to scientific data solely on the strength of the theory that it was the product of analysis and interpretation by the State’s employees in the State’s laboratories.” At page 41 it has been observed: “In these situations, to deny the defence pretrial access to the State expert’s report is to deny it any pretrial discovery, for its experts have nothing to examine unless the defence has had the opportunity timewise, and has been farsighted enough to show good cause why its expert should be allowed to participate in the State-conducted examination.” It is further observed that “not only should an effort be made to discover the expert’s reports, but the discovery motion should also request photographs, notes, diagrams, tape recordings and sketches the expert may have made during his examination. These can be evaluated by a defence expert”. It has been further observed in the last paragraph at page 41 that “State fingerprint experts who will testify as to the identity of latent prints, typically use enlarged photographs which should be examined by the defence prior to trial.” Though all the references made to the books by the experts on this subject clearly show that in order “to appreciate the handwriting, help of enlarged photographs is a must, even otherwise common practice at the court has clearly shown that in order to come to a proper conclusion about the handwriting, assistance from enlarged photographs is always necessary. If the prosecuting agency has all the resources available to it and can get the opinion of an expert, will it be sufficient to merely throw the opinion and reasons of the expert at the accused when the opinion of the prosecution expert is formed after referring to the enlarged photographs which would clearly show the distinguishing feature? Can that be denied to the accused if the intent of the Legislature by amending the provisions of section 173 of the Code was to make all possible data available to the defence for the proper preparation of the case of the accused before the commencement of the trial? That is the point that has to be considered. It was argued on behalf of the State that the accused could get the photographs either by getting the original before the trial court and getting the photograph or by paying the amount for the requisite copies. We are here concerned with the important aspect of the availability of all the materials to the accused for his proper defence even before the commencement of the trial. It may be that sometime before the trial starts the prosecution would realise as to on what material the evidence of a particular witness is based and if he is an expert witness what he has followed and on what he has relied. If he had got some advantage of referring to some material for coming to his conclusion and if that is found when the trial is proceeding, would it debar the defence from raising a point that in order to prepare for proper defence, the copies of the enlarged photographs on which the expert has relied should be given? If that opportunity is available to the accused, the accused can show the photographs to a private handwriting expert and get proper help. It may be that the accused person who is able to spend may call a private handwriting expert in the court and get the copies prepared but it would be too much to expect that the expert would come to the court and by looking mere’ - to the documents would be in a position to give an opinion and also instruct we advocate of the accused to put questions to

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challenge the opinion given by the State handwriting expert or there may be cases where the advocate of the accused having sympathy for the accused may himself prepare with the help of the expert’s aid and books by properly studying the handwriting. In both the cases the enlarged photographs would be quite necessary. It cannot be said by the State that the persons who can afford the photographs only will be having that benefit by making payment and those who cannot afford it would be deprived of that opportunity. This aspect can never lie in the mouth of a State, as the Legislature has enacted the statute in the form of section 173 of Code of Criminal Procedure with the object of giving the accused a proper opportunity for preparing his defence. But when this question arises, we have before us a judgment of this court to which we have already referred to and that is in the case of Himatlal Ratilal.' Therein it has been observed by this court that the grounds on which any opinion is based and the opinion which a handwriting expert may ultimately give are both relevant under section 45 of the Evidence Act in any such inquiry and if the prosecution were to rely upon any such opinion as a piece of evidence against the accused in any criminal trial, that has to be supplied to the accused under section 173(4) of the Code. But in that very judgment it has been observed:

However, photographic enlargements of the disputed and admitted writings of the accused would not be covered within the meaning of “and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely” for the reason that what the prosecution relies upon are the original documents before the court which are said to have been forged and all that the accused are entitled to claim is only the copies thereof. The photographic enlargements are taken by the handwriting expert with a view to facilitate his work in arriving at the correct opinion in respect of those writings and they cannot, therefore, be treated as the document on which the prosecution can be said to rely for the case against the accused. The accused cannot claim as of right any such photographic enlargements of such writings made by the handwriting expert for giving an opinion in respect thereof. As this is the pronouncement

by this court, Messrs M.B. Shah and J.M.

Panchal, the learned Public Prosecutors stated that the proposition of law propounded by this court being quite correct, we should not try to consider it in a different way. In this judgment it was observed that it would be sufficient if the accused were given the copies of the forged documents. With respect to the learned judge we may observe that whenever the question of forgery arises, it is a question of making out the handwriting or signature of somebody else and creating a forged document and using it. Whether those particular writings are forged or genuine is a question to be considered. So far as the statement obtained by the police or any other document is concerned, mere copy of it prepared in the handwriting of somebody else is sufficient because it conveys the contents of the statement or document in original. But so far as a forged writing is concerned, if the opinion is to be given on the mode, pressure, habit of writing, etc., by looking to the original writing in an enlarged form, can it be said that a 1. 12 Guj LR 167: 1971 Cri LJ 165.

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mere copy of the writing would give the accused an idea as to what he has to meet with? It can never. It is well nigh impossible for the prosecution to supply the exact mode of the original writing and the original signatures. So the only possibility is by giving the photographs and as considered earlier from the opinion of the experts so far as the handwritings are concerned, a naked eye will not be able to do proper investigation into the mode of writing and it would be very difficult for coming to any conclusion about the document being forged or otherwise. For that, scientific help of the enlarged photographs is necessary and if that is available to the prosecution, can it be denied to the defence? So one thing can be said that mere supply of the copy of the document which is a disputed document would not meet the requirements because the prosecution relies on the original document and its copy written by somebody or prepared by somebody would not give a fair chance to the accused in a trial as it would not be the exact reproduction to test the peculiarity of the writing.

It should be noted that under the old Criminal Procedure Code to which we have already referred to, the accused were not entitled to any copies. We have also considered that with the laudable object of making available to the accused a fair chance of preparing his defence, section 173(4) and (5) are added in the statute by amending Act 26 of 1955. The object of this amendment was firstly to avoid delay and to expedite the trial and secondly, that before the commencement of the trial the accused must have the clear picture of his case. So far as the Sessions cases are concerned or the warrant trials are concerned prior to the amendment, there were two stages. Before the committal order, evidence was led by the prosecution before the committal court and the defence was entitled to cross-examine, if at all necessary. But that required the prosecution to lay on the table the entire case on which the prosecution relies against the accused. This was known to the accused before the commencement of the sessions trial. Likewise there was trial before the framing of the charge so far as the complaints, warrant cases based on police reports were concerned. That position has continued so far as the private complaints are concerned wherein the copies would not be available. But in those cases also before the charge is framed, the accused would know what is the case of the prosecution. For cases based on police report, in order to avoid this duplicity and in order to make available to the accused the material on which the prosecution relies, the procedure is changed. In those trials if the expert came with the enlarged photographs, they were available to the accused for observation and if the expert relies on the enlarged photographs, can it not be said that the prosecution relies on the documents ? The close examination of the enlarged photographs is the only mode on which the expert relies for forming his opinion. If these things are considered, then it can well be said that they are the documents necessary for the defence and therefore strict hyper-technical way of interpreting the words of section 173(5)(a) or section 207(v) would not be meeting the spirit of

the enactments. In the case of Willie (William) Slaney v. State of Madhya Pradesh! Bose J. observed: 1. AIR 1956 SC 116: 1956 Cri LJ 291.

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The Code ts a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood links that accord with notions of natural justice.

This, therefore, clarifies as to what is the necessity for considering the privilege or right of the accused even in a procedural law. We are considering this because it was attempted to be argued that the provisions of the Criminal Procedure Code being merely procedural, there is no substantive right in the accused and therefore, it does not cut at the root of the ultimate finding of a court. This argument is based on the question whether the court has in the ultimate analysis reached a correct finding where the trial is still proceeding and the accused has to come to vindicate his right in order to get the copies necessary for his defence. We are observing this because from this judgment it has been attempted to be shown to us that the court has also observed that except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a

question of prejudice. Some violations of the Code will be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice. The question here is still not to ripe as to consider whether any prejudice has been caused to the accused or not. Here is the question of considering the right to the accused to get a particular copy in order to formulate his defence properly. In the case of Naryana Rao v. State of Andhra Pradesh,' the question of not supplying the copies to the accused was considered and therein it was observed that noncompliance of the provisions of section 173(4) has not the result of vitiating the proceedings and the subsequent trial. In that case some copies were not given to the accused and the trial proceeded and then a grievance was made. Considering the amended provisions the Supreme Court observed as follows (at pp. 740-41): In order to simplify commitment proceedings preceding the trial of accused persons by a Court of Session, section 207A was added by way of amendment of the Code in 1955. From sub-sections (3) and (4) of that section it is clear that in cases exclusively triable by a Court of Session, it is the duty of the Magistrate while holding a preliminary inquiry, to satisfy himself that the documents referred in section 173 have been furnished to the accused and it he found that the police officers concerned had not carried out his duty in that behalf, the Magistrate should see to it that that is done. It was submitted on behalf of the State that this judgment merely shows that the Magistrate is to see that the documents referred to under section 173 have been furnished to the accused. It is therefore the submission that if the prosecution does not rely on the documents themselves, those documents will not be the documents referred to in section 173 and therefore the documents are not required to be given to the accused. We have to appreciate that under section 1. AIR 1957 SC 737.

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207 of the Code of Criminal Procedure, 1973, the Magistrate has to supply those documents. But prior to that the Magistrate had to be satisfied and in this very Supreme Court judgment it has been observed that if the Magistrate finds that some documents are not supplied, then the Magistrate should see to it that it is done. Those powers of the Magistrate or the court still continue and if the court finds that the police officer has not sent the requisite document required under section

173(5)(a),

then it can certainly direct their production. This we has

already considered. But the important observations of the Supreme Court in Naryana Rao’s case (supra) are as follows:— The provisions contained in section 173(4) and section 207A(3) have been introduced by the Amending Act of 1955, in order to simplify the procedure in respect of inquiries lending up to a Sessions trial, and at the same time, to safeguard the interests of accused persons by enjoining upon police officers concerned and Magistrates before whom such proceedings are brought, to see that all the documents, necessary to give the accused persons all the information for the proper conduct of their defence are furnished.

The portion which we have emphasised would clearly show that the court has not merely to be satisfied by referring to only the documents sent by the police along with the report but the court has to see that the accused persons must have all the information for the proper conduct of their defence. If it can well be said that the necessity of enlarged photographs is there for the defence of the accused, then that cannot be denied to him. We have already considered from the books referred to above that necessity of enlarged photographs is there not only for the expert to reach an opinion but it would be also necessary for the court to come to a proper conclusion about the writings. It does not require to be stressed that the opinion of a handwriting expert is merely an opinion evidence and it is not conclusive. It merely corroborates the evidence led by the witnesses who are familiar with the writings. But in order to come to the conclusion whether the disputed writing is forged or otherwise the prosecution as well as the defence and the court will be required to look to the writing and especially the court shall have to form its own opinion. In order to form this opinion it has been considered by the experts that the presence of enlarged photographs would be of great assistance and if that is necessary for the court, can it be said that they are not the documents which are required to be produced in the court? In the case of State (Delhi Administration) v. Pali Ram‘ the Supreme Court has observed (at p. 25 of Cri LJ):—

It is not the province of the expert to act as judge or jury. The real function of the expert is to put before the court all the materials, together with reasons which induce him to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials... Ordinarily, it is not proper for the court to ask the expert to give his finding upon any of the issues, whether of law or of fact, because, strictly speaking, such issues are for the court or Jury to determine. The handwriting expert’s function is to opine after a scientific comparison of the disputed writing with the proved or 1. AIR 1979 SC 14: 1979 Cri LJ 17.

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admitted writing with regard to the points of similarity and dissimilarity in the two sets of writings. These observations clearly show that the expert has to put before the court all the materials together with the reasons which induce him to come to the conclusion. What are those materials? Can it be said that a mere piece of paper on which he has given the opinion and reasons for it, is the material, or the

basic material on which he has based his opinion like the enlarged photographs? If the expert has based his opinion on the strength of enlarged photographs, mere reproduction of the reasons would not be sufficient. The court also would not be able to appreciate whether the expert has given proper opinion or not without referring to the enlarged photographs and finding out the points of similarity or dissimilarity, whatever they may be. So it is very clear that in order to appreciate the handwriting, enlarged photographs would be necessary and even if the prosecution does not produce them or merely says orally that they do not propose to rely on them, can it not be said that they are the documents on which the expert relied to come to the conclusion and therefore they are the documents on which the prosecution relies? It was submitted on behalf of the State that so far as the giving of copies is concerned, no principle of jurisprudence is involved. A faint reliance was placed on the judgment of the Supreme Court in Narayan Rao’s case (supra). But that was a question of prejudice but there also the Supreme Court has observed that the documents are necessary for proper conduct of the defence of the accused. Here it is not the question of prejudice because the accused have come with a grievance at the initial stage. The trial has not concluded and therefore if at this stage the court finds that it is necessary for the proper defence of the accused that the enlarged photographs should be supplied, then other questions of prejudice, etc., would not arise. Reliance was placed on the case of Bashir Hussain v. Gulam Mohommed Ismail,’ by the State to canvass a point that so far as giving of the copies is concerned, principle of jurisprudence is not involved. In the case before the Bombay High Court there was a question of supplying copies of the statements in a private complaint. So far as the Code of Criminal Procedure is concerned, the copies of the statement and the documents on which the prosecution relies are to be supplied in a case filed on the police report. When that insistence was made, the Bombay High Court negatived it by observing that section 173(4) applies only when investigation is made by a police officer and that too under Chapter XIV of the Code. It was further

observed that section 173 (4) is purely procedural and only directory. It does not also enact any fundamental principle of criminal jurisprudence as such and hence it cannot be argued that such copies should be made available to the accused on a principle analogous to the one contained in the section. It was further observed that a warrant case instituted on a private complaint is governed by the procedure under sections 252 to 259 and as these sections do not contain any provision similar to section 173(4) for furnishing such copies, the accused is not entitled to get such copies. These observations are made 1. AIR 1966 Bom 2531: 1966 Cri LJ 1395.

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because there was insistence before the court that even in a case where Chapter XIV does not apply and even if it is a casé not based on the police report, on the analogy of section 173 (4), the copies should be given. This was negatived. Not only that but in that case Mr. Jethmalani, the learned counsel who appeared for the defence, wanted to make the provisions all embracing by submitting that the prosecution must supply the copies of statements of all persons whom the prosecution did not propose to examine during the trial because that referred to the provisions which were not contained in the Code and still an analogy was being attempted to be applied. The Bombay High Court has observed that section 173(4) is purely procedural and it does not also enact any fundamental principle of criminal jurisprudence. But in the case before us section 173(4) clearly applies. A fine distinction has been attempted to be made that if these principles (propounded by the Bombay High Court) are applied, then because under section 173(5)(a) the police is required to forward only those documents

on which the prosecution proposes to rely and it under section 207(v) the court has to give copy of any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173, then if the documents

are not forwarded,

the strict compliance

would

not require

giving the copies of the enlarged photographs. But we feel that this is too technical an argument because we propose to consider “all documents on which the prosecution proposes to rely” in a broader amplitude with a view to appreciating the availability of the material to the accused for his proper defence. The basic principle of criminal jurisprudence is of fair trial. From the documents supplied to the accused by the prosecution, there must be a guarantee of a fair trial inasmuch as the accused should be informed of all the materials on which the prosecution relies and also all the materials which are to be employed by the prosecution against the accused so that he can prepare his proper defence. In such a case the fundamental principle of criminal jurisprudence is certainly involved. But in spite of this judgment of the Bombay High Court in the case of Basliir Hussain (supra) which showed that in any case instituted on a private complaint not covered by Chapter XIV, the accused is not entitled to copies, the same Bombay High Court in the case of Govind Raghunath Sawant v. B.A. Kakade,' considered that the copies should be given to the accused for the offences under the Railway Property (Unlawful possession) Act, 1966. The judgment in Bashir Hussain’s case (supra) is of a single Judge. Raghunath Sawant’s case (supra) is also of a single judge. In that case the accused applied for the copies of the statements of the witnesses and the application was rejected by the Presidency Magistrate on the ground that cases under the Railway Property (Unlawful Possession) Act, 1966 involved the procedure under section 252 of the Code of Criminal Procedure and onwards and not under section 251A of the Code of Criminal Procedure and hence copies of documents referred to under section 173(4) of the Code of Criminal Procedure could not be claimed

as of right by the accused. The Bombay High Court held that even though there may be no statutory or technical reason why the prosecuting authority should 1. (1975) 77 Bom LR 214.

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suo motu supply copies to the accused or produce them in court, yet for protection and enforcement of fundamental right of defence under article 22(1)

of the Constitution of India and also on ground of ordinary principles of natural justice it is the moral and ethical duty of the prosecutor to at least produce before the court the statements of the witness whom he wants to examine when the accused applies for such production. We must say that we are not considering this aspect on the moral and ethical duty. But we are considering it as the substantive right of the accused and trying to appreciate whether this particular demand of the accused is supported by the principles of criminal jurisprudence. The Bombay High Court considered the impact of article 22(1) of the Constitution of India on the defence of an accused. The Bombay High Court considered that this is not merely a technical or formal matter or ritual matter; it has to be real. The defence of the accused must be backed by adequate instructions from the client, which can be taken only if the prosecuting machinery enables the defence counsel to know in advance what it has against the accused. This would be all the more applicable when the provisions permit the accused to have the copies of all the documents on which the prosecution proposes to rely. Article 22(1) of the Constitution provides that the accused shall not be denied the right to consult, and to be defended by a legal practitioner of his choice. The Bombay High Court in the above referred judgment in the case of Govind Raghunath Sawant (supra) observed that though in a particular case the mandatory provision of section 173(4) of the Code of Criminal Procedure may not be applicable if the accused wants to defend himself with the assistance of counsel and even though the counsel feels it necessary to have statements of the witness for cross-examination under section 145 of the Evidence Act, the prosecution cannot withhold production of such statements in court and the court should not feel powerless and impotent to compel production of such statements. If in the case before the Bombay High Court where provisions of section 173(4) were not applicable and still the Bombay High Court considered it necessary from the broad aspect of considering the defence of the accused that the copy should be made available,.there is all the more reason in the instant case to interpret section 173 (5) and section 207(v) in a manner which would be

advancing the cause of justice so far as the defence of the accused is concerned. So the above referred judgment of the Bombay High Court considered the impact of section 173(4) on a broader canvass and in a different tone from the one in which the decision in the case of Bashir Hussain (supra) was given. We for

ourselves think that so far as the present dispute before us is concerned the requirement of documents on which the prosecution relies would also cover the enlarged photographs on the basis of which the examiner of questioned document of the State has based his opinion. This we consider from the point of view of the substantial assistance to the accused persons in their own defence. In the case of Maneka Gandhi v. Union of India! the Supreme Court, in paragraph 56, observed:

1. AIR 1978 SC 597.

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The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades article 14. Like a brooding omnipresence and the procedure contemplated by article 21 must answer the test of reasonableness in order to be in conformity with article 14. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it should be no procedure at all and the requirement of article 21 would not be satisfied. Article 21 of the Constitution of India, protects the life and personal liberty of an individual by providing that no person shall be deprived of his life or personal liberty except according to procedure established by law. So the importance of procedure established by law is also enshrined in article 21 of the Constitution. The Criminal Procedure Code has provided for the procedure about a criminal trial having safeguards for the accused persons in their defence. After 1955 a step in advance was taken in facilitating the accused to formulate his defence properly by providing for giving of the copies of the documents i.e., the enlarged photographs cn which the ultimate finding of the document produced by the prosecution, i.e., the reasons of the expert, rests. If the opinion of the expert is based on the strength of observation of enlarged photograph, can it be said that the right given to the accused was protected by refusing a copy of it? If the prosecution can have the same right, denial of that right to the accused would be making the provisions of section 173(5) nugatory. In the case of Supdt. and Remembrancer of Legal Affairs, West Bengal v. Satyen Bhowmick,' in para 22, the Supreme Court has observed that the court has now widened the horizon of the concept of liberty, as contained in article 21 so as to give the word ‘procedure’ a very wide connotation. Then the above referred passage from Maneka Gandhi's case (supra) was reproduced. In the case of Satyeen Bhowmick (supra) the Supreme Court considered the provision of section 14 of the Official Secrets Act. It was observed that section 14 did not in any way deprive the valuable rights of the accused to get copies of the statements of witnesses recorded by the police or the documents obtained by the police during the investigation, etc., and while considering investigation, etc. and while considering this aspect, the Supreme Court considered this aspect, the Supreme Court considered that if section 14 of the Official Secrets act is considered to deprive the accused of getting any copies of the statement of witnesses, then it

would be difficult to uphold the consitutional validity of section 14, as the procedure would become extremely unreasonable, harsh and prejudicial to the accused as a result of which the case would have been tried according to a procedure which will not be in consonance with the provisions of article 21 of the Constitution. Of course, therein there was a case of providing copies to the accused tried under the particular Act but the provisions of the Code of Criminal Procedure were made applicable and even in such a case the copies were considered essential. In the case of Hussainara Khatoon v. Home Secy., State of Bihar, (Patna)* Supreme Court considered article 39A of the Constitution. This was considered from the 1. AIR 1981 SC 917. 2. AIR 1979 SC 1369: 1979 Cri LJ 1045.

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point of view of free legal service as an unalienable element of ‘reasonable, fair and just’ procedure. Therein it has been observed that the right to free legal services is clearly an essential ingredient of ‘reasonable, fair and just’ procedure for a person accused of an offence and it must be held implicit in the guarantee of article 21. It has been further observed that it is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or in communicated situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so requires. Article 39A of the Constitution is in Part IV pertaining to Directive Principles of State Police. The first line of article 39A is very important. According to that the State shall secure that the operation of the legal system promotes justice, on a basis of equal

opportunity.......... Thereafter there is the pronouncement about free legal aid by suitable legislation or schemes. But the first part of article 39A clearly says that operation of the legal on equal opportunity. This is what we are endeavouring to emphasise. In the present case before us, prosecution has all the materials available to it to get the opinion of the handwriting expert on the strength of the enlarged photographs. If that is denied to the accused, can it be said that the operation of the legal system would promote justice on the basis of equal opportunity? In order to follow article 39A in its true spirit, the opportunity must be equal to the accused as well as to the prosecution and if provisions like section 173(5) require the police or the State to give copies of the material documents to the accused, the accused cannot avail that opportunity properly, if the basis on which the prosecution based the opinion of the handwriting expert would not be available to the accused. As considered by the Supreme Court in the case of Hussainara Khatoon (supra) merely because an accused person cannot afford money, he should not be deprived of the opportunity for securing justice. The argument advanced by the State that the documents may be available to the accused for defence if he spends for getting the enlarged photographs can never be appreciated. A faint attempt was made to strictly interpret the provisions of section 173(5) by saying that it refers to documents, mainly statements recorded by the police and also documents on which the prosecution proposes to rely and therefore it would not cover the enlarged photographs on which the opinion was based. Under section 3 of the Evidence Act ‘document’ is defined and in the illustrations words printed, lithographed or photographed are considered as documents.

Further under the provisions of section 62 of the Evidence Act,

Explanation 2, where a number of documents are all made by one uniform process as in the case of photography, each is primary evidence of the contents of the rest. So if reliance is placed on the photograph, it would be primary evidence. It is not that only the negative of the photograph would be the primary evidence but if the reliance is placed on the positive, it is discernible to the eye and from that the opinion is given it also forms part of the evidence on which the prosecution can be said to rely. Mr. J.M. Panchal, the learned Public Prosecutor, wanted to make a fine distinction about the expert evidence on the strength of section 45 of the Evidence Act. According to him this provision

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makes the opinion upon the point of identity of handwriting given by the handwriting expert relevant and those persons who gave evidence are experts. It is therefore his submission that only the opinion given by the expert would be sufficient and that would be the relevant evidence and therefore there would not arise any question of the photographs on the strength on which he based his opinion. Technically the argument advanced by Mr. Panchal on the strength of section 45 of the Evidence Act would show that mere opinion given by the expert would be sufficient and if this argument is taken to its logical end, the reasons for arriving at the opinion also would not be considered necessary. But this stretching of section 45 is not proper because this court in the case of Chimanlal Bhogilal Shah v. State of Gujarat! has observed that if the prosecution relies on the opinion of the handwriting expert, the accused is entitled to know in advance the reasons of the handwriting expert, for giving such an opinion. If the accused is not supplied with the copy of the reasons, he would not be in a position to confront the handwriting expert properly at the time of the trial. Under section 46 of the Evidence Act, facts, not otherwise relevant, are relevant

if they support or are inconsistent with the opinion of experts when such opinion are relevant. It cannot be gainsaid that the opinion of the expert is supported by his reasons which are based on examination of the enlarged photographs. Therefore, if the principles embodied in Chimanlal Bhogilal Shah's case (supra) are considered properly, then the accused cannot defend effectually without the basis on which the expert proposes to support his opinion or finding, meaning thereby, the photographs. So even this argument attempted to be advanced on behalf of the State would not be available. It was submitted on behalf of the State that this is too early a stage for the defence to make a grievance because the trial has not proceeded and it has not shown whether the accused has in any way been deprived of the opportunity to defend himself properly. On the contrary, this argument, if accepted, would create a hurdle in the way of defence because then after the trial the question of prejudice shall have to be examined while this is before the case proceeds any further and the accused wants the copies of the enlarged photographs just to get sufficient help for his defence from the opinion of the expert who would be in a position to help the accused if the enlarged photographs of the handwriting are available for his examination. Therefore it is the basic requirement according to the accused which will further his chance of defending himself properly and that is rightly submitted. So it is not that this is a very early stage. The question of prejudice quite often comes up in some cases where the person goes to the trial unmindful of the consequences of his carelessness or neglect in asserting his own right. Under the civil proceedings when a suit is filed on the strength of a plaint, the copy of the plaint is always required to be served to the defendant. If the advocate engaged by the defendant at the initial stages insists on the plaint he is entitled to it. But if without getting the copy he permits the whole suit to be prosecuted, if he attempts to defend the defendant in the case without a copy of the plaint and gets a decision, then it cannot lie in his mouth to say that the

1. (1973) 14 Guj LR 807.

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entire proceeding is vitiated because he was not given a copy of the plaint about which he never made a complaint. Here the grievance is made at the early stage and if that grievance is found to be justified inasmuch as the absence of the enlarged photographs would deprive the accused of making out a proper ground for his defence for obtaining the expert advice which has been available to the prosecution, then it will not be in consonance with the criminal jurisprudence which insists on equal opportunity both to the accused as well as the prosecution. In view of the decisions quoted above, we

feel that it should

not be the

prosecution alone who should have the benefit of scientific method and we feel that the accused also must have that benefit and in order to have that benefit and to give him fair opportunity of defending himself, we consider that the enlarged photographs are a must and we also consider that because the State handwriting expert has based his opinion and the reasons for his conclusion after perusing the enlarged photographs and also that because the enlarged photographs will be necessary to aid the accused and also the court for coming to the proper conclusion about the handwriting, those enlarged photographs can be said to be the documents on which the prosecution proposes to rely and therefore we think that those documents must be available to the accused before the State handwriting expert steps into the witness box or at least to be available to the accused free of cost during the trial to get help from his expert. We are © conscious that the duty of giving copies to the accused is now on the court and a time may come when the court will be required to give copies but the court will be doing it with the assistance of the State and the State should never consider the question of expenses while affording an opportunity to the accused to defend himself properly. We are observing this mainly because at some stage during the trial in the lower Court it was stated that the enlarged photographs would cost as much as Rs. 2,000 and the State would be required to spend for that. This can never be a consideration before a court when the question of sufficient opportunity to the accused to defend himself is involved. Nor should the court deter from coming to a judicious conclusion on the point of dispute merely because the agency of the court would be required to supply those copies. The entire endeavour shall have to be made by the State to facilitate the observance of the procedure enacted by the Code of Criminal Procedure with its proper interpretation made by the courts from time to time. In view of the discussions made above, we allow the applications and hold that the accused persons are entitled to the enlarged photographs of the disputed as well as specimen handwriting and signatures. Rule in all these applications is made absolute. We are thankful to all the advocates who have

helped us in deciding this matter.’ 3. Letter Ex. P.W. 20/B has been written by accused

Niaz Ali to Raj

Mohammad. According to Shri M.L. Sharma (P.W. 20), it is dated 4-4-1990. This

letter also describes the incident of 25th which finds mention in the application

(Ex. PMM). It mentions that in the night, Soddo Din, Jai Paul, Tara and Kiran

1. Pravinkumar Lalchand Shah v. State of Gujarat, 1982 Cri LJ 763.

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i

Chauhan climbed the house of the accused persons and started pelting stones. They hurled abuses on which alarm was raised and villagers gathered on which these persons got down and went away. The entire honour had come to an end and that he should inform as to when he was coming or what is to be done and that he should bring Gulzar with him and also the weapon even if the service was to be sacrificed or anything may happen since “Ab Unka Kam Karna Hai”. He should be informed soon as to on what date he was coming and that the letter is concluded by the wording “Dil to Aisa Karta Hai Ke Aaj He Bhag Jayon, Par Kya Karyen”. Learned counsel for the accused submitted that these letters have not been proved to have been written by the accused to whom they have been assigned by the prosecution. In support, the expert opinion of Shri N.K. Jain (D.W. 1) has been referred. We do not see any substance in this submission for the reason that Shri M.L. Sharma (P.W. 20) has clearly pointed out that these communications are in the handwriting of the accused. Looking to the statements of these experts. proving their expert opinion, we prefer to depend on the opinion given by Shri M.L. Sharma (P.W. 20), Government Examiner on Questioned documents. It is more satisfactory and satisfying. It is more reasonable and dependable. It is more scientific as compared to the opinion of Shri N.K. Jain (D.W. 1), which is not so through and convincing. It is neither reasoned nor satisfactory. There is natural tendency on the part of the expert to support the view of the person whom had called him. It can, therefore, be said

that there is sufficient material on the record for coming to the conclusion that the accused were conspiring with each other and the object of conspiracy was not only the family of Jai Paul but also the deceased. The common object of the conspiracy has been established and the accused had an intention to eliminate the deceased. As to motive, we have already noticed that the families were at loger-heads. They had been fighting with each other and their relations were totally inimical, therefore, it is hardly possible to say that there was no motive

for the commission of crime by the accused.! 10.21.20 Specimen Writing—During Trial In the course of his elaborate arguments, Shri Marwah has tried to make out these points:

(i) The expression ‘any person’ in section 73 includes a person accused of an offence. (ii) The word ‘court’ in section 73 includes the court of the magistrate

competent to try the offence or hold an inquiry in respect thereof against such accused person under the Code of Criminal Procedure. (iii) Section 73 does not offend article 20(3) of the Constitution, because by

giving a direction to an accused person to give his specimen handwriting the court does not compel that accused ‘to be a witness against himself. State of Bombay v. Kathi Kalu Oghad?, has been relied upon. 1. Raj Mohammad v. State of Himachal Pradesh, 1995 Cri LJ 815. 2. (1962) 3 SCR 10: AIR 1961 SC 1808.

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(iv) There is nothing in section 73 which prohibits the court from sending the specimen writing obtained by it from the accused to a handwriting expert for opinion after comparison of the same by him with the disputed writing, even if that expert happens to be the government expert of Questioned Documents. A court is fully competent under section 73, to make an order directing the accused to write down words or figures if the ultimate purpose of obtaining such specimen writing is to enable the court trying the case, or inquiring into it, to compare that specimen writing with the disputed one to reach its own conclusion, notwithstanding the fact that, in the first instance, the court thinks it necessary in the interest of justice to send that specimen writing together with the disputed one, to an expert to have the advantage of his opinion and assistance.

(v) The specimen writings taken from an accused person by the court under the second paragraph of section 73 are to all intents and purposes, “admitted writings” within the purview of the first paragraph of the section which read with illustration (c) of section 45, Evidence Act, clearly indicates that such specimen writings can legally be used for comparison with the disputed writing by a handwriting expert, also, irrespective of whether such expert is examined as a witness by any of the parties, or as a court witness by the court acting suo motu or on being moved by the prosecution or the defence.

(vi) The government expert of Questioned Documents is supposed to be a high officer of integrity who is not under the influence of the investigating officer and he is expected to give his opinion truthfully about the identity or otherwise of the two sets of writings on objective observations. The mere fact, therefore, that in the instant case, he has

been summoned as a prosecution witness will not prejudice the accused, particularly when the court, in the circumstances of the case, thinks it necessary to take the assistance of the expert for reaching its own conclusion on this point. (vii) The order of the magistrate, construed as a whole, shows that, in substance, the ultimate purpose of directing the accused to give his specimen writings is that the magistrate wants to compare the specimen thus obtained, with the disputed writing, to form a just opinion about its identity, after availing himself of the advantage of the expert's opinion. (viii) This course was adopted by the magistrate in the interests of justice taking into account the conduct of the accused who had been absconding for a long time and was declared a proclaimed offender, and thus avoided to give his admitted or specimen writings at the investigation stage, and later, (it is contended) tampered with the prosecution witness (Tek Chand) who was expected to prove the disputed writing and who, in consequence of the tampering by the accused, realised from his police statement during the proceedings in

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court, in such a situation, even on the principle underlying section 540 Code of Criminal Procedure, 1898, which governs these proceedings, and is analogous to the principle underlying section 73, para (2). The magistrate was competent to use the specimen writing thus obtained, for securing the opinion and evidence of the government expert, with a view to assist himself (magistrate) informing his own opinion with regard to the identity of the writing, Ex. P.W. 21 F. (ix) The action of the magistrate inasmuch as it sought the specimen writing of the accused to be sent, in the first instance, to the government expert for his opinion and evidence far from being prohibited, was consistent with the principle enunciated by the Bombay High Court in Rudragouda Venkangouda v. Basangouda, AIR 1938 Bom 257 which received the imprimature of this court in Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326. This principle is to the effect that comparison of the other documents not challenged as fabricated, upon its own initiative and without the guidance of an expert is hazardous and inconclusive. Points (i) and (iii) are well settled and beyond controversy. For points (iv) to (ix) Shri Marwah relies on Gulzar Khan v. State, AIR 1962 Pat 255 (FB) and B. Rami Reddy v. State of Andhra Pradesh, (1971) Cri LJ 1591 (AP).

Shri Marwah further maintains that the view taken by a learned judge of the Calcutta High Court, in Hiralal Agarwalla’s case ILR (1957) 2 Cal 928. (AIR 1958

Cal 123) followed in the impugned judgment by the Delhi High Court, and also by the Bombay High Court in State v. Poonam Chand Gupta, ILR (1958) Bom 299: (AIR 1958 Bom 207), inasmuch as it is held therein that the second clause of

section 73 limits the power of the court to obtain the specimen writing of the accused exclusively for own purpose viz., for comparison with the disputed writing by the court itself, is too narrow and incorrect. The question that falls to be determined in this case is “Whether a magistrate in the course of an inquiry or trial on being moved by the prosecution, is competent under section 73, Evidence Act, to direct the accused person to give his specimen handwriting so that the same may be sent alongwith the disputed writing to the government expert of Questioned Documents for examination, “with a view to have the necessary comparison”? There appears to be some divergence of judicial opinion on this point. In Hiralal Agarwala v. State’ a learned single judge of Calcutta High Court took the view that section 73 does not entitle the court to assist a party to the proceedings. “It entitles the court to assist itself to a proper conclusion in the interests of justice. It is not open to the magistrate to send the specimen writing obtained from the accused for examination to an expert who is a prosecution witness”. It was, however, conceded that “it is perfectly open to the court to call its own photographer, take the enlargements under its own supervision, study them, and if necessary call its own expert as a court witness in order that it might be assisted to a proper conclusion”. 1. AIR 1958 Cal 123.

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The dictum in Hiralal Agarwalla’s case was followed by a learned single judge of the Bombay High Court in State v. Poonam Chand Gupta!, wherein it was held that the second clause of section 73 limits the power of the court to direct a person present in court to write any words or figures only where the court itself is of the view that it is necessary for its own purposes to take such writing in order to compare the words or figures so written by such person. The power does not extend to permitting one or the other party before the court to ask the court to take such writing for the purpose of its evidence on its own case. In T. Subbiah v. S.K.D. Ramaswamy Nadar?, Krishnaswami Reddy, J. of Madras

High Court adopted a similar approach in coming to the conclusion that section 73, Evidence Act gives no power to a magistrate at the pre-cognizance stage or in the course of police investigation, to direct an accused person to give his specimen handwriting. K. Reddy, J. was careful enough to add that “the court for the purpose of comparison can take extraneous aid by using magnifying glass, by obtaining enlargement of photographs or by even calling an expert, all these to enable the court to determine by comparison. There is no basis for the view that the court cannot seek extraneous aid for its comparison but on the other hand, there is indication in section 73 of the Evidence Act itself that such aid might be necessary”. As against the above view, a Full Bench of Patna High Court in Gulzar Khan

v. State’ held that a magistrate has the power under section 73, Evidence Act to direct, even before he has taken cognizance of the offence, an accused person to

give signatures, specimen writings, fingerprints or footprints to be used for comparison with some other signatures, handwritings, fingerprints or footprints which the police may require in the course of investigation. It was remarked that in section 73, the word ‘court’ must be equated with the court of the magistrate in a case triable by him or before it is committed to Sessions in a case triable by the Court of Session. As a matter of fact, ineevery case where the

accused is arrested and required to give his specimen handwriting or signature, or thumb-impression, etc., he is arrested under a warrant which must be issued by a magistrate, or when the police arrest without a warrant in a cognizable offence under section 60 of the Code of Criminal Procedure, he must be produced before a magistrate without unreasonable delay and the procedure under sections 60 to 63 of the Code as also under article 22 of the Constitution has to be followed and that attracts the provisions of section 73 of the Evidence Act.

In taking this view, the Patna High Court sought support from the decision of this court in State of Bombay v. Kathi Kalu Oghad* wherein the police had obtained from the accused three specimen handwritings to show whether a chit, Exhibit 5, was

in the handwriting

of the accused,

in the course

of police

investigation of the case, and it was held to be inadmissible by the Bombay High AIR 1958 Bom 207.

AIR 1970 Mad 85. AIR 1962 Pat 255. -m Nee O AIR 1961 SC 1808.

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Court, for a different reason viz., on the ground that it was hit by article 20(3) of the Constitution. This court had held that those specimen writings were admissible.

In B. Rami Reddy v. State of Andhra Pradesh’, the High Court of Andhra Pradesh took a similar view. Following the ratio of Gulzar Khan v. State of Bihar? (Supra), it was held that the court does not exceed its powers under the section in directing an accused to give his thumb-impression to enable the police to make investigation of an offence as even in such a case the purpose is to enable the court before which he is ultimately put up for trial to compare the alleged impressions of the accused, with the admitted thumb-impressions. At the outset, we may make it clear that the instant case is not one where the magistrate had made the impugned order in the course of police investigation. Here, the magistrate has taken cognizance of these two companion cases. The evidence of most of the prosecution witnesses has been recorded. The problem before us is, therefore narrow than the one which was before the Patna and Andhra Pradesh High Courts in the aforesaid cases. All that we have to consider is, whether the High Court was right in holding that the order dated May 20, 1972 of the magistrate calling upon the accused before it, to give his specimen handwriting, was beyond the scope of section 73, Evidence Act. Before considering the scope of section 73, it will be appropriate to have a look at the legislative background of this provision. Section 73 like many other provisions of the Indian Evidence Act, is modelled after the English Law of Evidence as it existed immediately before the enactment of the Indian Evidence Act in 1872. The English Law on the subject, as amended by the English Acts of the years 1854 and 1865, was substantially the same as incorporated in section 73 of Indian Evidence Act. Section 48 of the English Act II of 1855 was as follows: On an inquiry whether a signature, writing or seal is genuine, any undisputed signature, writing or seal of the party whose signature, writing or seal is under dispute may be compared with the disputed one, though such signature, writing or seal be on an instrument which is not evidence in the case. Section 48 was repealed and the Criminal Procedure Act, 1865 was passed by British Parliament. Section 8 of that Act, which still holds the field, provides: Comparison of disputed writing with writing proved to be genuine: Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses; and such writings, and the evidence of witness respecting the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute. This section applies in both Civil and Criminal Courts by virtue of section 1 of the Act. Apart from this section, it was well settled that the court in the case of a disputed writing, was competent to obtain an exemplar or specimen writing. In 1. 1971 Cri LJ 1591 (AP). 2. AIR 1962 Pat 255 (FB).

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any case, the court was competent to compare the disputed writing of the person in question. The position, as it obtained after the passing of the Criminal Procedure Act, 28 and 29 Vict. C. 18, has been summed up by Taylor as follows:

Under the Statutory Law, it seems clear....... that the comparison may be made either by the witnesses acquainted with the handwriting, or by witnesses skilled in deciphering handwriting, or without the intervention of any witnesses at all, by the jury themselves (Cobbett v. Kilminister), or in the event of there being no jury, by the court.......It further appears that any person whose handwriting is in dispute, and who is present in court, may be required by the judge to write in his presence, and that such writing may be compared with the document in question. Doed Devine v. Wilson, (1855) 10 Moo PC 502, 530: 110 R.R. 83; Cobbett v.

Kilminister (1865) 4 F. and F. 490 (See Taylor On Evidence by Johnson & Bridgman, Vol. 2, Paragraphs 1870 and 1871, page 1155). Let us now compare it with section 73 of the Indian Evidence Act, which runs as under: In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have written or made, any signature, writing or seal admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one, which 1s to be proved, although that signature, writing or seal has not been produced or proved for any other purpose. The court may direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by such person....... It will be seen that the first paragraph of section 73 is, in substance, a combined version of section 48 of the English Act II of 1855 and section 8 of the English Criminal Procedure Act, 1865. The Second paragraph of section 73 is substantially the same as the English Law condensed by Taylor in the above quoted portion of paragraph 1871. Just as in English Law, the Indian Evidence Act recognises two direct methods of proving the handwriting of a person: 1. By anadmission of the person who wrote it. 2. By the evidence of some witness who saw it written. These are the best methods of proof. These apart, there are modes of proof by opinion. They are: (i) By the evidence of a handwriting expert. (section 45).

(ii) By the evidence of a witness acquainted with the handwriting of the person who is said to have written the writing in question. (section 47). (iii) Opinion formed by the court on comparison made by itself. (section 73). All these three cognate modes of prove involve a process of comparison. In mode (i), the comparison is made by the expert of the disputed writing with the

admitted or proved writing of the person who is said to have written the questioned document. In (ii), the comparison takes the form of a belief which the witness entertains upon comparing the writing in question, with an exemplar

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formed in his mind from some previous knowledge or repetitive observance of the handwriting of the person concerned. In the case of (iii), the comparison is made by the court with the sample writing or exemplar obtained by it from the person concerned. A sample writing taken by the court under the second paragraph of section 73, is, in substance and reality, the same thing as “admitted writing” within the purview of the first paragraph of section 73. The first paragraph of the section, as already seen, provides for comparison of signature, writing, etc., purporting to have been written by a person with others admitted or proved to the satisfaction of the court to have been written by the same person. But it does not specifically say by whom such comparison may be made. Construed in the light of the English

Law

on

the subject, which

is the legislative source

of this

provision, it is clear that such comparison may be made by a handwriting expert (section 45) or by one familiar with the handwriting of the person concerned (section 47) or by the court. The two paragraphs of the section are not mutually exclusive. They are complementary to each other.

Section 73 is therefore to be read as a whole, in the light of section 45. Thus read, it is clear that a court holding an inquiry under the Code of Criminal Procedure in respect of an offence triable by itself or by the Court of Sessions, does not exceed its powers under section 73, if, in the interests of justice, it directs an accused person appearing before it, to give his sample writing to enabling the same to be compared by a handwriting expert chosen or approved by the court, irrespective of whether his name was suggested by the prosecution or the defence, because even in adopting this course, the purpose is to enable the court before which he is ultimately put up for trial, to compare that disputed writing with his (accused’s) admitted writing, and to reach its own conclusion with the assistance of the expert. In the instant case, the magistrate, as the extract from his order dated May 20, 1972, shows after considering the peculiar circumstances of the case, and recalling the observation of the Calcutta High Court in Hira Lal Agarwalla v. State, AIR 1958 Cal 123 to the effect, that section 73 entitled “the court to assist itself for a proper conclusion in the interest of justice”, expressly “applied this test to the present case”. The peculiar circumstances which weighed with the magistrate in directing the accused to execute sample writing to be compared, in the first instance, by the Government expert of Questioned Documents, included the contumacious conduct of the accused and the resiling of the material witness, Tek Chand, which, according to Mr. Marwah, was possibly due to his having been suborned or won over by the accused. It was apparent from the record that the accused was playing hide and seek with the process of law and was avoiding to appear and give his sample writing to the police. The magistrate therefore, had good reason to hold that the assistance of the government expert of Questioned Documents was essential in the interest of justice to enable the magistrate to compare the sample and the questioned writings with the expert assistance so obtained and then to reach a just and correct conclusion about their identity. Although the order of the magistrate is somewhat inartistically worded, its substance was clear that although initially,

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the specimen writing sought from the accused was to be used for comparison by the government expert, the ultimate purpose was to enable the court to compare that specimen writing with the disputed one, Ex. P.W. 21 F, to reach a just decision. In the revision petition filed by the accused before the High Court a grievance is sought to be made out that the magistrate’s order will work prejudice to the defence and enable the prosecution to fill gaps and loopholes in its case. This contention was devoid of force. Once a magistrate is seized of a case, duly forms an opinion that the assistance of an expert is essential to enable the court to arrive at a just determination of the issue of the identity of the disputed writing, the fact that this may result in the “filling of loopholes” in the prosecution case is purely a subsidiary factor which must give way to the paramount consideration of doing justice. Moreover, it could not be predicted at this stage whether the opinion of government expert of Questioned Documents would go in favour of the prosecution or the defence. The argument raised before the High Court was thus purely speculative.

In addition to section 73 there are two other provisions resting on the same principle, namely. Section 165, Evidence Act and section 540, Code of Criminal Procedure, 1898, which between them invest the court with a wide discretion to call and examine any one as a witness, if it is bona fide of the opinion that his examination is necessary for a just decision of the case. In passing the order which he did, the magistrate was acting well within the bounds of this principle. The matter can be viewed from another angle, also. Although there is no legal bar to the judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting

expert, the judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheetanchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is, therefore, not advisable that a judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert. It is not the province of the expert to act as judge or jury. As rightly pointed out in Titli v. Jones', the real function of the expert is to put before the court all the

materials,

together

with

reasons

which

induce

him

to come

to the

conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials. Ordinarily, it is not proper for the court to ask the expert to give his finding upon any of the issues, whether of law or fact, because strictly speaking, such issues are for the court or jury to determine. The handwriting expert’s function is to opine after a scientific comparison of the disputed writing with the proved or admitted writing with regard to the points of similarity and dissimilarity in the two sets of writings. The court should then compare the handwritings with its own eyes for a proper assessment of the value of the total evidence. 1. ILR 56 All 428: AIR 1934 All 273.

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In this connection, the observations made by Hidayatullah J. (as he then was)

in Fakharuddin v. State of Madhya Pradesh’, are apposite and may be extracted (at pages 1328, 1329): Both under sections 45 and 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting frequent observations and experience. In either case, the court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become handwriting expert but to verify the premises of the expert but in one case and to appraise the value of the opinion in the other case. The comparison depends on an analysis of the characteristics in the admitted or proved writings and the finding of the same characteristics in a large measure in the disputed writing. In this way, the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert's opinion is given, the court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the court must play the role of an expert but to say that the court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion, whether of the expert or other witness.

Since even where proof of handwriting which is in nature comparison exists, a duty is cast on the court to use its own eyes and mind to compare the admitted writing with the disputed one to verify and reach its own conclusion, it will not be wrong to say that when court seized of a case, directs an accused person present before it to write down a sample writing, such direction in the ultimate analysis, “is for the purpose of enabling the court to compare” the writing so written with the writing alleged to have been written by such person, within the contemplation of section 73. That is to say, the words “for the purpose of enabling the court to compare” do not exclude the use of such ‘admitted’ sample writing for comparison with the alleged writing of the accused by a handwriting expert cited as a witness by any of the parties. Even where no such expert witness is cited or examined by either party the court, may, if it thinks necessary for the ends of justice, on its own motion, call an expert witness, allow him to compare the sample writing with the alleged writing and thus give his expert assistance to enable the court to compare the two writings and arrive at a

proper conclusion. For all the foregoing reasons, we are of opinion that in passing the orders dated May 20, 1972 relating to the disposal of the application dated December 11, 1970, the learned additional district magistrate did not exceed his powers under section 73, Evidence Act. The learned judges of the High Court were not right in holding that in directing the accused by his said order dated May 20, 1972, the Magistrate acted beyond the scope of section 73 or in a manner which was not legal. 1. AIR 1967 SC 1326.

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Accordingly, we allow this appeal, set aside the judgment of the High Court, and restore the order dated May 20, 1972, of the magistrate who may now repeat his direction to the accused to write down the sample writing. If the accused refuses to comply with the direction, it will be open to the court concerned to draw

under section 114, Evidence Act, such adverse presumption as may be

appropriate in the circumstances. If the accused complies with the direction, the court will in accordance with its order dated May 20, 1972, send the writing so

obtained, to a senior Government Expert of Questioned Documents, named by it, for comparison with the disputed writing and then examine him as a court

witness.! 10.21.21 Specimen Writing—During Police Investigation “Shri O.P. Rana, learned counsel for appellant contended that section 73 of the Evidence Act conferred ample power on the magistrate to direct the accused to give his specimen writing even during the course of investigation. He also urged that it would be generally in the interests of the administration of justice for the magistrate to direct the accused to give his specimen writing when the case was still under investigation, since that would enable the investigating agency not to place the accused before the magistrate for trial or enquiry, if the disputed writing, as a result of comparison with the specimen writing was found not to have been made by the accused. While we agree with Mr. Rana that a direction by the magistrate to the accused to give his specimen writing when

the case is still under investigation would surely be in the interests of the administration of justice, we find ourselves unable to agree with his submission that section 73 of the Evidence Act enables the magistrate to give such a direction even when the case is still under investigation. Section 73 of the Evidence Act is as follows:

In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the court have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose. The court may direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by such person. This section applies also with any necessary modifications to finger-impression. The second paragraph of section 73 enables the court to direct any person present in court to give specimen writings ‘for the purpose of enabling the court to compare’ such writings with writing alleged to have been written by such person. The clear implication of the words ‘for purpose of enabling the court to compare’ is that there is some proceeding before the court in which or as a consequence of which it might be necessary for the court to compare such writings. The direction is to be given for the purpose of ‘enabling the investigating or other agency to compare’. If the case is still under investigation 1. State (Delhi Adm.) v. Pali Ram, 1979 Cri LJ 20 (SC).

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there is no present proceeding before the court in which or as a consequence of which it might be necessary to compare the writings. The language of section 73 does not permit a court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the court. Further, section 73 of the Evidence Act makes no

distinction between a Civil Court and Criminal Court. Would it be open to a person to seek the assistance of the Civil Court for a direction to some other person to give sample writing under section 73 of the Evidence Act on the plea that it would help him to decide whether to institute a civil suit in which the question would be whether certain alleged writings are those of the other person or not? Obviously not. If not, why should it make any difference if the investigating agency seeks the assistance of the court under section 73 of the Evidence Act on the plea that a case might be instituted before the court where it would be necessary to compare the writings? We may also refer here to section 5 of the Identification of Prisoners Act, 1920, which provides: If a magistrate is satisfied that, for the purpose of any investigation or proceeding under the Code of Criminal Procedure, 1898 it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that effect, and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken as the case may be, by a police officer: Provided that no order shall be made directing any person to be photographed except by a magistrate of the first class: Provided further, that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding. Section 2(a) of the Act defines ‘measurements’ as including ‘fingerimpressions and footprint impressions’. There are two things to be noticed here. First, signature and writing are excluded from this range of section 5 of the Identification of Prisoners Act and, second, ‘finger impressions’ are included in both section 73 of the Evidence Act and section 5 of the Identification of Prisoners Act. A possible view is that it was thought that section 73 of the Evidence Act would not take in the stage of investigation and so section 5 of the Identification of Prisoners Act made special provision for that stage and even while making such provision, signature and writings were deliberately excluded. As we said, this is a possible view but not one on which we desire to rest our conclusion. Our conclusion rests on the language of section 73 of the Evidence Act.

Section 73 of the Evidence Act was considered by us in State (Delhi Administration) v. Pali Ram', where we held that a court holding an enquiry under the Code of Criminal Procedure, was entitled under section 73 of the Evidence Act to direct an accused person appearing before it to give his 1. AIR 1979 SC 14.

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specimen handwriting to enable the court to compare it with disputed writings. The present question whether such a direction, under section 73 of the Evidence Act can be given when the matter is still under investigation and there is no proceeding before the court was expressly left open. The question was also not considered in State of Bombay v. Kathi Kalu Oghad', where the question which was actually decided was that no testimonial compulsion under article 20(3) of the Constitution was involved in a direction to give specimen signature and handwriting for the purpose of comparison.

a

The view expressed by us in the earlier paragraphs on the construction of section 73 Evidence Act was the view taken by the Madras High Court in T. Subbiah v. S.K.D. Ramaswamy Nadar, AIR 1970 Mad 85, the Calcutta High Court in Farid Ahmed v. State of West Bengal, AIR 1960 Cal 32 (Mitter J. at page 32) and Priti Ranjan Ghosh v. State of West Bengal, (1973) 77 Cal WN 865, the High Court of Punjab and Haryana in Dharamvir Singh v. State, 1975 Cri LJ 884 the High Court of Madhya Pradesh in Brij Bhushan Raghunandan Prasad v. State of Madhya Pradesh, AIR 1957 MP 106, the Orissa, (1972) 2 Cal WR 1332, and the Allahabad

High Court in the Judgment under appeal. A contrary view was taken by the Patna High Court in Gulzar Khan v. State of Bihar, AIR 1962 Pat 255 and the High Court of Andhra Pradesh in B. Rami Reddy v. State of Andhra Pradesh, 1971 Cri

PC 1591. We do not agree with the latter view”.? 10.21.22 Paper Tear Evidence Admissible The question is, as to whether the recovery of Ex. P-57 is an incriminating

evidence against the accused. The case of the prosecution is, that a sheet of paper (Ex. P-5) was torn out from this book which was marked by handwriting expert Mr. Puri (P.W. 22) as Q ‘2’, is an important link in the case. Ex. 1 was

produced to Surajmal (P.W. 1) on April 28. It is in Roman English and reads, “Wada Pura Nahin Lash Hotel Kay Ass Pass”. According to Krishan Gopal (P.W. 3), Ex. P-5 was found lying in the lawns of his house. He resides alongwith his

brother, Mahavir Prasad, father of deceased Rajesh, in Amba Bari, Jaipur. Though the authorship of Ex. P-6 has not been proved to be of the accused, but, as we shall presently show it can be said on the material on record that the sheet of paper (Ex. P-5) was torn out from the practical copy (Ex. P-57) which was recovered from the possession of the accused on his information under section 27 of the Evidence Act, from nowhere else but from the house of the accused. Though, apart from the fact that the name of Miss Seema is written on Ex. P-57 there is no other evidence that Ex. P-57 is in any way connected with the crime, and is a piece of substantial evidence against the accused. Mr. Frank Anthony, the learned advocate for the accused, in support of his submission that the statement of Mr. Puri (P.W. 22) handwriting expert to the effect that the sheet (Ex.P-5) was torn out from the other part of the sheet marked B-18 is not an expert opinion within the meaning of section 45 of the Evidence Act, has referred to Hanumant Govind v. State of Madhya Pradesh?, in which it has been 1. AIR 1961 SC 1808. 2. State of Uttar Pradesh v. Ram Babu Misra, AIR 1980 SC 791. 3. AIR 1952 SC 343: 1953 Cri LJ 129.

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held that opinion of expert that a particular letter was machine does not fall within the ambit of section 45 and ruling will not apply to the present case, because, here we the question as to whether a typed material was typed

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typed on particular is inadmissible, this are not dealing with on a particular type

machine, but we are dealing as to whether the sheet of paper (Ex. P-5) was torn

out from Ex. P-57 exercise book. We are of the opinion that the question as to whether the paper on which a document is written has been torn out from a copy is an expert opinion. Under section 45 of the Evidence Act, when the court has to form-an opinion upon a point of science, the opinion on that point of persons specially skilled in such science is a relevant fact. In ‘Websters’ Dictionary’ “Science” has been defined as possession of knowledge as distinguished from ignorance. Knowledge is acquired through study and practice. In journal published by the Forensic Science Society in July, 1980 (Vol. 20) at page 149 dealing with Broader Basis of Forensic Science, it has been dealt as to what type of information is produced by forensic scientist. It is (1) information to help in the decision on whether a crime has been committed; (2)

corroborative evidence of (1) and (3) evidence to incriminate or eliminate an

individual. It has been observed: “The adjective Forensic which goes back to Roman

times, means

“related to, used in or connected with a court of law”.

Forensic science is, therefore, science used in connection with a court of law. The application of science to the apprehension and conviction of criminals is only part of the whole field of science applied in this way.” Thus, to our mind the evidence as to whether a paper which contains incriminating material against the accused has been torn out from another copy is an information connected with the forensic science. Wilson R. Harrison in his book “Suspected Documents” at page 43 has said:

if the edge of a suspect document is seen to be irregular, an accurate record of its outline should be preserved, as it may prove possible to match this irregular edge with that another document which subsequently comes to hand. Evidence such as this has no occasion proved to be a value when anonymous letters are being investigated, for these are often written on scraps or paper torn from sheets which later become available to the investigators.

At the same page (bottom), the author dealing with “perforations” has said, Paper rarely tears evenly along the performations. The slight irregularities in tearing may prove of value should it be required to prove that a sheet was torn from a particular counter-foil.

The author at page 44 under Fig. 3-10 while explaining has said, An enlarged photograph (2X) provides the best evidence of matching through the uneven tearing of perforation. Fluorescence is one of the item to be observed in the examination and comparison of paper. The same author dealing with “The fluorescence of paper” has observed at page 90: The exposure of paper to ultra-violet light is a useful test when a document consists of several pages and the substitution of one or more is suspected. The forger may be able to match the general colour and appearance of an unwater-

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marked sheet as viewed under ordinary conditions of lighting, but unless a very similar paper has been chosen, it is unlikely to exhibit the same fluorescence in ultra-violet light. The pages of any suspect document should be exposed side by side and their fluorescence compared: no decision should be made until both sides of all the sheets have been examined, for the back and front surfaces may differ in there fluorescence. With a single page document, the actual colour of the fluorescence may have little significance, so that the attention should be concentrated on the discovery of places where there is some modification of either colour or intensity, for these may well be the sites of erasures. Osborn in his book, “Questioned Documents” (Second Edition) Chapter XXVI

dealing with paper and Questioned documents has observed: It has been conclusively shown that several questioned documents or widely different dates were all written on paper that originally formed one sheet, as was clearly proved by the matched indentations on the edges of the several pieces where they had been torn apart. The sheet of paper on which an anonymous letter was written has been shown to have come from a blank book from which it had been torn, which book had been in the possession of one who was accused of writing the letter. Thus, we are of the opinion that it is possible for an expert, if he is one to examine and say, as to whether a sheet of paper on which the questioned document is written came from a particular copy or not. No doubt, in order to establish the identity of the papers, on the questioned as well as the others in the blank copy, from which the sheet, from which the questioned document is said to have been torn out, the colour, thickness, finish or surface, watermark, wove or laid style, cutting, size, ruling, fluorescence have to be looked into. But, it does

not appear to be necessary that before the identity of the two papers can be established, all the aforesaid things must be similar, and in a given case only some of the things may enable the expert to give an opinion about the identity of the two papers. Mr. Puri (P.W. 22), the expert, is working as an Assistant Director (Documents)

in the New

State Forensic Science Laboratory, Rajasthan, since

June, 1959. He has stated that he is an expert of handwriting and other alleged problems and also received training prior to his appointment in the Punjab C.LD. Scientific section, Phillaur, Bihar Police Laboratory, Patna, Indian Security

Press, Nasik and Government of India Mint, Calcutta for over one and a half years. In the year 1971, he also received advance training in the subject in the Home Office Forensic Science Laboratory at Cardiff in U.K. for a period of about six months, having been sponsored by Government of India. He has stated that the page containing disputed writing marked ‘Q 2’ (Ex. P-5), the reverse side of which is marked ‘Q 2' (R) was removed from the note book marked ‘B’ from the

place opposite to page B-18 (R). He opined that the edges of the side, which was pulled marked ‘Q 2’ (R) match with the relevant edges of the pages B-18 (R). He prepared a comparison chart marked Ex. P-148, which also contains enlarged photographs. He had examined the documents ‘Q 2’ (R), (Ex. P-5) and B-18 (R)

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(Copy Ex. P-57) by placing them side by side of the paper B-18 (R) is the reverse side. We are, therefore, of the opinion that on the evidence of Mr. Puri it can be said that the sheet on which Ex. P-5 was written was taken out from Ex. P-57,

and the other sheet of it is B-18 (R). We have already reproduced as to what is written in Ex. P-5 and we are of the opinion that it is an incriminating evidence, and the fact that the copy from which the sheet on which Ex. P-5 was torn was recovered on the information of the accused at his instance from his house, connects the accused with the crime.! 10.21.23 Incomplete Evidence

Dr. B.R. Sharma (P.W. 22) undoubtedly had the qualifications of an expert, although he had not published any paper with regard to the comparison and identification of printed matters. But his evidence, even if admissible, does not

necessarily lead to the conclusion that the number on the ticket Ex. P-3, was forged, and not printed in due course on any of the eight machines on which the numbers of the lottery tickets for the Third Draw were printed. Only three Exhibits were sent to Dr. Sharma for examination and comparison. They were:— (i) One Haryana State Lottery ticket marked ‘A’ allegedly produced by Sh. Kanti Lal;

(ii) One genuine ticket produced by Sh. G.S. Kale which is Ex. P-l;

(iii) One allegedly forged ticket which is Ex. P-3. The further circumstance that robbed his evidence of determinative value was that his opinion was invited only on the narrow point whether these three tickets were printed with the same printing machine. The witness examined these tickets and answered the reference in the negative. Reasons in support of his opinion

examination,

are

mentioned

however,

in his report

Dr. Sharma

(Ex. PAB).

In cross-

stated that he was required to

compare the marks (the number) on the ticket (Ex. P-l) with the machine (Ex. P-10) and therefore, the establishing of individual characteristics of

the machines was neither possible identification, the witness added:

nor

necessary.

For

such

“We need a number of machines to establish the individuality of the machines conceded:

with

reference

to other

machines.”

The

witness

further

“I did try to find out data in the letter X to give a definite opinion either in positive or negative form. There can be slight differences in the dimensions of the letters and digits due to the proper and improper inking. I could not find significant differences which could permit to say that the letter X was not printed with the letter-face, which was sent to me on Ex. P-| and Ex. P-21. I did not compare the letter X on Exs. P-1 and P-3 inter se as it would not have served any useful purpose nor I was required to so do. In this case it was not possible to give a definite opinion on the printing of letter X as it was a single letter.” 1. (1981) Cri LJ 1253.

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He further stated that he had not compared the inks on Ex. P-] and Ex. P-3, and therefore, could not say whether there was or not any difference in the inks used in printing the numbers on these tickets. Thus Dr. Sharma’s opinion on his own showing could not be definite and conclusive. P.W. 6 and P.W. 12 revealed that the numbers on the tickets relating to the Third Draw were printed in the Thompson Press on eight different machines and not only on the machine (Ex. 10) which alone was examined by Dr. Sharma in relation to the three tickets sent to him. Thus, Dr. Sharma’s evidence did not clinch the issue as to whether the ticket Ex. P-3 was a forged one. The last witness in this set is Joginder Singh Overseer (P.W. 26). He was the

supervisor of the Lotteries Department of Thompson Press in which the lottery tickets were printed. He examined the four tickets in question, each bearing No. X-78410, on December 8, 1969, including Ex. P-l and Ex. P-3. In his opinion, Ex.

P-| (which was the ticket produced by Shri G.S. Kale), was genuine for the following reasons:— 1. The series type X corresponds to the genuine type face in Chalthenem 18, condensed bold.

2. Movement of the digits on the ticket is similar to the movement of the digits of machine No. 386008 of Tutilo numbering machine, made in Germany and which is available with the Thompson Press, Faridabad.

3. Numbering of counterfoils produced is similar to the genuine numbering machine. It was printed by a Machine No. 386012 of Tutilo number machine made in Germany and which is available in Thompson Press, Faridabad. 4. The space between No. and alphabets is same on the ticket and the counterfoil. 5. Type of series are same on the ticket and counterfoil, i.c., Chalthenem 18, Bold Condensed. 6. Inking of ticket is genuine, i.e., with densed black. The witness further opined that the ticket (Ex. P-3) is not genuine for these reasons:— 1. Ink shade is not the same in the genuine ticket, i.e., Ex. P-l.

2. Distance between No. and X is little more. 3. There is no alignment with X and slanting position.” In cross-examination, the witness revealed that he had ample training regarding the comparison of printed disputed documents and had written an article entitled “Detection on Forgeries in Printed Material”. The witness admitted that in (Ex. P-3) the type face is also from ‘CHALITHENEM) 18 bold condensed but it is from a brand new type face. The witness conceded:— It is possible that numbering of Ex. P-3 was done with Tutilo machine rather it was printed with a Tutilo make machine. It is true that the size of the type of spacing of the digits were the same in Exs P-1 and P-3. We used dense black ink in our printing the tickets while this ink was not in Ex. P-3 but they were not of the same shade although both were black.

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The witness added that he had examined the ink shades with a magnifying glass and found that while the ink used in Ex. P-| was of their press, it was not

so in the cases of the other three tickets. The witness, however, did not perform any chemical test to ascertain the identity of the ink. Assuming arguendo, that Joginder Singh had the necessary skill, scientific knowledge and experience of an ‘expert’ and his opinion was admissible under section 45, then also it would be highly unsafe to condemn Ex. P-3 on his opinion alone, as a forged document. The dissimilarities between Ex. P-1 and Ex. P-3 on the basis of which he has characterised the number on Ex. P-3 as a forged number, may be natural variations. His opinion does not indubitably exclude the possibility of the number in question on Ex. P-3 having been printed in the ordinary course on one of the eight Tutilo machines of the Thompson Press. In cross-examination, he did not rule out this possibility. His opinion that the questioned number on Ex. P-3 had not been printed with the same ink with which the number on Ex. P-| and the other lottery tickets were printed in their press cannot pass muster. The only reason for this difference in the printing ink given by him, is that the ink used in printing the questioned number on Ex. P-3 is less dense or lighter in shade than that of Ex. P-l. Thus variation in density of ink may be due to an innocuous cause. The witness never examined the ink chemically. This circumstance pointed out by the witness was too precarious to be a safe basis for a finding of forgery. Even if it is assumed for the sake of argument that the number on Ex. P-3 had been forged, that by itself would not show that Chatt Ram, appellant forged it or participated in its forgery. Nor would the mere fact that Chatt Ram presented this ticket before the officers concerned and claimed the special prize on

knowledge or belief of its forged character. Nor where the two circumstances pointed out by the counsel for the state such as would unerringly raise an inference that the appellant possessed the mens rea requisite for an offence concerned for claiming the special prize. These two circumstances (which have been set out in a foregoing part of this judgement), at the most, raise suspicion about the requisite guilty knowledge or belief on the part of the appellant. But suspicion is no substitute for proof. To sum up, even if the evidence of P.Ws. 6, 12, 22 and 26 was assumed to be

admissible under section 45, Evidence Act, it was not sufficient to establish beyond reasonable doubt that the ticket Ex. P-3 was a forged document. Further, even on the assumption that the ticket Ex. P-3 was a forged document, the evidence on the record did not indubitably lead to the conclusion that the appellant Chatt Ram was concerned in forging it or had the requisite guilty knowledge of its forged character when he presented it and claimed prize on its basis before the officers concerned. It is immaterial if at any subsequent point of time he came to know of its forged character.

Since, in any event, the evidence on the record is insufficient to sustain the conviction of Chatt Ram appellant under sections 467/471 Indian Penal Code the legal question posed by the High Court is rendered wholly academic and it is not necessary to decide the same for the purpose of this appeal.! 1. Chatt Ram v. State of Haryana, (1979) Cri LJ 141: AIR 1979 SC 1890.

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10.21.24 Refusal to Give Specimen—Contempt of Court With the introduction of such “requested” specimens in criminal cases, questions regarding possible self-incrimination in violation of the Fifth

Amendment of the United States Constitution arose. These matters were effectively dealt with by the Supreme Court in two separate decisions in recent years. In Scherber v. California, 384 US 757, 86 S. Ct. 1826, (1966) the defendant

argued that the taking of blood specimen to determine alcohol content, over his objection, was a violation of his privilege against self-incrimination. The court held that while the Fifth Amendment does protect an individual from being compelled to testify against himself, the taking of his blood did not involve testimonial compulsion. The court touched upon our field by stating that the Fifth Amendment privilege did not afford protection against compulsion to ‘Submit to fingerprinting, photographing, or measurements, to write or speak for identification’. Handwriting specimens were more directly involved in a decision rendered the following year in Gilbert v. California, 388 U.S. 263 (1967). The defendant provided handwriting specimens to federal agents in connection with federal offences, and these specimens were subsequently used to prosecute him on local charges. He argued that such use was in violation of his privilege against selfincrimination. The court rejected this contention and held that “a mere handwriting exemplar, in contrast to what is written, like the voice or body itself, is in identifying physical characteristic outside its protection. The introduction of such handwriting specimens also provoked questions concerning possible violations of privileges against unreasonable searches and seizures as provided by the Fourth Amendment. The Supreme Court has also dealt with this question in recent years. In United States v. Mara, 10 Cri L 2235 (7th Cir), 1971 the court held that:

Handwriting, like speech, is repeatedly shown to the public, and there is no more expectation of privacy in the physical characteristics of a person's script than there is in the tone of his voice.

The decisions cited clearly reflect the attitude of the Supreme Court that the introduction of requested handwriting specimens do not involve violations of privileges provided by the Fourth and Fifth Amendments. The Schmerber decision, in holding that the Fifth Amendment privilege did not afford protection against compulsion to write for identification purposes, is a far cry from the early rulings that specimens had to be in the case for some other purpose. It can be looked upon as a landmark decision in that it has paved the way for compelling a person to provide handwriting specimens through a court order or grand jury proceedings. This has led to the common practice today of securing court-ordered specimens, and courts have held the failure to provide such specimens constitutes contempt. Additionally, some courts have held that providing specimens that are deliberately disguised also provides ground for contempt proceedings. Some peripheri procedures that have evolved have yet to be ruled upon by the higher courts. An example is a recent complimentary ruling by a trial judge in New Orleans that because handwriting

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experts are also so accurate now, it is an infringement of the individual's rights to have him repeat the pertinent material letter for letter. 10.21.25 Evidentiary Value

The opinion of a handwriting expert, even if it may be said to be of reliable nature, is not conclusive on the point that the signatures alleged to have been forged, were really made by the accused. The opinion of the expert is only corroborative and not substantive piece of evidence.” 10.21.26 Magistrate as handwriting Expert Where the magistrate after considering the opinion of handwriting expert compared the writing on the forged document and the subsequent writings of the accused and came to the conclusion that the document was forged, it was held that he ought not to have taken the role of an expert. His opinion was

certainly influenced by the opinion of the expert. He did not discuss how he could come to his belief on simply seeing the handwriting on the forged document and the specimen handwriting of the accused. If he wanted to rely upon his own knowledge, he ought to have given his own reasons why he thought that the forged document was in the hand of the accused. If he had any independent expert knowledge about the handwriting he ought to have given reasons for his belief independently according to his own knowledge. In the absence of such reasons the decision of the magistrate was held not justified? Counterfeiting Currencies.—Counterfeiters all over the world must be singing in ecstasy, if there is heaven on earth, it is here, here, here’, for, according to the Kerala High Court* Indian law does not make counterfeiting of currency notes of any country in the world, other than that of India, an offence. The High Court has persuaded itself by a process of judicial activism in reverse gear, that making of such counterfeit notes is not an offence under section 489A of the Indian Penal Code and that having in possession such counterfeit currency notes is not an offence under section 489C of the Indian Penal Code. Such.a view has been taken even though there is nothing in the language of these sections to warrant such an interpretation as will become evident presently. Facts.—The six respondents herein were charged with offences punishable under sections 120B, 489A, 489B and section 420 read with sections 51 and 34,

Indian Penal Code. The prosecution case against them was that in furtherance of a conspiracy entered into by accused Nos. 1 to 4 to forge and counterfeit American dollar notes of 20 dollar denomination, they indulged in counterfeiting by printing 2000 such notes. Respondents 1 and 2 were further 1. EF Afford Jr. and Ronald M. Dick, (1978) International disguise in court-ordered

handwriting specimens Journal of Police Science and Administration, 6 (4), 420.

2. (1978) Cri L] NOC 194. (1978) Cri LJ NOC 128 (Cal). 4. Judgment and Order rendered by the Kerala High Court in Cri RP 263 of 1975 on November 17. 1976, giving eise to the present appeal by certificate of fitness -

under article 134(c) of the Constitution of India.

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alleged to have been in possession of 148 forged currency notes knowing the same to be forged, with intent to use these forged notes as genuine. The respondents were committed by the Magistrate to stand their trial before the Sessions Court, for offences under sections

120B, 489A

and 489C

read with

sections 511 and 34, Indian Penal Code. It was contended by the respondents accused before the Sessions Court that a charge under sections 489A and 489C of the Indian Penal Code could be lawfully levelled only in the case of counterfeiting of ‘Indian’ currency notes and not in the case of counterfeiting of ‘foreign’ currency notes. The contention was upheld by the Sessions Court at the threshold of the trial and the accused were discharged. Aggrieved by the order of the Sessions Court discharging the respondents, the petitioner (State of Kerala) filed a Revision Petition before the High Court of Kerala. The High Court by its order under appeal confirmed the order of discharge rendered by the Sessions Court holding that “in the absence of an explanation similar to that in the case of bank notes, section 489A and the sections that follow which relate to counterfeiting of currency notes do not apply to cases of counterfeiting of dollar bills”. The petitioner thereupon filed an application under article 134(1)(c) of the

Constitution for leave to appeal to the Supreme Court. By its order under appeal, the High Court certified it as a fit case for appeal to the Supreme Court as “the case involves considerably important questions of law as to whether counterfeit American dollar notes will fall within the purview of sections 489A and 489C of the Indian Penal Code.” That is how the matter has come up before this court. Relevant provisions.—The anatomy of the relevant provisions requires to be X-rayed at the outset. The concerned provisions may, therefore, be screened:— “489A. Whoever counterfeits, or knowingly performs any part of the process of counterfeiting, any currency note or bank note, shall be punished with (imprisonment for life), or with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine.

Explanation.—For the purposes of this section and of sections 489B, (489C, 489D and 489E) the expression “bank note” means a promissory note or engagement for the payment of money to bearer on demand issued by any person carrying on the business of banking in any part of the world, or issued by or under the authority of any State or Sovereign Power, and intended to be used as equivalent to, or as a substitute for money. “489C. Whoever has in his possession any forged or counterfeit currencynote or banknote, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.”

Analysis.—An analysis of section 489A reveals that:— (i) counterfeiting ‘any’ currency note or bank-note is an offence; (ii) knowingly performing any part of the process of counterfeiting any currency note or bank-note is also an offence; and (iii) the prohibition against counterfeiting or performing such process applies to currency notes as also to bank-notes as defined by the

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explanation to section 489A. And inasmuch as the aforesaid explanation inter alia means any engagement for the payment of money to the bearer issued by or under the authority of any State or sovereign power provided it is intended to be used as equivalent to or substitute for money the prohibition also extends to counterfeiting, etc., of currency notes of any other sovereign power. Outcome.—This analysis reveals that the legislative embargo against counterfeiting envelops and takes within its sweep ‘currency notes’ of all countries. The embargo is not restricted to ‘Indian’ currency notes. The legislature could have, but has not, employed the expression ‘Indian currency note.’ If the legislative intent was to restrict the parameters of prohibition to

‘Indian currency’ only, the Legislature could have said so unhesitatingly. The expression ‘currency note’ is large enough in its amplitude to cover the currency notes of ‘any’ country. When the Legislature does not speak of currency notes of India the court interpreting the relevant provision of law cannot substitute the expression ‘Indian currency note’ in place of the expression “currency note’ as has been done by the High Court. The High Court cannot do so for the court can merely interpret the section; it cannot re-write, recast or redesign the section. In interpreting the provision the exercise undertaken by the court is to make explicit the intention of the Legislature which enacted the legislation. It is not for the court to reframe the legislation for the very good reason that the powers to ‘legislate’ have not been conferred on the court. When the expression ‘currency note’ is interpreted to mean ‘Indian currency note’, the width of the expression is being’ narrowed down or cut down. Apart from the fact that the court does not possess any such power, what is the purpose to be achieved by doing so? A court can make a purposeful interpretation so as to ‘effectuate’ the intention of the Legislature and not a purposeless one in order to ‘defeat’ the intention of the legislators wholly or in part. When the court (apparently in the course of an exercise in interpretation) shrinks the content of the expression. ‘currency note’, to make it referable to only ‘Indian currency note’, it is defeating the intention of the Legislature partly inasmuch as the court makes it lawful to counterfeit notes other than Indian currency notes. The manifest purpose of the provision is that the citizens should be protected from being deceived or cheated. The citizens deal with the transact business with each other through the medium of currency (which expression includes coins as also paper currency that is to say currency notes). It is inconceivable why the Legislature should be anxious to protect citizens from being deceived or cheated only in respect of Indian currency notes and not in respect of currency notes issued by other sovereign powers. The purpose of the legislation appears to be to ensure that a person accepting a currency note is given a genuine currency which can be exchanged for goods or services and not a worthless piece of paper which will bring him nothing in return, it being a counterfeit or a forged currency note. Would the legislature in its wisdom and anxiety to protect the unwary citizens extend immunity from being cheated in relation to Indian currency notes but show total unconcern in regard to their being cheated in respect of currency notes issued by any foreign State or sovereign power ? In the modern age a tourist from a foreign country

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may bring from his own country into Indian currency to the extent permissible under the law in India. So also he may obtain foreign currency in exchange of Indian currency whilst in India provided he does so to the extent permissible by the Foreign Exchange Regulation Act, 1973. 10.21.27 Specimen Signatures in open court

The first respondent remained ex parte and the second respondent contended before the trial court that he was a party to the transaction and that he had not executed any letter of guarantee. According to him he accompanied the first respondent to the appellant bank with a salary certificate and that he had not signed any document. Thus according to him the alleged deed of guarantee was only a forged one. Thus he denied the liability to pay the amount as claimed in the plaint. After framing necessary issues the trial court examined P.W. 1 and D.W. 1 and marked Exits. A-1 and A-12. After hearing both sides the lower court considered the matter and held that the second respondent was not liable. Thus the suit was decreed only against the first respondent with costs. As the liability of the second respondent was exonerated, this appeal is filed to the plaintiff bank. Counsel for both sides were heard. According to the learned counsel appearing for the appellant the second respondent is also liable for the suit claim in view of the letter of guarantee. In view of the fact that D.W. 1 admitted _ his signature in Ext. A-12 acknowledgment and in view of the fact that no reply notice was sent by the second respondent, it was argued that the second respondent was liable in view of Ex. A-6 deed of guarantee executed by the second respondent on 6-8-1979. It was also argued that the lower court was not correct in holding that the signature of the second respondent differ from the admitted signatures. It was also argued that the lower court should not have compared the signatures without calling an expert’s opinion. Thus the point arising for consideration is as to whether the lower court was correct in exonerating the liability of the second respondent. The first respondent was drawing amounts from the appellant Bank at M.G. Road Branch, Trivandrum under cash credit facility for the purpose of his textile firm called Sajitha Textiles. Ext. A-1 is the pronote and Ext. A-2 is the deed of hypothecation executed by the first respondent for an amount of Rs. 20,000 on 12-8-1978, Ext. A-3 was the letter of guarantee executed by the second respondent on 12-8-1978. When the amount came to Rs. 30,000 Ext. A-4 fresh

pronote was executed by the first respondent and Ext. A-5 agreement of hypothecation was executed afresh by the first respondent on 6-8-1979. Ext. A- 6 is the fresh agreement of guarantee executed by the second respondent on 6-8-1979. Later when the amount came to Rs. 40,000/- the first respondent executed Ext. A-7 pronote and Ext. A- 8 agreement of hypothecation on 22-4-1981. The first respondent did not contest the suit. Thus he has admitted his liability. But the second respondent contended that he had not executed Exts. A-3 and A-6 agreement of guarantee. On a perusal of the signatures in Exts. A-3 and A-6 with that of the admitted signature in the summons and vakalatnama, the lower court held that the signatures differ. Thus the lower court

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exonerated the liability of the second respondent. The case of the second respondent was that he went along with the first respondent to the plaintiff bank along with Ext. A-9 salary certificate and that he did not sign any documents. In view of the denial of the signature, the burden of proof was on the plaintiff to prove that the signature in Exts. A-3 and A-6 was that of the second respondent. In the absence of an expert opinion it was only just and proper on the part of the lower court to compare the signatures with the admitted signature. Thus the lower court held that the signatures differ in Exts. A-3 and A-6 from the admitted signatures of the second respondent. As the expert's opinion was not called for at the instance of the plaintiff, the learned counsel appearing for the appellant was not justified in blaming the lower court for comparing the signature with the admitted signature. It is true that reasons were not stated by the lower court to show how the signatures differ. Even if Exts. A-3 and A-6 were signed by the second respondent, it is to be noted that Ext. A-6 was dated 6-8-1979, whereas Ext. A-3 is of an earlier date, i.e., 12-8-1978. Under

section 73 of the Indian Evidence Act the court can compare the signature in the disputed documents with the admitted signatures. The learned counsel appearing for the appellant argued that the lower court ought to have directed the second respondent to put his signature in a blank paper in open court and then ought to have compared the signature with the admitted signature. But in view of the admitted signature in Ext. A-12 acknowledgement, summons and Vakalatnama, there was no necessity to get a further signature of the second respondent in open court. Further, to prove signature under section 73 of the Indian Evidence Act, to get a signature of the second respondent in open court was only directory and it was not mandatory. When the court is satisfied that there are admitted signatures of the second respondent available in court, there was no necessity to get another signature of the second respondent in open court. Even if Ext. A-6 is the letter of guarantee executed by the second respondent the suit ought to have been filed within the period of three years from the date of Ext. A-6. Ext. A-6 is dated 6-8-1979 and the suit is not filed against him within the period of three years from 6-8-1979. The period of limitation is three years coming under article 55 of the Limitation Act. The decision reported in United Commercial Bank v. B.M. Mahadeva Babu' held that the suit against the guarantor for enforcement of guarantee should be filed within the period of three years from the date of guarantee as the period of limitation is as prescribed by article 55 of the Indian Limitation Act. As the suit was not filed within the period of three years from the date of Ext. A-6, the appellant cannot enforce the guarantee against the second respondent. For that reason the appellant cannot get a decree against the second respondent. In this context the learned counsel appearing for the appellant argued that the question of limitation was not taken up by the second respondent in his written statement or before the lower court. But a question of law can be taken up even before the appellate court. Thus it is futile to contend that the question of limitation cannot be urged by the second respondent before this court. Under article 55 of the Indian Limitation Act the 1. AIR 1992 Karn 294.

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period fixed is three years. Thus as the suit was not filed within the period of three years from the date of Ext. A6, the second respondent is not liable for the suit claim. Thus, I do not find any reason to interfere with the judgment and decree of the lower court. For the above reasons the judgment and decree of the lower court are confirmed and this appeal is dismissed. In the peculiar circumstances, both

parties are to bear their costs.' 10.21.28 Indefinite expert opinion Since, the appellant has denied the authorship of those letters and claimed that the same have been fabricated, it was desirable for the prosecution to examine Ms. Vani in connection with those letters. The appellant is alleged to be the author of the letters more particularly letters E. P-I, P-6, P-7 and P-9. From the opinion of P.W. 3, the handwriting expert, prosecution has sought to

corroborate the evidence of P.W. 1 regarding the authorship of those letters. The opinion of P.W. 3, the Assistant Director in the State Forensic and Science Laboratory, Hyderabad, in our view cannot be said to be of a clinching type to attribute the authorship of those letters to the appellant. P.W. 3 during his statement deposed: In my opinion (1) there are similarities indicating common authorship between the red enclosed writings marked as section 12 to section 23 and the red enclosed writings marked as Q-4 to Q-7. But no definite opinion can be given on the basis of the present standards. (2) No opinion can be given on the authorship of the red enclosed signatures and -writings marked as Q-1 to Q-3 and Q-8 to Q-15 on the

basis of present standards.

The expert further opined: When all the writing characteristics are considered collectively, they led to the conclusion that there are similarities indicating common authorship between the standard writings marked S-12 to S-25 and the questioned writings marked Q-4 to Q-7. But no definite opinion can be given on the basis of the present standards. Extensive admitted writings are required for offering definite opinion.

During his cross-examination P.W. 3 admitted: Question. From the available standards you cannot say that the signatures of Exs. P7 and P-9 is of the same person who wrote Exs. P-7 and P-9. Answer. We can compare truly like signatures with signatures and writings with writings and not a signature with a writing. Thus, the evidence of P.W. 3, is not definite and cannot be said to be of a

clinching nature to connect the appellant with the disputed letters. The evidence of an expert is a rather weak type of evidence and the courts do not generally

consider it as offering ‘conclusive’ proof and, therefore, safe to rely upon the

same without seeking independent and reliable corroboration. In Magan Bihari Lal v. State of Punjab?, while dealing with evidence of a handwriting expert, this court opined (at p. 1093): 1. New Bank of India v. Sajitha Textiles, AIR 1997 Ker 201. 2. AIR 1977 SC 1019.

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We think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this court in Ram Chandra v. State of Uttar Pradesh',that it is unsafe, to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This court again pointed out in Ishwari Prasad Mishra v. Md. Isa, AIR 1963 SC 1728, that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar v. Subodh Kumar’, where it was pointed out by this court that expert’s evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of Madhya Pradesh®, and it uttered a note of caution pointing out that it would be risky to find a conviction solely on the evidence of a handwriting expert before acting upon such evidence, the court must always try to see whether it ts corroborated by other evidence, direct or circumstantial. We are unable to agree, in the established facts and circumstances of this case, with the view expressed by the courts below that P.W. 1 is a competent witness to speak about the handwriting of the appellant and that the opinion of P.W. 3 has received corroboration from the evidence of P.W. 1. P.W. 1 admittedly did not receive any of those letters. He had no occasion to be familiar with the handwriting of the appellant. He is not a handwriting expert. The bald

assertion of P.W. 1 that he was “familiar” with the handwriting of the appellant and fully “acquainted” with the contents of the letters, admittedly not addressed

to

him,

without

disclosing

how

he

was

familiar

with

the

handwriting of the appellant, is difficult to accept. Section 67 of the Evidence Act enjoins that before a document can be looked into it has to be proved. Section 67, of course, does not prescribe any particular mode of proof. Section 47 of the Evidence Act which occurs in the chapter relating to ‘relevancy of facts’ provides that the opinion of a person who is acquainted with the handwriting of a particular person is a relevant fact. Similarly, opinion of a handwriting expert is also a relevant fact for identifying any handwriting. The ordinary method of proving a document is by calling as a witness the person who had executed the document or saw it being executed or signed or is otherwise qualified and competent to express his opinion as to the handwriting. There are 1. AIR 1957 SC 381. 2. AIR 1964 SC 529. 3. AIR 1967 SC 1326.

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some other modes of proof of documents also as by comparison of the handwriting as envisaged under section 73 of the Evidence Act or through the evidence of a handwriting expert under section 45 of the Act, besides by the admission of the person against whom the document is intended to be used. The receiver of the document, on establishing his acquaintance with the handwriting of the person and competence to identify the writing with which he is familiar, may also prove a document. These modes are legitimate methods of proving documents but before they can be accepted they must bear sufficient strength to carry conviction. Keeping in view the inconclusive and indefinite nature of the evidence of the handwriting expert P.W. 3 and the lack of competence on the part of P.W. 1 to be familiar with the handwriting of the appellant, the approach adopted by the courts below to arrive at the conclusion that the disputed letters were written by the appellant to Ms. Vani on the basis of the evidence of P.W. 1 and P.W. 3 was not proper. The doubtful evidence of P.W. 1 could neither offer any corroboration to the inconclusive and indefinite opinion of the handwriting expert P.W. 3 nor could it receive any corroboration from the opinion of P.W. 3. We are not satisfied, in the established facts and circumstances of this case, that the prosecution has established either the genuineness or the authorship of the disputed letters allegedly written by the appellant from the evidence of P.W. 1 or P.W. 3. The courts below appear to have taken a rather superficial view of the matter which relying upon the evidence of P.W. 1 and P.W. 3 to hold the appellant guilty. We find it unsafe to base the conviction of the appellant on the basis of the evidence of P.W. 1 or P.W. 3 in the absence of substantial independent corroboration, internally or externally, of

their evidence, which in this case is totally wanting.’ 10.21.29 Judge as Handwriting Expert The entire set of charges against the accused, including the conspiracy charge, basically rest on the documentary evidence. To that extent, the first

necessary ingredient is that the incriminating documents in question which are attributed to the accused must be held to have been proved. This proof involves the identity and proof of the handwriting and more importantly identity and proof of the signatures. As far as both these aspects are concerned, it is pointed out by Mr. Nakhwa that there is a serious lacuna in the present investigation. He stated that there was no difficulty whatsoever for the Central Bureau of Investigation to have obtained admitted handwritings and signatures of the accused which was for some reason never done. At a very late stage, obviously after the investigation was more or less complete, it did apparently occur to the concerned authorities that it was necessary to fix the identity of the documents and their nexus with the concerned accused who had been placed on trial. For this purpose, the prosecution adopted a wholly unsatisfactory procedure and a strange one. A host of witnesses have been summoned, all of whom fall into two

broad categories. They are all persons who have retired from the services of the Western Railway several years earlier. The first category of these witnesses claim that they knew the particular accused in so far as they were working with 1. S. Gopal Reddy v. State of Andhra Pradesh, 1996 Cri LJ 3246.

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them in the department. The second category of witnesses claims that at some point of time or the other, the concerned accused were subordinates to them. This makes little difference because these persons admitted that they have retired from service several years earlier and it was demonstrated by Mr. Nakhwa that one of these persons has retired in the year 1971 and that he is solemnly deposing in evidence in the year 1983. The time frame is more or less common in the case of the witnesses and it is quite amazing that all of them uniformly depose in evidence that they do recall that during the years that they were in service, they had occasion to see the handwriting and signatures of a concerned accused and that their eye-sight and memory is so precise and so sharp and so reliable that they are able to tell the court that the handwriting and signatures on documents shown to them in court belonged to a particular accused. Mercifully, the learned Special Judge himself, in the judgment, has

realised the weakness of evidence of this type, but the learned Special Judge has got over it by following an equally unsatisfactory procedure. The learned Special Judge states that he has conveniently resolved the entire challenge of the defence under this head by taking out the Vakalatnamas that were filed by the accused before the court and has satisfied himself from the signatures appearing thereon that the documents were signed by the accused. It is quite true that in a given case for the purposes of satisfying itself the court may even look at the admitted signatures on a Vakalatnama or documents filed before the court for the purpose of resolving a minor controversy. In the present case, however, the lacuna was far more substantial insofar as the prosecution has not discharged the basic burden cast on it and that lacuna, to my mind, could not have been cured by the learned Special Judge coming to the assistance of the Prosecution by stating that the infirmities pointed out by the defence have been undone through the comparison of the signature on the Vakalatnamas before the

court, which still leave out the handwritings.

:

10. Mr. Lambay, the learned Additional Public Prosecutor, has stoutly defended the procedure adopted by the Prosecution by pointing out that under section 73 of the Evidence Act, it is quite permissible for a witness to identify a handwriting and signatures with which he is familiar. Mr. Lambay has also pointed out that if at all there was any shadow of doubt, as an additional precaution and safety measure that the learned Special Judge has resolved the controversy by making a comparison with the Vakalatnamas that were filed in the court. Unfortunately, this submission is unacceptable insofar as it would be a dangerous precedent to permit identification and proof of this type, and in the present case, it suffers from an inherent weakness that makes the method of proof wholly unsatisfactory. To this extent, the lacuna pointed out by Mr. Nakhwa with regard to the entire set of documents proved by the prosecution by this method will have to be upheld and it will have to be, consequently, held that none of the documents in question can be said to have

been proved.!

1. Vishwa Nath Mahadev Kar Khanis v. State of Maharashtra, 1991 Cri LJ 3150.

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10.21.30 Court can act as Handwriting Expert It-has been constantly laid down by this court that where a case rests squarely on circumstantial evidence the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See: Hukam Singh v. State of Rajasthan, AIR 1977 SC 1063; Eradu v. State of Hyderabad, AIR 1956 SC 316; Earabhadrappa v. State of Karnataka, AIR 1983 SC 446; State of Uttar Pradesh v. Sukhbasi, AIR 1985 SC 1224; Balwinder Singh v. State

of Punjab, AIR 1987 SC 350; Ashok Kumar Chatterjee v. State of Madhya Pradesh, AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab', it was laid down that where the case depends upon the conclusions drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. In Padala Veera Reddy v. State of Andhra Pradesh2, it was laid down that when

a case rests upon circumstantial evidence, such evidence must satisfy the following tests:— 4 (1) the circumstances from which an inference ofguilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with’the guilt of the accused but should be inconsistent with his innocence. In State of Uttar Pradesh v. Ashok Kumar Srivastava’, it was pointed out that

great care must be taken in evaluating circumstantial evidence and if the ; evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. What is important is that the possibility of the conclusions being consistent with the innocence of the accused must be ruled out altogether. 1. AIR 1954 SC 621. 2. 1991 SCC (Cri) 407: AIR 1990 SC 79. 3. (1992) 2 SCC 86: 1992 Cri LJ 1104: 1992 AIR SCW 640.

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Some dispute appears to have been raised before the High Court as also before us that the hotel records should not be relied upon to indicate that the appellant had stayed in “Ashoka Lodge”: Ajit (P.W. 2), room-boy of the “Lodge”, in his statement on oath has given out that the appellant had come with his wife and child to the “Ashoka Lodge” and had taken one room on the ground-floor for his stay. The necessary entry [Ex. P-1(a)] was made by the Manager of the “Lodge” in the “Register of Lodgers”. The appellant had put his signature on the Register which is Ex. P-1(b). The appellant, his wife and the child had been taken by the room boy to Room No. 113 where he also supplied an extra bed. The Hotel Manager though mentioned as a witness in the charge-sheet was not examined as he had already left the service of the “Lodge”. These facts stand proved by the statement of the roomboy and the High Court has already recorded a finding that the appellant had stayed in Room No. 113 of the “Ashoka Lodge”. The original records were also placed before us and we have perused those records. Since learned counsel of the appellant contended that the appellant had not stayed in the “Ashoka Lodge”, we looked into the “Register of Lodgers”. It contains the relevant entry against which signature of the appellant also appears. His signature also appears on the Vakalatnama filed by him in this appeal. In the presence of the learned counsel for the parties, we compared the signature of the appellant on the Vakalatnama with the signature in the “Register of Lodgers”. A mere look at the signatures was enough to indicate the similarity which was so apparent that it required no expert evidence. This comparison was done by us having regard to the provisions of section 73 of the Evidence Act which provides as under:

73. Comparison of signature, writing or seal with others admitted or proved.— In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.

The court may direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by such person. The section consists of two parts. While the first part provides for comparison of signature, finger impression, writing, etc., allegedly written or made by a person with signature or writing, etc., admitted or proved to the satisfaction of the court lo have been written by the same person, the second part empowers the court to direct any person including an accused, present in court, to give his specimen writing or fingerprints for the purpose of enabling the court to compare it with the writing or signature allegedly made by that person, The section does not specify by whom the comparison shall be made. However, looking to the other provisions of the Act, it is clear that such comparison may

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either be made by a handwriting expert under section 45 or by anyone familiar with the handwriting of the person concerned as provided by section 47 or by the court itself. As a matter of extreme caution and judicial sobriety, the court should not

normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under section 73 of the Act [See State (Delhi Administration) v. Pali Ram'. We have already recorded above that on the comparison of the signature in the “Register of Lodgers” with the appellant’s signature on the Vakalatnama, we have not found any dissimilarity and are convinced that the appellant himself had signed the “Register of Lodgers” in token of having taken Room No. 113 in “Ashoka Lodge” on rent wherein he had stayed with his wife and the child. On an overall consideration of the matter, we are of the opinion that the High Court, in reversing the judgment of the trial court, had fully adhered to the principles laid down by this court in various decisions and there is no infirmity in its judgment. _ The circumstances, the conduct and behaviour of the appellant conclusively establish his guilt and no amount of innovative steps by him including sporting a beard and latter shaving off the beard and the head could conceal the offence or his identity. It was rightly remarked by the famous Urdu poet. Amir Meenai in a couplet:— Qareeb hai yaro jo Roz-i-Mahshar

Chhupey ga kushton ka khoon keonkar Jo chup Rahegi Zaban-i-Khanjar Lahoo Pukarega Aastin ka Translated into English, it will mean:— On the day of judgment, you will not be able to conceal the killing of innocents. If the sword will keep silent, the blood-stains on your sleeves will reveal your guilt. For the reasons stated above, we find no merit in the appeal which is dismissed. The appellant is on bail. His bail bonds are cancelled. He shall be taken into custody forthwith to serve out the life sentence. Appeal dismissed.” 10.21.31 Comparison of Signatures without the aid of Expert As a sample of oral evidence, our attention was invited to the evidence of

P.W. 58. P.W. 58 in the Chief Examination has stated as follows: I cast my vote in Mavilayi polling station. The polling station

Cherumavilayi

U.P.

School.

(Ext. P-711

marked)

1. AIR 1979 SC 14: (1979) 2 SCC 158. 2. Ajit Savant Majavi v. State of Kerala, AIR 1997 SC 3255.

Ext. P-/11

was in counterfoil

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confronted to the witness and the witness denies the signature (Ext. P-712 marked). Ext. P-712 counterfoil shown to the witness. The signature in that also is denied by the witness. Ex. P-891 declaration shown to the witness. Witness admits the signature. Voter No. 142 Utheranchalil K.K. Chandia w/o Chandran of polling station No. 69 is myself. I have still doubt whether Ext. P-712 is signed by me. I am certain that the signature found in Ext. P-711 is not my signature. On the above evidence the conclusion of the learned Judge is as follows:

According to P.W. 53 she had cast only one vote No. 142. The corresponding counterfoil is marked as Ext. P-711. When this was confronted to the witness she denied the signature therein. Ext. P-712 is the counterfoil corresponding to voter No. 239. The signature is Ext. P-711 and Ext. P-712 are almost similar. There is slight variation. But that does not affect the petitioner's case, as the signature in Ext. P-712 is exactly similar to the signature put by the witness in the deposition. Therefore, it is clear the voter No. 142 and 239 in Ext. P-60 is one and the same person and that voter has cast more than one vote. In the result, I declare that vote cast against counterfoil No. 070975 (Ext. P-711) of polling station No. 69 and the vote cast against counterfoil No. 070258 (Ext. P-712) polling station No. 69 are void. In another instance the learned Judge held as follows: The signature of the witness in the deposition does not tally with the signature found in these two counterfoils. On a comparison of the signature in Ext. P-713 and P-714 I have little doubt that the same witness has cast two votes. Therefore, I declare that vote cast against counterfoil No. 070653 (Ext. P-713) of polling station No. 69 and the vote cast against counterfoil No. 070309 (Ext. P-714) of polling station No. 69 are void. While appreciating the evidence of P.W. 69 the court held as follows: P.W. 69 admits that he is voter No. 1392 in Ext. P-53 electoral roll. The witness also admits that voter No. 563 in Ext. P-47 refers to him. According to this witness he had cast vote in polling station No. 53. The two counterfoils were shown to the witness and he denied both. In the cross-examination, however, he stated that he has no connection with Kadampeth house and that voter No. 1392 in Ext. P-53 is not himself. The signatures in the two counterfoils are not closely similar. So it cannot be said that both votes were cast by P.W. 69. The signature in Ext. P-762 has got similarity with the signature of the witness in the deposition. So the vote against Ext. P-761 must have been cast by some other person. Therefore, | hold that the vote cast against counterfoil No. 062682 (Ext. P-761) in polling station No. 61 reads invalid vote. The evidence of P.W. 146 reads as follows:

My father’s name is Chathukutty. My house is Challivalappil. My mother’s name is Lakshmi and I am a driver by profession. Ext. P-50. Sl. No. 192 Balakrishnan Chathukutty aged 30 is myself. Sl. No. 47 in Ext. P-103. Balakrishnan Chathukutty Nambiar is not myself. My father is not Chathukutty Nambiar. (Counterfoil Nos. 12084 and 056691 are marked as Ext, P-936 and 937). Witness denies both the signatures. I have cast only one vote.

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Cross-examination by Ist respondent's counsel: In Ext. P-50 against Sl. No. 642 the house No. shown is 245. It is not my house number. I have no connection with the house by name Krishnalayam. Sl. No. 642 is of Krishnan Nambiar. I am a member of Thiyya community. (Witness says that he is in possession of driving licence and shown the same before court and his name has been written there as C.V. Balakrishna. The driving licence also contains a photograph of the witness.

On the above evidence, the High Court found as follows: P.W. 146 Balakrishna admits that his father’s name is Chathukutty and his mother’s name is Lakshmi. He also admits that he is voter No. 1192 in Ext. P-50 electoral roll, but he denies that he is voter No. 47 in Ext. P-103 electoral roll. The voter No. 47 is one Balakrishnan Chathukutty Nambiar and according to this witness his father is not Chathukutty Nambiar and that he belongs to Thiyya community. But it is pertinent to note that in Ext. P-50 voter No. 1192 is shown as resident of house No. 245, in the original voters’ list of polling station No. 50, house No. 245 is described as Krishnalyam and voter No. 642 is one T. Krishan Nambiar. P.W. 146 is not in a position to explain as to how his name happened to be included as a resident of the house of Krishnan Nambiar. So even in the admitted entry there is voter No. 1192 in Ext. P-50. The corresponding counterfoil is marked as Ext. P-93. Even though the witness denies his signature therein, that is to be taken as his admitted signature as it corresponds with his admitted entry. The signature in Ext. P-937 is strikingly similar to the signature in Ext. P-36 counterfoil. So, it is clear that the person who put the signature in Ext. P-937 must have put the signature in Ext. P-936 also. Therefore, it is proved that there is not only similarity in the name but there is close similarity between the two signatures also. So. I hold that P.W. 146 had cast two votes. In the result, I declare that the votes cast against counterfoil No. 120847 (Ext. P-936) in polling station No. 115 and the vote cast against counterfoil No. 056691 (Ext. P-937) in polling station No. 56 are void. Likewise while commenting on P.W. 149 the court held as follows:

According to witness she had cast, vote in polling station No. 91 as voter No. 683. The corresponding counterfoil, marked as Ext. P-942, was shown to the witness. She denied the signature therein. Ext. P-943, the counterfoil of voter No. 1143 in Ext. P-78 was shown to the witness. She denied that signature also. But on a bare perusal of these two signatures it can be seen that there is close resemblance between the two. The similarity in name and the close resemblance of the two signatures in the counterfoils would clearly established that P.W. 149 had cast two votes. In the signature in Ext. P-942 and 943 the first letter ‘K’ is’ so conspicuous and the style of writing and the figure of the signatures are exactly similar. Under the above circumstances, I hold that P.W. 149 had cast two votes. Therefore, the vote cast against counterfoils No. 093440 (Ext. P-942) in polling station No. 91 and the vote cast against counterfoil No. 091398 (Ext. P-943) in polling station No. 89 are declared void. Similar are the cases rendering 65 witnesses at least. This is not seriously disputed by the learned counsel for the first respondent. Though the signatures are

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challenged, the learned Judge overruled the objection raised by the learned counsel for the appellant herein that unless the disputed signatures are compared with the admitted signatures, the same cannot be taken into account proceeded to compare the signatures by himself and found that they are either similar or slightly varying. It appears that the learned Judge has decided the question of void and invalid votes on insufficient materials and evidence in the case. Majority of the witnesses denied that they have voted more than once and they have also denied their signatures in the counterfoils. Under such circumstances, the learned Judge could have summoned documents containing admitted signatures for comparison by an expert and also by comparing them himself. Instead the learned Judge understood the hazardous task of comparing hundreds of disputed signatures which are not having individual characteristics to set aside the election of a candidate, the appellant herein. The learned Judge in the course of the judgment has observe as follows: Most of the witnesses either denied their signatures or expressed their inability to identify their signatures, in the case of some well-educated persons when counterfoils containing the signature were shown to them they stated that they could not identify the signatures. Every reasonable prudent person would be able to identify his signature whenever the signature is shown to him.

Notwithstanding the above fact, namely, the learned Judge while doubting the testimony of the witnesses, instead of confronting them in a legal way to get the truth, jumped to his own conclusion. The learned Judge in the course of appreciating the scope of section 73 of the Evidence Act and having given a finding that under section 73 of the evidence Act a disputed signature could be compared only with the admitted signatures, proceeded to compare the signatures found in the counterfoils to find out whether both the signatures were to be by the same person. On the peculiar facts of this case, the learned Judge erred in taking upon himself the task of comparing the disputed signatures on the counterfoils without the aid of an expert or the evidence of persons conversant with the disputed signatures. Therefore, the approach made by the learned Judge is not in conformity with the spirit of section 73 of the Evidence Act. Though the

rulings of this court in State (Delhi Admn.) v. Pali Ram! and Fakhruddin v. State of Madhya Pradesh*, were brought to his notice, the learned Judge proceeded to compare the disputed signatures by himself and decided the issue. While doing so, the learned Judge observed as follows: So all these witnesses are in the habit of occasionally putting their signature. Strangely enough most of the witnesses either denied their signature or expressed their inability to identify their signature. Even in the case of some well-educated persons counterfoils containing the signatures were shown to them. They stated that they could not identify the signatures. Every reasonable prudent person 1. AIR 1979 SC 14. 2. AIR 1967 SC 1326.

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would be able to identify his signature whenever the signature is shown to him. It is clear that these witnesses denied their signatures or failed to identify the signature with a definite purpose that at least one signature should not be taken as the admitted signature so as to make a comparison with the denied signature, it is also possible that the witnesses who had cast more than one vote pretended that they could not identify any of the signatures to make believe that they had not cast more than one vote. The denial of the signatures and failure of these witnesses to identify their own signatures is to be viewed in the background of similarity of the signatures found in the various counterfoils.

Again the learned Judge observed as follows:— It is true that under section 73 of the Evidence Act a disputed signature could be compared only with the admitted signature or signature proved to the satisfaction of the court to have been written or made by that person. Reliance was placed on the decision reported in State (Delhi Admn.) v. Pali Ram, AIR 1979 S C 14,

and contended that it is not advisable that a Judge should take up the task of comparing the admitted handwriting with the disputed one to find out whether the two agree with each other and the prudent course is to obtain the opinion and assistance of an expert. This opinion was expressed by the Supreme Court in a criminal case while considering the question whether the accused had committed the offence of forgery and cheating. In Fakhruddin v. State of Madhya Pradesh, AIR 1967 S C 1326, the Supreme Court observed that comparison of the handwriting by the court with the other documents not challenged as fabricated, upon its own initiative and without the guidance of an expert is hazardous and inconclusive. These observations were made in the facts and circumstances of such case. But, in the instant case, comparison of the signature found in the counterfoil are made to ascertain whether both signatures were put by the same person.

In the instant case, several witnesses who are alleged to have exercised their franchise more than once admitted that their names have been included in the electoral roll. They would say that they cast only one vote. In cases where their names are entered more than once in the electoral roll these witnesses admitted one entry and denied the other. The counterfoil corresponding to the admitted entry in the electoral roll must contain the signature of the voter. Even though this signature has also been denied by the witness or rather failed to be identified by the witness, it can safely be taken as the admitted signature of the witness. That signature could be very well compared with the signature appearing in the disputed counterfoil. So the standard of strict proof can be insisted only in the election petition wherein the election is sought to be set aside on the ground of corrupt practice. In the instant case it can only be said that standard of proof should be of high nature, as an election petition is not liable to be set aside on vague or inaccurate evidence, and the court must uphold an election when two different views are reasonably possible, from the evidence adduced in the case. As already pointed out by me the close similarity in the signature in the counterfoils is also a strong proof to show that the entry related to the same

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person. It is also important to note that most of the witnesses denied their signatures on both the counterfoils. They could not identify their own signature and it is also clear that many of these witnesses changed their signatures and put different signatures in the deposition. In some cases the witnesses were asked to give specimen signatures and these specimen signatures were taken in open court and they are marked as exhibits in the case. The specimen signatures in many cases do not tally with the signatures found in the counterfoil of the voter, who admittedly cast his vote as voter against a particular serial number. With this broad outline in the evidence I propose to consider the evidence of each witness who allegedly cast vote more than once. It is on the basis of such conclusion the learned Judge arrived at the finding that 269 votes were void as one voter has voted twice. As pointed out earlier at least in the cases

of 65 such witnesses

(that means

30 votes) where

the

signatures are not admitted the findings of the learned Judge cannot be | supported for the reasons given earlier. If those 130 votes which were declared void, and found polled in favour of the appellant herein are taken into account in his favour, certainly the appellant must be found to have secured more votes than the first respondent herein. The learned Judge in our view was not right either in brushing aside the principles laid down by this court in State (Delhi Admn.) v. Pali Ram’, on the ground that it was not criminal case or taking upon himself the hazardous task of adjudicating upon the genuineness and authenticity of the signatures in question even without the assistance of a skilled and trained person whose services could have been easily availed of. Annulling the verdict of popular will is as much a serious matter of grave concern to the society as enforcement of laws pertaining to criminal offences, if not more. Though it is the province of the expert to act as Judge or jury after a scientific comparison of the disputed signatures with admitted signatures, the caution administered by the court is to the course to be adopted in such situations could not have been ignored unmindful of the serious repercussions arising out of the decision to the ultimately rendered. To quote, it has been held in State v. Pali Ram: The matter can be viewed from another angle also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is, therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert. The necessity for adhering to the said sound advise and guidance is all the more necessary in a case where hundreds of signatures are disputed and the striking dissimilarities noticed by the court at the time of trial of the Election Petition. 1. AIR 1979 SC 14.

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The learned counsel appearing for the first respondent was not able to convince us that the learned Judge was right in comparing the signatures himself at any rate in the peculiar facts and circumstances of the case and rendering the findings against the appellant herein. As we are satisfied on the peculiar facts of this case also that the learned Judge was not right in deciding hundreds of the disputed signatures by comparing the counterfoils by himself to declare the votes as void. We need not go into other arguments advanced before us. As we find that at least 130 votes are validly polled in favour of the appellant for the reasons given earlier then he must be held to have secured 43 votes more than then first respondent herein.

In the result, we hold that the learned Judge was not right in declaring the election of the appellant as void and declaring the first respondent as duly elected. Accordingly, the appeal is allowed and the Election Petition is

dismissed with costs throughout.! 10.21.32 Court should use Expert Help After the arguments were concluded

on 6-10-1989 and judgment was reserved, on my careful comparison of the signatures of P.W. 2 found in Exs. D-3 to D-5 (disputed) and his admitted signatures in Exs. P-2, P-4 and in his deposition in court, I was of the opinion that it was better that a Handwriting . Expert offered his opinion regarding the admitted and disputed signatures of P.W. 2 to facilitate arriving at a safe conclusion with regard to the identity of the signatures in Exs. D. 3 to D. 5, which formed the sheet-anchor of the defence case. On 24-10-1989 I heard the defence counsel as well as the counsel for the respondent and basing my view on the principle of law laid down by the Apex

Court in State (Delhi Administration) v. Pali Ram, 1 directed that the disputed writings of P.W. 2 in Exs. D-3 to D-5 and the admitted writings of P.W. 2 in his court deposition, Exs. P-2 and P-4 be forwarded to the Handwriting Expert attached to the State Forensic Laboratory for comparison and opinion. Accordingly, the aforementioned documents were sent to the Handwriting Expert, who by his report dated 4-12-1989, offered his opinion. On 7-12-1989 on the plea made by the learned counsel for the defence as well as the prosecution, I directed issue of summons to A.S. Ramu; Scientific Assistant Grade-1, Forensic

Science Department, Madras-4, to appear before court with all necessary material to give evidence in respect of his opinion offered in D.O.C. No. 359 of 1989 dated 4-12-1989 and T.No. 7220/89 D.O.C. 359/89, dated 4-12-1989 on 1312-1989. I also directed the office to take Xerox copies of the opinion of the Expert and furnish those copies to the prosecution as well as the accused on or before 11-12-1989. On 13-12-1989 the Expert was examined in court and both the parties were afforded an opportunity to question the Expert. The disputed signatures in Exs. D-3 to D-5 were marked by him as Q-1, Q-2 and Q-3 respectively. The admitted 1. P. Bharathan v. K. Sudha Karan, AIR 1996 SC 1140. 2. AIR 1979 SC 14: 1979 Cri LJ 17.

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signature of P.W. 2 in Ex. P-2 was numbered by him as S-1. The admitted signature of P.W. 2 on the reverse of Ex. P-4 was marked as S-2. The admitted signatures of P.W. 2 in his deposition before IX Additional Special Judge, in seven sheets, were marked as S-3 to S-15. The deposition itself was marked as Ex. C-1 before this court. Out of the seven sheets, the first six sheets contain the signature of P.W. 2 on either side, while in the last sheet, it is found only on one

page, where the deposition has ended, the other side of the paper being blank. The Expert deposed that he had examined the above signatures found in Q-1 to Q-3 and S-1 to S-15 carefully and that the person who wrote the red enclosed

signatures stamped and marked as section 1 to section 15, did not write the red enclosed signatures similarly stamped and marked as Q-| to Q-3. The reasoning sheet enclosed by him was marked as Ex. C-2. The enlargements of the signatures of P.W. 2 (admitted as well as disputed) were marked as Ex. C-3. The opinion expressed by him in court, forms part of his report as well, which is included in Ex. C-2. The Expert has deposed that he has been giving evidence in courts for the last 5 years and he has offered his opinion in more than 100 cases. The learned counsel for the appellants, strenuously crossexamined him on various aspects, and in ultimate analysis, his opinion was that the variations pointed by the defence were only natural variations and were not distinctly different. He deposed that in Ex. C-2, one was the opinion and the other was the reasoning. When he was questioned about the signature of the Scientific Officer in the report, he stated that he (A.S. Ramu) analysed the

admitted and disputed signatures and the Scientific Expert appended his signature after seeing the analysis done by him, because it was the procedure in the Department, that a Gazetted Officer had to put his signature. He was questioned about the quality of paper, pen pressure, different kinds of movements, pen lifts etc. He conceded that in the report he had only given the differences in the admitted and the disputed signatures and had not given the similarities which, however, had been taken into consideration, when the report

was given. Usually, similarities were not noted down. He categorically replied that a person cannot forge his signature, though he could disguise it. He clarified it, by stating that if one wanted to disguise, he can do it in a different way. Forgery meant, according to him, trying to put the genuine signature of the man concerned, deceptively. It is not a case of P.W. 2 attempting to forge his own signature, since the man did not write in the usual manner he does. To a court question, he definitely stated that from a study of S-1 to S-15 and Q-1 to Q-3, the persons who had put the signatures S-1 to S-15 had not put in differently in Q-1 to Q-3.

After the recording of the evidence of the court witness, I again heard the submissions of the prosecuting and the defence counsel. They referred to me, passages from “Handwriting and Thumb-print Identification and Forensic Science by H.R. Hardless, 1970 Edition as well as from Metha’s Treatise on Handwriting Identification and Finger Prints. They also referred to certain decisions of the Supreme Court on the acceptability of otherwise of the opinion of the Handwriting Expert, while drawing my attention to the relevant recorded evidence.

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As far as the evidence of the Handwriting Expert is concerned, the law is settled that such opinion evidence, cannot be stated to be conclusive. The court is competent to compare the disputed and admitted writings, even without examining an Expert to satisfy itself from its own observations, to arrive at conclusions; but, as a matter of prudence and caution, it was always better to have the opinion of an Expert, to facilitate the scrutiny of those signatures, through the eyes of the court. It will be relevant at this stage to quote the observations of the Supreme Court in Fakhruddin v. State of Madhya Pradesh!: Evidence of the identity of handwriting receives treatment in three sections of the Indian Evidence Act. They are sections 45, 47 and 73. Handwriting may be proved on admission of the writer, by the evidence of some witness in whose presence he wrote. This is direct evidence and ifit is available the evidence of any other kind is rendered unnecessary. The Evidence Act also makes relevant the opinion of a handwriting expert (section 45) or of one who is familiar with the writing of a person who is said to have written a particular writing. Thus besides direct evidence which is of course the best method of proof, the law makes relevant two other modes. A writing may be proved to be in the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an expert competent to the comparison of handwritings on a scientific basis. A third method (section 73) is comparison by the court with a writing made in the presence of the court or admitted or proved to be the writing of the person.

Both under section 45 and section 47, the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis offamiliarity resulting from frequent observations and experience. In either case the court must satisfy itself by such means as are open that the opinion was be acted upon. One such means open to the court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become an handwriting expert but to verify the premises of the expert, in the one case and to appraise the value of the opinion in the other case. This comparison depends on an analysis of the. characteristics in the admitted or proved writings and the finding of the same characteristics in large measure in the disputed writing. In this way the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert's opinion is given, the court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the court must play the role of an expert but to say that the court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness. While on the topic of appreciation of the evidence of Expert, it will be relevant to refer to the observations of the Supreme Court in two of its pronouncements. In Bhagwan Das v. State of Rajasthan’, the Supreme Court took the view that 1. AIR 1967 SC 1325: 1967 Cri LJ 1197. 2. AIR 1957 SC 589: 1957 Cri LJ 889.

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where the opinions of the author were neither shown to have been given in regard to circumstances exactly similar to those in the particular case before court; nor were they put to the medical witness, it was not a satisfactory was of disposing of the evidence of the witness to discredit it on the ground that the doctor was a comparatively young man and his statements did not accord with the opinions expressed in the books.

Similarly, in Sunderlal v. State of Madhya Pradesh’, the Supreme Court observed as follows:— The conviction of the accused by the High Court was mainly based on passages from the text book of Modi on Medical Jurisprudence and Toxicology and these passages had not been put to Dr. Dube when he was in the witness box with the result that the High Court was not right in coming to the conclusion adverse to the accused by merely relying upon these passages. It is therefore evident that before reliance can be placed on authoritative text books by either party to attack the evidence of an expert, it would be necessary to draw the attention of the expert to those passages and furnish him an opportunity to explain the same.

Before closing the consideration of the defence case, the evidence of the Handwriting Expert, examined by me, will have to be considered. The evidence of the Expert is categoric that the person who had written S-1 to S-15 had not written Q-| to Q-3. I have carefully perused the evidence of the Expert and I am satisfied that the reasons given by him are acceptable. I am not taking the evidence of the Expert as conclusive, to arrive at a conclusion, but I have taken his opinion to lend assurance to my own study of the admitted and disputed signatures. A close look at the admitted and disputed signatures with a magnifying glass certainly shows that the author of Q-l to Q-3 could not be P.W. 2. The way in which the first four letters “Muru” have been written in D-3 to D-5 portrays a mechanical immitation. Even the first letter ‘S’ is patently at variance, so also the penultimate letter ‘A’ and the letter “g’. It is, of course, true that the Expert has been cross-examined on, the several movements, pen lifts, pen pressure, pen score, hesitation symptoms, etc. The answers given by the Expert, on the differences pointed out to him, as natural variations, to my mind, is certainly acceptable. I am unable to agree that P.W. 2 himself had sought to forge his signature, by writing differently, in Exs. D-3 to D-5. When I consider the case law placed before me, I will refer to the authoritative text books, on handwriting and finger prints with specific reference to the passages brought to my notice by the learned counsel for the appellants. Suffice to say that I am satisfied that P.W. 2 had not signed Exs. D-3 to D-5 and the case of the defence that P.W. 2 had signed those documents on 29-9-1984, has to be rejected, outright. While considering Exs. D-3 to D-5, the trial Judge had taken note of the documents filed along with the statement of A-l. Those documents show that A-l had functioned as President of the Southern Division between 1978 and 1984. It may, therefore, be taken that A-l was taking an active interest in the Union activities. However, as rightly pointed out by the trial Judge, there is no material 1. AIR 1954 SC 28: 1954 Cri LJ 257.

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placed before the court to hold that A-l had a leading role in organising the All India Conference at Madras between 12th and 16th October, 1984. As stated earlier, we do not have any evidence from the signatories, who were officebearers, found in those documents as having authorised the appellants to collect donation. It may be that the defence need not have to prove its case by strict standards of proof, as is expected of the prosecution, but, at the same time,

when a partial onus is thrust on them, the defence must basically inspire confidence, as probable. That inspiration is not forthcoming in defence trotted out in this case. In paras 16 and 19 I have already considered four of the cases relating to the appreciation of evidence of handwriting experts. Two other cases have been cited on this aspect, which | will presently refer to.

In Iswari Prasad Misra v. Mohd. Isa‘, the Supreme Court while considering section 45 of the Indian Evidence Act, regarding relevancy of opinions of experts held, that the evidence given by experts of handwriting can never be conclusive, because it was afterall opinion evidence. In that case the Supreme Court, sans the evidence of the two experts, who contradicted themselves, arrived at the conclusion that the evidence given by the attesting witnesses, the scribe and the appellant, was wholly satisfactory to prove execution of the document by the respondent and that the said evidence did not really need to be corroborated by the opinion of experts. On facts, in this appeal, P.W. 2, having denied his signatures in Exs. D-3 to D-5 and the evidence of D.W. 3 having been rejected, and my comparison of the admitted and the disputed writings of P.W. 2, having been found to enure in favour of the prosecution, the evidence of expert nas

played only a minor role, in helping me to arrive at my conclusions. Further, the expert evidence has not been considered, for proof of the prosecution case, but only to the limited extent of the defence case being probable by preponderance. In Ram Narayan v. State of Uttar Pradesh? the Supreme Court held that the opinion of the Handwriting Expert given in evidence was no less fallible than any other expert opinion, but such opinion was worthy of acceptance if there was internal and external evidence relating to the writing in question supporting the experts view. The question in each case calls for determination on the court’s appreciation of evidence. Ultimately the facts unfurled in each case, would

dictate to the court, the weight that could be attached

to the

evidence of expert in the light of its own observation relating to the admitted and the disputed writings. As I have already held, on reasons assigned by me that P.W. 2 had not written Exs. D-3 to D-5, no further discussion on the expert’s evidence would be necessary. However, reference to text-books cited by Sri N.T.

Vanamamalai need mention. H.R. Hardless in his book “Handwriting and Thumb-print Identification and Forensic Science, 1970 Edition, has stated at page 2 that a competent expert assigns reasons for his opinion in a report. The reasons are specific and not mere generalities and the points of similarity or dissimilarity marked and indicated in the photographs are both apparent and 1. AIR 1963 SC 1728. 2. AIR 1973 SC 2200: 1973 Cri LJ 1187.

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appealing to laymen. An expert's opinion is accepted by a court when the reasons given are both apparent and convincing. At page 10 that author has stated as follows: These persons are unaware of the fact that variations in the signatures of the same person must exist in the forms of corresponding letters. A human hand is not a printing machine to give exactitude in regard to forms of letters on all occasions and under different occasions. On these passages it was argued that the expert has not specifically dealt with the similarities and the opinion being general would be of no probative value. Further, in view of the human hand not being a printing machine, allowances should have been given by the expert on the features like pen pressure, pen score, pen lift hesitation, quality of paper, etc. As I have discussed earlier, the expert has been cross-examined

and I am

satisfied, that he has

offered his opinion, in the background of these features and the variations pointed out by the defence between the admitted and the disputed signatures, were only natural. Mehta in his book on Handwriting Identification and Finger prints has stated at page 38 that the pen pressure of a forged writing is usually not smooth and it shows a varying density due to the constant interruptions in movement and speed. At pages 47, 48, 49, 51 and 52 the author refers to the writing habits viZ.:— (1) The movement of writing; (2) The pen position;

(3) The pen pressure; (4) The shading;

(5) The relative position of the letters; (6) The formation of the letters;

(7) The alignment;

(8) The spacing; (9) The variations; (10) The slant; (11) The arrangement;

(12) The style; (13) The condition of the strokes;

(14) The size and proportions; and (15) The general execution.

The author states that there are other technical reasons which are advanced by the experts. Though the expert has been questioned in general on these aspects, specific passages from the authors had not been brought to his notice to furnish him an opportunity to explain his opinion on that basis. The expert has stated in his evidence that the characteristics in the handwriting in Exs. D-3 to D-5 differed significantly from the standard handwriting, which included

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among other things the five categories suggested by the defence. The expert has also answered

that he had noticed all the characteristics, though he had not

specified them in the report. I am satisfied that the dissimilarities noticed by him in the admitted and the disputed writings would be sufficient to hold against the defence. To arrive at my conclusion of dissimilarities, the expert’s opinion was to some extent helpful and the findings against the accused are not based solely on the evidence of the expert. Therefore, the discussion on expert's evidence need not have to detain us any more.! 10.21.33 Typewriting identification evidence admissible

The reference made in this appeal to the Constitution Bench is for deciding the important question of law: Whether the opinion of a typerwriter expert is admissible in evidence under section 45 of the Indian Evidence Act, 1872? The respondent S.J. Chaudhary was being tried in the Court of Additional Sessions Judge, New Delhi, on charges punishable under section 302 of the Indian Penal Code and sections 3 and 4 of the Explosive Substances Act, 1908 in Sessions Case No. 36 of 1983. The prosecution wanted to examine a typewriter expert for proof of certain incriminating facts against the respondent based on the identity of a typewriter on which a material document was alleged to have been typed. An objection was taken to the admissibility of the opinion evidence of the typewriter expert under section 45 of the Indian Evidence Act, 1872 (for short “Evidence Act”) based on the decision of this court in Hanumant

v. State of Madhya Pradesh*, and the trial court upheld that objection, Criminal Revision No. 105 of 1987 was filed in the Delhi High Court by the prosecution challenging that order. The Delhi High Court has dismissed the revision, hence this appeal by special leave. The present criminal appeal came up for hearing before a Division Bench comprising of two learned Judges of this court. The correctness of the observations in Hanumant’s case (AIR 1952 S C 343) by a Bench of three learned judges on this point was doubted and reconsideration thereof was sought on behalf of the appellant. Accordingly, by order dated March 22, 1990 the Division Bench took the view that this important question of law involved in this appeal should be considered and decided by a larger Bench. This question of law is the only point involved for decision in this appeal and the decision thereon would dispose of the appeal. In Hanumant Govind? while dealing with one of the arguments advanced therein, it was stated thus:

Next it was argued that the letter was not typed on the office typewriter that was in those days, viz., article B, and that it had been typed on the typewriter article A which did not reach Nagpur till the end of 1946. On this point evidence of certain experts was led. The High Court rightly held that opinion of such experts was not admissible under the Indian Evidence Act as they did not fall within the ambit of 1. Palania Pillai v. State, 1991 Cri LJ 1568. 2. AIR 1952 SC 343: 1952 SCR 1091.

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section 45 of the Act. This view of the High Court was not contested before us. It is curious that the learned judge in the High Court, though he held that the evidence of the experts was inadmissible, proceeded nevertheless to discuss it and placed some reliance on it. The trial magistrate and the learned Sessions Judge used this evidence to arrive at the finding that, as the letter was typed on article A which had not reached Nagpur till the end of December, 1946, obviously the letter was antedated. Their conclusion based on inadmissible evidence has therefore to be ignored.” The above passage in that decision is the basis of the view taken that the opinion of a typewriter expert is not admissible under the Evidence Act and that it does not fall within the ambit of section 45 of the Act. It is significant that this view taken by the High Court in that case was not even contested in this court and, therefore, the decision in Hanumant proceeds on the concession that the evidence of a typewriter expert is not admissible in evidence under section 45 of the Act. In our opinion, the decision in Hanumant cannot be taken as deciding

that point even though on the basis of that observation the evidence of typewriter expert was excluded as inadmissible. This question of law has, therefore, to be answered without any further assistance being available from the decision in Hanumant. In the Indian Evidence Act, 1872, Chapter II relating to ‘Relevancy of Facts’ contains sections 5 to 55 and therein under the heading ‘Opinions of Third Persons, when relevant’ are sections 45 to 51. Section 45 reads thus: Opinions of experts.—When the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting [or finger impressions] (Ins. by Act 5 of 1899, section 3), the opinions

upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting] (Ins. by Act 18 of 1872, section 4), [or finger impressions] (Ins. by Act 5 of 1899, section 3), are relevant facts.

Such persons are called experts. Illustration (c) to section 45 is as under:

(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinions of experts on the question whether the two documents were written by the same person or by different persons are relevant. The plain meaning of section 45 is that the court in order to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting, or finger impressions can treat the opinion upon that point of person specially skilled in such foreign law, science or art, or in questions as to identity of handwriting, or finger impressions as relevant facts. In other words, the opinion of persons specially skilled in such foreign law science, or art, or questions as to the identity of handwriting or finger impression, called experts therein, are relevant facts. The opinion of such experts is admissible in evidence as relevant facts by virtue of section 45 of the Evidence Act.

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In our opinion, irrespective of the view taken on the question of meaning of the word handwriting in section 45 to include typewriting, the word ‘science’, occurring independently and in addition to the word ‘handwriting’ in section 45, is sufficient to indicate that the opinion of a person specially skilled in the use of typewriters and having the scientific knowledge of typewriters would be an expert in this science; and his opinion about the identity of typewriting for the purpose of identifying the particular typewriter on which the writing is typed is a relevant fact under section 45 of the Evidence Act. It is obvious that the Indian Evidence Act when enacted originally in 1872 did not specifically mention typewriting in addition to handwriting because typewriters were then practically unknown. However, the expression ‘science’, or in section 45 in addition to the expressions ‘foreign law’ and ‘handwriting’ use in the section as originally enacted, and the expression ‘finger impressions’ inserted in 1899 is sufficient to indicate that the expression ‘science, or art’ therein is of wide import.

This

expression

‘science,

or art’ cannot

therefore,

have

a narrow

meaning in section 45 and each of the words ‘science’ and ‘art’ has to be construed widely to include within its ambit the opinion of an expert in each branch of these subjects, wherever the court has to form an opinion upon a point relating to any aspect of science or art. The meaning of the word ‘science’ as understood ordinarily with reference to its dictionary meaning must be attributed to the word as used in section 45 of the Indian Evidence Act. Some of the meanings given in the dictionaries are: The Oxford Encyclopaedic English Dictionary: Science... a. systematic and formulated knowledge, esp. of a specified type or on a specified subject (political science), b. the pursuit or principles of this... The New Shorter Oxford English Dictionary, Vol. 2.: SOURCE. 2%. 2a. Knowledge acquired by study acquaintance with or mastery of a department of learning... 3a. A particular branch of knowledge or study; a recognized department of learning.... Collins Dictionary of the English Language: Science 1. the systematic study of the nature and behaviour of the material and physical universe, based on observation, experiment, and measurement, and the _ formulation of laws to describe these facts in general terms. 2. the knowledge so obtained or the practice of obtaining it. 3. any particular branch of this knowledge: the pure and applied sciences. 4. any body of knowledge organized in a systematic manner. 5. skill or technique... It is clear from the meaning of the word ‘science’ that the skill or technique of the study of the peculiar features of a typewriter and the comparison of the disputed typewriting with the admitted typewriting on a particular typewriter to determine whether the disputed typewriting was done on the same typewriter is based on a scientific study of the two typewritings with reference to the peculiarities therein; and the opinion formed by an expert is based on recognised principles regulating the scientific study. The opinion so formed by a person having the requisite special skill in the subject is, therefore, the opinion

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of an expert in that branch of the science. Such an opinion is the opinion of an expert in a branch of science which is admissible in evidence under section 45 of the Indian Evidence Act. There cannot be any doubt that the opinion of an expert in typewritings about the questioned typed document being typed on a particular typewriter is based on a scientific study of the typewriting with reference to the significant peculiar features of a particular typewriter and the ultimate opinion of the expert is based on scientific grounds. The opinion of a typewriter expert is an opinion of a person specially skilled in that branch of the science with reference to which the court has to form an opinion on the point involved for decision in the case. In our opinion, on a plain construction of section 45 giving to the word ‘science’ used therein its natural meaning, this conclusion is inevitable; and for supporting that conclusion, it is not necessary to rely on the further reason that the word ‘handwriting in section 45 would also include typewriting. Statutory Interpretation by Francis Bennion, Second edition, section 288 with the heading “Presumption that updating construction to be given” states one of the rules thus: (2) It is presumed that Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed (an updating construction). While it remains law, it is to be treated as always speaking. This means that in its application on any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law. In the comments that follow it is pointed out that an ongoing Act is taken to be always speaking. It is also, further, stated thus:

In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the true original intention. Accordingly the interpreter is to make allowances for any relevant changes that have occurred, since the Act's passing, in law, social conditions, technology, the meaning of words, and other matters. Just as the US Constitution is regarded as a living Constitution, so an ongoing British Act is regarded as ‘a living Act’. That today’s construction involves the supposition that Parliament was catering long ago for a state of affairs that did not then exist is no argument against that construction. Parliament, in the wording of an enactment, is expected to anticipate temporal developments. The drafter will try to foresee the future, and allow for it in the wording. An enactment of former days is thus to be read today, in the light of dynamic processing received over the years, with such modification of the current meaning of its language as will now give effect to the original legislative intention. The reality and effect of dynamic processing provides the gradual adjustment. It is constituted by judicial interpretation, year in and year out. It also comprises processing by executive officials. There cannot be any doubt that the Indian Evidence Act, 1872 is, by its very nature, an ‘ongoing Act.’

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It appears that it was only in 1874 that the first practical typewriter made its appearance and was marketed in that year by the E. Remington and Sons Company which later became the Remington typewriter. Obviously, in the Indian Evidence Act enacted in 1872 typewriting could not be specifically mentioned as a means of writing in section 45 of the Evidence Act. Ever since then, technology has made great strides and so also the technology of manufacturer of typewriters resulting in common use of typewriters as a prevalent mode of writing. This has given rise to development of the branch of science relating to examination of questioned typewriting. In ‘Questioned

Documents’,

Second

Edition, by Albert S. Osborn

in the

Chapter of “questioned typewriting” this aspect is considered and, therein at page 598, it is stated thus: The principles underlying the identification of typewriting are the same as those by which the identity of a person is determined or a handwriting is identified. The identification in either case is based upon a definite combination of common or class qualities and features in connection with a second group of characteristics made up of divergences from class qualities which then became individual peculiarities. The mathematical principles outlined in the fourteenth Chapter show how remote is the possibility of coincidence of even a few scars or deformities on a person, and coincidence of scars and deformities are as remote with typewriters as with persons.

In ‘Photographic Evidence’ by Charles C. Scott, Second Edition, Volume 1, under the heading “Typewriting Identity or Non-identity of Typing” it is stated thus: But even as the nationality of an individual may be perplexing but does not in any way hamper the determination of his personal identity by means of his fingerprints, his handwriting, or other reliable indications, so also the fact that it is often difficult to determine the make of a typewriter used in typing a document does not lessen the reliability of the scientific determination that a certain typewritten document was typed on a particular machine regardless of its make. By the use of the proper microscopes and test plates the document examiner often can determine the question and by the use of photographic comparison charts he can demonstrate his findings, usually with unimpeachable certainty. From a comparison of the typewriting on a document which is a subject of controversy with specimens known to have been made on a certain typewriter it is usually possible to determine whether or not what typewriter was used in typing the subject document, provided the subject document contains sufficient typewriting and the specimens from the known machine are of a suitable kind. This is true because every typewriter when it comes off the assembly line is an individual and writes exactly like no other typewriter. When a typewriter is brand new the differences between it and other typewriters coming off the assembly line at the same time are extremely minute and elusive, but theoretically at least there are identifying differences that can be discovered by microscopic examination and demonstrated photographically. Furthermore, the more a typewriter is used the

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more individualistic it becomes; and the easier it is to identify its typewriting. In some instances through overuse, misuse, or abuse a typewriter develops so many peculiarities that its typing can be identified readily with the naked eye. In ‘Law of Disputed and Forged Documents’ by J. Newton Baker, while dealing with the basic principles of identification of typewriting generally it is stated: ... Since typewriting possesses individuality it can be compared and identified in the same manner as handwriting... Therein while discussing individuality of typewriting, it is stated thus: The individuality of the typewriter is established by the character of its type impression on the paper. These characteristics of typewriting can be analyzed, compared and differentiated and can be positively identified as those of a particular typewriter. This individual comparison and identification of characteristics may establish the genuineness or forgery of a typewritten instrument and when admitted in evidence is sufficient proof. The occurrence of similar irregularities in typewriting in two or more machines is practically impossible. The rule that the typewriter creates for itself a certain distinctive character of writing which identifies one certain machine from all other machines is well established. To prove that two instruments were written on a particular typewriter similar coincidences of characteristics must be shown in both instruments, and these coincidences considered collectively must demand a single conclusion.

In ‘Typewriting Identification (Identification System for Questioned Typewriting)’ by Billy Prior Bates, the conclusion of the principles is stated thus: Conclusion.—TYPEWRITING identification is based on the same principle underlying handwriting identification, or any other thing which. has a great number of possible variations. The identification of a typewritten document can be likened to the identification of a particular person, A person may be identified in general by his sex, size, features, etc., and in addition, for example, by a radical mastectomy scar. A typewriter may be identified in general by characteristics such as type, design and size, possessed by all machines of a specific make and model, and in addition, for example, by a flaw in the serif on the letter E. No opinion as to identity should be based upon only a few dissimilarities (or similarities). It is the combination of measurements and characteristics which all together make up the conclusion.

When good, clear specimens are available in sufficient amount for a scientific identification of the twelve points of comparison, it is possible to show with absolute certainty that a document was, or was not, produced by a particular machine.

The mathematical probability of the same combination of these characteristics divergent from the norm appearing in two machines is practically nil. The evidence of the twelve points of comparison can be conclusive proof.

DOCUMENTS

737

It is, therefore, clear that the examination of typewriting and identification of

the typewriter on which the questioned document was typed is based on a scientific study of certain significant features of the typewriter peculiar to a particular typewriter and its individuality which can be studied by an expert having professional skill in the subject and, therefore, his opinion on that point relates to an aspect in the field of science which falls within the ambit of section 45 of the Indian Evidence Act. Such opinion evidence of experts in the field has long been treated as admissible evidence in similar jurisdictions like United States as is evident from these standard text books on the subject.

In the present case, even without resort to the word ‘handwriting’ in section 45 to include typewriting therein, in the view we have taken, the word ‘science’ is wide enough to meet the requirement of treating the opinion of a typewriter expert as an opinion evidence coming within the ambit of section 45 of the Evidence Act. We may, however, add that the long accepted practice of judicial construction which enabled the reading of the word ‘telegraph’ to include ‘telephone’ within the meaning of that word in Acts of 1863 and 1869 when telephone was not invented, would also be available in the present case to read

‘typewriting’ within the meaning of word ‘handwriting’ in the Act of 1872. This is so because what was understood by handwriting in 1872 must now in the present times after more than a century of the enactment of that provision, be necessarily understood to include typewriting as well, since typing has become more common than handwriting and this change is on account of the availability of typewriters and their common use much after the statute was enacted in 1872. This is an additional reason for us to hold that the opinion of the typewriter expert in this context is admissible under section 45 of the Indian Evidence Act. As a result of the above discussion, we hold that the observations made in the above extract in the decision in Hanumant on the basis of a concession does not

reflect the correct position of law on this point and should, therefore, be treated as no longer good law on the point. For the aforesaid reasons, we hold that the opinion of the typewriter expert in the present case is admissible under section 45 of the Evidence Act and the contrary view taken by the trial court and the High Court is erroneous. This appeal is accordingly allowed and the impugned orders of the trial court and

the High Court are set aside.’ 10.21.34 Admissibility of Reports

.

From a perusal of the above it would be clear that section 293, Code of Criminal Procedure applies only to certain experts like Chemical examiner or Assistant Chemical Examiner to the Government. Chief Inspector of Explosives, Director of the Finger Print Bureau, Director, Deputy Director or Assistant Director of a Central Forensic Science laboratory or a State Forensic Science Laboratory and the Serologist to the Government, besides Director of Haffkeine Institute, Bombay. The report of the handwriting expert, even if it has been given 1. State (through CBI, New Delhi) v. S.J. Chaudhary, AIR 1996 SC 1491.

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by the expert working in the Forensic Science laboratory, would not be per se admissible under section 293, Code of Criminal Procedure unless the maker of the said report is summoned and examined as a witness and the other side is given opportunity to cross examine the witness. In my opinion, there was absolutely no occasion for the learned Sessions Judge to have observed that the report of the handwriting expert was admissible under section 293, Code of Criminal Procedure and could be allowed to be tendered into evidence without summoning the author of the report. In (2000) 2 Ree Cri R 781: 2000 Cri LJ 2301 (SC) (supra), opinion of the

Assistant State Examiner of documents was produced in evidence as Ex. 64. Under these circumstances, it was held by their Lordships of the Supreme Court that from that description alone, it could not be gathered whether his office would fall within the purview of section 293 Code of Criminal Procedure and hence without examining the expert as a witness in the court, no reliance could be placed on Ex. 64. In view of the above, in my opinion, even if the prosecution was allowed to produce the report of the handwriting expert by way of additional evidence, the learned Sessions Judge, had gone wrong in allowing the prosecution to tender the said report of the handwriting expert in evidence, without examining the expert and allowing opportunity to the accused to cross-examine him. As referred to above, this was contrary to law, inasmuch as such a report would not be covered under section 293, Code of Criminal Procedure. For the reasons recorded above, while upholding the order of the learned Sessions Judge, allowing the prosecution to produce the report of the handwriting expert by way of additional evidence, the present petition is partly

allowed and the order dated 23-9-2000, passed by the learned Sessions Judge, is modified and it is directed that for proving the report of the handwriting expert, the prosecution would be given opportunity to examine the expert, who had given the said report and the accused would have the right to cross-examine the said witness.!

C48N

1. Nirmal v. State of Punjab, 2002 Cri LJ 447. Also see State of Maharashtra v. Damu Gopinath Shinde, 2000 Cri LJ 2301.

Chapter 11

POISONS SYNOPSIS 11.1

IMPORTANCE

11.2 NATURE TR

Administration

11.2.2 Action of Poisons Lhpee

Fatal Poisoning

11.2.3 Classification 11.2.3.1

Inorganic Poisons

11.2.3.2 Organic Poisons 11.2.3.3 Biological Poisons 11.2.3.4

Homicidal Poison

11.2.3.5 Suicidal Poisons 11.2.3.6 Accidental Poisons 11.2.3.7 Cardiac Poisons 11.2.3.8 Respiratory Poisons 11.2.3.9 Nervous System Poison 11.3 LOCATION 11.4 COLLECTION 11.4.1

The Scene

11.4.2 The Victim 11.4.2.1

Autopsy materials

11.4.2.2 Non-fatal Cases 11.4.3

Reports and Opinions 739

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11.5 THE PROBLEMS 11.6 EVALUATION 11.6.1

Residual poison

11.6.2

Medicolegal Examination

11.6.3

Symptoms

11.6.4

Isolation

11.6.5 Classical Identification Techniques 11.6.6

11.6.6.1

Modern Techniques

Chromatography

11.6.6.2 Mass Spectrography 11.6.6.3

Spectrophotometry

11.6.6.4 X-Ray Diffraction 11.6.6.5

Neutron Activation Analysis (NAA)

11.6.6.6 Scanning Electron Microscopy 11.6.6.7 Radio Immuno Assay (RIA)

11.7 INDIVIDUAL POISONS

11.7.1

Arsenic

11.7.1.1

Nature

11.7.1.2

Use

11.7.1.3 Administration

11.7.1.4 Symptoms 11.7.1.5 Post-mortem Findings 11.7.1.6 Detection 11.7.1.7 Estimation

11.7.1.8

Toxicological Materials

11.7.2 Cyanides 11.7.2.1

Nature

11.7.2.2

Use

11.7.2.3 Administration

11.7.2.4 Symptoms 11.7.2.5 Post-mortem Findings 11.7.2.6

Isolation

11.7.2.7 Detection

11.7.2.8 Estimation

11.7.2.9

Toxicological Materials

11.7.3 Copper Sulphate 11.7.3.1

Use

AND

TRIALS”

POISONS

11.7.3.2 Administration

11.7.3.3 Symptoms 11.7.3.4

Post-mortem Findings

11.7.3.5

Isolation

11.7.3.6

Detection

11.7.3.7

Estimation

11.7.3.8

Toxicological Materials

11.7.4

Barbiturates

11.7.4.1

Classification

11.7.4.2

Use

11.7.4.3 Administration

11.7.4.4

Symptoms

11.7.4.5 Detection 11.7.4.6

Estimation

11.7.4.7 Toxicological Materials 11.7.5

Organo-phosphorus compounds

11.7.5.1

Nature

11.7.5.2

Use

11.7.5.3 Administration

11.7.5.4

Symptoms

11.7.5.5

Post-mortem Findings

11.7.5.6

Isolation

11.7.5.7 Detection and Estimation

11.7.5.8

Toxicological Materials

11.7.6 Vegetable poisons 11.7.7

Opium

11.7.7.1

Nature

11.7.7.2

Use

11.7.7.3 Administration

11.7.7.4

Symptoms

11.7.7.5 Post-mortem Findings 11.7.7.6

Isolation

11.7.7.7 Detection

11.7.7.8 Estimation

11.7.7.9 11.7.8 11.7.8.1

Toxicological Materials Dhatura Use/Abuse

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11.7.8.2 Administration

11.7.8.3 Symptoms 11.7.8.4

Fatal Dose

11.7.8.5

Fatal period

11.7.8.6 Post-mortem Findings 11.7.8.7 Isolation

11.7.8.8 Detection 11.7.8.9 Estimation 11.7.8.10

Toxicological Materials

11.7.9 Oleander 11.7.9.1

Nature

11.7.9.2 Use 11.7.9.3 Administration

11.7.9.4 Symptoms

11.7.9.5 Post-mortem Findings 11.7.9.6 Detection 11.7.9.7 Toxicological Materials 11.7.10

Madar (AAK, AKDO)

11.7.10.1

Nature

11.7.10.2

Use

11.7.10.3 Administration 11.7.10.4

Symptoms

11.7.10.5

Post-mortem Findings

11.7.10.6 Detection 11.7.10.7 11.7.11 11.7.11.1

Toxicological Materials Animal poisons Snake Venom

11.7.11.2 Administration

11.7.11.3 Symptoms 11.7.11.4

Post-mortem Findings

11.7.11.5 Detection 11.7.11.6 Estimation 11.7.11.7 Autopsy Materials 11.8 MISCELLANEOUS POISONS 11.8.1

Methyl Alcohol

11.8.1.1

Nature

11.8.1.2

Use

INVESTIGATION

AND

TRIALS

POISONS

11.8.1.3

Administration

11.8.1.4

Symptoms

11.8.1.5

Post-mortem Findings

11.8.1.6

Fatal Dose

11.8.1.7

Fatal Period

17.8.1.8

Isolation

11.8.1.9

Detection

11.8.1.10

Estimation

11.8.1.11

Toxicological Materials

11.8.2

Abrus Precatorious (Indian Liquorice Gunchi, Rati)

11.8.3

Aconite

11.8.4

Barium Carbonate

11.8.5

Cannabis

11.8.6

Carbon Monoxide

11.8.7

Caustic Alkali

11.8.8

Chloral Hydrate

11.8.9

Cyanogenetic Glycoside

11.8.10

Ergot

11.8.11

Kuchila

11.8.12

Lead Salts

11.8.13

Mercury Salts

11.8.14

Mushrooms

11.8.15

Mechanical Poisons

11.8.16

Nicotine

11.8.17

Oxalic Acid

11.8.18

Quinine

11.8.19

Sodium Nitrite

11.8.20

Mineral Acids

11.8.21

Zinc Phosphide

11.9

PRESENTATION

11.10

JUDICIAL PROOF

11.11

CASE LAW

11.11.1

Proof of Poisoning

11.11.2

Fatal Dose

11.11.3

Cause of Death

11.11.4

Acid Burns

11.11.5

Diminished Responsibility

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Fig. XI-1 The portion of the poison, which ts found in the stomach, is not that which caused death but the surplus of the quantity which has already produced the fatal effects by its absorption in the system.

—Orfila

POISONS 11.1 IMPORTANCE Poisons are frequently involved in homicidal, accidental or suicidal deaths. They are sometimes used to destroy animals and plants. The detection of poisons and their identification is an important aspect of forensic science. The investigation of cases of poisoning is one of the most difficult tasks. The quantity of a poison required to kill a victim is extremely small in some cases. For example, the fatal dose of nicotine is about 50 milligrams. If it is administered to a man it gets mixed in about 50 kilogram of body material. Thus, there is only one milligram in one kilogram of the body material. The analyst has to search for one part per million parts of the body material. He is not only to detect it but also to estimate it quantitatively, to determine whether a fatal dose was administered to the victim or not. The problem is further aggravated that most of the poisons are easily available. They are given in secrecy after winning the confidence of the victim and easily administered through food and drinks. Their symptoms may correspond to some illness. The investigation is further complicated by the variety of poisons available. The ever-increasing number of synthetic drugs, which are used as poisons, is further adding to the complications. Some drugs are very close to one another in their chemical and physiological behaviour. Their identification requires the most refined analytical techniques and an experienced analyst. Body material, in which the poisons are found, is a complex mixture of organic, inorganic and biological substances. They interfere in the isolation, detection and estimation of the poisons. In fact the most difficult task of a toxicologist is to isolate the poison in pure form. Once it is done, it is comparatively easier to identify and estimate the quantity.

11.2 NATURE A poison is a substance, which on being absorbed into the body injures health or destroys life. In fact any substance can act as a poison when taken in excess. Food materials (e.g., salt) and other substances may act as poisons. Here, the substances, which are harmful even in small amounts, are called poisons.

Legally, poisoning is established if it is proved that: 1. A substance (poison, stupefying or intoxicating agent or an unwholesome drug) was administered with the intention to cause:-hurt or knowing that the substance was likely to cause hurt. 2. There were witnesses who saw the victim consuming the poison. 3. There is no evidence of the disease in the victim before or after the death.

|

11.2.1 Administration

The most frequent method of administration of poison is through food. The poison is mixed in sweetmeats, cooked food or in a drink. It may be substituted for a medicine. The victim may be made to inhale a poisonous gas or vapours from a poisonous liquid. Or, the poison may be injected into the body. 745

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A lady doctor was found dead in the hospital quarters with a hypodermic needle still in her left arm and the syringe lying by her side. Pheno-thiazine derivative (Siquil) and phenobarbitone were detected in the washings of the syringe and the needle. The drugs were also detected in the body of the deceased. (CH) A poison can be introduced through the vagina. It is done for causing abortion. Anus and skin pores are used for irritant poisons such as ground chilies. They are sometimes used to get confessions. Powdered chilies are also used to blind a person temporarily to rob him of his belongings. A mother applied some medicine to the scalp and hair of her two daughters (aged 6 and 4 years) for killing lice. After some time the two children were given a bath. About four hours after the bath, both the girls were found dead. Zinc phosphide was detected from the hair and the viscera of both the deceased. (CH)

11.2.2 Action of Poisons Basically the action of most of the poisons is to prevent the supply of oxygen to body tissues. Failure of the availability of oxygen stops the normal functioning of the body and the victim dies. But the mode of this stoppage varies. In carbon monoxide poisoning, the gas combines with haemoglobin, the oxygen carrier, blood and thus, blood is unable to carry oxygen to various parts of the body. The glycoside poisons, Digitalis affects the heart and the pumping of blood for circulation, is stopped. Opium and its derivatives, alcohol as well as barbiturates paralyse the respiratory centres, stopping the breathing. The action of a poison may be local or remote. For example, strong acids and alkalis destroy parts of the body with which they come in contact. They are local poisons. Alcohol, opium and its derivatives effect the victim when they enter the bloodstream they are known as remote action poisons.,Some poisons have both local and remote actions. Most of the poisons affect the victim immediately. If the person survives, the poison is eliminated through body excretions. However, some poisons get accumulated in the body and when a certain level is reached, the person dies. Arsenic is one such poison. It is for this reason that the poison has been a favourite with criminals through the ages. It is still one of the commonest homicidal poisons in India. Most of the metallic poisons get accumulated in the body. The action of poison is dependent upon a number of factors. The most important is the habit that the individual may have formed. For example, some snake charmers get snake bites regularly. Thus they get almost complete immunity from snake bite poisoning. Certain sadhus living away from civilization take arsenic regularly. They remain unaffected by the usual fatal doses of arsenic. It is believed kings in olden days, to guard them against this poison, used to do the same. Addiction to liquor, cannabis and opium is a common phenomenon. The addicts are unaffected by the normal fatal doses of the materials. The dosage of poison has an important bearing on its action. The smaller the dose, less troublesome is the action. The minimum fatal HO9e} of course, varies with the nature of the poison and the individual.

POISONS

747

Nine children were affected due to ingestion of whooping- cough mixture, six of them died in hospital. Sodium nitrite detected in the cough mixture was far in excess of the expected quantity. Nitrite was also detected in the stomach wash as well as in the viscera of the victims. (CH) The method of administration is an important factor in the action of poisons. Those poisons, which are directly injected into the bloodstream, have immediate effect. Those, which are administered through food, may get eliminated through vomit and purges. Those inhaled (with air or alone) may get absorbed in the bloodstream and affect the victim almost immediately. Snake venom is a deadly poison when injected into the bloodstream. The victim may die. If this poison is taken orally it is practically harmless. Unless, of course, the venom enters in the blood through some wound in the mouth, throat or food canals. It is for this reason that some people suck out the venom from the bite with mouth if a breast pump is not available for the purpose. The health, age and individual allergy of a person towards certain poisons materially affect the action of poisons. As a general rule the weaker the person, the quicker and severer is the action. Thus children and old persons are affected more easily and more severely than young and healthy adults. Other factors, which determine the effects, are: 1. Physical state of the poison; gas, liquid or solid. If solid, whether it is fine, coarse or emulsified. Whereas 27.2 grams of ordinary mercury is not dangerous, 0.06 grams of emulsified mercury is. 2. If the stomach is empty, a poison introduced orally acts more quickly and severely. 3. An unusual substance may easily upsets the stomachs of some people. They may eliminate the poison through vomits and purges. 11.2.2.1 Fatal Poisoning

Poisons, their fatal doses and fatal reaction time (period) are given in the table below (Table-1). Table-1

Fatal period Abrus Precatorius

Extract from 0.lg. seeds

3 to 5 days

(by injection) Aconite

1.0 to 2.0g. of root

1 to 5 hours

Alcohol (Absolute)

250 to 500 ml.

A few hours

Arsenic Atropine Barbiturate Barium Carbonate Cannabis (bhang, ganja and charas)

0.1 to 0.2g. 0.1 to 0.2g. 4 to 20g. 4g. Resin extract toxic

Half to 2 days One day A few hours to several days A few hours to several days Usually non fatal

Carbon monoxide

30% saturation

30 minutes in an atmosphere of 1% CO, 4 hours in an atmosphere containing 0.25% CO

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Chloroform

5g. 3 to 5g. Usually 30 ml.

Copper sulphate

15g.

Cyanide

0.1 to 0.3g. (of KCN) 1.5 g. seeds 2g. onwards 0.6 to 1g. varied 2.5 g. onward, 0.5 to 1.5 mg. of ergotamine injection .26 mg. of ergotamine orally 12g. 0.2. One powdered seed Not known Not known 0.2 to 0.5g. Uncertain 30 to 250ml. 0.06g. 5 to 10 ml. 8 to 12 seeds 1 g. Crude Opium, 0.25g. morphine by mouth or 0.03g. morphine by injection 0.1 g. to 0.2g.

Caustic alkali

Chloral hydrate

Dhatura

D.D.T. Endrine Ergot

Gammexene

Heroin

Kuchila Lead salts Madar (Aak)

Mercury salts Mushrooms

Methy! alcohol Nicotine

Nitric acid

Oleander (Kaner)

Opium

Organo phosphorus insecticides Oxalic acid Quinine Snake venom

Strychnine Sodium nitrite Sulphuric acid Zinc phosphide

AND

TRIALS,

Within 24 hours or longer A few minutes to a few days A few minutes to a few days 1 to 3 days A few minutes to 24 hours within 24 hours A few hours to a few days 2 to 3 hours 1 to 7 days

1 to 2 hours

One day to several days A few hours

A few hours to several days One day to several days 1 to 4 days A few minutes

A few hours to several days.

A few hours A few hours to a few days

A few hours

4 to log.

A few minutes to few hours

Uncertain 0.02g. through injection 0.05g.

A few minutes to several days A few days Within 2 hours

2g.

30 minutes to 3 hour

4 ml.

A few minutes to several weeks

0.8¢.

Within a day

Note.—The list is not exhaustive. For example, it does not include:

1. Phenols, formalin, cocaine, some poisonous plants of known and unknown nature and industrial solvents. 2. The hypnotics, tranquilizers, mandrax, meprobamate, diazepam and even LSD which are now not uncommon in India.

POISONS

3. Slow poisoning on the mass scale due to atmospheric adulteration of foodstuffs, radiation and effects of war gases. 4. The fatal doses are only approximate. They vary.

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11.2.3 Classification Poisons have been classified differently by different persons engaged in the detection and identification of poisons, in poisoning cases. A poison may be an inorganic or an organic substance. Or, it may be of biological origin. 11.2.3.1 Inorganic Poisons

An inorganic poison may be a metal, a metalloid, a non-metal element, an acid or a base, an oxide or a salt. It may be a gas, a liquid or a solid. Common poisons of this category are arsenic, antimony, lead salts, mercury salts, strong acids, strong alkalis, cyanides, fluorides, carbon monoxide, hydrogen sulphide, chlorine, bromine, iodine, phosphorus, ete. Three patients died during intra-venous saline drip in a hospital. Barium was detected in the viscera of the deceased. The ‘saline’ being injected and the saline bottles lying in stock were found to contain barium chloride solution instead of saline containing sodium chloride. (CH) Instructors continuously working in indoor firing ranges have been known to suffer from lead poisoning caused by lead vapours in the air. 11.2.3.2 Organic Poisons | Organic poisons include the ever-increasing synthetic drugs, alcohols, petroleum products, insecticides, chloro compounds (especially chloroform), aromatic and organo-phosphorus compounds.

Some dock workers, while unloading copper ingots from a cargo ship developed giddiness and vomiting. They were removed to the hospital, where one of them died. Blood from the surviving labourers showed the presence of methaemoglobin. The viscera of the deceased person showed the presence of nitroaniline. The copper ingots, they handled, were stained with some yellow material which on examination was found to be p-nitroaniline. Some bags stored along with the ingots contained p-nitroaniline. (CH) 11.2.3.3 Biological Poisons The biological poisons include all poisonous plants and their parts (leaves,

bark, seeds, fruit, stems and roots) and extracts from these plants. The wellknown poisonous materials from plants are opium, strychnine, cocaine, atropine, cannabis resin, nicotine, cardiac glycosides (digitalis), aconite and many more. Another set of biological poisons come from the animal kingdom. Snake venom and other toxins are the important ones. Snake venom and other poisons of animal origin have not been used for criminal purposes to any appreciable extent. But they cause numerous accidental deaths and it is a field with vast potentialities. Poisons have also been classified according to their misuse. Thus there are poisons for homicide or suicide; or, poisons taken accidentally.

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11.2.3.4 Homicidal Poison The common homicidal cyanide, etc.

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poisons are arsenic, aconite, opium, potassium

11.2.3.5 Suicidal Poisons A suicide may use any poison easily available to him. Barbiturates, opium and arsenic are commonly used. A person working in an electroplating factory consumed some liquid used in electroplating work in order to commit suicide. His stomach was found to be highly congested at the time of post-mortem examination. Copper sulphate and cyanide were detected in the sample bottle of the liquid used in the factory and the

viscera of the deceased. (CH) 11.2.3.6 Accidental Poisons Accidental poisoning occurs due to: 1. Poisons are mistaken for food articles or medicine. The gas taps are left on or raw coal is allowed to burn in closed rooms. Poisonous materials like insecticides are carelessly handled. Over-dose of a medicine, like barbiturates, is taken. Quack doctors administer wrong medicines. PY S&S cr

Three separate persons took mag-sulf crystals from a chemist’s shop for laxative use. After ingestion of the same two of them died. The examination of viscera showed the presence of oxalic acid. The original packets of mag-sulf obtained from, the same shop also contained oxalic acid instead of mag-sulf crystals. (CH) Poisons have also been classified according to their effects. Thus we have: 11.2.3.7 Cardiac Poisons The cardiac poisons affect the heart. Digitalis, aconite are the common

examples. 11.2.3.8 Respiratory Poisons

The respiratory poisons affect the breathing body parts. Poisonous gases like sulphur

dioxide,

carbon

monoxide,

hydrogen

sulphide,

chlorine

are

the

examples. 11.2.3.9 Nervous System Poison The nervous system poison affects nervous system of brain, nerves, spinal cord, etc. Examples are opiates, strychnine, hyoscines, etc.

11.3 LOCATION Many poisoning cases remain unreported and uninvestigated. This is because the offence is committed after winning the confidence of the victim. If the poison for administration is selected carefully, the offence may not be apparent ever to the victim himself. The first requirement in any investigation of a poisoning case is to establish the corpus delicti. Replies to the following questions help the location of evidence.

POISONS

751

. Was the victim healthy, free from any disease? . Was the attack of ‘sickness’ sudden or slow? . What was the time interval between the onset of the attack and the final

termination in death or recovery? What did the victim eat or drink just before the attack? What was the time interval between the onslaught of sickness and the taking of the food or drink? . Is there some

food or drink left from

the victim’s meal?

If so, is it

normal?

Some people from Ratnagiri complained of vomiting after taking cooked rice. The rice used for the preparation had been purchased from a ration shop. Endrin was detected in the rice sample from the shop and in their vomit. (CH) Z; Did any other person take the same food? If so, what was the effect on the other person(s)? 8. Does the victim show any abnormality in smell of breath, appearance in his excretions (vomit, purges and saliva)? . Did a doctor attend

to the victim? If so, what are the details of the

findings and the medical treatment he received? Did the victim suffer any financial or emotional set back? . Did the victim plan suicide? . Did the victim, his relatives, friends or enemies purchase any poison in the recent past? . Did the victim, his relatives or other acquaintances have access to poisonous materials? . Did the victim’s profession involve contact with poisons; if so, what

type of poisonous material did he handle? . What was the mental and physical state of the victim? Did he have any suicidal tendency? Or, did he suffer from attacks of sudden illness like heart attack? . Did the victim handle dangerous materials in the course of his hobbies? . Did the victim suffer from pains or other disabilities? . How did the victim act or behave before death or unconsciousness? . What were the symptoms before collapse? Did he feel difficulty in breathing or did he vomit or purge? Did he show abnormal physical signs such as convulsions, delirium, paralysis, pupillary changes, cyanosis or drowsiness? Insecticides, pesticides and dangerous drugs are easily available in India. They often cause homicidal, accidental or suicidal deaths. Organo phosphorus pesticides have become notorious in this regard. 11.4 COLLECTION The main sources for the evidentiary clues in poisoning cases are: 1. The scene. bs The onlookers, participants, attendants.

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3. The victim. 4. The doctor who attendant upon the victim. 5. The suspected sources: the drug store, the chemical stores, herbarium, etc.

6. The autopsy surgeon. 7. The culprit. 8. The vehicle used for transportation. 11.4.1 The Scene The evidentiary clues collected from the scene are varied in nature: 1. Vomitus.

. Purged material. . Urine or faeces stains. . Clothes, bed sheets and bed covers.

. Medicines, the victim or his family may have been using. . All containers of medicines

. Remains of food or drink which the victim might have taken or discarded, including sugar, salt, spices, flour, baking powder and cooking recipes. A family on pilgrimage, comprising the parents, their four sons and five daughters lodged in a Dharamshala at Shirdi. The next morning all were found dead in their room. Their beds were stained with blood, coming out of their mouths. The remnants of the food consumed the previous evening, the bloodstains on the beds and the viscera of all the deceased were found to contain phenobarbitone. (CH)

NY W FP OF ND

8. Containers of food and drink, bottles and tins which may be lying at the spot or in the garbage. 9. Cooking utensils. 10. Solids and liquids contained in traps of the sinks. 11.4.2 The Victim The victim may be live or dead. In both cases he is the most important source of evidence. The evidentiary clues may be on his person or on his garments. The materials that must be collected from the deceased are: 1. Clothes. 2. Stains if any. 3. Autopsy material. 11.4.2.1 Autopsy materials

For detection of poisons and toxicological examination the following autopsy materials are a ‘must’: 1. Blood: from artery or vein (not spilt blood) or from heart or from chromic gutter. About 500 ml.

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753

Urine: Total amount recovered through urethal catheter or on opening . Stomach contents: Whole Intestines with contents 30 cm. . Liver containing gall bladder with its contents 100 g. . Kidneys Half of each kidney Spleen Half in adult and whole in children Th following materials are also helpful: Brain Whole Lung One Whole Heart 500 g. Muscles YEP ND Fm Oa YbBone 500 g. o Hair and nails 10 g.

Bones, Shaft of femur bone, hair and nails are useful for chronic metal poisoning. Lung, heart and brain are helpful for gaseous and volatile poisons. Muscles prove useful in acute poisoning cases where the body is extensively putrefied. Muscles are resistant to putrefaction and are not easily decomposed.

11.4.2.2 Non-fatal Cases The victim’s non-fatal case is also the most important source of evidence in poisoning cases. He can give information on the various food, drink or smoking items, which may have initiated the onslaught. He can be the best source to give the symptoms. In addition the following articles should be sent for toxicological examination in non-fatal poisoning cases. t: Purges and vomitus if any

Saliva and other excretion stains, if any Urine: Whole amount Stomach washings . Blood 50 ml., preferably more

. The Dap wy

clothes, bearing stains.

7. Residual food, drinks, drugs, medicine, their containers, etc.

11.4.3 Reports and Opinions

The following documents should also be sent to the toxicologist: 1. Statement of the victim, his opinion relating to the nature of poisons, the symptoms and its effect, if any. . The statements of witnesses, if any, relating to the action and behaviour of the victim. The autopsy /medico-legal reports along with the opinion of the doctor. . The investigating officer’s report relating to the facts about the purchase, storage and handling of poisons, medical treatment and medical history of the victim.

. Copy of the FIR. Request letter for examination containing details of the exhibits.

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In addition to the usual precautions required in handling, packing and dispatching, putrefiables, (blood, stomach contents, etc.) need special care:

e They should be placed in cold rooms/refrigerators. They should be dispatched as soon as possible. ¢ No preservative other than common salt should be added. If acids are suspected to be the poisons no preservative need should be used. In any case the preservative used should be mentioned. ¢ The material should not spill over or get contaminated due to breakage, seepage or through dirty containers.

11.5 THE PROBLEMS The investigating officer should aim at finding answers to the following questions with the cooperation of the concerned persons: 1. Was the victim poisoned? 2. When was it administered? 3. From where was the poison purchased or obtained? 4. What was the nature of the poison? 5. How much poison was given? 6. How was it administered? A female took some liquid from a bottle to commit suicide. While still in semiconscious state she breast fed her six months old baby. Mother and baby both were found dead. Endrin was detected in the remnants of the bottle and viscera of the deceased. (CH) 7. Did the victim die of poisoning? Or, was there other contributing factors to cause death? 8. Was only one or more than one poisons given? 9. Was the poison given in one dose? Or, was it given in many small doses?

11.6 EVALUATION The isolation, identification and estimation of poison from the autopsy material are a tedious task. It is, therefore, necessary to get all relevant information before starting the analysis. 11.6.1 Residual poison

Residual poison at the scene of crime, with the culprit or at the source of procurement makes it comparatively easy to identify, isolate and estimate the poison. If the poison has been administered through food or drink, it is easier to search for the poison in the residual food or drink. 11.6.2 Medicolegal Examination The observations of the doctor indicate certain poisons:

1. Strong acids and alkalis burn the mouth, tongue, throat of alimentary canal, and stomach. They, thereby, perforate, soften and ulcerate the

POISONS

755

tissues coming in contact with them, The colour of the tissues changes from normal to red, reddish-brown or even black. Nitric and _picric acids may change it to yellow. Food materials can also bring about changes in colour. In the latter case, however, inflammation of tissues will be absent. Disease or putrefaction or both may bring about perforation and ulceration, change in colour, softening, etc.. The correct cause should be found out.

2. Alcohol, carbolic acid, chloroform, ether, opium, hydrocyanic acid and yellow phosphorus emit characteristic smell, which permit their identification. 3. Dhatura, aconite, alcohol, nicotine, atropine, hyoscine and belladonna

dilate the pupils. Opium alkaloids and chloral hydrate contract them. 4. Iodine reacts with starch in the food to give violet colour. 5. Powdered glass, metallic powders or plastic material may be found sticking to the surface coming in contact with them.

6. Poisonous plant fragments some times can be detected in the viscera. 11.6.3 Symptoms 1. Vomiting.—Some irritating poisons like arsenic, acids, alkalis, excess of

liquor and certain metallic salts cause vomiting. 2. Diarrhoea.—Some of the agents causing vomiting also cause diarrhoea. 3. Cramps.— Metallic poisons like arsenic, antimony and lead cause cramps. 4. Delirium.—Dhatura, cannabis, alcohol, atropine, hyoscine and LSD cause delirium.

5. Convulsions.—Strychnine, nicotine and cyanides cause convulsions. 6. Paralysis.—Snake venom, aconite and arsenic cause paralysis. 7. Coma.—Barbiturates, opium and its products, carbon monoxide, chloroform and excess of liquor. Snake bite may cause coma. The symptoms described above are sometimes found in individuals suffering from certain diseases. They, therefore, are only rough indicators.

11.6.4 Isolation The isolation of an unknown poison from viscera and other body parts requires systematic processing. Usually the following steps are taken: 1. The material is hashed into slurry. 2. The slurry is divided into three to six equal parts. 3. One of the parts is weighed and acidified. It is steam distilled. 4. The residue is made alkaline and again steam distilled. Volatile poisons, gases, alcohols, phenols, phosphorus, organic liquids and solvents (basic, acidic, neutral) are distilled over in (3) and (4).

5. The individual volatile poisons are tested in the distillates. 6. The non-volatile organic compounds are then extracted. A weighed portion of the material is acidified. It is saturated with ammonium

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sulphate and filtered. The filtrate is extracted with chloroform. The extracts contain acidic and neutral organic compounds. 7. The acidic aqueous layer left after the extraction, is made alkaline and

again extracted with chloroform or ether. The solvent extracts basic organic compounds. Steps 6 and 7 extract all organic compounds. The quantity extracted depends upon their relative solubilities in the two media and also upon the thoroughness of the extraction technique. The main difficulty is interference by fats and proteins. They are precipitated by ammonium sulphate, sodium sulphate, or by other techniques and removed. There are modifications of the original method suggested by Stass and Otto more than a century ago. Isolation of metallic poisons is done through one of the two oxidation processes: wet and dry: In the wet process, the organic matter is destroyed by hydrochloric acid and potassium chlorate or by nitric acid and sulphuric acid mixtures. An excess of oxidizing agent is used for complete oxidation. Thus after the destruction of organic matter, only inorganic anions and cations are left.

In the dry process (used only when the metallic poison is non-volatile) the material is burnt to ash and the ash is tested for the suspected metal poisons Isolation and identification of plant materials (leaves, root, bark, etc.) is a

difficult job. Identification is done by the microscopic study of the viscera and related materials. Quantitative separation of vegetable matter is difficult. The active principles of the materials are tested and identified, often by biological methods. Certain inorganic materials, like glass powder, are isolated by microscopy from the mass for further examination. Some amount is hand picked. 11.6.5 Classical Identification Techniques

The following conventional techniques are extensively employed for the identification of poisons:

1. Colour reactions.—Some colour reactions are very sensitive and can detect a class of poisons in minute quantities. These reactions are often not specific for an individual poison. 2. Melting points——Melting points of an organic substance is often characteristic. For confirmation mixed melting point is taken. The suspected poison is mixed with an authentic sample and if the melting point is not depressed, the identity of the suspected poison is established. The greatest difficulty in toxicology is to procure the sample in sufficiently pure form to get the melting point, even within a close range. Once the substance is guessed, the mixed melting point even with not so pure a sample establishes the identity. 3. Boiling points.—The liquid poisons are identified by their boiling points. Some heavy oils and high boiling point liquids are distilled under reduced pressure. Reference to standard boiling points of liquids indicates the identity.

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757

4. Crystal structure——Most of the substances or their derivatives have definite crystal structures. The substances or their derivatives are crystallized and the crystal structure is studied. 5. Microscopy.—Vegetable materials such as seeds, flowers, leaves, bark, wood

fragments and root particles are identified through microscopy only. Likewise some biological materials are identified through microscopy.

For metallic poisons the following general tests for metals are used in toxicology: 6. Reinsch test.—It is a good screening test. A copper wire, foil or strip is placed in a boiling dilute hydrochloric acid solution of the product. A greyish black deposit indicates arsenic, antimony, bismuth and mercury metals, which are identified by individual tests. For example, for arsenic, the greyish black copper foil is cut into small pieces, taken into a Reinsch tube and heated over a low flame. Characteristic octahedral crystals of arsenic oxide are seen on the cold part of the tube under a microscope.

7. Dithizone.—It is a more or less universal reagent to give coloured complexes with heavy metals. The reagent is dissolved in chloroform and the product is shaken with the solution containing metallic poison from the viscera. The reagent in the chloroform takes up heavy metals, which are identified by individual tests.

8. Spectrography.—Ash obtained in dry process or the product collected by any of the above processes is spectrographed. The elements are identified from their characteristic spectra. The amount is estimated from the densities of the lines, if a weighed quantity is used for the analysis. The criminals frequently use alkaloid poisons. They are detected by the following general tests: 9. Mayer’s reagent.—Potassium mercuric iodide prepared under specific conditions precipitates most of the alkaloids. 10. Wagner's reagent.—lodine in potassium iodide solution precipitates most of the alkaloids. 11. Phospho acid reagent.—Phosphotungstic or phosphomolybdic acids give yellow precipitates with alkaloids. Tannins, platinic acid, picric acid, gold chloride also precipitate alkaloids. 11.6.6 Modern Techniques

In recent decades many sensitive techniques have come into use in toxicological work. The detailed discussions of the same are beyond the scope of this work.

However,

brief mention

is essential to assess and appreciate the

possibilities. They are dependable and the degree of purity required for their examination is not very high. Besides, the techniques are sensitive, specific and require only micro quantities. They, however require costly equipment, advanced training in the handling of the equipment and sufficient experience in the work to interpret the results correctly. Some years ago a labourer went into a pit to clean it. Suddenly he collapsed and died at the spot. It was suspected that 'the pit might have had some poisonous gases inside. The worker must have died by inhaling them. The responsibility for

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his death and hence for compensation would then fall on the factory management. But in case the worker had died of heart failure, his family would get compensation from the insurance company with which he was insured. It was, therefore, necessary to determine what he inhaled at the time of his death. At the autopsy a bubble of air was collected from his lungs. The same was analysed by a mass spectrograph (a costly and highly sophisticated instrument). Complete data about the nature and quantities of the constituents of the air bubble were obtained. It was found to correspond with the standard air composition. The analysis established that the man died of heart failure and not from gas poisoning as was originally suspected. (CH) 11.6.6.1 Chromatography

Thin Layer Chromatography (TLC), Gas and Liquid Chromatography (GLC) and High Performance Liquid Chromatography (HPLC) are being used increasingly in toxicology: ¢ TLC is a method of choice with all toxicologists. It is simple, inexpensive, quick, fairly accurate and applicable in most of the cases. Besides, the sample need not be pure as the process itself purifies the sample. e In gas chromatography a measured amount of the substance to be tested is injected into the column head placed in a heated chamber where it is vapourised or pyrolyzed. The product is carried over by a carrier gas through separating a column. The constituents of the product get separated and pass through a detector. The detector is connected to an automatic recorder. The constituents produce changes, which are amplified and recorded on the chart of the recorder. The chromatogram, thus obtained, is compared with chromatograms of standard suspected compounds for identification. Quantitative estimation is made from the peak area, automatically given by an integrator, attached to the instrument. ¢ The technique is being used increasingly for gaseous, liquid and volatile poisons. Those poisons, which pyrolyse to give identifiable products (e.g., barbiturates) have also been identified and estimated by the technique.

¢ In high performance liquid chromatography, a liquid instead of a gas is used as the carrier. Thus non-volatiles are analysed with the technique. 11.6.6.2 Mass Spectrography Mass spectrograph has now become an excellent tool for the identification of poison in extremely small amount. The instrument is coupled with GLC or HPLC. Almost all types of poisons especially organics can be identified with the technique. 11.6.6.3 Spectrophotometry

Ultraviolet, visible light and infrared rays are employed in spectrophotometers for the detection, identification and estimation of a host of poisons. The sample to be identified is mixed in a suitable substance (solid or

POISONS

759

liquid) and a beam of the rays (infrared, visible light rays or ultraviolet rays) is passed through the sample. The energy consumed depends upon the molecular structure of the compound. The absorption is recorded on a graph. The trace thus obtained is characteristic of the compound, like the fingerprints of a man. UV spectrogram has been utilised for quantitative analysis also. The technique has been made sensitive by using F.T.I.R. instrument. 11.6.6.4 X-Ray

Diffraction

The technique uses diffraction of X-rays through the substance. The diffraction pattern depends upon the disposition of various groups and radicals in the molecule. The pattern is photographed and compared with known diffraction patterns to establish the identity. The comparison is now done by the computers, which carry the relevant software for such comparisons. The technique is useful for both organic and inorganic poisons, which are obtained in powdered form.

Barbiturates, alkaloids, glass and clays have been identified by the technique. 11.6.6.5 Neutron Activation Analysis (NAA)

When various elements are bombarded with neutrons they become radioactive. The extent and nature of radioactivity depends upon the nature of the element and its quantity. The activity is measured by spectrometers. The measurement gives both qualitative and quantitative analysis. Neutron activation analysis is one of the most sensitive techniques known for analysis. It can detect and estimate quantities of elements as small as a picogram (IO -” g.) specifically and accurately. It is used in the detection of metallic poisons, notably arsenic and lead in body tissues like hair and nails. It seems that on St. Helena, Napoleon suffered from chronic arsenic poisoning, with intervening periods of acute arsenic poisoning. In such circumstances, it was deemed interesting to apply the activation technique to find out arsenic content in the hair. The study of Napoleon's hair taken from Emperor Napoleon’s head, probably on the day after his death and kept in a French museum, were made available to the department of Forensic Medicine at the University of Glasgow. They were examined using the Neutron Activation Analysis Technique (Smith, 1959) as follows: The hair sample was weighed (1.72 mg.) and sealed in a polythene container. The sample and the standard arsenic solution sealed in a silica ampoule were irradiated by thermal neutrons for one day at 1012 neutrons per cm.’ per second in a nuclear reactor at the Atomic Energy Research Establishment, Harwell. Thereafter the sample was returned and the arsenic extracted with added carrier. The hair sample was compared with the standard arsenic by modified Gutzeit technique. The activity of the sample and the arsenic content of the hair was calculated. The value found for the sample of hair was 10.38 parts per million. This is high by comparison with the normal mean arsenic content of about 0.8 PPM. Unfortunately, it was not possible to make any distribution studies, as no further hair samples were available. (CH)

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11.6.6.6 Scanning Electron Microscopy

The scanning electron microscopy has come up in a big way to identify biological materials as the technique gives very high magnification which permit easy identification. It has been used for the identification of cannabis and its products. With EDx, it is also used to identify and quantify metallic contents of the clue materials. 11.6.6.7 Radio Immuno Assay (RIA)

Radio Immuno Assay technique is exceptionally useful for materials in small amounts. It is applicable even when the sample is in contaminated condition. Poisons in viscera, etc., are often in small amounts

and contaminated.

The

technique is highly useful in such situations. The technique is sensitive, specific and rapid. The main advantage is that the materials do not require extensive pre-treatment. It is being used increasingly for the identification of poisons. 11.7 INDIVIDUAL POISONS

11.7.1 Arsenic It is one of the oldest poisons known to man. It has been extensively used throughout the ages to poison human beings and animals. 11.7.1.1 Nature Arsenic in the metal or metalloid form is not poisonous but its oxides are highly poisonous. Arsenic oxide is a white tasteless and odourless powder. It is somewhat soluble in water. It can, therefore, be administered in all types of foods and drinks. It is one of the strongest poisons. A pinch of the poison can kill two adults. A teaspoonful is sufficient to kill about a score of persons.

11.7.1.2 Use Arsenic is extensively used in indigenous medicine systems for the treatment of certain diseases (syphilis, rheumatism and skin diseases). It is a strong insecticide. It is used as such for the preservation of wood, wall paper and other articles. 11.7.1.3 Administration

Arsenic for homicidal purposes is mixed with various food articles, cooked food, sweetmeats, Sharbats (soft drink), milk, tea, coffee, liquor and medicines.

In a case from Firozabad, the victim was related to the accused and was living with him. He developed illicit intimacy with the wife of the accused. Subsequently, the accused administered poison in milk to the paramour. Within three hours of taking the milk, the victim was dead. The dead body was removed to the burning ghat for cremation. Meanwhile, the news of the suspicious death spread out and the partially burnt body of the deceased was recovered from the pyre with the help of the police. Arsenic was detected in the viscera of the deceased. A white powder, recovered from the house of the accused, was identified as arsenic. (CH) Apart from foodstuffs, arsenic has been administered through tobacco and cigarettes. It has also been administered as holy water. It has been mixed in ‘enema’ fluid. It has also been injected into the vagina for abortion.

POISONS

761

The poison is more effective in solution and dust form. 11.7.1.4 Symptoms It causes:

1. Giddiness and nausea

2. 3. 5. 6. 7. 8. 9. 10.

Burning pain in the throat and stomach Salivation Vomiting, retching (they may save life). Thirst Cramps Severe diarrhoea Convulsions Coma.

When an excessive dose has been taken, it may cause immediate death without most of the above symptoms. Sometimes the poison may be eliminated due to excessive vomiting and the victim is saved.

Sometimes abnormal symptoms also appear. They are paralysis, maniacal behaviour, delirium and disorders in speech, memory, hearing and vision. 11.7.1.5 Post-mortem Findings

The body may have shrunk. The eyes are usually found sunken. The mucous membranes of mouth, pharynx, stomach and intestines are sometimes found swollen and ulcerated. The stomach wall is often found embedded with arsenic particles and streaked with blood. Liver, spleen, kidney and heart are all affected reagent which permit guess of the identity of the poison. Fatal Dose — 100 to 150 mg Fatal Period ¢ 2-3 hours in acute cases. ¢ 12-24 hours in less acute cases. ¢ Insome cases death occurs after a number of days. ¢ It is cumulative poison and is used for slow poisoning.

11.7.1.6 Detection The poison is detected through the following tests: 1. Reinsch test.— supra page 757. 2. Marsh test.—It is a very delicate test. The suspected substance containing arsenic-compounds is put in a vessel generating hydrogen gas (Woulffe’s bottle). The gas, arsin, is formed. It bums with a garlic smell and characteristic

flame, depositing a greyish residue. 3. Gutzeit test.—A silver nitrate paper turns yellow if it is held in vapours coming out of a heated mixture containing arsenic, zinc and sulphuric acid.

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4. Bettendorffs reaction.—Oxidized material is heated with stannous chloride and strong hydrochloric acid. Blackish precipitate indicates arsenic. 5. Spectrographic analysis—Arsenic is also detected and estimated by spectrographic analysis.

11.7.1.7 Estimation Quantitative estimation of arsenic is done by using the Marsh test, Gutzeit test or spectrographic analysis. The Marsh test is considered the best all round test for the purpose. Iodometric titration is useful after wet destruction of biological materials. 11.7.1.8 Toxicological Materials 1. Vomitus, purges 2. Blood, urine

3. Stomach contents 4. Intestines

5. Liver, kidney, spleen 6. Burnt bones and ash, in case the victim has been cremated.

7. Hair, nails and skin (especially scrappings from the soles of the feet). They are useful in slow poisoning, over a long period. 11.7.2 Cyanides

Cyanides are among the deadliest poisons. They combine with haemoglobin of blood and prevent supply of oxygen to the tissues. 11.7.2.1 Nature The important members of this class are hydrogen cyanide, potassium cyanide, sodium cyanide, mercuric cyanide and silver cyanide. Cyanides are also widely, distributed in nature. Kernels of some stone fruits contain cyanide in significant quantities. Double salts of cyanides (e.g., ferro or ferri cyanides) are practically non-toxic, provided hydrogen cyanide is not liberated from them.

11.7.2.2 Use Cyanides are extensively used in industry, particularly in metallurgy of silver and gold, in hardening steel, in photography and in electroplating. Cyanides are used as insecticides and in some pharmaceutical preparations. Cyanides are also used to kill diseased and unwanted animals and pets.

11.7.2.3 Administration Cyanides are, ordinarily, used for suicidal purposes. They are taken as such or in food materials. The quick and almost painless death encourages their use for the purpose. Cyanides are also used through food for homicidal poisoning. Potassium cyanide is the commonest cyanide used as poison. A person got his imbecile nephew heavily insured. After about a month he invited him for a drink and gave him potassium cyanide in the drink. The man collapsed and died immediately. (CH)

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763

Accidental deaths due to cyanide poisoning occur due to ingestion of cyanides mistaking them for medicine, inhalation of cyanide fumes from insecticidal preparations or from the excessive use of |cyanide containing materials. Accidental cyanide poisoning of cattle takes place when they eat plants containing cyanides in some form. Linseed and Juar Kadvi are notorious for the purpose.

Seven cattle were found dead in the vicinity of water effluent from an electroplating factory. Cyanide was detected in the effluent water sample and in the viscera of all the dead animals. (CH) 11.7.2.4

Symptoms

Cyanide is one of the strongest poisons. It acts quickly. The effect appears within a few seconds symptoms are:

and

the victim is dead within a few minutes. The

1. Bitter taste. 2. Burning sensation.

3. 4. 5. 6. 7.

Smell of bitter almonds. Salivation. Giddiness. Numbness and oppression. Convulsions and paralysis.

11.7.2.5 Post-mortem Findings 1. Skin becomes red or violet in colour. 2. Hands and jaws are clenched. 3. Froth appears in the mouth. 4. Pupils are dilated. 5. There is smell of bitter almonds. 6. In potassium cyanide poisoning, potassium hydroxide may, in addition, produce the sign of strong alkali poisoning, inflammation and ulceration of the mouth, food tract and stomach, especially if a large dose of potassium cyanide has been taken. 11.7.2.6 Isolation The cyanide is isolated from the tissues and other biological materials by steam distillation of the acidified (with dilute sulphuric acid) solution of the slurry. The distillate is collected in cold caustic alkali solution. 11.7.2.7 Detection 1. Odour.— Characteristic odour of bitter almonds. 2. Colour test: * Prussian Blue Test. The solution containing cyanide is made alkaline with caustic potash, 0.5 ml. of freshly prepared ferrous sulphate

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solution and a few drops of ferric chloride solution are added to it. The mixture is warmed and acidified with dilute sulphuric acid. Blue colour or a blue precipitate indicates the presence of cyanide. The sensitivity limit of the test is 0.2 microgram. e Sulpho Cyanide Test. The alkaline solution containing cyanide is. treated with a few drops of yellow ammonium sulphide. It is then evaporated to dryness on a hot water bath. The residue is dissolved ina few drops of dilute hydrochloric acid. It gives blood red colour with one drop of ferric chloride solution. Its sensitivity limit is 0.25 microgram. 11.7.2.8 Estimation The cyanide is estimated by titrating against silver nitrate solution in the presence of dilute sodium hydroxide solution. End point is noted with acetone solution of rhodamine, which gives change of colour from yellow to pink. 1 ml of N/200 silver nitrate solution = 0.266 mg HCN = 0.652 mg KCN = 0.4915 NaCN 11.7.2.9 Toxicological Materials 1. Vomitus purges 2. Blood 3. Viscera 4. Intestine 5. Brain 6. Liver

The accused and his wife, along with the deceased rented and occupied a room under false names and address in a hotel at Varanasi. They placed an order for four bottles of soda and ice, which were immediately supplied to them. About half an hour later, the waiter came back with potato chips, etc., and knocked at the door. The lady partly opened the door and took the articles. After some time the waiter returned to collect the utensils and knocked at the door. As the lady unbolted the door, the waiter pushed the door open and entered the room. He saw the deceased lying unconscious on the cot. The couple told the waiter that the deceased was unconscious due to excessive drinking. They also allured the waiter by offering him twenty rupees for not disclosing it to anybody. But the waiter at once ran to the manager and told all. Meanwhile, the couple attempted to run away but were apprehended by the manager and handed over to the police. Potassium cyanide and alcohol were detected in the left over portions of the drink and in the viscera of the deceased. Traces of potassium cyanide were also detected in the vomit stains on the towel, shirt and vest of the deceased. A whisky bottle recovered from the scene of occurrence was found to contain a few drops of alcohol. (CH) 11.7.3 Copper Sulphate Anhydrous copper sulphate is a white powder. It crystallizes with water to

give blue crystals.

POISONS

71.7.3.1 Use It is frequently

used

in industry,

horticulture

765

and

as a_

swimming pools and as medicine.

disinfectant

in

11.7.3.2 Administration The administration of the poison is rarely homicidal. Accidental and suicidal intakes are comparatively more frequent. It is taken through the mouth either in pure form or mixed with food. It, however, can be administered through the vagina, rectum, abraded surface and by injection.

- 11.7.3.3 Symptoms 1. Metallic taste. © 2. Burning sensation in the stomach. 3. Salivation, thirst and nausea.

4. Vomiting and diarrhoea.

5. Convulsions and paralysis in severe cases. 6. Coma and death. 11.7.3.4 Post-mortem Findings

1. Greenish blue froth.

2. Mucous membrane of alimentary canal is inflamed and ulcerated. 3. Copper may be found deposited inside.

11.7.3.5 Isolation

1. By incinerating it in an electric furnace at 550°C. 2. By wet oxidation method with sulphuric and nitric acids. 11.7.3.6 Detection 1. Gives black precipitate in acidic medium with hydrogen sulphide. 2. Potassium Ferrocyanide solution gives chocolate brown precipitate with copper salts in acetic acid medium. 3. An acidic solution containing copper salt deposits copper on an iron wire. 4. Spectrography gives reliable results. 11.7.3.7 Estimation

1. Spectrographically. 2. Colorimetrically: Sodium diethyldithiocarbamate forms a complex with copper which is soluble in amy] alcohol. It is estimated with a colorimeter from the solution. 3. lodometric titration also gives reliable results. 11.7.3.8 Toxicological Materials 1. Vomitus, stomach washings

2. Stomach contents 3. Intestines

4. Liver, kidneys

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11.7.4 Barbiturates Barbiturates are hypnotics and sedatives. The number of these substances has increased tremendously in recent years. They are derivatives of barbituric acid. They are white, odourless and slightly bitter in taste. Fatal poisoning occurs due to excessive doses. They are frequently met with in suicide cases but _ may also occur in homicidal cases. They are given when the victim is drunk. Accidental poisoning is rare. A female was found dead in the bed. Some blood was seen near her mouth. She had taken bread and tea before going to bed. The nightgown and the bed sheet were stained with blood and there were also some brown stains, probably from tea. Barbiturate was detected in the blood stains and the brownish spots separately. Barbiturate and ethyl alcohol were detected in the viscera and the post-mortem blood sample from the deceased. (CH) 11.7.4.1

Classification

The barbiturates are classified according to the time they take to act on the body. Thus, we have:

1. Long acting barbiturates.—They Phenobarbitone,

etc. Commercially,

are -Barbitone, Pheno-barbitone, Methyl the products

are

known

as Medinal,

Veronal, Gardenal, Luminal, Somonal, Prominal, etc. The action of these barbiturates usually commences after an hour or more and lasts for 6 to 10 hours. 2. Intermediate acting barbiturates.—They are Allobarbitone, Butobarbitone and Amylobarbitone. Their commercial names are Dial, Amytal and Soneryl. The action of these barbiturates starts in about 30 minutes and their effect lasts for 5 to 6 hours. They are less likely to leave the patient sleepy the next day than the long-acting barbiturates. Therefore they are widely used against insomnia. 3. Short acting barbiturate-——They are Cyclobarbitone and Pentobarbitone. Commercial

names

are Phenedran,

Cyclonal, Nembutal,

Seconal. They are

effective within 15 minutes and their action lasts for 2 to 3 hours only. They are specially suited for people who have difficulty in going to sleep. 4. Ultra short acting barbiturate—They are Pentothal, Thiopentone sodium, Hexa barbitone. These are used as rapidly acting anaesthetics. They are given alone or in combination with inhalation anaesthetic. 11.7.4.2 Use

They are widely used in combination with other medicines to give relief from pain and to induce sleep.

11.7.4.3 Administration Barbiturates are commonly given through the mouth but they are also injected. 11.7.4.4 Symptoms

1. Mental confusion 2. Coma, which may last for days

POISONS

767

3. .Muscular weakness 4. Death Post-mortem findings—Nothing characteristic 11.7.4.5 Detection

1. A few drops of million’s reagent give a white precipitate. 2. Fusion with caustic soda gives out ammonia. 3. Melting points are characteristic. 4. The solution of barbiturate gives violet colour with isopropylamine and cobalt nitrate solution. All solutions are taken in absolute alcohol. 5. Thin layer chromatography gives characteristic R, values. 6. UV and IR spectra are characteristic. 7. Gas chromatography gives characteristic traces of pyrolyzed products.

11.7.4.6 Estimation 1. Semi-quantitatively, by comparing the area of the developed spot on thin layer chromatogram with the spot area of known amount of the barbiturate. 2. By titrating the alcoholic solution of barbiturate with silver nitrate solution. The end point is observed by the appearance of slight yellow turbidity. 3. By spectrophotometry and gas chromatography 11.7.4.7 Toxicological Materials 1. Stomach contents 2. Urine, blood

3. Kidney 4. Brain 5. Liver

11.7.5 Organo-phosphorus compounds

11.7.5.1 Nature Organo-phosphorus compound, as poisons, have become common only in the past few decades. They are alkyl and aryl phosphates. They are powerful insecticides and are deadly poisons. Important ones are: Folidoll (parathion), Tik 20 (Sumithion, diazinone), Malathion, Meta Systox, Rogor (Dimethoate), Dimecron (Phosphamidon), Fenitrothion, Fensulphothion, Thio-demeton, Dalf, Diptere, Baytese, H.E.T.P., T.E.P.P., O.M.P.A., etc.

They are complex organic compounds containing sulphur, phosphorus and other organic radicals, mostly in the form of alkyl and aryl phosphate.

11.7.5.2 Use These compounds are used extensively in agriculture and horticulture. They

are also used to kill household bugs, flies and other pests.

11.7.5.3 Administration These substances are taken in food or inhaled accidentally. As they are very strong poisons, they can be and are used and are increasingly being used for

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homicidal and suicidal purposes. They can be administered through injection also. 11.7.5.4 Symptoms 1. Headache, giddiness and nausea.

2. M7 4. 5.

Salivation and vomiting. Diarrhoea, spasm abdominal cramps. Mental confusion and delirium. Paralysis, coma and death.

11.7.5.5 Post-mortem Findings

1. Nothing characteristic, through usual signs of asphyxial death are seen in many cases. 2. Kerosene oil like smell.

3. Pulmonary odema.

11.7.5.6 Isolation The organo-phosphorus compounds are steam volatile. The tissues and other biological materials are acidified with phosphoric acid and steam distilled. The distillate

is extracted

with

hexane,

which

on

evaporation

gives

residue

containing organo-phosphorus insecticide.

11.7.5.7 Detection and Estimation ¢ Parathon, Sumithion, etc. having para-nitro-phenyl group, give yellow colour on heating with alkali. ¢ The nitro group in the compound is reduced to amino group, which after diazotisation and coupling with B-naphthol, etc., gives intense coloured dyes ¢ Thin layer chromatography on silica gel-G using rhodamine B spray followed by exposure to bromine vapours gives purple spots against white back ground. R, values are characteristic for each individual organo-phosphorus compounds. ¢ UV Spectrophotometry. A young girl of 20 years was residing with the warden of the working women’s hostel in Lucknow. During the absence of the hostel inmates during the daytime she was seen reading up to 4 p.m. A female cook was also present in her room. In the evening she gave money to the cook to bring vegetables, etc., and who, on returning, found that the room was bolted from inside and there was no response. The warden, on her return in the evening, got the door broken open and was surprised to find the girl dead. An organo-phosphorus insecticide (NOK 99) was detected in the viscera and in the vomit stained clothes and bedding. The insecticide was also detected in the blood and faecal stains on the dhoti and petticoat of the deceased. (CH) 11.7.5.8 Toxicological Materials 1. Vomitus 2. Urine, blood

POISONS

769

3. Stomach contents 4. Liver Organic phosphorus poisoning can be detected even in putrefied bodied 11.7.6 Vegetable poisons Plant poisons are more frequently used in the East than in the West. The common vegetable poisons are derived from poppy, dhatura, oleander and Madar. Other important poisons derived from plants are strychnine (obtained from Kuchila, i.e., Strychnos nux vomica), nicotine (from tobacco), aconite (Mitha Zahar, from Aconitum napellus) and atropine (from Atropa belladonna). Besides,

there

is a host of other poisons

which

kingdom and have been used from time to time.

are available

in the plant

|

11.7.7 Opium

11.7.7.1 Nature Opium is the dried juice of unripe white poppy heads. It is plastic when fresh and moist, but on complete drying it becomes hard and brittle. It is dark brown. in colour in the dried state. It is grown in many parts of the world, including India. Its cultivation is restricted in India and in most of the other countries. Usually, the governments supervise the cultivation and harvesting. However, smuggling of the opium continues.

Opium is a complex mixture of alkaloids. The most important constituent is morphine, which is extensively used as such in the form of its salt. Its derivative heroin is used only illegally as a narcotic drug as its use is banned throughout the world. Other important alkaloids in opium are codeine, narcotine, papaverine and thebaine. Opium is a habit-forming drug. It is not easy to give up the habit of taking opium. Opium as such is used in India, while morphine, heroin and other derivatives are more common in Western countries but they are becoming increasingly available here also. Heroin is the most dangerous of them all. Its use is illegal everywhere. “Smack” or “Brown Sugar” are other names of the crude form of heroin.

11.7.7.2 Use Opium and its products are extensively used in all systems of medicine as painkillers, sedatives and as a narcotic. A person aged 23 consumed liquid from a bottle labelled “Klesh Hari” (Pain Reliever). He died in a few hours on way to the hospital. Alcohol and opium were detected in ‘Klesh Hari’ as well as in the viscera of the deceased. (CH)

11.7.7.3 Administration Opium, its constituents and their derivatives are taken by various methods,

orally, (alone or with food), by injection and through smoking. It is also possible to introduce them through wounds, rectum and vagina. Opium is mostly used in suicides. Its bitter taste makes it unfit for homicidal purposes, though it is sometimes used as an infanticidal poison. Accidental

-*

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‘

poisoning by opium and its products is rather rare. It happens in cases where the addict may have exceeded his normal dose. 11.7.7.4 Symptoms

The effect of opium depends upon the quantity taken, health and habit of the individual and mode of administration. The following effects are observed in poisoning cases:

1. Excitement in the initial stages 2. Headache, nausea and vomiting 3. Drowsiness, contraction of pupils and unconsciousness 4. Death. 11.7.7.5 Post-mortem Findings

1. Characteristic smell of opium. It is not present if the body has putrefied. 2. There are signs of asphyxia (froth in mouth and nostrils). 3. Opium may be found in the stomach. 11.7.7.6 Isolation The minced tissues or other biological materials are treated with 5 per cent acetic acid. Ammonium sulphate is used for deproteinisation. Material is heated on a water bath for about 6 hours. The filtrate is extracted with an organic solvent in an alkaline medium. 11.7.7.7 Detection

1. Huseman test.—To the dry residue are added a few drops of concentrated sulphuric acid and heated on boiling water bath for 30 minutes. After cooling nitric acid is added to it. Red colour indicates opium. 2. Oliver's test.—The residue is taken in a few drops of dilute acetic acid. To it two drops of hydrogen peroxide are added and is made alkaline by adding a few drops of ammonium hydroxide. The resulting solution is agitated with a clean copper foil. When effervescence ceases the solution assumes wine red ~ colour. 3. Meconic acid test.—Neutral solution of ferric chloride gives blood red colour which persists even after addition of dilute hydrochloric acid and mercuric chloride solution. 4. Porphyroxin test.—On heating the residue with dilute hydrochloric acid, it gives pink colour. 5. Marquis reagent.—(2 ml. concentrated sulphuric acid containing 2 drops of formalin) The reagent gives purple-red to violet colour. 6. Meck’s reagent.—(1 % selenious acid solution in concentrated sulphuric acid) The reagent gives brown to green colour. 7. Thin layer chromatography (TLC).—TLC give characteristic R, values for individual alkaloids of opium.

|

POISONS

771

11.7.7.8 Estimation

The purified extracted residue is dissolved in neutral ethyl alcohol. A known volume of 0.02 N sulphuric acid is added to it and kept on a water bath. After 30 minutes the unreacted sulphuric acid is titrated against 0.02 N NaOH solution using methyl red indicator. Each ml. of 0.02 N-Sulphuric acid = 57.0 mg. opium approximately.

11.7.7.9 Toxicological Materials 1. Vomitus

2. Blood, urine 3. Stomach contents

4. Intestines, liver, kidney, brain 11.7.8 Dhatura

Dhatura (Datura fastuasa) exists in many varieties. It grows in the wild. It is also known as thorn apple. All parts of dhatura are poisonous but seeds and

fruits are especially so. The active principles are hyocyamine and hyoscine (Scopolamine). Traces of atropine are also found.

There are about 400 to 500 seeds in each fruit (Thorn Apple).

Fig. XI-2

Dhatura branch with flower and fruit.

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Fig. XI-3 Dhatura Seeds. One fruit contain 400-500 seeds. The whole plant is poisonous but seeds are especially so.

11.7.8.1 Use/Abuse Dhatura is used in Ayurvedic system of medicine. It is misused as abortifacient. It is mixed in liquors to enhance the intoxication effect. The criminals often use it to stupefy: ¢ Persons to rob them. ¢ Children to kidnap them.

11.7.8.2 Administration Dhatura is administered in the following ways: e Seeds and leaves are mixed with tobacco and given as smoke. ¢ The powdered seeds are mixed in sweetmeats (given as PARSAD) and in food and given to the victims. e Aqueous extracts of plants especially of the seeds, are mixed with liquor and given to the victim as a drink. A boy found in an unconscious state was found on Kalyan railway station. He was taken to the hospital where he died. The viscera showed Dhatura poisoning. A sadhu had given him PRASAD from Hajimalang a few hours earlier. The sadhu was located and searched. He still had some PRASAD. The examination showed dhatura in the PRASAD. (CH) The complainant, with two other companions, was stationed at Durg railway station. An unknown person gave them PRASAD. They became unconscious.. The complainant was relieved of his money. In the hospital the victims recovered. Dhatura was detected in the stomach wash of all the persons. The culprit could not be traced. (CH)

POISONS

773

Accidental or suicidal dhatura poisoning cases are rare. It is seldom used as a homicidal poison. 11.7.8.3 Symptoms

1. Bitter taste, difficulty in speech, excessive thirst, dryness of mouth and throat. 2. Burning pain in stomach.

3. Dilated pupils, flushed face. 4. High temperature—‘ hot as hare ’inhibits sweating. 5. Delirium, restlessness, confusion, hallucination, giddiness. 6. Coma

11.7.8.4 Fatal Dose e Usually non-fatal, but excessive dose: 100-125 seeds ( 60 mg. of dhaturine) can prove fatal. Corresponding dose of dhaturine for children is about 4 mg. ¢ 60 mg. of hyocine ( the active alkaloid).

11.7.8.5 Fatal period About 24 hours though often dhatura poisoning is not fatal. 1 1.7.8.6 Post-mortem Findings There is nothing characteristic. Seed may be found in viscera, gastrointestinal track may be congested, asphyxial signs are often present.

11.7.8.7 Isolation , The minced tissues or other biological materials are treated with 5% acetic acid. Ammonium sulphate is used for deproteinisation. The material is heated over boiling water bath for six hours. The filtrate is extracted with organic solvent in alkaline medium.

11.7.8.8 Detection 1. Microscopic Test.—Microscopic examination of seeds or fragments of seeds picked up from stomach content’ or vomitus shows characteristic features. 2. Psysiological test—One drop of the purified extracted residue (in 0.5% acetic acid) is installed in cat’s eye which becomes dilated after a few hours. 3. Chemical test (Vitalis test)—A few drops of concentrated acid are added to dry residue in a porcelain basin and evaporated to dryness on a hot water bath. After cooling a drop of freshly prepared alcoholic caustic potash solution is added which gives violet colour. 4. Thin layer chromatography (TLC).—TLC gives different R, values for different constituents of dhatura, such as atropine, hyoscine, etc.

11.7.8.9 Estimation The extracted purified residue containing Dhatura alkaloids is dissolved in neutral ethyl alcohol. A known volume of 0.02 N sulphuric acid is added to it and kept on a water bath. After 30 min. the unreacted sulphuric acid is titrated against 0.02 N sodium hydroxide solution using methyl red indicator.

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~

Each ml. of 0.02 N sulphuric acid used = 5.786 mg. atropine alkaloid.

11.7.8.10 Toxicological Materials 1. Vomitus

2. Purges and faeces 3. Stomach contents and wash

4. Blood and urine 5. Intestines.

11.7.9 Oleander 11.7.9.1 Nature Oleander is grown in gardens and on roadsides for the beauty of its flowers. It has two varieties, white oleander and yellow oleander.

All parts of the plants are highly poisonous. The active poisonous substances are, ‘nerin’ in the case of white oleander and ‘Cerberin’ and ’ Thevetin ’ in yellow oleander. They are glycosides and behave like digitalis The plant parts have been used as suicidal and homicidal poisons.

11.7.9.2 Use Roots and leaves of the plants are used as medicine in cancer and ulcer treatment. They are also believed to be effective against venereal diseases. The bark in small doses is used as an antipyretic. The roots and leaves are used both internally and through vagina to cause abortion. It is also used as a cattle poison. 11.7.9.3 Administration Oleander poisoning is often accidental when it is used as a medicine to secure abortion. It is also used for suicidal purposes. Homicidal administration is rather rare. Oleander is administered as pills. It is mixed with food materials, sweets, soft

drinks and liquors. Or, it is administered in the form of decoctions of its roots and leaves. 11.7.9.4 Symptoms

1. Burning sensation in the mouth and throat, frothy salivation. 2. Vomiting and diarrhoea with abdominal pain. 3. Dizziness, lock jawing, death and fainting. 11.7.9.5 Post-mortem Findings There is nothing characteristic. However seed or leaf fragment may be found even in putrefied bodies. Gastrointestinal track may be congested. 11.7.9.6 Detection

1. It gives pink colour on warming with sulphuric acid or phosphoric acid for some time, at 100°C. 2. Ether extract gives crimson colour with sulphuric acid and ferric sulphate.

3. Ether extract, when injected into a frog, produces convulsions.

POISONS

775

11.7.9.7 Toxicological Materials 1. Vomitus, purges, faeces 2. Urine, blood 3. Stomach contents. 4. Intestines

11.7.10 Madar (AAK, AKDO) 11.7.10.1 Nature Madar grows in the wild. All parts are poisonous. There are two varieties one has purple flowers and the other has white flowers. It contains a number of active principles which vary with terrain and climate. Some of the principles are highly poisonous.

Fig. XI-4 A flowering branch of Aak (The plant is used as medicine as well as poison).

11.7.10.2 Use All the parts of the plant are used in the Ayurvedic system of medicine. It is used to cause abortions. It is also used in tanning of leather. Snake charmers sometimes keep the roots of the plant to control poisonous snakes, which do not like its smell.

11.7.10.3 Administration Madar leaves, flowers, juice and roots are used for criminal purposes. They are given orally or introduced through the vagina or rectum. They are also used to poison cattle. A rag smeared with madar juice is placed in the rectum of the animal. Excessive doses of madar preparations prove fatal. The various parts of the plant have also been used for homicidal and suicidal purposes.

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11.7.10.4 Symptoms 1. Bitter taste.

2. Burning pain in the throat and stomach. 3. Salivation, restlessness, breathing problem.

4. Vomiting and diarrhoea.

5. Dilated pupil. 6. Convulsion, collapse and death.

11.7.10.5 Post-mortem Findings 1. Inflammation of food tract and stomach walls.

2. Blood may be discharged from the mouth and nostrils. 3. Congestion in stomach, intestines, liver and brain. 11.7.10.6 Detection The extract is identified by: 1. Characteristic smell. 2. Formation of ester. 3. Colour test. 4. Biological test. Injection of purified extract in a frog causes convulsions. 11.7.10.7 Toxicological Materials 1. Vomitus, purges, faeces 2. Stomach contents 3. Intestines 11.7.11 Animal poisons The snakes, scorpions, flies, insects are poisonous. The most important from’

the fatal poison point of view is the snake. There are about 2500 species of snakes in the world, of which over 200 varieties are found in India. Some snakes

are not poisonous or dangerously poisonous, only about 50 of them are dangerous. Some of them, e.g., cobra, krait and viper are very poisonous. 11.7.11.1 Snake Venom Snake venom is a clear transparent liquid. It is toxic even in the dry state. Snake venom contains a number of poisonous materials, including neurotoxins, haemotoxins, cardiotoxins, which affect the body and its parts in different ways. They have usually the following toxic effects: ¢ Neurotoxic effect. The venom affects the nervous system. The person feels weak, giddy, and lethargic. The weakness slowly changes into paralysis.

*¢ Haemotoxic effect .The blood does not clot. The wound continues to bleed. The toxin lysin present in some venoms is responsible to lyse the protein, fibrinogen, responsible for coagulation.

POISONS

777

' Snake venom is dangerous when injected into the blood stream. It is comparatively harmless when taken orally. If there are injuries or ulcers in the mouth or in the food canal, snake venom poisoning takes place.

11.7.11.2 Administration Snake venom is rarely used for criminal purposes though there are reported cases where animals were poisoned by snake venom. It was administered through the vagina or rectum. Alternatively, snake may be made to bite an animal. However, in some homicidal cases, where the death is alleged to be from

snakebite, the presence of snake venom may have to be checked. Deaths from accidental snake bites are frequent in warm and moist climates. 11.7.11.3 Symptoms

The exact nature of the symptoms varies with the type of snake and the site of the bite but the general symptoms of the snake venom poisoning are: 1. Burning pain. 2. Swelling and inflammation at the site of bite. 3. Giddiness, nausea and vomiting. 4. Lethargy, muscular weakness, spreading paralysis. 5. Bite from a krait may cause severe pain in the abdomen and convulsion before death. 6. Difficulty in breathing, swallowing, respiratory failure. 11.7.11.4 Post-mortem Findings

1. Bite marks on the body of the deceased. 2. Haemolytic purple blood. 3. Local necrosis, peeling of skin in some cases. 4. Oozing of the blood from the site of the bite especially in viper bite.

11.7.11.5 Detection Snake venom is tested by injecting the extract in frogs, with and without antivenom serum. The frog without anti-serum should die and the other should survive. The local washings from the site of bite are also useful for test purposes.

11.7.11.6 Estimation The fatal dose of the extract for a frog is determined. The total quantity is then calculated from the fatal dose. 11.7.11.7 Autopsy Materials

1. Skin around the bite. 2. Blood. 3. Kidney.

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11.8 MISCELLANEOUS POISONS 11.8.1 Methyl Alcohol

17.8.1.1 Nature Colourless liquid. Boiling point 64.7°C. Miscible with water and alcohol in > all proportions.

11.8.1.2 Use Methyl alcohol is used as a solvent and in the manufacture of dyes and varnishes. It is also used for the preparation of denatured spirit commonly known as methylated spirit. It is poisonous and causes blindness. It may also prove fatal. It comes to public mostly as methylated spirit which contains in addition

to ethanol, pyridin, napthalene and choutchoucure.

The last three

compounds are added to make it repulsive for drinking purposes.

11.8.1.3 Administration Public comes across methyl alcohol in the form of methylated spirit, which in diluted form is sold by clandestine vendors as alcoholic beverages. 11.8.1.4 Symptoms 1. Dizziness

2. Headache 3. Vertigo 4. Nausea and vomiting 5. Abdominal pain

6. 7. 8. 9.

Blurred vision, partial or complete blindness Breathing difficulty, delirium Convulsions, coma Respiratory failure—death.

11.8.1.5 Post-mortem Findings 1. Mucous membrane of the stomach is inflamed 2. Lungs are swollen 3. Congestion of lung and brain. 11.8.1.6 Fatal Dose Variable. Usual: 60-200 ml. Yet 15 ml. has caused blindness.

11.8.1.7 Fatal Period

Usually 24 to 36 hours. But in one case a person has died in one hour. In another case, death occurred after 4 days.

11.8.1.8 Isolation It is isolated by steam distillation of the acidified minced tissues and other biological materials. The distillate contains methyl alcohol as well as ethy! alcohol, if present, along with water.

POISONS

779

11.8.1.9 Detection 1. Chromotropic acid test—One drop of the distillate is mixed with one drop of 5% phosphoric acid and one drop of 5% KMn0O, solution. After 5 minutes

sodium bisulphite solution (5%) is added drop-wise, until the solution is clear.

Then 5 ml. of chromotropic acid solution (50 mg. in 100 ml. H,,SO,) is added and heated in a water bath at 60° C for 30 minutes. A violet colour indicates the

presence of methy] alcohol. 2. Schiffs reagent test—To 5 ml. of the distillate are added 2 ml. of 3% KMnO,

solution and 0.3ml1 of concentrated phosphoric acid. After shaking, the contents are left for 10 minutes. Then 1 ml. of 10% oxalic acid solution and 1 ml. concentrated H,SO, are added. After cooling, 5 ml. of Schiff’s reagent is added, shaken thoroughly and kept for 30 minutes. A pink to purple colour is developed in the presence of methy] alcohol. 11.8.1.10 Estimation Estimation is done:

¢ By tests (1) and colorimeter

(2) described

under

detection,

using appropriate

° By spectrophotometer ¢ By gas chromatography. 11.8.1.11 Toxicological Materials 1. Blood and urine 2. Vomitus

3. Stomach contents 4. Tissues

In an outbreak of poisoning due to illicit liquor in the districts of Kanpur and Nainital, many persons suffered from visual disturbances, lost their eye sight and died after consumption of the alleged liquor purchased from clandestine vendors. Ethyl alcohol and methyl alcohol were detected in the portions of viscera of some of the deceased persons, while the deaths of the other victims (from Nainital) were attributed to be due to consumption of tincture ginger prepared from denatured methylated spirit. (CH) 11.8.2 Abrus Precatorious (Indian Liquorice Gunchi, Rati)

The seeds are generally of red colour with a black spot at one end. Sometimes white seeds are also met with. The active principle of abrus precatorious seed in ‘abrin’, a thermolabile tox-ablumin. The powdered seeds are usually employed for destroying cattle. Sometimes it is also used for homicidal purposes in the form of ‘suis’ by pricking into the skin. Inflammation, oedema and necrosis surrounding the site of the puncture occurs, followed by death within one to five days. The symptoms of abrus poisoning are very much like those of snake poisoning. Abrin is deactivated by boiling. Gastric juices also reduce its poisonous

properties. It is highly poisonous if introduced in the blood stream. About 10 micrograms of Abrin can kill a normal person if injected into the body.

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Fig. XI-5 Rati (Abrus precatorious) is one of the most potent poisons

when its extract is injected in the body.

.

The sodium chloride solution of the fragments of the ‘Sui’ or of the seeds, when injected into a fowl produces inflammation and necrosis at the site of injection, followed by death of the bird within one to three days.

11.8.3 Aconite Among Indian species, ‘Aconitum Chasmanthum’ is the chief source of aconite. It is largely used in medicine. The root and all the parts of this plant are poisonous, the main toxic principle being aconitine. Cases of suicidal and homicidal poisoning by aconite often occur in India. The extract of aconite when applied on the tongue produces tingling and numbness of the tongue and lips, lasting for several hours. This is the characteristic and confirmatory physiological test of this poison. The fatal dose is about 2 gms. of aconite rot. The active principle aconite can prove fatal in less than 5 mgs. The fatal period is less than 20 hours.

11.8.4 Barium Carbonate This is a fine white powder, largely used as roat poison. Free hydrochloric acid of the stomach converts it into soluble barium chloride—a_ highly poisonous substance. 11.8.5 Cannabis

In India, the products of this plant are commonly known as bhang, ganja and charas. In other countries the cannabis products are known by a host, of names. The odour is characteristic and is more prominent when the substance is burnt.

a

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781

The main active principles of plant are cannabinol, cannabidiol, tetrahydrocannabinol (THC) and _ cannabidiolic acid, but only tetrahydrocannabinol is mainly responsible for its physiological activities. Fatal poisoning of human beings by cannabis products is rare but the symptoms of chronic poisoning are sufficiently serious. The patient lives in a state of stupor and suffers from melancholia and hallucinations. Cannabis or its products are not poisoning problems in India.

11.8.6 Carbon Monoxide Carbon monoxide is a highly poisonous gas. Carbon monoxide poisoning generally occurs when the person is asleep in‘a clesed room in which a coal ‘angithi’ is burning. Carbon monoxide is absorbed in. the blood through the lungs and forms carboxy haemoglobin, and thus the oxygen carrying capacity of the blood is reduced, which results in death. When blood saturation is over 40%. Air is safe only if carbon monoxide is less than 0.01 per cent. If it exceeds 0.25 per cent, the man dies in about 4 to 5 hours. One per cent carbon monoxide in the air can kill a person in minutes (~ ) 15 minutes. The detection and

determination of carbon Reversion Spectroscope.

monoxide

in the blood

is done by Hartridge’s

11.8.7 Caustic Alkali Caustic soda, caustic potash and other hydrates and carbonates act as corrosive poisons when consumed in the concentrated form. But in dilute form they act as irritant poisons. The main symptoms are acrid and soapy taste, sense of heat and burning pain in the throat and stomach. Death may occur from suffocation due to inflammation of the glottis or from broncho-pneumonia. 11.8.8 Chloral Hydrate

This is a colourless, crystalline substance having a characteristic pungent smell. It is readily soluble in water and alcohol. In certain districts it is known as ‘Sukka Sharab’ (dry liquor). It is added to alcoholic drinks by clandestine vendors to increase the potency of the drink. It is also used as a hypnotic in medicine. 11.8.9 Cyanogenetic Glycoside

Certain naturally occurring vegetable substances such as bitter almond, certain oil seeds as linseed, leaves of cherry laurel, kernels of common cherry,

plum, peach, certain stone fruits, Juwar plant and other millets contain poisonous substances known as cyanogenetic glycosides. In the presence of water and a natural enzyme called emulsin, these cyanogenetic glycosides are readily hydrolysed and free hydrocyanic acid is liberated, which is a deadly poison. The presence of cyanogenetic glycoside can be tested by copperbenzidine, guiacum or picric acid test papers. 11.8.10 Ergot It is a parasitic fungus, attacking the grains of several plants such as rye, oats, wheat, barley and bajra in wet seasons.

It is used

in some

medicinal

preparations. As its action on the uterus is more effective, it is largely used as an abortifacient. Generally, its reckless use in the hands of quacks results in death.

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11.8.11 Kuchila The seeds of Kuchila (Strychnos nux vomica) are very poisonous. They are grey coloured flat circular discs slightly concave on one side having a shining surface with short silky hair. These seeds contain two main alkaloids, strychnine and brucine. Both the alkaloids are poisonous but strychnine is about 10 times more poisonous than brucine. The symptoms are’ similar stiffening of the body sporadically to start with and then continuously.

11.8.12 Lead Salts Lead acetate, carbonate, chromate, nitrate and other salts of lead are poisonous. Lead poisoning known as plumbism occurs mainly among people working in industries and factories dealing with lead and its salts. The poisoning occur due to inhalation of lead dust and fumes. It also results from tinned food stuffs which get contaminated with lead. In the case of plumbism, lead is excreted through urine and faeces. Sometimes, lead particles due to gunshot injuries, which remain embedded in the body may also produce poisonous symptoms after weeks or even after a few years. Red lead, used as abortifacient by quacks, may also produce poisoning. 11.8.13 Mercury Salts

Metallic mercury is not considered to be poisonous but under certain conditions it may undergo some chemical changes in the body and may act as a poison. The vapours of mercury are poisonous. Soluble salts of mercury such as nitrate, sulphate and mercuric chloride (also known as corrosive sublimates )

are highly poisonous. The symptoms of poisoning appear within half an hour. The main symptoms are, choking sensation in the throat, hoarse voice, difficulty in breathing and burning sensation in the abdomen. Death takes place within a few hours of ingestion of the poison.

11.8.14 Mushrooms These are forms of fungi. Edible mushrooms are used as vegetables but some varieties are poisonous. Several cases of poisoning by mushrooms have been reported in literature. Due to idiosyncrasy some people may suffer from toxic symptoms by eating even edible mushrooms.

11.8.15 Mechanical Poisons Diamond or diamond powder is a well-known mechanical poison. Powdered glass, needles and animal or vegetable hairs also act as mechanical irritants and poisons. When these are swallowed, they cause irritation of the stomach and bowels due to their sharp edges and points and sometimes rupture the intestine and cause death.

11.8.16 Nicotine Tobacco is used throughout the world for smoking, in cigarettes, cigars, pipes, etc. and is also chewed either alone or mixed with lime, etc. But only a few might be knowing that tobacco contains an alkaloid ‘Nicotine’ which is one of the most deadly poisons. Only three to four drops of the pure poison, if taken internally, may prove fatal. Tobacco dry leaves contain from 0.6 to 6 per cent of nicotine. Persons consuming excess of tobacco for a long period may suffer from chronic poisoning.

POISONS

783

11.8.17 Oxalic Acid It is a colourless crystalline substance which resembles sugar in appearance. [t is soluble in water and alcohol. The concentrated solution of oxalic acid acts as a corrosive poison. The symptoms appear immediately, which are sour acidic taste, thirst, burning pain in the mouth, throat and stomach, feeling of numbness of the limbs, hurried respiration, coma. Death follows.

11.8.18 Quinine It is a well known anti malarial drug. Sometimes accidental poisoning occurs due to overdose or owing to the individual’s idiosyncracy. At times the medicinal dose of quinine also produces poisoning in some persons. It is also used as an abortifacient, which may prove fatal.

11.8.19 Sodium Nitrite It is a white crystalline substance readily soluble in water. It is largely used in the dyeing industry. On account of its easy availability, the cases of nitrite poisoning are more frequent in areas near the dyeing industries. The main symptoms are giddiness, headache, vomiting, purging, weakness, hurried breathing and unconsciousness, followed by death.

11.8.20 Mineral Acids Sulphuric acid and nitric acid, largely used for commercial purposes, are very corrosive acids in concentrated form. They destroy the tissues when they come in contact with them. The internal administration of the concentrated acids produces intense burning pain from mouth to stomach, intense thirst and difficulty in swallowing. Lips and mouth are corroded but in case of nitric acid the skin becomes yellow. Death may occur due to shock within a few hours. Poisoning by internal administration of acids is not common but the cases of acid throwing, which produce severe burns and even death due to shock, are

common in India. However, a few case of suicides by the ingestion of these strong mineral acids have been reported. 11.8.21 Zinc Phosphide

It is a fine black powder commonly used as rat poison. Recently, human poisoning by zinc phosphide has increased tremendously. The chief symptoms are frequent vomiting and purging followed by unconsciousness. Being a fine powder it adheres in the crypts and cavities of the stomach and is not completely eliminated through vomiting. Death may ensue from the liberation of phosphine from the adhered material.

11.9 PRESENTATION A chemical examiner’s report is covered under section 293 of the Code of Criminal Procedure, 1973. That is, the report is accepted as evidence without the appearance of the chemical examiner. However, the Judges can always call the chemical examiner in person if they so desire. In view of the fact that the reports are accepted as evidence, it is necessary that the reports should contain the following information: 1. The mode of receipt of the articles for examination.

2. The date of receipt of the articles.

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3. The description of packages-sealed, unsealed, seals intact, seals tallying with the specimen seals, number of seals, writings , signatures, thumb impression, etc., on the parcels.

4. The complete description of the articles. 5. The identification marks put by the examiner on the articles. 6. The names of the tests carried out by the examiner with brief details. 7. The brief description of the observations made from these tests. 8. The brief description of the inferences made from these observations with reasons thereof. 9. The qualitative and quantitative results arrived at after these observations.

10. The date of examination. 11. The photographs, sketches and diagrams, if any, should be attached with the report with explanatory notes. The courts are wary of accepting the bare reports as evidence.

11.10 JUDICIAL PROOF The courts need that the following propositions relating to cases suspected of homicidal poisoning should be proved: 1. The victim died of poisoning. 2. The suspect had the poison in his possession. 3. The suspect had the opportunity to administer the poison.

4. The suspect had the intention of killing or injuring the victim. The following evidence proves the proposition that the victim died of poisoning.

1. The poison was found in the body or purges of the person. It is the best proof of poisoning. But it is not always available: ¢ The body is missing, excessively putrefied, destroyed by cremation, eaten by the beasts, etc. ¢ Poison is metabolised. * The poison is eliminated by purges, stomach wash, antidote. 2. The victim exhibited the symptoms of poisoning. 3. There were witnesses who saw the victim consuming the poison. 4. There is no evidence of the disease in the victim before or after the death. The following evidence proves the possession of the poison with the suspect: ¢ The poison was recovered from the suspect. ¢ The suspect purchased the poison. ¢ The poison was part of the household effects. ¢ The hobby of the suspect involved access to the poison.

¢ The suspect dealt with the poison officially. * The suspect had knowledge about the herbal poisons.

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785

The evidence relating to the opportunity is indicated by the following facts: ¢ Member of the household. e Friends or acquaintances attending the same party. e Witnesses seeing the administrations. The intention of poisoning is proved from the acts of omission and commission and the circumstantial evidence.

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11.11 CASE LAW 11.11.1 Proof of Poisoning 1. The essential ingredients in a case of poisoning are no longer in doubt. The

matter is concluded by a series of Supreme Court decisions. In Anant Chintaman Lagu v. State of Bombay’ their lordships pronounced that the prosecution establish three propositions in a case of poisoning: (i) Death took place by poisoning; (ii) Accused had the poison in his possession; and (iii) Accused had the opportunity to administer poison to the deceased. In this case, Arundhati had the poison in her possession and in fact administered the same and death took place by poisoning. Thus all the elements essential for a conviction are found. In paragraph 59 their lordships laid down that though the three propositions must always be’ kept in mind, the sufficiency of the evidence, direct or circumstantial, to establish murder by poisoning will depend on the facts of each case. If the circumstantial evidence, in the absence of direct proof of the

three elements, is so decisive that the court can unhesitatingly hold that the death was a result of administration of poison and that the poison must have been administered by the accused person, then the conviction can be rested on it.

The circumstantial chain in this case is complete. The moment oleander was administered, the deceased complained bitter taste, burning sensation and drying up of the tongue and throat. Soon after he died. There can be no escape from the conclusion that death was due to poisoning.

It would be too much to expect the prosecution to establish that the accused knew that what was administered was poison. The answer to it is furnished in paragraph 65 of the aforesaid Supreme Court decision. Their lordships observed thus: A case of murder by administration of poison is almost always one of secrecy. The poisoner seldom takes another into his confidence, and his preparations for the commission of the offence are also secret. He watches his opportunity and administers the poison in a manner calculated to avoid its detection. The greater his knowledge of poisons, the greater the secrecy, and consequently the greater the difficulty of proving the case against him. What assistance a man of science can give, he gives; but it is too much to say that the guilt of the accused must, in all cases, be demonstrated by the isolation of the poison, though in a case where there is nothing else such a course would be incumbent upon the prosecution. In Emperor v. Shetya Timma,? the death was caused by Dhatura poisoning. After review of conflicting decisions on the point, their lordships held that where the accused administered Dhatura poison to five men in order to facilitate commission of robbery and in consequence thereof three men died, the accused must be presumed to have knowledge that their act was so dangerous that it was likely to cause death. The acquittal of the charge under section 302, Indian 1.

AIR 1960 SC 500.

2.

AIR 1926 Bom 518.

POISONS

79)

Penal Code, was set aside. The same view was taken in Emperor v. Chattarpal,' in that case a woman of middle age administered her husband with arsenic disguised in sugar and placed in his food. Their lordships said that she must accept the full responsibility of her action which resulted in death. Cases where such drugs are administered on the genuine impression that they would act as love philtres and would not cause the death of the person to whom they were administered were noticed and distinguished.

On the principles enunciated in the aforesaid decisions we are clearly of opinion that Arundhati was guilty of murder of the deceased by poisoning.” 2. The aforesaid three propositions are not the invariable criteria of proof by direct evidence. Reasons are apparent. If after poisoning of the victim his body is destroyed, the first proposition is incapable of proof except by circumstantial evidence. Similarly if the accused gave the victim something to eat and the victim died immediately on the food being taken with symptoms of poisoning, and poison in fact was found in the viscera, the necessity of proving the second ingredient would fall as a matter of reasonable inference from the circumstance that the accused gave the victim something to eat. The element that the accused was in possession of poison need not be separately proved in such a case (see Anant Chintaman Lagu v. State of Bombay,> paras 58 and 59; and Mohan v. State of

Uttar Pradesh’. The quantum of circumstantial evidence must be such as to lead to the inference that the guilt of the accused is established beyond reasonable doubt and that the circumstances are wholly incompatible with the innocence of the accused. *

*

*

*

+

The report of the chemical examiner (Ex. 4) is that the viscera and the chatni contained oleander poison. The only point for consideration in this regard is whether both were properly preserved. The doctor (P.W. 6) preserved the viscera and sent it for chemical examination. It appears from Ex. 4 that alcohol as well as oleander were detected in the viscera of the deceased. Mr. Ray relied on section 510, Cr PC, and contended that Ex. 4 was not admissible in evidence, it was not duly submitted for examination in the course of any proceeding under the Code. For proper appreciation the section may be quoted: “Section 510 Report of chemical examiner.—(1) Any document purporting to be a report under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government or the Chief Inspector of Explosives or the Director of Finger Print Bureau or an officer of the Mint upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any enquiry, trial, or other proceeding under this Code. AIR 1930 Arundhati AIR 1960 AIR 1960 fF On

Oudh 502. Keutuni v. State of Orissa, 1968 Cri LJ 343 (Ori). SC 500. SC 659.

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(2) The court may, if it thinks fit, and shall on the application of the prosecution or the accused, summon and examine any such person as to the subject-matter of his report.” Ex. 4 shows that the doctor (P.W. 6) despatched the viscera for examination on 4-5-1962. Mr Ray argued that the viscera was not duly submitted in the course of any proceeding under the Code. The F.I.R. was lodged on 13-3-1962 and the investigation started thereafter. There is absolutely no basis for the suggestion that the viscera was not submitted in the course of proceeding. Much emphasis was laid on the words “duly submitted”. Mr. Ray contended that the viscera should have been sent by investigating officer and not by the doctor (P.W. 6) to the chemical examiner. The word “duly” means “properly”. This word only emphasises the fact that proof of identity of the article sent to the chemical examiner with articles examined by him must be established. There is no substance in this contention. Ex. 4 merely states that oleander was detected in the viscera. No reasons have been given as to how the chemical examiner came to this conclusion. By Central Act 26 of 1955, sub-section (2) has been

inserted to section 510. It was open to the accused to summon and examine the chemical examiner. There is, therefore, no escape from the conclusion that the

viscera was duly submitted for chemical examination in the course of investigation and Ex. 4 is admissible in evidence without the examination of the chemical examiner. +

*

*

*

*

. The doctor (P.W. 6) who conducted the post-mortem examination, reserved

his opinion as to the cause of death until receipt of the report (Ex. 4). He gave a positive opinion that the cause of death was due to poisoning. He found the brain and the membrane congested. The right side of the heart was full with dark thick blood and the left side was empty. The liver and the spleen were also congested. The gall-bladder was full. He also asserted that his post-mortem findings lead to the conclusion that death was the result of poisoning. Thus the doctor categorically asserted that the death was due to poisoning and his opinion was based on his post-mortem findings as well as on the report of the chemical examiner (Ex. 4).

Cross-examination of this witness was declined by the defence. Though alcohol was found in the viscera, not a single question was suggested that death was due to alcohol poisoning or that the symptoms were consistent with the alcohol poisoning. Neither a question was put to the doctor that in the absence of a report by the chemical examiner regarding the quantity of oleander administered, no opinion could be given that death was due to poisoning by oleander. In the absence of such cross-examination and in the face of the unchallenged testimony of the doctor, the learned Sessions Judge was not justified in indulging in speculative argument on the basis of the existence of alcohol in the viscera and in the absence of a report regarding the quantity of the oleander. In this connection, it is instructive to refer to para 11, in Mohan v. State

of Uttar Pradesh' where their lordships observed: 1. AIR 1960 SC 659.

POISONS

793

It is enough for us to say in regard to this contention that no question had been put to any witness to elicit what symptoms would appear in a case of arsenic poisoning. The medical evidence is clear that death was due to arsenic poisoning. *

*

*

*

*

To summarize, there is unimpeachable evidence that the viscera and the chatni contained oleander poison. The unchallenged testimony of the doctor (P.W. 6) is that death was due to oleander poisoning. The statements made by the deceased at three different stages that the chatni served to him by the accused, tasted bitter received full corroboration from the findings on chemical tests and the medical opinion. The chain of circumstantial evidence is complete and no link is missing to come to a conclusion beyond reasonable doubt that the deceased died of poisoning arising out of the service of the chatni by the accused. _The conduct of the accused in running away from the house next morning and her false explanation that she did not serve any food to her husband are consistent with the prosecution story. We are aware of our responsibility in setting aside the order of acquittal. The presumption of innocence of the accused has been reinforced by the factum of acquittal. The court has, however, plenary powers to go through the evidence and come to its own conclusion about the truth of the matter. After giving our anxious consideration of the materials on record and after closely examining the various reasons given by the learned Sessions Judge, we are satisfied that the

view taken by the learned Sessions Judge is clearly an unreasonable one and cannot be sustained.’ 3. The learned advocate for the appellant has first contended that the conviction is wrong in law in view of the decision of this court in Dharambir v. Punjab. That was a case of murder by poisoning. It was there said: Three questions arise in all such cases, viz., firstly, did the deceased die of the poison in question? Secondly, had the accused the poison in question in his possession? And, thirdly, had the accused an opportunity to administer the poison to the deceased? Therefore, alongwith the motive the prosecution has also to establish that the deceased died of a particular poison said to have been administered, that the accused was in possession of that poison and that he had the opportunity to administer the same to the deceased....... The learned advocate contended that in the present case, the second element stated in the above mentioned case, namely, proof of the possession of the poison by the appellant was wanting. We feel that this contention is wholly unfounded. The evidence in this case shows that the appellant gave Ram Bharosey the ‘peras’ and within half an hour he became ill and died within two hours. It is also clear from the evidence that the food which Ram Bharosey had

taken before noon did not contain arsenic or any other poison for chameli also took the same food and suffered no ill-effect whatever. There is further no

evidence that in the field Ram Bharosey took any food apart from the ‘peras’ 1. State of Orissa v. Kaushalya Devi, (1965) 1 Cri LJ 321 (Ori).

2. Cri App No 98 of 1958 (SC).

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given to him by the appellant. Lastly, of course, it is clear from the result of the chemical examination that he had died of arsenic poisoning. The court below found from all this—a finding to which in our opinion no exception can be taken—that the arsenic was contained in the ‘peras’ given by the appellant to Ram Bharosey...... Now, it seems to us that if there was arsenic in the peras which the appellant gave to Ram Bharose, it inevitably follows that the appellant was in possession of arsenic before he gave them to Ram Bharosey. The next point of the learned advocate is that there were no signs of corrosion in the stomach or of the nails having turned blue and no other symptoms indicative of arsenic poisoning. It is enough for us to say in this regard that no question had been put to any witness to elicit what symptoms would appear in a case of arsenic poisoning. The medical evidence is clear that death was due to arsenic poisoning.' 4. Our findings thus substantially accord on all the relevant facts with those of the two courts below, though the arrangement and consideration of the relevant evidence on record is somewhat different. It is now necessary to consider the arguments which have been advanced on behalf of the appellant. The first contention is that the essential ingredients required to be proved in all cases of murder by poisoning were not proved by the prosecution in this case. Reference in this connection is made to a decision of the Allahabad High Court in Mt. Gajrani v. Emperor, and to two unreported decisions of this court in Chandrakant Nyalchand Seth v. State of Bombay,? decided on February 19, 1958. In these cases, the court referred to three propositions which the prosecution must establish in a case of poisoning: (a) that death took place by poisoning; (b) that the accused had the poison in his possession; and (c) that the accused had an opportunity to administer the poison to the deceased. The case in Cr. A. No. 98 of 1958, D/-4-11-1958 (SC) turned upon these three propositions. There, the deceased had died as a result of poisoning by potassium cyanide, which poison was also found in the autopsy. The High Court had disbelieved the evidence which sought to establish that the accused had obtained potassium cyanide, but held, nevertheless, that the circumstantial evidence was sufficient to convict the accused in that case. The court did not, however, accept the circumstantial evidence as complete. It is to be observed that the three propositions were laid down not as the invariable criteria of proof by direct evidence in a case of murder by poisoning, because evidently if after poisoning the victim the accused destroyed all traces of the body, the first proposition would be incapable of being proved except by circumstantial evidence. Similarly, if the accused gave a victim something to eat and the victim died immediately on the ingestion of that food with symptoms of poisoning and poison, in fact, was found in the viscera, the requirement of proving that the accused was possessed of the poison would follow from the circumstance that the accused gave the victim something to eat and need not be separately proved, there have been cases in which conviction 1. Mohan v. State of Uttar Pradesh, 1960 Cri LJ 1011 (SC).

2. AIR 1933 All 394.

3. Cr. A No. 120 of 1957.

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was maintained, even though the body of the victim had completely disappeared, and it was impossible to say, except on circumstantial evidence, whether that person was the victim of foul play, including poisoning. Recently, this court in Mohan v. State of Uttar Pradesh,', decided on November 5, 1959, held

that the proof of the fact of possession of the poison was rendered unnecessary, because the victim died soon after eating pedas given by the accused in that case, and he had not partaken any other food likely to contain poison. In Dr. Palmer’s case, Notable Trials Series, strychnine was not detected, and the accused was convicted by the jury after Lord Chief Justice Campbell (Cresswell, J. and Mr. Baron Alderson concurring) charged the jury that the discovery of the poison on autopsy, was not obligatory, if they were satisfied on the evidence of syr:ptoms that death had been caused by the administration of strychnine. The conduct of Palmer, which was also significant, was stressed inasmuch as he had attempted to thwart

a successful

chemical

analysis

of the viscera,

and

had

done

suspicious acts to achieve that end. In Dr. Crippen’s case*, the conduct of the accused after the death of Mrs. Crippen in making the friends and relatives believe that Mrs. Crippen was alive, was considered an incriminatory circumstance pointing to his guilt. No doubt, in Dr. Crippen’s case, the body was found and poison was detected, but there was no proof that Dr. Crippen had administered the poison to her, that being inferred from his subsequent conduct in running away with Miss Le Neve. In the second case of this court, the poison was available to the victim, and it was possible that she had taken it to end an unhappy life.

The cases of this court which were decided, proceeded upon their own facts, kept in mind always, the sufficiency of the evidence, direct or circumstantial. To establish murder by poisoning will depend on the facts of each case. If the evidence in a particular case does not justify the inference that death is the result of poisoning because of the failure of the prosecution to prove the fact satisfactorily, either directly or by circumstantial evidence, then the benefit of the doubt will have to be given to the accused person. But if circumstantial evidence, in the absence of direct-proof of the three elements, is so decisive that the court can unhesitatingly hold that the death was a result of administration of poison (though not detected) and that the poison must have been administered by the accused person, then the conviction can be rested on it. *

*

*

+

*

In (1952) NZLR 111, where the entire caselaw in England was presented for the consideration of the court, it was pointed out by the court that there was no

rule in England that corpus delicti must be proved by direct evidence establishing the death of the person and further, the cause of that death. Reference was made

to Evans v. Evans,, where it was ruled that corpus delicti might be proved by direct evidence or by “irresistible grounds of presumption”. In the same case, it has been pointed out that in New Zealand the court upheld numerous convictions, where the body of the victim was never found.

1. Cr App No 108 of 1959. 2. Notable Trial Series.

3. 161 ER 466 (491).

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The rule of law stated by Sir Matthew Hale in Pleas of the Crown Vol. 2, p. 290, that “I would never convict any person of murder or manslaughter, unless the fact were proved to be done, or at least the body found dead” was not accepted in this and other cases. Lord Goddard also rejected the statement as one of universal application, in the case to which we have already referred. The case of Mary Ann Nosh,’ is illustrative of the proposition that even though the cause of death may not appear to be established by direct evidence the -circumstances of the case may be sufficient to infer that a murder has been committed. In that case, the prisoner had an illegitimate son, 5 years old. There was evidence to show that the mother desired to put the child out of her way. One day in June, 1907. the mother left the house and returned without the child. She made several statements as to what had happened to the child, which were found to be untrue. As late as April 1908, the body of a child was discovered in a well. Decomposition had so far advanced that even the sex of the child could not be determined. There was nothing therefore to show whether death was natural or violent, or whether it had occurred before or after the body was put into the well. The case was left to the jury. On appeal, it was contended that there being no proof how death took place, the judge should not have left the case to the jury but ought to have withdrawn it. Lord Chief Justice delivering the judgment of the Court of Appeal referred to the untrue statements of the prisoner about the whereabouts of the child, and observed as follows: All these statements were untrue. She had an object in getting rid of the child, and ifit had been lost or met with an accidental death, she had every interest in saying so at once. It is said there is no evidence of violent death, but we cannot accept that Mr. Goddard cannot have meant that there must be proof from the body itself of a violent death....In view of the facts that the child left home well and was afterwards found dead, that the appellant was last seen with it, and made untrue statements about it, this is not a case which could have been withdrawn from the jury. *

*

*

*

*

A case of murder by administration of poison is almost always one of secrecy. The poisoner seldom takes another into his confidence, and his preparations for the commission of the offence are also secret. He watches his opportunity and administers the poison in a manner calculated to avoid its detection. The greater his knowledge of poisons, the greater the secrecy, and consequently the greater the difficulty of proving the case against him. What assistance a man of science can give he gives; but it is too much to say that the guilt of the accused must, in all cases, be demonstrated by the isolation of the poison, though in a case where there is nothing else such a course would be incumbent upon the prosecution. There are various factors which militate against a successful isolation of the poison and its recognition. The discovery of the poison can only take place either through a post-mortem examination of the internal organs or by chemical analysis. Often enough, the diagnosis of a poison is aided by the information 1.

1911 Cr App R. 225.

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which may be furnished by relatives and friends as to the symptoms found on the victim, if the course of poison has taken long and others had an opportunity of watching its effect. Where, however, the poison is administered in secrecy and the victim is rendered unconscious effectively, there is nothing to show how the deterioration in the condition of the victim took place and if no poison but disease is suspected, the diagnosis of poisoning may be rendered difficult. In Champman’s case. Notable Trials Series, the victim (Maudmarsh) was sent to Guys Hospital, where the doctors diagnosed her condition to be due to the various maladies “including cancer, rheumatism and acute dyspepsia”. It is clear that doctors can be deceived by the symptoms of poison into believing that they have a genuine case of sickness on hand. In Dr. Palmer’s case, Notable Trials Series, two medical witnesses for the defence diagnosed the case from the symptoms as being due to Angina Pectoris or epilepsy with the tetanic complications. The reason for all this is obvious. Lambert in his book, “The Medico-Legal Postmortem in India” (pp. 96, 99-100) has stated that the pathologist’s part in the diagnosis of poisoning is secondary and has further observed that several poisons particularly of the synthetic hypnotics and vegetable alkaloids groups do not leave any characteristic signs which can be noticed on post-mortem examination, (see Modi’s “Medical Jurisprudence and Toxicology”, 13th Edition,

pages 450-451 and Taylor’s “Principles and Practice of Medical Jurisprudence”, Volume II, page 229). The same is stated by Otto Saphir in his book “Autopsy” at pp. 71 and 72. In Dreisbach’s “Handbook of Poisons” 1955, it is stated that pathological findings in deaths from narcotic analgesics are not characteristic. He goes further and says that even the laboratory findings are non-contributory. The position of the pathologist who conducts a post-mortem examination has been summed up by Modi in “Medical Jurisprudence and Toxicology”, 13th Edn., p. 447 as follows: In order to make a probable guess of the poison and to look for its characteristic post-mortem appearances, it is advisable that a medical officer, before commencing a post-mortem examination on the body of a suspected case of poisoning, should read the police report and endeavour to get as much information as possible from the relatives of the deceased regarding the quality and quantity of the poison administered, the character of the symptoms with reference to their onset and the poison and the development of the first symptoms, the duration of the illness, nature of the treatment adopted, and the time of death. He will find that in most cases the account supplied by the police and the relatives is very meagre, or incorrect and misleading. His task is, therefore, very difficult, especially when many of the poisons except corrosives and irritants do not show any characteristic post-mortem signs and when bodies are in an advanced state of decomposition..... Similarly, Gonzales’ Legal Medicine and Toxicology’ states at p. 629: The question of whether or not a negative toxicological examination is consistent with death by poison can be answered affirmatively, as many persons overcome by carbon monoxide die after twenty-four hours, at which time the gas cannot be determined in the blood by chemical tests. Likewise, the organs of individuals who

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have been poisoned by phosphorus may not contain the toxic substance responsible for death ifthey have managed to survive its effects for several days. Many conditions seriously interfere with the toxicological examination, such as post-mortem decomposition..... We need not multiply authorities, because every book on toxicology begins with a statement of such a fact. Of course, there is a chemical test for almost

every poison, but it is impossible to expect a search for every poison. Even in chemical analysis, the chemical analyser may be unsuccessful for various reasons. Taylor in his “Principles and Practice of Medical Jurisprudence” (Vol. IL, p. 228), gives three possible explanations for negative findings, viz., (1) the case may have been of disease only; (2) the poison may have been eliminated by vomiting or other means or neutralized or metabolized; and (3) the analysis may have been faultily performed. Svensson and Wendel in “Crime Detection” have stated at p. 281 that: Hypnotics are decomposed and disappear very quickly some even in the time which elapses between the administration and the occurrence of death. Circumstantial evidence in this context means a combination of facts creating a net-work through which there is no escape for the accused, because the facts taken as a whole do not admit of any inference but of his guilt. To rely upon the findings of the medical man who conducted the post-mortem and of the chemical analyser as decisive of the matter is to render the other evidence entirely fruitless. While the circumstances often speak with unerring certainty the autopsy and the chemical analysis taken by themselves may be most misleading. No doubt, due weight must be given to the negative findings at such examinations. But, bearing in mind the difficult task which the man of medicine performs and the limitations under which he works, his failure should not be taken as the end of the case, for on good and probative circumstances, an irresistible inference of guilt can be drawn. In the present case, the effort of the appellant has been to persuade the court that the death of Laxmibai was possibly the result of disease rather than by poison. During the course of the case and the appeal, various theories have been advanced and conflicting diagnoses have been mooted. The case of the appellant has wavered between death by diabetic coma and by hypoglycemia, though relying upon the condition of the arteries and the aorta and the rigidity of the neck, suggestions of coronary complications and renal failure have also been made. We have shown above that this was not a case of diabetic coma because of the absence of the cardinal symptoms of diabetic coma. This also is the opinion of Dr. Variava and Dr. Mehta, though Dr. Jhala, for reasons which we have indicated, accepted it. The appellant argued again the case from the angle of diabetic coma, but later veered in favour of hypoglycemia. This change is noticeable not only in the arguments before us but also throughout the conduct of the case is merely to confuse the issue, and create, if possible a doubt, which would take the mind away from the surrounding circumstances and focus it only upon the medical aspect of the case. Full advantage has been taken of the findings of Dr. Ugale and Dr. Miss Aneeja, which suggest partly an onset

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of diabetic coma, partly of hypoglycemia and partly of renal failure. There is no true picture of any one disease. The rigidity of the neck was not reflected in the chemical analysis of the cerebro-spinal fluid and was negatived, in so far as renal failure is concerned, by the negative findings about albumen. Diabetic coma stood ruled out by the presence of the Babinsky sign and the suddenness of the onset, the negative aspect of acetone and the rather remarkable failure of the specific treatment given for it to have worked any change. Driven from these considerations to such doubtful suggestions as coronary complications of which no physical evidence was found by Dr. Jhala, the appellant put his case on hypoglycemia, and relied upon the fact that at the hospital 40 units of insulin intravenously and another 40 units subcutaneously were administered. Medical text-books were quoted to show that in the case of hypoglycemic coma the introduction of even a small quantity of insulin sometimes proves fatal. The learned advocate general stoutly resisted this move, which was at variance with the case as set out before the High Court, because it is obvious enough that if one accepted the theory of hypoglycemic coma, the only injections of insulin causing such shock would be proved to have been given at the hospital and not by the appellant. Here, the position, however, is not so difficult for the state, because Laxmibai was found to have 4 oz. of pasty meal in her stomach, and with food inside her, the possibility of hypoglycemia taking place naturally was extremely remote. If it was hypoglycemic coma due to excessive administration of insulin, then it must have been administered prior to its onset, and who could have

given it but the appellant ? Even though coma supervenes suddenly, the patient passes through symptoms of discomfort, and Laxmibai would have told the appellant about it in the train. The appellant mentioned nothing of this to Dr. Ugale. If an excessive dose of insulin was given by the appellant, the question of intent would arise, and the cond.ict shows the intention. There were no pronounced symptoms of hypoglycemia either. Laxmibai just passed from unconsciousness to death without the manifestation of any of the signs associated with the syndrome of hypoglycemic death. It is also to be remembered that hypoglycemic coma is generally overcome by the administration of a very small quantity of glucose 5 or 10 grams of glucose orally: Treatment of D1..betes Mellitus by Joslin, Root and White, p. 350). The 40 units given intravenously were mixed with 20 c.c. of glucose and carried the palliative with them. Even otherwise, Laxmibai was receiving glucose by intragastric drip, and during the three and a half hours there should have been an improvement. The surprising part is that the administration of the insulin and glucose brought about no visible symptoms in the patient either for better or for worse. She passed into death, and the inference can only be that she did not die of these diseases of which she was either suspected or for which she was treated but of something else, which could not answer to the treatment given to her. Dreisbach in his Handbook on Poisons at page 27 has stated that coma also results from the action of several poisons. Depressants, sedatives and hypnotics all cause death by coma (ibid, p. 201). The symptoms, according to the author,

are sleepiness, mental confusion, unsteadiness rapidly followed by coma with

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slow, shallow respiration, flaccid muscles and absent deep reflexes. The difference between coma due to disease and coma as the result of poisons is stated by him in the following words: Coma from poisoning presumably results from some interference with brain cell metabolism. In attempting to combat the effects of drugs which induce coma, remember that no agents are known which will specifically overcome the metabolic derangements of drug-induced coma. The mechanism of action of cerebral stimulant drugs is also unknown, but these drugs presumably act by depressing some inhibiting function in the cell. There is no evidence that any stimulants specifically oppose the cellular metabolic depression induced by the depressant drugs such as the barbiturates. No specific antidote is known for the sedative and hypnotic drugs (ibid., p. 202). The condition of Laxmibai clearly indicated an impairment of the central nervous system. It is no doubt true that in some cases of coronary thrombosis, coma supervenes; but it is idle to suggest in the present case that Laxmibai was afflicted by this type of coma, because Dr. Jhala who performed the post-mortem examination and opened the coronary arteries found no evidence of thrombosis. According to Otto Saphir, a myocardial infarct is easily detected (Autopsy, p. 301-302). Coma in Laxmibai’s case, as we have shown above, was not the result

of acidosis, hypoglycemia, renal failure or meningial irritation. Her liver, pancreas and kidneys were found to have no pathological lesions and it is significant that no question was even attempted to establish that the opinion of Dr. Jhala on this part of the case was incorrect. Learned counsel for the appellant suggested that the examination by Dr. Jhala might have been superficial, and might not have included a microscopical examination of sections of some of the vital organs normally affected by diabetes. This suggestion, in our opinion ought to have been put forward during the crossexamination of the witness, and it is unfair now to suggest that the opinion that no lesions were found was based on either improper or inadequate examination. We hold that Dr. Jhala performed the examination adequately, and he was also helped by his assistants. Here, we pause to ask a question why the appellant brought up the question of hysterical fits at all. He could have said that Laxmibai was a diabetic, and that it was likely she had coma by reasons of that disease. The suggested diagnosis given by the appellant was so unlikely that Dr. Ugale questioned it then and there. There is nothing in the Wanlesswadi T. B. Sanatorium papers or in Dr. Sathe’s evidence to show that Laxmibai had hysterical fit after her hysterectomy operation. No suggestion was made to the doctors in court that Laxmibai might have had hysterical fits. The condition of the muscles and the absence of deep reflexes clearly show that this was just another piece the appellant gave the full particulars to Dr. Miss Aneeja. No suggestion was made to her or to Dr. Ugale that any information other than what was noted in the case papers was furnished. There is no case for holding that Laxmibai had a relapse of hysterical fits.

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It would, therefore, appear that Laxmibai’s condition was not due to any disease, because diseases inducing coma generally leave some trace behind, and also respond to medication. No doubt, in some cases the pathological findings after death from diabetic coma have been negative, but the question is, if this was such a case. We have, on the one hand, the fact that numerous

poisons

causing coma leave no identifiable trace in the victim after death, and, on the other, that sometimes the autopsy does not disclose any discoverable signs in a patient who dies after an attack of diabetic coma or disease. The appellant can

be presumed to have had knowledge of these poisons. The appellant challenged the Advocate General to show from any standard book that the symptoms found by the doctors accorded with any known poison. Here, it must also be remembered that a man with knowledge may manipulate not one but more drugs to achieve his purpose, and the cardinal signs of poisoning on the victim may, as a result, be either obliterated or, at least significantly modified. We give one example on which a certain amount of knowledge is possessed even by laymen. A poison of which one of the symptoms would be the contracting of the pupils of the eyes may be side-tracked by putting into the eyes of the victim a drug like atropine, which by its local action dilates the pupils. We give this example, because most of us know the action of atropine on the eyes, and because the knowledge may confuse the symptoms by a simple trick. We are not suggesting that this is what has happened in this case; but when we have to deal with a case of crime versus natural death, we cannot overlook the possibility of some ingenious artifice having been used to screen the action. If Laxmibai died in circumstances which prima facie admit of either disease or homicide by poisoning, we must look at the conduct of the appellant who brought her to the hospital, and consider to what conclusion that conduct unerringly points. If the appellant as an honest medical man had taken Laxmibai to the hospital and she had died by reason of disease, his conduct would have been entirely different. He would not have taken her to the hospital bereft of property with which she started from home; he would not have given a wrong history of her ailments; he would not have written a letter suggesting that she had a brother in Calcutta, which brother did not exist, he would not have abandoned the corpse to be dealt with by the hospital as an unclaimed body, he would not have attempted to convince the world that she was alive and happily married; he would not have obtained her property by forgeries, impersonation and other tricks indulged in both before and after her death; but he would have informed her relatives and done everything in his power to see that she was properly treated and stayed on to face whatever inquiry the hospital wished to make into the cause of death and not tried to avoid the post-mortem examination and would not have disappeared, never to reappear. His prevarications about where Laxmibai was, make a big and much varied list, and his forgeries cover scores of documents. In the words of Baron Parke in Towell’s

case.! Circumstantial evidence is the only evidence which can in cases of this kind lead to discovery. There is no way of investigating them except by the use of 1. (1854) 2 C and K-309.

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circumstantial evidence: but it most frequently happens that great crimes committed in secret leave behind them some traces, or are accompanied by some circumstances which lead to the discovery and punishment of the offender.......++. Direct evidence of persons who saw the fact if that proof is offered upon the testimony of men whose veracity you have no reason to doubt is the best proof: but, on the other hand, it is equally true with regard to circumstantial evidence that the circumstances may often be so clearly proved, so closely connected with it, or leading to one result in conclusion. That the mind may be as well convinced as ifit were proved by eye-witnesses. The appellant in this case took some risk in taking Laxmibai to the hospital and in giving his name there; and these aspects were, in fact, stressed as arguments in the case. As regards the first part, the argument overlooks that what appears to us to be a risk might not have so appeared to the appellant, who might have been sure of his own ability to screen himself. To him, the death of Laxmibai at the hospital without discovery of poison would be the greatest argument in his favour that he had acted honestly. The second argument is equally unacceptable to us. The appellant could not take the risk of a false name and address if he was intending that the body should be disposed of as unclaimed. By giving his own address he could keep the strings in his own hands. If he gave an address and no reply came from that address, the hospital would suspect foul play. If he gave the address of Laxmibai, people in Poona would know. of this mysterious death, and they would remember the death of

Purshottam alias Arvind in 1954. At that time a post-mortem examination on the body of Arvind was held (see, evidence of Ramachandra

(P.W. 1), and the

explanation of the appellant given in writing on January 22, 1954, is set out below in his own words: My name is Anant Chintaman

Lagu, age..........years, residing at No. 431/5,

Madiwale Colony, Poona, on being questioned by state that I am the family doctor of Karve family in H. No. 94/95, Shukrawar. The deceased Purshottam Anant Karve belongs to that family. He came from Bombay to Poona on Saturday, the 16th January, 1954. He had come to me on Sunday the 17th January, 1954, for medicine for weakness. I treated him for 2 days, on 17th and 18th. He had neither told me that there was poisoning in his stomach, nor did I detect any even when I examined and treated him. He became unconscious 5 hours before his death. He was taken to the Sassoon Hospital at 9 P.M. on 18th January, 1954. He was taken to the Sasoon hospital because his disease increased in unconsciousness and also because his mother as also myself and Dr. Joshi were of the same opinion. He died there in about 30 to 45 minutes. The fact that there was deliberate poisoning by somebody, was neither revealed in my examination nor did Purshottam Karve speak to me anything about it during the time I treated him 2 days before. What exactly was the cause of death could not be revealed during my treatment. I do not know ifsomebody is on bad terms with him. There are rumours about suicide but there is no reason or any circumstance whatsoever for doing so. A false address would have started enquiries at the hospital end. Laxmibai’s own address would have started speculation in Poona. It was for this reason that the appellant had to choose another place and to trim between fact and

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fiction, so that he might be able to deal with the matter himself. Of course, Laxmibai did have an address of her own which could have been given, and which did not cease to be her address because she had got an attack of coma, from which people are known to recover. These arguments, however, are of no avail, in view of the appellant’s entire conduct now laid bare, which conduct has been proved to our satisfaction to

have begun not after the death of Laxmibai but much earlier. This conduct is so knit together as to make a network of circumstances pointing only to his guilt. The case is one of extreme cunning and premeditation. The appellant, whose duty it was to care for this unfortunate lady as a friend and as her medical adviser, deliberately set about first to ingratiate himself in her good opinion, and becoming her confidante found out all about her affairs. All this time he was planning to get at her property after taking her life. He did not perpetrate his scheme at Poona, where the death might have brought a host of persons to the hospital. He devised a diabolical scheme of unparalleled cunning and committed an almost perfect murder. But murder though it hath no tongue, speaks out sometimes. His method was his own undoing; because even the long

arm of coincidence cannot explain the multitude of circumstances against him, and they destroy the presumption of innocence with which law clothes him. In our judgment, the two courts below were perfectly correct in their conclusion that the death of Laxmibai was the result of the administration of some unrecognized poison or drug which would act as a poison, and that the appellant was the person who administered it. We accordingly confirm the conviction.’ 5. The two doctors have proceeded by the process of elimination. They noticed that all the organs of the deceased were healthy and there was-no sign of any disease in any one of the organs such as brain, heart, lung and kidney. There could not, therefore, be any natural disease to any of these organs. That means that pulmonary oedema could not be the result of disease to any of these organs. So far as broncho-pneumonia is concerned, the two doctors maintained that broncho-pneumonia was secondary to pulmonary oedema. Had pneumonia been of Iobar origin, it may be possible to maintain that the pulmonary oedema was the result of pneumonia. Having ruled out the possibility of death being due to any natural causes, the two doctors addressed themselves to the question as to what could be the possible cause of death. They concentrated their attention upon the presence of pulmonary oedema, which was primary and not consequence of disease to any of the vital organs which may lead to the appearance of pulmonary oedema. Therefore, they posed the question whether pulmonary oedema could be the result of administration of any foreign agent, and they were forced to the conclusion that it could only be the result of entry of a foreign agent in the body. How this entry was effected, of course could not be stated by the experts. The drug could be inhaled, could be orally administered and could be injected. The effects would be the same whatever the manner of the administration of the drug. This then is the summary of the views expressed by the two doctors. 1. Anant Chintaman Lagu v. State of Bombay, 1960 Cri LJ 682 (SC).

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It would thus be seen that there are some poisons particularly vegetable poisons and also fungi and mushrooms for which there are no reliable tests of identification of poison, and there are some which cannot be detected by any known method of isolation because of various factors such as absorption, evaporation and ejectment of urine, blood, etc. It is settled law that.merely because poison has not been isolated in chemical examination, it does not follow that no poison was administered. Once it is decided that pulmonary oedema, which made its appearance in the case of deceased, could not be due to the pathological condition prevailing in any of the organic tissues, it must follow that pulmonary oedema was the result of administration of an outside agent. Pulmonary oedema could be the effect or could be secondary to some primary cause such as, disease. But, when that primary cause is absent, it

would be reasonable to assume that pulmonary oedema has been caused by the entry of a foreign agent which has exercised a catalytic influence on certain organs of the body particularly, the lungs in the present case. Before leaving this aspect of the matter, we may refer to one more argument that was advanced by Mr. Kode. Mr. Kode referred to the table on page 267 in Snyder’s Homicide Investigation 1958, and pointed out that blood is one of the organs in which poison remains mixed and thus becomes amenable to deduction in the case of most of the poisons. In this connection he referred to the fact that according to Sub-Inspector Kumbhojkar, a sample of blood of the deceased was sent to the chemical analyser for chemical analysis. This assistant chemical analyser, D’Mello has stated that blood was sent for determining the blood group and that it was not suitable for analysis, because the blood had broken down, Mr. Kode complained that, as a matter of fact, the blood of the deceased should have been sent to the chemical analyser for detection of poison, if any, in the blood. No questions have been asked to Dr. Vaidya as to the purpose for which the blood was sent/for chemical analysis. It, however, appears from the evidence of D’ Mello as also Exhibit 106 that the blood was sent for analysis for the purpose of determining the blood group. Whatever the purpose for which the blood was examined by the chemical analyser, it is clear that the blood had broken down and, therefore, was not/suitable for any kind of chemical analysis. Prima facie, therefore, it does not appear to us that any useful purpose would have been served by asking the chemical analyser to examine the blood for the purpose of finding out whether there was any element of poison therein. Incidentally, we may refer to pages 263 and 264 of Snyder's Homicide Investigation. On page 263 under the heading ‘Medical Notes on Poisoning’ the author has stated: “In attempting to isolate and identify poison in a dead body, two questions confront the lexicologist. These are: 1. Is embalming likely to interfere with the analysis ? 2. What is the tendency for poison to disappear in the dead body ? On page 264 under the heading ‘Disappearance of Poison in the Dead Body’ the author has stated:

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805

atlos Some poisons disappear rapidly after death, while others may be found

after several years.! 6. The trial court and were of the opinion that ruled out. According to Vol. I, Twelfth Edition, but also hypodermically

the High Court in the light of the evidence on record, the death of Indira by morphine poisoning could not be Taylor’s Principles and Practice of Medical Jurisprudence, page 199, poison can be administered not only orally or intravascularly with the help of a syringe. As there

was no eyewitness of the occurrence, the court should not, in our opinion, insist

upon evidence regarding the exact manner in which the death of Indira was caused. It has to be borne in mind in this context that Mahabir accused was responsible for the removal of the dead body immediately after the death of Indira and the same remained submerged in water for more than 24 hours. The above conduct of Mahabir accused prevented prompt post-mortem examination on the dead body of Indira. On the material it can be said that there were some features like the congestion of both the lungs, the kidney, the liver and the spleen of Indira which, according to Dr. Kamleshwar Singh were indicative of death by respiratory failure and the same could be caused by poisoning. The fact that the heart of the deceased at the time of postmortem examination was found to be empty would not rule out asphysical death as a result of poisoning. According to observations on page 125 of Modi’s Medical Jurisprudence and Toxicology, Seventeenth Edition, in many cases of asphyxial deaths both the sides of the heart are found to be full if examined soon after death but after rigor mortis has set in, the heart is found contracted and empty. Reference has been made by Mr. Chari to report dated 23 Decenver, 1963 of the chemical examiner, according to whom no poison could be detected in viscera of Indira deceased. This circumstance would not, in our opinion, militate against the conclusion that the death of the deceased was due to poisoning. There are several poisons particularly of the synthetic hypnotics and vegetable alkaloid groups, which do not leave any characteristics signs as can be noticed on post-mortem examination. We may in this context refer to the following observations on page

477 of the above mentioned book by Modi: It is quite possible that a person may die from the effects of a poison and yet none may be found in the body after death, if the whole of the poison has disappeared from the lungs by evaporation, or has been removed from the stomach and intestines by vomiting and purging, and after absorption has been detoxified, conjugated and eliminated from the system by the kidneys and other channels. Certain vegetable poisons may not be detected in the viscera, as they have no reliable tests, while some organic poisons, especially the alkaloids and glucosides, may by oxidation during life or by putrefaction after death, be split up into other substances which have no characteristic reactions sufficient for their identification. Similar view has been expressed by Lambert in his book “The Medico Legal Post Mortem in India”. We may also in this context refer to the book “Legal Medicine, Pathology and Toxicology” by Gonzales and others. Second Edition, wherein it is stated on page 847: 1. Palaniswamy Vaiyapuri (in re:), 1963 Cri LJ 453 (Bom).

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The post-mortem appearances in cases of morphine poisoning are not particularly characteristic. There is a congestion of the viscera, cyanosis and abundant dark fluid blood. When crude opium is taken by mouth the stomach may contain fragments of poppy but nothing characteristic is found ifmorphine is ingested. The circumstances of the present case taken in their entirety clearly point to the conclusion that the death of Indira was not natural but was due to foul play. In a number of cases where the deceased dies as a result of poisoning, it is difficult to successfully isolate the poison and recognize it. Lack of positive evidence in this respect would not result in throwing out the entire prosecution case if the other circumstances clearly point to the guilt of the accused. Reference in this context may be made to the observations of Hidayatullah, J., (as he then was) who spoke for the majority in the case of Anant Chintaman Lagu v. State of

Bombay.' *

*+

*

*

+

Reliance in the above context was placed in the cited case on the books on medical jurisprudence by different authors wherein it has been stated that the pathologist’s part in the diagnosis of poisoning is secondary and that several poisons particularly of the synthetic hypnotics and vegetable alkaloid groups do not leave any characteristic signs which can be noticed on post-mortem examination. . *

.

7

*

+

>

The case against Mahabir accused, in our opinion, is covered by the latter part of the above observation. We, therefore, find no cogent ground to interfere with the findings of the two courts that the death of the deceased was not

natural but homicidal.’ 11.11.2 Fatal Dose 1. We are also of the opinion that the courts below were right in concluding that death resulted from poisoning. It is true that Dr. Patodia could not say what poison caused her death. But he could say that death was due to something that was an irritant, and it could be due to dhatura or belladonna or any other

poison. The deceased, according the Ghisaji, P.W. 3, was a healthy woman, and had not taken any other medicine before arriving at the clinic. She was at the clinic from 9 A.M. till she died. The only medicine she took, apart from antidotes, was what was administered, i.e., 24 drops of stramonium and a dhatura leaf. She started feeling restless and ill soon after taking these things. On these facts the conclusion of the courts below that death was the result of dhatura poison cannot be said to be erroneous. Dr. Choudhary, P.W. 17, registered medical practitioner, in the course of his evidence, stated: In the opinion of Dr. Modi, the writer of Medical Jurisprudence, a dose of 20 to 20.5 grains of dhatura is fatal and according to Dr. Taylor about 16 grains of it is 1. (1960) 2 SCR 460: AIR 1960 SC 500. 2. Mahabir Mandal v. State of Bihar, 1972 Cri LJ 860: AIR 1972 SC 1331.

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a fatal dose. Therefore, I can say that ifa fresh leaf of dhatura of 6 inches length and 4 inches breadth along with 24 drops of stramonium mother tincture of Homoeopathic preparation is given to any patient then the joint effect of both may be fatal and if it is kept in mind that the patient is allergic and idiosyncratic for stramonium then such a dose may be fatal. This is relied on by the learned Sessions Judge to determine what would be

the fatal dose. We have, however, looked up Modi’s Medical Jurisprudence and

Toxicology (14th Edition); and Taylor’s Principles and Practice of Medical Jurisprudence (11th Edition); but they do not quite say what Dr. Choudhary had assumed. Modi writes at p. 713 thus: Fatal Dose—Uncertain—Four dhatura fruits pounded and mixed with flour were given to six men, four of whom died. A ripe fruit weighs, on an average, about a drachm, and contains the seeds which weigh about 1/2 drachm. One hundred dried dhatura seeds weigh 20 to 20.5 grains. A decoction of 125 seeds of dhatura stramonium has proved fatal to a woman. According to Taylor (p. 551, Vol. II):

Toxicity and Fatal Dose.—The active principle, a mixture of hyoscine, atropine and hyoscyamine, is extremely toxic, and as the plant contains approximately 1/2 to 1 per cent. of alkaloids, it must be considered extremely dangerous. The seeds are highly poisonous, inasmuch as they contain a larger proportion of alkaloids than other parts of the plant. Death may take place although the whole of the seeds are ejected. A child of 2 years swallowed about 100 seeds stramonium weighing 16 grains. The usual symptoms were manifested in an hour, and the child died in 24 hours although twenty seeds had been ejected by vomiting and eighty by purging. Sufficient alkaloid to destroy life had been absorbed from the entire seeds and carried into the blood.

In a case which became the subject of a trial at Osnabruck, a woman administered to her mother a decoction of the bruised seeds of the thorn-apple, of which it was supposed there were about 125. She very soon became delirious, threw her arms about and spoke incoherently; she died in 7 hours.

Dr. Patodia (P.W. 7) could not definitely say what dose of tincture stramonium should be sufficiently fatal to life. But he further opined that half an ounce of tincture stramonium, which is in sufficient excess of the normal medicinal dose (which he put at 10 to 30 drops) will be sufficient to cause death. On this material we cannot say that it has been established that what the appellant prescribed was necessarily a fatal dose. Further, the finding of the learned Sessions Judge that the leaf weighed 40 grains and the poison content would be 15 grains does not proceed on any sound basis. Ghisaji described the leaf as a big one but it was green and fresh. Laxminarayan, Vaidya, P.W. 13 gave the dimensions of the biggest leaf as having a length of 7 inches and breadth of 3-'/, inches grown on the land having application of manure. Dr. Choudhary, P.W. 17, said that “on the basis of hpothesis that if a fresh leaf

of dhatura is 6 inches in length and 4 inches in breadth and is 40 grains in

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weight, it would contain 27 grains moisture and 13 grains of solid stramonium, i.e, poison.” We think that this hypothetical evidence should not have been relied upon to determine the content of solid stramonium in the leaf alleged to have been administered to the deceased. It follows from this that poisonous contents of the leaf have not been satisfactorily established and if this is so, the prosecution has failed to prove that the dose given to the deceased was necessarily fatal. Further, Dr. Choudhary stated that it had not come to his notice that in any of the Homoeopathic systems of medicine stramonium mother tincture or stramonium in potentized form or a green leaf of dhatura is not given for treatment of guinea-worm. According to Dr. R.K. Singh, P.W. 16, mother tincture stramonium can be given for removing foreign bodies, though it is not specifically mentioned in Materia Medica of Homoeopathy that it can be used for treatment of guinea-worm. But it will be remembered that in this system

treatment is by symptoms.’ 2. One point argued by the learned counsel for the appellant was that motive not having been established, it was necessary for the prosecution to prove that in administering aconite to Sundar Singh the intention of the appellant was to kill him. According to the learned counsel such an intention had not been proved as there is nothing in the chemical examiner’s report to show that the aconite found in the stomach contents of the deceased was of a fatal variety. Hereferred to the fact, mentioned in almost all the books on medical jurisprudence and toxicology, that a root of aconite is often used both externally and internally by ‘Vaids’ and ‘Hakims’ in this country, and that it is also sometimes added to country-made liquors to increase their intoxicating power. He also argued that the poisoning may have been accidental. He further cited, ‘In re Chinna Hanumakka? in connection with the question of intention. Motive having however been established, no question of intention arises on the showing of the learned counsel for the appellant himself. It may, however, be stated that it is immaterial that the prosecution have adduced no evidence as to the particular variety of aconite used in the present case. And this for the reason that the nature of the variety used in the present case appears from the result produced by it. Sundar Singh died within three hours of the poisoning. It is apparent, therefore, that the aconite used in the present case was sufficient both in quality and quantity to produce fatal results. There could, in the circumstance, be no doubt about the intention of the appellant, for a person who administers to another aconite producing fatal results within 3 hours cannot but have the intention of killing him.

The Madras ruling cited by the learned counsel for the appellant has no relevancy since in that case the accused pleaded that she gave aconite to her husband not with the intention of causing his death but with the intention of making him mad. The appellant in the present case did not plead that he had any other intention than of causing the death of Sundar Singh in mixing aconite powder with the tea. In any case, a person who administers aconite of such 1. Juggankhan v. State of Madhya Pradesh, (1965) 1 Cri LJ 763 (SC). 2. AIR 1943 Mad 396.

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quality and in such quantity to another as results in his death within three hours must be taken to know that his act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and if death ensues, he is guilty of murder, notwithstanding that his intention may not have been to cause death. See para. 4 of the definition of murder in section 300, Penal Code—Emperor v. Gauri Shankar,! There could also

be no question of accidental poisoning in this case since aconite was not administered by some quack in a drug, nor was it administered in liquor to

increase its intoxicating power.” 3. The civil surgeon of Bareilly conducted the post-mortem examination of the dead body of Sudarshan Puri on 18th of April, 1953 at 9.55 in the morning. He found the nails of thumbs and fingers blue. The skin at tips of fingers and thumbs was cyanosed. The membranes of the brain were hyperaemic. Both lungs were congested. Both sides of heart contained blood and ecchymosis under the endocardium and in the muscles of the left ventricle. The liver, the spleen and the kidneys were congested.

Examination of the stomach revealed that the mucous membrane was swollen and softened and there were patches of congestion. The stomach had four ounces of brownish watery fluid with flakes of mucous and gritty whitish sandy particles which were also embedded in the mucous membrane. The small intestines showed that mucous membranes were swollen, flabby and congested. The viscera was preserved by the civil surgeon for examination by the chemical examiner. In the opinion of the civil surgeon death was due to arsenic poisoning. The report of the chemical examiner indicated that arsenic was detected in portions of viscera of Sudarshan Puri and traces of arsenic were also discovered in the vomitus of Sudarshan Puri. Traces of opium were also discovered in portions of the viscera of Sudarshan Puri. Arsenic was also detected by the chemical examiner in two of the phials bearing the labels Liquor Arsenicalis P.B.I.M.S. Laboratory Ltd., Lucknow and Liquor Arsenicalis, P.B. Verma Medical Stores, Chandausi, and opium was detected in one of the phials marked as Tinct. Opii Camphoreta B. P. 48, Bengal Chemical and Pharmaceutical Works Limited, Calcutta. The report of the chemical examiner did not disclose any

result on the basis of a quantitative test. As has been observed by Modi in his Medical Jurisprudence, Twelfth Edition

(1955) at page 513, “When administered in a soluble form by the mouth arsenic gets absorbed into the blood almost in a few minutes, but when taken in solid lumps, it may not be absorbed by the stomach and sometimes passes out with the faeces without producing any poisonous symptoms. The report of the chemical examiner in our opinion is wholly insufficient to prove that the cause of death of Sudarshan Puri in this case was arsenic poisoning. A very small and harmless quantity of arsenic can be detected by the Reinsch or Marsh Test. 1. AIR 1918 All 283. 2. Findal v. State of Himachal Pradesh, 1953 Cri LJ 1900 (HP).

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As far back as 1930, a Bench of this court held, in Emperor v. Sikandar’, that it

is of the utmost importance in a case of arsenic poisoning that the prosecution should prove that a lethal dose of arsenic, that is two grains or upwards, had been administered.

In India, arsenic is used as a medicine

in all manner

of

diseases. It is therefore impossible to take the mere evidence that arsenic was

detected as sufficient to prove conclusively that death was from arsenic poisoning.

It is of the utmost importance before a court can find any individual guilty of murder by the administration of arsenic that a more complete analysis should be made than done in this case. That such analysis has been made in India in the past is clear from a reference to Dr. Cheyer’s Medical Jurisprudence published in 1870, where he observed at page 116: “Dr. MacNamara discovered considerable quantities of arsenic in both stomachs.” Given the necessary knowledge and the necessary instruments, modern science has no difficulty in coming to a conclusion as to the approximate quantity administered. A similar question came up for consideration by another Bench in Happu v. Emperor, and there too it was observed that if the prosecution wishes to establish that the deceased died of arsenic poisoning by the report of chemical examiner, and weight is to be attached to his evidence, it must be proved that at least two grains of arsenic were administered to the deceased before death. He can do this by proving the discovery of this amount in the body of the deceased or by accounting for its absence in part. He may attribute the loss by vomiting, purging or the natural elimination of the poison from the body before death. It was further observed in that case that where a man’s life is in the balance and where the whole case depends upon an answer to the question whether a fatal dose was or was not administered to the deceased, it is a matter for consideration whether the Sessions Court should not whenever it is of opinion that such action is necessary for the ends of justice, exercise its right to call the chemical examiner so that he may be examined on oath and subjected to crossexamination; and that when g report is received from the chemical examiner containing a quantitative analysis it should be shown to the medical officer who conducted the post-mortem examination so that he will be in a position to state what are the medico-legal inferences to be drawn from the report. In the present case, there is complete absence of evidence on the point.

11.11.3 Cause of Death 1. The prosecution case is that Sardar Jaspal was administered potassium cyanide poison by the appellant and Mohinderpal on the afternoon of 6-2-1950. 1. AIR 1930 All 532. 2. AIR 1933 All 837. 3. State of Uttar Pradesh v. Fateh Bahadur, 1958 Cri LJ 4 (All). Also see Hanumanth v. State of Andhra Pradesh, 1957 Cri LJ 930 (AP); Basu v. State of Bihar, 1957 Cri LJ 990 (Pat).

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The dead body was then put into a large trunk and kept in one of the rooms in the house in Ambala City. About ten days later, i.e., on 16-2-1950, Mohinderpal

during the absence of the appellant, removed the trunk from the house in a jeep when he came there with Amrik Singh and Kartar Singh (P.Ws), two watermen of the Baldevnagar Camp. The trunk was then taken to Baldevnagar Camp and was kept in a store room there. Three days later, on 19-2-1950, Mohinderpal accompanied by Palvinder and a domestic servant, Trilok Chand (P.W. 27), took

the trunk a few miles on the road leading to Rajpura, got on to a katcha road and in the vicinity of village Chapt took the jeep to a well on a mound and threw the box into it. The jeep was taken to a gurdwara where it was washed. It held that though the body found from the well was not capable of identification, the clothes recovered from the trunk and found on the body proved that it was the body of Jaspal. It further held that the cause of death could not be ascertained from the medical evidence given in the case. The evidence on the question of the identity of the dead body consisted of the statement

of constable

Lachhman

Singh, of the clothes

and

other articles

recovered from inside the trunk and of alleged confession of the accused. Whether Jaspal committed suicide or died of poison taken by mistake, or whether poison was administered to him by the appellant or by Mohinderpal or by both of them are questions the answers to which have been left very vague and indefinite by the circumstantial evidence in the case. In view of the situation of the parties and the belated investigation of the case and the sensation it created it was absolutely necessary for the courts below to safeguard themselves against the danger of basing their conclusions on suspicion howsoever strong. It seems to us that the trial court and to a certain extent the High Court fell into the same error against which warning was given by Baron Alderson in Reg. v.

Hodge! where he said as follows: The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to over-reach and mislead itself, to supply some little link that is wanting, to take for granted some facts consistent with its previous theories and necessary to render them complete. We had recently occasion to emphasize this point in Hanmant Govind

Nargundkar v. State of Madhya Pradesh?. In order to establish the charge under section 201, Penal Code, it is essential

to prove that an offence had been committed,—mere suspicion that it has been committed and with the requisite knowledge and with the intent to screen the offender from legal punishment causes the evidence thereof to disappear or gives false information respecting such offences knowing or having reason to believe the same to be false. It was essential in these circumstances for the 1. (1838) 2 Lewin.

2. Criminal Appeal No. 56 and 57 of 1951 SC. Also see Palvinder Kaur v. State of Punjab, 1953 Cri LJ 154.

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prosecution to establish affirmatively that the death of Jaspal was caused by the administration of potassium cyanide by some (the appellant having been acquitted of this charge) and that she had reason to believe that it was so caused and with that knowledge she took part in the concealment and disposal of the dead body. There is no evidence whatsoever on this point.’ 2. The Kotwal then went to the house of Yashwant Rao, which was very near the maternity ward. In the meanwhile the accused absconded. The Kotwal and the police with the father of the accused and other persons went inside the house. In the sleeping room of the accused, above his cot, there was a wooden plank fixed on which the basket was found and nearby in a corner were found the cow-dung cakes. Babu (P.W. 1) identified these as belonging to the deceased. On the left side of the room was a staircase which was locked. The lock was broken and the party went to the roof. On the left side was a sort of verandah with three doors which were closed. The doors were opened, and after entering

the Kotha they found a very small room which was also closed. Opening it the dead body of Mahila Dhanno was found in it. The body was lying on its back. The mouth was stuffed with a handkerchief and on it was tied a langot; eyes were closed; private parts and breast were uncovered and there were many marks of abrasions on both side of the breast. Dr. V.R. Sapkal (P.W. 2) who performed the autopsy on 6-2-1950 was of opinion that there were nearly ten abrasions on the right side of breast and a big abrasion with a diameter of it, 1.25" on the nipple, left side. This was most probably due to human bite. No scratches or wounds could be detected near the private parts; hymen being old ruptured. The stomach and small intestines and oesophagus were inflamed; lungs, liver, spleen, kidneys being congested. The right side of the heart was full of blood and the left empty. According to him the cause of death was asphyxia and irritant poison. The viscera were sent for chemical examination; and opium was found in them. Examined as a witness Mr. Shankar Rao (P.W. 8), the chief

chemist, deposed that he was unable to say whether the morphia which he found was the result of partaking of opium in the form in which it is usually taken or of partaking of some preparation containing morphia. He could not tell the quantity of opium taken or the time before death at which it could have been taken. The fatal dose being one grain of morphia or four grains of opium, it is difficult to say whether so much opium or morphia was in fact administered. The police failed to discover any morphia or opium in the house. It is possible that the fatal dose may not have been given but some preparation may have been given in order to break the resistance, if any. The slides containing vaginal discharge were negative for semen and no spermatazoa could be traced. The examination of the lehenga and dhoti of the deceased also indicate the same result. From the above, it is evident that attempts were made to have sexual intercourse with the unfortunate female forcibly and deceased continued to resist. Then, in order to silence her a handkerchief was stuffed into the 1. Sudarshan Kumar v. State of Delhi, 1975 Cri LJ 14 (SC).

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deceased’s mouth and langot was tied over it. It appears that the female died due to suffocation before the offender could commence sexual intercourse. ! 11.11.4 Acid Burns

Dr. V.K. Jain, who treated Maya Devi in the city clinic has stated in his evidence that the injuries suffered by Maya Devi were sufficient collectively, in the ordinary course of nature, to cause death. The opinion of Dr. Jain is corroborated by the evidence of Dr. K.S. Raj Kumar. He said that the burns were to the extent of 35 per cent of the body that if the burn exceeded 30 per cent, the same would be dangerous to life and that the injuries on Maya Devi were dangerous to life. Dr. S.S. Kaushal who conducted the post-mortem examination was of the view that death was due to toxaemia and septisemia from absorption of toxins on account of the extensive superficial ulceration of the body caused by some corrosive material. The evidence of these doctors would show that the injuries caused to Maya Devi were of a dangerous character. The fact that Maya Devi lingered for about 12 days would not show that the death was not the direct result of the act of the appellant in throwing acid on her. The medical evidence is clear that 35 per cent of the surface of the body of Maya Devi was burnt as a result of the injuries received by her. “The involvement of one-third to one-half of the superficial surface of the body is likely to end fatally”. (See Modi’s Medical Jurisprudence and Toxicology, 17th Edn., p. 196). vw In suppurative cases, death may occur after five or six weeks or even longer” (ibid. p. 198). sf

Taylor says:— That after the fourth day of injury, “the chief danger to life is the occurrence of sepsis in the burned areas”. (See Taylor's “Principles and Practice of Medical Jurisprudence”, 12th Edn., Vol. I, p. 331) It was contended for the appellant that death of Maya Devi was not the direct result of the injuries caused by the acid burns but was on account of some supervening circumstances not resulting from the injuries and therefore, the appellant could not be held guilty of murder. He relied on the evidence of Dr. (Miss) Nirmala Lakshmi Narain who had stated, on her cross-examination that

the cause of death of Maya Devi was melaena and respiratory failure. Malaena, according to Dr. Jain is nothing but passing of old blood in the stools. The evidence of Dr. S.S Kaushal who performed the post-mortem examination of the dead body is definite. He says: Death, in mty opinion, was due to toxaemia and septisemia from absorption of toxins from extensive superficial ulceration of the body caused by some corrosive material. As already stated the evidence of Dr. Jain and Dr. Raj Kumar is also to the effect that the injuries caused on Maya Devi were sufficient in the ordinary 1. Narain Rao Jamdar v. State ofMadhya Bharat, 1952 Cri LJ 291 (MB). Also see State of Himachal Pradesh v. Shiv Devi, 1959 Cri LJ 448 (HP); Hadu v. State of Orissa, AIR

1951 Ori 53; State of Madhya Pradesh v. R. Ori. Limsey, 1954 Cri LJ 244 (SC).

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course of nature to cause death. The fact that Maya Devi developed symptoms of malaena‘and respiratory failure and they also contributed to her death cannot in any way affect our conclusion that the injuries caused by the acid burns were the direct cause of her death. Since Curling first drew attention to the occurrence of duodenal ulcers after burns numerous cases have been recorded both in vivo and post-mortem after burns.

Petechiae

of

the

stomach

and

duodenum,

often

with

erosions,

occasionally acute ulcers, is a more common post-mortem findings: The condition is due to anoxia from hypertension and stasis. The large bowel may also be involved” (See Taylor’s Principles and Practice of Medical Jurisprudence, 12th Edn. Vol. I, p. 331). Modi, in his Medical Jurisprudence, has stated that burns would cause: Inflammation of serous membranes and internal organs, such as, meningitis, peritonitis, oedema glottidis, pleurisy bronchitis, bronchopneumonia, pneumonia,

enteritis and perforating ulcer of the duodenum (17th Ed., p. 197).”? 11.11.5 Diminished Responsibility As indicated earlier, medical opinion gave no certain guide as to the cause of death. While death as the result of violence is not ruled out by that evidence it showed that cyanide poison might as well have been the cause. The learned judge, therefore, rightly held that the person who caused violence could not be held to be liable for anything more than causing hurt. The question as to whether that hurt was one which could be designated as ‘grievous’ naturally came up for discussion by the judge after fixing the offender. The doubt as to the cause of death was caused by the presence of traces of cyanide in the stomach contents detected by the chemical examiner. As to how those traces happened to be present is a mystery to all those who had something to do with the case and it

will be futile to attempt to unravel it.?

CBM

1. Sudershan Kumar v. State of Delhi, 1975 Cri LJ 16 (SC).

2. Joseph Cheriyan v. State of Travancore-Cochin, 1953 Cri LJ 706 (TC).

Chapter 12

NARCOTICS SYNOPSIS 12.1 12.1.1

INTRODUCTION Legal Definitions

12.2 ADDICTION 12.2.1

Nature

12.2.2 Causes of Drug Addiction 12.2.3 The Addict hao. 9 Identification of the addicts 12.2.3.2

Withdrawal Syndrome

12.3 DRUGS AND CRIMES 12.3.1

Non-violent Crimes

12.3.2 Violent Crimes 12.3.3 12.3.3.1

Drug Problem in India Cannabis

12.3.3.2 Poppy 12:4 CLASSIFICATION 12.4.1

Sedatives

12.4.2

Miscellaneous

12.4.3

Stimulants

12.4.4

Hallucinogens

12.4.5

Solvents

12.4.6

Synthetic Narcotics

12.4.7

Designer Drugs 815

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12.5 EVIDENTIARY CLUES 12.5.1

Drug Addict

12.5.2

Residence of the Addict

12.5.3

Drug Peddler

12.6 FORENSIC PROBLEMS 12.7 SEDATIVES

12.7.1

Opium and Opium Derivatives

12.7.2

Opium

12.7.3

Morphine

12.7.3.1

Administration

12.7.3.2 Physiological effects 12.7.3.3

Metabolism

12.7.3.4

Addiction

12.7.3.5

Identification

12.7.4

Heroin

12.7.4.1

Abuse

12.7.4.2 Physiological Effects 12.7.4.3

Identification

12.7.5

Barbiturates

12.7.5.1

Nature

12.7.5.2 Administration

12.7.5.3 Addiction 12.7.5.4

Metabolism

12.7.5.5

Identification

12.7.6 Other Non-opiate Sedatives 12.8 STIMULANTS 12.8.1

Cocaine

12.8.1.1

Origin

12.8.1.2

Use

12.8.1.3 Abuse as Narcotic 12.8.1.4

Intake

12.8.1.5

Effects of Cocaine

12.8.1.6 Physiological Effects 12.8.1.7 Addiction 12.8.1.8

Metabolism

12.8.1.9

Identification

12.8.2

Benzedrine

:

NARCOTICS

12.8.2.1

Administration

12.8.2.2

Effects

12.8.2.3 Addiction 12.8.2.4

Metabolism

12.8.2.5

Identification

12.9 HALLUCINOGENS 12.9.1 12.9.1.1

Cannabis Administration

12.9.1.2 Effects 12.9.1.3 Addiction 12.9.1.4

Metabolism

12.9.7-5

Identification

12.9.2 a

LSD (Lysergic Acid Diethylamide)

Bae | Administration

12.9.2.2

Effects

12.9.2.3 Addiction 12.9.2.4

Metabolism

12.9.2.5

Identification

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Fig. XII-1 A flowering top of cannabis (Bhang) plant. The same is smoked or drunk. It is one of the commonest narcotics. It seldom causes fatal poisoning.

NARCOTICS 12.1 INTRODUCTION

The word ‘Narcotic’ has been derived from Greek word Narkotikos meaning a state of lethargy, sluggishness or sleep. However, Narcotic drugs convey a common meaning for all those drugs/substances, which induce altered state of consciousness and have high abuse potential. A drug, which has a deteriorative effect upon the functioning of the human mind and body, is called a narcotic or a narcotic drug. The outwardly effect may just be the opposite. The drug user may show signs of stimulation to start with. Thus, he may feel relieved of pain, fatigue or worry. It may also make him more active. But a narcotic drug ultimately deteriorates the body functioning. It harms the individual. The opiates, stimulants and hallucinogen though have different effects on the body and mind of the abuser yet they all are termed as narcotics in common parlance. In law, narcotic are simply those drugs whose production, sale and purchase are prohibited, controlled or regulated. They are mentioned in the Schedules I and IL, appended to the Narcotic Drugs and Psychotropic Substances Act, 1985. 12.1.1 Legal Definitions Narcotic drugs are defined in section 2 of the Act. Relevant sub-sections,

defining the various drugs read as under: 2(iii) “Cannabis (Hemp)” means:

¢ Charas, that is, separated resin in whatever form whether crude or purified obtained from cannabis plant and also include concentrated preparation and resin known as Hashish or Liquid Hashish.

* Ganja, that is, the flowering/fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name may be known as designated, and,

¢ Any mixture, with or without the neutral material of any of the above forms of cannabis or any drink prepared therefrom. 2(v) ‘Coca derivatives’ means:

¢ Crude cocaine, that is any extract from the ‘coca leaves’ which can be used directly or indirectly for the manufacture of cocaine. ¢ Ecgonine and all the derivatives from which it can be recovered.

* Cocaine that is methyl ester of benzoyl ecgonine and its salts, and ¢ All preparations containing more than 0.1% of cocaine. 2(vi) Coca leaf means:

© The leaf of coca plant except a leaf from which all ecgonine, cocaine and any other ecognine alkaloids have been removed. 819

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e Any mixture thereof with or without neutral material but does not include any preparation containing not more than 0.1 per cent of cocaine. 2(vii) ‘Coca plant’ means:

The plant of any species of the genus Erythroxylon. 2(viia) ‘Controlled Substances’ means: Any substance which the Central Government may, having regard to the available information as to the use in the production or manufacture of Narcotic Drug or psychotropic substances or to the provisions of any international convention by notification in the Official Gazette, declare to be a controlled substance. 2 (xi) ‘Manufactured Drug’ means— e

All coca derivatives medicinal cannabis, opium derivatives, and

e Any other narcotic substance or preparation which the Central Government may, having regard to the available information as to its nature or to a decision if, under any international convention, by notification in the Official Gazette declare to be a Manufactured Drug. But does not include any narcotic substance or preparation which the Central Government having regard to available information as to its nature or to a decision, if any, under any international convention, by notification in the Official gazette, declare not to be a ‘manufactured drug’. 2(xii) Medicinal Cannabis that is medicinal hemp means: Any extract or tincture of cannabis (hemp). 2(xiv) ‘Narcotic drug’ means: Coca leafs, cannabis, opium and poppy straw and include all manufactured drugs. 2(xv) Opium means: ¢ The coagulated juice of opium poppy and e Any mixture with or without neutral material, of the coagulated juice of opium poppy.

But does not include any preparation containing not more than 0.2 % of morphine. 2(xvi) ‘Opium derivative’ means:

* medicinal opium, that is opium which has undergone the process necessary to adapt it for the medicinal use in accordance with the requirements of the Indian Pharmacopoeia or any other pharmacopoeia notified in this behalf by the Central Government whether in powder form or granules or otherwise mixed with neutral material. * ‘prepared opium’ that is any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and the dross and other residue remaining after opium is

smoked.

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e Phenenthrene alkaloids namely, morphine, codeine, thebaine and their salts.

e

Diacetyl morphine, that is, alkaloid heroin or its salts, and

also known

as dimorphine

or

e All preparations containing more than 0.2% morphine or containing any diacetyl morphine. 2(xvii) ‘Opium poppy’ means: ¢

The plant of the species papaver somniferum

¢ The plant of any other species of papaver and from which opium or any

phenenthrenic alkaloid can be extracted and which the Central Government may by notification in the Official Gazette, declare to be opium poppy for the purpose of this Act.

2(xviii) ‘Poppy straw’ means:

All parts (except seeds) of the opium poppy after harvesting, whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom.

2(xix) ‘Poppy straw concentrate’ means

The material arising when poppy straw has entered into a process for the concentration of its alkaloids. 2 (xxiii) ‘Psychotropic substance’ means:

Any substance natural or synthetic or any natural material or any salt or preparation of such substance or material included in the list of PS specified in the schedule. Narcotics have acquired tremendous notoriety in recent years. Human nature often wants to run away from reality. Formerly religion provided the vent. The success or failure were all attributed to God. With the change to materialism, the

very existence of the God is questioned. The escapist finds refuge in drugs. Their abuse is increasing at a frightening rate among all sections of society. The greatest menace of the invasion is among the youth. If they become lotus-eaters, the nations will go down. Each nation, therefore, views the abuse of drugs with

concern and provides stringent measures against the same. The person who contravenes laws in relation to production, possession, sale, purchase, transport, storage, import or export shall be punished with 10-20 years of rigorous imprisonment and/or fine of rupees 1-2 lakhs in respect of the following items: 1. Poppy straw 2. Cocoa plants and leaves 3. Prepared opium 4. Embezzlement of opium by its cultivators 5. Charas/Hashish (Punishment for Ganja is rigorous imprisonment up to 5 years and a fine up to rupees 50,000/-) a Manufactured drugs 7. Psychotropic substances.

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Even attempts to commit any of the offences relating to the above drugs and psychotropic substances carry the same punishments. Recidivism invites enhanced punishments, 50% enhancements for most of the offences. A recent proposed amendment tend to reduce the quantum of punishment. There is general belief that the drugs provide the criminal with courage to commit crime. This does not appear to be so in most of the cases. The physiological action of the narcotics is mostly not conducive for the commission of crimes. But drug addiction does provide a strong motive for crime. 1. The drug addict needs the drug, which he can get mostly from illegal sources, as such drugs are banned. 2. The drug addict needs money for the purchase, which in most of the cases, is obtained by illegal means: theft, bribery, embezzlement, robbery, forgery, cheating, extortion, abduction, prostitution, etc. Certain narcotics do inhibit the power of discrimination and judgement. The baser tendencies of the man come out which promote commission of crime. For example, alcohol and cannabis make a man desperate and he may commit crime which he would not commit if he were not under the influence of the drug. It is believed that these drugs may promote criminal activities. But this happens in those persons only who are basically criminals but their criminality has been kept under check by social influence.

Some of the recent drugs like LSD, PCP give hallucinations to the addict and he loses sense or judgement of time, of space and of human values. He commits crime conforming to the old idea of drugs promoting the crime. A 19 years-old boy who was under the influence of LSD was apprehended while completely nude in an apparent burglary-rape attempt. The boy revealed that after taking L.S.D he felt a strong urge to commit rape. He drove in his vehicle for about a kilometre when he observed light in a house. He disrobed in the car and went to the house and attacked the girl. He failed to do any damage as the girl was able to get help of her neighbour through telephone. The boy mentioned that he has taken LSD previously also and felt the same desire and entered at least three houses. He did not remember what he did on those occasions. (CH)

12.2 ADDICTION

12.2.1 Nature Drug addiction is a state of mind and body in which a person has lost the power of self-control in respect of the drug to which he is addicted. He consumes the drug repeatedly leaving aside all values of life. In other words a drug addict will resort to crime even, to satisfy his repetitive craving for the drug. The effects of addiction are mainly deteriorative personality changes. They include insomnia, instability, lack of self-confidence especially when not under the influence of the drug, etc. The addict cannot concentrate on any work. He avoids social contacts. Slowly, he becomes a mental, physical and moral wreck and a burden to the society. Drug addiction is characterised by one or more of the following attributes:

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1. Uncontrollable craving.—The addict feels a overpowering craving to take drug repeatedly and tries to procure the same by any means. 2. Psychological dependence.—The drug addict feels he cannot do without the drug, consequently if he does not take the drug his mental processes are affected. He is unable to concentrate on his work and cannot carry out his work } efficiently. 3. Physical dependence.—Certain drugs like morphine when taken repeatedly by a person, alter his physiological body functions. The drug becomes part of the physiology. The body becomes sick, inactive and incapable of carrying out any useful activity in the absence of the drug. Such dependence on drug is called physical dependence. In acute cases withdrawal of the drug causes serious physical and mental illness-also called withdrawal or abstinence syndrome.

4. Tolerance.—When a drug is taken repeatedly, the body becomes used to the drug. It needs increasing amounts of the drug to have the same effect. This tendency of the body to require increasing amounts of drug for effect to the same extent, is called tolerance developed by the body. It has also been defined as body- tolerance to a drug when the same amount of the drug has less and less intoxication effect on the body. In fact distinction between habit-forming drugs and addiction drugs is not well defined. It is sought on the basis of tolerance. Whereas the habit-forming drugs (tea, coffee, cigarette or even cannabis) do not develop tolerance, addictive drugs (opiates) inculcate tolerance. The habit-forming drugs usually do not produce most of the detrimental effects on the individual on withdrawal. 12.2.2 Causes of Drug Addiction

The drug addiction is habituation to the in-taking of a drug not authorised by medical practitioners. They are taken by the addicts for reasons (given below) which may be real or imaginary: 1. Reduce tension. . Relieve fatigue. . Reduce pain. Improve feeling of well-being. Stimulate body. Reduce sleep. . Facilitate social contact. . Enrich sexual experience. . Curiosity. DN BW GT ©ONA Revolt against old values. —© .

11. Fashion. The family and societal reasons for taking drugs are : e

Broken Families.

¢ Wrong company.

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e Ambitious families. e Defective weak personality. e Double standards by the parents. One for themselves and one for the youngsters.

e Low education. e Unearned money. ¢ Over indulgence in money expenditure.

e Emotional upset. e Failure, frustration.

12.2.3 The Addict Only those persons become addicts who have defective personalities to start with. They cannot face the competition from their colleagues. They run away from the world of reality to that of the world of make-belief happiness of the drugs.'The drugs give them the ‘happiness’ which saves them from the life’s hardship and failures. But the happiness of the addict is short-lived. He has to acquire the drug again and again. It needs money, more money, still more money. His legal resources are soon exhausted. He enters the world of crime losing all selfrespect, decency, society and even family. An addict is an unpleasant sight. He is tormented by the ever-impending need and insatiable desire for drug which ultimately finishes him. Yet it is difficult to sympathise with the addict. He is himself responsible for the wreckage. He has himself renounced the normal world. The addict, ordinarily, starts taking the drug as an experiment with the drug, to

start

with.

He

believes

he

cannot

become

an

addict.

Therefore,

experimentation cannot harm him. The first experience of addiction-prone person is usually euphoria which inculcates the desire to experiment second time, third time and so on. Initially the interval between the intakes is long but it gradually shortens and ultimately it comes to an addiction stage when the individual requires the drug every few hours.

The dose of the drug taken each time also increases with the passage of time. Consequently, the cost of being in the twilight zone also increases and upsets the addict financially and ultimately socially. In order to get the maximum advantage of the drug, he injects the drug in the blood veins and thus becomes main liner.

12.2.3.1 Identification of the addicts The addict is identified from the following evidence: 1. Presence of drug on the person or in his/her belongings, bags, vehicles, even in books, at residence — often at the dirtiest places like bathroom,

etc., where he may try to hide the drug. 3. Presence of equipment for smoking, drinking or injection of the drug. 4. Presence of needle pricks.

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5. Scars on the body caused by needle pricks. Sometimes the scars at sites are covered with tattoo marks. Needle pricks also create tattoo marks. If the needle or the cotton filter used is dirty as it deposit the dirt under the skin.

6. Presence of abscess, ulceration, scab, pinkish swelling over the veins. 7. Presence of drug in the body. 8. Drug intoxication in the absence of alcoholic smell. It is indicated by : e Dilation or contraction of the pupils. In opiate addicts, the contraction is substantial to about half (3 mm

e ¢ ¢ e ¢ e

from 6 mm). The

movement of eyelid is also sluggish. Unsteady gate. Incoherent slurred speech. Loose mental processes. Vacant look. Drowsiness, droopy eyes. Tendency to laugh (or weep) at trivials.

e Dry mouth e Pale skin e Pale brittle nails 8. Cyanosis ¢ Slow breathing. * Reduced urination. ¢ Low blood pressure. e Inoxia ¢ Voice changes, polorospasm

¢ Slow heart beats. 9. Changes in behaviour * Moody. ¢ Drug culture. ¢ Drug vocabulary. ¢ Absent from school/college. ¢ Powdery contents of cigarette stubs ¢ Remains long in rooms/bathrooms. ¢ Rushes to bathroom/outdoors in the morning. 10. Nalline test indicates the opiate addicts. The test is carried out as under: A small dose (3 mg) of Nalline is injected into the body of the suspect. The size of the pupil of the suspect is measured before and after the injection. An addict will show appreciable dilation of the pupil. The drug has practically no effect on non-addicts.

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Nalline in this dose does not produce withdrawal syndrome. 11. Urine test. The drugs are often eliminated through urine wholly or partially, a chemicai test therefore, reveal the drugs.

12. Changes in the working and association of the individual. Drug addiction changes an honest and decent person into a cheat, a forger, a thief, a pimp or a prostitute. 13. Withdrawal symptoms, when kept away from drug. 14. The visible apparent addict pointers are: ¢ Long sleeved shirt, to hide needle marks ¢ Dark glasses, to hide mitosis (eye contraction)

e Flushed face, shifting eyes e

Dry mouth, thirst, craving for sweets

¢ Rickety body, pale skin ¢ Mental confusion, slow reflexes ¢ Disorderly. 12.2.3.2 Withdrawal Syndrome

The addict becomes nervous and restless when the effect of the drug wears off. He starts sweating. His nose and eyes start running, and continue doing so increasingly with the passage of time. Twitching of skin, dilation of pupils and recurring goose flesh is observed next. It is followed by vomiting, diarrhoea, loss of appetite and sleep. Respiration, blood pressure and body temperature also changes. The withdrawal syndrome is acute for several days, after which the trouble starts subsiding. Complete recovery takes place in three to six months, or even after more time. The withdrawal syndrome can be roughly put into the following stages:

Stage I ( 8-24 hours )

|

This is mostly governed by fear psychosis of the non-availability of the drug. Nothing happens for the first 8 hours after the next dose time is passed. However the subject feels discomfort and fear the onslaught of the abstinence. The next 8 hours, restlessness sets in: ¢ Body perspires. ¢ Nose and eyes runs. ¢ Yawning, sneezing, like the common cold symptoms, appear. The next 8 hours bring in: ¢ Loss of appetite. ¢ Body shivers ¢ Cold turkey flesh ( recurring goose flesh) appear. And the addict is in real trouble. Stage II ( 24 - 48 hours) This stage start after about one day . It heralds real troubles: insomnia, diarrhoea, vomiting, weakness and depression. It continues for a day.

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Stage III (48- 72 hours) Stage II symptoms intensify and reach the peak. increases manifold.

Cramps and twitching

Stage IV

After about three days the symptoms start subsiding but nervousness and insomnia continue for months together, in some cases. Net result is weight loss, personality loss, physical dependence is also lost. However the psychological dependence persists. It can lead the addict to relapse, if proper supervision is not exercised.

12.3 DRUGS AND CRIMES 12.3.1 Non-violent Crimes Drug addiction involves a large variety of criminal activities. In fact a drug addict has to be a criminal. He cannot continue as drug addict otherwise, ordinarily. The habit causes him to lose his job, alienate his family, destroys his health and character. He is left with one craving: drug consumption. For its procurement he adopts all sorts of criminal activities. 1. The addict steals money from home, from friends and from strangers, from one and all.

. He He . He . He . He . He . He

acts as prostitute or pimp and spreads AIDS. becomes a police informer. | commits forgery. embezzles money. sells drugs. blackmails, commits robbery, kidnaps, extorts. starts smuggling of drugs, arms, explosives.

He manufactures illicit drugs. WN Fk OT ONDA ©

. He joins crime syndicates. 11. He induces others to take drugs.

—©

12.3.2 Violent Crimes Drug intake, ordinarily, does not appear to induce criminality. However, certain drugs acts as dis-inhibitors. They bring to surface the inherent criminality of the individual, which had been dormant due to education, societal fear. Drugs opens up the man. Liquor, cannabis are some such drugs. Hallucinogens can lead to violent crimes. With such drugs the addict loses sense

of time,

space

and

of human

values

and

commits

crime

without

understanding or bothering about the consequences of crimes. Stimulants, like cocaine and amphetamines, invigorate the physiological activities. They can certainly promote violent crimes. But it is believed only in those persons who are criminals. Opiates,

barbiturates

towards violent crime.

and

other

tranquilisers

tend

to inhibit

tendencies

In fact it is possible to decrease violent crime if the

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criminal is given these drugs. However, the addiction the drugs may cause, make their use unethical for such purposes, except in those cases where the violence is due to mental aberrance. Advent of criminality through drugs depends upon other factors also. The personality of the drug addict, the surroundings, the nature, quantity and frequency of the abused drug are important determinants. 12.3.3 Drug Problem in India

India faces all types of drug problems. The main problem are : 1. Wild growth and cultivation of cannabis. 2. Cultivation of poppy plant and production of opium. 3. Borders with countries producing large amounts of heroin, sandwitched between Golden Triangles and Golden Crescent and acts as route for their smuggling. 4. Growth of addiction.

12.3.3.1 Cannabis Cannabis grows wildly in all parts of India. It is also cultivated in some parts of the country. Originally the cultivation was done for fibres and seeds but now the cultivation is done more for Charas, Ganja, etc. The Kullu valley charas is highly valued and is even being smuggled out abroad. The charas from Nepal is also transmitted through India. Sometimes the Pakistan charas dealers also use the border to smuggle out the drug to western countries. 12.3.3.2 Poppy

Cultivation of poppy plant (Papaver Somniferum ) under Government control is done in some parts of India (Madhya Pradesh and Rajasthan). However part of the produce goes to illegal market, where morphine is extracted from the opium and converted into heroin. Some of the opium or morphine released by the Government to authorised dealers for legal use also find its misuse in the illegal market. The quantity of the drug in the illegal market is however limited. The major producers of the heroin in the world are the countries, which have been nicknamed as the Golden Crescent and the Golden Triangle. The former includes Pakistan, Afghanistan and Iran. The Golden Triangle includes Burma (now Myanmar), Thailand and Laos. Our country has long borders. They are highly inhospitable. The smugglers utilise the same to advantage and smuggle heroin. Not only India act as the pipeline for the drug smugglers but the drug also gets infiltrated among the people of some of the border States. The worst affected State is Manipur where it is believed that 20 % of the population has become drug addict. Our country is sandwitched in between the two regions, most notorious for the production of the drug: the heroin produced in these regions is being smuggled out en route India. The cultivation, manufacture, trade and smuggling all have created the drugrelated problems. Besides, the sharply rising incidences of addiction have increased the drug problem manifold.

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The increased terrorist activities in recent years, in India, has brought in Narco-terrorism. The terrorists need money for their activities. They smuggle and trade in narcotics and use the money to promote terrorism.

12.4 CLASSIFICATION Narcotic drugs can be divided into three main categories: 1. Sedatives 2. Stimulants 3. Hallucinogens

12.4.1 Sedatives Sedative drugs have depressant effect upon the body and make it insensitive. They relieve the drug user from pain and worry. Examples are: Opium, Morphine, Heroin, Codeine, Demerol, Methadone, etc.

The opiates depress certain parts and stimulate (in neurophysiological sense) other parts of the nervous system. The central nervous system is affected; metabolic rate is reduced, blood pressure falls, respiration slows down. Hunger is reduced. The addict often loses weight. Opiates reduce sexual activity in both males and females. The desire decreases. An addiction-prone individual derives pleasure from the drug. The degree of pleasure sensation depends upon the individual, the extent of his neurotic or psychopathetic condition. It may be maximum when the individual is a_ beginner. This sensation weakens with passage of time. A stable personality find the drug taking experience nauseating. A few individuals are allergic to opiates. They fall ill or die when the drug is administered to them.

Physiological and psychological effects also vary somewhat with the varied techniques of administration. Opiate type of drug dependence is characterised by : 1. Psychological dependence: A burning desire to take drug repeatedly at intervals. This is psychological dependence. 2. Tolerance: Increasing dose is required to have the equivalent effect. 3. Physical dependence: Body physiology changes. An addict suffers from withdrawal syndrome, if he is unable to get the drug at regular intervals. Barbiturates are another important group of substances (sedatives) which are increasingly being used as drugs of addiction. Barbiturates are important in medicine as sedatives and analgesics in cases of nervous break down, emotional upsets and in certain ailments (asthma, insomnia, menstrual irregularities) especially along with other medicines. They do not leave any undesirable effects tf medicinal doses. Barbiturates, if taken in excess, produce intoxication, often with severe withdrawal syndromes. The alcoholic or opiate addicts often take barbiturates when they do not get alcohol or opiates. They also enhance or modify the effects of certain drugs of addiction. For example, emotional tension developed by

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cocaine or amphetamine addicts may be controlled, if he takes barbiturate along with it. Likewise, intoxication of alcohol may be prolonged if the same is taken along with barbiturates. Drug addiction of barbiturates has the following features: 1. A tendency to increase the dose. 2. Withdrawal syndrome when not intoxicated. 3. Psychological dependence on the drug-characterised by strong desire to take the drug repeatedly. Withdrawal syndrome of barbiturate addiction is characterised by anxiety, twitching of muscles, tremors in hands and fingers, weakness, giddiness, nausea,

vomiting,

insomnia,

lowering of blood pressure and delirium.

The

symptoms start appearing in about a day and are intense for about three days. They slowly subside in about 10 days.

12.4.2 Miscellaneous Other important non-opiate sedative drugs in abuse are chloral hydrate (knockout drops) paraldehyde, bromides. Tranquilizers (non-opiate non-barbiturates) have also invaded the field. They develop drug addiction similar to those of barbiturates.

12.4.3 Stimulants ; The stimulant drugs stimulate the various body functions. The important stimulants are cocaine and amphetamines. They are used to: 1. Counteract the effect of sedatives. 2. Keep awake during examination days or on long and night drives. 3. Pep up, to face the world better. Addiction follows the usual pattern. Necessity or curiosity leads to experimentation. Frequency of desire to take the trip increases with passage of time, till the person becomes a slave to the drug, i.e., an addict. Amphetamines affect the central nervous system. Usually the person has the feeling of euphoria, well being, increased self-confidence, heightening of alertness and initiative, etc. 12.4.4 Hallucinogens Hallucinogens are drugs, which affect the mental process of the human being, especially his perception, consciousness and his understanding. They are also known as psychedelic or psychotomimetic drugs.

Hallucinogens are being taken by human being from early times. They were taken by the mystics and the recluse who thought the drugs would enable them to detach themselves from the world and establish union with the divine power. To start with, hallucinogens were of plant origin. For example peyote is a small cactus. Charas (a pseudo hallucinogen) is obtained from cannabis (Bhang). Lysergic acid diethylamide (LSD) was obtained from a fungus growth on rye grain. Synthetic hallucinogens have ultimately come up replacing the original sources. For example LSD is now obtained from synthetic source. PCP (Phencyclidine, also known as angel Dust, Rocket Fuel, etc., D.M. T. (Diethal-

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tryptamine) are synthetic compounds similar in properties to LSD. Mescaline, the important alkaloid of the peyote is also now obtained from synthetic sources. Hallucinogens are usually non-addictive. That is, these drugs do not induce drug dependence or drug tolerance, nor do they cause withdrawal syndrome. However with these drugs, especially with LSD, the personality changes are so drastic that they are far more dangerous to the society than even the addictive drugs. These drugs are being used by medical men for research purposes for mental ailments, and for exploring the hidden world of mental process and feeling.

12.4.5 Solvents A new class of substances which are not included in the Schedules are solvents. The younger generation is taking up to their sniffing increasingly. The solvents being misused are: 1. Petrol. 2. Paint Thinners.

3. Others.

All these materials are easily available. They are taken up ina handkerchief or in a plastic pouch, and sniffed frequently. They create the desired intoxication in the body of the sniffer. The solvents are a serious menace to the health of the sniffers. They effect the wind pipe, the lungs and the liver and are precursors to many ailments. The larynx is damaged, the air passage may get choked to cause suffocation. 12.4.6 Synthetic Narcotics

These substances are entirely laboratory products. Pethidine, methadone, LAAM, propoxyphene and buperenorphine are some drugs, which possess either better pain killing property or are long acting drugs. Specially, methadone is used for narcotic addiction control due to its effect lasting for about 24 hours. Another synthetic narcotic antagonist Pentazocine is generally available in the market as Talwin. 12.4.7 Designer Drugs

Analogs prepared of already existing drugs are called as designer drugs. Analogs are the chemical compounds, which have nearly similar electronic structures but can have different molecular formulae. Designer drugs are prepared either to evade law or to enhance the effects of the parent drugs. Fentanyl is an addictive drug with effects similar to morphine, however, it is over three hundred times more potent that the morphine itself. It is a synthetic drug and posses a typical chemical structure. Minor modifications in the molecule can produce numerous analogs and some of them are many times more potent than the fentanyl. Some of well known analogs of fentanyl are alpha methyl, parafluoro, Alphamethylacetyl, Betahydroxy, Betahydroxy-3methyl, 3-methyl, 3-methylthio, theofentany] and carefentanil. 3-Methylfentanly is highly potent narcotic analgesic as its one gram will be enough for one

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million doses. Further one gram of Carfentanil can produce 1.2 million doses, which is 4000 times more potent that the heroin. Another drug of narcotics is Pethidine, which is also a synthetic drug. Its major analog is MPPP, which is about 25 times more potent that the Pethidine. Another analog of the same drug is PEPAOP, which is known as synthetic heroin. In case of other drugs, enlisted as narcotic drugs of abuse, either their

designer drugs are very difficult to prepare or the potency as compared to parent drug reduces drastically. Among the stimulants, cocaine is another promising drug, which can be used starting material to prepare better stimulants. Two compounds, 2-Carbomethoxy-3(4-fluorophenyl) tropane and 2-Carbomethoxy-3Phenylnortropane are 60 times more potent that the Cocaine. Fentanyl is suspected to have been used by Russia to control terrorists holding about 700 hostages in a Moscow theatre.

12.5 EVIDENTIARY CLUES Abuse of narcotic drugs is a serious world problem. The abuse of the drugs is increasing in all countries. The law enforcement agencies are, therefore, worried

increasingly to control, contain and investigate the crimes involving abuse of the drugs. Ordinarily, the drugs, the smoking paraphernalia, the syringe or the improvised injection devices, utensils used to heat, dissolve and modify drugs are the clues found with the drug addicts. Needle prick scars, urine, blood, stomach wash are other useful clues. Manufacturing paraphernalia, associative chemicals, solvents, heating and distillation devices are met with at drug manufacturing sites. Special cavities, secret chambers and modified recesses are found in transport vehicles or where the drug on bulk scale is stored. In a case of drug smuggling, the drug was being carried in the belly of a camel. The belly of the camel had been opened and heroin in a plastic pouch was placed in the belly. Then the wound was stitched. (CH) ‘The following are the main sources of evidentiary clues: 12.5.1 Drug Addict

The addict is the most important source of clue materials. If he has consumed a drug, his blood, urine, stomach wash or stomach contents will have the drug. If he injects the drug regularly, he carries needle marks. The injection marks would be on the hands, arms, feet or legs. If the drug is injected subcutaneously, the marks will be seen on buttocks, thighs, legs or upper parts of the arms. The drug may be found on his person. Cigarettes, smelling salt, handkerchiefs, purse all should be thoroughly checked and taken into possession. Any medicine, sweetmeats, smoking paraphernalia (pipe, tobacco, pouch, cigarette lighter, etc.) should receive thorough scrutiny. Gum, glues, adhesives, books, notebooks, pen, pencils, should be checked for concealed drugs. Powder, cream and other cosmetic items should be checked for drugs.

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12.5.2 Residence of the Addict Residence of the addict will most frequently yield a rich harvest of the evidentiary clues. If the drug addict is living with his family, he is likely to hide the drug at a secret place. His secret place usually is lavatory, bathroom or a discarded store. The usual clues are: 1. The drugs, open or concealed, pure or mixed. 2. The paraphernalia to take the drug. If the drug is smoked, smoking pipe, etc., will be located, if the addict is the main liner, injection needle—clinical or improvised, will be found. If the drug is ‘cooked’,

heated or boiled, separate utensils will be found for the purpose. 3. The leavings of the drug may be found at site. They may be the packing material. They may be bottles or other containers. They may be even residues of smoked items. Or, the residual drug sticking to its receptacle may be found. 4. If the addict prepares or modifies the product, equipment for such modification may be found at site. 5. Arrangement for hiding the drug such as secret chambers, the almirahs and the boxes will be found in some cases especially where the drug consumption is organised on commercial scale at the site. That is, if it is a drug den. 12.5.3 Drug Peddler

Drug trade is a highly organised crime. Aeroplane, ships, cars (with special secret chambers) have been used for major transport of the drugs. Quack doctors or drug peddlers retail drug. They are revealed because of the drug they carry, and by their thievish behaviour. In the collection of the evidentiary clues, the investigating officer must observe the following precautions, in addition to the usual ones. 1. Examine a suspected site for the manufacture or modification of the drug with the help of an expert from a Forensic Science Laboratory. 2. Do not smell, taste or smoke any substance suspected to be a drug. 3. Handling, packing and forwarding of chemicals need special care. Get the advice or help of the expert whenever possible. 4. Never depend upon the field tests alone. The suspected drug must be identified by a qualified person.

12.6 FORENSIC PROBLEMS Drug addiction, as already seen, is a serious international problem for the

law enforcing forces. It is equally important problem for a forensic science laboratory. The important problems are: 1. Whether the recovered material is a narcotic or not. If it is, what is its exact nature. The most important problem is to establish the identity of a given drug. 2. If a given person has taken a narcotic drug, if so, what is its nature. For this purpose usually urine, blood and stomach wash are examined,

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Often it is possible to identify the drug. It is also possible to give rough estimate of the quantity taken or found. These determinations are also required in many other cases: for example, when a non-addict is charged with addiction or, when a person claims diminished responsibility for certain serious criminal acts under the plea that he was under the influence of the drug. Further, a life insurance company may like to check whether a person is drug addict or not before issuing insurance coverage. A will executed by a person is contested on the plea that the individual was under the influence of the drug. In some cases of alleged suicide, the actual cause may be drug addiction. In cases of sudden deaths the real cause may be an overdose of a narcotic drug or a dose of an impure drug. The determination clarifies sometimes puzzling situations.

3. Is the given drug from illicit or from licit sources? The problem in such cases can frequently be decided with certainty. 4. What is the place of origin of a drug? The question often acquires importance. The determinations can indicate whether the drug is obtained locally or smuggled from outside. In the latter case it may also be possible to determine the country of origin. This may help to check smuggling of the drug into the country. 5. A witness in a criminal trial may be a drug addict. Naturally his credit will thus be seriously affected. He may like to clear himself; or, the court may like to check in cases where it is challenged. A forensic science laboratory can establish addiction or otherwise of the individual, if so required. 12.7 SEDATIVES 12.7.1 Opium and Opium Derivatives All old civilisations were opium users. They used it both as medicine and for pleasure. In India it was used even for religious ceremonies. It was known much before the advent of Christianity in India, known at least seven centuries BC. It is believed its use spread from India to China and then to other countries like Egypt, Persia, Syria and later to Europe and then to Americas. The scientific study however started only in the 19" century. Germans were the first to isolate morphine from opium. The drug was used for de-addiction of opium. But it was soon discovered that it was more potent as a drug of addiction than opium itself. Opium was used extensively in India as a medicine and in religious ceremonies especially on the birth of a child. It still forms parts of its pharmacopoeia. However the abuse of the drug caught up and continued to increase. Today heroin, a product based on morphine, is No. 1 narcotic heroine in the world, embracing and destroying many a young person with its charms. Opium to morphine, to heroin (diacetyl morphine) was a_ natural development. Like morphine, heroin was also believed to be a drug for deaddiction. In fact it was marketed so in the initial stages by a German firm. Unfortunately the results belied the hopes and it has proved a far greater danger—in fact the most dangerous addictive and the most abused drug today.

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The era of synthetic narcotic drugs started in the 20" century (1920-1940) and today it has reached the zenith. Yet there is no stopping. New drugs and the drug abuse continue spreading like a wild fire, USA being the leader in its abuse in the world. Heroin menace rules the world, though it is a banried drug— no legal manufacture is allowed anywhere. The clandestine factories continue to churn out the drug in ever increasing amounts to meet the ever increasing demand. Heroin production is morphine/opium based. The menace could be controlled if the production of opium could be controlled/stopped. However, its two alkaloids, morphine and codeine, have great medicinal value and legal production of opium continues. The part of the production of opium goes to illicit market where it ends up in the production of heroin. Morphine is an extremely important drug used extensively the world over to relieve pain, control diarrhoea, reduce anxiety and to depress heart functions in heart problems. It is usually administered through injection. Heroin—morphine-opium has the basic source in a plant: Poppy plant known papaver somniferrum which can grow practically in all parts of the world, in all climes and regions, from the tip of South Africa to Moscow and from Far East to USA. However, notorious places for its production are: * Golden Triangle: (Myanmar, Thailand, and Laos) ¢ Golden Crescent: (Iran, Afghanistan, Pakistan) ¢ Mexico

e Egypt, Turkey.

The plant grows to a height of above 1 metre. It gives beautiful flowers, colours ranging form white to purple, mainly red and orange. Its fruit is the source of opium. When the petals fall off the fruit, it is ready to give opium. The harvester gives an incision to the pod’s skin. White milky fluid like latex oozes out. On drying it becomes gum-like material which, the harvester collects. The yield of opium is about five kilogram from one acre. There are many alkaloids in opium but the important one is Morphine. Morphine is separated from dissolved opium in water by adding lime water. White powdery material appears on the surface, which is filtered and converted into blocks, usually of 250 to 500 grams. bs By

The Government of India has made legal provisions to control and regulate the production, processing and sale of opium and hence of its constituents by stringent provisions in Narcotic Drugs and Psychotropic Substances Act, 1985 and the Narcotic Drugs and Psychotropic Substances Rules 1985, Chapter III in both the enactments. The section dealing with these aspects are 8 to 14 and 5 to 30 respectively. The salient features of the same are: ¢ All cultivation of opium will be for the Central Government in specified areas only. ¢ The cultivation, collection of opium from the plants will be under strict supervision.

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s

¢ The opium produced will be sold to Central Government authorities. e Fair price will be fixed and paid by the Central Government. e The Central Government would classify the opium quality wise for payment.

e Adulteration is viewed very seriously. ¢ Manufacture, purification of opium is done only by the Central Government in its opium laboratory(ies). ¢ Import, export and sale is done by the Central Government. ¢ The State Government will, however, have the authority to regulate the manufacture, sale, purchase of medicinal opium and its constituents in the mixture form. ¢ Price of the various products will be fixed by Central Government. 12.7.2 Opium Opium is a mixture of about 35 alkaloids, the most important out of them

being morphine. Opium contain about 10 per cent. morphine. Other important alkaloids are Narcotine, Codeine, Papaverine and Thebaine in order of decreasing percentage. Table XIil-1

Morphine

=

9.5 to 14.2 %

Narcotine

=

3.9 to 7.6 %

Codine

=

1.8 to 4 %

Papaverine

=

1%

Thebaine

=

0.5 to 1%

Opium has been used as a drug, for medicinal or intoxication purposes, for centuries, all over the world. All civilised governments have tried to limit its use for medicinal purposes only. However, illegal trade for the narcotic drug continues to flourish in most parts of the world. Opium is smoked, eaten and drunk. Its abuse through the hypodermic needle is dangerous. Opium is a drug of addiction. Addiction-prone individuals feel great pleasure when introduced to the drug. An intense desire to repeat the sensation is born after each dose till the individual is confirmed addict. This phenomenon is accompanied by the need of ever-increasing dose (develops tolerance) and the frequency of intake also increases (acquires dependence) as otherwise body develops withdrawal syndrome. Ultimately the addict is mental, physical and social wreck. He cannot live without continued effect of drug. Opium reduces physical activity by depressive effect upon central nervous system. It reduces the metabolic rate, blood pressure and respiration. Appetite is lost. Formation of digestive juices is reduced which often results in constipation.

Secretions of reproductive system organs decrease, reducing thereby the desire for sex. There are exceptions to this general rule, however.

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Non-addiction prone individual (stable personality) does not get the intense pleasure sensation from opiates. Rather, the experience is nauseating to a few. Rare individuals may even be allergic to opium. The mode of administration also affects the effects.

Opium is best identified by thin layer chromatography where the presence and the R, value of the constituent alkaloids is indicated and by colour texts. 12.7.3 Morphine Morphine being the most important constituents of opium, is responsible for

most of its qualities as sedative, pain killer and narcotic. In fact it is this compound which has replaced the use of opium for these purposes. Morphine is extracted from opium. It is used in the form of its salts, usually

as Morphine sulphate. Morphine is an alkaloid. 12.7.3.1 Administration Morphine is taken usually by injection, though sometimes it is also taken by mouth. 10-15 mg. of morphine sulphate is the medicinal dose, whereas fatal dose is around 75 mg. In the case of addicted persons, the fatal doses would be upward. Average addict takes 30 to 150 mg. of the drug every day in four or five shots.

Morphine is sometimes combined with atropine to counteract the depressant effect of the medicine. 12.7.3.2 Physiological effects

Morphine has the same physiological effect as those described for opium. Briefly, it may show excitement followed by soporific effect, narcosis and coma.

12.7.3.3 Metabolism Morphine is eliminated through urine. About 50 per cent. morphine is eliminated in about 8 hours. About 90 per cent. in one day. Traces are noticeable even after 48 hours. 12. 7.3.4 Addiction

The drug is a very strong addictive drug. Continued use is bound to make a person drug addict.

12.7.3.5 Identification It is identified from the following : 1. Morphine (anhydrous) has a m.p. of 250°-256°C, with decomposition. 2. Marquis Test Formaldehyde and sulphuric acid give purple colour. Ammonium-molybdate gives purple colour which changes to blue and then to light green. 3. Potassium calcium iodide gives fine needle crystals. give and thin layer chromatography 4. Paper chromatography characteristic R, values, depending upon the system. In gas chromatography, morphine has characteristic retention time. 5. UV and IR absorption spectra are characteristic. The former is also used to estimate morphine.

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12.7.4 Heroin Conversion of morphine to heroin needs more elaborate chemical operation. It, however, does not need extensive equipment. Morphine is heated with acetic anhydride at 90°C for about 5 hours. Diacetyl morphine, i.e., heroin, is formed. It

is separated from the solution by neutralising the solution with sodium carbonate (washing soda). Heroin gets separated as a precipitate. It is collected and purified by treating it with hydrochloric acid. Heroin hydrochloride salt is thus obtained. Heroin from Mexico is usually brown in colour (hence the name ‘brown sugar’). But it varies from white to almost black colour. The refining process creates the difference. Mexican process does not eliminate completely some gums and pigments from the crude, which create brownish colour. Golden Triangle, Golden Crescent and the Middle East countries product is usually white. Heroin content also is lower in Mexican products.

Heroin is not marketed in pure form. It is always diluted (cut). The usual street samples contain 1 to 5% heroin. Usually two types of (cutting) agents are used: e Dilutents. Commonly used dilutent is milk sugar but other sugar and carbohydrates are also used. Some may even mix baking powder. e Excipients: Commonly used excipients are quinine, procaine and lidocaine. A mixture of heroin and cocaine is called speedball. Its abuse is becoming rare now, though may be found with some addicts. It was used in USA.

12.7.4.1 Abuse Heroin can be abused in all modes: Smoking, inhalation, eating, drinking or

injection. But the usual mode and economical mode is by injecting, direct-lining. The drug is injected in the blood stream directly by the main liners. It was previously common for the opium addicts to smoke opium-—chasing the dragon. But it is rare now. A direct liner prepares the injection by cooking heroin in a ‘cooker’. He take the required dose in a spoon (‘cooker’) or any other small receptacle and mixes it with a small quantity of water and heat it. Matchstick heating is adequate to dissolve the drug. He draws it in a syringe (usually commercial, but in emergency eyedropper also serves) and injects it into the arm, starting from the middle of the biceps and then use the arm from the position toward the wrist and then to the back of the hand. Deterioration of the skin on the sites of pricks and stiffening of the veins necessitate this downward movement. Later he shifts to feet and then goes upward injecting the drug. Some choose odd places: neck, below the tongue, under the breasts (ladies!) etc.

In case of dirty solution cotton plug is used to filter the drug at the site of the injection itself. 12.7.4.2 Physiological Effects Heroin and other opiates affect the Central Nervous System (CNS). It is one of the strongest sedatives, depressing all body functions, free the subject from any

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pain, worry, etc., immediately and the addict feels happy and relaxed. The intensity and the length of time for which the effect lasts depends mainly upon the quantity of the heroin injected and the extent of addiction of the addict. It slows down all physiological activities. The common symptoms of the drug are: e Slower breathing, heartbeat. ¢ Lower blood pressure. ¢ Constipation ¢ Pale body colour, less oxygen intake e¢ Drowsiness

e ¢ ¢ ¢

Slurred speech Impaired mental-physical co-ordination Depressed reflexes Withdrawal Syndrome. If the addict does not get the drug the addict suffers from withdrawal syndrome: Table Xil-2

Stage I

Hrs. After intake 8-12

Symptoms Nervous, anxious, irritable, fidgety, restless, belligerent

Il

12-24

Yawns, sweats, running nose/eyes, goose-flesh waves,

panic, confusion, depression Ill

24-48

Tremors, twitching, cramps, diarrhoea, vomiting

IV

48-72

Symptoms peak, excessive diarrhoea, unconsciousness, death if neglected, symptoms start declining after 72 hours.

12.7.4.3 Identification Heroin is usually identified from the following tests: 1. Colour tests: Marquis’ reagent gives purple colour. Frochde’s reagent gives purple colour, which changes to olive green colour on standing. 2. Micro-crystal test: Platinum chloride and mercuric chloride give characteristic crystals. 3. TLC: Chromatogram visualised with idoplatinate solution. Characteristic R, value. 4. Instrumental: IR spectophotometry, HPLC and GC-MS are used for confirmation.

Heroin is usually recovered in small amounts. Only non-destructive methods are used in such situations. TLC, micro crystal test and GC-MS are, therefore, the usual set of tests employed for the identification of heroin.

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12.7.5 Barbiturates Barbiturates have acquired tremendous importance in recent years. They are extensively used in medicine as hypnotics to induce sleep and relieve pain and suffering. Barbiturates are used for suicide and by the killers. They account for 50 per cent. of the poisoning cases in United Kingdom. Barbiturates are increasingly being used by the drug addicts as they are comparatively more easily available, less costly and are considered less dangerous. Barbiturates have also been used as ‘truth serum’. By their administration a state of semiconsciousness is produced in the subject. This state is conducive to get truthful answer from the subject—hence the name ‘truth serum’. 12.7.5.1 Nature All barbiturates are derivative of barbituric acid.

The variations are found due to substitution of hydrogen atoms by alkyl, aryl or other groups. Sometimes the oxygen atom of group in between the two nitrogen atom is also replaced by sulphur. Barbiturates are known as barbitones or barbitals-the names of barbiturates end in ‘al’ or ‘one’. The common barbiturates are amytal, barbital, seconal, etc.

The barbiturates may be long acting, intermediate acting or short acting. The barbiturates which induce sleep from 8 to 24 hours are long acting. Those of less duration (4 to 10 hours) are intermediate acting. The short acting barbiturate produce

effect upto three

to four hours.

However,

the effect varies with

individuals.

12.7.5.2 Administration Barbiturates are frequently administered orally. However, they are sometimes given by injection also. They are sometimes taken by the opiate addicts as substitutes. Likewise, alcoholics also sometimes substitute them for liquor. The intoxication caused by barbiturates may not be so obvious as they have no smell. Barbiturates are taken along with other drugs like liquor or cocaine also. Fatal dose of barbiturates is comparatively large, though it varies with the compound. For example, minimum estimated lethal dose is two grams of barbitone. 12.7.5.3 Addiction Drug addiction of barbiturates is characterised by the following: i. = strong desire to continue taking the drug. . A tendency to increase the dose. Ww N . A physical and psychological dependence. 4. Characteristic withdrawal syndrome. They appear within 24 hours and reaches the maximum in 50 to 70 hours. The syndrome follows pattern of anxiety, twitching of muscles, weakening, dizziness, nausea, loss in blood pressure. The drug retards mental processes—the addict feels confused and loses control and judgement. The addict loses physical vitality.

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Barbiturates in small doses cause sleep but in larger doses they cause omnia. An addict gets intoxicated even with a small dose because of the ulative effect. Addiction to barbiturates resembles alcoholic intoxication . The addict loses ontrol on motor centres, emotional control and suffers from delusions. 12.7.5.4 Metabolism Barbiturates metabolise in 4 ways :

1. The alkyl or aryl substituent gets oxidised. 2. N-alkyl group is dealkylated. 3. Fission of ring takes place but only to a small extent. 4. Thiobarbiturates lose sulphur.

12.7.5.5 Identification 1. Barbiturates give blue colour with 1 per cent. solution of cobalt nitrate’ in alcohol and a pellet of sodium hydroxide. 2. Thin layer and gas chromatography identify and individualise barbiturates. Infrared absorption spectra are characteristic. 3. Quantitative estimation is done by U.V. absorption spectrophotometer. 12.7.6 Other Non-opiate Sedatives

Chloral hydrate, paraldehyde, bromides are other non-opiate sedatives. Out _ of these chloral hydrate is often used by criminals as ‘knock out’ material. Half a gram is sufficient to induce sleep in a man. The drug when administered in conjunction with alcohol has greatly increased narcotic action and brings about immediate unconsciousness.

12.8 STIMULANTS Stimulants are those drugs which activate the central nervous system. Thus their effects are opposite to the sedatives. But this increased activity is achieved at a cost. Ultimately this increased activity deteriorates the body functioneries. Consequently these drugs are also narcotics. Important members are Cocaine, Benzedrine, Dexedrine, Methedrine, etc. 12.8.1 Cocaine Cocaine is obtained from the leaves of Coca bush, commercially. It is white

crystalline slightly volatile alkaloid. Its melting point is 96°-98° C. 12.8.1.1 Origin Cocaine is of vegetable origin. The cocoa plant (Erythroxylon Coca ) is a bush. It is native of South America. But it grows elsewhere also on mountain slopes. Humid climate and rich soil at temperature 20 ° to 30°C are ideal conditions. It grows in India also. The useful life of the bush is 30-40 years though can go and grow upto 100 years. It grows to the height of 2 to 3 metres and give 4 crops of leaves in a year.

The average yield of cocaine from dry cocoa leaves is 0.5 to 1 %. A number of factors including drying process influences the yield.

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Cocaine is extracted from cocoa leaves by a number of processes. The basic nature of the alkaloid is exploited for extraction and purification. Ultimately its hydrochloride salt in purified form is sold as the narcotic. 12.8.1.2 Use ~ Cocaine is a drug of choice for local anaesthesia. But Novocain and xylocane (Lidocaine), both synthetic drugs, are being used for local anaesthesia. 12.8.1.3 Abuse as Narcotic Cocaine is somewhat volatile. It evaporates with the passage of time. The process is hastened by the diluents, often used. Cocaine is sold in three forms. 1. Whole sale dealers sell it in a rock-like solid form. 2. The rich use it in pure flake form. 3. The street form is powder, usually mixed with diluents.

Ordinarily, the dilution does not go beyond 40% though often it is less. The diluents commonly used are : 1. Procaine—a synthetic local anaesthetic drug. 2. Milk sugar or other simple or complex sugars. 3. Methamphetamine, synthetic stimulant. In fact any chemical or food material which is soluble in water and is not harmful to the body can be used as diluent for cocaine. The addict has to depend upon the word of the pedlar as to the real strength of the drug ( or diluent ) though intelligent addict can guess the strength through inhaling or by tasting the drug.

12.8.1.4 Intake Cocaine is taken by mouth in capsules, mixed with food or with drink, by inhaling, by application on the gums, by placing it under the tongue or by injection. The injection method gives maximum satisfaction to the user though inhaling is also considered quite satisfactory. In fact for cocaine inhaling is the most frequently utilised method. The inhaling is done in a number of ways. . Carrying it in a paper and inhaling it through the nostril. . Nose drops. It is sprayed in the nostril. . Sniffing from a pouch, handkerchief. . Taking a pinch of it like a snuff — snorting. Mix it with vaseline and rub it in the nostrils. Fr noo WNTaking it in a tiny spoon (made for the purpose), which can contain about 50 mg. of cocaine and snort the content off the spoon, placed in the nostril. 7. Pick up the dose in a straw, used for cold drinks, and snort it.

12.8.1.5 Effects of Cocaine The effect of cocaine on an individual is immediate and the experience is of euphoria, of intense pleasure. The drug is claimed to:

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- Stimulate the central nervous system (CNS ), mental and physical processes and the person is hyperactive. - Make the addict feel as if he is capable of doing anything. May indulges in anti-social activities.

a. Reduce inhibitions. 4. Acts as sexual stimulant.

12.8.1.6 Physiological Effects . Increases physiological activity: blood pressure, pulse rate, respiration increases.

. Reduces appetite, hence used to reduce obesity. . Reduces sleep. Causes constipation. Weakens sense of time and distance perception. Causes thirst. Causes local anaesthetic effect on the tongue, throat, etc. when taken orally. Often causes sore noses to snorters.

. . . . . .

Induces no physical withdrawal syndrome. Induces psychological stress syndrome in addicts. May cause blood poisoning, anaemia in habitual users. May cause infection. May create toxic reaction in some cases. Reduces hunger, less food intake which ultimately weakens the health and resistance to ailments.

. Causes

headache,

nausea,

cramps,

delerium,

and_

even

unconsciousness to some persons. . Over doses makes a person aggressive, sometimes. It may cause death. 17. Fatal dose varies from 2.5 mg. to 1.5 g.

12.8.1.7 Addiction Cocaine addiction is characterised by : 1 Intense desire to take the drug. F Psychological dependence. 3 Absence of appreciable tolerance abstinence syndrome.

or

physical

dependence.

No

Health failure, due to reduced intake of food, less sleep and excessive

wear and tear of the body.

12.8.1.8 Metabolism Cocaine suffers extensive changes in the body. It is identified from urine where unchanged cocaine (administered through injection) is excreted, from 1 to 12% during the first twenty-four hours. The maximum amount being excreted in the first six hours.

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12.8. 1.9 Identification The following determinations permit the identification of the cocaine: 1. M.P. of the alkaloid and its hydrochloride are 96°C and 197°C respectively. 2. Cobalt thiocyanate solution give intense blue coloured precipitate Scott Test.

. . . . .

Gold chloride gives serrated needles (crystals). Thin layer and gas chromatography are utilised to identify the drug. G.C/M.S. distinguishes between its isomers. UV and IR absorption spectra are characteristic. UV spectrophotometer is used for estimation.

W FP OF DD CON . NMR has also

been used to characterised cocaine.

12.8.2 Benzedrine Benzedrine (amphetamine) is a stimulant having similar effect to that of cocaine. It is a liquid at ordinary temperature. Its BP is 197°C. 12.8.2.1 Administration

Benzedrine is administered by any of the following methods:

1. Inhaling.

:

2. Oral.

3. Injection.

4. Placing it in contact (or rubbing it) on the body part. 12.8.2.2 Effects The drug has similar effects to those of cocaine on the human bodies.

1. The

drug

stimulates

the central

nervous

system.

Consequently,

sensation of pleasure, alertness, initiative is created.

2. It prevents sleep and reduces fatigue.

3. It reduces appetite and have been used as such by obese person. 4. Psychomotor functions and mental processes are affected.

12.8.2.3 Addiction

Benzedrine addiction is characterised by the following aspects: 1. A desire to take the drug repeatedly. 2. Development of tolerance. 3. Psychological dependence. 4. Absence of physical dependence.

12.8.2.4 Metabolism Only a small amount of amphetamine is metabolised when the pH is low. At higher pH a fair percentage of the compound is metabolised to a large number of products. Unchanged amphetamine is excreted through urine in considerable

amounts. It can be utilised for detection of addiction. Most of the drug (90 %) is

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excreted within three days but small amounts of the drug can be detected even after a week of the oral administration. It is not excreted through faeces. 12.8.2.5 Identification The following tests are common to identify the drug: 1. Sulphuric acid and formaldehyde drug, orange colour, which changes to brown. 2. The drug gives characteristic thin layer and gas chromatograms. 3. UV and IR spectra are useful to establish the identity of the compound. Other drugs (Amphetamines) of the type have the same general structure, similar effects and similar methods of analysis

12.9 HALLUCINOGENS Hallucinogen drugs alter perception, state of consciousness and bring about imaginary scenes, sounds and scents to the person who is under their influence. The origin of the drugs to start with was from the natural source. Mushroom, cactus, etc. However, synthetic hallucinogens have since entered the field. Their advent has serious repercussions on society. Important hallucinogens are mescaline, L.S.D., D.M.T, P.C.P, etc.

12.9.1 Cannabis Bhang, marijuana or cannabis are synonymous with the botanical names of the plant cannabis sativa L. It is an annual dioecious shrub. It is usually 2 to 3 metres tall. But under favourable growth conditions the height may go up to 5 metres. The resinous contents vary in the various parts of plant. It is about 5 per cent. in flowering tops of the female plant and about one per cent in the leaves. Even the fruit contains traces of the resin.

Fig. XII-5 SEM photograph of cystolic hairs on the leaf of cannabis.

NARCOTICS

CHARAS

849

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In Narcotic Drugs and Psychotropic Substances Act, 1985 cannabis has been defined. It includes practically all parts of the plants except mature stalks, fibres, seed, seed oil or cake. The main active agent of the charas, THC has been synthesised. But it is not used as a drug as natural product is cheap and better in quality. Cannabis (Bhang) has been described variously as depressant, stimulant or hallucinogen. In fact the drug is believed to affect various individuals differently. In term of volume, it is the most abused drug at the present time all over the world.

Cannabis grows all over the world. The narcotic resin is obtained from the flowering tops. Fibre is obtained from its bark. Its seeds are useful food. The resinous product varies in quality and quantity with the place of origin and the part of the plant. Cannabis is used in three forms in India. In its crudest form it is called Bhang. Flower tops of the plant with leaves, etc. constitutes Bhang. The purest form is the Charas. It is also known as Hashish. It is almost pure resin bereft of leaves, stem, bark and other plant materials. Intermediate variety is Ganja. The purity of Ganja is in between Bhang and Charas. Hashish oil is also pure form. It is extracted from cannabis with kerosene oil or with other mineral oils.

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The main chemical constituents of Charas (Hashish) are: 1. Cannabidoic acid. 2. Cannabidiol 3. Cannabinol.

4. Tetrahydrocannabinol (THC) The euphoria and the narcotic properties are due to the last compound, its modifications and its metabolic products. 12.9.1.1 Administration

¢ Cannabis, in the most part of the world, is often smoked in cigarettes, in pipes, in hookas. e

[tis mixed in sweat meats.

e It is taken in the form of soft drinks (sharbat). e It is administered in the form of medicinal concoction.

12.9.1.2 Effects The effects of cannabis are confusing. As already mentioned, it is described

as sedative, stimulant and hallucinogen. The major effects described are : 1. It relieves fatigue . It removes inhibition.

. It excites hunger. . It affects perception with respect to time, space and understanding. of WNSome persons feel that they enjoy art and music better under its influence and that their creative powers are enhanced. Probably it is self deception. 6. Some people suffer from hallucination. They start weeping, laughing, abusing or quarrelling. Some under its influence create public nuisance. Some commit crime. 7. Creates instability, confusion.

8. Increased and continued use deteriorates the person’s intelligence, memory, judgement etc., all are affected. 9. Suffers from fantasies. 12.9.1.3 Addiction

Cannabis is not addictive like opium. Ordinarily people start with this drug and pass on to hard drugs. However main feature of cannabis addiction are. 1. Repeated desire to take the drug in the belief that the drug will improve capabilities. 2. It does not develop tolerance. 3. It does not leave withdrawal syndrome. 4. It develops psychological dependence.

NARCOTICS

851

12.9.1.4 Metabolism The metabolism of the important constituent, tetrahydrocannabinol is to hydroxytetrahydrocannabinol which is excreted, along with its degradation products through faeces (50%) and through urine (30%). Unchanged tetrahydrocannabinol is found (less than 1%) in the urine though not in the stool. The excretion is slow and takes over a week for the elimination of most of | the drugs. Both the original compound and hydroxy compound are useful for identification and estimation purposes. 12.9.1.5 Identification 1. It gives, violet colour with alkaline Fast Blue B reagent.

2. It has characteristic TLC and GLC chromatograms.

3. UV and IR spectra are useful for identification purposes. 4. Bhang is identified from:— 1. Leaves

e Characteristic veins and secretions. ¢ Green colour even on drying. Rot may spot it brown. e Cystolic hairs on upper surface. They are horn like, transparent, bent like a horn, with thick base and pointed tips. ¢

Microscopic bulbs, observed with hydrochloric acid, under slide

cover. 2. Seeds ¢ Ovoid in shape ¢ Greenish yellow to brown colour e Whitish flesh in the kernel e Ridge round the circumference. 12.9.2 LSD (Lysergic Acid Diethylamide) LSD is a hallucinogen which was first obtained from fungus growth on rye grain. It has since been synthesised and the latter product is the main source of the drug abuse. The drug is a tasteless, odourless white powder with M.P. 80° — 85°C.

12.9.2.1 Administration 1. Oral, often placed in sugar cubes. 2. Injection.

LSD is a highly potent drug. The normal dose for going on a trip is about 1 to 2 microgram per kilogram of body weight, though addiction-prone individual may tolerate upto 4 microgram (per Kg body weight) of the drug. Quantities in milligram may end in fatalities.

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12.9.2.2 Effects LSD is one of the most powerful psychotic drugs discovered. The drug affects entire human metabolism which may result in complete disorganisation of the individual’s body working and may result in complete chaos and unadulterated horror. The effect is pronounced upon psychotic personalities. The main features of the experiences described are: 1. The subject experiences vivid hallucination: in perception of sound, colour and other visual distortions. 2. The subject loses the sense of time and space. 3. The subject is unable to discriminate between right and wrong. 4. The subject loses sense of cause and effect. Once a subject started clawing out his own eyes. He described his state as being dead and under water and that when he found his vision did not work well, he wanted to pullout the eyes for better focus, to see better. (CH) 5. The effect of the drug appears in about half an hour and lasts for several hours. In some cases it creates permanent defect in the personality of the subject. 12.9.2.3 Addiction The drug is not used like other drugs for addiction. It is too drastic. A single dose has in some cases caused disturbance for over a year. The exact nature of its action onhuman body and mind is not yet fully known. It is possible it may be causing damage to some organs, possibly to brain parts. It, therefore, needs strict control and preventive measure against its abuse.

12.9.2.4 Metabolism L.S.D. is metabolised in the liver to three or four different metabolic products. 60-80 % is excreted into the bile.

12.9.2.5 Identification 1. It gives grey colour with sulphuric acid and formaldehyde. It gives grey green colour with ammonium molybdate and brown ammonium vanadate. 2. It has characteristic TLC and GLC chromatograms.

colour with

NARCOTICS

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TRIALS th AND INVESTIGATION IN CRIMINAL SCIENCE FORENSIC 854

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Chapter 13

ALCOHOL SYNOPSIS 13.1

IMPORTANCE

13.2 NATURE 13.2.1

Production

13.2.2

Classification

13.2.3

Properties

13.2.4 Absorption 13.2.5

Elimination

13.2.6

Effects

13.2.6.1

Euphoria

13.2.6.2 Muscular incoordination 13.2.6.3 Respiratory paralysis 13.2.7

Fatal Dose

13.2.8

Fatal Period

13.2.9 Alcoholic Allergy 13.2.10

Abnormal Tolerance

13.2.11

Normal Use

13.3

LOCATION AND COLLECTION

13.3.1

Ilicit Liquor

13.3.2

Evidence of Intoxication

13.3.3

Collection of Samples

13.3.3. 1 Blood samples

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Urine samples

13.3.3.3 Post-mortem blood samples 13.3.3.4

Saliva samples

13.3.3.5 Breath sample 13.4

PROBLEMS

13.5 EVALUATION 13.5.1 13.6;1.1

Alcoholic Content

Specific gravity

13.5.1.2 Refractive index IZ.5,1.8

Total solids

13.5.1.4 Acidity 13.515

Sugars

13.5.1.6 Ash 13.5.1.7 Miscellaneous 13.5.2

Identification of Alcohol

13.5.3

Intoxication

13.5.3.1 Medical examination 13.5.3.2 Physical tests 13.5.3.3 Blood alcohol analysis 13.5.4 Chemical Analysis 13.5.5

Gas Chromatography

13.5.6

Biological Method

13.5.7

Breath Analysers

13.5.8 Significance of Blood Alcohol 13.5.9

Presentation

13.6 CASE LAW 13.6.1

Bona fide Expert

13.6.2

Liquor Identification

13.6.3

Prohibited Liquor

13.6.4

Improper Collection

13.6.5

Inadmissible Reports

13.6.6

Reports Admissible

13.6.7

Intoxication

13.6.7.1 13.6.8

Intoxication as defence

Random Sampling

13.6.9 Correct Sampling

INVESTIGATION

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ALCOHOL

ee

857

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ae ee

0.5%—Dead 0.2%—Drunk

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0.1%—Unsteady

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Fig. XIII-1 Drinks, Drinking, Drunk, Dead.

ALCOHOL 13.1 IMPORTANCE Alcohol is one of the oldest intoxicants known to man. Its use or misuse was known in India long before it was known in other countries. It has been described in Indian literature at least two thousand years before the birth of Christ. Ever since, there have been continuous efforts everywhere to control its consumption because of its devastating effects on human life. Many countries, including India, have tried prohibition but with little success. In U.S.A., roughly 50% of all the persons involved in cases of assault are under the influence of alcohol. Likewise, 40% of the victims of assaults too are

under the influence of alcohol. Alcohol has adversely influenced the rate of road accidents. In the United States of America, every year 20,000 persons die and another one million persons get injured in road accidents. Intoxicated drivers cause majority of these accidents! The chances of an intoxicated driver causing an accident are about fifty times more than that of a sober driver. Prohibition laws add new dimensions to the problem. Illegal imports, illicit manufacture, consuinption of dangerous substitutes like methylated spirit, production and consumption of cheap and dangerous imitations and forgery of liquor permits are some of the consequent problems of prohibitions. A few years ago, in Haryana, some illicit ‘liquor’ was consumed on a festive occasion. The unauthorized ‘vendor’ sold them methyl alcohol solution instead of an alcoholic drink. The incident resulted in deaths on a large scale. (CH) Crime involving alcohol, directly or indirectly, is increasing at a significant rate. The police, the prosecution and the judiciary should, therefore, understand the various facets of crime relating to alcohol, its nature, effects, detection, estimation, etc. to deal effectively with the crime involving liquors. 13.2 NATURE The active ingredient of all liquors is alcohol, also known as ethyl alcohol or ethanol. It is present in different amounts in different liquors. The alcoholic content classifies the liquors into beers, wines and spirits. The first two are undistilled products while spirits are distilled products. A host of other materials are also present. They determine the aroma, taste and the quality of the liquor.

13.2.1 Production Alcohol (chemically, ethyl alcohol or ethanol) is obtained by the fermentation of sugars, molasses, grains, fruit juices and starches. It is a complex enzymatic process. The enzymes are obtained from yeast. It is carried out under controlled conditions. The final fermented mass contains about 10% alcohol. It is concentrated and purified by distillation.

13.2.2 Classification The common alcoholic drinks are:

858

ALCOHOL

859

1. Beers: Beer, ale and stout. They contain 2 to 6 per cent. alcohol. Beer is commonly obtained from barely. It is not distilled. 2. Wines: Champagne, hock, burgundy and claret. They contain about 10 per cent alcohol. They are also undistilled liquors. 3. Fortified wines: Port, sherry. These liquors contain 10 to 20 per cent. alcohol. The fermented wines are fortified by the addition of alcohol. 4. Spirits: Whiskey, brandy, rum, gin, and vodka. These liquors contain 40 to 60 per cent. alcohol. | From the intoxication point of view, the most important ingredient of all alcoholic drinks is alcohol. Other materials contained in liquors areunfermented cereals, sugars, juices, spices, salts, colouring matter, aldehydes, ketones, higher alcohol, essential oils, esters and acids. These ingredients are important in the identification of illicit, adulterated or imitation liquors. They confer individuality to the liquor. 13.2.3 Properties

Alcohol in the pure state is a colourless, transparent liquid. It boils at 78.4°C. It is mixible with water in all proportions. It has a pleasant odour and a burning taste. It causes irritation when it comes in contact with skin or body tissues. 13.2.4 Absorption

When an alcoholic drink is taken, it immediately starts getting absorbed in the body through the stomach membrane and small intestine. About 20 per cent. is absorbed almost immediately while the rest is absorbed in about half an hour to two hours. Body tissues of certain persons absorb alcohol more easily than those of others. The factors which affects absorption are: 1. Tolerance: Habitual drinkers obsorb alcohal quickly. They can take more alcohol without being the worse for it. The mechanism of the tolerance has not been fully understood. 2. Health: Healthy person takes more time to absorb the alcohol. Perhaps the difference is due to fat deposition in the body tissues. 3. Food: If the stomach is empty, the absorption of alcohol is facilitated and is quicker than when the stomach is full. Proteinous and fatty food delays the absorption. 4. Concentration: The concentration of alcohol in the liquor affects absorption: greater the concentration, quicker is the absorption. Alcohol, on absorption, enters the bloodstream and is distributed uniformly in all the body fluids. Bones, hairs, nails and fat of the body do not absorb it. The equilibrium is reached in about half an hour to two hours, depending upon the factors mentioned above. However, if the drinking is continued, the equilibrium is not reached. Alcohol concentration during the drinking period will be higher in the arteries than in the veins. The alcohol intake mixes with the water in the body giving a uniform concentration vis-a-vis water content of the body part or material.

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This uniform distribution of alcohol in the body makes it possible to use any of the following fluids for testing purposes. . Blood Urine

. Breath

Saliva . Perspiration

. Spinal cord fluid 7. Brain fluid. Ordinarily, blood, urine and breath are employed for test purposes. Due to variations in water content in various body fluids, the concentrations found are calculated accordingly and expressed in terms of blood alcohol.

13.2.5 Elimination Immediately after absorption, the system starts elimination of alcohol. Most of it (about 90%) is metabolized by the system mainly by the liver. The enzyme dehydrogenase converts alcohol first to acetaldehyde and finally to water and carbon dioxide. The rate of metabolism is slightly less than 0.02 per cent. of the blood alcohol concentration per hour. The rest of the alcohol (~ 10% ) is eliminated by the lung (exhaled), sweat pores and through urine as such. This alcohol is utilised for test purposes by taking appropriate sample of the body fluid. The rate of elimination varies with individuals. Different research workers give varying estimates for the rate of elimination. However, the commonly accepted rate of elimination is about 10 millilitres of absolute alcohol per hour. In terms of whisky, a large peg will be eliminated in about three hours. Some scientists are of the opinion that the rate of elimination varies with the concentration of alcohol in the system but the general consensus is that the rate is fairly constant. It appears that whereas the elimination of alcohol by metabolism is fairly constant and independent of concentration the rate of elimination through breath, urine and perspiration is dependent upon the concentration also. Greater the concentration , greater is the non-metabolic elimination.

13.2.6 Effects Alcohol affects the central nervous system in all amounts. Some persons are easily affected even by the low intakes. Other can tolerate large amounts before they show outward signs/ symptoms. Alcohol affects the whole body, vision, hearing, speech are all affected. Speech becomes slurred, double vision occurs. Judgement and self-control are the initial causalities. Alcohol is a narcotic. That is, it has a depressant effect on the system. It is now believed that there is no minimum quantity below which it does not adversely affect the system.

ALCOHOL

861

13.2.6.1 Euphoria The layman’s observations are, however, different. They believe that when a

person has taken a glass or two of beer or one or two pegs of whisky, he exhibits euphoria. The drink is, thus, considered to be a stimulant. Extensive experiments have proved that the alcohol is never a stimulant. The euphoria shown after a moderate dose of liquor is due to the fact that the inhibitory cells of the brain (centres regulating conduct, judgment and self-criticism) are the first to be dulled by the narcotic, to produce a lack of proper self-control. The effect is that the person feels: 1. A sense of well being 2. Increased confidence 3. Less restricted speech

4. Carefree attitude; and 5. Temporary relief from fatigue, pain or depression

13.2.6.2 Muscular incoordination More drinking depresses the motor centres and causes greater dulling of the parts of the brain controlling inhibitions. The results are apparent when a person has taken about two large pegs of whisky or four bottles of beer. The changes observed in the individual are: 1. Inherent tendencies of the individual become apparent. He may become hilarious, morose, irritable or excitable without proper cause. 2. Neuromuscular incoordination.

3. Slurred speech. 4. Staggering gait. 13.2.6.3 Respiratory paralysis If more liquor is consumed the paralysis of the respiratory centres sets in. The

amount of alcohol to cause the effect varies with different individuals, depending upon the factors already mentioned. The effects observed are: 1. Complete incoordination of muscles. 2. Stertorous breathing 3. Sleep. 4. Coma; and 5. Death.

13.2.7 Fatal Dose The fatal dose of liquor for an ordinary adult person is about 200 to 500 ml. of absolute alcohol and about 50 ml. onward for children under the age of twelve years. It means consumption of about three quarters of a bottle of whisky or

about seven bottles of beer onwards is fatal for an adult. The other factors, not

already mentioned, which determine the effects of alcohol on a system, are: 1. The concentration of alcohol in the drink; and

2. The time taken for taking a given quantity of alcohol 3. Admixing other narcotics in the drink.

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If the drinking is spread over a number of hours and the drink has a small percentage of alcohol, the rate of intake and elimination may get so adjusted that the body system does not attain the offensive concentrations. Consequently, the usual effects of heavy drinking will not be apparent.

Blood Alcohol Levels at post-mortem

20 30

10

of Number cases

¥

i 100

150

200

250

300

350

Blood alcohol levels in mgm/100ml

Fig. XIII-2

400

450

500

600

ALCOHOL

863

13.2.8 Fatal Period The fatal effects of alcohol may appear within 10 to 24 hours. But in some

cases death may take place even after a number of days.

13.2.9 Alcoholic Allergy Some persons are allergic to alcoholic drinks. The drinks madden them and they behave like maniacs under the influence.

13.2.10 Abnormal Tolerance Alcoholic drinks affect all normal persons, though the tolerance varies from one individual to another. In rare cases, however, the drink does not affect a

person appreciably. It is either due to some peculiar body tissues or sheer will power. A very senior officer, who was a teetotaller, once related a personal experience. His friends asked him to drink half a bottle of whisky (about 375 ml.) and drive a vehicle for about 25 kilometers. He did it! At another occasion, he was being given anaesthesia to carry out some operation, after an accident. He could not be made unconscious. (CH)

13.2.11 Normal Use In addition to alcoholic drinks, alcohol is extensively used as a solvent and fuel in industry and in pharmaceutical preparations. 13.3 LOCATION AND COLLECTION 13.3.1 Illicit Liquor

Thorough search of the premises, especially cattle sheds, unfrequented places, cowdung heaps, ravines and jungles is necessary to locate unauthorized stills and stores. The shadows and informers are helpful. Specially trained dogs have also been used with success. Collection of the evidence includes the collection of the paraphernalia, fingerprints and tool marks.

13.3.2 Evidence of Intoxication Intoxication may have to be established in cases of sudden deaths, in offences against person, in motor vehicular accidents and in cases where diminished responsibility is claimed as defence. The alcohol actually present in the brain causes

intoxication

as it is the alcohol, which

affects the normal

functions of a person. The blood alcohol is in equilibrium with that in the brain. Therefore blood alcohol concentration is fair index of the alcohol present in the brain. It is the material of choice for alcohol concentration determination. Though for practical reason urine and saliva are also used. Breath, of course, has become the most convenient material as high precision and rapid instruments have come up in the field for breath alcohol analysis. The alcohol concentrations in all the body fluids at equilibrium are co-related. The fluids containing more water will have correspondingly higher concentration.

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13.3.3 Collection of Samples 13.3.3.1 Blood samples

The alcohol concentration samples collected from various parts vary. The variations are minor and hence ignored. There is no prohibition of taking blood from any part of the body. Usually blood from ante-cubital vein is collected. The following precautions are taken while collecting blood samples. 1. Only qualified medical person should take the samples in the presence of the investigating officer and witnesses. 2. Take two samples of blood, 5 ml. each. Preserve the samples with 100 mg. of sodium fluoride each. 3. Disinfect the skin with non-alcoholic, disinfectant, for example mercury

chloride solution before taking the samples. 4. Use blood alcohol kits for the collection of the sample. The kit consists of:

e Sterile disposable syringe. ¢ Blood collection tubes. e Preservative. Usual one is sodium fluoride. ¢ Mercury salts. e Anti-coagulant likes fluoride, citrate, oxalate. 5. Use standard packing kit to pack the tubes after they have been labelled, sealed and witnessed. 6. Dispatch the blood at the earliest, observing legal formalities. 7. Store the collected blood in a refrigerator, if it has to be stored. Blood collection kits can be organised by the departments where such sample collection is extensive. 13.3.3.2 Urine samples

The urine sample is easy to collect. However, it may not give true index of blood alcohol at the time of arrest as the urine may be accumulating for a long time in the bladder. The difficulty is overcome by collecting the urine, which gets collected after the arrest in about half an hour. The bladder should be emptied immediately after the arrest. A second sample after another half an hour should suffice. Whenever possible collection kits on the pattern of blood collection kit should be used. Instead of sample tubes, screw type bottle should be used. The urine should be collected in disposable beakers. All the precaution and formalities must be strictly observed. The sample should be sent to the laboratory at the earliest. However, 0.2 per cent. fluoride is used as preservative whenever the sample has to be preserved. In case of female culprits, the urine sample should be collected through female police official or another reliable female. The latter should witness the sample.

ALCOHOL

865

Urine sample should be obtained only when blood samples cannot be obtained or as additional sample (s). 13.3.3.3 Post-mortem blood samples

If the body has started putrefying or is putrefied, the blood also suffer changes and the results of analysis may be misleading. Therefore it is essential that whenever possible, postmortem blood should be collected within 2 days of the death. In other cases the environmental conditions may dictate the putrefaction. In all such case samples of blood from two different parts should be collected. Cerebrospinal fluid or vitreous humor provides better specimens. Samples from dead persons should be collected at the earliest; in any case, before the putrefaction sets in or before the body is embalmed. 13.3.3.4 Saliva samples

Saliva samples have not been used many times. They do not offer any advantage over blood, urine or breath samples. There are more or less of theoretical interest only. For the collection of samples one should give paraffin for chewing to the suspect. It causes salivation. The samples are collected as in the case of other fluids discussed above. 13.3.3.5 Breath sample

For accurate blood alcohol estimation from breath, only alveolar air should be taken into consideration. Alveolar air is the one, which is in immediate contact

with alveolar of the lungs. It is only this air which is in equilibrium with blood alcohol and contains amounts of alcohol which correspond to blood alcohol. The breath also contains air, which is not in contact with the alveoli and hence dilutes it. The breath is, therefore, collected as given below:

1. Collect total exhaled gases. Assume that it is 2/3 alveolar air. 2. Or, assume exhaled gases contain 5.5 % carbon dioxide and calculated the alveolar air on its basis. 3. Collect the last portion of the forced exhaled gases, assume it to be alveolar air. The storage and collection of the breath is done in a variety of devices. The amount collected varies from less than a millilitre to about 200 millilitres of exhaled gases and vapours. The collected samples should be taken to the departmental laboratory at the earliest. If they are to be sent over long distance, the packing is done properly to avoid breakage or contamination. Anyone of the fluids is sufficient for analysis. But in important cases, two fluids/samples should be collected. The fluids in the order of preference are blood, urine, saliva and breath. If the samples are to be stored, they are kept under lock and key, preferably, in a refrigerator. [f a breath alcohol instrument is available, a preliminary test is made on the

spot. Some modern instruments give directly accurate blood alcohol. One set of the samples should be preserved in a refrigerator till the disposal of the case, as

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the defence may desire to get the same analysed from a chemist of their choice. In case the samples are to be examined at more than one places, an additional set of samples should be collected for each place.

13.4 PROBLEMS In the investigation of crimes involving liquor, the following types of questions are important. 1. Is the given sample an alcoholic drink?

2. Is it illicit liquor? 3. What is the alcoholic strength of the liquor? 4 . Does the liquor conform to the given specifications? Or is it an imitation or a substitution of a given brand? on._

Were

the drivers

involved

in an

accident,

under

the influence

of

alcohol?

6. Did the person die of alcoholic poisoning? 7. Did the dead person consume alcohol before his death? 8. Was the person who claims diminished responsibility actually under the influence of alcohol? Four persons consumed some alcoholic drink. Two of them were found dead in the hut, while the other two complained of pain in stomach. They were removed to a hospital. They also died after admission in the hospital. Ethyl alcohol and methyl alcohol were detected in viscera of all the four deceased and in the unconsumed portion of the liquor. (CH)

13.5 EVALUATION The liquors are identified and individualized with reference to their fixed specifications. The following points determine the identity of the liquor: 13.5.1 Alcoholic Content The liquor is distilled in a specified manner and the distillate is collected. The specific gravity and refractive index of the distillate are determined. The concentration of alcohol is found from either specific gravity or refractive index tables. Sometimes both are employed to arrive at the correct conclusion. Other methods for the determination of alcoholic content have also been employed. The most convenient and efficient method is gas chromatography. Peak area relevant to alcohol gives the quantity of alcohol. Direct reading instruments, with integrators have also come in the field. 13.5.1.1 Specific gravity Specific gravity of liquor is affected not only by the alcoholic content but also by other ingredients of the liquor, especially sugars, unfermented cereals and spices.

The specific gravity is determined through hydrometers, pyknometer or with the help of a Westphal balance or with specific gravity bottles.

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13.5. 1.2 Refractive index The dipping type of refractometer is used to determine the refractive indices of liquors.

13.5. 1.3 Total solids The total solids of liquor, notably of beers and wines, vary considerably depending upon the ingredients and the manner in which the liquor has been prepared. If the solids are more than 5 per cent., they are estimated indirectly from the specific gravity. A given volume (say, 50 ml.) is distilled ‘after determining its specific gravity. The distillate is then made up to the original volume and its specific gravity is determined. The total solids are given by: S, beS,

0.00386

S, and S, are specific gravities of the liquor before and after distillation respectively When total solids are less than 5 per cent., they are determined by evaporating 50 ml. of alcohol in a flat-bottomed dish. Final drying is carried out

in a steam heated oven at 100°C

for two hours.

13.5.1.4 Acidity Total acidity of a wine may be determined by direct titration of the liquor with alkalis. Usually barium hydroxide solution (0.1 N) is employed. The presence of carbon dioxide creates some difficulty in the estimation. Volatile acidity is determined by distillation of the liquor and titration of the distillate. Usually tannin is added to the liquor before it is distilled. Volatile acidity and total acidity are expressed in terms of acetic acid while fixed acidity is expressed in terms of tartaric acid. 13.5.1.5 Sugars

Sugars are detected and estimated by Benedict’s methods. They may also be tested and estimated by polarimetry.

13.5.1.6 Ash The ash content of a liquor is estimated by evaporating a given sample and ashing it in the usual way. 13.5.1.7 Miscellaneous 1. Essential oils are separated by diluting the liquor and extracting it with petroleum ether. 2. Methyl alcohol is detected by oxidation and estimated from the colour produced with Schiffs reagent by its oxidation products. 3. Isopropyl alcohol is estimated by its oxidation to acetone, which gives colour reaction with nitrobenzaldehyde. 4, Glycerol,

furfural,

sulphate,

sulphite,

lead

and

arsenic

are

also

sometimes determined. Details of the methods are beyond the scope of this book.

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Instrumental methods have made most of these techniques obsolete. For example, gas chromatography can analyse both qualitatively and quantitatively all the volatile constituents of liquors; methanol, ethanol, higher alcohols, esters, acids, ketones, aldehydes, essential oils and furfural. Likewise, Spectrography, atomic absorption spectrophotometry and other techniques can analyze heavy metals. Complete analysis of liquor can, thus, lead to its identification and prove whether it is illicit or standard liquor. It also permits identification of individual liquors.

13.5.2 Identification of Alcohol Sometimes it is necessary to establish whether a given drink contains alcohol or not. This is established by identifying alcohol in the liquor. The following tests are employed for the purpose: 1. lodoform test gives a characteristic smell. 2. Ester formation gives a fruity smell. 3. Determination of the boiling point, specific gravity and refractive index after purification. 4. Identification by gas chromatography

13.5.3 Intoxication Intoxication, though an important factor in many criminal cases, has not been defined. However, it is considered to be such mental and physical state in which the subject is incapable of properly executing the occupation in which he is engaged at the material time. Intoxication due to liquor is identified by medical examination, physical tests and blood alcohol analysis. The last includes chemical, biological and instrumental techniques for the determination of alcohol in the body fluids.

13.5.3.1 Medical examination

In medical examination one checks the following: 1. Smell of the breath: It is a good guide but it is worth noting that certain liquors, though taken only in small amounts, may emit strong smell, while other liquors, though consumed in large amounts, may not give a strong odour. 2. State of clothing: A person under the influence of alcohol is careless about his dress.

3. General demeanour: An intoxicated person may show disorderly behaviour in talk and action. 4. Speech: Slurred speech is an indication of intoxication. It is difficult for an intoxicated person to pronounce certain words. 5. Clean tongue or excessive salivation indicates intoxication. 6. Eyes: The pupils of an intoxicated person are often dilated. The reaction to strong light is slow. The eyes are red and have a glassy vacant look. 7. Walk: An intoxicated person has a staggering gait. It is noticeable when he is turning at sharp corners.

ALCOHOL

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8. Memory: An intoxicated person has short memory, especially of recent events. The time taken by him to recall an event is long. He may also show some confusion. He loses sense of time. 9. Breathing: The subject may show hiccups in some cases. 10. Tremors: Hands, arms, feet and legs may develop tremors. It may be noted that:

1. Reliance should not be placed on any single observation. 2. The pathological condition of the subject should also be checked. The subject may be suffering from some pathological disease. Thus, red eyes, dilated or contracted pupils, tremors or rapid pulse may be due to some disease. 3. Some persons are capable of consuming large amounts of alcohol without showing any outward sign of drunkenness. They may be able to repeat certain words and phrases or to write neatly. They may be able to walk in a straight line. Therefore much reliance should not be placed on any such single tests. More delicate tests should be employed for such persons or, blood alcohol determination should be insisted upon. 13.5.3.2 Physical tests .

If the subject is to be tested for physical efficiency, he should be made to: 1. 2. 3. 4.

Walk in zigzag path. Pick up small items fallen on the ground. Perform simple mental mathematical calculations. Write quickly.

13.5.3.3 Blood alcohol analysis

The presence of alcohol in the blood of the body creates state of intoxication. The greater the amount of alcohol, the greater is the intoxication. It is, therefore, ideal if intoxication and the concentration of alcohol in the body are co-related. The importance of the relationship was recognised in the fag end of the last century.

A lot of research work has since been done in the field. Now, there is a fairly clear picture about the relationship of alcohol concentration in the body and intoxication. Consequently estimation of alcohol in the body fluids has acquired tremendous importance. Excellent techniques have been evolved by which the alcohol level in body fluids can be determined. These techniques are classified as: 1. Chemical Techniques.

2. Bio-chemical Methods. 3. Instrumental Methods 4. Miscellaneous Techniques The detailed discussion of these techniques is beyond the scope of this book but ample literature, easily accessible is available for the interested parties.

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13.5.4 Chemical Analysis In all chemical tests, advantage is taken of the fact that an oxidizing agent easily oxidizes alcohol to give acetic acid. Commonly used oxidisers are:

potassium dichromate and sulphuric acid, potassium permanganate solution or osmic acid. The commonest oxidising agent used is potassium dichromate. The amount of oxidizing agent left unused by alcohol is found out, from which the amount of alcohol present in the sample is determined. The first man to suggest this technique for the estimation of alcohol was Nicloux. Others have since modified it. Notable modifications are due to: 1. Widmark.

2. Cavett. 3. Southgate and Carter, and

4. Kozelka and Hine.

These modifications give fairly accurate and reproducible results. Out of these techniques Cavett’s modified method and Kozelka and Hine’s methods are still used in India. in Cavett’s modified method about 2 ml. of blood or urine are taken in a petri dish. It is placed over 10 ml. of potassium dichromate solution (4.9 gs. of dichromate in 1 litre of 50% sulphuric acid) over a triangular glass stand, in a wide mouthed 500 ml. jar. The jar is closed with a ground glass plate and a screw-on cap. It is left for about 20 hours at room temperature or incubated at about 37°C for 8 hours. The alcohol in the sample is distilled over and gets oxidized on coming in contact with the solution. An excess of potassium iodide is added to unused dichromate solution. The solution is titrated with sodium thiosulphate solution using starch as the indicator. The quantity used for alcohol is thus found out. Tests for adventitious materials such as acetone, albumin, salicylates phenols, sugars and preservatives are also carried out. The above technique for alcohol determination is modified to avoid interference by these materials. Often, it is preferable to use Kozelka and Hine method when interference by

reducing agents is suspected. The main features of the Kozelka and Hine technique are: 1. The distillation and oxidation are carried out in separate steps. 2. Foaming is avoided in the distillation by precipitating proteins with the addition of sodium tungstate, to the blood sample. A trap is also employed to prevent froth being carried over to the distillate. 3. Reducing agents are retained in mercuric chloride and sodium hydroxide solutions. The chemical methods are non-specific because other reducing agents (other alcohols, aldehydes, Ketones), if present will also be oxidised, corrupting the result unless they are taken into consideration. The methods, therefore, are

giving way to other methods, notably to instrumental methods.

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13.5.5 Gas Chromatography

This technique for the analysis of body fluid alcohol is extremely simple both in principle and operation. Yet it is highly sensitive, rapid and specific. It needs only small quantities. The analysis is not interfered by the common materials present in the sample. Gas chromatography consequently is being used extensively and increasingly for the blood fluid alcohol determination in all the laboratories. A measured sample containing alcohol is put into the head of the column kept in a heated chamber where it is changed into vapours. The vapours are carried by carrier gas through a column packed with a suitable material. Due to differential adsorption, various constituents of the sample are separated. They are detected through a sensitive detector. The time intervals at which they pass through the detector are recorded on a chart (chromatogram of the sample) which gives qualitative and quantitative analysis. Blood, urine or other body fluids are diluted with isopropyl alcohol before analysis.

Head space procedure for the analysis of alcohol is becoming popular. In this technique body fluid liquid is mixed with an internal standard (say Dioxane ) and allowed to attain equilibrium in a rubber bunked closed tube, when one ml.

sample of the vapours is drawn with a syringe and injected into the injection part and the sample undergoes chromatography. A typical instrumental set up is:

1. Column : Stainless Steel, 2. Temperature :

2mm x 3 m. Coated with Carbowax

¢ Injection port

175°C

¢ Oven ¢ Dilutor

80° C 2259:G

3. Carrier Gas

Helium.

4. Detector

FID./ TCD

Other alcohols, esters, aldehydes, ethers, acids and essential oils appear at different intervals and have separate peaks. They, therefore, not only do not interfere in the analysis but they are also identified and estimated. 13.5.6 Biological Method This method utilizes the action of an enzyme, alcohol dehydrogenase (ADH)

which changes alcohol into acetaldehyde by removing a molecule of hydrogen. Acetaldehyde is then estimated photometrically (340 nm). The enzymic reaction is carried out in a buffer solution at about 9 pH in the presence of semi carbazide. The coenzyme gets reduced and changes the absorption quantitatively. Alcohol is transferred to the solution by suction. The enzyme does not react with acetone or methanol. The technique is sensitive, specific and micro in nature. 13.5.7 Breath Analysers

A large number of instruments are available for the analysis of breath alcohol in the market under various trade names, namely drunkometer, breath analyzer,

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alcometer, intoximeter and, the latest (A.L.E.R.T.) Alco Testor, etc. They are

extensively used in United States of America. They are not so popular in other countries. But their simplicity and the instantaneous results they produce are dramatic. They are likely to find favour where intoxicated drivers are a serious problem. Research and experience has brought in tremendous improvements in these instruments. Most of the instruments work on the principle that the alcohol contained in breath is oxidised by an oxidizing agent and produces change in its colour, which is measured visually, colorimetrically or spectrophotometrically. The change of colour is proportional to the amount of alcohol. The latter, therefore, can be determined from the former. Newer instruments are also using other methods. Some of them are: 1. Thermal Conductivity Detector. 2. Flame Ionization Detector. 3. Oxidation of alcohol: Fuel Cell. 4. Infrared Absorption. 5. Oxidation of alcohol by dichromate, permanganate. In addition to the above there are some devices which are used only to screen the drivers. They indicate (on the basis of breath analysis) whether the person is legally sober, drunk, etc. It is indicated usually by various types of light or word ‘PASS’, ‘FAIL’ or ‘WARN’ which appear upon the instrument. In some instruments the concentration is given on a print out. 13.5.8 Significance of Blood Alcohol

As alcohol in blood in all concentration adversely affects the working of human

brain, there is no safe lower limit. However,

some

countries have

arbitrarily fixed blood alcohol concentration limit. It is an offence to drive if blood alcohol is more than the prescribed limit. 1. In USA if the blood alcohol concentration is below 0.05 per cent. the person is legally sober. If the concentration is between 0.05 and 0.10 per cent., (0.15 per cent. in some states) other factors determine whether the subject is under the influence of alcohol or not. If the concentration of alcohol is above 0.10 per cent. (0.15% in some states), the subject is

legally intoxicated, 0.15 per cent. blood alcohol level is rather high, 0.10% is more realistic. 2.

In United Kingdom a person is legally drunk if alcohol concentration level in urine is above 0.107 per cent. or it is above 0.08% in blood.

3. In Norway, if blood alcohol concentration is above 0.05% the person is legally drunk. 4. In communist countries, a person is not allowed to drive after having drinks. In view of the fact that the medical tests are often not reliable to determine intoxication, the detection and determination of alcohol level in body fluids acquire great significance.

ALCOHOL

873

The alcohol consumed by a person is given by: Table Xill-1

QO =C.WB. Q = Total quantity of alcohol consumed. C = Concentration of alcohol in blood.

W = Weight of the body, and B = The body factor

The use of body factor is necessary to account for the non-absorbing part of the body, mainly the bones and the fat. B is roughly 0.7. The body factor for males have been found to be about .68 and for females .55, in U.S.A. It will vary with the geography of the lands and their inhabitants. Thus a person weighing 70 kilograms and having an alcoholic concentration of 0.1 per cent., have consumed alcohol: Table XIill-2 0.1 X 70 X 1000 X 0.7 100 700 X7

100 = 49g.

= 62 ml.

(SG = .7893)

In terms of whiskey the person has consumed about 150 ml. of whiskey or over two large pegs of whiskey. In terms of beer, the person has taken two to four bottles of beer. Table XIll-3 CO-RELATION OF ALCOHOL IN BLOOD AND BODY FLUIDS 1. Blood : Urine

= toe

2. Blood : Perspiration

=1:1.1

3. Blood : Saliva

=ohs dk

4. Blood : Breath

= 2100:1

5. Blood : Brain fluid

= 1:0.85

6. Blood : Liver

312,0,77

7. Blood : Plasma

ach 316

Other body fluids have not been found to give consistent results. The ratios will vary somewhat with the technique of sampling. For example, if breath is not properly exhaled from the lungs, the concentration of alcohol in breath

is found

less. Likewise,

if the mouth

contains

some

alcohol, the

concentration of alcohol in breath is more. Similarly, if urine is not sampled properly, the concentration of alcohol in urine will not be a true index of blood alcohol level at the time of taking the sample.

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13.5.9 Presentation The reports of chemical examiners who carry out blood alcohol analysis are covered

by section

293

of the Code

of Criminal

Procedure,

1973.

Thus,

attendance of the examiner in a court is not compulsory. The evidence is highly technical and is not likely to be understood by the courts. It is therefore, necessary that the expert should explain the nature of evidence in person whenever possible. It is recommended that the following chart should accompany each analysis report concerning intoxication. Table XIill-4

LIQUOR EFFECTS

Liquor

Taken

Effects

Beer (600 ml., 5%)

Whisky (ml)

Alcohol (ml)

Blood

Urine

1/2 bottle 1 bottle

a9 70

15 30

0.025 0.050

0.033 0.07

Outwardly no effect Inhibitory centres affected Mild Euphoria.

| 0.10 to 0.20 | 0.133-

Muscular in-coordination.

2-4 bottles | 140-280

60-120

0.236

Signs / symptoms

Subject talkative, social, happy. Judgement impaired. Efficiency decreases. In some confusion.

4-6 bottles | 280-420

| 120-180}

0.2-0.3

0.267-

Emotional

0.400

Mental-physical in-coordina-

breakdown,

tion. Muscular in-coordination increases slurred

speech, staggering gait, loss of pain, perception and other sensation (complete confusion) 6-8 bottles | 420-560

180-240

0.3-0.4

|0.4-0.533

Loss

of

complete.

muscular

No

stimulations,

consciousness.

control

response Loss

to of

Stertorous

breathing, sleepiness, Coma, Stupor, Death

Above

> 560

>240

>0._—

>0.533

Coma, Death

Sleep,

Paralysis,

The elimination of alcohol starts immediately after the start of drinking, at the rate of 10 ml. of pure alcohol per hour. If a person has taken two bottles of beer in 3 hours, 30 ml. of alcohol is eliminated during the drinking and at the end effective concentration is only 0.05% instead of 0.10%. The examination techniques of blood alcohol are changing at a rapid rate. The technique employed should be mentioned in the report. The technical details should be given only in brief but reference to detailed method should be given, so that if the court so desires, it can verify the dependability of the procedure.

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13.6 CASE LAW 13.6.1 Bona fide Expert 1. Another question before us is whether the excise inspector, whose evidence was under consideration, had sufficient knowledge to be deemed to be an expert

within the meaning of section 45 of the Evidence Act so that the tests adopted by him, together with all the attendant circumstances, could establish beyond doubt that the appellant was in possession of illicit liquor. We think that these are also essentially questions of fact. If there is sufficient evidence led by the prosecution to establish its case it becomes the duty of the defence to rebut the evidence. In the case before us, the appellant’s counsel cross-examined Shri C.D. Mishra, P.W. 1, excise inspector, at considerable length, but the whole of this cross-examination was directed at showing that the recoveries were not made from the possession of the appellant. No question was put to him in crossexamination to suggest that the appellant questioned the composition or strength of the liquid recovered as alcohol of prohibited strength or the competence of the excise inspector to give his conclusion on the strength of tests adopted by him. Again, no defence evidence was led to indicate that the liquid could be anything else. These considerations would be sufficient to dispose of the points raised on behalf of the appellant in the case before us. We may, however, observe that we agree with the High Court that the proposition contained in Boosenna’s case,' must be confined to its own facts. We find that the excise inspector who had deposed, at the very outset of his evidence, that he had put in 21 years service as excise inspector and had tested lacs of samples of liquor and illicit liquor. As already pointed out, the competence of C.D. Misra to test the composition and strength of the liquid under consideration was not questioned at all. We, therefore, think that this

particular excise inspector could be treated as an expert within the meaning of section 45 of the Evidence Act. The excise inspector had, in addition, to employing the smelling test, used all the other tests he could reasonably adopt. If his competence to give his opinion or the sufficiency of the tests adopted by him had been questioned in the trial court, the prosecution would have been in a position to lead more evidence on these questions. We also find that the objects recovered from the possession of the appellant almost proclaim the nature of his activity and of the liquid which could be in his possession. On the facts and circumstances of this case, neither Boosenna’s case, nor any other case would, we

think help the appellant. Consequently, we dismiss this appeal and affirm the conviction and sentence of the appellant. The appellant should surrender to his

bail and serve out the sentence.” 1. (1967) 3 SCR 871: AIR 1967 SC 1550: 1967 Cri LJ 1398. 2.

Sri Chand Batra v. State of Uttar Pradesh, 1974 Cri LJ 590: AIR 1974 SC 639. Also see

State of Andhra Pradesh v. Madiga Boosenna, AIR 1967 SC 1550: (1967) 3 SCR 871: 1967 Cri LJ 1398; State v. Madhukar Gopinath, AIR 1967 Bom 61: 1967 Cri LJ 167;

Pitamber v. State of Uttar Pradesh, 1975 Cri LJ (HC); Yerra Kanakarao v. State of Andhra Pradesh, 1975 Cri LJ 953 (HC).

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2. The prosecution admittedly did not send the sample from the contents of the bladder to the chemical examiner. In such cases the chemical analysis is always the surer test to declare as to what the commodity actually recovered from the accused is. In place of doing so the prosecution got the contents of the bladder examined from Shri D.K. Palta, excise inspector and projected him as an expert witness to say that whatever he had examined was liquor. Shri D.K. Palta did not put the contents of the bladder to any laboratory test. He applied two physical tests; the first was that of taste and smell and the second was with the help of a Hydrometer set. In order to style himself as an expert witness he gave his qualifications stating that he was distillery trained and he had put in 13.5 years service in the Department. On the basis of this evidence the learned counsel appearing on behalf of the state wants us to accept that the contents of the bladder were proved to be liquor of illicit origin. So far as the experience of Shri D.K. Palta (P.W. 4) in testing is concerned his statement is extremely unsatisfactory. He did not spell out the training which he had received at the distillery. He did not state whether he was associated with the distillation of liquor, the chemical analysis of this commodity or any method of testing liquor. Unless the type of training received by Shri D.K. Palta at the distillery was stated by him specifically it is difficult for us to accept that he had received any such training which had given him sufficient proficiency to examine liquor and declare it to be so with definiteness. His contention to show experience of testing liquor by the length of his service is also equally unsatisfactory. It is not known from the record in what branch of the Excise Department he had put in service; whether he remained on office duty, field

duty or in the branch of the Excise Department which is directly connected with the testing of liquor. Such a vague statement without any particulars of training or type of service does not make the person an expert witness. The prosecution has to prove that the training or length of service was directly connected with the test of liquor." 13.6.2 Liquor Identification

1. In support of this appeal it is contended that the evidence of the police inspector Pawar should have been accepted as the respondent was caught running away, keeping the bicycle there, after he was detected riding the bicycle. I do not see any compelling reasons to differ from the finding of the learned magistrate, who had an opportunity to see the witnesses in the witness-box that it may be unsafe to convict the respondent on the sole testimony of the police inspector, Pawar, in view of the circumstances of this case. But in my opinion there is a further infirmity in the prosecution evidence which goes io the root of the matter. There is no legal evidence, in my opinion, on which it could be held that the liquid, for the possession of which the respondent was charge-sheeted, is, in fact, established to be liquor or prohibited liquor by any legal evidence which can be accepted and acted upon. The testimony of Lalbhai is brief and is to the following effect : 1. State of Haryana v. Radhey Shyam, 1977 Cri LJ 528.

ALCOHOL

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I have undergone training in testing liquor by the Syke’s test. I have brought today a hydrometer and a thermometer to test the contents of the two scaled rubber bladders now before the court. (Note : The seals on the two bladders are intact and they are removed in the presence of the court and the two accused and their pleader

and the witness is asked\to examine their contents). After taking the necessary tests I say that the liquid contained in each of the two rubber bladders is liquor containing 48.8 of alcohol and 51.2 per cent. of water. Relying on this testimony, it is urged by the learned assistant government pleader that the Syke’s hydrometer test has been accepted as a reliable test to come to the conclusion whether a liquid claimed to be liquor is in fact liquor or not and, in view of the decisions of this court, the evidence of the witness should

be accepted. The witness claims to have undergone training in testing liquor. But what is the nature of that training is not testified by the witness at all. In fact, he has given no information to qualify as an expert. Another serious infirmity in the testimony of this witness is that he has given no data from which he could come to the conclusion, even by applying the hydrometer test, that the liquid was liquor. He has not stated what was the specific gravity of the liquid which he tested, nor the temperature, nor has he disclosed the principle with reference to which he came to the conclusion that the liquid should be liquor. I felt some difficulty in accepting the evidence of the police head constable as evidence of an expert. It is not shown how he has qualified himself to be an expert in testing liquors. But even assuming that by his experience he may have attained some degree of knowledge, the reason he has given, viz., the test carried

out by hydrometer and thermometer to determine whether the liquid was liquor or not, is certainly far from satisfactory. If it is known or proved that a certain liquid is liquor or contains alcohol, then it is certainly possible, by means of Syke’s hydrometer test and by use of thermometer, to determine the percentage of alcohol from that liquid; but if the basic question that has first to be proved is whether

the liquid under test does or does not contain alcohol, it does not

appear that hydrometer test alone could 1.e., sufficient to come to any such conclusion. An opportunity was, therefore, given to the learned assistant government pleader to call any expert in this subject who may have the necessary knowledge and experience in the matter of testing liquor or alcohol and liquids to find out whether Syke’s hydrometer test would furnish a necessary test for determining whether a liquid does or does not contain alcohol. Accordingly, the case was adjourned for recording the evidence of such an expert and was taken up today, when Shri Harbhajan Singh Mahal was examined by the State as an expert. Shri Mahal entered the witness-box and has given his opinion regarding the Syke’s hydrometer test and what can be determined by applying that test to a liquid. Shri Mahal is a director of a forensic science laboratory and the chemical analyser to the government of this State and, by his qualifications and experience, he seems to be a scientist of sufficiently wide knowledge and experience. He seems to have made a special study of estimation of alcohol in blood and contributed papers in well-known American periodicals. He was specifically asked about the Syke’s hydrometer

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test and what conclusions can be drawn from such test. What he has stated, in his own words, is as follows:

I know what is Syke’s hydrometer test. It is a test for determining the density of liquids. The test is made with the help of an instrument called hydrometer. The instrument is allowed to be immersed in the liquid to be tested and is allowed to float. There are calibration marks on the stem of this instrument. These marks show the density of the particular liquid. When the hydrometer is immersed in the liquid to be tested and the level of the liquid reaches a particular mark on the stem it will mean that the liquid is of that particular density, calibrated at the place upto which the liquid reaches the stem. There is standard chart or table by reference to which the reading on the calibrated stem can be interpreted to find out the density of that liquad......... If 1am given a liquid and asked to test or find out its specific gravity by hydrometer test and it is found that the specific gravity is between 1. 0 and 0.7 it would not be possible to conclude from this much data alone that the liquid contains ethyl alcohol. This would be so even ifreadings were obtained at different temperatures. To court questions the witness has stated that a fairly reliable method to find out whether a liquid is ethyl alcohol or contains ethyl alcohol is by subjecting it to a chemical test and this test is known as iodoform test. In view of this clear and unequivocal testimony of the expert witness, whose opinion one would always prefer to the opinion of Abubakar Lalbhai, who is a police head constable, claiming to have undergone training in testing liquor by the Syke’s test, it is clear that the Syke’s hydrometer test will furnish no data to determine whether a particular liquid is liquor or contains alcohol. It may be that once it is known that a particular liquid contains alcohol, the percentage of alcohol in that liquid may be found by the hydrometer test. But when the question to be determined is the primary question, namely, whether the liquid does or does not contain alcohol, the hydrometer test does not appear to be the proper test to come to any such determination.

In view of the testimony of Dr. Mahal, who is the director of forensic science laboratory in this State, there is hardly any room for canvassing that the evidence of the police head constable as to the liquid being liquor could be accepted as legal or sufficient evidence to come to the conclusion that the liquid

was liquor or prohibited liquor.! 2. In the present case, the medical officer, Padra who had collected blood of the accused in a phial, had sent the same by registered post parcel with a forwarding letter containing facsimile of his seal. The parcel which was sealed in the presence of the medical officer, was received in the chemical analyser’s office with seals intact. The report of the chemical analyser, Ex. 16 clearly shows that seals were intact and it mentions serial number of the letter under which the said bottle was received. The chemical analyser’s report was sent under his letter, dated 22-8-1968, addressed to the medical officer, Padra mentioning that letter No. 742, dated 30-9-1967 forwarding therewith a phial containing blood of 1. State of Maharashtra v. Madhukar Gopinath Lolge, 1967 Cri L] 167 (Bom).

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Chandrasing Prabhatsing bearing serial number 238 received thereon 3-10-1967 by R.P.P. sealed and that seals were perfect as per copy sent: The result of the test of blood showed that it contained 0.1081 % w/v of ethyl alcohol. He ha also annexed an extract of technique by which he had performed the test. Thus, when the phia#containing blood of the accused was sent by registeréd post parcel, completely sealed by the medical officer, Padra and the said parcel with seals intact was received by: the office of the chemical analyser, it was not necessary for the prosecution to examine some person from the chemical analyser’s office to show that the very bottle which was sent by the medical officer, Padra, was received at his end. It is nobody’s case that seals on that bottle were removed by some person from the chemical analyser’s office before the same was given to him for analysis. On the contrary, the letter Ex. 16 referred to above clearly shows that seals on the bottle with label were intact and that seals were as per the copy of the forwarding letter, Ex. 15. Under the circumstances, I do not agree with the learned advocate for the respondent that the prosecution should have examined the person who received the bottle and

that merely because the person who received the bottle was not examined, the report of the chemical analyser was bad in law. In my opinion, there is no lacuna in the prosecution case and the prosecution had clearly satisfactorily established that the 5 c.c. blood of the accused which was taken by the medical officer, Padra was analysed by the chemical analyser and that on analysis, it was found to contain 0.1081% w/v alcohol. He was smelling of alcohol, his

speech was incoherent and his pupils were dilated. Reading the evidence of the medical officer together with the evidence of Gunvantray Tribhovandas Dhabalia, assistant chemical analyser, I have no hesitation in holding that the very phial containing blood of the accused sent by the medical officer, Padra was received by the chemical analyser and that the seme was analysed by him. In fact, the assistant chemical analyser who was examined by the prosecution was not cross-examined by the accused at all. His evidence has remained unchallenged. *

*

*

+

+

Thus, if the report of the chemical analyser disclosed that the blood of the accused contained 0.1081% of ethyl alcohol, a presumption could be raised that the accused had consumed liquor. It was for the accused then to discharge the burden by showing that he had consumed medicine or toilet preparation! 13.6.3 Prohibited Liquor

The first contention may be put thus. Under section 66(2) of the Act all that an accused need prove is that he has consumed a medicinal preparation, if he established that, the burden of proving that the medicinal preparation is fit for use as an intoxicating liquor shifts to the prosecution. In the present case the accused has established that he had taken “tincture Zingeberis”, which is a medicinal preparation, but the prosecution failed to prove that it was fit for use as an intoxicating liquor. 1. State of Gujarat v. C.P. Solanki, 1971 Cri LJ 1381 (HC).

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To appreciate this contention it is necessary to notice the relevant provisions. Under section 66(1) of the Act, “whoever in contravention of the provisions of this Act, or of any rule, regulation of order made.......... consumes.......... any intoxicant shall, on conviction, be punished for a first offence with

imprisonment for a term which may extend to six months and with fine which may extend to one thousand rupees.” “Intoxicant” is defined to mean, among other things, any liquor; and “liquor” is defined to include, among others, all liquids consisting of or containing alcohol. |

But by reason of section 24A(2) of the Act, if it is established that the liquor

consumed is contained in any medicinal preparation which is unfit for use as intoxicating liquor, the consumption of such liquor is not an offence under the Act for the Act itself does not apply to such medicinal preparation. We shall revert to the question of burden of proof a little later. The facts found in this case may now be noticed. The accused says that he consumed “tincture Zingeberis” and produced before the police a sample bottle out of which he says he had consumed “tincture Zingeberis”. A sample of the liquid was analysed by the chemical analyser. His report shows that the liquor was a weak Ginger Tincture B.P. 1958 (Tincture Zingeberis Mitis); absolute alcohol content was 89.1 per cent. V/V. The report further states as regards alcohol content of the liquid that the sample contains 90.0 per cent. of V/V of ethyl alcohol though the B.P. limits were 86 to 90 per cent. V/V. “The analysis has also given the quantity of total solids as 0.62 per cent. Weight per ml. at 20 degrees to be 0.825 g.” In the opinion of the chemical analyser, the sample complied with pharmacopical specifications. On the basis of the report, the High Court found that the accused consumed a medicinal preparation which was listed in the British Pharmacopia, 1958 edition and which had alcohol contents to the extent of 90 per cent. V/V of ethyl alcohol. The chemical analyser to the government of Maharashtra examined the sample blood taken from the body of the accused by applying “modified Cavatte’s method’,’ and gave his report to the effect that the sample blood of the accused contained 0.207 mg. per cent. W/V of ethyl alcohol. The High Court also found on the expert evidence that blood alcohol concentration taking a normal dose of tincture Zingeberis Mitis would be about 0.007 per cent. W/V and the accused should have taken roughly about 125 c.c. of tincture Zingeberis to induce an alcohol content of 0.207 per cent. found in his blood by the chemical analyser. On the basis of the evidence of Dr. Deshmukh, the High Court also found that tincture Zingeberis Mitis was a preparation which might be consumed for intoxication and that intoxication would not be accompanied by any other harmful effects. On the other hand the accused has not adduced any evidence that the said medicine is a medicinal preparation. The question whether the prosecution has discharged its burden of proof in this case will have to be considered on the basis of the said facts found by the High Court. Section 66(2) of the Act which bears on the question of burden of proof reads thus:

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Subject to the provisions of sub-section (3), where in any trial of an offence under clause (b) of sub-section (1) for the consumption of an intoxicant, it is alleged that the accused person consumed liquor, and it is proved that the concentration of alcohol in the blood of the accused person is not less than 0.05 per cent. weight in volume then the burden of proving that the liquor consumed was a medicinal or toilet preparation .......... containing alcohol, the consumption of which is not in contravention of the Act or any rules, regulations or orders made thereunder, shall be upon the accused person, and the court shall in the absence of such proof presume the contrary.

It has been proved in this case that the accused person consumed liquor and that the concentration of alcohol in his blood was more than 0.05 per cent. weight in volume. So in terms sub-section (2) of section 66 of the Act the burden

of proving that the liquor consumed was a medicinal preparation containing alcohol, the consumption of which was not contravention of the Act, etc., or the rules made thereunder, shifted to the accused. He could have discharged this burden by proving, inter alia, that the medicinal preparation containing alcohol which he had taken was unfit for use as an intoxicating liquor; if so much had been established, as under section 24A of the Act, the Act itself does not apply to such medicinal preparations, the accused would not have committed any offence under the Act. The High Court found that the accused had not placed any material to prove that tincture Zingeberis Mitis was unfit for use as an intoxicating liquor; indeed, it accepted the evidence adduced on behalf of the prosecution and held that it was fit for use as an intoxicating liquor. In this case not only the accused failed to discharge the burden so shifted to him by the statute, but the prosecution has also established that the said medicinal preparation was fit for use as an intoxicating liquor. Reliance is placed by the learned counsel for the appellant on the decision of this court in State of Bombay (now Gujarat) v. Narandas Mangilal Agarwal,’ wherein it was held, in the circumstances of the case, that it was for the State to prove that the medicinal preparation was not unfit for use as intoxicating liquor. But that decision as

given on the relevant provisions of the Act before it was amended by the Bombay Act XII of 1959. Section 66(2) was added by the said Act which in express terms states that in the circumstances mentioned in the sub-section the burden of proof shifts to the accused. The said decision cannot therefore, be invoked in the changed circumstances. The present case falls to be decided on the interpretation of section 66(2) of the Act. We, therefore, hold that the High Court came to the correct conclusion on the question of burden of proof and gave its finding on the evidence adduced before it.” 13.6.4 Improper Collection

Now it is clear that in order to establish the guilt of the accused for an offence under section 66(1)(b) of the Act, the prosecution mainly relies on a report 1.

1962 SCR 15 (Supp) (1): AIR 1962 SC 579.

2. Vijay Singh v. State of Maharashtra, 1966 Cri LJ 168 (SC); Also see Rattan Lal v. State of Maharashtra, 1966 Cri LJ (SC); State of Bombay v. Naran Das Mangilal Agarwal, AIR 1962 SC 579; Palaniswami (in re:) , 1965 (2) Cri LJ 370 (Mad).

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received from the chemical examiner in respect of the blood of the accused taken by Dr. Talati on the date of the offence and then sent for examination to the chemical examiner at Junagadh through the police officer. When that is so, the — point raised by Mr. Thakore assumes considerable importance as the guilt or otherwise of the accused will have to be determined on the strength of the report. produced as Ex. 7 in the case. In that event, presumption of his guilt arises under section 66(2) of the Act and since his explanation is disbelieved, he would be liable under section 66(1)(b) of the Act. We have, therefore, to turn to the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959,

hereinafter to be referred to as “as Rules” and find out as to whether the requirements contemplated in rule 4 are of a mandatory character and a breach thereof would affect the evidence contained in the report produced by the chemical examiner. Such a point arose in the case of Karansingh Balubha v. State of Gujarat,’ where it was held that if the prosecution relies solely on the report of the chemical analyser to prove the fact of concentration in blood which had been collected and sent to the chemical analyser in the course of an investigation of an offence under the Bombay Prohibition Act, such certificate could be evidence only if the certificate had been obtained in the prescribed manner as laid down in section 129A of the Act. Then it was held that section 129A, clause

(2) of the Bombay

Prohibition

Act, 1949, casts duty on the

registered medical practitioner before whom such a person was produced in the course of the investigation to examine such a person and collect and forward in the prescribed manner the blood of such person, and on the chemical analyser to certify the result of the test of the blood forwarded to him stating the percentage of alcohol and such other particulars. Rules 4 and 5 of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959, which lay down the manner of collection and forwarding of blood, are mandatory provisions. The legislature had advisedly required the despatch of the sample phial to be made by the doctor through post or a special messenger with his own forwarding letter so that there might not be any scope of tampering with the sample phial. If that safeguard was disregarded and the sample phial was handed over to the investigating officer himself, this salutary safeguard would be completely set at naught. In those circumstances, the court held in that case that the prosecution having not led any other evidence to prove that fact of concentration of the blood, no presumption could be drawn under section 66(2) of the Act and it was not for the accused to rebut the burden raised by the presumption. On the basis of this decision, it can be said that the rules 4 and 5 are of a mandatory character and in the present case since the phial containing blood of the accused was sent by Dr. Talati through the investigating officer himself, namely the complainant, head constable, the salutary safeguard providing for the despatch of the sample phial to be made by the doctor through post or a special messenger with his own forwarding letter has been completely disregarded.’ 1. 8 Guj LR 31: AIR 2. Dalsukhji Varvaji Marulkar v. State Gujarat, 1967 Cri

1967 Guj 219. v. State of Gujarat, 1969 Cri LJ 695 (Guj HC). Also see N.K. of Bombay, 1967 Cri LJ 858 (Bom); Karan Singh Balubha v. State of LJ 1142 (Guj HC).

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2. The legislature of the State of Bombay being faced with this interpretation imposing a serious burden which the prosecution had to undertake in trials for offences of consumption or use of liquor contrary to the provisions of the Act, for due enforcement of the law and to prevent evasion, enacted certain additional provisions by Bombay Act 12 of 1959. By that Act, section 60 was renumbered as section 66 (1) and sub-section (2) was added thereto in the following form:

Subject to the provisions of sub-section (3), wherein any trial of an offence under clause (b) of sub-section (1) for the consumption of an intoxicant, it is alleged that the accused person consumed liquor and it is proved that the concentration of alcohol in the blood of the accused person is not less than 0.05 per cent., weight by volume, then the burden of proving that liquor consumed was a medicinal or toilet preparation, or an antiseptic preparation or solution, or a flavouring extract essence or syrup containing alcohol the consumption of which is not in contravention of the Act or any rules, regulations or orders made thereunder, shall be upon the accused person and the court shall in the absence of such proof presume the contrary.

By sub-section (3) the provisions of sub-section (2) are not to apply to consumption of liquor by indoor patients during the period they are being treated in any hospital, convalescent home, nursing home, or dispensary, maintained or supported by government or a local authority, or by charity, or by such other persons, in such other institutions, or in such circumstances as may be prescribed. The result of this amendment was to make, except in the cases expressly provided in clause (3), concentration of alcohol in excess of 0.05 per cent., weight in volume in blood presumptive evidence of consumption of liquor in contravention of the provision of the Act and the burden of proving that the liquor consumed was a medical or toilet preparation or an antiseptic preparation or solution, or a flavouring extract, essence or syrup, lay upon the person charged with the offence. The case of the prosecution in this case rested primarily upon the report of the chemical examiner certifying that alcohol concentration in the blood of the appellant which was extracted at 6 a.m. on April 3,1961 was in excess of the percentage prescribed by section 66(2). The prosecution had, therefore, to establish that the specimen examined by the chemical examiner was the specimen of blood collected from the body of the appellant and that the specimen disclosed concentration of alcohol in excess of the permissible limits. It is somewhat unfortunate that the trial magistrate did not appreciate that the only important piece of evidence on which the prosecution case against the appellant rested was contained in the report of the chemical examiner. There is no dispute that the appellant went to the civil hospital early in the morning of April 3, 1961. He has admitted that fact in his statement before the court. Dr. Kulkarni has deposed that on being told about the death of Mohamad Yusuf the appellant fainted and was admitted to the hospital, and that he found that the appellant was smelling of alcohol. Dr. Kulkarni has stated that no treatment was given to the appellant. Dr. Rote was asked by Dr. Kulkarni to collect a specimen of blood from the body of the appellant, and a blood specimen was accordingly taken and the phial was sealed in his presence by a laboratory

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servant. Dr. Rote stated in cross-examination that no methyl spirit was applied before extracting blood. The certificate of Dr. Rote dated April 13, 1961 that he had collected blood from the body of the appellant on the morning of April 3, 1961 and that the bottle containing the blood was sealed in his presence corroborates the statement. But there is no evidence on the record about the person in whose custody this phial remained till it was handed over to the sub-inspector of police on April, 13, 1961 when demanded. There is also no evidence about the precaution taken to ensure against tampering with the contents of the phial when it was in the civil hospital and later in the custody of the police between April 13, 1961 and April 18, 1961. Even the special messenger with whom the phial was sent to the chemical examiner was not examined and Ext. 43 which was _ the acknowledgment signed by some person purporting to belong to the establishment of the chemical examiner does not bear the official designation of that person. The report of the chemical examiner mentions that a sealed phial was received from the police officer by letter No. C/010 of 1961 dated April 18, 1961, but there is no evidence that the seal was the one which was affixed by Dr. Rote on the phial. These undoubtedly were defects in the prosecution evidence which appear to have occurred on account of insufficient appreciation of the character of the burden which the prosecution undertakes in proving a case of an offence under section 66(1)(b) relying upon the presumption under section 66(2).

It was assumed by the trial magistrate that the phial containing blood collected by Dr. Rote was kept in a safe place and could not be tampered with, that it was kept in such a place that it was not liable to deteriorate, that thereafter this phial also remained with the police at a place where it could not be tampered with, and that the phial sealed by Dr. Rote was delivered by the special messenger to the establishment of the chemical examiner and that the same phial was examined by the chemical examiner, and that between April 3, 1961 and April 19, 1961 when the contents of the phial were subjected to chemical examination, they had not deteriorated. Both the prosecutor and counsel for the appellant appear to have contributed to the somewhat slipshod trial of the case. Dr. Kulkarni and Dr. Rote were examined as witnesses for the prosecution, but no examination or cross-examination of either was directed in respect of these important matters, and even to the investigating officer, no questions seeking to elicit information on these matters were asked. The report of the chemical examination of the blood specimen collected at 11 a.m. on April 3, 1961 was also not tendered in evidence by the prosecution though the same was demanded. Section 129A contemplates two classes of certificates—certificate of the results of the examination by a registered medical practitioner whether the person sent to him has consumed any intoxicant and the certificate of the chemical examiner of the examination of blood collected by a registered medical practitioner and sent to him for examination. These are made admissible by virtue of clause (a) of section 129B. Clause (b) of section 129B deals with the

admissibility of reports in respect of examination of persons or of matters or

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things submitted to the registered medical practitioner for examination or analysis and report. These are undoubtedly different from the certificates of examinations made under section 129A. The report of the registered medical practitioner under clause (b) of section 129B may be upon.a “matter or thing” and so may be in respect of blood specimen submitted to him. On an analysis of sections 129A and 129B, it is clear that the Legislature has provided in the first instance for compelling persons suspected of consuming intoxicants to be produced and to submit themselves for examination and extraction of blood which, under the law as it stood, could not be secured, but thereby the law did not provide for only one method of proving that a person had consumed illicit liquor within the meaning of section 66(2). The legislature has made the certificate of the examination under section 129A, sub-sections (1)

and (2) admissible without formal proof; but by the adoption of any other method of collection person accused has consumed an intoxicant is any registered medical practitioner which tends

sub-section (8) of section 129A, of evidence for proving that a not precluded and a report of to establish that fact in respect

of matters specified in clause (b) of section 129B is also made admissible. On that view of sections 129A and 129B, there is no warrant for assuming that it was intended thereby to exclude in trials for offences under section 66(1)(b) of

the Act the operation of section 510 of the Code of Criminal Procedure. The Code makes a document purporting to be a report under the hand of a chemical examiner and certain other documents upon any matter or thing duly submitted to him for examination or analysis and report, admissible in any enquiry, trial or other proceeding under the Code. The terms of section 510 of the Code of Criminal Procedure are general; but on that account

it cannot justifiably be

assumed that by enacting sections 129A and 129B, the legislature intended that the certificate of a competent officer in respect of matters not governed thereby shall become inadmissible. It is open to the prosecution to rely in corroboration of a charge of consumption of illicit liquor upon a certificate under clause (a) of section 129B if it is obtained in the manner prescribed by section 129A, and also to rely upon the report of a registered medical practitioner in respect of any person examined by him or upon any matter or thing duly submitted to him for examination or analysis and report. It is also open to the prosecution to rely upon the report of the chemical examiner in cases not covered by section 129A as provided under section 510 of the Code of Criminal Procedure (section 293 of the new Code).

It was urged before the Sessions Court that the report of the chemical examiner was submitted by that officer not to the court nor to the medical officer but to the police officer and it was by virtue of section 162 of the Code of Criminal Procedure inadmissible, except to the extent permitted within the strict limits prescribed by the section. But section 510 makes provision with regard to proof of documents by production thereof, and the application of section 162(1) is expressly made subject to what is provided in the Code of Criminal Procedure. Exclusion from evidence of any part of a statement made to a police officer or a record from being used for any purpose at any enquiry or trial in respect of an offence under investigation at the time when such statement was made is “save

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as hereinafter provided”. The word “hereinafter” is, in our judgment not restricted in its operation to section 162 alone but applies to the body of the Code: to hold otherwise would be to introduce a patent inconsistency between section 207A and section 162 of the Code, for by the former section in committal proceeding, statements recorded under section 162 are to be regarded as evidence. The contention raised that the report made to the police officer by the chemical examiner was inadmissible in evidence was rightly rejected. Finally, it was urged that the blood specimen was not submitted in the manner prescribed by rules framed under the Bombay Prohibition Act, and therefore it could not be regarded as “duly submitted”. The government.of Bombay has, by notification dated April 1, 1959, framed rules under clause (w) of section 143 of the Bombay Prohibition Act, called the Bombay Prohibition (Medical Examination and Blood Test) Rules. Rule 3 deals

with the examination of a person by registered medical practitioner before whom he is produced under sub-section (1) of section 129A. Rule 4 provides for

the manner of collection and forwarding of blood specimen and Rule 5 deals with certificates of tests of “sample blood”. All these rules deal with medical examination of a person who is produced before a registered medical practitioner under sub-section (1) of section 129A. To an examination to which section 129A does not apply, the rules would have no application. The law not having prescribed a particular method of submitting specimen of blood collected from an accused person when blood has been collected before any investigation has started, it is unnecessary to consider the argument whether the expression “duly admitted” used in section 510 of the Code of Criminal Procedure means merely in the manner prescribed by rules in that behalf or as pointed out by the learned Sessions Judge, submitted after taking adequate precautions for ensuring its safety and for securing against tampering. In the present case, the blood specimen was collected by Dr. Rote and thereafter it was handed over to the police officer on demand by him and ultimately submitted to the chemical examiner for his examination, it would, in our judgement be regarded as “duly submitted”. 13.6.5 Inadmissible Reports

In the present case all that the report of the chemical examiner says is that the concentration of alcohol in the sample of the blood analysed by him was 0.191 per cent. Now there are several methods for determination of alcohol in human blood. As pointed out in Taylor’s Principles and Practice of Medical Jurisprudence, Volume II, page 446, the panel of the Royal Institute of Chemistry after considering many methods of investigation including the principal ones in use and as a result of collaborative work on selected procedure by a group of experienced analysts, favours the following methods of testing: 1. A precisely described and amended Cavett (micro) method. 2. A detailed and slightly modified Kozelka and Hine (micro) method. 1. Ukhakolhe v. State of Maharashtra, 1963 (2) Cri LJ 218 (SC).

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According to the panel, these two methods should be recognized as the official methods for court work. In the present case the court is not told which method of testing was employed by the chemical examiner— whether it was one of the methods mentioned above or a different method altogether. If the method of testing employed by the chemical examiner was not one of the methods mentioned above, it would be a question for consideration how far the method employed by the chemical examiner was a reliable method and the result of his analysis could be depended upon for arriving at a particular conclusion. Even if the method of testing employed by the chemical examiner was one of the methods mentioned above, it is essential that the court should know which one of these methods it was that was employed by the chemical examiner. As observed in Taylor’s book at page 447 “the Cavett method cannot be used if ketonic bodies are present and it is essential, therefore, that preliminary tests for these substances should be made according to certain methods, whereas the presence of ketonic bodies does not interfere with the procedure in the Kozelka and Hine method. If the Cavett method was used by the chemical examiner, it would have to be ascertained whether any preliminary tests for ketonic bodies were made and what was the result of those tests. The presence of ketonic bodies

would interfere with the procedure followed in the Cavett method and affect the correctness of the result. Apart from this requirement, Taylor's book also lays down the following precautions which must be taken in the Cavett method. Note 1

It is essential to ensure that the small Erlenmeyer flask and stopper are thoroughly cleaned with hot chromic acid and rinsed at least six times with tap water and twice with distilled water. Dry both flask and stopper in an air oven. Grease must not be used on stoppers for lubrication merely damp the part of the stopper that fits in the top of the flask with distilled water and ensure that the water does not enter the flask. Note 2

As this is a micro method, it is essential to take the special precautions that are common in such work. The laboratory itself must be clean, and free from dust, and exceptional care in such matters must be taken. It is essential that the distilled water should be freshly distilled into a clean glass vessel. Ordinary laboratory distilled water is likely to give falsely high results. Again the court is not told whether the Kozelka and Hine method was employed by the chemical examiner and if so, whether these precautions were observed. The court is not even told as to what was the quantity of blood tested by the chemical examiner. The report of the chemical examiner is silent as to the reagents. Though the Cavett method as well as the Kozelka and Hine methods are elaborate as appears clearly from the description of these methods given in

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Taylor’s book, the report does not say a word as regards the process actually carried out by the chemical examiner for arriving at the concentration of alcohol in the blood of the accused nor does it contain any factual data revealed as a result of the process employed by the chemical examiner. Brevity seems to be the only merit of the report. The report contains nothing more than the mere ipse dixit of the chemical examiner that the concentration of alcohol in the blood of the accused was 0.191 per cent., there is no other evidence to show what was the concentration of alcohol in the blood of the accused and in that event the prosecution must be held to have failed to establish that the concentration of alcohol in the blood of the accused was not less than 0.05 per cent. The prosecution cannot rely on the presumption under section 66(2) of the Act and without the aid of the presumption, the prosecution must obviously fail.! 13.6.6 Reports Admissible

It is most urged by the petitioner’s counsel that Exhibit P-5 the chemical examiner’s report, does not contain any data or particulars which are necessary to help the court in accepting the opinion; it merely states that the bottle contained alcoholic content 21.9 per cent. v/v at 60 F. The petitioner has relied on Prabhu Babaji Navee v. State of Bombay. In that decision their lordships have held that it is the chemical examiner’s duty to indicate the number and extent of blood stains found on the clothes sent to him for examination. In my opinion, this decision is not of any assistance of the petitioner. That was a case of bloodstains found on the clothes of the accused person and not a case concerning the report sent by the chemical examiner of the analysis of percentage of alcohol contained in the article sent to him for examination. Further it may be noted that their lordships did not say that because of the defects pointed out by them, the chemical examiner’s reports not giving a detailed description is inadmissible. In Suleman Usman Memon v. State of Gujarat?, it has been held that the report of the chemical examiner must show the tests or experiments performed by him, the factual data revealed by such tests or experiments and the results leading to the formation of the opinion from such factual data; otherwise, the report would have no value as a piece of evidence. This judgment of a single judge has not been approved by a Bench decision in State v. Ramsingh Desasingh.* Chainai, C.J. speaking for the Bench has stated: The court cannot refuse to consider the evidence furnished by a certificate of the chemical examiner or assistant chemical examiner issued under section 129A of the Bombay Prohibition Act, 1949, merely because it does not mention the data on the basis of which the chemical examiner arrived at the percentage of alcohol mentioned in his certificate or because he has not given the reasons for his conclusion. If the court feels that it should have more information in order to 1. Suleman v. State of Gujarat, 1961 (2) Cri LJ 78 (Guj). Also see State v. Bhausa, 1962

(2) Cri LJ 466; Ram Singh Dessa Singh v. State of Maharashtra, AIR 1963 Bom 68; Mahadevayya v. State of Mysore, 1966 Cri LJ 270 (Mys). AIR 1956 SC 51. AIR 1961 Guj (20). N Ww =AIR 1963 Bom 68: 64 Bom LR 451.

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satisfy itself about the correctness or otherwise of the certificate, the court should summon the chemical analyser or ask the prosecution to summon and examine him. But without examining the chemical’ analyser, the court would not be justified in holding that the charge against the accused has not been proved, merely because the certificate issued by the chemical analyser only mentions the percentage of alcohol found in the blood of the accused and does not give any other

particulars.

Following, with respect, the decision reported in 64 Bom LR 451: AIR 1963 Bom

68, I hold

that the absence

of data in Exhibit

P-5 does

not make

it

inadmissible in evidence. It was open to the petitioner if he wanted to have some more details or particulars about the report to request the court to summon the chemical examiner for cross examination. The petitioner has not done so and he cannot now contend that the report has no evidentiary value. With regard to the question of delay in the examination of the bottle, this is not a question of law which could be agitated before this court in a revision petition. The offence was committed on 14-7-1962 and the bottle was immediately seized and sealed in the presence of panchas. The same was sent to the chemical examiner on 27-7-1962. The fact that the report of the chemical examiner was received long after this, does not in any way affect the value of the

report of the chemical examiner.’ 13.6.7 Intoxication 1. In order, therefore, to arrest the accused, he must have been in a state of

intoxication while he was in Nagercoil on the night of 16-6-1924. Intoxication or state of intoxication is not defined in the Act; and so, we have to look to its

meaning through authoritative English dictionaries. In the Encyclopaedia Britannica, “Intoxication” is defined to be as poisoning, whether by drug or liquor or other toxic substances, and hence, the condition of the nervous system produced by excessive drinking of alcohol. In the absence of any specific definition of this word in the statute in which the term is used, the word “intoxication” applies only to the excessive use of intoxicating liquors or drugs. What is mentioned in the section is that, if any one is seen ‘in a state of intoxication’ in a prohibition area, he is said to have committed an offence. The

state of intoxication may be taken to be practically equivalent to a state of drunkenness, so that the person intoxicated was incapable of knowing the consequences of his action. By reason of intoxication, if a person is capable of knowing the nature of the act done, at the time he was under the influence of the alcohol his act is not considered to be an offence under the Penal Code (vide section 74 of the Travancore Penal Code).

So, what is necessary to be found out in this case is whether the accused was in a state of intoxication when he was said to have been taken into custody by P.W. 8. I shall refer later on to the extremely suspicious circumstances under which P.W. 8 himself, a head constable in mufti, came and took the accused into

1. Mahadevayya v. State of Mysore, 1966 Cri LJ 270 (Mys). Also see Ramsingh Dessa Singh v. State ofBombay, AIR 1963 Bom 68.

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custody. P.W. 7, the inspector of police who investigated the case, had sworn in clear terms that his investigation revealed that the accused had taken brandy while he was in Trivandrum and before he got into the bus for Nagercoil. This bus started from Trivandrum at about 8 P.M. and it was an ordinary bus. It reached Mennakshipuram at 11-15 P.M. that day. It was at 12.50 the same night that P.W. 8 was said to have seen the accused standing at the gate of the Raghuvilas Hotel smoking a cigarette. So, not less than five hours must have elapsed since he had taken brandy. There was absolutely no case or suggestion that the accused had brought any brandy and took it in Nagercoil, just before he was taken into custody. There was no necessity to speculate on that point, as the prosecution had no such case. The poisoning by alcohol is dealt with exhaustively in Taylor’s Medical Jurisprudence, Volume II, pages 535 and 536,1948 edition. The relevant portion is quoted below: Ethyl alcohol is produced by the fermenting action of yeast on sugars, and is concentrated by distillation. The percentage of absolute alcohol in various beverages is approximately es under taking round figures without regard for precise accuracy: Spirits, such as whisky, brandy, gin and rum, contain about 40 per cent. of alcohol. Fortified wines, such as port and sherry, contain about 20 per cent. of alcohol. Natural wines, such as claret and burgundy, contain about 10 per cent. alcohol. Strong beer contains about 5 per cent. ofalcohol. A “large whisky”, which should be half a gill (2 1/, ounces), contains therefore 1 ounce, or 30 c. cm., of absolute alcohol, and the same amount will be present in a pint of strong ale, half a pint of claret, or a quarter of a pint of port. The absorption of alcohol from the stomach and small intestine begins soon after ingestion. The rate of absorption is dependent upon a number offactors, the most important being the presence or absence offood in the stomach. Food delays absorption and the delay is most marked in the presence of fat and protein (Haggard and Greenberg, 1934: Mellanby, 1919). The concentration of alcohol is important, and generally the stronger the drink the more rapid is its effect. Absorption is usually complete within the first hour, so that after a single dose the maximum concentration in the blood is reached within the same period. After absorption,

the alcohol is distributed

more or less evenly

throughout the tissues, with the exception of the bones and fat. Thus by estimating the amount of alcohol in the blood it is possible to calculate the approximate amount which must have been ingestec’. About 90 per cent. of the alcohol absorbed is oxidized and the remaining 10 per cent. is excreted, mainly by the kidneys and the lungs. At no stage in its oxidation is alcohol stored in the tissues and its disappearance from the blood takes place at a fairly uniform rate, which for rough calculation may be placed at 10 c. cm. per hour (0. 185 c. em. per kg. of body weight, Mellanby, 1919). It thus takes about three hours for the blood to be cleared of alcohol after the

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ingestion of a single large whisky. The excretion by the kidney is of importance in that at the time of secretion the urine has a similar concentration as that in the plasma at the same time, though higher than that in the blood as a whole, the ratio being approximately 1.3 : 1. The concentration in the blood varies, however, increasing during absorption and then decreasing with oxidation. It follows, then that the concentration of alcohol in a given sample of urine will correspond’ with the average concentration in the blood during the time the urine has been collecting in the bladder (Smith and Stewart, 1932). If the concentrations in the urine and blood are estimated some time after ingestion, when the alcohol in the blood has fallen through oxidation, it may be found that the urine alcohol is at a higher level. Urine examination may, therefore, be used instead of blood examination and gives a reasonably accurate idea of the total alcohol in the body. A considerable number of investigations have been made in an endeavour to co-relate the alcoholic concentration in the blood with the behaviour of the individual.

It is generally agreed that with concentrations below 0.05 per cent., there is little change to be observed on clinical examination: at 0.10 per cent. a number show mild symptoms and quite possibly some more decided symptoms. Between this level and 0.2 per cent. the number showing decided symptoms of intoxication increases, and at the latter figure it is to be expected that practically all will be diagnosed clinically. The critical concentration seems to lie at or about the 0.15 level and any person with this amount in his blood can be considered to have imbibed a dangerous amount of alcohol. With increasing concentration the symptoms become more intense and at concentrations beyond 0.2 per cent. up to 0.5 per cent. there is likely to be marked incoordination, coma and possibly death.

Knowing that the concentration in the blood is the same as that in the tissues, we may translate these percentages into amounts drunk as follows. When the amount in the blood is equal to 0.15 per cent., the person has ingested as a minimum within a few hours of the test 1.5 c.c. of absolute alcohol per kilogramme of body weight. In a man of ten stones this would amount to about 3-1/2 ounces of absolute alcohol, or about 1-1/2 gills of whisky at proof. “Effects of Alcohol’. The only acute effect of alcohol which is of any interest is its effect on the central nervous system. Its first effect appears to be a depression of the highest evolutionary centres, the centres regulating the conduct, judgment, and self-criticism. It passes progressively downwards through the centres of earlier evolutionary origin until the motor centres are reached and finally it depresses and paralyses the vital centres in the medulla. There is first a feeling of well-being and a certain slight excitation. The actions, speech and emotions are less restrained, due to a lowering of the inhibition normally exercised by the higher centres of the brain. With this there is increased confidence and a certain carelessness of consequences. This implies a lack of self-control, which is one of the first things observed after alcohol, and which is a constant feature of alcoholic poisoning.

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When the narcosis has penetrated more deeply the sense perceptions and skilled movement are affected. The increased loss of the inhibitory action of the higher centres causes an alteration in the conduct of the individual according to the dictates of his inherent desires and emotions. This accounts for the fact that an individual may become morose, gay, irritable, excitable, pugnacious, sleepy, and so on, according to the dominant impulse which have been unleashed by the drug. The reaction times are somewhat lengthened, and there is a certain clumsiness and in-coordination in the finer and more skilled movements shown by slight alteration in speech and in the finer finger movements. This passes into a third stage, where the motor and sensory cell are deeply affected; speech becomes thick and slurring; coordination is markedly affected, causing the patient to stagger and possibly to fall. Finally a stage is reached where the narcosis affects the whole nervous system, and the patient passes into a state of coma with stertorous breathing, indicating a commencing paralysis of the respiratory centre. The coma gradually lightens into a deep sleep, and the patient if left alone, usually recovers in eight to ten hours, and wakes up with gastro-intestinal irritation, and usually nausea, vomiting and severe headache. If the coma continues for more than ten hours, the prognosis ts bad. The accused was not in any condition of coma when P.W. 8 saw him. According to the prosecution, it was also more than five hours since he had taken the liquor. He could not, therefore, have been in a state of intoxication at

12.50 a.m. P.W. 7 himself stated that the accused pleaded before him to let him free. That would not be the condition of a person who was in a state of intoxication. The tests, to find out whether a person is intoxicated or not, are

given at pages 613 and 614 of Modi’s Medical Jurisprudence and Toxicology. They are given below: In order to ascertain whether a particular individual is drunk or not a medical practitioner should bear the following points in mind: 1. The quantity taken is no guide. 2. An aggressive odour of alcohol in the breath, unsteady gait, vacant look, dry and sticky lips, congested eyes, sluggish and dilated pupils, unsteady and thick voice, talks attrandom and want of perception of the passage of time are the usual signs of drunkenness. 3. Drunkenness does not come within the cognizance of the police, unless the man is dangerous to himself or to his property or that he is annoying or dangerous to others. A special committee of the British Medical Association was appointed to consider the question of the definition and diagnosis of drunkenness. This committee arrived at the following conclusions and recommendations in regard to persons accused of being “drunk”: 1. That the word “drunk” should always be taken to mean that the person concerned was so under the influence of alcohol as to have lost control of his

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faculties to such an extent as to render him unable to execute safely the occupation on which he was engaged at the material time. . That it is desirable that a medical practitioner should base his opinion on the following considerations: Whether the person concerned has recently consumed alcohol. Whether the person concerned is so much under the influence of alcohol as to have lost control of his faculties to such an extent as to render him unable to execute safely the occupation on which he was engaged at the material time. Whether his state is due, wholly or partially, to a pathological condition which causes symptoms similar to those of alcoholic intoxication, irrespective of the amount of alcohol consumed.

. That in the absence of any pathological conditions a person is definitely under the influence of alcohol if there is a smell of alcoholic liquor in the breath and or in the vomited matter (1fany) provided there is a combination of all or most of the following groups of signs or symptoms: A dry and furred tongue, or conversely, excessive salivation. Irregularities in behaviour, such as insolence, abusive language, loquacity, excitement or sullenness, and disorder of dress. Suffusion of the conjuctince and reaction of the pupils. The pupils may vary from a state of extreme dilatation to extreme contraction and maybe equal or unequal. In the opinion of many police surgeons when alcohol in toxic quantity has been consumed, the pupil reflex to ‘ordinary light’ is absent, whereas the pupil will contract in ‘bright light’ and remain contracted for an abnormally long time, indicating the delayed reaction of the pupil. Loss or confusion of memory, particularly as regards recent events and appreciation of time. Hesitancy and thickness in speech and impaired articulation. Tremors and errors of coordination and orientation. . That there is no single test by itself which would justify a medical practitioner in deciding that the amount of alcohol consumed had caused a person to lose control of his faculties to such an extent as to render him unable to execute safely the occupation on which he was engaged at the material time. A correct conclusion can only be arrived at by the result of the consideration of a combination of several tests or observations such as: General demeanour;

State of the clothing; Appearance of the conjuctince; State of the tongue; Smell of the breath; Character of the speech; Manner of walking, turning sharply, sitting down and arising, picking up a pencil or coin from the floor;

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Memory of incidents within the previous few hours and estimation of their time intervals;

Reaction of the pupils: Character of the breathing, especially in regard to hiccup. 5. That the following are the tests, upon which taken by themselves, little stress should be laid in deciding whether or not a person is under the influence of alcohol: Presence of tachycardia (rapid pulse); Repetition of set words or phrases;

Character of handwriting; Walking along a straight line; Failure of convergence of the eyes. In this case P.W. 6 to whom the accused had been taken had, even if what he said was true, subjected the accused only to a very perfunctory examination. The certificate, Ex. B., given by P.W. 6, stated that the accused was in a state of

drunkenness for the following reasons, viz., smell of brandy from nose, redness of his eyes, very rapid pulse and tremors of his hands. These findings are absolutely insufficient to hold that the accused was in a state of intoxication. Seeing the delicate position in which P.W. 7 (the inspector of police) and P.W. 6 (the medical officer) were put, they attempted to improve upon what they had stated in the earlier records. I do not think that it was proper on their part to resort to such methods, even though this was one of the earliest cases in the

prohibition area.' 2. He has strongly relied on the decision of the Supreme Court in Behram Khurshid v. Bombay State? which it has been observed as follows: The bare circumstance that a citizen accused of an offence under section 66(b) is smelling of alcohol is compatible both with his innocence, as well as his guilt. It is a neutral circumstance. The smell of alcohol may be due to the fact that the accused had contravened the enforceable part of section 13(b) of the Prohibition Act. It may well be due also to the fact that he had taken alcohol which fell under the unenforceable and inoperative part of the section. That being so, it is the duty of the prosecution to prove that the alcohol of which he was smelling was such that it came within the category of prohibited alcohols and the onus was not discharged or shifted by merely proving a smell of alcohol.

Relying on this passage, the learned counsel for the petitioner contends that the mere fact that the petitioner was smelling of alcohol does not carry the prosecution case any further. It is a neutral circumstance and it is compatible both with his innocence as well as his guilt. So, he contends that in this particular case, the prosecution has not made out a case against the petitioner that he was drunk. 1. Narayanan

Nair

v.

State,

1952

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LJ 1095

(Travancore-Cochin).

Also

see

Shamnugam (in re:), 1954 Cri LJ 486 (Mad); Satya Rao v. State of Andhra Pradesh, 1954 Cri LJ 1529 (Andh); Palaniswamy (in re:), 1956 Cri LJ 370 (Mad). L

Alc 1950 Kole

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It may be pointed out that in the very next paragraph of the said judgment quoted above, their lordships of the Supreme Court observes as follows: The onus thus cast on the prosecution may be light or heavy according to the circumstances of each case. The intensity of the smell itself may be such that it may negative its being of a permissible variety. Expert evidence may prove that consumption in small doses of medicinal or other preparation permitted cannot produce the smell or a state of body or mind amounting to drunkenness.

Their lordships have stated that the intensity of the smell itself may be such that it may negative its being of a permissible variety. Expert evidence may prove that consumption in small doses of medicinal or other preparations permitted cannot produce the smell or a state of body or mind amounting to drunkenness. So from this it is clear that where there is expert evidence which proves that the consumption is not due to medicinal or other preparations, their lordships pointed out, that it is permissible for the prosecution to rely upon it and in such a case the onus cast on the prosecution is duly discharged. The learned government pleader has argued that in the instant case the prosecution has proved the case against the petitioner and discharged the onus which lies on it. The case of the petitioner was that he had taken B.G. Phos and symptoms found on him were due to the fact that he had consumed that medicine. The learned government pleader argues that the evidence of the doctor P.W. 1 in this case definitely negatived the plea that the symptoms are due to his taking B.G. Phos. P.W. 1. Dr. Sangane Gowda when examined has stated that when the petitioner was produced before him he observed the following symptoms: . Breath smells of alcohol. . Pupils dilated and eyes are congested

Pulse 92 per minute. Incoherent speech.

uk YNStaggering

gait. In the opinion of the doctor, the petitioner has taken alcohol and he was also intoxicated. He further stated that the petitioner was incapable of taking care of himself. In his cross-examination he has stated as follows: Cy I smelt only alcoholic smell. B. G. Phos. contains 17 per cent. of alcohol. Ifone takes in excess quantity he is not intoxicated. If the whole bottle is taken all the symptoms in a modified form exist. But he cannot have the smell of alcohol. Other symptoms will be there. A bottle of B. G. Phos contains 4 ounces of tonic. The intoxication lasts for 12 hours. It is clear from the evidence of the doctor that if a person takes the whole bottle of B.G. Phos, all the symptoms in a modified form will exist. He further states that if one takes in excess quantity of B.G. Phos he will not be intoxicated. There is therefore force in the contention of the learned High Court government pleader that the evidence of the doctor, definitely establishes that the symptoms found on the petitioner are not due to the fact that he had taken B.G. Phos. | am, therefore, of the opinion that the evidence of the doctor definitely disproves and

Phy

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negatives the case of the petitioner that he had taken B.G. Phos and the symptoms found on him were due to his taking excess dose of B.G. Phos. It follows from this that symptoms found on the petitioner were due to his taking alcohol and not B.G. Phos. I am, therefore, of the opinion that there is no merit in

the contention urged by the learned counsel for the petitioner. The prosecution has established the charge against the petitioner.’ 3. Mr. Bhatt next urged that if blood test rules are not properly followed, no presumption would be raised. He submitted that there is no evidence to show that the medical officer who extracted blood had used a sterilised syringe or that he had not applied alcohol or cleaned with sterilised water the skin of the accused before extracting blood. He urged that unless the medical officer categorically stated that he had followed all the rules scrupulously, no presumption could be made that he in fact had followed the rules. He, therefore, urged that these rules being mandatory, if they were not followed, no legal presumption could be made under section 66(2) of the Act. In support of his submission, Mr. Bhatt referred to the case of Vrajlal Damodar v. State of Gujarat’, it

was observed as under: It is, however, essential for the prosecution to prove two requirements prescribed by rule 4 (1) viz., that no alcohol was allowed to touch the body of the person from whom the blood sample was collected and that the phial in which the blood sample was transferred from the syringe contained anti-coagulant and preservative. In my opinion, these two requirements constitute the essence of rule 4(1) and are mandatory having regard to the importance of complying with these directions and the nature and the purpose of such requirement. The next question that arises is as to how the prosecution can establish that the aforesaid requirements were conformed to. It would be sufficient for the doctor to say that he had complied with the requirements and followed the procedure prescribed by rule 4 (1). General evidence of this character can be accepted as adequate to establish that the requirement was conformed to. Or, in the certificate issued by the doctor this fact of having complied with the requirement of rule 4(1) could be incorporated. These are two of the several possible ways of establishing that the rule was complied with. In the present case, the doctor has not been examined. For ought we know he may not have been conscious of the statutory requirement of rule 4 (1). The certificate issued by the doctor, Ex. 5 also does not contain any statement that the requirement of rule 4 (1) was present in the mind of the doctor who collected the blood sample or that he had complied with any such direction.

There can be no quarrel with the propositions laid down by my learned brother Thakkar, J., and with respect I am in entire agreement with his observations. But it should be remembered that in the case before him the doctor was not examined and the certificate did not disclose that the doctor had

1. Thimmiah v. State of Mysore, 1967 Cri LJ 785 (Mys). Also see State of Mysore v. Billavara Kukkappa, 1960 Cri LJ 1475 (Mys); Harendra Nath Dass v. State of Assam, 1967 Cri LJ 1099 (Assam); Palani Goundon (in re:), 1957 Cri LJ 976 (Mad); Behram Khurshid Pessikaka v. State of Bombay, 1955 Cri LJ 215 (SC).

2. (1971) 12 Guj LR 69.

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followed the provisions of rule 4 (1). In the instant case, the doctor has been

examined and the doctor has categorically stated that he extracted 5 c.c. of venous blood and collected it in a phial as per rules. My learned brother Thakkar, J., has stated that it would be sufficient for the doctor to say that he had complied with the requirements and followed the procedure prescribed by rule 4(1). I, therefore, fail to understand how this ruling would help the accused. In my opinion, it is not necessary for the doctor to repeat parrot like the provisions contained in rule 4 (1). If the doctor is aware of the provisions contained in the Bombay Blood Test Rules and if the doctor in his evidence before the court says that he had extracted blood as per the rules and if there is no cross-examination to the contrary, it cannot be presumed that the doctor had not followed the mandatory provisions contained in Blood Test Rules particularly rule 4 (1). Similarly the other case referred to by Mr. Bhatt would not help him. In

the case of Madhavarao Bhagwandas Kharade v. State of Gujarat', it was observed that:

the presumption under section 66(2) of the Bombay Prohibition Act cannot be drawn unless the mandatory provisions of Rules 4 and 5 of the rules have been scrupulously followed. The legislature must have in its wisdom provided the period of seven days for the blood sample to reach the testing authority with a view to see that there may not be any tampering with the blood sample collected or that the alcohol contents of the sample of blood may not increase ifit was kept in possession of the medical officer or his subordinate for an unduly long period. With respect I agree with the observations made therein. In the instant case, as already observed earlier, the medical officer who extracted blood was examined and he has stated that he had extracted the blood and collected it ina phial as per rules. Therefore, whatever provisions are contained in these rules were followed by him. It is not necessary for him to enumerate the rules in seriatim in his examination before the court. So far as the second objection taken in the case of Malahavarao Bhagwandas Kharade would not be applicable in the present case because the blood sample was sent to the C. A. on the same day. There was no delay on the part of the medical officer in sending the phial to him. In my opinion, therefore, both the rulings referred by Mr. Bhatt cannot help

him. 4. As observed by this court in State v. Sheshappa®, there is nothing brutal or offensive or shocking in taking blood sample under the protective eye of law. Modern community living requires modern scientific methods of crime detection lest the public go unprotected. Such scientific tests are necessary for proving the guilt as well as innocence of the accused. This is one of the well recognized methods adopted in the crime detection all over the world. In this context a reference could usefully be made to the following observations in para 9 of the said judgment: 1. (1971) 12 Guj LR 956: 1971 Cri LJ 1626. 2. State of Gujarat v. Ibrahim Mohd, 1975 Cri LJ 1089 (HC). 3. AIR 1964 Bom 253: 1964 (2) Cri LJ 523.

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We have pointed out before that the section itself contains limitations with regard for extracting blood. The question as to whether the conviction of to the procedure a person based on the result of the involuntary blood-test taken after extracting blood deprived a person of his liberty without due process of law guaranteed by the Fourteenth Amendment of the American Constitution arose for consideration in Breithaupt v. Abram, (1957) 352 US 432: 1 L.Ed. 2nd 448. The petitioner in that case while driving a pickup truck was involved in a collision with a passenger car. Some of the passengers of the car were killed and the petitioner was seriously injured. A print whisky bottle almost empty, was found in the glove compartment of the truck. The petitioner was, therefore, taken to a hospital and while he was lying unconscious, the smell of liquor was detected on his breath. On a request by the patrolman, and attending physician, while the petitioner was unconscious, withdrew a sample of about 20 cubic centimetres of blood by use of a hypodermic needle. Subsequent laboratory analysis showed that the blood contained about. 17% alcohol. The petitioner was thereafter charged with involuntary manslaughter and in the trial, testimony regarding the blood test and its result, was admitted into evidence, despite the petitioner’s objection. This testimony included the evidence of an expert that a person with 17% alcohol in his blood, was under the influence of intoxicating liquor. Although he was convicted, the petitioner did not appeal, but later he sought release from his imprisonment by a petition for a writ of habeas corpus. It was contended that the conduct of the state officers offended the “sense of decency” and that it was “brutal” and “offensive” and was therefore “shocking” to the “conscience”. It was also said that the conduct did not comport with traditional ideas offair play and decency. This argument was not accepted by a majority of the Supreme Court of the U.S. Mr. Justice Clark who delivered the opinion of the majority observed as follows: there is nothing ‘brutal’ or ‘offensive’ in the taking of a sample of blood when done, as in this case, under the protective eye of a physician. To be sure, the driver here was unconscious when the blood was taken, but the absence of conscious consent, without more, does not necessarily render the taking a violation of a constitutional right; and certainly the test administered here would not be considered offensive by even the most delicate. Furthermore, due process is not measured by yardstick of personal reaction or the sphygmogram of the most sensitive person, but by that whole community sense of “decency and fairness”. That has been woven by common experience into the fabric of acceptable conduct. The blood test procedure has become routine in our everyday life. It is a ritual for those going into the military service as well as those applying for marriage licences. Many colleges require such tests before permitting entrance and literally millions of us have voluntarily gone through the same routine in becoming blood donors. The majority opinion, therefore, was that a blood test taken by a skilled technician is not such “conduct that shocks the conscience”. The court also observed that this may not apply to cases where there is indiscriminate taking of blood under different conditions or by those not competent to do so. It was also observed:

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“Modern community living requires modern scientific methods of crime detection lest the public go unprotected”. Mr. Justice Clark in conclusion made the following very pertinent observations: As against the right of an individual that his person be held inviolable, even against so slight an intrusion as is involved in applying a blood test of the kind to which millions of Americans submit as a matter of course everyday, must be set the interests of society in the scientific determination of intoxication, one of the great causes of the mortal hazards of the road. And the more so, since the test likewise may establish innocence, thus affording protection against the treachery ofjudgment based on one or more of the senses.

This was the view taken by the Supreme Court of U.S. even when the challenge was under the Due Process Clause. So far as our Constitution is concerned, the courts are not required to go so far and determine whether a certain procedure established by law was brutal or offensive or shocking to the conscience and was, therefore, unreasonable. Infringement of personal liberty or life, if in accordance with the procedure established by law, is not justiciable. In the Prohibition Act, which, as we have pointed out earlier, is brought on the statute book to effectuate the policy of Prohibition, the taking of blood is empowered to be done only by a registered medical practitioner. It is thus under the protective eye of the law. It is intended to help the scientific determination of intoxication and the results of the test may as well prove innocence as the guilt of the person. We are, therefore, unable to accept the view taken by the learned magistrate that section 129A of the Act is ultra vires article 21 of the

Constitution.! 5 Apart from the oral evidence given by the witness of their impression regarding the accused having been drunk at the time of the driving, the prosecution case in that connection rests on the certificate given by the medical officer. Obviously, no blood test was carried out, nor was any urine test taken. In such circumstances Mr. Gangal strongly relies upon the decision of the Supreme Court quoted above. In that case also, the appellant was convicted of rash and negligent driving mostly on the basis of the certificate from the medical officer. The certificate showed alcoholic smell, unsteady gait, dilation of pupils and incoherent speech. The finding of the High Court that the appellant was drunk, was not confirmed by the Supreme Court by making the observations as follows: It seems to us that on this evidence it cannot be definitely held that the appellant was drunk at the time the accident occurred. While arriving at this conclusion, the learned judges of the Supreme Court took into consideration that the symptoms of gait being unsteady could very well be if a person is in nervous strain. The Supreme Court also observed that mere smelling of alcohol would not show that a man is under the influence of drinking. Unfortunately the Supreme Court has not spoken about the competitive reasons for holding dilations of pupils or the incoherent speech as 1. State of Maharashtra v. Sheshappa, 1981 Cri LJ 133.

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not necessarily due to a person being under the influence of drink. It appears that in the opinion of the Supreme Court, when urine test and the blood test were not done symptoms mentioned in the certificate were not conclusive of proving that the appellant was, under the influence of drink. | suppose Mr. Gangal can take benefit of this ruling although an unhappy feeling arises whether all the four symptoms taken together do or do not always amount to a person being under the influence of drink. There is no reliable oral evidence in addition to the certificate of the medical officer for speaking of the behaviour or of the actions of the present revision petitioner for concluding that he was under the influence of drink. As the matter stands, in view of the ruling quoted above, it would be difficult to maintain the finding that the petitioner was driving under the influence of drink. Consequently, the conviction under section 117 of the Motor Vehicles Act, will

have to be set aside.! 13.6.7.1 Intoxication as defence 1. And even if one were to take it that the accused persons had taken some liquor the question will still be whether the case falls under section 86, Indian Penal Code, which provides: 86. In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as ifhe had the same knowledge as he would have had ifhe had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.

The facts found in the present case do not bring the case under section 86, Penal Code and the finding of the learned judge is opposed to the law as laid down in ‘1920 A. C. 479 (A)’ which was approved of by the Lahore High Court in Sheru v. Emperor,* where it was held that evidence on drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequence of his acts.* 2. But there is one important factor in this case which we think may be taken as an extenuating circumstance for giving a lesser sentence. P.W. 9 says in his evidence that all the accused appeared to have been drunk. It is also in the evidence of other witnesses that the 1st accused was fully drunk and that he sat on a boulder by the side of the dead body and even taunted P.W. 1 when handing over the ring of the deceased to him. If they primed themselves with drink for the purpose of committing the offence, that circumstance cannot obviously be proved for mitigating the punishment. But the accused were manufacturing toddy illicitly and they must have been getting drunk every day. One of the previous incidents, which is 1. Prahlad v. State of Maharashtra, 1978 Cri LJ 829. 2. AIR 1926 Lah 232.

3. Ajmer Singh v. State of Punjab, 1955 Cri LJ 305 (Punj).

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901

suggested to be the motive for the offence had taken place two months prior to the incident and another 10 days prior to that. There is no specific evidence that they had prepared themselves and taken a drink to strengthen their minds, to commit the murder. It is more likely that after they got drunk and when they saw the deceased going to the field the night, hey got the idea of doing away with him in a drunken state of mind and pursued him with weapons, which they must have had in their garden and committed the murder.!

Under section 86 of Penal Code, the court had. together from the attending general circumstances of the case the intents or the intention, paying due regard to the degree of intoxication. If the man was beside his mind altogether for the time being, it would not be possible to fix him with the requisite intention. But if he had not gone so deep in drinking and from the facts it could be found that he knew what he was about to do, that rule that a man is presumed to intend the natural consequences of his act or acts will apply. Ordinary drunkenness makes no difference to the knowledge with which a man is credited. Intention in many cases in an inference from knowledge, but there may be cases in which a person

by reason of intoxication may under certain circumstances be incapable of knowing the nature of a particular act he commits, or that it is either wrong or contrary to law although his state of intoxication may not be such as to render him incapable of knowing the nature of his acts. In such cases, in determining the quality of the offence, evidence may be necessary of a specific state of mind which must be found as a fact and not assumed. Where in a case in which accused was charged under section 302, apart from the bold statement in her cross-examination by a prosecution witness that the accused was heavily intoxicated and the fact that there was no evidence either positive or circumstantial to support the inference that accused was beside his mind due to intoxication, the case came squarely under section 302 and not

under section 304.7 13.6.8 Random Sampling

In this appeal by the State of Gujarat it is contended that section 98 applies to the case. That section reads as follows: Whether any offence punishable under this Act has been committed, (a) any intoxicant, hemp, mhoma flowers, molasses, materials, still, utensil, implement or apparatus in respect of which the offence has been committed, shall be confiscated by the order of the court. *

*

*

*

+

The short question therefore is whether it can be said that in respect of the 1500 and old bottles, an offence punishable under the Prohibition Act had been committed. It is no doubt true that the person who was charged with committing an offence was found not guilty, but the question is not whether the accused has 1. Boya Burranna (in re:), 1955 Cri LJ 81 (AP). Also see Suruttayam v. State of Madras,

1954 Cri LJ 672 (Mad); Basdev v. State of Pepsu, 1956 Cri LJ 919 (SC); Prabhunath v. State of Uttar Pradesh, 1957 Cri LJ 1056 (All).

2. State of Orissa v. Matuba Barik, 1978 Cri LJ 260.

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been successfully brought to book, but whether the offence in respect of the property has been committed or not. There is distinction between the two. An offence may be demonstrated to be committed although the accused who committed it may not be successfully prosecuted. We may given an example. Suppose in a house a vast quantity of contraband opium is found. The householder may get off because the opium was found from a place which was open and had access to strangers. He may get the benefit of doubt and be acquired, but it is clear that in so far as the opium is concerned, an offence must be deemed to have been committed, and if it is proved that the contraband article was opium, it would be remarkable that the order should be hat the opium be returned to the householder. In these circumstances, on proof that the contraband article in respect of which an offence has been committed is proved to exist, he obvious course would be to confiscate it to the state. In the present case, the two bottles which were sent to the chemical examiner were said to contain alcohol although there was some doubt in the mind of the magistrate as to whether there was no chance of any malpractice. Be that as it may, here are the other bottles intact. There is some evidence to show that they were in the original packing and were a proprietary product. The manufacturer came as a witness and deposed that the liquids were bottled by him as a proprietary manufacture. In these circumstances, it would be fair to assume that all of them were of the same kind as the ones which were sent for chemical examination. However, an examination of random samples can be made and if they satisfy the court that the bottles contain contraband stuff the bottles can be confiscated. The order of the High Court is thus set aside, but instead of restoring the order of

confiscation we order hat a few bottles at random should be analysed and if contraband stuff against the Prohibition Act is found the whole stock shall be confiscated.’ 13.6.9 Correct Sampling If three separate samples were ake from three different bottles and one sample was sent to the public analyst, which was taken from one bottle and another sample was kept or the court, which was taken from another bottle and another sample given to the accused was taken from another bottle and if the public analyst comes to the conclusion that the sample is adulterated, there is every possibility that the 3rd sample which is with the accused or the second one which is sent to the court need not be adulterated. Therefore, it is proper that the three samples have got to be taken from one container and one to be sent to

the public analyst and one to be kept for the court and the third one to be given

to the accused.”

CBM 1. State of Gujarat v. Chinubhai Gopaldas, 1968 Cri LJ 1478 (SC). Also see Gobardhan v. State, 1959 Cri LJ 13 (All); Madigo Boosena v. State, 1967 Cri LJ 1398 (SC); State of Madras v. Chinappa Pujary, 1952 Cri LJ 703 (Mad). 2. (1978) Cri LJ NOC 125.

Chapter 14

EXPLOSIVES SYNOPSIS

14.1 14.1.1

IMPORTANCE

Legitimate Uses

14.2 NATURE 14.2.1

Definition

14.2.2 Characteristics 14.2.3 Classification 14.2.3.1 According to speed 14.2.3.2 According to sensitivity 14.2.4

Primary Explosives

14.2.5 Secondary Explosives 14.2.6

industrial Explosive

14.2.7 Water Explosive 14.2.8

Explosive Emulsions

14.2.9

Military Explosives

14.2.10

Pyrotechnics

14.2.11

Propellants

14.2.12

Aerosol Explosive Mixtures

14.2.13

Nuclear Explosives

14.3 INDIVIDUAL EXPLOSIVES 14.3.1

Gunpowder

14.3.2

Nitroglycerine 903

904

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14.3.3

SCIENCE

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Nitrocellulose

14.3.4 Trinitrotoluene (TNT) 14.3.5 Picric Acid and Pictrates 14.3.6

RDX

14.23.7

HMX

14.3.8

PETN

14.3.9

Ammonium Nitrate (AN)

14.3.10

Primary Explosive

14.3.11

Fulminates

14.3.12

Lead or Silver Azide

14.3.13

Lead Styphnate

14.3.14

Tetracene (Tetrazene)

14.3.15

Dinol (DDNP)

14.4 EXPLOSIVE

DEVICES

14.4.1

Safety Fuses

14.4.2

Detonating Cord/ Fuse Cord

14.4.3

Primers

14.4.4

Military Detonators

14.4.5

Commercial Detonators

14.4.6

Explosive Train

14.4.7

Grenade

14.4.8

Military Bombs and Shells

14.4.9

Miscellaneous

14.4.10

improvised Explosive Devices

14.4.11

Some Novel Initiation Modes

14.4.12

Throw-downs

14.4.13

Fuse Bombs

14.4.14

Percussion Car Bombs

14.4.15

Time Bombs

14.4.16

Letter Bombs

14.4.17

Transistor Bombs

14.4.18

Magnetic Bombs

14.4.19

Human Bomb

14.4.20

Fireworks (Pyrotechnics)

14.5

NON-EXPLOSIVE EXPLOSION

14.5.1

Accidental Explosions

14.5.2

Deliberate Explosions

AND

TRIALS

EXPLOSIVES

14.6 LOCATION AND COLLECTI ON 14.6.1 The Scene of Explosion(s) 14.6.2 Dispatch of Clues 14.6.3 Handling Live Devices 14.6.4 Evidence on the Culprit 14.6.5 Evidence in the Vehicle 14.6.6 Evidence at the Factory / Res idence 14.6.7 Disposal 14.6.8 Dispatch . 14.7 PROBLEMS 14.8 EVALUATION 14.8.1 Identification of Explosives fro m Debris 14.8.2 Separation or Extraction 14.8.3 Identification of the Explosive 14.8.3.1

Friction test 14.8.3.2 Impact test

14.8.3.3 Flame test 14.8.4 Individual Materials 14.8.4.1 Gunpowder 14.8.4.2

Gun cotton

14.8.4.3 Nitroglycerine 14.8.4.4

Trinitrotoluene (TNT) 14.8.4.5 Picric acid and picrates 14.8.4.6 RDX 14.8.4.7 PETN 14.8.4.8 HMX 14.8.4.9 Dynamite 14.8.5

Explosive Devices 14.9 CASE LAW 14.9.1 Offence 14.9.2

Non-dangerous Explosions 14.9.3 Identification

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Fig. XIV-1

AND

TRIALS,

EXPLOSIVES 14.1 IMPORTANCE Explosives are used in sabotage, political and communal troubles, terrorist activities,

murders,

dacoities,

intimidation,

suicides,

burglaries

and

in

encounters. Explosives sometimes cause accidents in their manufacture, storage and handling. The processes are always fraught with chances of accidental explosions. Non-explosive explosions also occur due to negligence, accident or criminal intent. The exact nature of these explosions is to be established to disprove or confirm the alleged origin. The abuse has increased tremendously in recent years because of: 1. Easy improvisation. . Little residual evidence left after the explosion. . Easy availability of the explosives or their components. . Panic and fear they create among the victim(s).

. Unpredictability. fF oO NN NN W . Sophistication in initiation has gone very high. Remote initiation or delayed time initiations are becoming common features. 7. They are effective in all sorts of crime. ¢ Fomenting political trouble. ¢ Sabotage. ¢ Murders. ¢ Bank robberies exploding cash chests. The abuse of the explosives by the criminals is viewed seriously and stern punishments are awarded to the miscreants. Extensive destruction and unpredictability of possible additional explosion make the work connected with explosion investigations highly dangerous. Terrorists of the eighties in Punjab and in the adjacent States and in the North Eastern States are abusing the explosives extensively and have claimed many a life. 14.1.1 Legitimate Uses Explosives have many legitimate uses:

1. Blasting rocks for constructing roads, railway lines, dams, tunnels, canals, pipelines and buildings. . Quarrying and mining work . Fireworks displays: coloured lights, sound signals. . Satellite and space craft propulsions. . Oil explorations. Oil fire control. fk Dna WON 907

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200 kg of high explosive was used to put off 62 days old oil fire of an oil well in Andhara Pradesh, only recently. (CH) Ammunition

.

. . .

Military explosives: bombs, smoke screen, tear gas. Drain blockage test Opening doors, cash chests, by criminals Heating food Lifting Welding

14.2 NATURE An explosive is a substance!, may be an element, a compound or a mixture, which is capable of exerting pressure on its surroundings on explosion/ transformation. The pressure is due to sudden creation and expansion of gases that are many times in volume than the substance (explosive). The increase in volume takes place due to extremely rapid physical, chemical or nuclear changes. The release of tremendous energy, with intense heat, expansion of

gases and flame, ordinarily, accompany the changes. The explosive substances that are commonly encountered in the criminal investigation, ordinarily, are chemical compounds or their mixtures. They have: is Chemical instability —The excessive nitrogen content of a molecule in the common explosives confers chemical instability, which promotes rapid decomposition. ) Oxygen.—To support rapid combustion of the fuel part of the explosive, oxygen is available in the molecule itself, in combined form. On decomposition the oxygen supports the combustion. Certain explosives like azides of metals do not contain oxygen. Here, the decomposition of the molecule provides sufficient gas (nitrogen) to give the desired sudden increase in volume. The usual combustion does not take place here. In mixture like gunpowder, potassium nitrate provides oxygen to the mixture. Other oxidants used are nitrites, chlorates, perchlorate, nitrates, permanganates, chromates and dichromates. Fuel.—Carbon, hydrogen and other elements including metals of the explosive substances or mixtures provide the fuel. They are converted into oxides.

Nuclear and thermonuclear explosions depend upon nuclear changes for their explosive action. Thus, unstable nucleus of an atom undergoes decomposition, generating high-speed particles (notably neutrons). They combine with other 1. The Explosive Substance Act, 1908. ‘Explosive Substance’ shall be deemed to include any material for making any explosive substance, also any apparatus, machine, implement or material used, or intended to be used or adopted for causing or aid in causing any explosion in with any explosive substance, also any part of such apparatus, machine or implement.

EXPLOSIVES

909

atoms and make them unstable. Thus a chain reaction is set up producing intense heat due to annihilation of matter. The surroundings expand suddenly and cause explosion. In thermonuclear reactions hydrogen gas (or other substance) is made to ‘fuse’ and form helium gas (or other substance). This is achieved at the temperatures given by nuclear decomposition. The reaction results in annihilation of matter, which is converted into heat, light and other radiation

energy which in turn causes pressure to cause explosion.

In addition, gas cylinders, petrol vapours, fuel gases and organic dust (like flour) form explosive mixtures and cause explosions under certain conditions. The explosion of the twin towers of the World Trade Center, in New York, on September 11, 2001, is an eye-opener. No normal explosive was used. The aviation gasoline of the two aeroplanes, which struck the buildings, exploded and destroyed not only the second tallest buildings of the world and killed thousands of persons but also created the greatest panic among the people of the biggest super-power. (CH)

14.2.1 Definition

An explosive rapid changes — heat and confers which come in

is any substance which on receiving an impulse undergoes decomposes and emits energy in the form of pressure, light, kinetic energy to materials, including decomposition products, contact with the expanding gases. The decomposition and

conversion to other substance(s) is extremely rapid and self-sustained.

14.2.2 Characteristics The common explosives have the following characteristic features: 1. They are unstable compounds. 2. They are sensitive to one or more of the following impulses: e Friction ¢ Impact

e Electric charge ¢ Heat

3. Most of the common explosives have nitrogen as part of the molecule. 4. Most of the explosives leave little residue as evidence after the explosion. 5. The are easily improvised. The raw materials for their manufacture are easily available. . They are unpredictable. . Usually gases are released. . There is release of energy. The reaction is self-sustained. © OND 10. The reaction is extremely rapid.

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14.2.3 Classification Explosives are classified in different ways. 14.2.3.1 According to speed

There are two types of explosives according to this classification. 1. Deflagrating Explosives——They are also known as ‘Low Explosives’. 2. Detonating Explosives.—They are also known as ‘High Explosives’. Deflagrating explosives burn rather than explode. However they burn extremely rapidly usually 200 to 900 m/s. (up to 2000 m/s). They produce gases rapidly and increase pressure on surroundings in closed spaces. These explosives have been utilised to manufacture propellants for small arms, firework. They do not shatter the containers, if properly handled and controlled. Gunpowder is an example of the deflagrating explosives. Detonating explosives decompose at very high speed, 2000 to 9000 m/s and shatter the container and have the shattering effect on surroundings. They are used extensively as military explosives and blasting devices. RDX, PETN, HMX are the outstanding examples of this class. 14.2.3.2 According to sensitivity

The explosives are classified in the following two categories according to their sensitivities: 1. Primary Explosives 2. Secondary Explosives. 14.2.4 Primary Explosives'

Primary explosives are highly sensitive to various types of impulses. They are usually used to prime or boost the charge of secondary explosives. The primary explosives, therefore, are used in primer, detonators and boosters to sensitise secondary explosive, which form the main charge of the powerful explosive devices. Working with these explosives in substantial quantities is dangerous. The common primary explosives are lead azide, mercury fulminate, styphnates, etc.

14.2.5 Secondary Explosives The secondary explosives are comparatively insensitive and hence easy and safe to work with. The common

secondary explosives are TNT, RDX, HMX,

PETN, etc.

The third classification is according to their occurrence, use or abuse: 1. Industrial Explosive . Military Explosive . Pyrotechnics . Propellants. . Non-explosive Explosion mixture. . Nuclear Explosive. N W P OFF ND . Miscellaneous. 1. See infra section 14.3.9.

EXPLOSIVES

911

14.2.6 Industrial Explosive

Industrial explosives are known as dynamites. They are modifications of the original dynamite prepared by Nobel. Nobel prepared the dynamite simply by adding soil (Kieselgur) to nitroglycerine (25:75). Now a number of other materials have replaced the material. In fact in most of the dynamite sticks used today for blasting contain very little nitroglycerine, if any.

2. Gelatine dynamite

Table XIV-1 Composition NC (nitrocellulose) + GDN (ethylene glycol dinitrate) NG (nitroglycerine) + EGDN + NC.

3. ANFO

AN (ammonium nitrate)

+

Fuel oil.

or, AN

+

AL (Aluminium)

Name of Dynamite 1. Straight dynamite

~

Fuel oil

14.2.7 Water Explosive

The water explosives do not contain NG. They are solution of nitrates, containing water (15%). The following main materials are used for water explosives: ¢ Ammonium Nitrate ¢ Calcium Nitrate. ¢ Sodium Nitrate. In addition they contain stabilisers and gellant. Some water explosives may also contain Aluminium, TNT,

aliphatic amine nitrate, etc

14.2.8 Explosive Emulsions

The explosive emulsions are usually made of inorganic nitrate (AN, SN) mixed with fuel oil and wax, with emulsifier. The mixture is made sensitive with air bubbles through tiny plastic bubbles. In some preparations NC and EGDN are also added. Typical formulations are: ¢ Nipak: AN+SN+ Carbon tetrachloride + polyurethane + Aliphaticamine nitrate with plastic bubbles. ¢ Emulex: SN+AN+AL+ oil with emulsifier + micro bubbles. Industrial explosives are mainly used for industrial purposes: blasting, mining, etc., Important members are dynamites of various composition (and hence strength). Gelignite, gelatines and ANFO are common. 14.2.9 Military Explosives Military explosives are mainly TNT, RDX, PETN, Tetryl, HMX. The first three are the most popular. Military explosives are seldom used singly. Usually they are used in mixtures. For example RDX is used in the following well-known compositions: Table XIV-2 Name Composition RDX +Wax = A-3 ° RDX +TNT + Wax = B ° e

C-1

=

RDX + Plasticiser

(C-2, C-3, C-4 are similar complex mixtures)

IN CRIMINAL

FORENSIC SCIENCE

912

°

Cyclotol

: .

INVESTIGATION

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PTX-1

= =

RDX + INT RDX + TNT + Tetryl.

PTX-2

=

RDX

+ TNT

+ PEIN.

Other compositions are: Table XIV-3 :o

Pentolite

=

PETN

+ TNT

2.‘

Terytol

=

TNT _ + Tetryl

3.

Tritnol

=

TNT

+ Al.

4.

Picratol

=

TNT

+ Am.

Ds

Octol

=

HMX

+ INT

6.

Deta sheet

=

PETN ~ + Plasticiser.

Picrate.

The list of the military explosive is legion. The number is increasing. The compositions also vary not only with different brand names but also with various batches of the same explosive mixtures. Some formulations are secret. 14.2.10 Pyrotechnics

Pyrotechnics employ explosive mixture based upon mainly gunpowder, aluminium powder, Barium nitrate, magnesium powder, nitrate mixtures, etc.

and there is extensive variety of items in the market. Before they are sent to the market, the item and its composition has to be approved by the chief controller of explosives. The authorities approve the nature of the explosive as well as the quantity of the explosive used. In fact the authorities inspect the product (the pyrotechnics item) before a firework product leaves the factory. Each factory has thus got a number of items approved under their brand name, which they produce and market. The fireworks manufacturers are prohibited to use chlorate mixtures. The pyrotechnics are supposed to be innocent items for display fireworks on festivals, birthdays, marriages and at other celebrations. However, in order to increase the popularity of their brand the manufacturer sometimes crosses the safety limits.

Unauthorised manufacture and negligence further brings in fireworks, which cause

serious

accidents.

Further,

the users,

usually

the children,

due

to

negligence make the problem more serious. Thousands of children suffer accidents every year. A stringent control on the manufacturer and vigilance on the part of parents is essential. In a case, a child of ten years, lost both his eyes while playing with a legally manufactured and thus authorised cracker. The careful examination and a series of experiments with the crackers of the same make and model revealed that the clay used to plug the two ends of the tube, due to excessive use of gum ( not specified in law) to the clay, plug were hardened and partially baked in the process of explosion.

EXPLOSIVES

913

The pieces of plug flew afar, even over to 15 metres and in all directions. If these pieces hit any person in the eyes, they could cause serious damage to the eye, as had happened. It appears, the hardening of the clay plug due to excessive use of gum was responsible for the serious accident. (CH) The currently authorized pyrotechnic items are items 404 to 430 of the list in annexure II, 14.2.11 Propellants

Propellants are used in small arms and have been discussed in some details

elsewhere! . 14.2.12 Aerosol Explosive Mixtures

Non-explosive explosive mixtures are formed by combustible gases (NG, LPG), volatile inflammable liquids, (e.g., petrol) and combustible organic dusts when dispersed in air. LPG explosions are on the increase. 14.2.13 Nuclear Explosives Nuclear explosives, ordinarily, do not figure in normal criminal cases. Hence

they are not discussed here.

14.3 INDIVIDUAL EXPLOSIVES 14.3.1 Gunpowder

Gunpowder is an intimate mixture of: ¢ Potassium (or sodium) nitrate (75%), ¢ Charcoal (15%), and

e¢ Sulphur (10%). It is commonly used in mining for blasting, in safety fuses or fuse cords, in crackers and fireworks, in home-made cartridges, as propellant for muzzleloading guns and as an explosive in crude bombs. 14.3.2 Nitroglycerine

It is a pale yellow liquid. It is an extremely dangerous explosive in pure form. It is not used as such. Its common modified forms are: 1. Dynamite

2. Gelignite 3. Gelatin 4. Plastic gelatin Modified nitroglycerine explosives are sold under a host of other trade names also. Nitroglycerine is also used as medicine for heart and angina pectoris patients. It relieves the pain by reducing the blood pressure.

1. Chapter IX, on Firearms.

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of fingerprint the TNT. Spectra, IR

EXPLOSIVES

915

14.3.3 Nitrocellulose Nitrocellulose, also known as gun cotton, is prepared from cotton or other

cellulose by nitration. It has found extensive use in the manufacture of ammunition singly or in combination with nitroglycerine! . As the latter has a tendency to corrode and damage the firearms, the use of gun cotton alone in the ammunition is on the increase. The gun cotton is also used in many explosive formulations.

The maximum theoretical intake of nitrogen (in nitrate form) is 14.15%. However explosive nitrocellulose contains about 13% nitrogen. Nitrocellulose with less quantities of nitrogen (~11%) is used for films, fibres varnishes, lacquers, etc.

Explosive nitrocellulose is unstable and decomposes. In open spaces when the amount of the nitrocellulose is not large, it burns. When the quantities are large or it is confined in a place, it detonates. The nitrogen content determines the quality.

14.3.4 Trinitrotoluene (TNT) Trinitrotoluene is a powerful explosive. It is obtained by the nitration of toluene — a product obtained from coal tar or from petroleum. It forms the major part of the bursting charge in many military explosives, either singly or in combinations. Some of its combination products are: 1. Amonal.—It is a mixture of TNT, ammonium

nitrate, aluminium and

carbon powder. 2. Amatal.—lt is a mixture of TNT and ammonium nitrate.

14.3.5 Picric Acid and Picrates Picric acid is obtained by nitration of phenol. solution is used as tincture. Picrates are derivatives ordinarily stored in water. Picric acid and picrates are frequently encountered explosion products leave characteristic yellow stains

It is yellow in colour. Its of picric acid. The acid is in home made bombs. The on the objects around.

14.3.6 RDX RDX? or cyclonite is cyclo 1, 3, 5-trimethylene 2, 4, 6-trinitramine. It is one of the most important military explosives today. It is stable and powerful - more powerful than TNT. It is susceptible to shock detonation. RDxX is used as a component of mixtures with: 1. TNT 2. PTEN (Semtex — plastic explosive)

| 14.23.7 HMX HMx is similar to RDX—chemically it is tetra methylene tetranitramine. The explosive is used in rocket fuel and also as booster in artillery shells. 1. For details see chapter IX, on Firearms. 1. RDX stands for Research Developed Explosive.

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vajaad Jo s Xqy yyim y]

314

€-AIX

‘asvas8

20° GED

XM + PuBputis SEO

670

EXPLOSIVES

917

14.3.8 PETN Chemically PETN is penta erythritol tetranitrate. It is basic charge for blasting caps and detonators. It is the usual ingredient of booster charges, plastic explosives and detonating cord. It is also used in place of nitroglycerin for angina pectoris though mono-nitrate of glycerin in replacing the two. PETN is highly stable. It is highly sensitive to impact. 14.3.9 Ammonium Nitrate (AN) Ammonium Nitrate is used as a fertilizer and as a component of explosives,

_ especially for blasting purposes. Its low sensitivity to friction, impact and highly stability has popularised its use in industrial explosives. It is a good oxidiser, provided the other components of the mixture do not change its characteristics. It is highly hygroscopic. Ammonium

nitrate alone can explode at about 20°C, if heated in airtight

containers. 14.3.10 Primary Explosive

Primary explosives are highly sensitive to various stimuli: impact, heat, friction and are easily set on fire with electric spark or direct flame. The primary explosives do not deflegrate, they detonate. Consequently they are used only in small amounts as initiators in firearm ammunition, blasting caps, detonators. They are initiated by impact, by electric spark or by ‘stabbing’ the primary charge. The important common primary explosive are:

1. Mercury fulminate 2. Lead/silver azide 3. Lead syphnate 4. Tetracene (Tetrazene)

5. Dinol (Diazodinitrophenol)

14.3.11 Fulminates Fulminates of mercury are used in explosive devices, in firearm ammunition

(in percussion caps) and other primers as initiators. They are highly sensitive to friction and impact. Consequently they are very dangerous to handle. They must be handled with extreme caution. Mercury fulminates decompose in the process of firing or on heating. Mercury reacts with metals in the presence of moisture and hence can effect the caps adversely. Consequently the primer composition is covered with nonhygroscopic layer of plastic material wherever it is necessary.

14.3.12 Lead or Silver Azide

Lead or silver azide is another powerful explosive, sensitive to pressure. It is used in percussion caps and other primers to initiate the charge. The substance is not used as explosive as such. Lead or silver azides are comparatively more stable to heat and storage and less sensitive to impact than fulminates. The compounds are used in many compositions for primers. It is compatible with most of the explosives.

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In contact with copper it forms copper azide which is very sensitive. Silver azide is more sensitive than lead azide. 14.3.13 Lead Styphnate Lead styphnate is used in primary initiating compositions in the explosive devices and in the percussion cap of the ammunition. Its explosive properties

are similar to those of lead azide or fulminates. Lead styphnate is nonhygroscopic, non-corrosive and stable to heat. It is, however, very sensitive to electric spark or direct heating. 14.3.14Tetracene (Tetrazene)

Tetracene is a highly sensitive explosive though it is stable to heat (75°C). It is utilised to sensitise cap and other primer compositions.

14.3.15 Dinol (DDNP) The full name of dinol is Diazo dinitro phenol. The compound is less sensitive to impact, friction and electrostatic discharge as compared to other primary explosives. It is the primer charge of choice for industrial explosives, blasting caps, ete.

14.4 EXPLOSIVE DEVICES There are so many explosive devices that it is impossible to discuss them in a book of the intended scope. Besides, there is no necessity to do so. The items discussed below are only those which, now and then, are encountered in criminal investigations. 14.4.1 Safety Fuses

Safety fuse is a train of black powder enclosed like the lead of a pencil and covered with cotton or jute threads or tape. There are ordinarily, three layers of the covering, but the number of layers and type of material used vary with different manufacturers. The outer layer is impregnated with moisture proof material varying from coal tar to modern plastics or enclosed in a rubber or plastic water proof tube hose. The burning speed of a fuse is controlled by the nature, grain structure, quantity and the packing of the black powder. 14.4.2 Detonating Cord/ Fuse Cord It has a structure similar to a safety fuse cord. However, the gunpowder is replaced by PETN and covered with a waterproof cotton braid or plastic hose. It is used to inter-connect a number of charges when they are to be initiated simultaneously. It is also used in non-electrical detonators.

The cord detonates at a high speed — the wave travels at a speed of about 5000 metres per second. It is shock proof.

It produces its marks on the surfaces where it burns. The marks are identifiable even after the explosion.

EXPLOSIVES os rs E

;

aan vt

.

Pare rs c

», x

\

AAS

A

VAL -

ereranr ee ‘rs

—

x ‘we, Wh, Se. ee ee. ee

Ss

>

a vl 4

4

EEE’

\ jt

:

ne

:

}

¥ A

FA

eee Sc hg

:

a \

919

4 i ae

Fig. XIV-4

;

Fig. XIV-5

Cross-sectional view (Fig. XIII-4) and Longitudinal sectional view (Fig. XIII-5) of a safety fuse.

14.4.3 Primers Primers are extensively used in small arms and artillery ammunition. The artillery primers are larger and in addition to initiating mixture, they contain a charge of black powder to boost the initiation of the main charge. The small arm primers contain only the initiating mixture consisting of a sensitive material (mercury fulminate, lead styphnate or lead azide), a source of oxygen (potassium chlorate) and a combustible material (antimony sulphide). In small arms ammunition the primer is placed in percussion cap and covered with a waterproof lacquor. 14.4.4 Military Detonators Military detonators are essential to explode larger bursting charges properly.

. Ordinarily, they are metal cups of about one inch length and about a quarter of an inch in diameter. In the cup is placed a primer mixture followed by a sensitive explosive and completed with a high explosive (tetry]). Military detonators are also known as blasting caps.

14.4.5 Commercial Detonators Commercial detonators are also known as blasting caps. They have the following essential parts: 1. The initiating device. It is a small electric heating element connected to two lead wires. The device is placed in the initiating charge. Alternatively, a detonating cord is used for the purpose. 2. The initiating charge. It is commonly lead azide. 3. The detonating charge. It is usually PETN. 4. A metallic container. It is made from aluminium, brass, or copper. The detonating cord or the electric lead wires are crimped into the container with a pair of pliers. The safety fuse cord is set on fire. It ignites the initiating charge, which subsequently detonates the bursting charge. In electrical device, the hot filament, on switching on the current, ignites the initiating charge, which in turn detonates the main charge. If the delayed action is required, a fuse cord is introduced in between the filament and the initiating charge. In the explosion, the blasting cap is destroyed but bits of the containers and the marks of the burnt fuse can be found in the debris.

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TRIALS* AND INVESTIGATION IN CRIMINAL SCIENCE FORENSIC 920

EXPLOSIVES

921

14.4.6 Explosive Train

Explosive train is an arrangement of different elements of explosives having varying sensitivity and power to achieve proper initiation and detonation to use full power of the explosives with maximum safety.

The train has essentially three parts: 1. The firing device. 2. The detonator containing the primer mixture and the booster charge. 3. The main bursting charge contained in a shell of specific design. The arrangements, however, vary tremendously in accordance with specific objects. For example, a more elaborate arrangement may have a primer and delay fuse interposed in between the firing pin and the detonator or there may be additional one or two boosters between the detonator and the main charge.

tmeaeeaseotsanre 'Seggaecesss

7?@2aeeeseesees

tHe

PIN

FIRING

4444

—

PRIMER

DETONATOR

BOOSTER

smaneaiesauae

a es: HAS : pbs

gl

Fig. XIV-7 Explosive train arrangement in high power bombs and other explosive devices.

14.4.7 Grenade A grenade has an explosive charge, an initiating charge, an initiation device and a case, which splinters into small fragments on explosion. The splinters act as missiles to injure persons on whom the grenade is thrown. The initiating device is a hammer and a primer cap. The trigger is in the form of a lever, which is held along the case with a pin. When the grenade is to be used, the lever is released. It is actuated by the spring. The lever flies upward and the hammer thereon strikes the cap. The primer mixture gives out flame, which sets the fuse on fire. The fuse carries the flame through initiating charge to the detonator, which explodes the burning charge (usually TNT or Baratol) and the grenade explodes. The fuse delays the bursting, usually by 4 or 7 seconds, depending on the length of the fuse cord used.

922

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iti WU?

Fig. XIV-8 Sketch of a grenade. The various parts are indicated in the figure.

A grenade can be thrown to a range of about twenty metres. It is dangerous in an area of a circle of about the same radius. The complete initiating device is manufactured as a separate piece. The piece is inserted in the grenade and kept in position with the base plug screw in the main structure. The grenade body contains the explosive charge. lt is safe if the initiating device is removed. Grenade bodies and the initiating plugs are stored separately for safety purposes. 14.4.8 Military Bombs and Shells The variety of military bombs and shells are very large and increasing every year. The basic principle of their construction is the same as that of the explosive train. They are not frequently encountered in police work. They are made to

specifications, which are enforced rigidly. Military bombs and explosive devices are easily distinguished from home-~ made bombs (IEDs). The following points are helpful for the identification. 1. All military bombs have very good finish. 2. They bear identification mark pertaining to their make, year of manufacture, etc. The marks may be letters, figures or monograms on

various parts of the body of the device. 3. They have appreciable sizes, except for the anti-personnel mines and detonators.

EXPLOSIVES

923

14.4.9 Miscellaneous Ammunition used in small arms and the fireworks are explosive devices. Even aircraft emergency ejection system uses explosive charge for opening the door without delay. 14.4.10 Improvised Explosive Devices

There are an infinite variety of crude improvised explosive devices (IEDs). They do not conform to any pattern and design. In fact the nature of the contraception depends upon the ingenuity of the culprit and on the availability of the materials. The essential parts of an IED (home-made bomb) are:

1. A container.

2. An explosive.

3. An initiation device. It may include a detonator. 4. Missiles. The containers of crude bombs have been made from strings, paper, cloth, bottles, bulbs, tins, torch covers or even from bamboo poles, coconut shells, earthen pots and pipes. They are frequently small in size, weighing less than a kilogram but bigger devices have been prepared and used. The terrorists have used Transistor Bombs to kill stray individuals. They have used suitcase bombs to blow off cars, buses, trains, aeroplanes, buildings, etc., with devastating effect. They used several kilograms of RDX in the suitcases to blow up the intended targets. They have used Human Bombs to kill important leadears: The explosive may be of any of the following substances: 1. Military or commercial explosive. 2. Small—arms propellants. 3. Nitrate mixtures. Nitrates of ammonia, barium, potassium have been

used for the purpose in combination with other ingredients.

4. Chlorate or permanganate mixtures. They are used in same way as nitrate mixtures, often with more disastrous results. The mixtures are

also used as initiators for fires and for other explosives. For example, potassium chlorate and sugar mixture catches fire immediately on coming in contact with sulphuric acid. 5. The highly inflammable organic liquids have excellent explosive properties. The famous (or infamous) Molotov bombs contain petrol only. The recent explosion of the Word Trade Towers was achieved by tankful of aviation fuel in two aeroplanes. The initiation devices vary tremendously. They determine the “sce and nomenclature of the bomb. Mechanical, chemical, thermals, electrical; and other devices have been used to initiate the bombs. If a detonator has been used, it is

usually a stolen military or commercial detonator. Initiation devices utilise one of the following sources of energy:

924

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1. Mechanical: fall, crushing, impact, friction. 2. Shock: induced by other explosions. 3. Heat, flame, steams, exhaust pipe emissions.

4. Spark, flame, cinders. 5. Chemical, e.g. sugar, chlorate and sulphuric acid.

6 . Miscellaneous: light, laser, ultra-sound waves. 7 . Lightning, electric current 8. Spontaneous decomposition: nitrocellulose, nitroglycerine. 14.4.11 1 Some Novel Initiation Modes 1 . Radio waves: Radio waves

actuate

electric

circuit,

which

start

explosion.

2. Tripped Wire. Tripping of wire may make/break electrical connection to actuate the initiating mechanism. 3. Remote control as in TV. It completes the electrical circuit to initiate the infernal device. 4. Capsule initiation. A capsule filled with sulphuric acid is kept in a sugar-chlorate mixture. On the corrosion of the capsule, the acid comes in contact with the mixture and starts fire, which in turn initiates the

device. Improvised initiation devices also include anti-handling mechanism. As soon as the device is handled, it explodes. The handling may actuate chemical mixing, mechanical spring or an electrical switch and starts the explosion. The variety of mechanical devices is legion and unlimited. Another important mode of initiation is electrical initiation with time mechanism which has been used frequently in improvised explosive devices. The IED is left at the desired place and when the time fixed is reached, the electrical connection is made and the IED explodes. The following are the common types of the IEDs encountered in police work.

14.4.12 Throw-downs Throw-down bombs are used frequently in India. They work on the same principle on which a similar (thrown-down) cracker works. On throwing down, the bomb explodes due to the initiation by the impact on a sensitive material kept inside. Suitable chlorate mixture,

fulminates

mixtures,

other chemical

mixtures or even electrical devices has been used to start the explosion. Throw-down

bombs are often balls of various sizes, the smallest effective

bomb being over five centimetres in diameter.

14.4.13 Fuse Bombs Fuse bombs are fitted with a fuse cord. Before throwing the bomb the fuse is lighted The fuse cord of convenient length is used so that it does not explode while being thrown. The lighted fuse puts the explosive charge on fire and the device explodes. This is the easiest and the safest arrangement for initiation.

EXPLOSIVES

925

14.4.14 Percussion Car Bombs In percussion car bombs, the initiation of the charge is similar to the one found in a grenade. By mechanical arrangement, a hammer strikes a percussion cap, which gives out flame. The flame, in turn, puts the explosive charge on fire; directly or indirectly. This is rather complicated arrangement and is not frequently met with in homemade bombs, though the arrangement had been found in some of the crude bombs used by terrorists in recent times. A cartridge case from standard ammunition provided the percussion cap. It was hit with a nail arranged as hammer.

14.4.15 Time Bombs Time bombs are also known as clock or watch bombs. In time bombs the initiating device may be mechanical. For example, in a clockwork a sensitive explosive is placed at the place where alarm hammer strikes. The material thus struck, gives out heat and flame and puts the explosive charge, placed close by, on fire. Terrorists have often used extensively.

time bombs

in their recent activities,

The initiation device is usually electrical. At the set time, the clock completes electric circuit, containing a heating element at the relevant site. The heat puts the explosive on fire. The initiation may also be through release of some liquid at the set time, which starts fire and explodes the explosive. Sulphuric acid, chlorate, sugar mixture bombs are constructed on this principle. Capsule initiation is of this type, where a capsule filled with sulphuric acid, is placed in sugar and chlorate mixture.

The acid corrodes

the capsule walls, trickles down,

and initiates

explosion. Fuse cord has also been utilized for timing an explosion. However, fuse cord gives a limited timing interval often limited to few minutes. The rate of slow burning fuse cord is about 70 centimetres per minute. Therefore, seven metres of

cord will give about ten minutes ropes and strings have been employed in place of fuse cord. Greater delay can be obtained with this arrangement. However, smoke and burning smell can give away the device. Besides, rain and wind can also upset the arrangement. In an interesting case, a man was sleeping in his ground floor bedroom. The window of the room was open. His foe found it an excellent opportunity to kill him. He took dynamite sticks, fixed a string in the sticks and placed the sticks close to his head, through the window. He lighted the other end of the string and ran away from the site. The intended victim, however, smelt that something was burning. He got up with a start, saw the string burning and pulled out the smouldering string and threw it out. Only then he saw the dynamite sticks. The smouldering of the string has reached quite close to the sticks. (CH) Filling of liquids and solids in a given vessel has also been utilised for timing the device. When the substance reaches a particular level (or overflows) it activates an electrical or chemical device to start an explosion. Corrosion of metallic vessels and other articles by acids, especially sulphuric acid, has been utilised to initiate bombs. When the container is fully corroded,

926

FORENSIC

either chemical

SCIENCE

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IN CRIMINAL

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or an electrical connection

AND

is made

TRIALS

which

starts

the

explosion. Clock mechanism is the most accurate method of timing a bomb and can serve to start an explosion at any time within 12 hours. Now electronic timers have come with which the time of explosion can be | adjusted to even 18 months or more. Other types of initiators utilise photoelectric devices, sound operating switches, changes in the temperature and moisture. Remote control electronic devices have become common with the hi-tech terrorist. The devices are available which can initiate explosion even from a kilometre. I.R. sensors, as used in electronic timers, are quite popular for short-range initiations. The trip

wires have also been used to blow off vehicles on road, in parking places or on railway tracks.

14.4.16 Letter Bombs In 1972 there was an international wave of letter bombs. The wave caused not only death and injuries to a large number of persons, worse still, it caused panic in the world. Fortunately the wave has since subsided. But letter bomb is a novelty, which does pester the people, now and then. A letter bomb is a booby trap. It has to pass as a letter or a postal packet. Consequently it must have limited dimensions and weight. Yet the device must contain all the ingredients of a booby trap, an explosive and an initiation device. The container is the letter or packet cover. As the package has to move through postal process, it has to be safe through transit. The contents, therefore, have to be carefully selected, arranged and packed. It has been estimated that about fifty grams of high explosive is sufficient to kill or injure a person seriously, form a close distance of about fifty centimetres. When a person is handling a letter bomb the distance is often less. Consequently the quantity of fifty grams of explosive needed, can be placed in a letter bomb. It would not make the letter or packet bulky or suspicious if the explosive is placed judiciously in the form of plastic sheet cut to the size of the letter. If the explosive used is pasty, the same can be rolled to a sheet of uniform thickness and placed in the letter. The ingenuity of the culprit lies in the choice and arrangement of an initiation device. Here a host of contrivances has been used: 1. The explosive chosen is so sensitive that it explodes on rough handling. 2. A friction sensitive material is placed at points, which are likely to be torn off at the time of opening. The tearing process explodes the letter bomb. 3. Potassium chlorate mixtures are placed in such a position that they, at the time of opening, start explosion. 4. Miniature percussion cap (or detonator) and spring operated hammer may explode the explosive when the hammer is released on opening the letter or packet.

5. A tiny battery is used to give a spark for initiation.

EXPLOSIVES

927

The world is so much used to postal letters and packets that nobody cares to note the address of the sender or of the addressee. However, if some suspicion is aroused about the possibility of its being an infernal device, the following observations prove useful to identify the true nature of the letter or packet: 1. A letter bomb often does not bear the address of the sender. It is frequently unregistered and may be over stamped. It is often marked ‘personal’, ‘confidential’ or ‘secret’. . The outer cover may be stained. . The letter or packet may be oddly uneven. It happens when electrical or mechanical device is used to initiate the explosion. Metallic objects, wire or spring may be felt or seen inside the packet. . The letter or packet may have plasticine like pasty material inside. . The letter or packet may have a cardboard like stiff material inside, but

the weight of the same

may be heavier than such articles would

warrant.

6. The name and other words may have been misspelt, written in capitals. ve It may give smell of oil, perfume.

above aspects of a letter are checked thoroughly. The systematic procedure is: 1. Suspect all letters, parcels, not from the known source. 2. Do not open the letter/packet till declared or found safe. B. Get the help of bomb disposal team, whenever needed and possible. 4. Carry out the visual examination accompanied by manual’ feel ’ of the packet. Check of the weight and observation for rattling noise or oddities may reveal any of the peculiarities mentioned above. . Examine the device in transmitted light. It may indicate metal objects and uneven and odd nature of the package. A very. strong yet cool source of light (the light rays filtered through special glass) should be used for the purpose, if available. . Observe the letter under ultraviolet rays. It may reveal unusual suspicious spots on the letter. . Observe the packet with infrared rays. They are useful to reveal the contents of the letters. Most of the forensic science laboratories now have infrared image conversion devices. The nature of the content of a package (letter) can thus be evaluated without opening the letter or package. . Examine the packet with X-rays. They reveal radio-opaque objects. The

Thus, if a letter bomb is examined under X-rays (screening is sufficient),

the initiation device is revealed in most available in most of the hospitals in laboratories. Soft X-rays are used. Take the suspected letter bomb to an about one metre diameter and depth.

of the cases X-rays equipment is addition to the forensic science

open space. Place it in a pit of Handle it roughly (shake, turn and press) by a remote control device, a strong staff is efficient enough

928

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in most of the cases. Give sufficient time for each process. The device will explode, if it is to explode. 10. If the above checks and rough handling fail to reveal the infernal nature of the letter‘bomb, open the letter cautiously. The guiding principle in’ opening the letter is that about 90-95 % of the surface of the letter should be kept covered under a heavy book when edges of the letter are being opened with a thin wooden (bamboo) strip. All edges should be cut open, in turn. Take out the contents but the force is not employed for cutting or to separate the edges, and the speed of all these operations should be irritatingly slow, as haste possibly may cause serious injuries.

If the contents of the letter are found safe they may be utilised or forwarded to the addressee, as the case may be. 14.4.17 Transistor Bombs Terrorists have used ‘transistor’ bombs in recent times. Transistor bombs utilize the transistor (radio) shape cover to house the explosive and missiles, its electrical system and ‘on and off’ wiring to initiate the bomb electrically. The terrorist would leave such bombs in public places where some one would pick them up and fiddle with the same. The bombs would explode killing the fiddlers and persons standing nearby. The cover is also often made of cast iron. Its fragments act as missiles which can kill and injure persons at long ranges. 14.4.18 Magnetic Bombs

Magnetic bombs are usual time bombs having a moderately powerful magnet attached to the device. The magnet helps to fix the bombs with the cars of the victims. The bomb would explode at the prefixed time blowing the car to pieces and killing the persons in the car and around the site.

14.4.19 Human Bomb Human bomb is an improvised device containing adequate quantities of high explosives and an initiating device. It is attached, in a hiding position, to the body of a person who has been made to sacrifice his life for a large sum; fear for his kith and kin or, is hypnotised to do so. He approaches the victim, when the

initiating device is triggered, usually through who controls the killing assignment. Killing of late prime minister Rajiv Gandhi, killing and that of a Punjab chief minister, through human bombs. In the latter perhaps remote control. (CH)

a remote control by the person not prime minister at the time of S. Beant Singh was carried out the bomb was initiated through a

14.4.20 Fireworks (Pyrotechnics) Fireworks or pyrotechnics are substances, which produce, through chemical changes, on self-sustained basis, heat, light, sound, smoke or a combination of them, on initiation. The fireworks are made at licensed premises only. The factories are located

outside the main centres of activity in a city. Fireworks are made from a host of materials, specified and approved by the authorities. They do not, however, contain any chlorate or sulphur mixtures in their composition. »

EXPLOSIVES

929

The main explosive ingredient of crackers is black powder. However, barium nitrate mixture and chlorate mixtures have also been employed. The chlorate mixtures are prohibited for the purpose, as they are dangerous. Illegal use of the

same is however common.

bombs) The mainly partly carries include

Most of the throwdown crackers (or home-made

contained mixtures of potassium chlorate. initiation device in cracker, ordinarily, consists of paper tubes containing black powder, as in fuse cord. The paper tube is partly exposed and it is inside the cracker. The outer portion is lighted, the paper tubes the fire inside the cracker and explodes the same. Other initiation devices fuse

initiation,

impact

initiation

(as in throwdowns)

or

friction

initiation. A large variety of crackers exists. They differ from other explosive devices in many ways. One important difference is that the crackers (and fireworks) in addition to noise, give spark and multi-colour lights. In some, beautiful display is achieved mainly through the use of aluminium, magnesium, and barium metals or their salts. Fireworks are sometime made illegally which have larger sizes and consequently, they are more dangerous.

14.5 NON-EXPLOSIVE EXPLOSION Non-explosive explosions are those where the usual explosive substances are not involved. They may be: 1. Mechanical explosion.—Here compressed gas, air, or vapours suddenly break loose and cause explosion. Gas cylinders, boilers offer such situations. 2. Thermal explosion.—Where volatile liquids come in contact with surfaces at excessively high temperature. Sudden conversion of the liquid to vapours causes explosion. 3. Electrical explosions.—Sudden heating due to electrical spark sometimes causes explosion. 4. Aerosol explosions.—Aerosol or diffused explosions are caused by natural gas, fuel gas, liquid paraffin gases and vapours of organic liquids and solvents—petroleum products, alcohol and ethers. When the concentrations of their vapours in air reach and cross certain limits in a confined place, such as a room, and a flame or heat is applied to such mixtures they explode. Strictly, these explosions are cases of rapid burning. But due to the large volume of gases involved they cause explosive effects and demolish walls of the rooms, break doors and windows, bend steel bars and even move and crack concrete roof

slabs where such explosions takes place. The maximum effect of these ‘explosions’ occurs when the concentration of the gas reaches theoretical value for complete combustion of the fuel material, in the confined place. If the amount of burning gas or vapours is less than the minimum critical concentration, there will be no explosion. If the mixture contains greater amount of the gas (or vapours), the burning, is slower, but it is sustained for a longer time. Consequently the damage is greater and the explosion may also start secondary fires. If, however, the concentrations go beyond the maximum critical limits, again there is no explosion.

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In addition organic dust like flour, maize husk, sawdust, coals or charcoal dusts also form explosive mixtures, if they disperse in the air and the mixture gets ignited. In a pharmaceutical factory in a town of Madhya Pradesh, the formulations of a medicinal tablet contained starch as the major constituent by weight. Inappropriate humidity control dispersed the starch in the atmosphere of the hall where the tablets were being manufactured. An uneducated labourer, struck a match stick for lighting a bidi. There was a big explosion, which shattered the doors and windows, of the hall and killed the labourer, the only person in the hall.(CH) The critical lower and upper limits are different for different materials. Some of the common materials responsible for such explosion with their relevant properties and critical limits are given in the table below. Table XIV-4 NON-EXPLOSIVE EXPLOSION MATERIALS Fluid

State

Explosion

need Temp.

_

| Concentration

% pre material

—>=>ct aa

i Alcohol maamisngila aise ahd sear Liquid (ethyl)

S=

~x

e/g

i=)S ©

gos On

~~

_—

monoxide

TOS m=

cette

Liquid

280

meee a ot : =| Lig3 a i ae a [stg cr a Propane

lige

w ] A) OLoOINIR

0.

ee ee ee ee Oe

=

1.3

So

a

13

|

7.6

ere a

aotre hele

EXPLOSIVES

931

A few years ago, a can containing rectified spirit was being sealed with sealing wax after the use, as required under the rules. All of a sudden the can exploded spreading the rectified spirit all around and starting a fire. The fire was controlled but only after it caused serious burns to the operator. The alcohol-air mixture in the empty space of the can formed the explosion mixture and caused the

‘explosion’. (CH)

14.5.1 Accidental Explosions

Explosives explode sometime. Is the explosion accidental or is it sabotage? As explosives are highly sensitive so accidental explosion can and do take place in the manufacture, transport, storage or while handling for use, even with the best of care and precautions. Such explosions have occurred in India in recent times where tons of ammunition has been destroyed. On August 16, 2001 a devastating explosion took place in a factory, which was manufacturing detonators. The explosion took place in'the crimping unit of the factory.

The explosion raised the building to the ground. It killed 25 persons and injured some others. Hundred persons from six firebrigade units were employed in rescue work but the work was hampered by the huge piles of debris and the fear of additional explosion due to the possibilities of live explosives still being in the debris. The manufacture of detonators involves highly sensitive explosive like lead styphnate, lead azide, PETN, etc. These explosives are so sensitive that they can blow off even on rubbing or on fall to the ground.(CH)

Accidental explosions can occur with non-explosive substances as well as with explosive. Non-explosive explosions are due to materials used for other purposes. Ammonium nitrate is notorious for the purpose. Pyrotechnic materials are other source especially in the festival season when the public fires crackers. Illicit manufacture by criminals or juveniles, without proper knowledge or without proper safety measures, also result in accidental explosions at various stages: at the time of manufacture, during transport, at the time of use, etc. Chemistry

laboratories have chemical, which also explode. Non-explosive explosive aerosols (gas-air, liquid—air, organic dust-air) also cause accidental explosions. Accidental explosions with normal explosives take place due to ignorance, negligence, often they are minor, but at limes they may be major. 14.5.2 Deliberate Explosions

Deliberate explosions are caused both for legitimate and _ illegitimate purposes. The pervert human mind is mainly responsible for these explosions. They are used for varied purposes with equally varying success. It is surprising to see what human ingenuity can achieve. Two recent examples are eye openers: 1. In Bombay bomb blast on March 13, 1993, the statistics of the serial explosions are:

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Persons killed Persons injured Property damaged (crores of Rs.) Number of Accused 2. In New York twin tower of World Trade 2001, where even

AND

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»,

257 713 27 204 Center blast, on September 11,

the normal explosives have not been used, is still

more mind boggling. The statistics are: Lives lost: >5,000 Property destroyed, worth hundreds of billions of dollars Number of FBI investigators employed: the whole department for weeks together. Still a large number of investigators work day and night, Repercussions: Limited world war, Afghanistan pulverised Brought USA to a grinding halt for days together Pulled down the Stock Markets of the World Brought in serious racial /religious conflicts Started a limited war.

14.6 LOCATION AND COLLECTION The main source of evidentiary clues in case of explosions and explosives are:

. The scene of explosion. . The culprit, his wearing apparels, shoes, etc. . The culprit’s vehicle. . The culprit’s workshop residence where he has been assembling or me WN making the bombs or the IEDs. 5. His associates who have been helping him in his nefarious work. 14.6.1 The Scene of Explosion(s)

The most important source of evidence is the scene of explosion. However, the destruction, contamination and the dimensions of the scene are so large that

normal scene of crime processing techniques are inadequate. The scene of explosion needs special handling. The following points must be kept in mind: 1. Proper planning of the handling of the scene of explosion is indispensable. It involves: Check the scene for live explosives with instruments. All the explosive devices at the scene, may not have exploded or the culprit may have left some unexploded device(s) intentionally, to hinder investigation by additional explosions at the time of examination of the scene. In either case the scene deserve extreme caution in handling so that there is no additional loss of limbs or lives or property while handling the scene. Dog squads, close and careful observations with or without instrument should be invariably done so that there is no likelihood of a second explosion due to the live explosive at the scene.

EXPLOSIVES

933

° Get expert assistance. No scene of explosion, with or without live explosives, should be examined without expert assistance. The expert should have both practical and scientific knowledge about the common explosives being used or misused in the country. The explosives behave in different ways and create different explosion patterns depending upon their nature, their confinement their quantities. The expert knows the patterns. The examination of the scene therefore, with the help of an expert, who has adequate knowledge relating to explosives and explosions is essential so that the location of the evidence relating to explosive devices is easy and certain. ¢ Requisition adequate facilities. Often the destruction and upheaval at the scene is so-much that the huge debris will discourage any normal investigating officer. It should always be kept in mind that the scenes of explosion are often like that. They need patience and perseverance. The huge amount of debris of explosion has to be handled. It needs adequate facilities, often manual and mechanical help. It should be made available. The scene may have live bombs. Bomb disposal squads with necessary equipment should be available.

¢ Study the pattern. The explosions follow specific patterns. The examination of the scene, therefore involves the careful study of these patterns. It needs adequate knowledge and, especially, experience relating to explosions, which generally: e Shatter wooden or glass doors, windows/glass panes. ¢ Cause bulges in metal sheet such as door shutters. In an aerosol explosion in a hotel, the LPG gas from the cylinder leaked. Some carbon-monoxide from the coal oven ( though partially closed) also dispersed in the air. The critical explosive mixture concentration formed after about 3 hours of leaving the staff from the kitchen exploded. The kitchen was at the third floor but the gases travelled to ground, first and second floor . The explosion shattered doors and windows on all the floors and caused buldges on all the metallic shutters which covered the display windows at the ground floor. ¢ Scorch and melt certain materials, which come in contact with

the flame or hot gases. ° Move objects in the path of the pressure wave. However the movement of objects has to be studied carefully, to eliminate the effects of negative pressure wave, which takes place after the explosive wave, to fill the vacuum. 2. Observation at the Scene.—The proper examination of the scene should involve close observation and collection of the following evidence:

934

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e The object (s) of destruction. ¢ The seat of explosion(s) the pit(s) or crater(s) formation at the site. Their

dimensions,

depths

and direction

are important.

It often

carries traces of explosives and the pieces of the various constituents of the device(s). They should be carefully collected. ¢ The shattering pattern of a pressure wave is distinct. Its intensity and direction should be established. A lot of information including the evidentiary clues relating to the infernal device and the targeted objects can be found out on the path followed by the wave. The main misleading obstacle in its identification is the negative pressure wave — caused by the sudden creation of vacuum by the destruction. It often needs care and time to/establish the path of the wave. It is worthwhile to give both.

¢ Observe and collect the shattered pieces of the infernal device(s) and its parts. They may include the pieces of the container, of the initiators, the missiles or the residual explosive/booster / detonator charge. They may be found embedded on the nearby objects, in the debris or on the objects along the wave path. If the infernal device has been used as an anti-personnel device, the pieces will be found on or in the victims also. The pieces should be carefully collected and this collection should be properly logged and documented vis-a-vis their nature, sizes and locations. The pieces so collected should be pieced together to determine the nature of the original object/device to which these pieces belong. It is seldom that all the pieces are available but often the available pieces can give a fairly correct idea about the nature of the original device. The plotting of the positions of the pieces of the device on a graph paper and extending the lines towards the centre can indicate the seat of the explosion correctly. In some cases, the path followed by the pressure wave(s) indicates the seat of the explosion. 3. Search for the Clues.—As already discussed the area of the scene of explosion must be fixed before starting the search and that it should be done in such a way that a larger area should be earmarked so as to exclude the possibility of non-collection of almost any clue. e Usually the searching of the clue materials at the explosion site starts from the site of explosion—the crater formed by the explosion, if it is easily ascertained (not covered by huge debris). The spiral method for the search, starting from the explosion centre should be adopted. ¢ If the centre of explosion is not clear, the search starts from the outer extreme, periphery, and closes at the discovered centre of the explosion. In cases of apparent pressure wave(s) equal, rather greater, attention is given to the path of the wave for locating the clue materials.

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=

nl ee

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¢ The crater should receive thorough inspection. Its surface is likely to retain residues from all parts of the infernal device—initiators, detonators, explosives, containers, missiles etc., as already mentioned e The clue at the scene of explosion are from: e Initiating device

e Detonating device e Explosive, residual explosive stains, decomposed material. e Container. In an IED it can be anything : bottle, boxes, radio, etc. are common

¢ Missiles, if used. The pieces of shattered containers may act as

missiles. Iron pieces or other hard objects are frequently used as missiles.

In an IED explosion in a bus the wire net shelf for luggage was used to keep the device. The pieces of the wire net formed the missiles. They were recovered from a number of persons who were killed or injured. (CH) e

Cover used to conceal the device.

¢ The damage caused. The specific pattern and the extent of damage and its nature are important clues as to the power and nature of the infernal device.

¢ The pressure wave. The size, extent and the disturbance damage caused by the wave is dependent upon the nature and the amount of the explosive used along with the structuring of the device and the space available at the scene. Each explosive device will have its own pressure wave. ¢ The traditional clues like tool marks, fingerprints, abandoned objects,

foot,

or

footwear

marks,

tyre marks

may

also

be

available—if not trampled by the onlookers. The abandoned objects are often important clues. They should be searched for and collected. Theoretically there should be a wealth of clue materials at the explosion site — often there is. However, the destruction is so extensive and debris is so large that the residual evidence is in minute quantities. It is hidden or covered by the huge amount of debris. The search and location of the evidence, therefore, need both patience and experience of very high order. If the same are not available, the explosive site appears to the novice just a pile of useless debris, a dump site. 4. Collection of Clues.—Collection of clues from the exploded materials follow the usual pattern (supra chapter II) ¢ They must be collected in clean containers. ¢ The site of collection must be established. ¢ The chain of possession must remain unbroken. ¢ The authenticity and integrity of the clues must remain beyond

doubt.

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14.6.2 Dispatch of Clues

The clues in explosion cases must be dispatched through special manager whenever possible. The rule that only the investigating officer and the expert examiner handle the exhibits in unsealed condition and others handle the evidence only in sealed condition, must be adhered to. A log of the movement of

the clues must be kept. Items collected from different sites should be packed separately . All the clues collect must be logged properly in the case diary and also in the dispatch letter sent to the examiner. The process of location, collection, packing and dispatch must ensure that the relevancy, authenticity, integrity and continuity the chain of possession is maintained in legally acceptable mode. 14.6.3 Handling Live Devices

The handling and collection of the live explosives, however, is completely different. It is a highly specialised work. The novice should not tread the field. The following principles must be followed: ¢ Consider the device dangerous, until proved otherwise. ¢ Unless you are familiar with the device and know how to handle it, do not fiddle with it. e Get the assistance of the explosive disposal squad, whenever an unknown infernal device is encountered. ¢ Make the premises safe by piling sandbags around the device. ¢ Guard the site, day and night, till it is disposed off. ¢ The legal requirement of witnessing the collection should be ensured. The main problem in the location and collection of a live explosive device is the identification of the device and ascertaining its danger and destructive potential. This is imperative because slight miscalculation about the infernal device, may cause serious danger to life and property. The live bomb is a dangerous species. It has to be handled only by professional bomb disposed squad. These squads were not common. However, due to the increased activities of the terrorists, some police forces have organised their own live bomb disposal squads. Others utilise the services of the military specialist for the purpose. Search for the live bomb has often to be carried out by the investigating officer. In addition to the usual investigating kit, he should have the additional equipment mentioned above. It has been found that specially trained dogs have proved best to locate the live bombs. Instrumental detection of bombs, based

upon vapour analysis, are second best, the human search is the least effective. Once the presence of live infernal device is ascertained the following drill is routine:

1. Evacuate the premises at once. 2. Keep all persons away from the site. 3. Cordon off the area. No lighted material or smoking should be allowed nearby.

—

EXPLOSIVES

937

- Let it age if it is possible (open space) and it does not interfere with routine life of the public. . Check the device with microphone for any clock mechanism inside, when safe.

. X-ray the device for internal arrangements, if safe. It will reveal clock work, batteries, percussion caps and switches.

. Check the site near the device for any footprints. If fingerprints are found on the device, they should be collected with extreme care. . Collect extraneous matter such as hair, fibre, dust, paint and tool marks, if found on the device.

. Collect any spilt over explosive or related material. Photograph and preserve any writing discovered on the device. It may lead the investigating officer to the culprit. 10. Whenever possible only two persons should handle the explosive device. They should wear protective clothes, devised for the purpose. The clothes are flame, heat and splinter proof. Tk Sketch the location of the device and the device snowing inter-distances between the device and the various fixed objects. 12: Photograph the explosive device at site. Any labels, knots special

structural features and presence of fuse or other initiation device should be shown in the photograph. ii Check the device with a microphone or with a remote control stethoscope for any clock mechanism inside. 14. X-ray the device for internal arrangements, if safe. It will reveal clock work, batteries, percussion caps and switches. a If fingerprints are found on the device, collect them with extreme care. 16. Check and collect for tool marks on the device. 17. Requisition the help of an inspector of explosive or of a trained explosive expert from Forensic Science Laboratory, if available or bomb disposable squad. The chief inspector of explosive has his headquarters at Nagpur. The subbranches of the office have their headquarters at Agra, Asansol, Chandigarh, Gauhati,

Gomia,

Gwalior,

Kolkata,

Madras,

Mumbai,

Secundrabad

and

Sivakasi. In case inspector of explosive is not available, local army unit should be contacted. Since the increase in the terrorists activities in the country the organisation of the Chief Inspector of Explosives has stopped visiting the site of explosion. The police has to depend upon increasingly on their own squads. Or, they utilise the services of the bomb disposal squads of the military. 18. The live bomb handling is done by the bomb squad. They may: ° Take the bomb to a distant place after picking up the device with the help of a remote control and carry it in a live bomb carrier.

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Fig. XIV-9 Remote control explosive handling device. e De-activate the bomb at the site:

e Freeze the device with liquid nitrogen or carbon dioxide (or other material).

e Disrupt it at site with shotgun, gas gun or water cannon. e Jam it with POP solution/resins/foam.

¢ Submerge the device in water if they are sure that water would not explode it. ¢ Burn the device. In some cases it may detonate, hence necessary precautions are taken. The circumstances of each case: location, size of the device and the calculated

hazard involved determines the disposal mode. 14.6.4 Evidence on the Culprit

The culprit carries evidence on his person or orvhis clothes. It may be: 1. Particles of explosives or other materials if he has manufactured or assembled the IED himself. 2. Stains from the explosions or their constituents.

EXPLOSIVES

939

3. Dust or debris from the scene of explosion. 4. Injuries on his person from the exploded material. In an interesting case, a person working in an office, for consideration , sprinkled petrol on the files at the time of closing of the office at night and threw a lighted match through a broken window glass inside the office at night. There was an explosion in the process, however, his face was also badly burnt, imprinting his presence at the scene of aerosol explosion. (CH) 5. Embedded fragments of the explosive devices on his person or in his clothes. 6. Debris on his shoes from the scene.

He provides the sample of the fingerprints, foot or footwear prints and body fluids, hair, fibres, etc. as standards for comparison of the corresponding extraneous material found at the scene.

14.6.5 Evidence in the Vehicle If a vehicle has been used to go to the scene and carry the infernal device and

later on abandoned, the vehicle may carry evidence: 1. Dust, dirt, and debris from the scene.

. Tyres that left the marks at or around the scene. . The explosive’s vapours from the infernal device. . Particles, stains or odours in the vehicle. . Bloodstain, if the culprit has been injured.

. Hairs and fibres from the culprit 7. Fingerprints of the culprit. The search of the vehicle is often rewarding. FP Oo Dn W N

14.6.6 Evidence at the Factory or Residence

The premise used for assembling or preparing the infernal device is a rich source of evidence. It shall have: 1. The tools used for the assembly. 2. The residual chemicals used for the device. 3. The additional devices if the culprit is a professional sabotetr. 4. Unused containers, initiators, explosive materials and missiles. 5. Evidence relating to storage, manufacture or assembling activities. If the culprit is living with a family, he may carry out these activities without their knowledge. He uses, in such cases, a place, which is not visited frequently by the members, abandoned sheds or garages are the usual sites.

While searching for the live bomb, the investigating officer in addition to the usual investigating kit he should have the additional equipment mentioned below: ¢ Protective suit for the operator including protective helmet. ¢ Blast container.

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Bomb suppression blanket. Explosive detectors, including dog squad. Contact-less operating stethoscope. Metal detectors. Probes for probing hidden bombs. Extension mirrors, to check areas not directly visible. Endoscope. Fibbroscope. Thermal cutter. Bomb disrupters. Door opening kit for rooms, cars, safes, etc.

14.6.7 Disposal The disposal of live bomb needs all the care, not only from the safety angle

but also for the preservation of the incriminating evidence to pin the guilt on the culprit. The following steps help to preserve the evidence: Allow the device to age at the site if possible. Photograph the explosive device at site. Any labels, knots, special structural features and the presence of fuse cord or other initiation device should be shown.

The easiest way for the disposal of an explosive device is to explode it at the site where it is discovered, if it is safe to do so and the loss of the property is not high. However the explosion will destroy most of the incriminating evidence which may be present on the device. Besides, the explosive devices are found in areas where it is not practicable to explode the device at the site and hence it is not practised. In another technique the explosive device is ‘quenched’. The device is put in a bucket of water and allowed to soak thoroughly. Water enters into the explosive device and renders it ineffective. The quenching mode was quite effective because the usual explosive material used to be black powder, which on drenching would become ineffective. The explosive materials have changed since. If, however, alkali metal have been used to initiate the explosion, the soaking initiates the action immediately. Besides, water has no effect on some

new explosives.

Light oil as the soaking medium has also been recommended. It has one advantage over water. The device, which explodes on contact with water, will be safe in the oil.

The ‘quenching’ process spoils or destroys the evidence like the fingerprints, writings etc, on the body of the device. Whenever possible such evidence should be photographed. Such evidence can link the criminal with the device. The best way to handle an explosive device, from the evidentiary value point of view, is to dismantle it and preserve the various parts of the device for the detailed evaluation and study. However, it is extremely dangerous. Only the expert who is sure that the opening of the device is safe should undertake it.

EXPLOSIVES

941

The practical way to dispose off an infernal device is as under: ¢ Donot drag, tilt, turn or overturn the device. ¢ Pick up the IED by a remote control robotic device. e Place it in a shock-proof, specially made carriage. It has a 10 cm. thick steel tube. It is open both at the top and at the bottom. There is a steel wire cage hung inside the tube. The infernal device is placed inside the cage. The tube is fixed at the hind part of the carriage. Even if the infernal device explodes during transport, the pressure waves will go upward or downward, the front and the hind part of the tube as well as the surroundings remain under pressure shadow, thus, causing minimum damage on all sides. ¢ Take the device to a safe place, away from the inhabited area. e Allow the device to ‘age’ for three days.

¢ Turn it by a remote device and leave it for a few hours. It is over-turned and again left for a few hours more. * Open the infernal device from an unexpected place. For example, if the device is tied with a rope or string, it is cut. If there is a solder joint, it is dissolved in mercury. It is not hammered or sawed. ¢ Remove metal parts by the action of sulphuric acid (10 %). ¢ Use minimum force in all these operations. The circumstances of each case: location, size of the device and calculated hazard involved, determine the disposal mode. All items, explosive charge, initiator, container, wrapper, string, wire, paper, writing, fibre, cloth, tape, clock work, switches, caps and adventitious materials such as hair, dust, dirt, paint and tools are collected. If the explosive device is considered dangerous it is destroyed at the earliest with the help of a bomb disposal expert. 14.6.8 Dispatch

The inspectors of explosives examine explosives and explosive devices. If they are not available at the site, the ‘safe’ devices are collected and dispatched to them or to the Forensic Science Laboratories if they have arrangements for the examination of the materials. While dispatching them one should: 1. Send them through special messenger and not by post. 2. Send only representative sample of the explosive and not the whole bulk. 3. Pack the initiating device or the detonators separately from the explosives. One or two detonators are sufficient. 4. Inform the station master that the explosives are being carried in the train. 5. If possible the explosive or the device should be enclosed in liquid nitrogen for the safest storage and transport. 6. Never send dangerous explosive by special messenger. They should be examined at site. Such explosives are: fulminates of silver and mercury,

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azides, lead styphnates, self-igniting incendiary solid or liquid mixtures (chlorate mixtures, phosphorus solutions, bombs, etc. In recent times the abuse of explosive by the terrorists has increased tremendously. The affected state police forces have opened their own explosive units. They now examine both explosive and the scenes of explosions, along with the investigating team. 14.7 PROBLEMS There are usually the following types of questions which need answers: 1. Is the given material an explosive? 2 . Is the given device an explosive device? 3. Which explosive has been used to cause the explosion? 4. Which explosive(s) has been used to construct the given device? 7 . What was the quantity of the explosive, which has caused destruction? 6 . Which is the source of the explosive? 7. Is the explosive device a standard military bomb? 8 . Have similar explosive devices caused the given explosions? 9 . How was the IED initiated?

the

10. Can the culprits (the manufacturer, the user) be identified?

11. Could the non-explosive substances like LPG- air mixtures cause the explosion? 12. Is the explosion accidental or intentional? 13. What was the level of expertise used for the manufacture of the IED used? 14. Were the given premises used for the manufacture of the given IEDs? 15. Was the given vehicle used for transporting the IEDs? 16. Are the crackers manufactured according to the specified legal norms or not?

17. Is the accident due to the negligence or due to the illegal/defective manufacture?

14.8 EVALUATION The inspectors of explosives in conjunction with the chemical examiner’s laboratories carried out evaluation of explosives and explosive devices in olden days. This work is now being taken over by Forensic Science Laboratories. It is not worthwhile to go into the technical details of the methods used in the identification and analysis of the explosives, only basic information has been outlined in the following discussions. 14.8.1 Identification of Explosives from Debris

The two problems which differentiate the explosives identification from debris vis-a-vis from the pure explosives are:

EXPLOSIVES

943

1. Locating the evidence. ys Minute quantities. They have technology.

been

successfully

tackled

in recent

times,

thanks

to modern

14.8.2 Separation or Extraction

The separation or extraction of the explosive residues or their decomposed products from the debris is a time consuming process and need patience. The following sources of the materials are comparatively richer in clues and hence more fruitful to work with: )# The blast crater is the most important site. The debris with the crater surface should be thoroughly checked. It is most rewarding. Sometimes even the fragments of the device, including those of the initiators, detonators, boosters, containers, missiles etc. and found embedded in the surface.

. The path of the pressure wave should be determined. Articles displaced/ disturbed in the path are likely to carry evidential traces— explosive residue and fragments of the device, etc. . The item blasted is another important source of the clue material. The item or its pieces will carry the evidentiary clues. In a blast in a railway compartment an IED was kept on the luggage shelf made of metallic planks with empty spaces the dynamite sticks were used as the explosive. After the explosion when the site was examined part of dynamite was still found sticking to the metallic plank. It was possible perhaps because the metallic plank prevented the transmission of the shock wave.(CH ) If there are no signs of pressure wave the area should be searched by using spiral method, taking the blast seat as the starting point. The evidence found at a scene of blast is:

Unexploded explosive. Decomposed explosive residues.

Fragments of the container, timing device, initiators, detonators, batteries, clocks, and electronic devices for initiation through remote control. They help crime-criminal linkage. If the detonating fuse or fuse wire has been used to initiate the blast, it

may have its mark at the site. The burnt stain indicate the position of the site. If electric blasting cap is used, the insulating material of the wire and fragments of the cap can be useful clues. Missiles, if they have been used in the IED. Electrical insulating tape and hook up wires are sometimes used in time delay IEDs. They survive explosion in some cases. They can link the criminal] with the crime.

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The expert in the laboratory can piece together the materials recovered and come up with a reconstructed entity, which should have close resemblance to

the original identity. 14.8.3 Identification of the Explosive

The debris from the explosion scene is examined in the laboratory to find out : 1. If the explosion is due to explosive, usually this is done with the help of gas chromatography. The explosive vapours are collected, concentrated, and then analyzed to identify the explosive. They also indicate the presence or absence of the explosives in the debris. 2. The likely debris pieces are examined under a stereomicroscope and suspected explosive material is collected manually. 3. When there are no visible explosive particles, solvents extract is carried out. Organic constituents of explosives are extracted with organic solvent (acetone, chloroform) and inorganic constituents with hot water. The extracted material is concentrated and the constituents are identified.

The identification procedures are similar to those for normal explosive. As discussed already TLC, IR, XRD, GC-MS, HPLC and HPLC-MS are proving helpful for organic constituents whereas IR, XRD, SEM/ EDX are often used for

inorganic constituents.

A suspected material is identified as explosive by tests for the same. The quantities taken for test purposes are small so as to eliminate the danger of accidental explosion. The following tests are common:

14.8.3.1 Friction test Some explosives are sensitive to friction. They explode when rubbed against rough surfaces. A trace of the suspected material is placed on a stone slab. The material is scratched on the same with a metre long bamboo stick. The experiment is repeated with the increasing amounts of the material. If the material catches fire, it is an explosive. 14.8.3.2 Impact test

Impact sensitive materials are tested with a hammer blow. A small quantity (starting from a trace and increasing the amount gradually to a pinch) is taken on a paper, kept on a standard anvil and struck with a hammer. If the material explodes, the material is explosive. The experiment is repeated about half a dozen times in case it does not explode, to make sure of the fact.

14.8.3.3 Flame test A small amount of the suspected material is taken on the tip of a strip of paper. In the case of a liquid, the paper is dipped in the liquid to absorb a fraction of a drop of the liquid and dried. The paper tip is then exposed to a candle flame. [f the burning takes place violently, it is possibly an explosive substance. The colour of the flame may indicate the nature of explosive.

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EXPLOSIVES 945

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14.8.4 Individual Materials 14.8.4.1 Gunpowder

It is an intimate mechanical mixture of nitrate of sodium or potassium, sulphur and charcoal. When it is treated with water, nitrate gets dissolved and can be identified from the solution. The solution can be tested for potassium nitrate either by flame, colour or instrumental test. Infrared Spectroscopy and Xray diffraction analysis have been used. If the residue is stirred in pyredine solvent, sulphur gets dissolved. Filtration separates the charcoal from dissolved sulphur. Evaporation of the solution gives sulphur which is identified from its colour, crystals and burning test. It gives sulphur dioxide on burning. If sodium hydroxide is added to the solution, a tan-brown colour indicate sulphur. Charcoal is identified from its colour, non-reactivity and burning. Gunpowder residues contain nitrates and _ nitrites, which permit identification of the residues.

14.8.4.2 Gun cotton Gun cotton is identified through its solubility. It is insoluble in water, sparingly soluble in alcohol and soluble in acetone and certain esters. It is identified through TLC. The plate is coated with silica gel and acetone as solvent. Water elutes the nitrocellulose. Sodium hydroxide spray followed by Greiss Reagent gives red spot. 14.8.4.3 Nitroglycerine

Nitroglycerine when heated with sulphuric acid and mercury gives nitrogen dioxide—a brown gas with a pungent odour. TLC is used to confirm nitroglycerine. Silica plate with ether solvent and spotting agent as in nitrocellulose give yellow to red colour. 14.8.4.4 Trinitrotoluene (TNT)

TNT is identified through its light brown colour. Other substances, both explosive and non-explosive, are found in TNT explosives. These substances help in the identification of the explosive. TLC is useful to identify the explosive. Ether is used as solvent and silica gel is used as TLC plate coating. 14.8.4.5 Picric acid and picrates

Picric acid and picrates are identified from their colour, melting points and derivatives with characteristic melting points. Picric acid and other explosives can be identified and estimated by instrumental methods. TLC, IR, HPLC, XRD are particularly useful.

14.8.4.6 RDX The explosive RDX in its various formulation has been used as military explosive now for a long time. Its abuse by the terrorists is comparatively of recent origin but it has been used routinely by the terrorist currently on extensive scale.

EXPLOSIVES

947

It is identified easily by: 1. Spot Test : 6 amino-1- naphthol, Sulphonic acid gives yellow colour. Ethanol addition changes it to blue, to blue grey and to grey. 2. T.L.C. Acetone and silica gel plate are used. It identifies RDX. 3. IR spectroscopy identifies RDX. Its acetone solution or KBr pellets give characteristic trace. 4.

X-rays diffraction, GC., HPLC, GC-MS are other techniques used for its

identification

14.8.4.7 PETN PETN does not give good spot test. It is not easy to identify it through TLC. The methods of choice are Infrared spectroscopy or X-ray diffraction analysis. 14.8.4.8 HMX The explosive is similar to RDX in composition. Its identification follows the same pattern: Spot test, TLC, IR, XRD are the method of choice. GC, HPLC, GC-

MS techniques have also been used. 14.8.4.9 Dynamite

The abuse of dynamite is frequent, though not as much as that of RDX. The common methods used for the identification are those for its constituents which are varied in different types of dynamites. The dynamite is identified from the presence of nitroglycerine and other constituents. The usual tests (TLC, IR, GC, and HPLC ) are used to identify the organic constituents. The usual constituents are:

Nitroglycerine Nitrocellulose Ammonium Nitrate

Sodium Nitrate . Sulphur . Filler, which may be saw dust FON Da 7. Oils

14.8.5 Explosive Devices

An explosive device carries legend indicating the nature of device, its manufacturer, the country of origin and the year of manufacture. Often the legend is in code words or abbreviations, which are known to experts in the field. Explosives, explosive devices and explosions were a rare phenomenon about two decades ago. Neither the public nor the law keepers were aware of their intricacies. The terrorism of the decades of eighties and the nineties has changed the whole context. There have been so many explosions in these two decades that everybody has become aware of the extreme danger they pose. The law keeper have to be vigilant and ready to meet the new challenges that the new sophistication and the powerful explosives are posing.

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EXPLOSIVES

949

14.9 CASE LAW

14.9.1 Offence The contention of the learned counsel for the petitioners is that the offence, even if it is true, falls under section 6(3) of the Indian Explosives Act 4 of 1884, that it is a bailable offence and that, therefore, the petitioners are entitled to bail.

Indian Explosives Act 4 of 1884 was enacted to regulate the manufacture, possession, sale, transport and importation of explosives. Section 4(1)(a) of the said Act defines “explosive” as gunpowder, nitro-glycerine, dynamite, gun cotton, blasting powder, fulminate of mercury or of other metal and every other substance, whether similar to those above mentioned or not, used or manufactured with a view to produce a practical effect, explosion, or a

pyrotechnic effect etc. Section 6(3) of the said Act lays down that any person who manufactures, possesses or imports an explosive in contravention of a notification issued under section 6 shall be punishable with imprisonment for a term which may extend to 3 years or with a fine which may extend to Rs. 5,000 or with both, ete. But, the Explosive Substances Act 6 of 1908 was enacted to amend the law relating to explosive substances. Section 2 of the Act defines “Explosive substance” as deeming to include any material for making any explosive substance etc. Section 5 of the said Act runs as follows:

Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punishable with imprisonment for a term which may extend to fourteen years, to which fine may be added, or with imprisonment for a term which may extend to 5 years to which fine may be added. Gunpowder is also an explosive substance within the meaning of section 2 of the Explosive Substances Act (Act 6 of 1908). The case of the prosecution is that,

when the driver of the vehicle questioned the first petitioner about a bag carried by the first petitioner in the vehicle, the first petitioner told him that it contained rice. So, the first petitioner appears to have made a false representation about the material, if the case of the prosecution is true. Also the court has to take judicial

notice of the fact that Kohima in Nagaland is a disturbed area. So it cannot be said at this stage that the first petitioner was in possession of 32-1/2 kg. of gunpowder with him for any lawful purpose. There is prima facie reasonable suspicion that the first petitioner had gunpowder with him for an unlawful object. As such, the punishment for the offence may extend to 14 years under section 5 of the Explosive Substances Act, 6 of 1908, and it is a non-bailable

offence.’ 14.9.2 Non-dangerous Explosions So far as the charge under section 3 of the Explosive Substances Act is concerned it has to be established that the accused concerned had caused “an 1. Masha Angami v. Manipur Adm., 1968 Cri LJ 187 (Manipur).

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explosion of a nature likely to endanger life or to cause serious injury to PEOPRDUY sishstecisteies ” In the present case although the evidence clearly indicates that there were explosions resulting from the throwing of bombs there was no sufficient evidence that the explosions were of a nature likely to endanger life or to cause serious injury to property. All that the evidence shows is that some minor injuries were caused to some of the constables of the police party by splinters thrown out by the exploded bombs. The evidence being that the bombs were thrown at the party and in their midst, the fact that only minor injuries were caused by the explosions would indicate that the bombs were not of such a nature as to cause explosions likely to endanger life. There is also no evidence that any injury not to speak of serious injury was caused by the explosions to property. The explosions that were caused might very well have been caused by bombs and not by crackers, but that fact alone would not satisfy the requirements of section 3 of the Act. The position appearing from the evidence is want of proof that the explosions actually caused by them were of a nature likely to endanger life or to cause serious injury to property and such being the case the conviction of the concerned appellants under section 3 of the Act although based on the expert’s evidence that a bomb of the type examined by him would be capable of endangering life on explosion is not justified, particularly in view of his positive evidence in cross-examination which shows that although a chemical examination of the remnants of a country made bomb indicated existence of potash chlorate and arsenic sulphide therein, it is on the quantity and proportion of the said ingredients about which there is no evidence, that the mischief-making power of a bomb depends. We find that in face of the positive evidence as to the nature of the explosions caused by the bombs in this case, the conviction of the concerned appellants under section 3 of the Explosive Substances Act and the sentence passed thereunder cannot be

sustained and must be set aside.! 14.9.3 Identification It appears that soon after the explosion, the Inspector of Explosives, West Cricle, Bombay, proceeded to Latur for investigation. He took into possession certain substances from the scene of the accident. By means of a letter dated May 11, 1962 sent from the office of the inspector of explosives these substances were forwarded to the chemical examiner, Government of Maharashtra, for examination. The samples were as follows : A white substance in a packet suspected to be potassium chlorate. An orange yellow substance suspected to be arsenic sulphide. A round stone piece containing smears with orange yellow chemical adhering to it. (This was to be examined for the presence of arsenic sulphide and potassium chlorate.)

A contraption to test the explosibility of a mixture of potassium chlorate and sulphur.

1. Nema Adak v. State of West Bengal, 1965 (1) Cri LJ 160 (Cal).

EXPLOSIVES

951

Dineshchandra, P.W. 10, assistant inspector of explosives also went to the scene of the explosion along with the Inspector on May 9,1962 and various samples were collected from the shops of the appellants as well. All these were forwarded to the chemical examiner for examination. The report of the chemical examiner (Ex-87) which is to be found on the original record gives the following analysis in respect of the above substances: “Exhibit (1) is potassium chlorate. Exhibit (2) is arsenic sulphide. Exhibit (3)

has sediment containing arsenic sulphide and sulphide and sulphur addhering to it. Exhibit (4) has potassium chlorate and sulphur in its cavity. Apart from the original record these facts stand established from the evidence of

Dindeshchandra, P.W. 10 and the report (Ex. 38) which he had submitted on November 2, 1962 which was duly proved by him when he appeared as a witness. He has further stated that when he inspected the premises of the factory on May 9, 1962 he noticed half burnt raw material like sulphur, white powder, the ingredients of which he could not ascertain. There were grinding stones as also empty tubes for manufacturing exhibition fireworks. As regards the cause of the explosion his opinion may be given in his own words: Probable cause of the explosion must have been the large quantities of the raw materials, gunpowder and finished fireworks and the raw materials for the same were stored in the premises. At the time of the explosion there were large quantities of the fire works, finished as well as in the process of preparation, loose compositions and the gunpowder. They were being dried in the open court yard of the premises. Some of the items contained very sensitive explosive compositions which might have exploded due to the spark, percussion or friction or fire.

Although there was no direct evidence of the immediate cause of the explosion but indisputably the explosives the possession of which was prohibited under the notifications issued under the Act were found in the shops or the premises where the appellants carried on their business and the substances that have been mentioned which were of a highly hazardous and dangerous nature were apparently being used in the manufacture of the fire works since they were found at the scene of the explosion, (vide the evidence mentioned before and the finding of the trial court and the additional sessions judge.) As stated by Dineshchandra, P.W. 10 these explosives had sensitive compositions and even friction or percussion could cause explosion. It is further proved that in the factory itself where the explosion took place the persons who were employed were mostly women who brought their small children with them and young children below the age of 18 had been employed in the manufacture of the fireworks, etc. The factory was situated in close proximity to residential quarters. It becomes therefore all the more incumbent on the appellants to have completely avoided the use of highly sensitive compositions of the nature

mentioned above.'

CSM 1. Bhalchandra v. State of Maharashtra, 1968 Cri LJ 1501 (ue

Chapter 15

FIRES SYNOPSIS

15.1

IMPORTANCE

15.2

NATURE

15.2.1

Progress

15.2.2

Control

15.2.3

Arson Fires

15.2.4

Profile of an Arsonist

15.2.5

Accidental Fires

15.2.6

Spontaneous Fires

15.2.7

Automobile Fires

15.2.8

Burnt Bodies

15.2.8. 1 Classification 15.2.8.2

Post-mortem or ante-mortem burns

15.2.8.3

Accident, suicide or murder

15.3

COLLECTION OF CLUES

15.3.1

Fingerprints

15.3.2

Track Marks

15.3.3

Miscellaneous Traces

15.3.4

Initiators

15.3.5

Accelerators

15.3.6

Combustible Materials

15.3.7

Electrical Installations 952

FIRES

15.3.8

Heating Appliances

15.3.9

Fire-extinguishing Devices

15.3.10

Foreign Matter

15.3.11

Evidence of Other Crime

15.3.12

Character of Fire

15.4

PROBLEMS

15.5

EVALUATION

15.5.1

Expert help

15.5259

Fire brigade

15.522

Architect

15.541.3

Electrical engineer

15.5.1.4

Inspector of explosives

185. 1.8 Forensic scientists 15.5. 7.6 Photographer £9.9.1:2 15.5.2

Occupant

Systematic Investigation

WO.

Prove malicious intent

19.5.2.2

Eliminate accidental cause

15.5.2.3

Procure side information

15.5.3

Laboratory Evaluations

15.6

EXPERT TESTIMONY

15.7

CASE LAW

15.7.1

Burning

15.7.2

Negligence

15.7.3

Bride-Burning

953

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FIRES 15.1 IMPORTANCE The incidence of fires is very low in India. They are mostly accidental, but

some cases of arson (malicious fires) do occur. Fires cause extensive destruction

of property and life. In USA the fire causes colossal losses. In 1987 the reported losses were:

1. Property burnt

= 8214 billion dollars

2. Lives lost

= 5810

3. Persons injured with serious burns

= 28215

4. Number of arson cases

=

5. Arson cases in cities

= 40%

146000

The law, therefore, takes a serious view of malicious fires. Sections 435 and

436 of the Indian Penal Code contain penal provisions:

Section 435 “Whoever commits mischief by fire or any explosive substance intending to cause, or knowing it to be likely that he will thereby cause, damage to any property to the amount of one hundred rupees or upwards or (where the property is agricultural produce) ten rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.”

Section 436 “Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing, it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” Bride burning or dowry deaths have added a new dimension to fire investigations in India. Newly married woman who have not brought adequate dowry with them are burnt before or after killing by their in-laws. It is alleged that the woman caught fire accidentally. The crime is viewed, as it should be , very seriously. The law has been modified to facilitate investigations. A new sub-section 113 B has been added to the section 113 of the Indian Evidence Act. Section 304B, IPC, Dowry Death

(1)Where the death of a woman is caused by burns or bodily injury or occurs otherwise than normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or by any relative of her husband for, or in connection with, any demand for dowry, such death shall be called ‘dowry death’, and such husband or relative shall be deemed to have caused the death. 955

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Section 113 B, Indian Evidence Act, Presumption of Guilt

When the question is whether a person has committed the dowry death and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person has caused her dowry death. The investigation of fire has assumed tremendous importance otherwise also: 1. The fire has great potential for destruction of property and life. It is perhaps a more potent weapon than a firearm to settle score directly or indirectly. 2. It destroys most of the evidence by burning it. 3. The efforts to put down the fire often destroy or contaminate the evidence. 4. Arson fires are involved in serious crimes:

¢ ¢ ¢ e 5. Fire e

Communal or political riots Murders Personal vendetta Insurance frauds is used to destroy evidence of illegal activities: Manufacture and storage of explosives, narcotics. Illicit liquors, counterfeit currency, arms and ammunition

¢ Clandestine press e Evidence relating to espionage. Spies often do it. ¢ Evidence relating to smuggling The investigation of the cause of a fire, due to its destructive nature and huge

piles of debris is a difficult and tedious task. The possibilities to establish whether fire is accidental or malicious are meagre. The chances of pinning the guilt on to a suspect are still less. The main reason for the failures is that the investigations require long hours, in fact days and weeks, and the patience of the proverbial donkey, which are not available these days. Non-accidental fires are mainly motivated by communal and political vendetta, personal enmity, destruction of incriminating evidence relating to crimes like embezzlement, theft, robbery and murder. Maniacs also cause the fires.

Further, the crime is being committed for economic gains. The vast economic potentialities of the crime are coming home to the criminal mind. The crime is likely to be exploited on an ever-increasing scale in the coming years.

15.2 NATURE Fire is produced by the combustion of substances. It is a chemical process in which a material, ordinarily, combines with oxygen (oxidation) and produces heat. It may also produce light. The process is possible only if certain requirements are met with. They are availability of:

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1. Appropriate ignition temperature

2. Combustible material- fuel 3. Oxygen.

If any of these requirements are not available, the combustion does not take place. Normally, oxygen is supplied by air, the ignition device (e.¢., flame) provides ignition temperature and any combustible material, usually organic matter, bums on being heated by the ignition device. If the supply of oxygen and vapourisation of the substance is sufficient, the combustion proceeds. It is accompanied by heat and light. The phenomenon is called burning in ordinary language. If the supply of oxygen is limited, smouldering takes place, there are no flames in the process. If may be noted that most of the substances burn in gaseous state only.

Sometimes, there are no signs of combustion, but it may be going on inside a substance on a limited scale. Such substance may cause fire on getting an opportunity. For example, a charcoal piece may appear ‘cold’ and ‘dead’ from outside but inside it, the fire may continue. The oxygen absorbed by the charcoal piece, in this case, supports the combustion. The piece may start a fire. 15.2.1 Progress The progress of a fire depends upon a number of factors. The important ones

are: . Availability of combustible material and oxygen . Temperature of fire . Humidity NO. Direction and velocity of wind WW me 5. Rate of production and dissipation of heat energy. These factors should be carefully considered as they may help to find whether in a given case the fire is accidental or malicious. Ina case, a guard of a coaltar drum store had been selling coaltar clandestinely for some period. He was caught. The fear of the pending inquiry and consequence thereof loomed large on his mind. One night he poured one drum on the floor of the closed storeroom and put it on fire to commit suicide and to destroy the evidence. Next day he was found dead, stuck in the coal tar. He was found burnt only up to his legs. The fire consumed even the coaltar of the drum he had poured out, partially. It appear the limited supply of the oxygen did not permit the complete destruction of the body and the store. (CH)

15.2.2 Control

The fire should be controlled not only to protect property and life but also to save the incriminating and other evidence having a bearing on the cause of fire. The methods employ the basic principles of production of fire in the reverse order: 1. Covering the fire with carbon-dioxide gas or non-combustible foam stops the supply of oxygen.

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The vaporisation of the material is stopped by soaking it with water or by covering it with sand. In jungle and other big fires, spreading over a large area, providing a belt of ‘open space’ from where all combustible materials are removed segregates the burning area. It prevents spreading of fire. Fire may be malicious or accidental. In every fire investigation, the law presumes the origin of all fires to be accidental unless proved otherwise. The burden of proof as usual, is on the prosecution. 15.2.3 Arson Fires Arson is malicious fire. The arsonist tries to achieve:

be Proper initiation. 2: Quick spread. < Complete destruction.

The culprit uses various devices and materials for initiation: 1 A flame through a matchstick, a candle or a fuse cord is the commonest. They may or may not leave traces. . Explosives and incendiary materials may have been used as initiators. A large variety is available in this class. It may be a simple cracker or even an incendiary bomb. The choice depends upon the material available and the ingenuity of the culprit. The explosive device is usually kept in a container, which may or may not get destroyed in the ensuing fire. . Chemicals used for the purpose are, sulphuric acid with sugar and potassium chlorate, sodium and potassium metals, ethyl lead and yellow phosphorus. The materials start fire under certain conditions. Heating appliances are excellent initiators. A live electric heater, an electric iron or a radiator, if left alone in contact on in near contact position with an easily combustible material, such as, clothes, papers, fibres, grass, leaves or films, may start fire. In an interesting case, a heater was put on. The current supply stopped. It was not restored during the office hours. While closing the office, the concerned staffforgot to put off the heater. A fire was noticed by the guard at about midnight. It was put off soon after. The investigation of the fire revealed that there were some files lying near the heater. When the current was restored, the heater put the files on fire. (CH) 9. Remote control electronic devices to start malicious fires are increasing. They trigger a heating mechanism, which starts fires.

The arsonist uses accelerators in order to ensure that the intended target (say a building) does catch fire quickly and completely. He uses the following accelerators: i Inflammable

liquids, such turpentine oil, ete.

as petrol, kerosene

oil, diesel,

alcohol,

FIRES

959

2. Easily combustible solids, particularly celluloid (old films), paper, rags, clothes, straw, grass, cotton and cotton waste. They are sometimes soaked in vegetable or other inflammable oils or resins. Buildings do not burn easily. The arsonist, therefore, ensures sufficient supply of combustible materials like furniture, books and clothes to destroy the building. The common targets of the arsonist in India are cattle sheds, crop and hay stacks, standing crops and jungles. Factory godowns, government buildings and factory premises are the targets of the political arsonist. Indiscipline among students may lead to arson in academic institutions. Students and mobs set buses, railway stations and trains on fire.

Limited supply of combustible material limited the loss.

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15.2.4 Profile of an Arsonist The cases of arson are common in USA. The psychologist there have evolved a profile of an arsonist. It may be of some interest in India also in view of the increasing incidences of arson. The elements of the profile are: 1s Age: 16-30 years usually. 2 Mental status: about 25 % of the arsonists are unbalanced, mentally,

emotionally. Social status: most of them are from slums. A few of them from middle

and upper class. Usually unemployed. Marital status: usually unmarried, divorced, maladjusted.

Personality: Feeble, cowards, with inferiority complex, introverts, frustrated, lonely, anxious, tense, obstinate, contemptuous of authority and society, lack ambition and self respect. Associates: usually criminals, drunkards. ’ Motive: excitement, revenge, sadistic pleasure, to attract attention, show-off. Target: random. gy, Time: night. 10. Recidivism: common

Professional arsonist is a different species. He is known in USA as TORCH. They are professionals. They have different profile. Likewise maniacs do not correspond to the profile. They are also known as pyromaniacs.

15.2.5 Accidental Fires Accidental fires are caused by: ly Discarded burning cigarette ends or matchsticks. a Heating appliances which generate sufficient heat and if the usual

process of dissipation of heat is obstructed by combustible materials, they start fire. Short circuiting and defective insulation. . Lightning. Its occurrence is rather rare in India. Sparks generated by friction in factories, etc., or cinders thrown by locomotives or factory flues. They may fall on combustible materials and start fire.

Domestic pets (e.g., cats and dogs) which may upset a lighted candle or a kerosene oil lamp and start fire. Explosives are highly susceptible to pressure, friction, impact and, of course, to heat and flame. Their defective storage is a constant source of accidental fires. Sun's rays, passing through bottles or glass get concentrated as in a lens. If they fall upon a combustible material they start fire.

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15.2.6 Spontaneous Fires Spontaneous fires are accidental fires. But there is no external agent to cause these fires. Internal changes in the materials cause such fires. Common

examples are: 1. Auto-oxidation. Some haystacks and refuse or dung heaps catch fire if correct conditions of temperature and humidity are present. The bacteria initiate auto-oxidation but the later stages are purely chemical because the bacteria cannot survive the temperatures developed by the process.

2. On exposure, drying oils give heat while ‘drying’. If the oil is impregnated in rags or fibres so as to give an expansive thin film of oil in compact space, sufficient heat is generated to put the fabric on fire.

3. A variety of chemicals undergo exothermic produce sufficient heat to start fires.

chemical

changes

to

15.2.7 Automobile Fires Automobile fires are rather rare in India. It is almost impossible to burn a vehicle without external fuel. A vehicle contains very little combustible material. It is its tyres, wire covering, upholstery, paint and a tank of fuel. All this is just insufficient to burn the vehicle completely as shown by actual experiments. Experiments have also proved that short circuiting in a vehicle, ordinarily, does not start a fire capable of consuming the vehicle. Under normal conditions of an accident the tank bursts and most of the fuel in the tank scatters on the ground. It is not fully used in burning the vehicle. However, the combustible load in the vehicle may start a fire. A truck had been loaded with kerosene oil drums. It was going on a hill side road. One of the drums was seen leaking by the passer-by. The liquid spread over most of the rarer part of the vehicle and started dripping. The vehicle, at one point, bumped against a bolder and probably generated a spark. The liquid was already (presumably) sufficiently heated due to the friction of the tyres. It caught fire. It consumed the whole vehicle in a matter of minutes. The driver had not noticed the seepage. (CH) Automobile fires are frequently malicious in origin. The culprit may start the fire to destroy the vehicle for any of the following reasons: 1. To collect insurance money 2. To burn incriminating evidence 3. Domestic quarrel 4. Revenge or jealousy. The main evidence to the crime is the seeped fuel found in the earth underneath, in the debris or in the upholstery if the vehicle is not fully consumed. The fuel used to burn the vehicle may be different from the one used in the vehicle. The following points should also be checked:

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Incriminating evidence in the debris Prior removal of small gadgets and accessories Fuel distribution system-fuel pump, gas line and gas cap.

is indicated by fused wires, discharged battery, blown fuses and bulbs (If lights were on).

Short-circuiting 1 i oe

Fig. XV-3

Head lamp wire fusion on blowing up.

15.2.8 Burnt Bodies Human burnt body is sometimes involved in crimes. The burn may be superficial, serious or fatal. They may be caused by fires, explosives, corrosive chemicals (acids, alkalis) or electromagnetic rays (X-rays, ultraviolet rays, etc.). The present discussion indirectly.

mainly concerns

with burns from

fire directly or

15.2.8.1 Classification Burns are classified as first degree, second degree or third degree burns: 1. First Degree Burns.—In the first degree burns the site becomes red. No tissues are destroyed. The burn does not leaves any scar. 2. Second Degree Burns.—Second degree burns are more severe. The skin is blackened and the hair are singed. The site is often ulcerated and permanent scars are formed. 3. Third Degree Burns.—Third degree burns are caused by prolonged contact of the body with naked flame or materials at high temperatures. These burns are often fatal. In some cases the life is saved by amputing the burnt limb. Ordinarily, when the body surface involved is more than 30 per cent., the burns

prove fatal. Death of the victim is painful. If the victim does not die of shock, immediately, the death may take place in four to ten days. In some cases death

has taken place even after six weeks. The time of death depends upon the age and health of the person, the part of the body burnt, the depth to which the fire (or heat) has penetrated and the treatment which he received after the burning.

FIRES

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Death may also occur indirectly due to medical complications of the body functions

and

formation

of toxins; or, due

to suffocation

and

inhalation

of

smoke and poisonous gases when the victim is engulfed by fire. 15.2.8.2 Post-mortem or ante-mortem burns Whether the burns are ante-mortem or post-mortem, is an important question. The answer often helps to decide whether a particular death is homicidal or otherwise. It is not infrequent that a person is killed and set on fire. The features, which distinguish ante-mortem burns from post-mortem burns, are:

1. Ante-mortem burns show inflammation. 2. Old burns show reparative scars, partial or complete.

3. Ante-mortem wound is surrounded by a red ring. If the burn occurs within a few minutes after death. It may also show the ring. Postmortem burns show no such rings, ordinarily.

Presence of blisters indicates ante-mortem burns. 5. Ante-mortem burns contain albumen rich serum, whereas post-mortem

burns contain little liquid, instead, the vesicles contain air.

6. If a person has died in a fire, which engulfed the victim, the air passage contains soot particles and the blood contains carbon monoxide. The absence of these clues can falsify the allegation of suicide or accident in those homicidal cases, where the body has been burnt after killing the victim. It has proved useful in establishing the guilt of culprits involving murders of young women by their in-laws in bride burning cases.

15.2.8.3 Accident, suicide or murder It is often important to establish from a given burnt body whether the death was homicidal or otherwise. The following check points heip: 1. If the burns are post-mortem, the death is homicidal. 2. If the victim carries injuries other than burns, it indicates struggle. The death is probably homicidal. 3. If the body contains intoxicants or sedatives, the death is probably homicidal, though accident cannot be excluded. However, the quantity of material taken may prove useful guide. 4. Presence of projectiles or their holes in the body indicate homicide. 5. Examination of the scene of occurrence, its photograph, sketches and description often reveal the true nature of the occurrence.

15.3 COLLECTION OF CLUES In the systematic collection of clues in a case of fire one should: 1. Guard the scene of occurrence, till the examination is complete. 2. Photograph the scene from different angles, clearly, covering the extent of damage, the pattern of smoke deposit, the site of origin, the presence

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of foreign matter and damage to various installations. Close up photographs may be taken to cover important points and pieces of evidence. 3. Observe the fire in progress at various intervals, if possible. If the press or other party has photographed the fire, he should collect the copies of the photographs from them. 4. Collect a copy of the site and building plan, if available. 5. Get a complete list of stores on the premises from the occupant. 6. Inspect the following with the help of experts: —Electrical installations —Heating appliances —Burnt materials The owner may help in identifying the remains of the burnt materials. 7. Collect information about the character of the fire. 8. Ascertain the time when the fire started and when it was extinguished.

9. Ascertain the mode of extinguishing the fire. In arson cases the nature of the clues vary from one case to another depending upon the technique employed by the arsonist and the extent of damage and destruction caused by the fire and the efforts and processes used to put down or control the fire. 15.3.1 Fingerprints

Fingerprints may be found on articles touched by the culprit and not consumed by the fire. Some fingerprints are always found in cases where complete destruction had not taken place. Points of entry and exit, doorknobs, door handles and windowpanes should be carefully checked. If the culprit had broken open a safe, cupboards or handled furniture, utensils and other articles, fingerprints are likely to be found on these articles because he does not take the usual precaution to avoid leaving fingerprints in arson cases. He believes that they will be destroyed by fire. Left over articles by the culprits often carry fingerprints.

15.3.2 Track Marks Track marks : foot, footwear and tyre marks are found on the approach and exit routes and in or around the scene of occurrence, provided they have not been destroyed by the visitors to the scene.

15.3.3 Miscellaneous Traces If broken locks, windows, ventilators or skylights are discovered, they may have exchanged evidentiary clues with the culprit. They carry evidence, such as, glass fragments, paint, varnishes, wood fragments, dust and dirt, tool marks, tool fragments and foot and finger marks. These traces should be carefully checked, located and collected for comparison with the corresponding evidence with the culprit.

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15.3.4 Initiators An initiator may not get completely destroyed in the fire. The unconsumed parts form useful clues. They are found at the point of initiation of fire. They are carefully located. Even if the initiator gets completely destroyed in fire, its smoke or ash patterns or their chemical composition may indicate the initiator used. If a mechanical or an electronic device has been used to initiate a fire, it may be found intact or damaged at the point of origin of the fire.

The usual types of clues relating to initiator are: 1. Ifa fuse cord has been used as an initiator, burnt residue or burn marks

are found on the surface. The residue and the mark should be photographed. The residue should be collected. 2. If explosive have been used as initiators, they may leave characteristic pattern or smell at the scene. The burnt residues of the explosive should be collected. They may identify the source. Destruction pattern is also characteristic.

3. There may be remnants of the explosive devices. They should be photographed and collected. 4. The initiation may have been done through remote control device. The remnant of its counterparts device are found at the initiation site. They should be collected. 5. If chemicals have been used as initiators, the characteristic smell and

product are formed. They can be identified. 15.3.5 Accelerators The accelerators used to promote the fire are not destroyed completely. Some of the inflammable liquid or its vapours seep into the soil, debris, smoke deposit, ash or other absorbing material. It can be extracted and identified. The accelerators are located at the point of origin as they are placed near the point of initiation. Even if the investigating officer fails to detect any accelerant himself, he should collect some debris from the likely places for examination by an expert in a forensic science laboratory. Or, he should get the help of a laboratory expert to collect the correct sample. All types of easily inflammable materials, solid, liquids and gases, especially of organic origin, are used as accelerants, but the usual accelerants are liquid hydrocarbons: petrol, kerosene and diesel.

15.3.6 Combustible Materials Insufficient attention is paid to ascertain the material responsible for the production of fire. In city fires where pucca buildings are consumed by the fire, this aspect is important. If the building is to be burnt combustible material has to be present at the scene of fire. Common fire promoters are: 1. Wood, wood furniture. 2. Grass, dry leaves, fodder. 3. Clothes and garments. Mineral fibre textiles resist fire.

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4. Paper in all forms, newspapers, magazines, books, files, all are excellent fire promoters. 5. In laboratory fires, organic solvents act as accelerants.

6. Plastic and rubber materials. If the above type of materials are not present at the scene of crime and yet the building is found burnt, combustible material must have inducted into the premises. The induction and the nature of the residue may indicate the culprit. The nature and identity of the material burnt may lead to the culprit. Burnt documents, furniture and clothes should be carefully examined and identified whenever possible. The person who is interested in burning the documents or the ownership of the articles burnt, may point towards the culprit. The nature and identity of the materials burnt may have to be evaluated from tons of debris. But the search is often revealing and rewarding.

15.3.7 Electrical Installations It is difficult for an average investigating officer to find out if the electrical installations have been tampered with. Whenever possible the services of an electrical engineer, preferably of the one who had laid the wiring should be requisitioned. Any disturbance is noted and carefully described. The opinion of the engineer is recorded. 15.3.8 Heating Appliances

The origin of fire may be through a heating appliance (such as, stove, furnace, electric heater, electric iron, radiator and the like). It is not destroyed in the ensuing fire. It, therefore, provides useful information relating to the origin of fire. The location, association with debris and the condition of the appliance is important in the investigation of arson. 15.3.9 Fire-extinguishing Devices An arsonist usually tampers with the fire extinguishing devices if present on the premises, if he gets a chance to do so. This is possible only if he has planned the act carefully. The malicious intent is established if they are found damaged. Besides, they may lead to the arsonist through fingerprints or tool marks left on the devices while handling them. 15.3.10 Foreign Matter

Tools, ftagments of tools, containers for initiators or accelerators, fragments of explosive devices and personal articles of the culprit may be found at the scene of occurrence. They can lead to the identity of the culprit. They may carry fingerprints. Besides, residual substance like inflammable liquid, in a container, may match with similar liquids recovered from a suspect. The articles are found at and around the scene of fire, dustbins and waste

heaps.

15.3.11 Evidence of Other Crime The debris should be carefully checked for evidence of some other crime like murder, fraud, theft or robbery.

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A fire once broke out in a factory ample fire hazard in the factory, when debris was being removed recovery led to the investigations

and consumed part of the building. As there was the origin was considered accidental. However, a charred body of a person was recovered. The of two crimes—arson and murder. (CH) The premises may have been used for illegal activities, like counterfeiting currency, secret press, espionage, manufacture of illicit arms, liquor or narcotics. For fear of detection the premises may have been burnt down. The evidentiary clues should be carefully searched in the debris.

15.3.12 Character of Fire The character of fire depends upon the nature and quantity of the substances burnt and the conditions prevailing at the scene. It is, therefore, useful to note down the elements of fire, which will reveal the origin, history and the progress of the fire. Most of the elements can be observed only when the fire is in progress. Therefore, if the investigating officer is not present at that time, he should get the information from the witnesses especially from the fire brigade staff, if they have observed the fire and the press reporters. On lookers may also be useful. Temperature is estimated from the havoc caused and the colour of the flame. The elements of the character of a fire are: 1. Extent of flame and its colour. The colour of the flame is dependent upon the material. The table below may provide some idea: Table XV-1 Material

Smoke Colour

Flame Colour

Black

Yellow to white

Paper, cloth, wood

Grey to brown

Yellow to red

Hey, dry leaves/twigs

White

.

Turpentine, thinners

Brownish black

Yellow to red, white \

Coal tar

Black

~

Petroleum products (Petrol, Kerosene,

Diesel, Mobile oil)

2. Temperature developed. An idea of the temperature of the fire can be had from: ¢ The colour of the flame Table XV-2 Flame Colour Dull Red Dark Red Bright Red Orange

Temperature 500, — 600°C 600 —800°C 800 —1000°C 1000 — 1200°C

Brighter Yellow

1200 — 1400°C

White

1400 — and above

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¢ Melting of metals Table XV-3 Metal

Aluminium

Brass Cast iron

Chromium

Copper

Gold

Iron

Lead

Nickel

Silver

Steel Tin

MP°C

660

850- 1232 1000

1857

1084

1064

1535

327

1455

962

1427 232

e The effect of heat on wood:

TableXV-4 Temperature C°

110

150

230

250

300

Effect

Water/ aromatics

Resins ooze.

Carbonisation

Pyrophoric

Charcoal

evaporate

CO given off

starts

carbon formation

formation

3. Odour of the burning material. Petroleum products, turpentine, rubber insulation give characteristic odour on burning. The odour is known not only to the specialist but also to the novice. Likewise, if explosive is used to initiate fire, can be guessed from their characteristic odour. The various chemicals also give characteristic smells. General public does not know them but they can tell whether the odour is: ¢ Choking ¢ Pungent e Pleasant

Sulphur oxides give suffocating odour. Pungent odour is given by oxides of nitrogen and burning of PVC plastics. 4. Nature and extent of smoke deposit patterns, their volume and the colour of smoke. 5. Pattern of spread of fire. 6. The havoc caused.

Smoke deposit patterns are observed after the fire, especially if it has not been disturbed in the process of controlling the fire. They give the areas where combustible material was kept. They may also indicate the nature of material burnt.

15.4 PROBLEMS Investigations of fires have the following important aspects of inquiry: 1. To determine the nature of fire. 2. To find out the cause of fire. 3. To ascertain the evidence which spontaneous or accidental fire.

indicate

whether

4. To determine the nature and quantity of the materials burnt.

it is arson

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- To ascertain the extent and cause of the spread of fire. To link the culprit with the fire. . To establish the extent of damage. . To find evidence of the other crime if any. WH ©AND . To ascertain Modus Operandi.

15.5 EVALUATION Fyaluation of fires requires ample time, patience, perseverance and knowledge on technical matters. The investigating officer should seek help from all the possible sources. 15.5.1 Expert help

The clues which indicate whether the fire is malicious or accidental in nature or those clues, which can connect the criminal with the fire, are available at the scene of occurrence. They are associated with tons of debris. It is, therefore, essential that the expert help should be procured at an early stage so that the scene is examined along with the experts. Once the scene of fire is mishandled, the possible clues get lost in the debris. The following experts are helpful in the investigation of fires: 15.5.1.1 Fire brigade

The fire brigade staff has extensive experience of all types of fires. They can indicate the nature of materials burnt, especially the accelerators and other foreign substances from the character of fire. They also indicate as to how the fire was extinguished. The following specific information should be obtained from them: 1. The extent of fire. 2. The nature of the material burnt. 3. The probable point of origin. 4. Modus operandi for suppression of fire.

15.5. 1.2 Architect Architect is the person who prepared construction plan and supervised the construction of the building. He is able to indicate the combustibility of the structural materials. Beside, he can give the site and the plan of the building. Obtain the following information from him: 1. Building Plan 2. Constructional material used. 15.5.1.3 Electrical engineer

.

The electrical engineer knows about the electrical installations in the building. He is able to confirm: 1. If the electrical short-circuiting started the fire. 2. The drawing relating to the wiring of the building. 3. The electric load capacity of the building.

he

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The task is easier if the engineer is the same who had laid down the wiring of the installation. 15.5.1.4 Inspector of explosives

If the origin of fire or its spread is suspected to be due to explosives, the help of an explosive expert is a necessity. He gives the nature, quality and quantity of the explosive involved in the fire. He also helps to locate evidence relating to the explosion and the explosive.

15.5.1.5 Forensic scientists The Forensic Scientists help in the location of the site of the origin of fire, the nature of initiators, accelerators and the combustible materials. They are able to assess the article consumed by the fire and help to locate and collect the correct samples of clue materials to establish a link between the crime and criminal. He can decide the accidental or arson nature of the origin of fire. A forensic science expert should always be called to the scene of fire. 15.5.1.6 Photographer

Police photographer should be associated with the investigation of a fire. The general aspects and location of the clue materials, at the scene, is established through photographs. Whenever possible, the fire should also be photographed while in progress (burning). 15.5.1.7 Occupant

Occupant of the house is one of the most important witnesses. He is the only person who can give a correct inventory of the articles present on the premises. The inventory should be prepared before the search is started. He should, also, be associated with the identification of suspected foreign articles present at the site, in the debris or around the scene of occurrence. 15.5.2 Systematic Investigation

For investigation of a fire one should proceed on the following lines:

15.5.2.1 Prove malicious intent Malicious intention is indicated by the following circumstances: 1. More than one seats of fire, without an interconnection between them. 2. Presence of foreign inflammable materials. 3. Evidence of extraneous initiators. 4. Discovery or evidence relating to some other crime. 5. Destruction of only account-books and other important documents. 6. Removal of valuables prior to the start of fire. 7. Release of animals before the fire started. 8 . Occurrence of fire soon after the receipt of a consignment of goods, the consignment may contain only spurious goods. 9. Recent heavy insurance of the premises. 10. Presence of worthless combustible stores of recent origin.

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11. One and the same individual seen at a number of fires. He is probably a pyromaniac. i. The character of fire if different from the one possible from the stores on

the premises.

33. The occurrence of similar other fires. 14. The evidence of broken doors, windows, skylights, ventilators or even

walls.

15. Tampering with fire-extinguishing devices.

15.5.2.2 Eliminate accidental cause With the help of various experts the following aspects should be checked to eliminate accidental origin of fire: 1. The heating appliances for possible defects. 2. The electrical installations for possible short circuiting or leakage. 2. The possibility of a spark or cinder from a passing train (or from a closeby factory) starting the fire. . The possibility of lightning causing the fire. . The possibility of spontaneous combustion. The negligence in disposal of live matches, cigarette ends, kindled candles, live fires, and running electric appliance or heat radiators. 15.5.2.3 Procure side information

3 Movement of a maniac in the locality. m Economic position of the occupant of the premises, his latest dealings

and commitments. . The position and relation of the owner, with his competitors, rivals, enemies and tenants.

. Condition of the building, its construction, stores and nature of business being carried out at the premises. . The time at which the fire was noticed and the person who noticed the fire.

. The persons who extinguished the fire and the method employed by them.

. The opinion of the fire brigade staff. . The alleged losses. . The estimated losses. In a police institution, gas masks were stored in a closed room. One day, smoke was noticed to be coming out of the room. On opening the room it was found that a large number of gas masks were smouldering. The fire was quickly put down. But the damage to the stores was extensive. The premises were examined to find out the cause of the fire. No extraneous material could be discovered. The smoke patterns were then closely studied. It

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was found that the site of origin was adjacent to a broken power point, which had not been used for years. It was hidden behind a stack of the gas masks. Two alternatives for the origin of the fire were possible. . It could be the auto-oxidation (spontaneous combustion) of carbon contained in the gas masks. . It could be short-circuiting at the power point. The burnt gas masks were carefully studied. The burning on them was found from outside to inside. In spontaneous combustion, the fire would have spread from the carbon contained in the gas mask to outside, to its container. It was not found in any gas mask. The spontaneous combustion in the present case had, therefore, to be ruled out. Electrical short circuiting had also to be eliminated because the electrical installations were in working order. The weather conditions were then studied. It was found that weather was extremely dry for the past one month before the occurrence and on the day, there were clouds and lightning, though no lightning was observed to have

fallen on the building. (CH) It appeared that the static electricity in the clouds was conducted through the lightning conductor. But due to dry condition it was not dissipated completely. Probably a part of it got discharged through the open end of earth wire of the power point. The spark produced set the stack on fire. It was a closed room. The fire, therefore, remained smouldering till it consumed most of the oxygen contained in the room. By then it was noticed and extinguished. wT

oy

=

od

z

FBG

3

Fig. XV-4 Smoke pattern indicated the seat offire and probable cause—an electric spark from a broken socket.

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The closed room, thus, controlled fire, which could have consumed the building and its stores worth millions of rupees. (CH) The evaluation of clues (excluding fingerprints) is done in a forensic science laboratory. All the clues collected along with corresponding samples for comparison should be sent to forensic science laboratory . 15.5.3 Laboratory Evaluations

Fire cases, especially arson cases, involve two types of evidence from the laboratory point of view: 1. General evidence like fingerprints, track marks, tool marks, etc., which

is common

to most of the crime. The evidence has been discussed in

various chapters of the book. 2. Fire related evidence, which is mostly of accelerants, involved in most of the arson cases, which have been discussed here.

Accelerants used are usually petroleum products. Petrol and kerosene oil are the commonest, through diesel oil, mobile oil, lubricants can also be used and

have been used in some cases. The main problem relating to the evidence is that the evidence is often in extremely small amounts and dispersed in large amounts of substrata, the debris: may be soil, soot, wood or other debris like un-burnt, semi-burnt materials: papers, garments and other household goods or vehicular upholstery. The evidence has to be extracted. The following techniques are common: (1) Floatation Process.

(2) Steam distillation. (3) Solvent extraction.

(4) Solvent flushing. (5) Vacuum distillation.

(6) Overhead space sampling. The success of extraction is totally dependent upon proper collection, efficient packing, expeditious and correct processing. If the package is not airtight, the vapours of the accelerants leak and the evidence is lost. In a case of bride burning the author visited the scene of occurrence. There was ample smell of kerosene oil in some carbonised pieces of clothes lying at the scene. The investigating officer was asked to collect the clues correctly and dispatched them quickly after packing them properly. The parcel of the clues was received after about two months. They were packed in a cloth wrapper. Even the smell of the kerosene oil had vanished. No oil could be detected! Was it negligence? Or, was it wilful destruction of evidence? (CH) In another cases, there was fire in an office. Apparently embezzlement had been committed. The crime was being covered by destruction of the record. One of the involved persons, one evening, after the office hours, at about 1730 hours sprinkled five litres of petrol on the files to be destroyed and left the office. He returned to the site at about 2030 hours. He lighted a match and threw it inside

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through a broken window pane. There was an explosion. But before he could run away, hot air singed his face and stamped him as perpetrator. The explosion alerted everybody and the police reached the scene. The author was called to the scene. It was found that margins of some files had been scorched but not a single file was destroyed. From some of the files petrol was dripping. The explosion had broken many a door and window and cracked some wall portions also. But the intended fire did not spread. The investigation agency took their time to send the liquid for examination. The laboratory analysis of the accelerants corresponded more to kerosene oil rather than to petrol mentioned in the scene of crime examination report. The variations had to be explained. (CH) Formerly, floatation method, being the simplest, was commonly employed to extract the petroleum product vapours. It is the most inefficient method. It has been given up almost completely. Likewise, the identification of the product was being done through conventional methods: boiling point, boiling range, distillation curves, refractive index, etc. These tests required mostly amounts that often were not available and consequently could not be carried out. New technology has since come up. It needs only micro or nanogram samples. The new techniques have revolutionised the identification of the involved products (Petrol? Kerosene? Diesel?). They also permit individualisation and comparison of the individual disputed vapours with a given sample. The techniques of choice are: 1. Gas chromatography.—Long capillary columns (hundreds of feet long) has separated hundreds of constituents and thus promoted individualisation of the sample. Columns of shorter length with suitable stationary phase packing material are also efficient. But the former have almost completely replaced the latter. The efficient detectors like electron capture are used in the process. Formerly thermal conductivity detectors were common. They are not so efficient.

2. GC-MS.—Gas Chromatographs have been coupled with Mass Spectrographs. They permit identification of the individual constituents. The arrangement has increased the identification potential of the clue materials many times. 3. Atomic Absorption Spectrophotometers (AAS).—AAS has been utilised to identify the metallic constituents of the materials. For example lead in leaded petrol is identified by the technique. It is also used to analyse the residue of the chemical imitators. 4. HPLC.—HPLC is products. This technique result of cracking. The especially in petrol. They

being used increasingly to identify the petroleum proves, especially useful where the product used is a cracking process introduces aromatic constituents, act as markers of the product.

The main hurdle in the identification of the accelerants is the variations of the evidentiary clues from the scene due to the action of fire on the petroleum products (varied evaporation changes the composition of the components). Secondly, pyrolysis inducts products of the sub-strata that may consist of plastic material. Though reference files are available for the former problem, after controlled evaporation of the lighter constituents in various percentages,

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yet it is best to do the home work with the involved product itself and prepare ones own reference product profiles. Products with varied percentage of evaporation (say, 10%, 20% 30%....) are prepared and then compared with the product from the scene. The pyrolysis of the plastic and other like materials at the scene is a more serious problem. It has to be tackled. Pyrolysis of the corresponding material at corresponding temperatures and durations to those at the scene is done and products are examined. However it is more easily said than done. Usually the seasoned analyst ignores the peaks of the products.

15.6 EXPERT TESTIMONY Expert evidence in fire and arson cases is given in two reports. 1. After the examination of the scene of occurrence 2. After the laboratory examination of the clue materials. Both the reports should be comprehensive and based on reliable data. The scene of occurrence report should provide the following data/ information: 1. Occurrence: e Place ¢ Date e Time.

2. Request for investigation: ¢ Authority ¢ Mode ¢ Date/time. 3. Arrival at the scene: ¢ Colleagues ¢ Date/time ¢ Mode. 4. Weather conditions: ¢ Onarrival: Rain/snow? Wind? Temperature? e At fire time: Rain/snow? Wind? Temperature? 5. Fire control mode: ¢ House-hold/office staff? ¢ Public? ¢ Fire— brigade? ¢ Means? 6. Fire-affected premises: e Residential building?

¢ Office? e Shop?

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7. Fire-affected areas:

e Whole building? e Utilities? e Kitchen?

e Store-room?

8. Fire-affecting materials: e Initiator(s)? e Accelerant(s)?

e Promoters?

e Inflammables? Details? 9. Evidence located:

e Seat(s) of fire?

e Materials burnt?

e Foreign material(s), at the site? e

Photographs

10. Evidence collected:

e Sketch

¢ General clue materials e Fire-related due materials e Initiation device or remnants thereof e Accelerants or residues thereof e Promoters or residues thereof

¢ Smoke patterns photographs ¢ Smoke residues

e Residues of the alleged burnt materials. 11. Fire safety equipment, if any: ¢ Tampered? e Removed?

¢ Used or not used?

12. Informational statement or report from: ¢ Fire brigade staff ¢ Owner(s) /tenant(s)

¢ The injured ¢ The statement of the person who noticed the fire first. He is in a position to give an idea about the site of origin, pattern of spread and the colour and height of the flames. * Media people: they may have the photographs of the fire in progress.

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13. Expert help obtained from:

e Architect of the building. * Electrical engineer who could give the layout, the load and the possible cause such as over-heating, short-circuiting or over-load on the system.

¢ Medico-legal expert, on burn injuries, if any. 14. The crime scene report. It should indicate:

e ¢ ¢ e

Absence/presence of accidental cause, with reasons. Presence/absence of arson, with reasons. Possible leads, for further investigations. Eliminated possible cause(s). 15.7 CASE LAW

15.7.1 Burning In the present case, Ram Prasad poured kerosene upon the clothes of Mst. Rajji and set fire to those clothes. It is obvious that such fire spreads rapidly and burns extensively. No special knowledge is needed to know that one may

cause death by burning if he sets fire to the clothes of a person. Therefore, it is obvious that Ram Prasad must have known that he was running the risk of causing the death of Rajji or such bodily injury as was likely to cause her death. As he had no excuse for incurring that risk the offence must be taken to fall within fourth clause of section 300, Indian Penal Code, in other words, his offence was culpable homicide amounting to murder even if he did not intend causing the death of Mst. Rajji. He committed an act so imminently dangerous that it was in all probability likely to cause death. We are accordingly of the opinion that the High Court and the Sessions Judge were both wrong in holding

that the offence did not fall within murder.! 15.7.2 Negligence

We have already pointed out that four burners were in one corner of the room and combustible matter was in another corner of the same room and there was only a distance of 8 or 10 feet between the two. The burners were lighted against the general as well as the special conditions of the licence for storage granted to the appellant. The proximity of naked fire to the stores of turpentine and varnish is in our opinion always a matter of probable danger to human life, namely, the life of the persons working in the room. This was particularly so with respect to turpentine which has a low flash point, i.e. 76°F to 110°F. The use of naked fire could in conceivable circumstances even raise the temperature of the room itself above the flash point of turpentine and if the turpentine ever happened to be exposed it might easily catch fire. There was, in our opinion, therefore, always a probable danger to human life by the appellant negligently or knowingly omitting to take proper care in the matter of the four burners and turpentine and varnish. His action in allowing burners to be lighted in the room without any safeguard did in our opinion amount to omission to take such order with fire 1. State of Madhya Pradesh v. Ram Prasad, 1986 Cri LJ 1025 (SC).

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and combustible matter as would be sufficient to guard against probable danger to human life. We can only say that it was lucky that fire had not broken out earlier. But there can be no doubt that the omission of the appellant to take proper care with burners in particular when such combustible matter as turpentine in large quantity was stored at a distance of 8 to 10 feet from the burners was such omission as amounted to insufficient guard against probable danger to human life. Finally when we remember that all this was done in breach of the general and special conditions of the licence given to the appellant for storage of turpentine, varnish and paints, we have no doubt that the appellant knowingly, or at least negligently, failed to take such order with fire and the combustible matter as would be sufficient to guard against any probable danger to human life. In the circumstances we are of opinion that the appellant has been rightly convicted under section 285 of the Indian Penal Code. Considering that seven lives have been lost on account of the negligence of the appellant in this connection, the sentence of six months rigorous imprisonment

which is the maximum provided under section 285, cannot be said to be harsh."

15.7.3 Bride-Burning The city inspector, Rameshwar Kumar Sharma, P.W., had also arranged to

get the dead body in the closet photographed from Gurcharan Singh, Photographer, P.W. 9. Two photographs, exhibits P. 1 and P. 2, alongwith their negatives, are also on the record. These photographs were admitted by all the four accused. From photographs, exhibits P. 1 and P. 2, it is quite evident that the dead body was placed just at the threshold of the door which was the entry of the closet. The dead body appears to have occupied the entire breadth of the store. The head and the back of the dead body were raised against the wall in such a position that the body could not fall. It also appeared that the legs could not be stretched beyond the opposite wall. In this closet were also found various household articles including drums etc. From a look at the photographs when perused with the statement of the doctor, which has been reproduced above, it becomes crystal clear that the right side of the dead body except the portion just towards the upper right thigh in contact with the mattress on which the dead body was seated had not been burnt. The blouse on the right side except for a few burnt portions was intact. According to the doctor the blue colour of the blouse had not been affected. The petticoat or the sari cloth on the left leg seems not to have been burnt. All the tell-tale burn marks were on the left arm, left shoulder, left chest and the left side of the face and head. All the articles lying in the store near the dead body do not seem to be disturbed. At point D in photograph, Exhibit P. 1, some article appears to be in close contact with the left side of the dead body. A basket appears to be lying near the left knee, but none of the articles appears to have been disturbed. Plastic bangles on the right arm also do not appear to have been at all burnt. A close look at the second photograph, Exhibit P. 2, which was taken by the photographer from the back, shows that the left upper arm and the left shoulder are completely burnt mass,and below the elbow nothing is observable. Towards the left of point B and the right of point Y 1. Kurban Hussain Mohamedalli Rangawalla v. State of Maharashtra, 1965 (2) Cri LJ (SC).

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there appears to be some portion of either ulna or radius which in the opinion of the doctor was jutting out from the elbow joint in a completely burnt condition. There does not appear to be anything below figure Y. The doctor was exhaustively cross-examined at this point by the trial court. In reply to one question, it was stated that the left arm up to the elbow was so much burnt that there was no flesh left and the bones were charred to ashes. In reply to another question, it was clarified that “the burnt bones turned to ashes just like remains left after the cremation”. It was also deposed that only the upper two-thirds portion of the radius and ulna were jutting from the elbow joint and the rest had fallen off. In reply to another question it was stated that the rest of the portion was missing. However, after the statement had been completed, the doctor,

before signing the statement, without the order of the court and without bringing the same to the notice of the court, himself added the word “not” thereby showing “the rest of the portion was not missing.” A close perusal of the statement of Dr. G.D. Chawla, P.W., leaves strong impact on the mind that it was his clear statement in the first instance that the portion below the elbow joint of the left arm was missing and had been completely burnt to ashes. Subsequently, however, he made a deliberate attempt to wriggle out of it and to make equivocal statement that some bones were jutting out of the elbow joint. According to the trial court, the burns on the dead body of Usha Rani, deceased, were not ante-mortem and that one-third portion of the left arm below the elbow was missing before the dead body was put to fire and the same was done in order to conceal the injuries which may have been inflicted on that part before her death. It was also pointed out that the doctor had not dissected the head and the face from which also correct opinion could be formed if some injuries had been inflicted on the said part of the body. The doctor, however, categorically stated that the burns on the dead body of Usha Rani were antemortem in nature and were sufficient to cause her death in the ordinary course of nature. Though it is not possible to form a categorical opinion from the material on the record if the burns on the dead body were antemortem or postmortem in view of the categorical statement of the doctor, yet from the oral evidence of the witnesses who had seen the dead body lying in the closet as referred to above, the two photographs and the statement of the doctor, no doubt is left that even if it was a case of death by fire and the consequential burns, the body of Usha Rani had not been subject to fire in the closet and that the dead body was placed therein only after death. If Usha Rani had caught fire whether accidentally or intentionally to commit suicide, after the body caught fire, she must have writhed with pain and made frantic movements of hands and legs and the natural consequence would be that the articles lying near the dead body must have been disturbed. Besides, the wall, the door and the threshold where the body was seated or was in contact must have also borne the impact of fire and the smoke. At least, the rice lying in the thali could not but show signs of the impact of intensive fire. It is clear from the photograph, Exhibit P. 1 that a cloth is covering the dead body which did not have any sign of fire or even smoke. Indisputably, this cloth had been put on her after she had died. Even

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according to Mohan Lal, C.W., who had just followed Ram Lal, accused, after Shanti Devi, accused had raised hue and cry, he did not see any fire or smoke.

There is absolutely no evidence on the record to show if any person had seen the fire or the smoke coming out of the closet. Thus, the only conclusion possible is that Usha Rani was already dead whether by fire or otherwise when her dead

body was placed in the closet.' After having arrived at the above conclusion, the conduct of Kuldip Sham, accused, assumes considerable importance as in a case based only on circumstantial evidence, the conduct of the accused is also an important link in the chain of incriminating circumstances to arrive at the correct conclusion. According to the statement of Kuldip Sham, accused, after the close of the prosecution evidence, he used to go for a morning walk every day and on March 28, 1976, had gone for a walk at 6.15 a.m. alongwith his partner and friend, Dharam Vir Mahajan, C.W. 1. At that time, his wife Usha Rani was quite fit and

alive. When he returned at about 6.45 a.m., he found a crowd of people having collected in front of his house. It was then that he came to know that Usha Rani was dead and her dead body was lying in the closet. He further stated that Usha Rani had died by sprinkling kerosene oil on her body and then putting herself on fire after he had left the house for walk in the morning. This defence version stands completely negatived and contradicted by the convincing evidence and the objective circumstances on the record. As discussed above in detail, Usha

Rani had not caught fire in the closet but her dead body had been placed there subsequent to her tragic end. Even Mohan Lal C.W., who had immediately followed Ram Lal, accused, on hearing the cries of Shanti Devi, accused, had

not seen any sign of fire or smoke coming out of the closet at any time in the morning. The version of the accused that he had gone for a morning walk with Dharam Vir Mahajan. C.W., was also belied by the deposition of the later as a court witness (C.W.1) According to his deposition, he did not even know Kuldip Sham accused, and | had not gone with him for a morning walk.

This conduct of the accused in fabricating a story that he had gone out of the house in the morning and that it was in his absence within a short span of half an hour or so that his wife Usha Rani committed suicide is a strong indication of his guilty mind and a deliberate attempt on his part in order to conceal the commission of offence. If it were Kuldip Sham, accused, and Usha Rani, who

had slept in the house on the relevant night, and Usha Rani had for one reason or the other, committed suicide or had died by accident, it was not probable that Kuldip Sham, accused, would concoct such a cock and bull story. The relations between the two being strained and Kuldip Sham being aggrieved against his wife whether on account of the non-fulfilment of his demand for more dowry or because he suspected her fidelity on account of the seizure of the letter addressed to her by some other person, the dead body of Usha Rani found in the closet in suspicious and mysterious manner and the deliberate attempt on the part of the accused to concoct a false story are such incriminating circumstances from which no other conclusion is possible except that it was Kuldip Sham, 1. Kuldip Sham v. State of Punjab, (1980) Cri LJ 75.

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accused, who was instrumental in committing the murder of his wife by putting her on fire or in any other manner. It has been held in Deonandan Mishra v. State of Bihar‘, that in case of a murder when there is no direct evidence and the prosecution

case

is based

only

on

circumstantial

evidence,

absence

of

explanation or false explanation by the accused serves as an additional link in the chain of circumstances to connect the accused with the offence. In the present case, as discussed above, the accused, Kuldip Sham, came out with statement in explanation regarding the cause of death of his wife which has

been found to be palpably false.* 2. The manner in which the charred bodies of the two women viz. wife and mother of accused were found lying on the cot and cradle in the same room completely excludes the possibility of their death either by an accidental fire or suicide. It is impossible to believe that the flame of a small kerosene oil lamp could have simultaneously ignited either the clothes or the bed of both these women when they were lying in two separate beds separated by a distance of at least 2 feet as has been proved by evidence. Even assuming that the bed or clothes of any one of them were ignited accidentally in this manner that does not explain the setting of fire to the clothes and bed of the other woman. Neither of these two women was infirm or disabled in any manner. There is absolutely no reason why even that women whose clothes or bed may have caught fire could not get up from the bed and rush for help and the other woman would not come to her rescue leaving her own bed. Even assuming the improbable that the clothes or bed of both of them simultaneously caught fire, neither their clothes nor bed comprised of any highly inflammable substance so that the flames could spontaneously engulf them completely. At any rate, even in that situation, they would not remain lying coolly in the bed to let the fire consume their bodies in the manner they were found next morning. The suggestion of an accidental fire catching both or either of them is impossible to accept. On his own admission accused was the first person to enter that room and to find both the bodies totally charred and almost wholly consumed by fire. In case of an accidental fire catching these women, their bodies would not be found lying in

the bed as they were discovered next morning.

CSO

1. AIR 1955 SC 801. 2. Kuldip Sham v. State of Punjab, (1980) Cri LJ 75. 3. (1979) Cri LJ 94 (NOC 213).

Chapter 16

MOTOR VEHICLES SYNOPSIS 16.1 16.1.1

IMPORTANCE Crimes and Vehicles

16.2 NATURE 16.2.1

Road Accidents

16.2.1.1

The driver

16.2.1.2

The vehicle

16.2.1.3

The road

16.2.1.4

The victim

16.2.2 Theft of Automobiles 16.3 THE PROBLEMS 16.3.1

Tyre Marks

16.3.2 Vehicle 16.4 EVIDENTIARY CLUES 16.4.1

The Vehicle

16.4.2 The Scene 16.4.3 The Culprit/Victim 16.5 COLLECTION 16.6 EVALUATION 16.6.1

Tyres

16.6.2 Tyre marks 16.6.2.1

Tyre width 982

MOTOR

16.6.2.2

Tyre circumference

16.6.2.3

Tread pattern

16.6.2.4

Wear and tear

VEHICLES

16.6.2.5 Adventitious peculiarities 16.6.2.6

Crab-track vehicle

16.6.2.7

Wheelbase difference

16.6.2.8

Turning arc

16.6.2.9 Side prints of the tyres 16.6.2.10 16.6.3

The intra position of the tyres

Skid Marks

16.6.3.1 Determination of speed 16.6.4 Tyre Residues 16.6.4.1 Surface effect 16.6.5 Tyre Bursts 16.6.6

Mechanical Failure

16.6.7

Left over Objects

16.7

RESUSCITATION

16.8 CASE LAW 16.8.1

Victim’s fault

16.8.2

Mischief

16.8.3

Accident Evaluation

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MOTOR VEHICLES 16.1 IMPORTANCE Motor vehicles frequently figure in criminal investigations. They are involved in road accidents. The criminals use vehicles to come or to go back from the scene of occurrence or to transport incriminating articles from the scene to the place of disposal. They are being employed in variety of crimes: thefts, smuggling, rape, riots, robberies, dacoities and murders. The identification of the vehicle helps to establish corpus delicti, link the culprit with the crime, scene and the victim. They help to reconstruct the crime and the sequence of events. Sometimes a crime is committed in the vehicle itself. Now and then they are stolen, damaged or destroyed. The number of motor vehicles was very small prior to independence in India. It increased rapidly in the first few decades but an explosive expansion of vehicles, on the roads has taken place during the last decade of the 20th century only. The number of vehicles especially of light transport vehicle has increased many folds. The increasing misuse of the vehicles in the commission of crime is natural fallout of the increase.

16.1.1 Crimes and Vehicles Motor vehicles are now increasingly being used in the commission of practically all types of crimes: 1. The criminal may hire a taxi and order it to a secluded place. The driver may be robbed, manhandled or killed. A road accident may then be simulated. 2. A young female travelling alone may be molested, criminally assaulted or even killed in a vehicle. 3. Rivals or enemies may be carried by invitation or by force in a vehicle and manhandled, molested or killed. 4. Vehicles are frequently used as carriers for stolen goods, smuggled or contraband articles. 5. Vehicles are sometimes used to remove incriminating evidence from the place of occurrence to a safe place, for hiding or for destruction. A road accident in India was a sensational affair two or three decades ago.

Now it is a common occurrence. We are fast catching up with the western countries in respect of incidence of road accidents.

16.2 NATURE The variety of the vehicles on the road is very large. In addition to the nonmechanized transport, we have auto-cycles, scooters, motor cycles, cars, buses,

trucks, tractors, bulldozers and road-rollers. The variety of the vehicles and their

number is ever increasing and hence the number of accidents thereby is also increasing . 985

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16.2.1 Road Accidents Road accidents may occur due to any of the following causes: 16.2.1.1 The driver

h He is tired and feeling sleepy. He falls asleep momentarily and loses

control of the vehicle. 2. He suffers from some fit of illness and is unable to control the vehicle.

. He is driving the vehicle at a high speed and some

unexpected

obstruction (animal, man, child, stone, pit or other vehicle) suddenly

comes in the way. . The driver is drunk or intoxicated with some judgment is impaired.

drug and thus his

. The driver was keeping awake with stimulant(s). The effect of the drug is finished and extreme fatigue takes over the driver. 16.2.1.2 The vehicle

. . . . .

The brakes fail. The steering handle does not function properly. The lights of the vehicle are faulty. The other machinery of the vehicle fails. Atyre bursts.

16.2.1.3 The road

. It may be slippery. . Itmay be bumpy. . It may have boulders or pits. . Itmay suddenly give way. . It may be narrow with sharp curves. . There is sudden obstruction on the road. In a case a person was driving at a fairly high speed. All of sudden a wild cow dazzled by the light came in the way and struck against the windshield. It was broken. The propelled cow struck and killed the person sitting by the side of the driver (CH).

16.2.1.4 The victim

1, He may not have observed the traffic regulations.

2. He may misjudge the safety zone. or

if the disease

also

16.5 COLLECTION The collection of evidentiary clues from the suspect vehicle, the scene of occurrence and from the victim needs immediate action, care and planning. Otherwise, the evidence is lost in a short time. The suspect gets the vehicle repaired and repainted. The scene of occurrence is trampled over by the traffic and the victim is cremated or buried.

In the systematic collection of the evidence one should: .: Photograph

and sketch the scene at the earliest, before removing anything from the place. The photographs and the sketches must establish the location of the scene and the objects at the scene vis-a-vis some prominent land mark at the scene. The video graphic coverage is ideal for later appreciation of the scene of occurrence.

. Before towing away the vehicle, carry out the following drill: ¢ Note down the odometer reading at the scene itself. ¢ Record the temperature at the temperature dial.

¢ Ascertain the temperature of the atmosphere and of the water in the radiator.

e Ascertain the quantity of fuel in the vehicle. ¢ Examine the area underneath and around physical clues.

the vehicle for any

¢ Remove and collect any loose evidence which is likely to get lost in transit.

. Put a clamp on the steering wheel and take the vehicle to the nearest sheltered place, preferably with an arrangement to hoist the vehicle so as to permit examination of the underneath surface. Record the discovery of any evidence, collect it and pack it properly in glass or cellophane containers depending upon the nature of the evidence. Photograph (to scale) the evidence which cannot be collected conveniently.

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6. Observe the following precautions while developing finger and palm prints on the vehicle: ¢ Before starting the development see that the vehicle is completely dry and at normal! temperature. ° Do not expose the vehicle to sun heat, rain or wind whenever possible.

e Use aluminium and lycopodium powder mixture on non-greasy surface

of a vehicle

such

as steering

wheel,

the mirror,

side

windowpanes, instrument panel, glove compartment, doors and door handles. e Use white lead powder on greasy surfaces. e Establish the location, and identity of the lift. It is preferable to photograph the lift before removing the same. The lift itself must be labelled. It should contain information relating to the place of origin, the case in which it is lifted and the person who lifted it and the date on which it was collected.

* Remove and collect the loose evidence (fibres, glass pieces, paint flakes, dust, etc.) before starting development of fingerprints. e Whenever possible fingerprints.

engage

a fingerprint

expert

to develop

7. Prepare the casts of the plastic marks whenever possible. 8. Ascertain ownership of the vehicle.

9. Collect greases and lubricants found at the scene of occurrence. If they are found absorbed by the surface material, the absorbent material is cut in the form of a cone and a control sample of the material from the nearest point is also collected separately. If they are found in liquid or semi-solid state, they are picked up on clean white pieces of cloth or on filter paper, or in clean vials with a dropper, whenever possible. 10. The

victim may photographs.

carry

tyre marks.

Collect

the

marks

through

Th. Get the victim medically examined. He carries injuries on his person.

Get the description of injuries or the post-mortem report as the case may be. The evidence helps to decide whether injuries on the person of the victim or damage to the vehicle are consistent with the version of the victim, of the culprit of the witnesses. Or, whether they are inconsistent inter se. 12. Get the culprit and intoxication. . Collect the skid marks.

the victim examined

for drunkenness

or drug

MOTOR

VEHICLES

993

Fig. XVI-5 Head injuries are the major cause of death in road accidents. The records of a hospital reveal that 95% deaths in accident cases are due to skull fractures and brain damage.

16.6 EVALUATION The variety of clues in crimes involving motor vehicles, as already seen, is large. The evaluation of some of the clues like fingerprints, track and other marks, broken parts of machinery, bloodstains, fibres, hairs, alcohol, glass, paint, soil including dust and debris, greases and lubricants, cigarette and ‘bidi’ ends, have been discussed elsewhere. Temperature of the radiator water, mechanical failure of the vehicle, identification of left over articles, and restoration of numbers and designs on the vehicles are briefly discussed here. The tyre marks including skid marks have special importance. They may have been discussed in some details. 16.6.1 Tyres

Tyres are important clues involving vehicles in criminal investigation. They help to: : 1. Link the marks at the scene of crime with the vehicle and thus lead to the culprit. 2. Link the vehicle with the scene through rubber residue left at the scene,

in skid marks. Fix the presence of the vehicle at the scene through dust, dirt and other traces picked up by the vehicles. 3. Track marks on the routes can virtually track the movement of the vehicle.

994

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4. The examination of tyres helps in the reconstruction of the road accidents. In a road accident it was claimed that the accident took place due to tyre burst. When the deflated tyre was examined in the laboratory, it was found to bear radial cut both on the tyre and the tube. The tube, surprisingly, contained a wooden piece about 5x4. 5x2 cm. There were three possibilities: a. This piece could enter the tube at the time of manufacture. b. It could come in between the tyre and the tube at the time of tyre change and enter the tube on its bursting. c. It could enter the tube at the time ofaccident.

The first possibility was ruled out by a visit to the manufacturer of the tube, the second possibility was found improbable as there was no corresponding impression on the inside of the tyre. The third possibility was confirmed. The wooden piece fitted with a corresponding wooden piece from the hedge where the accident taken place. (CH) 5. The suspected tyres are used to get test skid marks to help detection of over-speeding. 16.6.2 Tyre marks

Tyres and tyre marks have great evidentiary value. In the evaluation of tyre and tyre marks, the following clues are met with. The tyre marks may be prints or impressions. They are found at the scene of occurrence, on the routes, at the parking places, at the hiding places (if any) and at the sites of disposal of incriminating evidence. The marks are clearly imprinted on soft soil, on the surface covered with a thin layer of powdery material and on wet earth. They are also well imprinted when the tyre is smeared with a liquid or a powder and the trodden surface is congenial to register the marks. Ordinarily, the marks of the front tyres are superimposed by the marks of the rear tyres, but if the vehicle is reversed, all the tyres of a vehicle leave their marks. The individual marks from different tyres can, therefore, be

ascertained only at the site where the vehicle is parked or reversed. They are also imprinted at sharp turns. | The tyres and tyre marks have acquired tremendous importance in criminal investigation. Specifically, the evaluation of tyres and tyre marks helps to:

1. Identify the vehicles in hit-and-run cases. 2. Indicate the culprit’s mode of arrival and the departure from the scene. 3. Identify the vehicle used for the removal or the disposal of the booty or the incriminating evidence. 4. Trail the criminals

to their hideouts, if the vehicle has been used on

unfrequented routes. 5. Indicate the disposal site of the incriminating evidence—for example the corpse may have been carried to a pond, river, etc.

MOTOR

VEHICLES

995

The identification of tyre marks in respect of the tyres of a suspected vehicle and the evaluations of skid marks have been the most important evaluations in tyres and tyre marks. The determination of the speed from skid marks of a vehicle, in hit-and-run or accident cases often assumes great importance. The identification of the tyres from the tyre residues left at the scene is also assuming great importance, the evaluation of the alleged tyre bursts and of the traces picked by the tyres from the scene or from the route are other important aspects. Identification of tyre marks in respect of a tyre is based upon the following factors: 16.6.2.1 Tyre width

The tyre width is the distance between the two edges of the tyre. The measurement offers no difficulty when the mark is clearly deposited. It gives the cross-sectional size of the tyres. The size varies for scooters, cars, buses and other types of vehicle used. It varies with the tyres, e.g., radial tyres have greater width. 16.6.2.2 Tyre circumference

The circumference of a tyre is an important parameter to determine the tyre size to type the vehicle. It is often difficult to determine from the marks. In some cases, where there is conspicuous defect in the tread surface of the tyre, the

distance between the two successive marks created of by the defect, gives the circumference. Foreign object, wear and tear, manufacturing defect, legend or other peculiarity coming in contact with the surface to give its impressions repeatedly help the determination of the circumference. 16.6.2.3 Tread pattern

Tread patterns are often distinct. They differ from one make to another and can, thus, help identify the make. But the following points need attention: 1. A small manufacturer (or imitator) may use the design of a well-known

and respected firm. 2. Retreaded tyres may or may not carry the same design. Usually, they do not. They carry the design of respected brands. 3. The wear and tear may partially obliterate the design. The apparent design may be confused with some other design. 4. The same design slightly modified or as such, may be used by the manufacturer on different tyres: scooter tyres, car tyres, heavy transport vehicle tyres, etc. Incomplete marks may misiead! In some cases where the tyres are original, i.e., fitted for the first time on the vehicle, the marks may lead to the manufacturer. Variations in tyre patterns of the various tyres on a vehicle inter se will lead to the identification of the suspect vehicle.

«

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16.6.2.4 Wear and tear Wear and tear ina tyre is the most important evidence for the identification of its marks. No two tyres, even fitted to the same vehicle, would suffer similar wear and tear to the same extent. This is so because the surface, with which they

come in contact, the angle at which they meet the surfaces and the weight or pressure under which they meet are never alike. Further, wear due to misalignment, load in front or rear part, cornering (in heavy cars), sophisticated suspension system, over inflation or under inflation etc., add individuality to the wear patterns of the tyres. Peculiar driving habits also affect the wear differently. Consequently the wear in any two tyres is never alike. When the wear patterns of tyres are available in the form of clear marks, they help to identify the suspect vehicle.

Fig. XVI-6 The worn-out tyres carry many peculiarities. Some of these may be transferred to the surface on which it moves. It may link the vehicle with the scene. 16.6.2.5 Adventitious peculiarities

Adventitious peculiarities are: 1. Mould defects. 2. Damage due to cut, clipping, chipping, tear, etc. 3. Embedding of stone, metal pieces, glass pieces or even wooden pieces in the manufacturing process to the tyre. A trapped stone or repair also provides individualizing features. If the adventitious peculiarity is of some dimensions, the individuality of the tyre marks and their linkage to the original source are established easily. Adventitious peculiarities are rather rare in actual practice.

MOTOR

VEHICLES

3 2

*

no

sy

-

997 w

ah

#

aan

Fig. XVI-7 Adventitious change on the tyre includes inclusion of stone pieces, etc. in the tread pattern. The mark left by such pieces help to identify the tyre and consequently the vehicle.

16.6.2.6 Crab-track vehicle The inter-distances between the front and the rear tyres in some vehicles vary. Such vehicles are called crab-track vehicles. The differences are usually peculiar to the make and model and provide useful information to identify the vehicle. The data is obtained from the manufacturers’ catalogues. 16.6.2.7 Wheelbase difference Vehicles made by different manufactures and of different models, have different wheelbases, which are useful guide to identify the make and model of the vehicle. But it is difficult to determine the wheelbase. When the vehicle has been parked for some time and there is some evidence of the original position, the positions give the wheelbase. 16.6.2.8 Turning arc

An arc described by a vehicle while taking a turn, or at sharp turns, depends upon the size of the vehicle. The arc gives a good idea about the type of the vehicle. A small arc indicates a small vehicle and a large arc points to a big vehicle. One has to have data about the turning arcs before the type of the vehicle can be predicted. Usually the turning arc is useful in cases where the vehicle is either exceptionally small or exceptionally big. It is estimated when the vehicle has taken a ‘U’ turn (~180°). 16.6.2.9 Side prints of the tyres

The sides of tyres carry legends, which identify the make, model and size of the tyre. Side marks are not ordinarily imprinted but in those cases where the

—

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tyre impressions have appreciable depth (in soil, mud, etc.) it may leave legend marks. The presence of legend simplifies the identification of the make, model

and the dimensions of the tyre. The information, in turn, indicates the type of

vehicle used. If, however, legend from all the tyres is available (an extremely rare phenomenon), it facilitate considerably the identification of the suspect vehicle. 16.6.2.10 The intra position of the tyres

The position of a tyre is ascertained from the direction in which the vehicle

has moved. The direction of the movement is ascertained from the earth, which

is thrown in a characteristic way. The position of the stationary vehicle is ascertained from the drops of lubricating oil found below the engine. If the vehicle has turned, the turning circle indicates the positions of the tyres. Front tyres make wider arc than the rear tyre. Tyres may be from one, two, three or even of more manufacturers. In a study on the subject it was found that a fair percentage of new cars carried tyres of the same make. In extensively used cars, there were cars on which all the tyres were of different makes. The percentage of cars carrying tyres from two or three makes was substantial. In India no statistics has been collected. Besides, the retreaded tyres on vehicles are quite common. The extent of wear and tear of a particular tyre can fix its position vis-a-vis the other tyres.

16.6.3 Skid Marks When brakes are applied to a vehicle, they lock the wheels and stop them from revolving. When a vehicle traverses a certain distance with locked wheels, the vehicle is said to skid. The marks created by the tyres without revolving are called skid marks. The friction between the tyres and the surface abrades the tyres and black tyre material is deposited at the surface, which makes the skid marks easily discernible and conspicuous. When the vehicle is moving on soft earth, the sudden application of brakes ploughs through the earth. The skid marks in such cases are identified from the displacement of earth from the track. When a vehicle is moving in dust or dirt, the skidding tyres removes the dirt

from its path and creates the marks. If the tyre is moving on a tarry road, it creates the marks in the tar, by pushing away the tar from its path. Skid marks are created in loose or hard set snow, metalled, concrete or kacha

road. The road may be wet or concrete with oil, water or mud sleet or frost.

Skid marks have great evidentiary value. They provide useful evidence. 1. The marks are clear to start with, when the wheels are not fully locked. They may permit identification of the tyres or its make, model etc. 2. They permit evaluation of the speed of the vehicle. 3. The rubber residues deposited at the site are useful to identify the tyre(s).

MOTOR

VEHICLES

999

4. The tyres deposit fluorescent materials wherever they are placed. About one minute’s placement leaves sufficient residues to give fluorescent outline of the tyres under ultraviolet rays, to permit their identification. In a case a boy was murdered while asleep. The culprit wrapped the body in the bed sheet, carried it in a mini station wagon of the victim's father and dumped the body at a refuse heap. The vehicle was set on fire. The investigation started with the discovery of the vehicle. It led to the house of the owner. Discovery of heavy blood staining there and the missing boy led the police to seek the help of the laboratory to trace the movement of the vehicle.

A bloodstained axe and the boy’s wallet were found where the suspect (a contractor) was constructing a building. Five garages had already been completed but none of them had been put to use. A thorough search of the garages revealed a small oil drop. Nothing else was visible on the floor. It was, however, decided to examine the floor in ultraviolet light. The examination revealed four clear prints of the four tyres. It was possible from them to determine the possible make of the tyres, the front track width and rear track width. Comparison of the fluorescent prints at the site and those from the tyre, on the suspected vehicle tallied. All these observations placed the questioned vehicle in the garage. It provided a vital link in the chain of evidence to link the contractor with the murder. (CH) 5. The absence of skid marks in serious accidents indicates either mechanical failure of the vehicle, such as brake failure or the failure of

the driver who may be drunk, diseased or dozing. Or the vehicle has been

used

to kill. Their

absence,

thus,

is also

important

in the

reconstruction of the crime. Skid marks vary in length, depending upon the following factors: 1. The speed of the vehicle.

2. Weight of the vehicle. 3. The nature of the road surface. Rougher, the surface, shorter the skid marks. Wet and greasy surfaces reduce friction. Foreign material on the road, mud,

4.

5. 6. 7.

slush water, snow,

ice, sleet and frost all deerease

the

friction and thus, increase the skid length. Condition of the tyres. Over and under inflation, nature of the tread pattern, state of wear of the tyres and their width affect the skid length. Condition of the vehicle. Mechanical efficiency—of the engine, of the brakes, of the tyre fixture, all affect the skid length. Temperature. Higher temperature reduces friction; consequently, at higher temperature the skid mark length is more. Reaction time. It is the time, which the driver takes to apply the brakes fully after he has perceived the necessity for braking. The reaction time varies with different individuals. Reaction time 0.5 to 0.8 second is normal. If a vehicle is moving at a speed of 60 km/h the distance travelled in reaction time is 8 to 15 metres.

FORENSIC

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Distance traveliea in a second of

bet

1 af 32

distraction (as if blindfolded)

(ie

Stopping distance on dry surface

fifi.

Stopping distance on wet surface

tt

ih 245

20 16)

ae

+t REAL:

TTT tae| in 0

|

om

i

42

* Tee

ga |

Ty2

TRSTEOERTLLIL Degg104.5 aaa

eewe

Ms TTT ERRORRELECEUDIIDISEREREDR

Wp Miia,

Stopping distance in meters Fig. XVI-8

The above diagram indicates the distances which the vehicle at various speeds travels before it stops after perceiving the necessity to stop. The distances in the black rectangle are roughly those distances which one traverses in reaction time, the time taken between sensing the necessity of braking and applying the brakes. As seen above wetness of the road makes appreciable difference.

16.6.3.1 Determination of speed

Theoretically it is quite easy to calculate the speed of the vehicle from skid marks. The friction of road is responsible for the dissipation of the kinetic energy of the vehicle. Thus the kinetic energy causes the skid marks.

MOTOR

VEHICLES

1001

If the mass of the vehicle is ‘M’ and its speed (= velocity) is ‘S’, its kinetic energy (KE) is given by:

= 1/2 MV?

KE

If ‘f’ is the co-efficient of friction and ‘L’ is the length of skid marks and ‘Mg’ the weight of the vehicle, friction energy (E,) is given by: Mi beey ser mad. SIMS

E,

cmevenicav. (2)

When vehicle comes to stop, frictional energy, ‘E,’ and kinetic energy ‘KE’ are

equal, i.e.

1/2 MS? or S?

= MgfL =e EL,

or S

= V2gfL

If we know the co-efficient of friction (f) and “L’, the length of skid mark, (it is

measured), we can find out ’S’, the speed of the vehicle, because ‘g’ is the gravitational constant. Now it is difficult to determine the co-efficient of friction accurately. It will vary from place to place, vehicle to vehicle and from time to time (weather conditions). Therefore, it is customary to determine the speed by creating test skid marks with the suspect vehicle at known speeds at the given site. With the experimental data, the unknown speed is determined. If we denote crime scene speed and skid length as ‘Sc’ and ‘Lc’ and corresponding test data as ’S,’ and ‘L,”, we have:

S. &,

= bee hil ool to oes = (0) ralDigg eilets

(3) (4)

Dividing (3) by (4)

Se

-,

O £fSe

te,

Sy

Le

s

Ly Sitx

L

a

1.20 (5):

If we know ’S,’, ‘L,’ and ‘L,’, questioned speed of vehicle (S,) can be determined. In actual determinations the following precautions are observed: 1. Skid marks from all the four tyres are measured. Average of the four skid marks is taken, whenever, possible.

2. Skid marks must be distinguished from ordinary tread marks. Mistaking the later for skid marks will give wrong speed of the vehicle. Co-efficient of friction consist of two components: ¢ Road tyre combination interaction. * Mechanical efficiency of the engine and other parts of the vehicle.

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to Co-efficient of friction for normal vehicle and for metalled road is about 0.6 0.8 though it varies with road vehicle conditions. Wet road reduces the coefficient to 0.5 or less. Likewise rise in temperature (atmospheric or due to heavy load) also decreases friction. Generally the coefficient of friction is not measured. Instead test skid marks are used to determine the speed. This method is more accurate and practical as it duplicates the accident conditions. It is the method used in criminal investigation whenever possible. Here the skid marks at the scene are measured individually, care being taken that the initiation point of the skid marks is correctly located. If L, L, L,and L, are the four measurements for the four tyres, the average L. is used as the length of crime skid mark: L. =

(L,+b,+L,+L,)

4 For test marks the following situations are: 1. Suspect vehicle is available: Whenever possible the same, vehicle, load, road and road conditions should be used . Four test runs should be made, Average of the four runs should be taken to give test skid length (L,) ase

RS

+L,)

4

2. Suspect vehicle in damaged condition. Vehicle of the same make and model in similar condition should be chosen

whenever possible. The tyres of the damaged vehicle should be transferred to the test vehicle and test marks obtained as in (1) above.

¢ Suspect vehicle not available. A corresponding vehicle is selected and test marks obtained as in (1) above.

3. If the vehicle has bumped or brakes have been released there will be a gap in skid marks. This gap in skid marks is not included in the total length of skid marks. 4. In obtaining test marks, one has to fix starting point carefully. It is best to prefix the point from where the brakes are to be applied. The skid marks at the start are light, they are taken into account. 5. Rear tyre skid marks may overlap the front tyre skid mark. The lengths have to be ascertained carefully. Some take the distance travelled in reaction time also part of the stopping distance. Theoretically it is correct. But in practice it will give inaccurate results, as reaction time will vary even with the same individual at different times and different situations. Therefore, it is better to ignore reaction time. It is beneficial to the accused! The determination of the speed from skid marks is not difficult. The difficulty comes in when the vehicle is not in a fit condition to undergo test run. The vehicle is repaired, if possible. If the defect is in the engine only, the tyres are removed and fitted to another vehicle of the same make and model.

MOTOR

VEHICLES

1003

Skid marks thus obtained are used for the above calculations. The results are less accurate. A rough idea of the relationship between the skid mark lengths and the speed of an ordinary Indian small car (Premier) is obtained from the table given below: Table XVI-1

Skid length versus speed Skid length (metres)

5

10

20

30

40

50

60

Speed (km/h)

30

40

50

70

80

90

100

88 (0.7) 80 (0.6) 72 (0.5) 68 (0.4)

SPEED KILOMETRES IN

SKID LENGTH

IN MTS.

Fig. XVI-9 The diagram gives relationship between speeds and skid marks. Four graph lines are for road surfaces with different co-efficient offriction, indicated against the graph lines.

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Table XVI-2 Stopping distance at 50 kilometre speed é

Road Surface

Co-efficient or Friction

Stopping Distance (metres) 11.3

Dry concrete, dry asphaltic Concrete Dry bricks Wet asphaltic concrete Wet dry gravel/cinders, wet tar

13.1 15.2 18.3

Wet concrete/ bricks

oe S oY

Packed snow

16.6.4 Tyre Residues

Tyre residues are rubber residues and residues from antioxidants and extenders. They give tyre pattern, tyre width, wheels base, etc. Thus it is possible to identify the tyre and the vehicle with respect to its make, model and the individual vehicle in some cases from these residues. The antioxidants leave fluorescent marks at the place of parking. The intensity of fluorescence varies directly with the time for which the tyres were in contact with the surface. The fluorescence

fades with time, the fading may

indicate the interval of time since the vehicle had been taken away.

The rubber residues are usually left when the vehicle skids. The quantities required for analysis are in micrograms. The quantity deposited in skidding even on a small piece of stone is often sufficient for analysis. The residue material is scraped from the surface in such a way that interfering materials do not get scraped along. The material is extracted with a solvent and the fluorescence studied with a spectrofluorometer. Fluorescence in tyre residues is due to the following substances: 1. Antioxidant substances are added to the composition in the manufacture of tyres to increase the keeping quality of the rubber. They give fluorescence. Traces of these substances are transferred as invisible

traces at the scene. These traces permit study of the characteristics of the tyre material. The fluorescence gradually fades away with time, presumably, due to destruction (oxidation) of the anti-oxidants. Thus

the semi-quantitative analysis of the fluorescence can give idea about the time (only very rough idea) when the prints (visible or invisible) were deposited. However, the surface should be free from other fluorescent materials. Otherwise, the results will be incorrect. In actual practice it is difficult to have a surface free from contamination. 2. The extender oils are the second source of fluorescence in the tyre compositions. These are viscous oils added in fairly large amounts to the composition. The exact nature and quantities vary with different manufacturers. Fluorescence of the tyre residue is mostly due to these substances. Extensive variations exists in the fluorescence of the tyre

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residues. Both qualitative and quantitative analyses help in linking the tyres with its traces. Some of these substances fluorescence at 300-350 nm. 3. Polynuclear aromatic hydrocarbons are formed at the high temperature to which the tyre rubber is subjected in the manufacture and later due to friction. Wear of the tyre increases these compounds. They ordinarily exhibit fluorescence at 415 and 465 nm.

New tyres contain less amounts of polynuclear aromatic compounds. They show less intense fluorescence at the above wavelengths. Tyre residues are examined by spectrofluorometer chromatograph, through pyrolysis of the residues.

and

by _ gas

16.6.4.1 Surface effect The surface on which tyres leave residues plays an important part. If the surface is metalled, the residue may get contaminated with bitumen which absorbs and mask the fluorescence from tyre residues. If the materials are extracted, the bitumen components give far stronger fluorescence of their own, masking the fluorescence from tyre residues. The fluorescence of the tyre residues is also masked by dirt, absorbent surfaces or by the carbon in the tyre residues. However, fluorescent materials can be extracted by solvents and identified by spectrofluorometer. If fluorescent tyre prints are to be developed from such residues, they are sprayed with solvent, preferably with a lacquer (15% solution of polyvinyl acetate in ethyl acetate). The lacquer fills the pours of the surface and thus prevents absorption of the material by the surface. The lacquer solvent extracts the material from tyre residues and_ exhibits fluorescence. This phenomenon can be used to develop latent or hardly visible tyre prints. The best surfaces for transfer of the tyre residues are perhaps polythene sheets or waxed paper. They absorb the fluorescent components of the tyre materials and fluoresce under ultraviolet rays. Bricks and paved surfaces take the marks fairly well, provided the surface is not driven over too frequently and is not covered by materials which give their own fluorescence. Thus latent marks can be developed in parking places and garages with concrete surfaces which, are not in constant use.

The tyre residues, as evidence, have a great future. It is hoped that in the coming times they would provide useful evidence to solve serious crimes. 16.6.5 Tyre Bursts Tyre burst is one of the commonest excuses given for accidents. Tyre bursts

are easily identified from tears on the tubes. Sometimes the tears may be on the tyre also. In explosive tyre bursts, part of the tube is separated from the tube and the tear is characteristic in shape. In normal deflation due to puncture or cut caused by nail, glass, metal piece, stone or even piece of wood, the characteristic tear pattern is absent, nor any part of the tube is blown off. Intentional deflation to show burst is often crude. It consists of one or two regular tears or cuts. They are easily identified.

“

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Tyre burst must be distinguished from tyre failures, such as concussions (compaction on impact), towing damage (especially when tyres are deflated), dislodgment damage, head breaking, aquaplanning (incorrect metal wire in the tyre rim), damage due to tyre fitment etc. Besides, the vehicle failure due to mechanical defect may cause an accident. These points need careful evaluation vis-a-vis tyre burst. The vehicle failure and tyre failure are beyond the scope of this work. The readers would find this information elsewhere. Whenever a tyre burst is to be investigated, investigating officer should send: 1. The whole wheel unit: tyres, tube, flap and wheel-rim. 2. Information relating to the accident: angle of impact, speed of the vehicle (if possible), load, surface conditions, weather, etc.

Fig. XVI-11 The positions of the vehicle, extent of damage and the site of damage help to establish the guilt of

a particular vehicle involved in the crime. In the above road accident involving a bus and the truck (Fig. XVI-10), (Fig. XVI-11); the position of the vehicle as well as the site and extent of damage clearly indicated that the truck (Fig. 161) was at default.

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3. Photographs of the scene of occurrence. 4. Copy of the site plan. It shall be in the interest of justice if the expert is called to the scene.

16.6.6 Mechanical Failure An accident is sometimes caused by the failure of the machinery. A vehicle mechanic, engineer or a vehicle inspector should be consulted. He will be able to ascertain the general condition of the vehicle and the mechanical defects, if any, which caused the accident. A detailed written report should be obtained from him and sent to the laboratory.

16.6.7 Left over Objects _ The culprit may leave tools, articles of clothing and other personal belongings in the vehicle or at the scene of occurrence. In addition broken parts from the vehicle are also left at the scene. They provide a link between the crime and the criminal. The following points prove useful: k The source of origin of the article may lead to the owner who may be culprit or his companion 2. Articles of clothing may carry tailor or laundry marks. They may carry letters and other items, which may reveal the identity of the owner culprit or his co-traveller. 3. Handkerchief may have saliva, nasal secretions and other body fluid stains, which may permit blood grouping. 4. The leftover article may have a smooth surface and, if the culprit had handled it, it may carry fingerprints.

16.7 RESUSCITATION If a motor vehicle is stolen, the thief tries to change the original serial numbers on the engine and chassis, etc., by filing, hammering or chiselling. He changes the original digits and designs. He also changes the registration number on the plate. Sometimes instead of using a fresh registration number plate the fictitious number is painted over the previous numbers after covering the first with a thick coat of paint. The change in numbers is deciphered through resuscitation. The covered number is found by removing the paint. The resuscitation of punched number is based upon the principle that the concentration of the metal molecules underneath the number is increased when it is punched. This increased concentration of metal is utilized to find out the original number in the following ways: 1. The surface is cleaned, polished and etchants (usually mineral acids,

suitably modified for various types of surfaces) are applied. The difference in reaction rate at the punched surface and the rest of the surface makes the original number visible. 2. Radiograph sometimes reveals the number. 3. The metal is placed in a magnetic field and iron filings, suspended ina liquid base, are spread over

the surface. The digits and letters are

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Fig. XVI-12 Registeration number as seen before and after processing.

Fig. XVI-14 Filling of the serial number of vehicles from the metallic surfaces is common in stolen vehicles. Fig. XVI-13 indicates the filed number and Fig. XVI-14 indicates the resuscitated number, by chemical etching.

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formed by the arrangement of the iron particles on the edges of the punched writings. 4. Electrolytic dissolution or deposition has also been utilized to find the number. If the number is engraved, it may not be possible to resuscitate it, especially if the engraving has been done with an electric engraver. Chisel and hammer engraving

may

compress

the metal

somewhat

and

permit

resuscitation.

Enlarged photographs of the engraved marks after polishing, cleaning and removing paint and dirt may reveal the original number in some cases. 16.8 CASE LAW

16.8.1 Victim's fault Learned assistant government advocate argued that from the statement of P.W. 6,~ £ %, 4% / &

3h

Fig. XIX-6

Double stained sperms.

19.2.4.2 Biological tests Precipitin reaction with anti-human semen serum (or anti-human blood serum in the case of secretors only) and specific blood group anti-sera are

employed. The former determines whether it is human semen and the latter determines the blood group of the secretor. The techniques employed are similar to those employed in blood grouping. Individualisation——Semen sample of an individual is unique. With the classical methods it was not possible to establish the individuality but DNA profiling has made it possible to pin point the source of origin even from the tiniest speck or even when it is contaminated with vaginal fluid or mixed with semen from other sources. Age of Seminal Stains.—It is difficult to determine the age of the stain as the changes with age are largely determined by the environmental conditions. The semen is a gel like mass after ejaculation. It liquefies on standing. On drying, it slowly changes to an opaque white mass with rough feel. After two or three weeks the colour changes to pale yellow and then to brown. Spermatozoon in fresh semen is complete with head and tail. On drying and with passage of time it begins to disintegrate, the tail separates out from the head. The head is also affected. The sharp division in differential staining slowly disappears. Survival of Spermatozoon.—The spermatozoon remains motile only for a few hours under normal conditions. The motility seldom continues after twenty-four hours. But if the semen is frozen, the spermatozoon may remain alive for long periods. It shows motility, when the, sample is brought to normal temperature. In humid and warm climate, the spermatozoon gets destroyed in a short while. In dry and cool climate the dead spermatozoon may be identified even after months. In vaginal swabs of a living person, spermatozoon may be detected up to about five to ten days, though the number of spermatozoa detected goes on decreasing with passage of time.

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In dead persons, detection of spermatozoon depends upon the condition under which the dead body remained. It may be detected in unputrefied bodies even after a few months. But if the body has putrefied the spermatozoon is also destroyed.

19.3 OTHER BODY FLUIDS Other body fluids, which occasionally acquire importance

in criminal

investigations are saliva, urine, faeces, sweat, nasal secretion, tears and human

milk. They, like blood and semen, establish an inter se link between the criminal, the victim and the scene. They have fewer identifying features than blood. 19.3.1 Saliva Saliva stains may be found at the scene, on handkerchief, on discarded cigarette stubs, spittal, on cups, tumblers, bottles (used for drink) on postage stamps or envelopes or even on tooth picks. Or, they may be found on a piece of cloth used as gag. Saliva contains an enzyme (ptyalin) which when added to starch, hydrolyses it. Saliva extract, therefore, when added to starch inhibits its colour reaction with iodine. Saliva of secretors contains blood group substances and can be grouped. The saliva on cigarette stubs is often grouped in criminal investigation. DNA profiling of the saliva stains has enhanced the evidential value of the saliva stains and has brought it at par with the other body fluids like that of blood and semen. Food material mixed in saliva may interfere with blood grouping. Saliva does not give specific precipitin test.

19.3.2 Urine Urine is identified from the comparatively large amounts of urea in it. The stain is located with ultraviolet rays. It is then extracted with water and tested for urea. Urine stains can now be individualised through DNA profiling.

19.3.3 Faeces Faeces are involved in cases of sodomy and bestiality. The stains are found on the undergarments, on the flies of the trousers and on flaps of the shirt of the active agent.

Faeces are identified microscopically. Bacterial studies of the faeces may also lead towards individualization but the same has not been exploited as a routine at present.

It is possible to identify the human or animal origin of the faeces.

19.3.4 Sweat Sweat stains are involved only in the case when some garments are left at the scene of crime. Or, whexe the culprit or victim has perspired profusely and left

sweat stains.

The composition of sweat is similar to urine. However, if the two substances

are warmed, the odour is characteristically different.

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Paper and gas chromatographic techniques hold bright future for identification of sweat stains. Sweat stain of secretors can be blood-grouped. DNA profiling of the stains is possible.

19.3.5 Nasal Secretions Nasal secretions are similar in chemical composition to saliva. They can be blood-grouped, if they belong to secretors. They are amenable to DNA profiling.

19.3.6 Tears and Human Milk Tears and human milk stains likewise permit their identification. Blood grouping of the same is possible if they have come from the secretors. DNA profile can be developed for individualisation. 19.4 CASE LAW 19.4.1 Taking Blood and Semen Samples 1. The further objection of Sri Ayyapu Reddy was that taking samples of blood and semen does not come within the scope of examination of the person of the arrested person. The said words take in only physical examination of the

body. I cannot agree. Examination of a person by a medical practitioner must logically take in examination by testing his blood, sputum, semen, urine etc. To a question put by me Sri Ayyapu Reddy has said that taking an x-ray photograph or electrocardiograph is not excluded from the examination of the person of the arrested person. When that much is conceded, I see no reason why examination of blood and semen is outside the scope of section 53.

In B. Rami Reddy v. State of Andhra Pradesh!, Madhava Reddy, J. held that the signature of an arrested person can be taken for comparison and article 20(3) of the constitution does not stand in its way. Justice Ramachandra Raju likewise held in M. Narayanaswami v. Y. Jangultanna*, that taking thumb-impression of an arrested person is not precluded by article 20(3).

For these reasons, I cannot agree that the impugned direction that the blood and semen samples of the petitioner should be taken comes within the mischief of testimonial compulsion. The next argument was that taking samples of blood and semen inflicts torture and pain on an undertrial prisoner and it was tantamount to an offence against the accused. It was further argued that there was no provision in the Code of Criminal Procedure to compel under-trial prisoner to give samples of blood and semen. What I have stated above shows that under sections 53 and 54 of the new Code there is such a power. In fact section 53 provides that while making such an examination such force as is reasonably necessary for that purpose may be used. Therefore, whatever discomfort that may be caused when sample of blood and semen are taken from an arrested person it is justified by the provisions of sections 53 and 54, Code of Criminal Procedure.” 1. 1971 (2) APLJ 174: 1971 Cri LJ 1951.

2. 1974 (2) APLJ 178: AIR 1975 AP 88. 3. Anath Kumar Naik v. State of Andhra Pradesh, (1977) Cri LJ 1797.

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19.4.2 Bloodstains 1. Furthermore, their identifications are corroborated not only by the evidence of Takalya to whom the appellant had made an extra-judicial confession, but also by the evidence of the recovery of a blood stained knife and a blood-stained “bush shirt” at the pointing out of the appellant. The appellant had also some injuries on his person which had resulted from the scuffle. Their duration coincided with the time of the occurrence. He had also some bloodstains on his clothes which he could not explain. The bloodstains on the objects mentioned were of the same group as either that of the deceased or of his wife. The accused’s blood grouping is different. After examining the whole evidence, there is not a shadow of doubt left in our minds that the appellant had committed the

dastardly attack.! 2. It will

be

recalled

that

head

constable

Gajanan

Salokhe

seized

bloodstained shirt (article 1), handkerchief (article 2), “Banian’ (article 3) and

half pant (article 4) from the person of the appellant and also took clippings of his nails (article 5) as they were also suspected to be stained with human blood. As has been stated the chemical examination showed that while the appellant’s blood was of “A” group, the blood of his son-in-law Shivaji was of “AB” group and the blood of his daughter Vijaya was of “A” group. The appellant’s short and the clippings of his nails were found to be stained with human blood of “B” group, while his half pant (article 3) was found to be stained with human blood of “A” group. The High Court was therefore quite justified in reaching the conclusion that it was the appellant who had committed the two murders.” 3. Then there is also the evidence of recovery of blood-stained clothes from accused Nos. 1 and 3. The clothes were found stained with human blood and the explanation given by accused Nos. 1 and 3 for the presence of blood on the clothes can hardly be said to be convincing. Of course, this cannot be regarded as a conclusive piece of evidence for incriminating accused Nos. 1 and 3, but it is certainly a piece of evidence which goes to support the other evidence about

the guilt of accused Nos. 1 and 3.3 4. For raising a presumption of guilt against the accused for offence of murder the ownership of the weapon of offence cannot be said to be of much importance. The matter of consequence is possession and its use by the accused. When accused failed to give explanation for his possession of the bloodstained “kassi” (spade) a weapon, which if used against the deceased could have caused the injuries found on her person, notwithstanding that the bloodstains found over it had not been established to be of human blood, yet its recovery construed a strong circumstance against the accused, 1972 Cri LJ 744 (SC) 1956 1959 Cri LJ 90 (SC) and 790 (SC) relied on.

The evidence of identification of an article at the trial is the substantive evidence and the identification of the same article by the same witness, at the time of test identification, is only a corroborative piece of evidence.’ Ramesh Ramdas v. State of Maharashtra, 1976 Cri LJ 310 (SC).

Rau Chima Chougule v. State ofMaharashtra, (1978) Cri LJ 14: AIR 1977 SC 2407. N.D. Dhayagude v. State of Maharashtra, (1977) Cri L] 238 (SC). & Se State of Rajasthan v. Nanu Ram, (1978) Cri L] NOC 80. oo

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19.4.3 Blood Trail It was argued with great vehemence in the High Court as well as in the Court of Sessions that there was a trail of blood from the front door of the house of the vakil into the rooms marked H in the plan and that supported the defence theory that the deceased Kannan received the stab injuries not in or near the house in question but somewhere far away near the railway station. The High Court took the view that if Kannan had received the injuries somewhere outside the house it is impossible for him to have come into the room in view of the doctor's evidence. It was concluded on the material placed on the record that there could be no room for doubt that Kannan received injuries in the room itself and not outside, and that he was carried out of the room while life was still lingering and therefore there would be dripping of the blood from the body during the course of transit as the injuries were very serious and vital arteries had been cut.!

19.4.4 Blood Pool The evidence shows that although two injuries were caused and one of the questions which had been raised by the defence was that there was no blood at the spot, no attempt was made by the prosecution to show the reason why there was no blood at the spot. It is significant to notice that blood was not found at the spot. There was no blood on the cot on which the dead body of Chaggar Singh was carried, nor was there blood in the compound where the dead body was lying nor a trail of blood to the house. The learned judge was not satisfied that the occurrence actually took place

near the ‘Haveli’ of Dial Singh.’ 19.4.5 Collection 1. I would have attached great importance to the evidence of the imperial serologist in regard to the detection of blood-stains on the trousers and the shirt which the appellant was wearing at the time when he was arrested, but I feel impressed by the argument advanced by the learned counsel appearing as amicus curiae in this case that the delay in despatching these articles to the chemical examiner and the absence of the evidence that these articles were sealed and despatched in the presence of the appellant and respectable witnesses is fatal to the prosecution so far as this point is concerned. As has been indicated in paras 2 and 4 above these articles were seized from the person of the appellant on evening of 17th Phagan 2006 at Thana and they were packed, sealed and despatched to the chemical examiner on 22nd Phagan, i.., six days after they had remained in the possession of the police. Where is the guarantee that these clothes were not tampered with during this long interval? In a similar case reported in [’J&K’ LR 37 (A)] the learned Chief Justice, the late

Mr. Justice Rachhpal Singh observed as follows at page 42. In a case like this what happens generally is that the police immediately in the presence of witnesses takes possession of the articles containing bloodstains and at 1. Marachalil Pakku v. State of Madras, 1954 Cri LJ 1668 (SC). 2. State of Punjab v. Behari Lal, 1953 Cri LJ 1427.

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once seals them so that it is not open to the accused to come out with the defence that these bloodstains might have been placed there by the police. In the present case the door leaves were for several days in the custody of the police and it ts possible that somebody connected with the prosecution might have placed these stains on them.

The observation is fully applicable to this case. The learned counsel for the appellant has rightly drawn our attention to this glaring defect and I am afraid it would not be correct to exclude the possibility of the stains having been put subsequently on the clothes in this case. As it is, these stains cannot furnish any corroboration of the retracted confession. Apart from it, the appellant had more than 24 hours to wash his clothes and remove the stains. It is not the prosecution story that the idea did not occur to him. On the other hand the story for the prosecution is that the appellant had washed his Loi, Ex. P. 3, during the interval. It is therefore strange that he should not have washed his shirt and

trousers and wandered about with these clothes on.’ 19.4.6 Relevancy

The discovery of a blood-stained piece of cloth from the house of the appellant leads to no conclusion against him on the charge of murder. While the chemical examiner found blood on it, the imperial serologist could not say that it was human blood. The discovery of one or more dhotis with some stains of blood which are not ascertained to be human blood, five months after the alleged murder cannot be stated to be evidence of murder against the appellant. The Sessions Judge was quite right in observing that if some blood-stains are found on clothes of persons engaged in cutting roots and working in the jungle they cannot be put down as evidence of murder. The dhoti seized from the appellant’s brother, Motiram was not even found in the possession of the appellant. Under the circumstances, the evidence classified under the fourth

head is of no assistance to the prosecution.” 19.4.7 Slovenly Reports

The chemical examiner’s report about the blood-stains is slovenly and perfunctory and we have noticed with regret the same slovenliness in the reports of other chemical examiners in some other cases that have recently come before us. The chemical examiner’s duty is to indicate the number of bloodstains found by him on each exhibit and the extent of each stain unless they are too minute or too numerous to be described in detail. Merely to say that blood was detected on an exhibit, as this report states, is not enough. It may well lead to miscarriage of justice compelling judges to acquit when they would have convicted had the report been more revealing. We trust these observations will be brought to the notice of all chemical examiners in this country. Not that they all act like this. Many give full and detailed reports

as they should.

|

1. Abdul Salam v. State of J&K, 1953 Cri LJ 1865.

2.

Tulsi Ram Kannu v. State, 1954 Cri LJ 225 (SC). See also Periyasami Thevan v. State of Madras, AIR 1950 Mad 714.

3.

Prabhu Babaji v. State of Bombay, 1956 Cri LJ 147 (SC). See also Ram Prasad v State of Madhya Pradesh, 1953 Cri LJ 702 (Bho).

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19.4.8 Disputed Paternity The points for exposition in this revision are five in number viz: (a) technique of blood test; (b) the value of blood test; (c) the law on this subject in various countries;

(d) how

far such

order

could

in criminal

cases

be held

to be

testimonial compulsion offending article 20(3) of the Constitution and (e) how

far this compulsory blood test can be extended to proceedings under section 488, Code of Criminal Procedure.

Point (a): The blood group of a person is determined by the characters which it contains. It must contain at least one character of each set and the characters are inherited according to fixed rules. A child cannot have a character which he does not inherit from one or other of his parents. The technique of this blood grouping has been developing with the passage of years, and a vast literature on this subject has now sprung up. The gist of which can be studied in the authoritative treatises on medical jurisprudence and cannot be further dealt with here. Point (b): The value of the test is however limited. Glaister has the following to say:

Its use for the determination of paternity is of value on account of the Mendelian inheritance of the individuality of the blood by the offspring of a given mating. Although the true father can never be definitely identified by the test, it can frequently be asserted that a certain man could not be the father of the child in question. A man who fails in repeated blood grouping tests can definitely, and without doubt be eliminated as the father. The test is also of importance when a child is claimed by two sets of parents. Gonzales, etc. states:

“The tests, however, have their limitation; they may exclude a certain individual as the possible father of a child but they cannot possibly establish paternity. They can only indicate its possibilities. Another man with the same group as the father could be responsible for the child in question. Lyons had the following to say: The negative finding is definite while positive finding indicates a possibility only. It can be stated definitely that Master Tom is not the son of Mr. Smith. It cannot be stated equally definitely that he is the son of Mr. Brown. That he can be the son of Mr. Brown is all that can be stated on the positive side. The remarks apply to Mrs. Smith and Mrs. Brown regarding motherhood. Wigmore on Evidence (Third Edition) in Vol. I, section 165 A, (p. 610 and following) sums up blood groups as evidencing paternity, as follows: In one specific biological trait, viz., blood-groups, scientific opinion is now in accord in accepting the fact that there is a causative relation between the trait of the progenitor and the trait of the progeny. In other words, the blood- composition of a child may be some evidence as to the child's paternity. But thus far this trait (in the present state of scientific discovery as generally accepted) can be used only negatively, i.e., to evidence that a particular man is not the father of a particular child C. The biological data that permit this inference are complex..... The

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the progress of science will no doubt make it possible from time to time to increase range of the cases that afford decisive proof, both negative and affirmative. Already, by judicial decision or by statute, the law has accepted the use of bloodgroup composition to evidence paternity negatively,—of course, only when testified to by a qualified expert. Point (c): The law on this subject in various countries can be studied from the valuable monograph published by Schatkin on ‘Disputed Paternity Proceedings’. Third Edition, Second Reprint 1956 (U.S.A.) (Mathew Bender and Co. 443, Fourth Avenue, New York, N. Y.) in Chapter VIII (p. 193 and following): In the United States of America, New York was the first state to authorise blood test in disputed paternity cases (Laws of 1935, Chapters 196, 197,198, in effect

March 22, 1935; as amended by laws of 1930, Ch. 439, section 1, in effect May 4,

1936). Nine other states have followed suit. All ten statutes are substantially the same. It runs as follows: Whenever it shall be relevant to the prosecution or the defence in an illegitimacy action, the trial court, by order, may direct that the complainant, her child and the defendant submit to one or more blood tests to determine whether or not the defendant can be excluded as being the father of the child. The result of the test shall be receivable in evidence “but only in cases where definite exclusion is established. The test shall be made by a duly qualified person, or persons, not to exceed three, to be appointed by court and to be paid by the country. Such experts shall be subject to cross-examination by both parties after the court has caused them to disclose their findings to the court or to the court and jury. Whenever the court order such blood tests to be taken and one of the parties, shall refuse to submit such test, such fact shall be disclosed upon the trial unless good cause ts shown to the contrary. Brief as it is, the above statute covers the following important points: a. The result is admissible in evidence only when the exclusion is established. b. The expense of the test is made a county charge. c. The test may be performed, not only by a physician, but also by any qualified pathologist. d. The refusal of the mother (or defendant) to submit to the test may be drawn to the court’s attention. In Denmark, since 1937 the test has been compulsory by statute in affiliation cases, and it is today ordered as a routine matter in such cases. In Germany

prior to the Nazi regime, an average of 10 per cent of the children born each year were illegitimate, and under the aegis of National Socialism, this proportion no doubt increased. All children born out of wedlock are by operation of law automatically placed under State Guardianship. Under German law the defendant in an affiliation suit is presumed to be the father of the child if it is established that he cohabited with the mother during the statutory period of conception. This statutory period of conception lies between the 181st and the 302nd day (both inclusive), preceding the birth of the child. There are only two

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defences available to the accused (1) that conception by him was “obviously impossible under the circumstances (for example, if he can show that he was sterile); and (2) he may raise the legal defence of exception plurium that another man also cohabited with the mother during the legally critical period. In effect, therefore,

the unwed

mother

in Germany

is permitted

to name

two

men

successively as the father. If the defence is exception plurium, and the blood test excludes the other man, the defendant originally named will be adjudged the father. If the blood test excludes the defendant, suit may be brought against the other man. The courts of Soviet Russia have allowed blood tests since 1927, and

today the positive result of the test there is regarded as absolutely conclusive proof of non-paternity. Incidentally, there is no longer any legal distinction drawn between legitimate and illegitimate children in Soviet Russia. In Sweden blood tests are compulsory and ordered as a routine matter in all affiliations. As early as 1926, the Supreme Court of Austria accepted an exclusion as decisive of the issue of paternity, and acquitted the defendant. In Canada, in Morris v. Gantous, (1941) 47B, de jur, 150, the Quebec court held,

in an opinion written in French, that it lacked the power to order the drawing of a blood specimen for the purpose of carrying out a blood test. (The Canadian Bar Review, May 1949, page 538). In England as pointed out in (1938) 185 LT 409 (A) or in other countries the

courts have the power to order the tests to be done, but in this country they have not. English magistrates cannot take into account in any way an applicant’s refusal to undergo a test. The test can only be done by consent. On July 6, 1938, Lord Merthyr introduced his Bastardy (Blood test) Bill in the British Houses of Lords, which, by its terms, was to have been effective on January 1, 1940. The Select Committee of that House reported favourably on the bill as follows: The committee are unanimously of the opinion that the quantities of blood underlying blood grouping and the laws of inheritance governing the transmission of these qualities from parents to children are accepted by such a consensus of scientific opinion throughout the world as to render it desirable in the interests ofjustice for this knowledge to be applicable to affiliation cases. Due to the war all private members’ bills were suspended and this bill was not enacted into law. Wherever courts in England have ordered blood tests it is only by consent. In India there is no special statute and there is no provision either in the Criminal Procedure Code nor in the Indian Evidence Act empowering courts to direct such a test to be made. Similarly as pointed out by Raghava Rao, J. in Venkateswarlu v. Subbayya', there is no procedure either in the Civil Procedure Code or the Evidence Act which provides for a blood test being made of a minor and his mother when the father is disputing the legitimacy of the minor and held that if the parties are unwilling to submit to such a test the court has no power to direct them to submit themselves to such a test.’ 1. (1951) 1 Mad LJ 580: AIR 1951 Mad 910 (1). 2. Subayya Gounder v. Bhoopala Subramaniam, 1959 Cri LJ 1087 (Mad).

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19.4.9 Rape 19.4.9.1 Injuries

1. It is true that Dr. H.S. Amwani found no injury on the genital region or anywhere in the appellant’s body and no clotting of the hair. In the opinion of the doctor, there were no signs of struggle, but the absence of smegma round the corona suggested that there could have been sexual intercourse. There could possibly be no injury caused to the appellant at the hands of the raped girl because she was only five years old. As for the absence of injuries on the genital region of the appellant, Dr. H.S. Amwani was of the view that if there was no full penetration there would be no lacerations on the triennium of the penis. He further explained that if only the corona went inside the private parts of the girl, there would be no lacerations. In Modi’s Medical Jurisprudence and Toxicology, 14th Edn. at p. 339, it is mentioned that: Modi had seen cases in which there was no injury to the penis of the accused although there were lacerations of the hymen, posterior perineum and even the vaginal walls of the victim. In Taylor’s Principles and Practice of Medical Jurisprudence, 10th Edn. at p. 83, the case of R. v. Cowrley has been quoted in which the prisoner, aged twentyfour, was tried for a criminal assault on his own daughter Catherine, aged less than 4 years. The labia majora of the girl was swollen and bruised. The fourchette has been torn across as well as the posterior wall of the vagina, for a depth of over a quarter of an inch extending backwards; from this there was a laceration which came up to the anterior wall of the rectum. The anterior part of the external sphincter, i.e., that part between the anal orifice and the central tenden of the perineum had been torn. There was bleeding on her private parts, and even on admission to hospital there was slight oozing of blood. The prisoner himself desired to be examined by a doctor. No marks of violence on his person nor any stains of blood or semen, etc., were found. The apron in which the child had been wrapped when she was taken to the hospital contained blood and spermatozoa on one spot and blood only on the other. Nothing was found elsewhere. The prisoner’s pudenda was unusually clean for a man of his employment and cleaner than the rest of the body. The jury wishes to know why no marks of violence were found on the prisoner, and the medical witness had stated that the male organ, being pressed against the soft parts would not show marks of violence. The prisoner was on the evidence convicted and sentenced to 10 years’ penal servitude. This case and the medical evidence produced in that case supports what has been said in Modi’s Medical Jurisprudence and Toxicology that there are cases in which in spite of all these injuries on the private parts of the victim, theré.may be no injury whatsoever on the penis of the accused. It would not be, therefore, correct to discard the prosecution evidence only on the basis that no injuries were found on the person of the appellant.! 1. Dal Chand v. State of Uttar Pradesh, 1969 Cri LJ 585 (All). See also Duli Chand v. State of Rajasthan, 1952 Cri LJ 1575 (Ajmer).

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19.4.9.2 Corroboration not necessary The learned advocate asked us to look for corroboration of the evidence of the victim on the ground that rape has often been described as the easiest charge to make and the most difficult to refute: Karichiappa Goundan (in re:).! The question of corroboration has been the subject-matter of a decision of the Supreme Court in Rameshwar Kalyan Singh v. State of Rajasthan.” In that case the appellant was charged with committing rape on a young girl, eight years of age. The learned Sessions Judge held that the evidence was sufficient for moral conviction but fell short of legal proof because, in his opinion, the law requires corroboration of the story of the prosecutrix connecting the appellant with the crime. He was

satisfied, however, that the girl had been raped by somebody. Accordingly he acquitted the accused. In the appeal by the State against acquittal the High Court held that the law requires corroboration in such cases but held that the girl’s statement made to her mother was sufficient corroboration and setting aside the acquittal convicted the appellant. On appeal to the Supreme Court it was held: The first question is whether the law requires corroboration in these cases. The Evidence Act nowhere says so. A woman who has been raped is not an accomplice. If she was ravished she is the victim of the outrage: In the case of a girl below the age of consent, her consent will not matter. The learned High Court Judges were wrong in thinking that they could not, as a matter of law, convict without corroboration. The tender years of the

child, coupled with other circumstances appearing in the case, such, for example, absence of motive to falsely implicate the accused, its demeanour, ~ unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. In this case no corroboration beyond the statement of the child to her mother was necessary. The appeal was dismissed. How the principles laid down in the Supreme Court decision should be applied are set out in Public Prosecutor v. Mohini Sankara Das, 1956 Andh WR 572 and State Govt. of Madhya Pradesh v. Sheodayal Gurudayal, AIR 1956 Nag 8; Dulichand v. State, AIR 1952 Ajmer 54: 1952 Cri LJ 1575; See also B. Chinnappa (in re:), AIR 1951 Mad 760: (1951) 1 Mad

LJ 110. How tell-tale smegma on the person of the accused will also corroborate the prosecutrix; see Ramkala Prasad v. Emperor, AIR 1946 All 191: 47 Cri LJ 611;

Harendra Prasad v. Emperor, AIR 1940 Cal 461.3 19.4.9.3 Special situation

The medical examination of the prosecutrix shows that she had a prolapse of uterus about 2” outside her vulva. A forcible intercourse with such a woman would have certainly given a copious discharge of blood at the time. The report of the chemical examiner, on the other hand, goes to show that there was only one small patch of blood on the ghaghra of the prosecutrix. The presence of semen on the clothes of the appellant and the prosecutrix by itself, in my 1. AIR 1942 Mad 285. 2. AIR 1952 SC 54. 3. Anthony alias Makthawatsalu (in re:), 1960 Cri LJ 927 (Mad).

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opinion, carries, no weight whatsoever for, admittedly, both of them are married

persons and had been putting on the same clothes for a considerable time.’ 19.4.9.4 Delay in despatch

Another very suspicious feature in this case is the evidence relating to taking

a swab. That it is said was done on November 12, but for some reason, it was

not sent to chemical examiner until March, 1951. Much can happen to a swab in the meantime and therefore the evidence of the chemical examiner as to the

examination of the swab is really worthless. 19.4.9.5 Life of sperms

.

Mr. Mitter therefore argued on the life of spermatozoa stating that beyond a few hours the spermatozoa could not live. Therefore, he argued that if any sexual intercourse had taken place on the 18th March, 1960, the spermatozoa could not be found on an examination on the 20th March, 1960, specially the girl had washed herself and answered call of nature during the period of time between the alleged crime and the medical examination. Therefore Mr. Mitter builds up the theory of artificial introduction of semen to Hayatunnessa by the police. He did not accuse the doctors. This suggestion of artificial insemination or artificial introduction was never made either to the investigating officer or to the doctors. To say the least, we consider this suggestion to be wild. Opinion and views expressed in medical text books that the life of spermatozoa is only a few hours after intercourse cannot help Mr. Mitter. Dead spermatozoa could still be found. It is not necessary to find live and active spermatozoa. Mr. Mitter tries to argue on the basis of medical authorities that the spermatozoa after death disintegrates, but he has not been able to show how long it takes spermatozoa to disintegrate so completely that even their presence cannot be detected. The fact remains that the chemical examiner definitely found spermatozoa in the vaginal smears and vaginal swabs of Hayatunnessa.

The swabs and smears were taken by responsible doctors, who, we believe, were true to their professional code. They were sent under sealed covers as exhibit 37 shows. Not the remotest suggestion was made in cross-examination that the seals were broken or tampered with by anybody. We, therefore, hold that the medical opinion and the chemical examiner’s report corroborate Hayatunnessa’s evidence of rape.°

19.4.9.6 Blood and semen 1. We are satisfied and, indeed, Shri Mukherji fairly admitted, that the sixyear-old Anjali had been the victim of rape on the date set out by the prosecution. The main point on which counsel laid stress was the identity of the criminal. The plea of the appellant was one of the total denial which was consistently disbelieved at the forensic triple-decks through which it had passed. There is the evidence of Anjali and her mother. The playmate Ashok 1. Har Nath v. State of Rajasthan, 1952 Cri LJ 1563 (Ajmer).

2. Arbinda Dey v. State of West Bengal, 1953 Cri LJ 511 (Cal). 3. A.W. Khan v. State of West Bengal, 1962 (2) Cri LJ 751 (Cal). See also State of Orissa v. Parvatiam, 1963 (1) Cri LJ 310.

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1111

(P.W. 2) has given corroborating testimony. The first information has been prompt and has implicated the accused. There was blood on the genitals of the appellant to explain which he invented the story of itches and scratches thereof. It is true that while the evidence before the committal court has been consistent and total, implicating the accused, there has been some wobbling in the trial court on the part of the little girl and her mother, for reasons not far to seek. Even so, the evidence in the trial court is explicit enough to implicate the accused, even apart from the depositions in the committal court which have been read as evidence under section 288, Code of Criminal Procedure. There are corroborating materials inescapably fixing the guilt on the accused, such as the blood-stain on his clothing. Even assuming that the evidence of little children requires general corroboration, we are satisfied that the proved circumstances that the girl was playing in broad day-light that she was carried away by the accused and brought back crying after a time, that there was a first information lodged before the police shortly thereafter, that the medical examination of the accused’s genitals indicated the presence of spermatozoa, are sufficiently corroborative of the guilt of the appellant. Even otherwise, the grave injustice, manifest on the record, can induce this court to demolish the concurrent

findings of guilt by the three courts below. There is iittle to be said for such a drastic step in the circumstances unfolded in this case.’

19.4.9.7 Venereal disease infection It is a well-known rule (see Modi’s Medical Jurisprudence, Tenth Edition, p. 303 and p. 305) that in cases of rape the alleged victim and the accused persons should be specially inspected for venereal diseases. Dr. Jadunath Kar (P.W. 1) who medically examined the girl Bimali Devi took special care to collect some smear from the vagina of the girl and sent it to the chemical examiner from whose report it appears that the girl was infected with gonorrhea. Dr. Harekrushna Parija (P.W. 2), however, has not stated that he examined the accused persons with a view to ascertain if any of them was infected with venereal diseases. His evidence is entirely silent on this subject. Any medical officer with some knowledge of medical jurisprudence is expected to know that in cases of rape the accused ought to be specially examined for signs of veneral disease, if any. Even if this medical officer overlooked this point, the investigating police officer or the superior police officers who supervised the case ought to have sent a special request to the medical officer to further examine the accused persons to find out if there were signs of venereal disease. Unfortunately, this was not done with the result that an important piece of evidence was lost. If any of the accused persons was found to suffer from gonorrhea that would be the strongest piece of corroborative evidence of the girl’s statement incriminating that

accused. On the other hand, if none of the accused was found to suffer from

gonorrhea

that circumstance

itself would

completely

disprove

the girl’s

1. R.K. Agarwal v. State of Orissa, 1976 Cri L] 1376: AIR 1976 SC 1976, See also State of Bombay v. Hiraman Punjab Vidhati, 1965 (2) Cri LJ 349 (Bom); Mushtaq v. State of Uttar Pradesh, 1954 Cri LJ 1288 (All).

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allegation of rape by the accused persons because according to her evidence that was the first time when any person had sexual intercourse with her.! 19.4.9.8 Spermatazoon necessary

The wearing saris of both the women

and underwears

of Manik and

Narayan were seized under the seizure list Ext. 1. The sari of Samiran (P.W. 10)

was of light blue colour check-black bordered, which was marked as C and D by the chemical examiner. No spermatozoon could be detected in these exhibits. What is more striking is P.W. 10 was recalled to say that the green sari was worn by her that night. This was marked A by the Chemical Examiner and spermatozoon had been detected therein (Ext. 8) but the origin or groups of semen could not be detected. Be that as it may P.W. 10 was not a truthful witness at all and she had no hesitation to give apparent lies for securing a conviction.

It is also striking that the appellant though arrested on that very night was not produced before Dr. Pal, (P.W. 11) who examined P.Ws. 1 and 10 on 10.5.70.

No injury was found on the person of P.W. 10 suggesting resistance to violence.’ 19.4.10 Un-exhibited report of Chemical Examiner as Evidence In the file of committal courts, there is an unexhibited report of Chemical

Examiner. A reading of that report would show that no seminal stains and spermatozoa could be detected on article-A i.e. Shantibai’s Sari. It is further stated in the report that vaginal slides of the girl were not received by the Chemical Examiner although it was mentioned in the memo of the S.P. that those were also sent to Chemical Examiner for chemical examination. The story of Shantibai (P.W. 1) was that her Sari has got soiled by acts of discharges during the course of incident by the appellants. She had gone to the length of producing the soiled Sari at the time of making her report. That Sari was seized by the police and sent for chemical examination. The report of the Chemical Examiner, already indicated, contra-indicates the story of any sexual intercourse having taken place with the prosecutrix. The law with respect to unproved prosecution documents appears to be that although the prosecution cannot be allowed to use them, the defence cannot be denied their use if those documents support the defence in any manner. In the case Shivprasad v. Emperor, (1938) 39 Cri LJ 917 (Nagpur High Court); AIR 1938 Nag 934, the FIR

was not proved by the prosecution. It was held that the defence could not be shut out from using that document, merely because the prosecution had not formally proved it. If the prosecution wished to imply that FIR was a garbled document, it should have given evidence to that effect. In the absence of such evidence, the defence could legitimately make use of that document. Another 1. Anam Swain v. State of Orissa, 1954 Cri LJ 132. See also Rameswar v. State of Rajasthan, 1954 Cri LJ 547 (SC); (a) For faked rape: Gangaram v. State of Maharashtra, 1951 Cri LJ 244 (Nag); (b) Rape not proved: Bhima Karsan v. State, 1951 Cri LJ 396 (Kutch); (c) Unnatural Offence: Lobana Vasantlal Devchand v. State

of Gujarat, 1968 Cri LJ 1277. 2. Narayan Dutta v. State, 1980 Cri LJ 264.

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;

eae

case Samedas v. State of Madhya Pradesh,’ also related to unproved FIR. It was not proved and hence could not be exhibited in the case. It was held that the prosecution could not be allowed to use it because it had remained unproved. But even so it was open to the defence to make use of it, if it supported the defence in any manner. In the present case the unexhibited report of the Chemical Examiner did not in fact require to be formally proved by any witness. It was a document which proved itself under section 293 of the Code of Criminal Procedure and should have been exhibited even if it was not referred to in the deposition of any witness. That report stood on an obviously better footing than an unproved FIR. The defence could be legitimately allowed to make use of it. When so considered, it militates against the prosecution story about any sexual intercourse having taken place with the prosecutrix.

CBM

1. 1969 Cri LJ, S. No. 54.

2. Shatrughun v. State of Madhya Pradesh, 1993 Cri LJ 122.

Chapter 20

DNA PROFILING SYNOPSIS

20.1 IMPORTANCE 20.2 NATURE 20.2.1 Mitochondrial DNA 20.3 EVIDENTIARY CLUE MATERIALS 20.3.1 Blood 20.3.1.1 Liquid blood 20.3.1.2 Liquid blood at the scene 20.3.2 Bloodstains 20.3.2.1 Dried bloodstains 20.3.3 Semen 20.3.4 Hair 20.3.5 Saliva Stains 20.3.6 Body Tissues and Organs 20.3.7 Post-mortem Samples 20.3.8 Foetal Material 20.3.9 Blood Samples in Paternity Cases 20.4 EVALUATIONS 20.4.1 Processing 20.4.2 Isolation of DNA 20.4.3 Fragmentation of DNA 20.4.4 Separation of Fragments 1114

:

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PROFILING

20.4.5

DNA Probes

20.4.6

Southern Blotting and Hybridisation

20.4.7

Visualisation of the RFLPs Patterns

20.5 THE POLYMERASE CHAIN REACTION ( PCR ) 20.5.1

The PCR Process

20.5.2

Controlling Factors

20.5.3

Problems in PCR

20.5.4

Identification Techniques

20.5.5

Sex Determination

20.5.6

Problems of PCR Evaluation

20.5.7

DNA Profile records

20.6 CASE STUDIES 20.6.1

Maternity Identification

20.6.2

Abandoned Baby

20.6.3

DNA v. Confession

20.6.4

DNA Profile v. Eyewitness

20.6.5

DNA Profile Induces Confession

20.7 SETTING STANDARDS 20.8 CASE LAW 20.8.1

DNA Test allowed

1115

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TRIALS AND INVESTIGATION IN CRIMINAL SCIENCE FORENSIC 1116

DNA PROFILING 20.1 IMPORTANCE The correct identification of criminals and other individuals has always been one of the most important problems in criminal and civil investigations. The best and certain method, so far, had been the identification through fingerprints. This identification mode was discovered during the fag end of the nineteenth century. It has been helping the criminal justice system tremendously wherever it was adopted. Now, a similar potent mode has come up for the identification of individuals from all body materials containing cells. This mode, excels the other method of identification in certain respects: 1. It permits the identification of the individual not only from the comparison of his own body materials containing body cells inter se, but the identification of his body materials can also be made from the body cells of his blood relations: parents, sons, daughters, brothers, sisters

and the like.

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Fig. XX-2 Each of the four children in this family has one band from the mother (M). Likewise children C,, C, and C, have one band inherited from father (F). Child C, has different paternal band, proving C, had different father.

2. The identification is possible from a variety of clues, which are available in different types of crimes: blood, semen, hair roots, body tissues, bone marrow, etc. They can be linked to the source (the culprit or the victim) from which they emanated. In Naina Sahini’s Tandoor Murder Case the body after the murder was being burnt in an oven - Tandoor. When people suspected foul play and stopped the burning, a badly burnt body was taken out. The body material was too much charred to permit its use in the DNA test. Bone marrow was used to identify the victim. Its DNA profile was compared to those of her parents and identity established. (CH) 1117

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3. The clues can be identified inter se. Thus a semen stain source can be identified positively from a blood sample, a skin piece, a hair or even a bone marrow taken from the culprit.

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Fig. XX-3 In a case of gang rape, there were three suspects. However analysis of the mixed semen provided identity of only two suspects. Blood, semen and hair provided the same corresponding DNA profiles.

4. More importantly, in cases of mutilated non-identified bodies, the identity of the deceased can be established by comparing his DNA profile with those from his suspected parents, brothers, sisters, sons or daughters. 5. In all countries, thousands of dead bodies most of which are killed,

remain unidentified. DNA is helping to reduce the number of such unidentified bodies.

6. The quantities of the DNA required for analysis are extremely small, in micrograms. In recent times the requirements have become even less, due to amplification of material clues through cell regeneration, technology— Polymerase Chain Reaction (PCR).

7. An important advantage of DNA profiling is that the contamination of the evidentiary clues by similar biomaterial may increase the difficulties but do not prevent the identification significantly. In vaginal swabs, for example, the vaginal fluids can be eliminated and they do not inhibit the identification of the source of semen. Likewise, in cases of gang rape the different sources of semen in the stains or in the vaginal swabs can be identified as if the other semen samples were not present.

DNA

PROFILING

1119

In the murder case of a Chief Minister of Punjab, Human Bomb was used. The person carrying the bomb was shattered to pieces. The identity of the person was established through DNA profiles of the person and of the parents of the suspect. (CH) 8. Using chromosome specific probes, the sex of person from whom the body material has come can be identified positively as that of male. However, female sex has only to be inferred from the absence of male specific chromosomes. 9. DNA profiling has been used successfully in the identification of skeletal remains.

A fifteen years old girl was murdered. Her skeletal remains were discovered after about eight years. The provisional identity of the deceased was done through skull superimposition technique and comparison of dental data, available with dentist. Final definite identity was established through bone DNA profiling. A piece offemur was taken. It was sand blasted to remove contaminants. DNA was extracted and purified from the bone. It was found highly degraded. The DNA, therefore, was typed through PCR amplification of 6 micro-satellite and compared with those of her mother and father. The bands were consistent fully for the 6 micro-satellite inter se. (CH) 10. Old cases of disputed paternity, which often come up for inheritance, can be decided properly through DNA profiling.

In an interesting case, decided in July 2002, by an USA court after 7 years, a 69 year-old person, Ben Erskine, claimed that he was the son of a Yoga Guru, PARMAHANSA YOGANANDA. The Guru had died in 1952. The Guru's organisation ‘Self -Realisation Fellowship’ has vast properties. Ben Erskine wanted a share in the properties. The organisation got DNA profile of the claimant compared with the DNA profiles of three of the male relatives of the Guru, in India. The independent results from two separate laboratories showed, that there is no relationship between the Guru's clan and that of the claimant, Erskine. The DNA profiling not only cleared the Guru, even after 50 years of his death but it also showed that the claimant was an impostor. (CH) The method of identification is inferior as compared to the fingerprint identification method only in one respect. The process involves sophisticated tools and techniques. It is, therefore, costly and time consuming. The technology is hardly two decades old. It is hoped that the on-going research will bring down both time consumption and expense in the DNA profiling technology. DNA profiling is applicable to virtually all the body materials. They, as clue materials, are encountered in a variety of heinous crimes: murders, dacoities, encounters

(fake or otherwise), hit and run cases, assaults, rape and other

offences against person. In addition, body materials may also be exchanged in other offences like theft, trespass, etc. The culprit may deposit body materials with the victim, at the scene, enroute or on the vehicle used. Likewise, he or his

»

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weapon of offences or vehicle may pick up body materials from the victim. Hairs, for example, are shed continuously. The culprit is likely to leave them at the scene. Fallen hairs have roots and hence they can provide DNA material for profiling, through polymerase chain reaction. If the victim has come in contact with the culprit, he is likely to transfer some hairs to the culprit. Thus, they exchange their visiting cards—cards which cannot be forged or faked; cards, which on processing provides complete and irrefutable identities of their owners. Saliva on the victim, on cigarette stubs, on cups, tumblers, in the spittle,

etc. can provide materials for DNA profiling. Nasal secretions and abraded skin are other clue materials that can provide DNA profiles. There was never a doubt about the individuality of body materials even before the diversity of DNA molecule structure was discovered. Scientists had not been able to establish experimentally the individuality of material from a particular source. The body materials were extensively utilised for blood group substances, enzyme and isoenzyme systems. In some cases the possibility of a particular source of the material could be excluded but positive identity of the individual source always remained elusive. DNA profiling has changed the whole context. It provides positive linkage with the possible source and equally positive delinkage in the case of an innocent suspect. This was dramatically revealed in a case investigated in U.K. The case is known as the Leicester Murders. Two 15 years-old girls were raped and murdered. A seventeen-year-old boy was suspected and arrested. On interrogation (Third Degree?) he confessed to the crime. However, when the semen recovered from the victim was DNA profiled and compared with his DNA profile, they were found different. He was let off. A mass screening programme was organised. The prevalent methods for semen testing were employed first. DNA profiling was employed only in those cases where the usual methods could not eliminate ‘a particular subject’. About 5500 were screened before the real culprit could be identified. The comparison was carried out by preparing a DNA profile from the incriminating samples and compared with the large number of samples, obtained from the public. Only one and one sample gave perfectly matching DNA profiles. (CH ) The other major field of application of DNA profiling is determination of blood relationship. DNA molecule follows Mendelian law of inheritance. Out of 46 chromosome 23 are from the father side and 23 from the mother side. These chromosomes provide the DNA. The DNA of the offspring is, therefore, is a confluence of the structures of the DNA of his parents. Thus parents, brothers, sisters, sons, daughters, even uncles and aunts can be inter-linked. The findings

have great importance both in criminal and civil investigations. DNA profiling is of immense help in the following types of forensic problems: 1. Linkage of the criminal, the victim, the weapon of offence, vehicle used in the crime, scene of occurrence, routes, etc., inter se, through body materials exchanged or deposited as clue materials.

DNA

PROFILING

112}

2. Identification of the culprit or the victim, through body materials, including fallen or pulled-out hairs 3. Identification of culprit from semen, semen stains or vaginal swabs in rape cases.

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Fig. XX-4 Waterloo of a Rapist-Murderer. DNA profile (s) of semen recovered from the pubic hairs of the victim matched with the corresponding DNA profile (M) of the murderer’s blood. The profile (V) for the victim's blood was completely different.

4. Identification of culprit through saliva left on cups, glasses, cigarette stubs, spittle, and bitten skin, etc. 5. Identification of persons through urine or faecal matter. 6. Identification of mutilated dead bodies through known and available body materials. 3 7. Identification of body parts inter se in the cases of scattered or dismembered body. 8. Establishing correct parentage in disputed paternity cases.

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Fig. XX-5 Who is biological father of the child? DNA profiles decide that F2 is the father when his 20 RFLPs matched with those of the child (C). F, had also some common RFLPs but few only. Above are only parts of the DNA profiles.

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9. Incest cases.

A step-father raped his minor step-daughter. She conceived and gave birth toa child. The step-father denied any responsibility. DNA profiles of the blood of the girl, the infant and the step-father clearly indicated that the step-father had fathered the child. There were 14 paternal-specific bands visible in the DNA profile of the infant. The entire fourteen bands had corresponding bands in the DNA profile of the step-father. The expert gave a probability of the step-father

not being the father of the infant as less than one in 108. (CH) 10. Parentage of abandoned child. 11. Parentage of murdered infant. 12. Establishing blood relationship among persons claiming the blood relationship to claim inheritance, property or entry to another country. 13. Alleged adultery cases. 14. The homo-or hetero-logus nature of twins 15. False charges relating to rape, fatherhood, etc. 16. In gang rape cases, identification of all the involved culprits. 17. In family paedophilia cases, the proof against the criminal family member was difficult. DNA of the body material with the victim child provides certain proof. 18. In robbery and burglary case, the culprit is likely to leave body materials: blood, semen, hair, and saliva, even faeces. These materials can provide DNA profiles of the culprit.

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1 ig

moi

NON-IDENTICAL TWINS

Fig. XX-6 Twin problems? Homologous? Heterologous? DNA profiling decides. Identical profiles for identical twins (Homologous). Non identical profiles for heterologous twins.

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19. DNA profiles helps to link various crimes like, rapes and murders if they are the work of the ‘Serial rapist or murderer’. The linkage provides more data about the criminal and his modus operandi and ultimately leads to the culprit In a case of robbery, DNA profile of the arrested robber was developed and placed on National Database. The Computer search of other crimes committed by the robber brought in a rich harvest. Four other robbery cases, which had remained unsolved, were identified to be the handiwork of this robber. (CH) 20. In immigration disputes sometimes illegal attempts is made to induct person of non— permitted relationship by declaring falsely that they are the permitted relatives. DNA can identify the blood relation. A U.K. sponsor wanted to induct brother’s family into U.K. He declared that they were his wife and children. DNA profiles eliminated the chance of the children’s entry into the country. They were not his issues. (CH)

21. DNA profiling has proved useful to identify poachers of protected wild life. Bloodstains on the persons of the poachers can link him with the remains of the animal. 22. DNA

profiling helps to identify fake encounters.

On March 22,2000, terrorists killed 35 sikhs in a Kashmir village. On March 25,2000, the security forces killed 5 persons, allegedly foreign terrorists, from across the border. The locals alleged that they were local persons. Blood samples were sent for their identification through DNA profiling. The laboratory found that the blood was unsuitable for the profiling. The blood of the terrorists was sent again to DNA profiling laboratory, along with the blood from the alleged relatives. The DNA profiling clearly established that the terrorists were not from across the border but they were locals. (CH)

20.2 NATURE DNA is the abbreviation of Deoxyribo Nucleic Acid. It is the basic genetic material in all the living cells of the body. It is not contained in red blood corpuscles. It is, however, present in white corpuscles. It carries the genetic code. Hence the DNA structure determines human character, behaviour and body characteristics. The structure of DNA

varies from individual to individual. Each individual,

consequently, is unique—different from all others. In monozygotic twins, DNA structure is the same because they come forth by the division of a single fertilised egg. Monozygotic twins are genetically identical. DNA is a complex molecule. It has a double helix structure, which can be compared with a twisted rope ‘ladder’. The side arms of the ‘ladder’ are made of sugars and phosphates. The rungs of the ‘ladder’, are made of two pairs of four bases: 1. Adenine and thymine form one pair (and one rung of the ‘ladder’), each base emanating from either of the two arms and joining in-between.

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aaa eon mon pares

Fig. XX-7

DNA Molecule (Double Helix - ‘the twisted rope ladder’).

2. Cytosine and guanine form the other pair and other rung of the ‘ladder’. The bases of one pair do not interchange with the bases of the other pair. The ‘ladder’ thus formed, is twisted and each twist consists of ten pairs — ten rungs. One DNA molecule can have lakhs of these pairs. pups

wdYA LE

Ss pur

Fig. XX-8 The Watson-Crik Model of DNA.

These base pairs are further compacted into parts known as alleles and minisatellites. They have several thousand such bases. Molecular biologists have been tinkering with DNA molecules to study the diseases and other inheritance aspects. During the investigations, they discovered that these base pairs are compacted into units, which are repeated in the DNA molecule at a periodicity, which varies with the various individuals. They also discovered that the length of these basic units, fragment lengths (FL) vary with different individuals. Further, they discovered that if the purified DNA molecule is subject to the action of certain enzymes, known as Restriction Enzymes (RE), under controlled conditions, the cleavage of the DNA

double stranded-molecule takes place at

sequence-specific points in the molecule, giving specific Restriction Fragment lengths (RFL). The fragment lengths vary from several to several thousand base

pairs. The RFLs vary from one individual to another. This fragment length variation phenomenon is called Restriction Fragment Length Polymorphism (RFLP).

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The variations in the fragment length can be due to a number of reasons: 1. There are several kinds of genome level differences in individuals. 2. Mutation alters the base sequence restriction enzyme recognition sites and thus creates new sites or eliminates original ones. 3. Mutation may insert or eliminate DNA building blocks between the boundaries defined by two cleavage sites.

RFLP has been found both in nucleic and mitochondria DNA parts. Nucleic RFLPs are inherited in accordance with the Mendelian principles. Hence they provide excellent information to determine blood relationship. When DNA, after isolation from the source, is subjected to the action of single Restriction Enzyme, a large number of fragments (RFs) are created. These fragments are subjected to electrophoresis where they get separated into bands, depending upon their fragment sizes and the residual charges. Usually conditions of the electrophoresis process are controlled in such ways that only fragments of 2-10 kilo base or other desired size are left on the Agarose gel. These fragments are picked up on a Nylon Membrane. The process of picking up fragments on Nylon Membrane is called Southern Blotting. The identification of these fragments is done with the help of hybridisation probes. These probes are DNA pieces, which have been labelled with radioactive isotopes of phosphorus (usually 32P).

Hybridisation processing is simply to bring in contact the labelled probes with the DNA fragments on the Nylon Membrane (Southern Blotting). The complementary base pairing takes place and the fragment become radioactive. The Nylon Membrane, after removing the excess of probe, is brought in contact with an X- ray film, the same is affected at the radioactive sites. The hybridised RFLs give visible bands on the X-ray plate on development. Comparison of the bands from the questioned DNA sample with the DNA profile from the suspected sources reveals the identity or non-identity of the given questioned source. The following probability calculations for the number of common bands (indicating corresponding RFLPs) in paternity cases have been given: Table

THE CHANCE OCCURRENCE OF BAND MATCHING Odds against a chance match Number of bands 4 250 to 1 4000 to 2 6 65000 to 1 8 1 million to 1 10 17 million to 1 12 268 million to 1 14 4300 million to 1 16 68000 million to 1 18 20

1 million million to 1

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Geeeitais: i Gpawein ts ula OeSere

CBI ne

rut

|

= WMH 2

yyy

f

|

6

eu

ene

7 CS Bh lainel |

|

TT

5 (Rh

Re

TRIALS

it tem en ee

|

i

Fig. XX-8 Blood from the scene and from seven suspects DNA profiled. Only two profiles match, which ones?

20.2.1 Mitochondrial DNA Mitochondria is body gene contained in eukaryotic cells, responsible for cellular respiration and for the generation of Adenosine triphosphate (ATP)— an important body constituent for the transfer of energy in living cells. Mitochondia genes give mitochondrial DNA. It is inherited but it does not follow the Mendelian inheritance law. The mitochondrial genes are inherited from mother only. The father is not involved in their inheritance. Hence mitochondrial genes cannot be used to determine the fatherhood of a person or child. They, however, link mother and other maternal relative positively. The basic composition of mitochondrial DNA and its shape vary from nucleic DNA. The functions also vary. Human mitochondria contain 2 to 10 units of double stranded circular DNA molecule. It has 16.5 kilobase length and molecular weight is of the order of 10’. The mitochondrial genome is highly variable. A segments, known as D-loop, provides high discrimination among non-related individuals on analysis with restricted enzymes. It has also been found that maternally related individuals show abundant correspondence in D-loop sequences. The D-loop segment is amendable to polymerase chain reaction and, thus, minute quantities of the clue materials can provide mitochondrial DNA profiling for determining maternal interrelationship. Mito DNA profiling is coming up as an important tool to establish the identity or non-identity of an individual.

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20.3 EVIDENTIARY CLUE MATERIALS In DNA profiling, the basic clue material is DNA. It should be un-degraded, high-molecular weight DNA. Fortunately DNA is a fairly stable compound. Lower molecular weight DNA has been recovered even from 2400 years old mummies.

DNA of high molecular weight could be obtained from 5 years old semen stains and 4 years old bloodstains. One to ten micrograms of DNA are required for DNA profiling. This amount of DNA is found in about 50 microlitres of blood; or, 10 microlitres of semen. Stains of equivalent amounts in others clue materials, are adequate. Likewise,

one hair root freshly pulled out, may carry sufficient amount of DNA for profiling. The quantities mentioned above are the minimum for normal processing. Usually larger quantities are used for test purposes whenever they are available. For example, about ten hairs are processed if they are available. Smaller amounts are no longer problematic. PCR increases the amount to the desirable quantities. DNA is found in every living cell of our bodies and can, therefore, be extracted from a whole variety of different materials, a list of the same is given below: . Blood and bloodstains . Semen and semen stains . Hair and hair roots . Finger nail pairings

. Saliva Body tissues and body organs Bone marrow and lones Urine . Faecal matter BS ©ONAN PWN

©

hod

Tooth canal root pulp

Foetal material . Post-mortem samples. NO —_ — QW. Blood samples in blood relationship cases. 14. Other Body fluids The most common forms of evidentiary clues available for testing and the quantity required thereof are given in the table below: Table

Evidentiary clue

DNA Amount

1. Blood

20-40 pg /

2. Stain, 1cm sq.

.

~ 200 ng

uml

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150 — 300 pg/u ml 0—3 ng 1-750 ng

3. Semen 4. Vaginal Swab (after coitus) 5. Plucked hair 6. Shed Hair

0-12 ng

7. Saliva (Buccal cells)

0.5-1.0 ug/ u ml

8. Urine (track cells)

1 to 20 ng/ nm! uu. = micro, n = nano

20.3.1 Blood Blood is clearly the most common sample tested, either as a liquid sample or as a dried stain. DNA is in fact extracted from the white blood cells (leukocytes). It is not present in either red blood cells (erythrocytes) or in plasma. 20.3.1.1 Liquid blood

Liquid blood samples are usually taken from suspects, either as a one-off exercise or as part of a mass screening programme. They should be taken with a non-heparinised syringe and needle and be put into blood collection tubes that contain EDTA as an anti-coagulant. Such tubes are commercially available. Ideally a minimum of 5 ml. of blood should be taken, with a duplicate sample as well, if that is possible. The blood should be well mixed with the EDTA preservative and then stored at 4°C unless it is unlikely to be used for several weeks. It should be used at the earliest. Otherwise it should be put in a freezer. Qualified doctors must collect the blood.

20.3.1.2 Liquid blood at the scene

Collection of liquid blood at the scene follows the pattern for collection of blood for other tests. The following notes are just reminders: 1. Use clean and sterile receptacles. 2. Use sterile (disposable) syringe. 3. If the above are not available, soak clean cotton cloth in blood, dry it and pack it as usual. 4. Preserve it with EDTA. 5. Blood clots can be transferred to the tube or cloth with a spatula. 6. Blood in water. Collect as much water as possible in clean containers immediately to prevent further dilution and degradation. Send the sample to the laboratory at the earliest. Preserve the sample in a freezer if there has to be delay in sending the sample. 7. Collect a control sample of the substrata from nearby place.

20.3.2 Bloodstains Bloodstained materials may also be used for DNA profiling. Laboratory tests have shown that DNA can be extracted from even the smallest stain but clearly the larger the sample, the better is the chance of success. The important factor for successful DNA analysis is not necessarily the size of the stain, nor even its age, but the conditions under which it has been stored plays the crucial role. Stained material should be air-dried at room temperature by hanging them on a hanger

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in clean atmosphere and then stored in moisture-resistant containers (such as polythene bags in a freezer). Polythene bag should not be used outside a freezer. They should be packed in paper bags to prevent bacterial growth or disintegration. Bloodstains on small objects should be handled/collected similarly. However wet stains on large objects are collected either on clean cotton cloth and dried or scraped after drying and the material collected in sterile tubes. 20.3.2.1 Dried bloodstains The following steps are taken to collect dried bloodstains:— 1. Fix the location of the stains ( as in case of other evidence ) through photographs or sketches.

2. Collect the small object itself, carrying the dry stain. 3. Scrap off the stain from the big objects on to a clean paper. Fold the paper in a chemist fold or transfer the material to a sterile sample tube. 4. If the stain is small and the object is unwieldy, collect the sample with a wet (with saline) clean cotton cloth piece. Dry it before further processing it. 5. Collect a control sample from the place near to the place from where the evidentiary material has been collected. 6. Collect dried bloodstains on carpets, upholstery and on wooden objects by cutting the stain bearing area. Pack the stains separately. 7. Collect blood spatter on adhesive tape by pressing it against the surface and leaving it pressed for sometime. Suspend the tape in a container so that it does not come in contact with the sides. 8. Collect bloodstains from vehicles (outer surface, under surface) in such

a way that other evidence is not destroyed. Obtain control samples from the nearby substrata.

20.3.3 Semen Semen is the second most common form of material tested for DNA. It is almost certainly the primary evidence in most of the sexual crimes. It is in fact the sperm heads that contain DNA rather than the seminal fluid. Therefore, before DNA analysis is performed, it is advisable to first ascertain whether the

material is actually semen and does contain sperms. Testing the aspermic semen

sample from a man

who has had a vasectomy

or otherwise, would

clearly be of little value since quite obviously there would be no sperm present. Semen-stained clothing should similarly be examined to confirm the presence of sperm as part of the general forensic investigation of the evidence available. Ideally, a small portion of the stain should be cut out for this confirmatory work since casework experience has shown that the standard conventional forensic tests employed to confirm the presence of sperm may actually damage the DNA present and reduce the amount available for DNA analysis. Once sperm is confirmed in this test sample, then the remainder stain can be used for DNA extraction and profiling.

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In cases of sexual assaults, semen may also be recovered on swabs from

dry vagina, anus or from mouth. These should be air-dried and stored under conditions as in the cases of other stains.

Liquid samples should be ideally stored at low temperature (< 40°C) or be frozen. Repeated freezing and thawing should, however, be avoided since this can also reduce the recoverable amount of DNA. Semen samples in rape cases may well be contaminated with blood or vaginal secretions from the victim, which will also contain DNA. The contaminant material can be removed by pelleting the sperm heads. Thus a DNA profile of just the assailant can be clearly produced. As a precautionary measure, a blood sample from the victim should always be taken where possible in order to aid the interpretation and analysis. In the collection of the semen and semen stains the following points should be kept in mind: 1. Collect the liquid semen with a sterile syringe in a sterile sample tube. Despatch the sample to laboratory at the earliest. Or, keep it in a refrigerator till it is sent. 2. In case small amount of liquid semen, collect it on a clean cotton cloth, as in case of blood. 3. If stains are on an object, which can be collected, collect it after air drying the semen stains. 4. Collect semen stains wet or dry ( on bed, carpet, sofa set ) by cutting off the piece. Take also a control sample. Dry before packing.

5. Collect semen stains from floor (or from other impervious surface) by scraping or by lifting it on an inert adhesive tape. Take control sample also. 6. A doctor, preferably a lady doctor, collects the anus, oral or vaginal swabs from the victim. Usually a rape kit provides the containers for the materials collected. 7. A lady doctor collects the vaginal fluids from the victim. Again the rape kit provides the necessary paraphernalia.

20.3.4 Hair Hair cut from someone's head is in fact dead material. It is not useful for DNA profiling. It is the cells within the hair root that contain DNA and therefore, only hairs, which have been plucked or pulled out or fallen, are

suitable for DNA profiling. Hairs often found at the scene of a crime may well in reality be hairs that have simply been shed rather than actually pulled out. These hairs have dried roots and may, therefore, contain sufficient DNA for analysis. Different types of hair contain different amount of DNA. In the same

person even head hair may well have different amount of DNA from moustache, beard, chest or pubic hair. Some samples may yield plenty of DNA for analysis, others may yield little. Hair root samples are not particularly easy to analyse and therefore, should ideally be stored dry prior to analysis. Although it may be

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possible to analyse one single hair root using single locus probes, ideally around 10 hair roots is probably the minimum number required to successfully produce a DNA profile with multi-locus probes. However, PCR has overcome the difficulty of small amount of sample material. Even one hair with root can now be profiled successfully. Collection of hair follows the usual procedure mentioned for collection of hair in the Chapter on hair (supra) . The following tips are just reminders: 1. Use clean forceps and containers. 2. Pack only dry hair. 3. Store the evidence in a refrigerator, if there is to be delay in the despatch of evidence.

20.3.5 Saliva Stains It is generally accepted that most of the body fluid stains are amenable to DNA profiling. However handling of the clue needs care. One must guard against contamination and degradation. Collection follows the usual rigmarole as in blood. Saliva per se does not contain body cells but it may well remove sufficient epithelial skin cells from the inside of the mouth for DNA profiling purposes. The technique has been shown to work in this way during research studies, but in field situation it may not be reliable. Research studies are continuing into its possible future use. 20.3.6 Body Tissues and Organs Body tissues, bone pieces and certain organs often form clue material. They are left at the scene, in the vehicles, with the weapon of offence, on the person of

the culprit (in blast cases), at the sites of dismemberment or disposal. They can link the crime, the criminal, the victim, the scene and the weapon of offence.

They are located, collected, preserved and despatched in the usual way. Common precaution relevant to all biological evidentiary against contamination, putrefaction and degradation must be observed.

20.3.7 Post-mortem Samples

The success of DNA analysis in post-mortem samples depends upon the state of decomposition of the body. This, in turn, depends upon the time since death, the temperature at which the body has been stored, and whether or not the person was suffering from any disease. Post-mortem blood samples can be used, but are suitable only when the body is relatively fresh. Spleen and bone marrow are good sources of DNA, and another useful source is muscles, particularly from the thighs or upper arms. 20.3.8 Foetal Material Foetal material can be used as a source of DNA and should be frozen without

any added liquids or preservatives. Satisfactory DNA profiles can be produced from such material in order to prove or disprove paternity. 20.3.9 Blood Samples in Paternity Cases Where DNA testing is requested for purely personal reasons, a client’s own

family doctor can be used to take blood samples if this is acceptable to both the

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client and the doctor. In cases involving legal proceedings the orders of the court should be obtained. It is the client’s responsibility to ensure that the sample chosen is acceptable to the legal system that eventually deals with the matter. The name and address of the doctor and the date and time of the taking of the sample should be properly recorded. This is the responsibility of the client or their lawyers and not that of the doctor chosen. A blood sampling kit, including all the necessary identification documentation for each person to be tested is commercially available. For proper identification two passport size photographs of each person giving blood should be obtained. These should be given to the sampler for endorsement as part of the taking of the sample registration procedure. The identification documents are completed by both the donor and the sampler and sent to the laboratory carrying out the tests along with the blood samples.

20.4 EVALUATIONS DNA profiling has come to stay in a big way in criminal and civil investigations. However as the idea, tools and techniques are comparatively new and they are so revolutionary in their concepts, that there was the usual fear of the new and the expected reluctance on the part of the courts to accept the evidence. This was mainly due to communication gap. In addition, the laying of proper foundation for legal acceptance of a new type of scientific evidence was not laid. The courts have since accepted the evidence. One and all who are concerned

with the evidence should understand

the

following aspects: 1. The RFLPs, which form the basis of identification:

e Are stable throughout the lifetime of a person, like the ridge patterns of a fingerprint. ¢ Have true genetic character. e Are inherited. It may be pointed out that there is ample evidence to show that they have true genetic character and that they are inherited. The stability of the RFLPs throughout the lifetime is not in doubt. Indirect experimental evidence and theoretical considerations lead one to believe that they are stable throughout the lifetime of an individual. 2. There is now adequate data on the frequencies of various RFLPs based upon the statistical studies, with adequate number, on various groups of people. 3. Anomenclature for RFLPs based on molecular weights has come up for all practical purposes. In fact the separation as well as identification of RFLPs is based mainly on weight. 4. Hybridisation probes should be available to various Forensic Science

Laboratories and other institutions carrying out DNA profiling so that the work can be checked and cross-checked at more than one place. Patenting of the probe is standing in the way.

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5. Detailed test procedures should be laid down. Appropriate controls and standards should be specified. The quantum of proof: number, quality and positional variation limits of bands should be specified. 6. Quality assurance through periodic blind tests must be introduced in laboratories where DNA profiling is done for court cases. 7. Sensitivities of the test procedures have to be increased. At present the amount of DNA required is 1 to 10 microgram. This quantity of DNA can be collected from about 50 microlitres of blood or equivalent bloodstain, under ideal conditions.

Likewise

about 10 microlitres of

semen or equivalent semen stain is required. These quantities appear to be quite small. However, in quite a few cases such quantities are not available. The work to improve the situation by replication of the cells

through standard PCR technique has eliminated the lacunae. It has ultimately overcome the deficiency of sample’s sufficiency. The

stability

of DNA

molecule

and

its fragments

(RFLPs)

has

been

established on proper footing in recent times. In fact it has been found that they are more stable than the protein and antigen genetic markers, which have been used, so far, in blood and bloodstain evaluations. 20.4.1 Processing

DNA

1 ?

DNA be? gh

is digested

restriction

;

eae

from

specimens

7,

\

is extracted

enzymes

with to

produce fragments

a

Standard DNA size markers

it Tee a ee

large

Double stranded DNA fragments are separated by electrophoresis through an agarose gel

small

denture to produce single stranded DNA fragments

nylon membrane

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transfer of DNA fragments from gel to nylon membrane

radioactively labelled DNA probe in single stranded form cover membrane with probe and incubate

the DNA probe binds to specific | complementary DNA fragments _ but positions on membrane are invisible wash membrane

to remove

excess probe

place X-ray film next to the membrane

to

detect

banding pattern membrane

sample A

sample B

me

Pao Yo es

develop X-ray film to visualize DNA _ Typing pattern.

|

Fig. XX-10 Schauetic outline.

|

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DNA 1. 2. 3.

profiling involves the following steps: Isolation of high molecular weight DNA from biological material. Fragmentation of DNA molecule through Restriction Enzymes( RE ). Separation of the Restriction Fragment Lengths (RFLs) through electrophoresis. . Transference of RFLs to Nylon Membrane (Southern Blotting). . Preparation of radioactive probes. . Hybridisation of the RFLs through radioactive probes. > OF ND . Visualisation of RFLs bands on X-ray film through autoradiography and its development to give visible patterns of the Restriction Fragment Length Polymorphs (RFLPs).

20.4.2 Isolation of DNA Whole blood, semen, hair roots, bloodstains and semen stains are incubated at 37°C overnight in a buffer at pH 8 in micro-centrifuge tube of 1.5 ml. capacity along with 20 microgram per ml. proteinase K and 0.039 M DTT. DNA is extracted with phenol-chloroform mixture (1:1) twice. It is precipitated with 0.1, volume of 2 M sodium acetate solution and 2.5 volumes of absolute alcohol. The DNA is pelleted through centrifuging the same at 15000 g. for 5 minutes. The pellet is washed with 70% alcohol and is re-pelleted. In an alternative method the material is boiled in presence of chelating resin. DNA is separated. DNA can be visualised through Ethidium Bromide staining. DNA can be quantified by absorbance at 260 nm in a UV spectrophotometer. 20.4.3 Fragmentation of DNA There are a number of enzymes, which fragment DNA molecule. Jeffreys et. al

have used Hinf I (20 Units) in the presence of 4 ml. spermidine trichloride for two hours at 37°C. The fragments were extracted with phenol and precipitated with ethanol. Digest of 10 microgram DNA ‘is used for electrophoresis for one go. 20.4.4 Separation of Fragments

DNA digest is applied to an agarose gel (0. 7%, denatured, neutralised)."The gel length of 25 cm. appears to be ideal. The fragments are electraphoresed. Electrophoresis for 30 hrs. at a voltage of 40 has been recommended. The conditions of the process ensure ideal fragment size (2 to 10 Kb.) to remain in the gel. The smaller size fragments (< 2 kb) pass over. The exposure of the gel before denaturisation and neutralisation to strong ultra violet rays for about half a minute facilitates the movement of the bigger fragments of the DNA molecule.

20.4.5 DNA Probes DNA probes are pieces of DNA that binds specifically to DNA fragments through complimentary base pairing. These DNA pieces are labelled with radioactive isotopes (usually 32P deoxy ribonucleotide triphosphate). These probes are also known as hybridisation probes. Jeffreys et. al have been using two single stranded M. 13 probes, 33.6 and 33.15 prepared from primer extension reaction.

Research work has since developed other probes.

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20.4.6 Southern Blotting and Hybridisation

The separated DNA RFLPs through electrophoresis are lifted on an efficient Nylon Membrane, variously named by different manufacturer (e.g. Hybond-N

filtler-AMERHAM,

Zeta

Bind-AMFCUNO)

using

conventional

blotting

techniques. Radioactive DNA probe (supra) is then brought in contact with the Nylon Membrane. The probe fragments ligate with the RFLPs and become radioactive. Excess of the probe material is removed from the Nylon Membrane in several successive changes of the specific buffer. Some works to remove the excess use a temperature of 65°C and ultrasonic chamber. The Nylon Membrane now carries the ligated radioactive RFLPs from the sample subjected to the examination.

20.4.7 Visualisation of the RFLPs Patterns Auto-radiography is used to visualise the band pattern on the Nylon Membrane. The Membrane is kept in close contact with an X-ray film at 80°C for 3-48 hours. Intensifier screens are used to reduce the exposure time. The positions of the band on the X-rays correspond to be positions of the RFLPs on the Nylon Membrane. They in turn indicate the positions of the RFLPs on the gel itself.

20.5 THE POLYMERASE CHAIN REACTION ( PCR) PCR is virtually a cloning process in which DNA or its fragments can be replicated any number of time — even a million or more times. However the useful number of replication cycle is around 50,000. The advent of PCR has proved a boon for personal identification in forensic science. PCR offers the second approach for DNA analysis. It has assumed tremendous importance in recent times and it is being used by most of the institutions carrying out DNA profiling work. The approach offers a number of advantages: 1. Very small amounts of evidence clues, considered insufficient previously, can be analysed for DNA: e Single hair. ¢ Saliva on cigarette stubs. ¢ Fine spray drop of blood. 2. The possibility of DNA profiling with smaller amounts is a distinct advantage over RFLP technique. 3. The PCR amplification can be carried out in multiplex mode. In other words a number of PCR amplification can be carried out simultaneously. 4. Degraded DNA is amenable to PCR amplification . This extends the application of DNA analysis to many cases in which the traditional method using VNTR would fail. 5. PCR increases the amount of DNA or its fragments. The increased amount increases the speed and ensures better quality results of analysis.

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6. The minute quantities required for PCR permit division of the original clue material for independent testing by the defence, or at more than one place. Fe Related tests can be performed with the increased amount made possible by PCR. These advantages is making the RFLPs techniques increasingly redundant.

20.5.1 The PCR Process The polymerase chain reaction process involves the following steps:— t. DNA is incubated at a suitable high temperature (~ 95°C). The double

strand of DNA changes into single strand. The strand acts as template for replication. . The temperature is lowered. Oligonucleotides are re-application primers. They get attached bound to their complementary sequences on the template DNA strands in specific way.

Nucleotide primers added stepwise, extend the primers strands and new DNA molecules are formed in the presence of DNA polymerase. The thermostable polymerase TAQ is used for the purpose. It is heat stable. The DNA molecules have double strands. The molecules so formed acts as templates for subsequent replication cycles and the formation of new molecules increases exponentially. . In automated reaction chain, the steps and the number of cycles are controlled by thermocycler. The extension steps are now carried out with greater speed at higher temperatures (up to 75 °C) by the new generation of thermostable polymerase. 20.5.2 Controlling Factors

The factors, which control the quality, quantity and the speed of the replication of DNA are: 1. The quality and quantity of the following materials:—

¢ DNA material

¢ Oligonucleotide Primers. ¢ Polymerase ° Ingredients of the reaction mix for the range 1 — 5000 copies are: 1. Primers

0.05 — 0.5 uM

2. TAQ

1—4 units / 100 ul.

3. Buffer

5 — 8.4 pH

4. Protein BEA / Gelatine

0 —-50 pl/ml

Sen

50 uM

6. Mg

1— 6 mg

7.

dNTP

50 —200 uM.

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2. The Reaction Condition

¢ The periodicity of the thermocycler. e The frequency of the addition of the reaction mix. ¢

The number of cycles.

In principle each cycle double the amount. Thus the number of copies increases rapidly. No. of Copies No. of cycles 10 1024 10° 20

108 (i.e. up to maximum)

30

3. The presence, absence, addition or extraction of promoters or inhibitors.

4. When the PCR product reaches about 10’°, the replication reaches the limit. The main desiderata are to achieve specificity of the reproduction of the DNA or the target sequence(s). The following steps achieve this: 1. Very high purity of the starting material. 2. Strict control of the reaction condition. 3. Complete control of the quality and quantity of the oligonucleotide primers.

4. Length of the target sequence: shorter the target sequence , better the specificity. The sequences of the size 100 — 2000 bp give the optimum results. 5. The primers length of 20-25 bp.

6. Annealing temperature 60 — 65° C. 7. The number of cycles should be limited. It depends upon the number of copies of the material to be replicated. Less than fifty copies will hardly produce detectable material in 30 cycles. 8. The minimal amount of the clue material which should be available for amplification is 0.1 ng amplifiable DNA. This amount contains about 40 total templates. This is the smallest amount recommended for case work.

20.5.3 Problems in PCR The main problems in PCR amplification are: 1. Amplification inhibition It is due to problems with the starting DNA material. It is overcome by: * Reducing templates. ¢ Increasing polymerase. ¢ Changing reaction condition. 2. Misincorporation The oligonucleotides get attached at wrong place. It has been estimated

that

this

happens

1 or

2 times

in 10* incorporations.

The

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misincorporations are consequently material is too small. 3. Reliability of PCR Product.

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negligible, unless, the starting

Replication process is not perfect because: ¢ Polymerase is not perfect. Misincorporations do occur.

¢ Sequence insertion or deletion may take place due to alignment errors in the template. ¢ Tandem repeat sequences can cause misalignment on the template. Thus PCR products of different sizes are formed. ¢ When the sample is small the number of template is small. Here in some cases some alleles amplify preferentially. The other alleles are masked and not seen. It has, however, been seen that given the right condition side undesirable reaction often are negligible. Other PCR techniques are coming up. One of these is Legate Chain Reaction (LCR). The new techniques have yet to gain grounds. 20.5.4 Identification Techniques

In PCR amplification three types of techniques have emerged for the identification of individuals. 1. DNA Sequencing. 2. Sequence Variations. 3. Length Variations. 1. DNA Sequencing.—DNA sequencing has become extremely important, in fact the most important tool for: 1. Individualisation of human beings 2. Understanding hereditary diseases and other problems 3. Clinical treatment and diagnosis of refractory diseases, and 4. Most importantly, for the evaluation of the genetic code. With the sophistication sensitivities and specifications, the DNA sequencing is gaining increasing importance in all types of DNA analyses. DNA sequencing determine the sequence (arrangement inter se) of various nucleotides! A, G, C and T, in a given segments of DNA. Certain DNAs have been fully sequenced. Others are being sequenced. The usual techniques being utilised for the sequencing are: ¢ Enzymatic Sequencing

¢ Chemical Sequencing Enzymatic Sequencing.—In enzymatic sequencing techniques. The main steps in the processes are:

there

are

many

1. Nucleotide is a building unit of DNA and consists of a sugar Pentose, a phospheric acid group and anitrogenous base. The four types of nucleotide are represented as dATP, dGTP, dCTP and dTTP, corresponding to the four bases.

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1. Sample DNA is extracted from the clue materials, concentrated and purified. 2. The DNA (>.6 ug) being analysed is denatured. 3. A short primer (15 to 32 bases) is annealed to the template. The primer to DNA molar ratio is has 5:1. 4. DNA polymerase is added. It extends the primer. A new complementary strand to the template is produced.

5. The products are labelled with **P or *S. 6. The separation of the fragments is done through sizing gel and the fragments are detected through the labelled radioactive elements by autoradiography or by some other more efficient fluorescence techniques. Chemical Sequencing.—Chemical sequencing involves the following steps: 1. Sample DNA is extracted from the clue material, concentrated and purified. 2. Restriction enzymes fragment the DNA into RFLs. They have different numbers of nucleotides. 3. The RFLs are separated by high resolution electrophoresis. Their molecular weights are ascertained through calibrated gels used for electrophoresis. The RFL of interest can be extracted from the gel. 4. Visualisation of RFL is done either through labelling or by adding Ethidium bromide. It gets mixed up with DNA and gives orange fluorescence under ultra violet rays. Mind boggling progress has been made in all aspects of DNA technology in recent times and the progress is continuing at an astounding rate. The major development are coming in: ¢ Initial processing of DNA evidence. ¢ Electrophoretic materials (gels) and experimental condition. e Automation in separation of RFLs, determination of their molecular weight, use of fluorescent labels for their detection and evaluation.

Today automatic sequences are doing DNA sequencing. Thousands of nucleotides can be sequenced in a day. The human error is also reduced to the minimum. However, considerable emphasis is being given on reproducible and reliable results. It is ensured by repeating the analysis, especially in criminal cases where the lives or the liberties of the persons are concerned. 2. Sequence Variations.—Sequence variations are studied through Sequence Specific Oligonucleotides (SSO) which are of 15 to 30 Oligonucleotide corresponding to the target allele. The labelled probe is mixed with the PCR products on a dot-blot format. It will hybridise with the corresponding allele, not with others. A number of probes of different types are used in the same way. In one system the PCR products is fixed on a membrane in a dot-blot form. In another way the probes are fixed on the membrane in the form of blot and

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labelled PCR products are brought in contact. Corresponding allele get attached. The attached positions are identified through the labels in both the techniques. The former is known as dot - blot technique and the latter as reverse dot -blot technique. The latter technique has proved its worth and is being used extensively. In a rape case there were two suspects. The samples of the two suspect from the victim ( blood, epithelial cells and swab sperms ) and blank were collected and analysed by reverse dot- blot technique. The test patterns were different for the two suspects and the victim identified the first suspect and eliminated the second. The sperm DNA from the vagina corresponded only with DNA of the first suspect. (CH ) Other methods of DNA profiling through PCR amplification are: e Direct sequence—A promising method. ¢ Allele specific amplification—more useful in medicines. ¢ Oligonucleotide—Ligation Assay. e Variations at restriction site—a useful technique.

e Denaturing gradients Gel Electrophoresis. These methods are not extensively used in forensic work yet. 3. Length Variation.—The restriction fragment length polymorphism RFLP analysis of loci containing variable numbers of tandem repeats (VNTR) has been extensively used in identifying persons. Corresponding technique in PCR is PCR-VNTR technique. Here the VNTR used are sufficiently large (15-70 bp). They allow separation of allele product by simple gel electrophoresis. The PCR-VNTR technique uses automated DNA sequence coupled to fluorescence detection system. The fluorescent labels are introduced into the PCR primers. More than one fluorescent label can be used simultaneously to detect. However there are inherent problems in the system and it has not gained popularity.

20.5.5 Sex Determination DNA profiling has been used to identify sex of a bio-clue material. It is based upon the fact that the male alone have Y- chromosomes in addition to X chromosomes. The females have X-chromosomes only. A number of X and Y chromosome specific probes have been identified. They are used for discrimination. Mainly three techniques are being used to determine the sex by DNA profiling. 1. Amplification of Y-specific sequences. 2. Amplification of both X and Y specific sequences. 3. Amplification of both X and Y specific sequence by one primer and then the cleavage with Restriction Enzymes which gives two fragments of 400 bp and 317 bp for X and Y chromosomes respectively. They are identified through electrophoresis.

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The DNA analysis thus permits direct identification of the male source of the clue material. The female source the clue material 1 has is inferred as there is no directly identifying allele in the female DNA. 20.5.6 Problems of PCR Evaluation

1. The pigment in blood or hair and pigment from other source may inhibit polymerase.

2. Environmental exposure causes contamination. Dust, dirt, temperature,

light, ultra violet rays, humidity, bio or chemical contaminants, bacteria, etc., affect. Even time affects. It may:

° Degrade, damage or destroy the DNA. ¢ Co-existing materials may inhibit, decrease or modify the products. 3. Extraneous DNA from other human beings, animals, etc., affect. For example hair, skin, body fluids from the investigator may get mixed. In practice, the problem is not serious. 4. Laboratory contamination is a serious problem. Carry over residual material from previous evaluation may contaminate. Disposable containers can avoid such contamination.

20.5.7 DNA Profile records The importance of the DNA profile records has been fully realised in the western countries. It is especially useful in: ¢ Recidivism e Inserial murder and rapes. If we have DNA profile records (which can be easily computerised) of the known sex criminals, the sex offender can be identified in a case of sexual assault. The DNA profile of the offender is developed from the clue materials (semen, blood, hair, skin, flesh, saliva, etc.) he leaves on the person of the victim or at the scene. If this DNA. profile of the culprit matches with one on the records the culprits is identified. He is apprehended. The idea of having DNA profile records has not escaped the attention of the law keepers. Most of the countries have already created a DNA profile banks. They have computerised DNA profiles of all the persons convicted of sex crimes. If a sexual offender repeats a sexual offence, he is identified from the DNA profile developed from the semen stains or from vaginal swabs, left at the scene, or on the object involved in the commission of the crime 20.6 CASE STUDIES 20.6.1 Maternity Identification A boy from Ghana, born in U.K., wanted to join his mother, brother and two sisters in U.K. The authorities denied him entry because they were not satisfied that he was the son of the alleged mother. The usual blood tests were carried out. They indicated that the probability, of mother-son non-relationship was too meagre, less than 0.01 %. However, they could not categorically fix mother-son relationship. She could be his aunt as well! The case was referred to Prof. Jeffreys

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and his colleagues. They carried out DNA finger-printing of the blood of the mother and son and his brothers and sisters. Although the father was not available, most of his DNA fingerprints could be reconstructed from most of the DNA fragments, present in at least one of the 3 undisputed siblings, but absent from the mother. Of the 39 paternal fragments so identified, approximately half were present in the DNA fingerprints of the boy. Since unrelated individuals do not share DNA fragments, the examination of DNA profile suggested very strongly that the boy had the same father as the brother and two sisters. But the main question was still unanswered. What was the relationship of the boy to the woman? Removing the paternal-specific fragments from the boy’s DNA fingerprints, there remained 40 fragments in the boy’s profile, all of which were present in the woman's DNA fingerprints. This was strong evidence that the boy was the woman's son.

To cross-check their findings, the researchers examined the probability of their findings being still proved wrong. They found that of the 40 maternal-specific fragments in the boy, 25 were specifically inherited from the mother. All these 25 fragments were present in the woman.

The researchers argued that the probability of two unrelated people sharing 1 fragment is 0.26. So, the probability of being unrelated and yet sharing them all is, one in 20 thousand billion. Now, it was clear that the woman and the boy were so closely related, as to be mother and son. Jeffreys and his colleagues also looked into the orobidbiitesy of the woman being the boy’s aunt. They calculated that the probability of the siblings sharing a single DNA fragment is 0.62. Thus, the probability that the woman is in fact the boy's aunt, yet shares all 25 of the maternal fragments is 0.6225, i.e., 1 in 50,000 billion. (CH) It was, therefore, concluded, beyond any reasonable doubt, that the boy was indeed the woman's son. This evidence was conveyed to the immigration authorities, which dropped the case against the boy and allowed him to stay with his mother in Britain. (CH) 20.6.2 Abandoned Baby

This is a strange case where DNA profiling of a baby, found abandoned in a car, was connected to the owner of the car. There were, however, some facts, which cast doubts on the son-mother relationship of the abandoned baby and the lady owning the car. They are— 1. The lady denied she gave any birth to the child or to any other child. 2. The medical doctor certified that the lady had not been pregnant recently. 3. The lady delivered a child just after eight months from the discovery of the child. The scientist performing the DNA profiling test were sure that son-mother relationship was correct. The residual samples were submitted to other scientists. They confirmed the findings. There was no criminal case against the alleged mother as the doctor found that the child was stillborn.

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The author discussed the case with Professor Jeffreys in a meeting. Prof. Jeffreys was of the view that the lady could have delivered the child in eight months. The other reasons for doubts are too flimsy to be of any importance. (CH)

20.6.3 DNA v. Confession It is a case of mass screening for a killer-rapist _On November 21, 1983, Lynda, a girl of 15 years was found murdered. The body was discovered day after the killing. She had been raped and strangled with her own scarf. Police employed over 100 investigators and interrogated everybody in the locality, but the killer was not discovered. They had taken swabs from the vagina of the deceased and collected semen stains from her person and garments. The murderer continued untracked. On July 31, 1986 another 15 years old girl Dawn disappeared. She was found raped and strangled to death in a nearby field. The nature of the injuries on the persons of Lynda and Dawn were similar. The police caught a seventeen-yearold boy who confessed to the crime. The police requested the services of Professor Jeffreys. He obtained the DNA profiles from the semen recovered from the two victims Lynda (in 1983) and Dawn (in 1986) and compared them with DNA pattern from the suspect. He found that whereas the semen from Lynda and Dawn were from the same source, they did not tally with the DNA pattern of the suspect. On their evidence, the suspect who had even confessed to

the crime was let off. The police officers incharge of the investigations believed that the culprit belonged to the same area and that he should be between 15 and 30 years of age. He, therefore, decided that the eligible population of the area should be mass screened for the possible source of the semen. The mass screening was started. Ninety per cent. of the persons could be eliminated straightway, by conventional blood tests. The remaining ten per cent. were subjected to DNA profiling. Thus about 5500 persons had been screened at a cost of about Rs. 1.5 crores, yet the killer still eluded them. Only 250 men who had left the area since the occurrence remained for screening. Then, a sudden breakthrough occurred. A person bragged, in a pub, that he had personated for his friend in the mass screening for the killer. Police at once took up their cue, interrogated the personator and reached the culprit, Colin Pitchfork, a 27 years old baker. The rest was easy. His blood test including DNA profile indicated that he was the rapist and murderer of the two girls, Lynda and Dawn. He was sentenced to two terms of life imprisonment for the crimes. (CH) 20.6.4 DNA Profile v. Eyewitness That the DNA profiling is better than eyewitness accounts even, was proved

beyond doubt in a rape case which took place in New York. A rapist sexually assaulted three women. The police caught hold of one Victor Lopez. He was a light coloured person of Hispanic origin. However, all the three victims insisted that a black person attacked them. The attorney for the culprit pleaded

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that it was a case of mistaken identity as his client was not black as alleged by the victims of rape. The jury, however, took the DNA profile as evidence and found Lopez guilty. (CH)

20.6.5 DNA Profile Induces Confession The driver of the bus raped a 57 years old woman suffering from Alzheimer’s disease in a bus in which she was travelling. The woman when interrogated could not remember who had attacked her. However, police investigations revealed that only the bus staff could have committed the rape. The driver of the bus became the prime suspect. His blood was analysed for DNA profile. The profile matched the DNA profile of the semen recovered from the person of the victim. When the driver was confronted with the evidence, he confessed to the crime without much verbal persuasion. (CH)

20.7 SETTING STANDARDS DNA fingerprinting is a powerful tool for forensic identification. However, there is a need for the scientific community to agree on clear guidelines for the procedures and standards needed to ensure reliable DNA fingerprinting. Legislators should also consider whether licensing and proficiency testing should be required in forensics. At present, forensic science is virtually free from the shackles of quality assurance, quality control and standardisation of tools and techniques or extent of data generation with the paradoxical result that clinical laboratories must meet higher standards to be allowed to diagnose a sceptic throat than forensic labs must meet to put a defendant on death row. 20.8 CASE LAW

20.8.1 DNA Test allowed The petitioner is the father of the respondent. The respondent herein is the plaintiff in Q.S. No. 26/92. He has instituted the said suit against his father for partition and separate possession of his share in the coparcenary properties. The defendant has resisted the said suit on the ground that the plaintiff is not entitled to claim partition in the joint family properties since he was not born to him. Therefore, he filed I.A. No. 8 under Order 26, rule 10A read with section

151, Code of Civil Procedure for appointment of a Commissioner for purpose of blood test and genetic finger printing test of the plaintiff to find out whether he is his son. The said application was resisted by the plaintiff on the ground that he could not be compelled to undergo the test as it was violative of article 20(3) of the Constitution of India. The learned Munsiff having upheld the said objection rejected the said IA. In my view the impugned order is erroneous and is liable to be set aside for the following reasons: Clause (3) of article 20 of the Constitution of India deals

with accused’s immunity from being compelled to be a witness against himself. This clause gives protection to (i) to a person ‘accused of an offence’; (ii) against compulsion ‘to be witness’, (iii) against himself. Therefore, it is clear from clause

(3) of article 20 that the protection under this clause is confined to criminal proceedings or proceedings of criminal nature before a court of law or other Tribunal before whom a person may be accused of an ‘offence’ as defined in

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section 3(38) of the General Clauses Act. It would not, therefore, extend to

parties and witnesses in civil proceedings or proceedings other than criminal. In Mallela Suryanarayana v. Vijaya Commercial Bank Ltd., AIR 1958 AP 756 and R.P. Ulaganambi v. K.C. Loganayaki, 1986 Cri LJ 1522, the High Court of Andhra Pradesh and the High Court of Madras respectively have taken the view that the immunity granted by article 20(3) of the Constitution of India does not extend to civil proceedings and the intendment of this article is to afford some protection to a person involved in a crime, having regard to the predicament in which he would be placed and to interpret it as applying to all proceedings—civil or criminal which might at a subsequent period expose the person concerned to prosecution on the basis of answers given by him, is to enlarge the scope of this article and to defeat justice. Therefore, in my view, the learned Munsiff was not

at all right in dismissing I.A. No. 8 on the ground that the prayer made therein amounted to testimonial compulsion violative of article 20(3).

Under Hindu Law illegitimate sons living together with their putative father do not constitute coparcenary and father has no power to admit them as his coparceners. In my considered view, the trial court in order to enable the defendant to prove that the plaintiff was not born to him and he is not entitled to claim partition in the suit properties ought not to have rejected I.A.S. For the foregoing reasons, this Revision Petition is allowed. The impugned order on I.A. No. 8 is hereby set aside. I.A. No. 8 is allowed and the trial court shall appoint a Commissioner for the purpose mentioned therein at the cost of the defendant. There shall be no order as to costs.!

CBX

1. Gangadharappa v. Basvarraj, AIR 1996 Karn 155. Also see Gauthamkundu v. State of West Bengal, AIR 1993 SC 2295; Sajeera v. P.K. Salmi, 2000 Cri L] 1208; Syed Mohd. Ghouse v. Noorunnisa Begum, 2001 Cri L] 2028 (AP).

Chapter 21

ELEMENTARY FORENSIC MEDICINE SYNOPSIS 21.1 DEATH INVESTIGATOR’S ROLE 21.1.1

Examination of the Scene

21.1.1.1

Indoor scene

21.1.1.2

Outdoor scene

21.1.1.3 Signs of struggle 21.1.1.4 Real or fake scene 21.1.1.5 Side information

21.1.1.6 Corpse examination 21.1.2 Post-mortem Examination 21.1.2.1

Importance

21.1.2.2 Basic steps 21.1.2.3 Examination

21.1.3 Taxicological Examination

21.1.4 The Opinion 21.1.5 Post-mortem Report 21.2 POSSIBILITIES 21.2.1 21.2.1.1

Suicide, Murder or Accident ? Suicide

21.2.1.2 Accident

21.2.1.3 Homicide

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cape aa

21.4 TIME OF DEATH 21.4.1

Cooling of Body

21.4.2 Chemical Changes

21.4.3 Lividity

>. jean :

21.4.4 Rigor Mortis

21.4.5 Decomposition or Putrefaction 21.4.6 Miscellaneous Factors 21.4.6.1

Watch and clocks

21.4.6.2 Bladder contents 21.4.6.3 Stomach contents 21.4.6.4 Clothes

21.4.6.5 Vegetation

21.4.6.6 Rusting 21.5 CAUSE OF DEATH 21.5.1 Mechanical Violence 21.5.1.1 Abrasions 21.5.1.2 Bruises

21.5.1.3 Punctured wounds 21.5.1.4 Incised wounds

21.5.1.5 Miscellaneous 21.5.2 Dimensions of Wounds

21.5.3 Age of Wound 21.5.4 Ante or Post-mortem Wounds 21.5.5

Fatal Wounds

21.5.6 Incapacitation 21.5.7 Asphyxia

Identification of asphyxia 21.5.7.2 Suffocation 21.5.7.1

21.5.7.3 Choking 21.5.7.4 Strangulation and throttling 21.5.7.5 Hanging 21.5.7.6 Drowning or submersion 21.5.8 Miscellaneous

21.5.8.1

Starvation

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21.5.8.2 Electrocution

21.5.8.3 Lightning 21.5.8.4 Cold

21.5.8.5 Heat 21.5.8.6 Scalding 21.5.8.7 Burning 21.5.9 Medical Negligence 21.5.9.1

Classification

21.5.9.2 Investigator's role

21.6 IDENTIFICATION 21.6.1

OF THE DEAD

Relatives and Acquaintances

21.6.2 Documents 21.6.3 Portrait Parle

21.6.4 Scars 21.6.5 Professional Marks 21.6.6 Personal Articles

21.6.7 Photographs, Sketches, Casts 21.6.8 Fingerprints 21.6.9 Dentures

21.7 SKELETAL REMAINS 21.7.1

Human Bones

21.7.2 Number of Victims

21.7.3 Age of the Victim 21.7.4 Sex of the Deceased

21.7.5 Height of the Deceased 21.7.6 Identity of the Deceased 21.7.7 Burnt bones

21.8 SEXUAL OFFENCES 21.8.1

Rape

27.8.2 Rapist 21.8.3 Investigator’s Role 21.8.4 The Victim 21.8.4.1

Knowledge

21.8.4.2 Medical evidence 21.8.4.3 Evidentiary clues

21.8.5 The Culprit 21.8.6 Medical Evidence

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21.8.7 Physical Evidence 21.8.8 Oral Evidence 21.8.9 The Scene

21.8.10 Gang Rape 21.8.11

Attempted Rape

21.9 INCEST 21.10 UNNATURAL OFFENCES 21.10.11 21.10.1.1

Homosexuality Sodomy

21.10.1.2 Lesbianism

21.10.2 Bestiality

21.11 MINOR SEXUAL OFFENCES 21.11.1

Exhibitionism

21.11.2 Sadism 21.11.3 Voyeurism 21.11.4 Frottage

21.11.5 Sexual Aberrations 21.11.5.1 Masochism 21.11.5.2 Transvestism 21.11.5.3 Fetichism

21.12 ABORTION 21.12.1 21.12.1.1

Methods of Abortion Violence

21.12.1.2 Drugs 21.12.1.3 Womb interference

21.12.2 Cause of Death 21.12.2.1 Shock 21.12.2.2 Air embolism

21.12.2.3 Haemorrhage

21.12.2.4 Toxic effects of drugs 21.12.2.5 Complications 21.12.3 Investigator’s Role 21.12.3.1 Oral evidence 21.12.3.2 Medical evidence

21.12.3.3 Physical evidence 21.13 INFANTICIDE 21.13.1

Murder

INVESTIGATION

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~ taal =.

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21.13.2 Accidental Death 21.13.3 Congenital defects

21.13.4 Investigator’s Role 21.13.4.1 Physical evidence 21.13.4.2 Medical evidence 21.13.4.3 Oral evidence

21.14 CASE LAW 21.14.1

Corpus Delicti

21.14.2 Oral v. Medical Evidence 21.14.3 Stomach Contents v. Eyewitness Version 21.14.4 Delayed Death

21.14.5 Diminished Responsibility 21.14.6 Post-mortem

21.14.6.1

Necessity

21.14.6.2 Ante-mortem injuries?

21.14.6.3 Putrefaction

21.14.6.4 Drowning

21.14.7 Identity of the Dead—Skull Super-Imposition 21.14.8 Time of Death 21.14.8.1

Bladder and stomach contents

21.14.8.2 Putrefaction

21.14.8.3 Rigor mortis 21.14.9 Cause of Death 21.14.10 Accident, Suicide or Murder

21.14.11 Reconstruction: Murder or Suicide? 21.14.12 Number of Assailants 21.14.13 Skeletal Remains 21.14.14 Age by Radiography 21.14.15 Medical Evidence

21.14.16 Judges as Medical Expert 21.14.17

Improper Appreciation of Medical Evidence

21.14.18

Digestion Time Variable—Not Proper Guide to Time of Death

21.14.19

Injury Source in Post-mortem Report

21.14.20

Data Essential

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Fig. XXI-1

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ELEMENTARY FORENSIC MEDICINE 21.1 DEATH Death investigation is the investigating officer as murder experience, intelligence and the information and cooperation from

INVESTIGATOR’S ROLE most important assignment given to an is the most heinous crime. It needs skill, ability to win confidence of persons to get them.

All sudden deaths are not murders, accidents or suicides. In fact in U.K. they

have calculated that about eighty per cent. of sudden deaths are natural deaths (act of God). Only about twenty per cent. are unnatural deaths—suicide, accidents or murders. Formerly, it was said that dead men tell no tales. It is no longer true. A corpse helps to establish corpus delicti. It gives the identity of the deceased, the time of death, the cause of death, modus operandi and furnished clues which link the criminal with the crime.

21.1.1 Examination of the Scene In cases of death careful examination of the scene of occurrence is very important. The general examination of scene has already been discussed. Proper protection, proper photography, careful sketching, detailed search, proper collection and despatch of evidentiary clues have already been stressed. In addition the following details may be noted:

21.1.1.1 Indoor scene 1. Suicide note. It may be real or fake. 2. Hiding places for incriminating objects including weapon of offence, discarded garments, material used for wiping stains, etc. The objects may carry even fingerprints. 3. Conditions of the house; doors, windows, lighting, heating, fire places need check. Documents and garments may have been burnt. Residual fragments may still be available. Kitchens, bathrooms, toilets may give useful indication of washed blood. Towels may carry bloodstains. There may be even fingerprints on taps and wash-basins, etc. Walls, ceiling, windows, ventilators may carry bullet damage or marks in cases of shooting. The marks should be carefully located, sketched and photographed. All bullets should be extracted and cartridge cases collected. Ash trays, waste paper baskets, waste heaps and dumps should be carefully checked for incriminating clues.

21.1.1.2 Outdoor scene Outdoor scenes need special care. The following important points may be kept in view: 1153

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- Outdoor scene needs immediate processing. Delay destroys evidence. Dust storm, rain, floods and traffic are potential dangers. . Do not let the scene be trampled. a. Rope off the concerned area. b. Formulate a plan for examination of the scene. c. Employ minimum persons to search the scene. d. Examine the scene during day, if possible. Otherwise use flood lights. Disturbed and broken foliage may indicate the path of the flight of a bullet, hiding place of a weapon of offence, etc. Biological evidence (skin, flesh, blood, hair) are easily destroyed or displaced by insects. 21.1.1.3 Signs of struggle

Check signs of struggle: 1% Upturned furniture. . Splattered blood. . Pulled out hair. Marks of weapon of offence at the scene: doors, walls, furniture, etc. . Foot or footwear marks on walls, furniture, bed, etc. . Foreign material like bullets, cartridges, cartridge cases, fragments of WN nn weapon of offence, etc. be Defence injuries on the person of the deceased. 21.1.1.4 Real or fake scene The following factors indicate the faked nature of the scene. ii The quantity of blood at the scene vis-a-vis the extent of the injuries may be less. pe Nature, position, size, direction of stains of other body fluids especially semen, Saliva, urine and faeces, etc., may not correspond with the given facts. Ks The condition of clothes: state of buttons, tears, displacement, abrasion, crimpling, creasing, staining, etc. may tend to tell a different story. 4. The evidence: blood, bullets, cartridge cases, semen and other items, underneath the body; may falsify the given version. 21.1.1.5 Side information 1. Who was the victim ?

Who saw him alive last ? Who was to meet the victim ?

Who would gain by his death ? Who would lose by his death ? B & Se

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6. How much money did the victim carry on his person at the time of death ?

7. What was the victim doing when he met his end ? 8. What was the psychological portrait of the victim ? Drunkard ? Drug addict? Moody ? Eccentric ?. 9. Who found the victim ? Relations ? Friends ? Business associates ? 21.1.1.6 Corpse examination

Corpse examination at the scene is very useful. However, it should be limited to external examination only. Detailed examination is done by a forensic pathologist in post-mortem examination. The investigating officer should: 1. Confirm death.

2. Photograph the body ‘as is, where is’. 3. Sketch the position of the body. 4. Record the description of the body, the position of the body vis-a-vis other articles at the scene, describe the body fully: head, trunk, arms,

legs. Special care should be taken in describing the head-position, mouth, eyes, etc. 5. Record the bloodstains on and around the body without disturbing the body: their size, position, direction. 6. Record if there is blood froth (blood mixed with saliva and air). Usually it occurs when blood enter into air passage while the person is still alive. But in some cases putrefaction may give out froth. 7. Estimate the quantity of blood at the scene. Is it consistent with the injuries ? 8. Note the number, size, nature and position of other stains.

9. Record the condition of the clothes of the victim. 10. Outline the position of the body with chalk before removal. 11. Place the dead body in a clean white, plastic sheet for its transfer to mortuary.

21.1.2 Post-mortem Examination Post-mortem examination in cases of sudden and suspicious death has great value and therefore has to be carefully done. Investigator should not leave everything to the doctor. He should: 1. Remain present at the time of post-mortem examination. 2. Ensure collection of evidentiary clues by tactful suggestion to the doctor. 3. Get the body (clothed as well as naked) photographed, if necessary and possible, by colour photography to preserve the evidence on the person of the deceased. 4. Collect clothes invariably. They should be properly marked for identity. 5. Collect relevant samples of blood, hairs, fingerprints, and viscera if required.

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The post-mortem and other medico-legal examinations are carried out, in India, by the government medical officers working as medical practitioners in various institutions of the locality, in most of the cases. Specialists in the field are available only in metropolitan cities. Most of the doctors elsewhere do not possess the necessary expertise in the medico-legal work. They are unable to do justice to this important work. Consequently, the cause of justice suffers. There is, however,

realisation of the lacunae and efforts are being made

to take

remedial measures 21.1.2.1 Importance

The post-mortem and other medico-legal examination in death cases is an extremely important step in the handling of the evidence relating to incident. It helps to:— . Fix the corpus delicti, the cause of death, etc.

_ Find the nature o death: Suicide? Accident? Homicide? Self-defence? . Ascertain the nature of the firearm used.

. Ascertain the number of injuries and or the number of weapon(s) used against the victim(s). 5. Determine the direction of fire.

Pe WON

6. Prove/eliminate the evidence of other crime (sexual assault).

7 . Confirm/discard a given version. 8 . Provide identification data on the victim, in the case of an unidentified body. 9. Collect evidentiary clues: foreign matter, projectiles, GSR, description of injury /damage, etc. 21.1.2.2 Basic steps

The basic steps in proper post-mortem examination in death cases are:— 1. Take photographs of the deceased for identification purposes, before examination during examination and after the examination. The facial features, any identification marks like tattoo marks, any deformity, clothes, etc. should be properly photographed so that they help in the identification of the deceased. The detailed photography helps in the case of unidentified and excessively putrefied bodies. 2. Obtain the case history. 3. Doctor should visit the scene of occurrence whenever possible. Otherwise understand the scene through photographs, sketches, description in the records of the investigating officer. 4. Carry out the post-mortem examination in the mortuary only. 5. Ensure no fingerprinting or embalming is done before the post-mortem examination. Important trace evidence can get lost and the artifacts introduced, could mislead. 6. Ensure the protection of the trace evidence (GSR, fibres, dust, etc.) while

transporting the body to the mortuary. If there are GSR traces on the

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hands, cover the hand with clean paper or preferably with a clean plastic cover. . X-ray the body (relevant body parts) before starting dissection etc. for locating foreign bodies, fractures the projectiles or their garments. . Photograph all the injuries before and after cleaning them, along with a scale and identity chit.

. . . 13.

Ensure clothes are taken off from the body by the medico-legal expert only. Examine the clothes as part of the post-mortem examination. Ensure their identity through identification marks. Recover all evidentiary clues, projectiles, GSR etc. Do not use medical terminology. Record the negative evidence also.

21.1.2.3 Examination A post-mortem examination in murder cases can provide sufficient evidence which can help to link the criminal with the crime. It should be carried out with due care. The major steps in the examination are:— Ah: General examination

e Fix the age, sex, race, body build, height, etc. ¢ Describe any deformities, oddities, scars, old injuries, tattoo marks, moles, etc.

¢ Describe clothes: their number, nature and the evidence thereon.

e Link the holes on the clothes with the injuries on the person of the deceased. * Collect/preserve any evidence like GSR, fibres, hairs, strains, dust, dirt, etc. found on the clothes. ¢ Check the clothes for any tears/holes. ¢ Pack them after only drying if they are wet. 2. Body examination

° Observe and describe the degree and extent of lividity/rigor mortis found in the body or ina part of the body thereof, if any. * Observe and describe any oddity on any part of the body. * Observe and describe signs of asphyxia, if any. ¢ Describe dental/denture condition. ¢

Describe existence of any disease, surgical intervention, etc. which could have contributed to the death of the deceased.

¢ Locate any defence injuries. ¢ Record also all the negative evidence.

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3. Handling injuries © Observe and record all the major or minor, internal or the external— injuries.

° Observe and evaluate a firearm injury from the site of entrance and describe full the wound of entrance, the internal track and the lodgment site or the exist wound. Give serial numbers to each injury. The description should contain (whenever possible): (a) The possible nature of the weapon.

(b) The presence or the absence of the GSR. (c) The direction of fire, with deflection, if any.

(d) The condition of the projectile: Whole? Deformed? Fragmented? (e) The presence or the absence of any extraneous matter on the projectile from the intermediate target or from the ricocheting surface. (f) Describe site(s) of the injury without using medical terminology. ¢ Log all information collected through: (a) Photographs. (b) Sketches.

(c) Exhaustive description. (d) X-rays, for bone damage. Note.—The evidence on clothes of the victim should be logged in the same way. e Preserve relevant evidence:— (a) The clothes and the evidence thereon.

(b) The projectiles or other foreign body. (c) The wads, if any. (d) The extraneous deposit.

(e) Incase of burning, the charred skin piece may also be preserved. (f) GSR

found

on hands

must

also be collected

and preserved

separately. The mode of the collection should be indicated. (g) Get help of the forensic expert, if required. 4. Internal examination Internal examination involves checking of all the major body organs, cavities, bones, etc. for injuries, extent of damage, decapitation, defects, etc. The examination should be systematic and properly documented. Usually the departments have forms prescribed for recording the observations. They should be used.

The following body parts, observed invariably are:-— ¢ Head ¢ Neck

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e Respiratory system

¢ ¢ e e e

Cardiovascular system Gastrointestinal system Reproductive system Urinary tract Panaceas, spleen, adrenals, biliary tract.

These organs should be examined not only for injuries but also for any abnormality. If nothing abnormal is noticed, it is essential to record its absence. Usually the letter NAD (Nothing Abnormal Detected) is used for the purpose. 21.1.3 Toxicological Material In cases of deaths where the cause of death is properly established, the toxicological examination is not necessary. But in certain cases where the shooting is suspected to be fake, to divert the attention of the authorities or where no other definite cause of death is established, toxicological materials

should be collected. This aspect is decided by the investigating agency. However, as a matter of abundant caution, blood, urine, vitreous and bile fluids

should be preserved for about a year. 21.1.4 The Opinion

The opinion of the medico-legal expert is the brief conclusion of the observations and inferences. It contains the main information:— ¢ Cause of death ¢ Mode of death ¢ Time of death

The medico-legal expert may have to supply additional information on demand. 21.1.5 Post-mortem Report

The injury characteristics and the damage for the identification of the injuries are available to the medical officer carrying out the medico-legal examination. Others, who are vitally interested in the study of the injuries, the court, the counsels and the expert, do not and cannot always, observe the injuries. They have to depend upon the medico-legal experts. Worse still, they have to go only by the scantily description recorded in the post-mortem reports. The method of the recording of the injury evidence must undergo substantial improvements if we are to identify and evaluate the injuries properly to interpret the sequence of events, to verify a given hypothesis from the post-mortem reports.

21.2 POSSIBILITIES

21.2.1 Suicide, Murder or Accident ? To decide between suicide murder or accident, the examination of the scene,

examination of the body and checking of the signs of struggle must be done carefully. In addition there are indicators which help to decide the nature of death.

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21.2.1.1 Suicide The following factors indicate suicide: : Genuine suicide note. About thirty per cent person committing suicide leave suicide note. . Previous attempts at suicide indicate suicidal tendencies. . Extreme depression due to physical pain (illness), fear, quarrel, financial loss may lead to suicide. . Certain sites are predominantly used by suicides for self-inflicted injuries. For exampie, with firearm, temple, forehead, mouth and chest are the favourite sites. With knife throat and wrist are the favourite sites. Hesitation injuries are also observed in some suicide cases.

. The person may use more than one method to commit suicide. For example when a suicide may fail to use a knife successfully, he may succeed to hang himself to death. . Certain modes of suicides are favoured. Usually they are less painful and easily accomplished. For example, sleeping drugs, opium are quite frequently used. rf Presence of weapon at prone position may suggest suicide.

21.2.1.2 Accident The following points indicate accident: : The source and cause of accident should be near the victim. . Absence of motive for suicide or homicide.

. Tell-tale physical evidence available at the scene or with the victim. . Absence of natural cause: disease, etc. . Absence of struggle, violence, defence injuries or multiple injuries as in N W oF homicide or suicide.

21.2.1.3 Homicide Homicide is indicated by the following factors: 1. Attempt to hide the corpse. . Attempt to dispose off the body. Absconding of the suspects. . Manipulation of physical evidence to make it look like suicide or accident. Absence of weapon of offence. Change of the scene. Motive: financial gains, enmity, rivalry, land disputes. Injuries which could not be self-inflicted or self-caused in accident or CNA presence of self-defence injuries.

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Fig. XXI-2 Position of weapon and other articles vis-a-vis the victim in a suicide case can oflten reveal whether the suicide ts real or fake. In this case the facts (firearm in hand without cadaveric spasm) location of bullet (arrow head) and blood inside a rolled carpet went against the theory of suicide.

21.3 IDENTIFICATION OF DEATH What is death? Death is the cessation of life. Life in an individual is sustained by the functioning of the brain, heart and lungs. If these three body parts stop functioning, the person is said to die (Somatic death). It takes some time for the body parts to become inactive. When they also die, the person is said to suffer ‘molecular’ death. In certain cases identification of death offers no problem, for example when the head is found severed from the body, death has undoubtedly taken place. But certain cases of unconsciousness may mislead. For example, drugged persons, drowned persons, persons suffering from electric shock or snake bitten persons may give the mistaken impression of death. One has to be cautious. In all such cases the victim must be checked by a medical officer. The following signs may, however, give general guidance: 1. Breathing.—The clouding of a mirror placed before the mouth-nose of the victim, may still indicate life. 2. Pulse.—Pulse detection is sure sign of life. But the converse is not true. Pulselessness even for half an hour may not mean death.

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3. Eyes.—Pupils or ball should react to strong light. Circulation of fluid stops, tension of the eye muscle is laxed and clouding of the cornea appears, on death. 4. Muscles should twitch under strong painful stimuli. 5. Plasticity of body tissues— The skin, flesh, etc., lose elasticity and tension. Contact flattening take place and wounds do not gape.

21.3.1 Brain Death Artificial respiration and other means to prolong life have added a new dimension to the concept of death. When does a man die ? When a person fails to respond to the above mentioned tests, he can be considered dead for all practical purposes. But under external stimuli, a person may respond to some of the above tests and yet he may be dead. Death in such cases is determined by brain activity. When the brain activity of a person stops, a person is considered scientifically dead. It may be mentioned that brain activity remains even when a person is sleeping or unconscious. The activity stops only when he dies. The brain activity is detected by a machine called Electroencephalograph (E.E.G.). If the brain remains inactive for a number of hours (6 hours), the subject

is dead. Electroencephalography has to be done by a competent person. A still surer test is to check circulation of fluids in the brain (cerebral

circulation) by injecting radioactive isotope-tagged chemical. If the brain shows no circulation for ten minutes, the subject is dead. 21.3.2 Other Signs of Death 1. Cooling of the body.—Body soon after the death cools down and acquires

the temperature of the surroundings. 2. Lividity—Due to non-circulation of blood, it accumulates on the lower

parts of the body (which are nearest to the earth), giving staining to those parts.—The phenomenon is called lividity. 3. Rigor mortis.—lt is the stiffening of the body after death. It start soon after death (about 4 hours) and continues for a considerable period. 4. Putrefaction—The bacterial growth in humid and hot climate start putrefaction of the body. It is the sure sign of death, but it is too belated

to be of any forensic significance to identify death. oi.

Miscellaneous —Mummification, adipocere formation, skeletal formation

are signs which appear only after long periods. 21.4 TIME OF DEATH The determination of the time of death is seldom accurate and therefore, never

reliable. It may help in some cases, but in others it can mislead. In a case of death of an infant, the body was found floating in a plastic bag in sea. Post-mortem examination gave the idea that the body of the infant was in water for 2-3 weeks. Later investigations revealed that the body was in water for 24 hours only. It had been kept in lye previously. (CH) The various changes on which the estimation of time of death depends are dependent upon the following general factors:

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. Temperature

. Humidity

. Supply of oxygen . The state of health . The cause of death nS WON OF = . Environments.

As can be imagined, these conditions will vary so widely in each case depending upon the actual field conditions. The estimate of time of death, therefore, can at best always be a rough estimate Dogmatic assertions of the time of death should neither be expected nor accepted. However the following changes in the body give indication of the time of death. 21.4.1 Cooling of Body A lot of work has been done to determine the time of the cooling of the body from normal temperature (98.4°F) to the rectal temperature of the body if it is not already that of the surroundings. A large number of formulas have been given, a simple one is: i=

Te=

bi

T,

=

R Time elapsed since death

T,

=

Normal body temperature (98.6 F) or (37°C)

T, R

= Temperature of rectum (O, or O-) = __ Rate of fall of temperature per hour

21.4.2 Chemical Changes

A number of chemical changes have been studied. For example, variations of potassium

content,

ascorbic

acid, succindihydrogenase

have been

studied.

However, inconsistency of the results does not permit proper estimation of time.

21.4.3 Lividity Livid stains appear on the lower parts of the body in 0.5 to 2 hours after death and are completely developed in 6 to 12 hours. Lividity is hastened by lingering deaths. If the body is moved frequently, lividity does not develop. 21.4.4 Rigor Mortis

Stiffening of the body in most of the cases starts after about 4 hours and is completed in about 8 hours. In some cases it may take even up to 15 hours to complete. Cold and anti-putrefaction drugs and poisons delay the appearance of rigor mortis (Examples, arsenic, mercuric chloride). High pressure, temperature, certain alkaloidal poisons (example: Strychnine) and certain diseases hasten the onset of rigor mortis.

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The rigor mortis wears off in about 36 hours, though in some cases it may continue even after 48 hours. In others it may wear off in 20 hours. Roughly the time taken for developing complete rigor mortis is equal to the time for which the rigor mortis stays. The same time is taken by the body to wear off the rigor mortis as taken for development. 21.4.5 Decomposition or Putrefaction

Decomposition of the body passes through various stages which may indicate roughly the time of death. A number of factors such as temperature (ideal temperature 20 - 40°C), humidity, the health of the victim, the surrounding conditions

affects.

Likewise

the mode

of death is also important.

Arsenic,

antimony, mercury chloride poisoning delays decomposition of the body. Certain diseases hasten the process. Internal bacteria is mainly responsible to start the decomposition but external bacteria may invade the body to hasten the process. Climatic conditions in India vary so much, not only at different places but even at the same place in different seasons, that it is difficult to generalise the decompositional stages. However, the following may act as rough guide: 1. In about 24 hours the abdomen starts extending and acquire greenish tinge which spreads to whole body in about 48 hours. The body also starts emitting foul smell. 2. After 2-3 days, blisters containing reddish fluid appear. Simultaneously body cavities are filled with gas. The pressure become excessiVe. Fluid comes out from the body orifices (openings: nose, mouth, rectum, vagina and wounds, etc). Sometimes stomach bursts, but this is rare.

3. Disintegeration of body fats and proteins also starts. In about 1-2 weeks, skin, hair and nails are loosened. Softened tissues like brain, liver, kidneys disintegerate and liquefy and flow outside the body. In 4-8 days maggots in the corpse develope into pupae and in 6-12 days they change into flies. 4. Adipocere formation takes place in bodies which receive plenty of moisture (bodies under water or in swamp). The formation is due to the

hydrolysis of the body fats to fatty acids which preserve the body tissues. Adipocere formation ordinarily takes 3 to 6 months but under ideal conditions it may take even less than a month in India’s hot climate. Adipocere may be partial or complete. Often it is partial. 5. Mummification takes place in dry and hot climates. The body is dehydrated by evaporation of the moisture by dry hot air. Complete dehydration (and hence mummification) may take about three months to one year. Bodies suffering from loss of body fluid prior to death are more prone to dehydration. 6. Bones undergo gradual changes. They lose organic matter first. They become brittle in consequence. Further, changes involve complete destruction of soft bones and rarefaction of tough bones. Skull and teeth are the last to be destroyed.

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Fig. XXI-3 Maggot invaded body was found in a secluded hut. Only maggots could give idea about the period of death.

21.4.6 Miscellaneous Factors In addition to body changes the following factors also help to ascertain time of death:

21.4.6.1 Watch and clocks

If the victim.was wearing a watch and if it stopped functioning due to damage in the scuffle it can indicate the correct time of the scuffle and, therefore,

possible time of death.

21.4.6.2 Bladder contents If a person has been killed in sleep, the bladder contents may give some idea about the time of death. Empty bladder may indicate death soon after sleep whereas a full bladder may indicate death in the early hours. Urine continues to get accumulated in the bladder during sleep. 21.4.6.3 Stomach contents

Undigested or semi-digested food can fix the time of death, if the time and contents of the last meal are known.

However,

caution has to be exercised.

Sometimes the digestion stops due to shock, injury or disease.

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. 21.4.6.4 Clothes The state of clothes on the person of the victim may indicate the time of death. Cotton clothes are destroyed in about 2 years time, woollen clothes in about 4

years time and silk clothes in about six years time. However, climatic factors and extent of use etc. change the time table. Ants and other insects can change the time table completely.

21.4.6.5 Vegetation

If the body has been lying in secluded jungles and vegetation has grown through the skeleton, the death is roughly as old as the age of the vegetation at the site.

21.4.6.6 Rusting

Iron or steel articles, such as keys, rings, nails, etc., on the person of the deceased rust. The extent of rusting may give rough idea about the time of death.

21.5 CAUSE OF DEATH 21.5.1 Mechanical Violence A person may die of poisoning, shooting or in road accidents. They have already been discussed. In addition cause of death could be: 1. Mechanical violence.

2. Asphyxia. Mechanical

violence

causes

internal and external wounds.

embraces a wide variety of injuries. It is defined discontinuation of body tissues.

The ‘wound’

as a dissolution

or

A wound may involve skin, flesh or bones, separately or in combinations. A wound may be simple, grievous or fatal. Wounds are classified as:— 1. Abrasions, grazes, or lacerations. 2. Bruises or contusions.

3. Punctured wounds, and 4. Incised wounds. 21.5.1.1 Abrasions Abrasions are caused by the sliding motion of an object or of the body due to scratching or rubbing of the skin against the rough surfaces such as floors, walls, stones, trees, wooden pieces, rope, string or any other hard and rough surface. The shape and size of the abrasion vary tremendously. It roughly takes the shape and size of the abrading surface on extended scale due to sliding contact. In abrasions, ordinarily, only the epithelial layer is involved. The injury heals in about two weeks time without leaving a scare. If however, deeper tissues have been injured due to deeper scoring a permanent scar may be left. Abrasions are also known as lacerations or grazes.

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21.5.1.2 Bruises Bruises are also known as contusions.

Bruises are caused by an impact of a blunt weapon like a lathi, club, stone, hammer, shoe, fist, foot or a knee on a body. The impact crushes subcutaneous

tissues, rupturing small blood vessels and tearing flesh. Often painful swelling appears at the site. Bruises are, ordinarily, simple injuries. They prove sometime fatal when some bones or internal organ is crushed. An injury to head, spinal cord or to a vital organ like heart or testis may cause death. The shape and size of a bruise correspond to the shape and size of the weapon of offence if the bruise is examined immediately after the impact. Later, the bruise spreads over. It is often not possible to identify the nature of the weapon from the examination of the bruise alone. Bruises may be accidental, homicidal or self-inflicted. It is often difficult to differentiate between them.

21.5.1.3 Punctured wounds Punctured wounds are caused by pointed and sharp edged weapons like knives, spears, swords, spikes, sickles and axes. Nails, glass fragments, stones and firearm projectiles may also cause such wounds.

Fig. XXI-4 Stab wound in the heart region proved fatal.

Punctured wounds have greater depth than length. Outer dimensions of the wounds are ordinarily smaller than the instrument causing the wound. Fatal punctured wounds, other than firearm injuries, are often homicidal in nature.

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Fig. XXI-5 The shape of the injury can some time be misleading. The injury indicated by arrow-head looks like a bullet injury. It was in fact a road accident injury.

21.5.1.4 Incised wounds Incised wounds are caused by sharp-edged weapons and have clean cut edges. They have greater length than depth.

Fig. XXI-6 A sword attack or the head cut through the skull, injuring brain resulting in immediate death. The cleavage is seen clearly in the radiograph.

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Some wounds prove fatal because of: 1. Haemorrhage. 2. Effusion. 3. Shock. 4. Complications. Haemorrhage (excessive bleeding) may drain off most of the blood and leave insufficient blood in the body to provide oxygen to various organs especially brain. The minimum quantity of blood which must be lost to cause death varies according to the health and age of the victim. The blood continues to flow for sometimes even after death if the wound is large at a prone position. The quantity of blood in a pool is not, therefore, true index of the fatal loss, it may

indicate the time of injury in other cases.

The rate of loss of blood varies with passage of time. It becomes less and less due to clotting and fall in blood pressure.

21.5. 1.5 Miscellaneous 1. Effusion. It is soaking of internal body tissues with blood. If blood effuses into vital body organs such as brain, throat, lungs or heart, it stops their functioning and death ensues. Sometimes the wounds causing effusion are not visible, yet they prove fatal (for example head and chest injuries). 2. Shock. It is fall of blood pressure due to fright or unbearable sight. It may cause death. There may or may not be any mechanical injuries. 3. Complication. Injuries, sometimes, in themselves, are not sufficient to cause

death. But they bring in complications in the body functions and cause death. A non-fatal injury may incapacitate a person from moving about. Heat, cold, exposure, hunger or thirst may then kill the victim. The victim may be already suffering from some ailment which is accelerated by the injuries and bring about death. Negligence in treatment of the injuries may also cause death. As diminished responsibility is claimed by the culprit in such cases, the medico-legal expert should ascertain and report the same, whenever possible.

21.5.2 Dimensions of Wounds Apparent size of a wound may be smaller than the size of the weapon causing it. This is due to the elasticity of the skin. When the weapon is thrust into the body, the skin gets stretched and then the weapon is withdrawn, the skin acquires normal position and give smaller dimensions of the wound. This is noticeable, particularly in punctured wounds. If the weapon is rocked inside, the size of the wound may be larger. In gaping wound the width of the wound is larger than the thickness of the weapon. The elasticity of the skin is responsible for the ‘gaping effect’. It is observed in incised wounds. The dimensions and nature of the edges of a wound may give some idea

about the nature of the weapon.

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21.5.3 Age of Wound

It is not possible to determine the exact age of a wound but a rough idea may

be formed from the following factors: 1. There is a gradual change of colour of a bruised skin. The skin first becomes blue. The colour then starts fading. The time of disappearance depend upon the force of impact, the position of the bruise on the body and the age and health of the person. In some cases, blood clots, do not

get dissolved and give permanent blue-black colour unless the same are mechanically removed. 2. Inflammation and puss formation may give some idea about the age of the wound. 3. Healing scars indicate the age of a wound. 4. Formation of callus in bone fractures is useful indication of the age of the injury. The formation is soft to start with. It hardens with the passage of time.

21.5.4 Ante or Post-mortem Wounds Ante-mortem and post-mortem wounds are distinguished from the following facts:— 1. Wounds inflame and heal only in living tissues. Dead tissues putrefy. The difference is noticeable.

2. The skin loses its elasticity after death. Therefore, the changes associated with the elasticity of the skin, do not take place when the wound is inflicted on a dead: body. However, wounds inflicted immediately after death, may look like ante-mortem wounds. 3. Post-mortem wounds do not bleed unless some important vein is cut or the wound is inflicted in a place where blood had accumulated by gravity and flows out from the wound due to gravity. Such bleeding is distinguished from the usual bleeding by the absence of spurting and formation of fibrin (clotting). Spurting and clotting of blood takes places only in ante-mortem injuries. 4. Blood coagulates in about 12 hours after death. If a wound is inflicted after this interval there will be very little bleeding. 5. The edges of the wounds are deeply and firmly soaked in ante-mortem injuries.

6. Bruises cannot be caused on a dead body after a few hours of death. However, sometimes, bruises appear after death for injuries inflicted during life time.

21.5.5 Fatal Wounds [t is of great forensic importance to establish whether a particular wound is by itself or principally responsible for the death of the victim. This is established through a detailed and thorough autopsy and study of the medical history of the victim. Certain diseases like weak heart, tuberculosis, asthma and haemophilia accelerate deaths. Victims suffering from these diseases succumb to violence more easily than normal healthy persons.

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Alive and kicking, even with a bullet (B) in the brain for the last seventeen years. Impossible medically?

Fig. XXI-8 A stab wound was treated in a hospital for a few weeks. Ultimately the victim died. Does survival for a length of time infer diminished responsibility on the culprit ? No. 21.5.6 Incapacitation It is frequently asked whether a victim after receiving a certain injury or

injuries could perform the given acts. The medico-legal history fantastic tales of activities carried out by the injured victims who and died. It appears the will power of the individuals, which vary mainly accounts for the unbelievable acts sometimes performed victims. Ordinarily, any serious injury to a vital organ should person immediately.

is replete with later collapsed tremendously, by the injured incapacitate a

21.5.7 Asphyxia

Asphyxia means the non-supply of oxygen to the body. It may be achieved by chemical or mechanical means.

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If the air inhaled contains very little oxygen, as in rarefied atmosphere at high altitudes, or in air mixed with gases like carbon dioxide and nitrogen, asphyxia

results. Carbon monoxide or hydrogen cyanide inactivates haemoglobin, the oxygen carrier in blood, and causes asphyxia. .Certain drugs like opium, inactivate the heart and prevent the supply of oxygen to body parts by restricting the blood supply, with fatal results due to asphyxia. Asphyxia, commonly referred to, is by mechanical means. Suffocation, choking, strangling, hanging, drowning and crushing of the heart and lungs are its various forms. 21.5.7.1 Identification of asphyxia Death due to asphyxia is identified from the following observations:

1. Skin becomes pale. Minute droplets of blood may ooze out on the facial skin. 2. Eyes become bloodshot. Pupils become dilated. The eyes remain partially open. If a section of the eye flesh is examined, it shows minute droplets of blood. : 3. Mouth remains partially open. Tongue may protrude. Froth is found in mouth, nostril, throat and windpipe. 4. Blood is deficient in oxygen. 5. Marks of violence are found on the body. The nature, number and the

position of the marks depend upon the mode of asphyxiation. A person dies in about five minutes from asphyxia. 21.5.7.2 Suffocation If the inlets of air supply, mouth and nose, are blocked from outside, suffocation takes place. This may be done manually by placing hands over the inlets or closing them with a piece of rag or cloth. If the head is buried in a heap of floor, sand, earth, mud, grains, coal dust, snow, water, cotton and wool, the

person is suffocated. Suffocation is generally accidental or homicidal. It is rarely suicidal. Accidental suffocation may kill children, drunkards or person suffering from epilepsy. They may bury their heads in pillows, mud, snow or a heap of flour or dust and die.

Homicidal suffocation may carry bruises around the nose and lips as the victim struggles for release. Being buried alive, accidentally or otherwise, is a form of suffocation. It is ascertained by the presence of foreign matter inside. 21.5.7.3 Choking Choking is a variation of suffocation where the inlet passage of air supply is blocked internally. Choking may be accidental or homicidal. Accidental choking may occur when something like a marble or a lump of food is swallowed and gets stuck in the air passage. A few years ago, the Chief of Indian Air Force died in Japan due to choking. A piece of meat had stuck in his throat, which choked him to death. (CH)

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In homicidal choking a piece of cloth or other material is pushed through the mouth deep into the throat. The intention of the culprit may not be murder. He only wants to silence the victim but death may follow. 21.5.7.4 Strangulation and throttling Strangulation involves constriction of the neck muscles. Air passage is blocked and the victim dies. Constriction of the neck is caused by external force.

Hands, or a cord, a string, a rope or a piece of cloth may be used. The neck is marked where the skin is pressed. The skin becomes soft and red. The marks take the shapes of the item used for strangulation. The death is caused by asphyxia. The neck muscles, arteries and bones are also damaged. There may be bleeding from the nose and the mouth.

Suicidal strangulation is rather rare and may be accomplished only by lunatics. Accidental strangulation is sometimes possible. Strangulation is generally homicidal. Sometimes it is preceded by drugging. Throttling is strangulation where only hands and fingers have been used to put pressure on the throat. 21.5.7.5 Hanging

Hanging, like strangulation, involves constriction of the neck. The body is hung by the neck through a cord, string, rope, wire or a piece of cloth. No external force is applied. The weight of the body alone is sufficient to cause death through asphyxia. Damage to neck tissues and arteries and dislocation and fracture of vertebrae may take place especially in judicial hanging.

Fig. XXI-9 Hanging is possible even from insufficient heights. Even ifa part of the weight is transferred to the hanging rope or other device, the man loses life.

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A corpse was recovered in advanced stage of decomposition. Death due to exposure to elements was suspected. However, fracture of the vertebrae was noticed at the time of post-mortem examination. The case was investigated as murder. (CH) Ligature marks found around the neck on the side opposite to the knot indicate hanging. Detailed examination reveals signs of asphyxia and damage to neck tissues and sometimes to bones.

Identifying signs of hanging are: 1. Dribbling from the mouth.

2. Elongated neck. 3. The base surface of the groove parchment like.

Hanging was one of the commonest method for suicide in India. Accidental hanging, though rare, is possible, Homicidal hanging to simulate suicide is frequent. Even dead bodies are ‘hanged’ sometimes. They may carry the ligature marks but signs of asphyxia are absent. 21.5.7.6 Drowning or submersion

Drowning causes asphyxia, though other complications such as dilution and laking of blood, exhaustion, heart failure, hitting against some rock-like hard object may be present. Persons are known to have died even in shallow waters (or other fluids). Presumably the victims were too feeble (due to intoxication,

drugging, injuries or diseases) to save themselves. Drowning is recognized by both internal and external changes. Signs of asphyxia, foreign matter in hands, mouth, and inside, abrasions on fingers, toes, knees and forehead and vomitus constitute external signs. Internally, froth mixed with blood and sometimes with food matter in the

wind-pipe, foreign matter alongwith water in the stomach, haemolysis of blood and distention

of lungs (with frothy bloodstained

observed. Identifications of diatoms drowning.

fluid) and stomach

are

in body fluids is a reliable test for

If the body is submerged under water for a long time, the hands and feet acquire ‘washerman’s skin’ and lungs get swollen and congested.

Drowning is often accidental and suicidal; it is rarely homicidal. It is often difficult to decide whether the drowning is homicidal or not. Answers to the following questions help:— 1. Is the body tied ? If so, it is, ordinarily, homicide. The rope with the knots should be preserved. It may virtually tie the culprit with the murder. 2. Are there any homicidal tears, holes, stabs or stains on the clothes of the victim ? 3. Are there some injuries on the body ? If so, were they present before the body was submerged ? Or are the injuries due to fall in water and striking against some hard object under water ?

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4. Are there any fractures or dislocations of bones, bullets or other foreign matter in the body ? Could the damage to bones occur inside water due to fall and striking against some hard object ? 5. Does the viscera contain poison? The presence of poison indicates either homicide or suicide. 6. Was the deceased of sound mind? Did he have a tendency towards suicide or did he suffer from some disabling disease like epilepsy? 7. Who was interested in his removal? Sometimes dead bodies are thrown in water for disposal by the murderers. The bodies do not show any signs of asphyxia and there is no foreign matter including water in the bodies. 21.5.8 Miscellaneous Starvation, electrocution, cold and heat are other causes of death. It is often difficult to determine whether the death due to these causes was accidental, suicidal or homicidal in nature.

21.5.8.1 Starvation Starvation deaths were common previously due to recurring famines. They are very rare now. Starvation deaths can be identified from the following: 1. Hollow and shrunken face. . Absence of fat and muscles. . Disagreeable odour . Loss of body weight. WON OFBowls become translucent. 6. Excretion track carries hard crust of stool. 7. Shrunken heart, lungs, spleens, pancreas and kidneys. 8. Very little blood in the body. 21.5.8.2 Electrocution Deaths due to electrocution are increasing with the increasing use of electricity. They are often accidental and rarely homicidal or suicidal. A current under 250 volts is considered safe but deaths have occurred even with a current of 50 volts or so. The body built, the clothings and the atmospheric conditions have important effect. Electric current affects the heart, brain and respiratory centres to cause death. Death due to electrocution is identified from the injuries. There are burns at the point of entrance and at the point of exit and reddening en route. If the current has passed through a metal object in its passage, there is burning of the | skin at the point. Sometimes there are no visible injuries. Accidental electrocution takes place due to defective electrical appliances or exposed naked electric points or wires.

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Fig. XXI-12 Electric burns were found both on chest (Fig. XXI-9) and on back (Fig. XXI-10). But they did not look so severe. When the body was subjected to post-mortem it was found that even the bones had been burnt (Fig. XXI-11).

21.5.8.3 Lightning

Deaths by lightning are rare in India. When the static electricity of clouds is discharged with a flash, a high voltage current is generated. It destroys anything in its passage including trees, buildings and individuals. There are extensive injuries; burning and shreading of flesh. Fractures and dislocations of bones of the body also takes place.

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Fig. XXI-13 Lightning deaths are rare in India, multideaths are rarer still. Yet half a dozen persons were killed when lightning struck the tree under which they were standing.

21.5.8.4 Cold Deaths due to exposure to cold are generally accidental. However, infants, children and old people may be exposed to cold deliberately. The effects of cold vary from simple reddening of exposed parts to their complete elimination due to frost bite when the skin temperature is around -10°C. Physical changes in heart, lungs and brain give useful indications. The exposed parts (fingers, toes, ears, nose) are severely affected.

21.5.8.5 Heat Persons working near hot object, like engines or boilers, perspire heavily. They suffer from heat cramps and may die of exhaustion. Persons working in hot climate or in closed areas may die similarly. Heat radiations also cause sun strokes which damage the brain with fatal results.

21.5.8.6 Scalding Hot fluids, when thrown upon a person, produce scalds (blisters). They sometimes prove fatal mostly due to extreme pain and shock. 21.5.8.7 Burning Heat, ultra violet rays and X-ray radiations produce burns. The damage to the body tissues depends upon the source of energy, the length of exposure and

the health and the part of the body exposed. Deaths due to burning are generally accidental. The clothes of the victim may catch fire, a kerosene oil stove may burst or an individual may get surrounded by a big fire. A painful death ensues.

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Fig. XXI-14 Pugilistic pose of a burnt body of a woman. Scalds on face. Scars on the belly can be easily discerned.

Bride burning has acquired unfortunate proportions in recent times. Usually kitchen accident are alleged even for murderous burnings. Proper examination of the scene and other evidence can permit differentiation between accidental and homicidal bride burning. It is at times difficult to differentiate between suicidal and homicidal burning. A criminal sometimes sets a house on fire and burns a dead body to simulate accidental burning. But post-mortem and ante-mortem burns can be distinguished. The latter contain fluid in the scalds and there is inflammation of the skin around the burns . These signs are absent in post-mortem burns. 21.5.9 Medical Negligence

Deaths and damage due to medical negligence occur now and then. It is increasing with the passage of time. The aggrieved persons are now filing suits against the doctors for negligence. The number of such cases is increasing. Medical negligence has been defined as an action, on the part of the doctor, to omit to do something what is normally required of the doctor by a patient, or to do something, which is harmful to the patient. Medical negligence includes professional negligence and malpractices, like taking out body organs clandestinely, on their part. It also includes lack of skill, wilful negligence and carelessness on the part of the doctor. Medical negligence becomes legally actionable when the patient suffers damage, may be immediate or delayed, may be mental or physical, may be financial or it may be affecting the quality of life.

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21.5.9.1 Classification Medical negligence is classified into two categories: 1. Criminal Negligence—It is a gross harmful act, usually resulting in death of the patient. The police investigate such cases under section 304A of the Indian Penal Code. The act may also result in serious impairment of the patient. Other major criminal acts on the part of the doctor involving criminal action are taking out body organs for sale, covertly or otherwise. In a recent case, a gang (at Amritsar and at Jallandhar) would catch hold of .

‘\

.

.

persons, intimidate them or promise them with heavy compensation to donate a kidney. The gang member would get them operated to remove one of their kidneys. The subject would not get proper after-operation care and would die or the gang members would kill them to save for themselves the promised compensation. The body would be cremated under a false name. One of the members of the gang,

under police interrogation, has admitted offifteen such cremations. The racket involves not only the gang members but many others also—the doctors, the lawyers and the authorisation committee members, etc.

(TOI, 20th November,

2002).

2. In Civil Negligence the police is not involved. The affected party sues the doctor for damages. In both the cases it has to prove that: The doctor was negligent and the damage could not occur but for his negligence. He did not perform his duty well. The damage to the patient was due to the doctor’s failure. The patient did not contribute towards the damage.

The doctor was incompetent. The doctor indulged in malpractices. He had no regard for human life. He showed professional misconduct. No proof is required if the negligence is self-evidence. Examples: ¢ Forecps or sponge found inside the victim. ° Two fingers were to be set right, another two also stopped functioning after the operation. The usual defence taken by a doctor is that the patient or his attendants failed to cooperate, did not take suggested treatment or did not attend the treatment as per advice of the doctor. The defence is taken in civil cases. Doctor and patient's relationship is that of the implied contract, once the doctor takes up the case. He is supposed to: ° Use necessary care, attention, judgment and skill. ° Use clean and proper appliances. The use of kitchen knife for removal of piles condemned by the court in a case.

e Administer proper medicine.

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A doctor gave strychnine in place of quinine. It killed the person. The court held it a case of negligence. Give direct intelligible instructions in simple language. Continue case till the patient is cured. If the disease is beyond his skill he must either consult specialists or refer the case to such specialists or specialist institutions. Treat patients while under the influence of liquor or drugs. 21.5.9.2 Investigator’s role The investigator’s role is a hard task. He has to find evidence, which is often

technical in nature. He should proceed systematically. He should procure information about the doctor from his relatives, friends, associate, sub-ordinates,

superiors,

other

current

or previous

patients.

He

should

also

procure

information about the death or injury. The following check points may help: 1. Death in operation:

Proper record: consent, consultations. Proper diagnostic investigation: Biopsy, X-ray, laboratory tests for Hypertension, Diabetes, drugs in the body? Reaction to the medicine? Hemophilia? ECG? Wrong patient, wrong body part, wrong medicine, contaminated drip, incompatible blood transfusion, fat-air embolism? Gross negligence: instrument, sponge or swabs inside? Cause of death: operational shock, vagal inhibition? Criminal wounding for organ theft or otherwise? 2. Post operational care Care is a necessity in most of the operation. Did the concerned doctor take proper care? The following points may help:

Adequate attendance? Proper medication/ injection at proper time? Plaster too tight, too loose? 3. Anaesthetic deaths

Anaesthetic deaths occur due to negligence, ignorance or lack of proper handling:

Patient unfit for anaesthesia: under the influence of drug, have sickle cells or heiminie infestation. Improper dose. Basal or wrong gas/ether anaesthesia. Prolonged anaesthesia - person with weak hearts may suffer heart attack.

Faulty relaxants.

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4. Malpractices

Has the doctor malpractices:

indulged

in malpractices?

The following are common

e Theft of body organs? ¢ Unauthorised termination of pregnancy? ¢ Experimental transplantation or use of new drugs and medicines? The investigator has to get the help of experienced doctors, both to carry out the post-mortem examination and to understand and prove negligence or other failures on the part of the doctor. He may not succeed alone in many a case. 21.6 IDENTIFICATION OF THE DEAD The identification of the corpse is necessary to establish the corpus delicit. The same is ascertained from the following: 21.6.1 Relatives and Acquaintances

The most reliable identification of a corpse is the one made by relatives and friends. Ordinarily, they do not make mistakes. But when a body has altered greatly, the identity of the deceased should be considered established only if they can indicate specific evidence of identity. 21.6.2 Documents Certain documents like personal letters, driving licence, passport, permits and receipts may be found on the person of the deceased. They lead to the identity of the corpse. In some cases, a document may be ‘planted’ on the deceased to give the corpse an ‘identity’ which the culprit may desire. The identity, therefore, established from documents should be confirmed from other sources.

A skeleton was recovered from a pit. The flesh and clothes had been completely destroyed by insects, etc. A wrist watch, a steel bangle and a lump of earth suspected to contain a plastic object were recovered. The state of the skeletal remains indicated that the body was lying there for a considerable period. The lump of earth was, therefore, carefully worked to collect its contents. It gave a plastic diary cover containing a crumbled diary, a few coins, bits of currency notes and other papers. The diary was identified as one issued by a college. The bits of currency notes were found to be at least worth over rupees six hundred. Some of the bits of paper were suspected to be college fee receipts. Comparison of the writings on one of the bits of paper with duplicate carbon copies in the fee receipt book established originalcarbon copy relationship of the documents. The identity of the deceased was, therefore, established. The recovery of a comparatively large amount of money ruled out robbery or planting of the document to mislead the identity. (CH)

21.6.3 Portrait Parle The portrait parle of the corpse proves useful. It should be compared with the portrait parle of the suspected deceased or missing persons.

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21.6.4 Scars The

positions,

sizes

and

shapes

of scars,

tattoo

marks,

fracture

and

deformities are helpful. A fire at the central apartment building in a city recently completely gutted the third floor and heavily damaged the first and second floors of the structure. An investigation was conducted by the police department and a member of the fire brigade office to ascertain its cause and account for all building occupants. It revealed the fire had originated in apartment 42 and spread throughout the entire third floor. Careless smoking was the probable cause of the blaze. During their search of apartment 42, badly charred human remains were found frozen into the debris. These were chipped free and removed to the mortuary where a post-mortem was conducted. The corpse was so severely charred that identification could not be made by physical appearance, fingerprints or dentures. All occupants were accounted for except one, a known alcoholic approximately 50 years old, who lived in apartment 30 on the third floor and had been seen coming home in an inebriated state about one hour before the fire was reported. It was surmised that the charred remains were his. However, the things that could be established with certainty were: the body was male, of the same height and was discovered in apartment 42—not apartment 30. Although this suspected victim was known to wander from apartment to apartment, further identity doubts were formed when another occupant claimed to have seen him leave the building a short time after the arrival of the fire department. The suspected victim has been known to wear a belt decorated with a World War II medal, the finding of which would assist in identification. In an attempt to locate the medal the pathologist X-rayed the corpse while the police searched the debris. The medal was not found.

The X-rays did, however, reveal that both ankles had previously been fractured. The victim's hospital records revealed similar fractures, comparison of the X-rays of the deceased with those on the hospital file were able to positively identify the body of the suspected victim. (CH)

21.6.5 Professional Marks A photographer, a dyer, a painter, a laboratory worker or a chemist will have stains on his person. A tailor, a draughtsman or a petition writer will have stiffening on his hand. Professional marks reduce the number of possible suspects. Professional dust carried by the deceased is also useful. A colliery worker carries coal particles, a flour mill worker carries flour and so on. 21.6.6 Personal Articles The personal articles: clothes, shoes, ornaments, a watch, a knife or a pen may carry the name of the manufacturer, the repairer or of the supplier. The clothes may also carry laundry marks. The shoes carry, in addition, the prints of the feet inside. These prints are compared with similar prints in other pairs of shoes, found at the residence of the suspected victim. They may, thus, help to identify the deceased.

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21.6.7 Photographs, Sketches, Casts

Photographs, sketches or casts of modelled feature of the deceased should be displayed to general public. The media of press, police gazette, cinema and television should be used to give wide publicity. 21.6.8 Fingerprints The deceased may have a fingerprint record. It should be checked. Or, if he

has no record, latent prints may be found at his residence. They may identify the corpse.

21.6.9 Dentures If the deceased has a dental record, it permits identification of the deceased. The number, nature and positions of the teeth present and lost, peculiarities of arrangement of teeth, crooked, broken, eroded, and additional teeth, presence of bridges and metallic in-lays individualise the denture and hence identify the deceased. 21.7 SKELETAL REMAINS Evaluation of skeletal remains helps in the following situations:

21.7.1 Human Bones The structures of certain bones, the jaws, the hands, the feet and the skull

indicate whether the bones recovered are from human beings or from animals. If a number of bones are recovered there is no difficulty to establish the source, but a single old bone may make the task difficult. Bones which are not very old contain organic matter, which gives precipitin reaction with human antisera and thus establishes the human origin of the bones. Through DNA profiling it is now possible.

21.7.2 Number of Victims To find out whether the bones recovered belong to one or more persons, they are arranged to form of a skeleton. If there is no duplication and the bones fit inter se, they belong to one individual, otherwise, they come from more than one

individuals.

Certain bones like vertebrae and mandible are highly characteristic of human body. They resist decay and the action of fire and chemicals. There is one vertebra coccyx in a human body. Their identification and number help to establish the number of victims. 21.7.3 Age of the Victim The following factors help to determine the age of the victim: 1. Teeth. The wear, cement deposit, closing and resorption of teeth, roots

and transparency of teeth are helpful. 2. Roof of cranium. The sutures (ossification lines) in the cranium are

straight in young age. They acquire serrated edges and ultimately the

lines are covered with calcification. The smoothness and thickness of

the surface of cranium are also useful, as they change with age.

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3. Ossification of bones. The ossification in long bones helps to ascertain the age if the skeleton belongs to a person who had not reached adult age, as it continues from birth to adult age. 4. Haversian canal. The ratio of the internal and external diameters of Haversian canal of a bone changes with age till the subject has reached adulthood. 5. Rarefaction of bones. Bones rarefy in old age. The extent of rarefaction indicates the age of the victim. 6. The size, structure, strength and composition of bone materials of certain bones, especially of fingers and toes, prove helpful to determine the age of the victim.

21.7.4 Sex of the Deceased It may be difficult to determine the sex of the deceased if only one or a few bones are available. The following bones are helpful: 1. Pelvic bone. 2. Breast bone. 3. Skull. 4. Spinal cord. The ratio of width of shoulders and the hip in general, is more than one in males and less than one in females. Besides, the bones of a female are smoother and weaker than those of a male.

21.7.5 Height of the Deceased An idea about the height of the deceased from the skeletal remains is obtained by multiplying the length of a long bone with a suitable multiplication factor. The following factors are useful:

Long bone

Multiplication factor

Humerus

oA

Radius

6.5

Ulna

6.0

Femur

3.7

Tibia

4.3

Fibula

4.4

The exact multiplication factors vary for males, females and children and for various groups of population. However, the above factors give rough estimate of height in most of the cases. 21.7.6 Identity of the Deceased

The identity of the deceased from skeletal remains is established from the following: 1. Dentures of all persons are individual. If the deceased had a dental record, the victim is identified.

oo 7 Nm eer

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2. Fractures of bones are individual. The victim may have fractured his bones and the X-rays record may be available. Comparison of the record with the healed fractures may indicate the identity of the deceased A completely charred body was recovered from the debris of a burnt house which was occupied by a single owner. It was suspected that the body belonged to the owner. The owner was known to have suicidal tendencies. A few years earlier he had attempted suicide with a firearm. A Radiograph was taken. It indicated several small fragments of projectile lodged inside the body. The fragments were not taken out. A Radiograph of the charred remains was taken. It indicated all those fragments in the body at relevant positions. The identity of the deceased was established beyond doubts. (CH) 3. Deformity of head, legs, arms and neck are characteristic. They affect the bones. A careful study of the same leads to the identity of the deceased. A few years ago, a skeleton was recovered. Its identity could not be established. It was then sent to a medico-legal expert. The expert discovered thickening of the neck bone on one side. He concluded that the deceased had deformity on the neck. The head hung to one side. The information led to the identity of the deceased. (CH)

Fig. XXI-15 A terrorist who was extensively disfigured in an explosion in Delhi, was identified through skull superimposition technique.

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4. Skull is also used for the identification of the deceased. Identifications from the skull photograph and life size photographs of the suspected victim are made by superimposition techniques. They may indicate the identity or non-identity of the suspect. Life size photographs of the head of the deceased and transparency of the skull are superimposed. The positions, of the nose, eyes, ears and chin should correspond. In case of non-identity, the various positions do not superimpose. Three youngsters visited Morni hill, had drinks and drugs. Late in the evening they had altercation and one of the youngster was strangulated by the other two. The dead body was thrown in ravines, which are not visited usually by human beings. The skeleton of the body was discovered after a long time. Its identity to that of the boy was established through skull superimposition. (CH) The following anthropometric measurements of the actual skull, life size photograph and ante-mortem life size photograph of the person are taken and super imposed inter se for a match or non-match: 1. Total face height . Face breadth . Upper face heights . Lower part face width . Nasal aperture; height, breadth . Intra orbital width N W £— OF ND . Orbital height, width Seventeen persons were killed in a house collapse in Delhi, a few years ago. It was suspected that vibrations of generator caused the collapse. The bodies of the remnants of 16 persons were identified. The remanants of 17th person remained unidentified. They closed the case after a few months. The intelligence bureau, however, continued to investigate. They found that one of the terrorists was missing from the date of occurrence of this collapse. The intelligence bureau doubted that possibility of coincident that the terrorist became untraceable from the date of house collapse. They inferred that the unidentified dead body parts were probably that of the terrorist. Skull superimposition technique identified the remnants to be that of the missing terrorist. Presence of RDX on that debris established that the house collapse was due to an explosion, not due to generator vibration. (CH) In comparison of facial features of ante-mortem life size photograph, skull morphology and of the skull the following points are measured and compared: 1. Eyebrows 2. Medial margins of the slit 3. Lateral margin of eyes 4. Position of moustache 5. Position of closed mouth 6. Face outline 7. Nasion

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. Position of ear . Position of nostrils

. Height of nose . Width of nose . Width of mouth

. Maximum width of nasal bridge . Lip height. In the famous Ruxton case, the superimposition ofphotographs was titixodh for the first time. The technique proved useful in the differentiation and identification of the two murdered women. The technique has been extensively exploited since its first introduction in that case. A few years ago, an inmate escaped from a mental hospital. A thorough search of nearby localities proved futile.

After about a year a skeleton was recovered from a jungle about 10 miles away from the mental institution. The remains of the clothes indicated that the deceased was an inmate of the mental hospital. Several patients had run away from the hospital during the past few years. The dental charts were, therefore, checked and compared with the denture of the deceased. The comparison indicated that the deceased was probably the above referred patient.

The exact identity of the deceased was established from a radiograph of the spinal vertebrae taken in the hospital before the patient escaped from the hospital. It tallied with the one taken from the skeleton. (CH)

21.7.7 Burnt bones | Cremation of dead bodies is the normal way of disposal of the deceased among Hindus. It is also being increasingly used in other countries. Cremation destroys most of the evidence. However, some parts like teeth escape destruction. They establish the human origin of the bones. Under favourable circumstances they may also ee the determination of age and identity of the victim. On burning, the bones lose organic matter. They become brittle and may even be reduced to ash. They leave no substantial evidence. However, the analysis of the ash can indicate that bones have been burnt. The analysis may not differentiate between human and animal bones. 21.8 SEXUAL OFFENCES Serious common

sexual offences are:

1. Rape. Zi Incest. Bi Unnatural offences. Some minor sexual offences are: 1. Exhibitionism.

2. Sadism.

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3. Voyeurism -’Peeping Tom’. 4. Frottage. Certain sexual aberrations are: 1. Masochism. 2. Transvestism.

3. Fetishism.

21.8.1 Rape In India rape is one of the most serious offences. The victims sometimes

cannot bear the sense of shame and commit suicide. Law (section 375, IPC) also provides severe punishment—imprisonment and fine. The prison term can be even for life.

Legally speaking: ‘a man is said to commit rape who, except in the case hereinafter excepted, has sexual intercourse with awoman under circumstances falling under any of the five following descriptions: Firstly, against her will; Secondly, without her consent;

Thirdly, with her consent, when consent has been obtained by putting her in fear of death, or of hurt; Fourthly, with her consent when the man knows that he is not her husband

and that her consent is given because she believes that he is the man to whom she is lawfully married; Fifthly, with her consent, when, at the time of giving such consent, by reason

of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and of that to which she gives consent. Sixthly, with or without her consent when she is under eighteen years of age. Explanation: Penetration is sufficient to constitute sexual intercourse necessary to the

offence of rape. Exception:

Sexual intercourse by a man with his own wife not being under eighteen years of age, is not rape.’ In simple non-legal words rape means sexual intercourse with a female (other than his wife) by a person when:

1. The female is not willing, even when the female is prostitute. 2. The consent is obtained by threat. 3. The consent is obtained by deceit or misrepresentation (posing as her husband or misrepresenting the act as medical treatment). 4. When the victim is mentally deficient: imbecile, idiot.

5. When the victim is under the influence of drugs or liquor.

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6. When the person is unconscious. 7. When the victim is young - below the age specified in law - (18 years). 8. Penetration of male organ into the female parts incur the offence. Complete penetration or emission of semen is not necessary to prove the charge. 21.8.2 Rapist

Rapists are of three types: 1. Social degenerates who enjoy extra-marital sexual intercourse without ill-feeling. They are real criminals. 2. Sex maniac: Certain individuals though normal most of times, get fits of sex mania and commit acts for which they are often sorry later on. They need medical treatment or psychiatric treatment as their biology may be responsible to urge them on to commit the crime. 3. Some misguided individuals suffering from venereal disease believe that intercourse with a virgin would cure their venereal disease. They rape young girls.

21.8.3 Investigator’s Role The charge of rape is easy to level against a person but difficult to prove. The number of cases is increasing. It is bound to increase further because of the changing social values. The investigator has to be vigilant. The investigator has to proceed systematically to collect proper evidence and to provide proper proof as in cases of rape, there are usually no eye-witnesses. It is complainant’s statement versus accused person’s statement. Of course circumstantial

evidence

(and hence scientific evidence) is available. As the

culprit and the victim comes in close contact, there is plenty of exchange of traces. If the case is handled early and efficiently, convincing evidence should be forthcoming. Two problems worry the investigator. Firstly, the culprit often claims consent of the victim. Secondly, there are sometimes false complaints. He has to be vigilant against both aspects. 21.8.4 The Victim The victim is the most important source of evidence in rape cases. The evidence is of three types: 1. Knowledge of the occurrence. 2. Medical evidence. 3. Evidentiary clues. 21.8.4.1 Knowledge The occurrence is best known either to the victim or to the culprit. As culprit

is interested in not conveying the information the only source left is the victim. This knowledge has to be extracted through careful interrogation so that the chaff can be separated from the grains. The following points must be kept in view:

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_ Interrogate the female in the presence of another female. _ Ascertain the movements of the victim before and after the occurrence.

_ Ascertain the familiarity of the accused with the victim. . Collect even minute details of the occurrence:

pe WN

a. Place of occurrence? Route? b. Time of occurrence?

. How enticed? How attacked? Weapon if any?

. Resistance offered if any? How long ? How overcome? “ at the time. Screams? Threats?, Inducements? aa ©—. Dialogue Endearments? g. Any witnesses who may have seen the pair together before or after the act? 5. How soon after the occurrence was the complaint made? To whom?

6. Who persuaded the victim to go to the police? . Ascertain the character of the victim. Previous sexual contacts with the

accused may indicate motive.

21.8.4.2 Medical evidence The victim bears important medical evidence, which, with passage of time, is lost. The examination of the victim should, therefore, be carried at the earliest. Consent of the victim is essential. The doctor should be qualified and experienced. The medical examination must be carried out by a female doctor whenever possible or in the presence of a female. The medical examination should ascertain: a Injuries consistent with forcible rape? Details? Previous experience? Torn hymen? Injured vulva? bleeding? . Injuries because of resistance? Location? Extent? . Torn clothes? They should be taken into possession. | . Any stains? on clothes? On body, especially on thighs and private parts? 5. Disorder of hairs, clothes, etc.?

6. Any pregnancy? How old?

7. Age? Physical health? 8. Disease? Any Venerial disease? 21.8.4.3 Evidentiary clues The investigator must collect the following evidentiary clues with the help of the doctor: ig Vaginal secretion and swabs for semen. F Foreign hairs and fibres on the person of the victim. De Specimen pubic hairs from the victim.

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4. Semen stains from the body. 5. Fingernail scraping which may carry fibres, hairs, skin, blood from the culprit. The evidence can link the culprit, with the victim and hence with the crime.

6. Age of the victim often assumes.great importance. Medical evidence for the age of the victim is important. It should be ascertained. However, birth certificate and school certificates also prove useful. If the victim is less than 18 years of age, consent of the victim does not have any sanctity. 7. All clothes of the victim worn at the time of occurrence. They carry semen, fibres and hair, blood stains, saliva stain from the culprit. They also indicate the extent of bleeding. Sometimes

they carry dust, dirt, plant material from the scene which

help to corroborate the victim’s statement. 21.8.5 The Culprit

The culprit carries important evidence. The evidence is medical, physical and knowledge of the occurrence. He should be contacted and got medically examined at the earliest with his consent.

21.8.6 Medical Evidence The medical evidence is of the following types: 1. Injuries due to sexual act. Often it is absent. 2. Injuries (scratches, bite marks, etc.) due to resistance offered by the victim. Location? Number? Extent? They are often found if the female is

3.

4. 5.

healthy and spirited. Torn clothes? They should be taken into possession. Stains? On clothes? On body ! Especially on private parts. Smegma? Presence of smegma is useful clue. It can refute the charge of false rape. Absence of smegma does not prove rape. Capability? Is the culprit capable of performing sexual act? Venerial Disease? Is the culprit suffering from any venerial disease?

6. 7. All the legal fornialities must be observed. 21.8.7 Physical Evidence

The culprit carries the following evidentiary clues on his person: 1. Vaginal fluid stains, bloodstains, semen stains on the penis, on pubic hair, on the area around the male organ and thighs and on clothes. Smears from male organ from pubic hair, from the surrounding skin

should always be obtained. 2. Foreign hairs—especially in the private parts and intermingled with pubic hairs, The doctor should collect them for further investigations. 3. Fibres from the clothes of the victim. They are mostly on his clothes. 4. Stains of cosmetics (lipstick, cream, powder, etc.) on the person and

clothes.

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cosmetics, etc., from the victim. 6. Dust, dirt, flora or fauna from the scene, especially in outdoor cases.

Clothes worn by the culprit at the time of occurrence must be taken into possession. They carry stains, tears, hairs and fibres, flora and fauna and their fragments and dust and dirt from the scene.

21.8.8 Oral Evidence 1. Get the version of the accused and compare it with that of the victim. 2. Find out his alibi. 3. Fix his movements

around

the time of occurrence.

Find out their

correctness.

4. Ascertain

the association

of the accused

with

the victim.

Previous

meetings? Previous sexual contacts. 5. Ascertain the reason for the presence of the accused at the scene. 6. Ascertain reputation of the accused, his social and marital status, previous crimes, if any. 7. Ascertain his associates.

21.8.9 The Scene The careful examination of the scene of occurrence is always done at the earliest. The investigator should take the following steps: 1. Photograph and sketch the scene. 2. Collect evidence: a. Hairs, fibres, discarded papers, pieces of cloth, clothings, cigarette stubs, buttons. b. Stains, smears.

c. Marks: fingerprints, footwear marks, tyre marks, lipstick marks, marks of struggle. d. Soil, dust, dirt as control sample for evidence picked up by the culprit and the victim. e. Broken bangles, jewellery. 3. Ascertain the layout. Could anybody observe the scene and occurrence? Could anybody hear the screams or voices from the scene? 4. Ascertain if there was any chance witness to the occurrence. 21.8.10 Gang Rape

Sometimes rape is carried out by a number of persons jointly. The victim is raped by one after the other. All are accomplices and are equally guilty. 21.8.11 Attempted Rape

Attempt to commit rape is also a serious crime. Here the culprit does everything to accomplish the crime, but due to certain unforeseen occurrence he fails to complete the act. Proof has to be provided. All evidence available with

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the victim, the culprit and the scene should be collected. In genuine case, as the victim is assaulted, there is ample evidence available. It is processed in the same way as in the case of a rape.

21.9 INCEST Incest is sexual intercourse between persons of prohibited relationship. For example, a person cannot have sexual intercourse with his sister, daughter, grand daughter, mother and vice-versa. Cases of incest are not common

in India. The few which are bound to exist,

seldom come to light. In foreign countries cases of incest relate to brothers and sisters and father and daughters, mostly.

In a case reported by the mother of the girl, father was involved in the incest. When the daughter was checked, she was found to be used to sexual intercourse. Vaginal swabs did not reveal any sperms. They indicated the presence of some silicone grease. It was found similar by infrared spectrophotometry, to the one found on the contraceptive sheaths rétowered from the father. (CH) 21.10 UNNATURAL OFFENCES Unnatural offences are described in section 377 of the IPC:

Whoever voluntarily has carried intercourse against the order of nature with any man, woman, or animal, shall be punished with transportation for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

Unnatural offences are of the following types: 1. Homosexuality—Sodomy and Lesbianism. 2. Bestiality. 21.10.1 Homosexuality Intra-sex, sex gratification is known as homosexuality. Homosexuality exists

in all societies and perhaps it always existed. It is more frequent where persons are sex starved. Sailors on sea, students in boarding houses and convicts in confinements (jails) practise homosexuality. Homosexuality is a fairly troublesome social problem. It is wide spread. It is estimated that in USA more than four per cent. males are hard core homosexuals. As stigma is attached to homosexuality, extortioners blackmail

homosexuals. In USA in 1967, Federal Bureau of Investigation broke up a gang of 70 extortioners. Among their victims were some of the top rankers of the society—university professors, generals, politicians, etc. In our country there is a class of people (Hijrahs) who are eunuches—neither male nor female—who practise as male prostitutes. They also steal young boys, castrate them and put them for passive paederasty. Homosexuality is of two varieties: 1. Sodomy. 2. Lesbianism.

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Sex gratification through anal intercourse is called sodomy. It is also called buggery or paederasty. The passive agent may be an adult male, a young boy, an

eunuch or even a female.

Sodomy it does not carried out The police

may be by mutual consent. If it is so and if it is performed in privacy, become a police problem for investigation. If, however, sodomy is by force, or by deceit, or in public places, it becomes a police problem. investigation in such cases follow the rape case pattern. Three types

of evidence has to be collected normally, namely:

1. The oral evidence of the victim and of the culprit. Usually there are no witnesses.

2. Medical evidence from both the culprit and victim. 3. Physical evidence associated with the act and picked up by the partners from the scene of occurrence or exchanged mutually. Sex act through mouth, called fellatio, may also be classed as a form of sodomy. In an unusual case a child of six was brought to the hospital with an injured anus. It was reported that the pet dog in a sudden frenzy climbed over the child and repeatedly introduced his sexual organ in the anus of the child. It was suspected that perhaps some member of the family in a moment of mental aberation might have carried out the act. The family might have concocted the story to protect the member of the family. The dog had allegedly been killed. The swabs taken from the anus revealed the truth: The dog had actually

attacked the child. (CH) The three sources for evidence are the victim (passive partner), the culprit (the active partner) and the scene. The evidence is located, collected and evaluated as in the case of a rape, already discussed.

21.10.1.2 Lesbianism Lesbianism is sexual interaction among the females for sexual gratification. It is also known as tribadism or female homosexuality. It is less common. It does not appear as a police problem. Lesbianism comes to surface only when a male goes in for a divorce from his wife alleging her to be a lesbian. Lesbianism takes many forms. It may be simple fiddling of the body parts especially private parts. It may be an intercourse like attempt with clitoris if it is sufficiently enlarged. Or, it may be an artificial penis, used by one woman to gratify another or for self gratification. In an interesting case two women lived as husband and wife. The ‘husband’ had manly bearings and used an artificial penis. The ‘wife’ could know the fact that ‘he’ was a ‘she’ only after the latter's death. (CH) 21.10.2 Bestiality Sexual intercourse with animals through vagina, anus or any other orifice, usually by a male is called bestiality. This sexual offence is not very common but

it does take place. Usually youths in rural areas and mentally deficient persons

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indulge in these sex acts. The animals reportedly mis-used are goats, cows, buffalos, mares, asses, bitches and even hens. The proof of the act is usually established through eye-witness accounts and through scientific evidence which may be as under: 1. Injury to the culprit or to the animal or to both.

2. Presence of semen or spermatozoa in the orifice or on the coat of the animal. 3. Animal faeces on the male organ, private parts and clothes of the culprit. 4. Animal hair on the person of the culprit. 5. Detection of disease germs if the culprit is suffering from venereal disease, on the animal. 6. Semen or semen smeared objects at the scene. 7. Semen on the clothes of the culprit.

Some women use dogs for sex act.

21.11 MINOR SEXUAL OFFENCES

21.11.1 Exhibitionism Certain persons derive sexual pleasure if they expose their sexual organs to general public or before certain individuals. Some of them may even masturbate in public. All these persons offend public by their indecent behaviour. They, therefore, are liable for punishments for causing public nuisance under section 294 of the Indian Penal Code. The cases are rare in India.

21.11.2 Sadism This is an unfortunate sexual perversion performed mainly by male sexual partner on the female. The mildest form of disease is to carry out the sex act violently and the worst is to murder the partner and then carry out the sex acts. In between the variety of sadistic forms is tremendous. Pinching, biting, beating, flogging, injuring are all its forms. All this ill-treatment gives the sadist sexual satisfaction. Without these the sex urge of the person is not excited. 21.11.3 Voyeurism

A person suffering from voyeurism gets sexual pleasure when he observes the sexual organs of other persons or sex act being performed by others. Some of these perverts are so overcome by the desire to see the act that they tresspass into others premises and thus make them liable for legal action. If they can watch the act from their own residence, no action can be taken against them. In colonial days one bachelor British Deputy Commissioner was so much fascinated by the sexual act of horses that he had given instruction to the veterinary hospital staff to call him when a mare in heat was brought to the hospital for mating. He would observe the mating process. (CH)

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21.11.4 Frottage

In frottage sexual perversion, the pervert derives pleasure in rubbing against certain anatomical parts of females. Usually, he does so in crowded places like while travelling in buses, trains, or in cinema halls, etc. Often he gets away with

the perversion. He is sometimes caught and a lesson is taught to him for the misdemeanour.

21.11.5 Sexual Aberrations Certain sexual aberrations which are more or less harmless to the society as a whole are practised by some individuals. They are: 21.11.5.1 Masochism Masochism is a sexual aberration in which the aberrant wants to be physically maltreated by his sexual partner, beating, biting, crushing, pinching painfully, are some of the physical tortures which the masochist enjoys for sexual satisfaction. Some need even severer treatment. Others may derive sexual satisfaction from the maltreatment alone. 21.11.5.2 Transvestism Transvestism is simulating the other sex in dress, mannerism and in behaviour. Transvestism is quite common in India. The Hijrahs (eunuch) who practise as male prostitutes wear female dress. They simulate female physical features such as wearing long hairs, putting on artificial breast balls, etc. They use cosmetics to appear as females. There is no law against the same in India.

Female Transvestism is becoming popular. Modern trend of wearing short hairs and putting on shirt and trousers by girls, is a form of female transvestism. 21.11.5.3 Fetichism Fetichism is a sexual aberration in which the aberrant derives sexual pleasure from an article of wearing apparel, female ornament or even female shoes. The aberration is inoffensive most of the time but sometimes the person starts stealing these articles. He thus becomes a criminal.

21.12 ABORTION Abortion is expulsion of products of conception prematurely. It may contain only the fertilized ovum or developing child of any womb age. Sometimes the term abortion is limited to the womb age of conception of three months or more. The terms ‘miscarriage’ and ‘premature births’ are used to indicate un-induced expulsions of foetus which takes place during third to sixth month of pregnancy and sixth to ninth months of pregnancy respectively. For our purpose no such distinction is made. Abortion may be: 1. Accidental 2. Spontaneous. 3. Induced.

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Accidental abortions are due to some accident the subject may suffer. Fall,

extreme grief or emotional disturbance may lead to abortion. The spontaneous abortions are those which are caused by male functioning of the body itself.

The induced abortions are those which are caused by human effort. The latter are classified as: a.

Medical

b. Criminal.

Medical abortions are those which are necessitated by medical considerations for the benefit of the mother. Criminal abortions are those which are carried out to terminate unwanted pregnancies. Unwanted pregnancies are not rare among unmarried girls, widows, victims of rape, professional prostitutes and in some cases among married couples whose family size has become too large to permit more additions. Formerly the unwanted pregnancies were terminated illegally.

In recent years the law in India has been modified so much that practically any female can get the unwanted pregnancy terminated confidentially in any government approved hospital. Thus, criminal abortions which were a serious problem of substantial proportions prior to these laws, has contracted considerably. Now abortions attract police actions only when the act is performed by a quack under improper conditions. The female may die in the

process. Under Medical Termination of Pregnancy Act 1971, a medical practitioner can terminate pregnancy if in his opinion, formed in good faith: 1. The continuance of the pregnancy would involve a risk to the life of the pregnant woman or ofgrave injury to her physical or mental health. [section (3 (2) (i).] 2. “There is substantial risk that ifthe child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. [section 3(2) (i1).] Explanation I.—Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. Explanation II.—Where any pregnancy occurs as a result offailure of any device or method used by the married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

21.12.1 Methods of Abortion In government approved hospitals abortions are carried out under proper medical care and under hygienic conditions. Usually currettage and suction are employed after the subject has been properly prepared. Very few deaths occur in the process. For example, in England and Wales in 1972, 157,000 legal abortions were done, only 10 deaths occurred.

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Quacks employ a variety of methods which often prove torturous and sometimes fatal to the subject. The common methods are: 1. Violence.

2. Drugs. 3. Womb interference.

21.12.1.1 Violence Vigorous massage, exercise, beating, falling, jumping are sometimes employed. They are mostly ineffective. But at times beating and fall, intended to cause abortions, have actually caused deaths.

21.12.1.2 Drugs

A variety of drugs is employed to secure abortions. 1. They may be purgatives (e.g., castor oil). Purgatives upset the stomach. It is believed they may also upset the womb. Usually they do not. 2. They may be drugs which promote menstrual flow, (e.g. essential oils, ergot, etc.) they are poisonous and sometimes cause deaths. Use of hormones for the purpose may prove safer though absolute efficacy is yet to be proved. 3. There are drugs which cause contraction of the uterus. For example, quinine and ergot have been used for the purpose but with doubtful utility.

21.12.1.3 Womb interference Womb interference is infallible method. It is the ultimate resort of the criminal

abortionist. It takes the following important forms: 1. Injection of fluids. 2. Instrumental interference.

3. Electrical interference.

Fluid injected in the uterus are hot water, soap solution, corrosive lysol solutions. They cause irritation and may result in abortion. Similar is the action of certain pastes like arsenious oxide, red lead, asafoetida (Hing) or even of

madar juice.

lnstruments used by quacks vary tremendously. Nails, knitting needles, bamboo sticks, twigs of certain plants, hair pins, glass rods, catheter have been used. Usually the intention is to cause rupture of membrane containing the ovum or foetus. Local irritation is used to induce abortion. Sometimes the instrument is smeared with certain juices or pastes which cause irritation. Electrical interference is a novel way which leave no traces practically unless electrical burns are created. Negative pole is applied to the vaginal cervix and the positive pole is applied to sacrum or lumbarvertebra. A suitable voltage is applied. Uterus contracts and expel its contents.

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Fig. XXI-16 Criminal abortion. Autopsy revealed perforated womb—Mechanical interference.

21.12.2 Cause of Death The following are the causes of death in an abortion:

21.12.2.1 Shock The subject gets shock due to extreme fright or from reflex vagal inhibition and dies within seconds of the processing of the abortion. 21.12.2.2 Air embolism Air may enter into the blood stream through the fluid injected into the uterus. The air bubbles block blood flow and cause death. 21.12.2.3 Haemorrhage Injury to uterus or vagina may cause excessive bleeding which may result in death. 21.12.2.4 Toxic effects of drugs Certain drugs especially metallic poisons cause toxicity which proves fatal in

some Cases. 21.12.2.5 Complications

Complications may develop—acute infection, septicemia, peritonitis, etc. and cause death. 21.12.3 Investigator’s Role Due to liberalisation of abortion laws, the number of clinical abortions has

come down considerably. Now only those cases come to the police where the subject is dying or has died because of an abortion has been attempted by an

y

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incompetent person negligently. As in the cases of rape, the evidence is of three types: 1. Oral evidence.

2. Medical evidence.

3. Physical evidence. 21.12.3.1 Oral evidence

i Get the statement of the subject ascertaining: The person who performed the abortion. The persons who took her to the doctor. . . . . g.

The The The The The

place where the abortion was done. details of the process. time and date when abortion was done. foetal age. fee charged by the abortionist.

2. The statement of the abortionist.

a Statements of the members of the family. In case the abortion has caused death, the relevant informal and additional information about the death has to be collected from relatives and friends. The

following questions may provide the guidelines: k When did the victim die? 2. When was the abortion done? 3. Who was the abortionist? Re. : How old was the pregnancy?

5. What method, instrument, chemicals were employed for abortion? Only abortionist or the witness present at the scene can answer these questions. 21.12.3.2 Medical evidence Ascertain from the attending doctor the following facts: : If the woman was really pregnant. . If she had aborted. . The approximate foetal age. . Time elapsed since abortion. . Method of abortion. fF oO nN NY W . Injuries caused to the subject including inflammation bruises, scratches, perforations, if any, their size, age, character, position . Any foreign material present in vagina or uterus; fluid, chemicals, plant material, device or its fragments. . Symptoms of any drugs administered orally, locally or by injections.

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In cases of death a full autopsy must be performed by a competent medicolegal expert. The expert in addition to the above, must inform: l. If there is any residual material of conception in the womb. 2. If there are any injuries to the womb, vagina or surrounding parts inside. 3. Signs and symptoms of poisoning if any. 4. Immediate cause of death. 21.12.3.3 Physical evidence

Physical evidence plays an important role in establishing abortion. Collect the following:

1. All vaginal washes or swabs with the help of the doctor. 2. Correct toxicological material for possible evidence of drugs used to facilitate abortion in cases of death. 3. Residual drugs with the victim or at the scene of abortion. 4. Clothes of the subject. 5. Expelled material, if available. . Instruments of abortion including syringe and contents of the syringe. . Any leftover fluids used for facilitating the abortion.

21.13 INFANTICIDE Infanticide means killing of an infant, a child less than one year old, by acts of omission or commission. Law does not make any distinction between murder and infanticide in India. The problems of infanticide are peculiar and therefore, need separate treatment. In fact there is a definite need for separate infanticide laws. Infanticide was a closely connected crime to abortions for hiding conception and child birth from sexual intercourses outside wedlock where the child was unwanted. With the liberalisation of abortion laws this necessity for infanticide has decreased tremendously. Now infanticide may occur due to ignorance of abortion laws, tantric sacrifice or for economic gains where heir apparent for property is removed by relatives or the infant is killed for revenge. 21.13.1 Murder An infant may be killed by acts of commission or omission: Among the acts of omission are: 1. Omission to tie the knot of the umbilical cord after it has been cut. 2. Omission to take out the infant from the mother’s discharges. 3. Omission to protect the infant from the natural elements, heat, cold, rain, wind or from hunger. The child is abandoned at some secluded place. Wilful killing of the infant is done in the following ways: 1. The nose and mouth of the infant is closed. The infant gets suffocated and dies.

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2. The neck of the infant is strangulated. 3. The infant is battered by causing head injuries. Sometimes the injury is simulated to show it as an accidental fall. 4. The neck is twisted. 5. Heart, lungs, liver or head is punctured by needling. 6. The infant is poisoned. Usually opium is administered.

21.13.2 Accidental Death Accidental deaths of the infant can also take place at the time of birth. The following are common accidents: 1. When mother dies, usually the child in “oe womb also dies. Only in rare cases it can be saved. 2. Prolonged labour may compress the infant and it may die in the process. 3. Precipitated (sudden) labour may kill the infant due to fall or drowning in the commode. 4. The umbilical cord may get entangled and strangulate the infant in some cases. 5. Some times the infants head is covered with a membrane. It may suffocate the child. 21.13.3 Congenital defects

In addition to the above, an infant may not survive due to other causes such as immaturity of the infant, disease, haemorrage or Rh incompatibility. It is unnecessary to go into their details. 21.13.4 Investigator’s Role

Investigation of infanticide cases is a delicate task. He must perform the same with tact. The investigator gets three types of evidence: 1. Physical evidence. _2.—Medical evidence.

3. Oral evidence.

21.13.4.1 Physical evidence

The investigator must locate and collect the following: 1. Corpus delicti, i.e., the infant’s body or its remnants. 2. Evidence relating to recent delivery. 3. Clothes of the mother. 4. Clothes used at the time of delivery. 5. Instrument used in killing the infant, if any.

21.13.4.2 Medical evidence The medical evidence is the most important evidence in cases of infanticide.

As the charge of infanticide is a very serious charge, the doctor must confirm that:

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. An infant was born. . The birth took place recently. — WON . The

4. The

infant was not still-born. infant

was

viable

and

did not suffer

from

congenital defects.

fatal diseases

or

5. The infant did not die of natural causes. 6. The real cause of death was homicidal.

7. The injuries on the person of the infant are not birth injuries and could not be caused due to the accidents alleged by the mother. 8. Age of the infant. In addition, medical examination of the suspect mother should reveal: 1. That the mother has delivered a child.

2. The time elasped since delivery. 3. That the delivery was normal. 4 . That the woman was normal and did not suffer from defects which could cause death of the infant.

21.13.4.3 Oral evidence The investigator must record the statements of the following: 1. The mother and the involved relatives.

2. The doctors or persons who helped the mother at the time of delivery and later attended upon her.

3. The persons who were possibly involved in the infanticide or in the disposal of the body. 4. Chance witnesses who witnessed delivery, infanticidal process, disposal of the body and other events. Often neighbours give valuable clues. 21.14 CASE LAW 21.14.1 Corpus Delicti

The next question which in the context of these discoveries arises is whether in the circumstances of this case Kanhiya can be held guilty for murder of Mst. Dhooli and her son Shyoji? The investigating agency could not discover the corpus delicti nor is there any evidence on the record to show that both Mst. Dhooli and her son Shyoji died between 6th and 9th March, 1972. The prosecution did not take care to bring on record any fact that the bones and pieces of clothes seized near the river either belonged to or could be that of Mst. Dhooli and her son Shyoji. In the absence of any material on record it is difficult to hold that Mst. Dhooli and Shyoji have died. In the view of the matter the charge under section 302, Indian Penal Code for committing murder of

Mst. Dhooli and Shyoji cannot be sustained.' 1. Kanhiya v. State of Rajasthan, 1976 Cri LJ 1652 (HC).

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21.14.2 Oral v. Medical Evidence The wounds and injuries found on the body of the deceased according to the medical evidence were:— 1. Incised circular wound all around the neck separating the head from the body.

2. Incised wound from the lower end of sternum to the upper margin of bladder 10" x 6" and abdominal organs such as stomach, intestines, and liver

were protruding out of the wound. 3. Incised circular wound over the lower end of the right arm, separating the right elbow joint which was absent. 4. Incised wound on the right side of the head 3" x 12" bone deep which was oblique. 5. Incised wound on the left cheek extending left pinna of the ear downwards to the left jaw 6" x 1" bone deep. The learned Sessions Judge has mentioned in his judgment that the head alleged to be recovered from the well exactly corresponded to the incised circular wound of the neck. I am told that these wounds were caused and truncation effected with the aid of an axe and three inches long knife. In Mohinder Singh v. State, AIR 1953 SC 415 (N), it has been held that in a case where the death is due to the injuries or wounds caused by a lethal weapon, it is always the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which they are alleged to have been caused. It is no doubt true that the medical evidence is that such wounds could be caused by axe and knife. But it is unfortunate that no question has been put to the expert as to whether the weapon exhibited in the case as material object could cause the wounds as found on the body of the deceased. With the elimination of Rabhaji by reason of his acquittal one is left with a weapon which has been described by the prosecution as “Ek lokhandi chaku jyache pate teen inch lamba and tayawar raktache dage ahet”, which has been rendered into

English as: one iron knife whose blade is three inches long on which there are stains of blood. I am not prepared to believe that a clean and flawless truncation could be effected as shown at (1) and the chopping off as shown at (3) could be

effected with the knife alleged to have been recovered from the appellant.! 21.14.3 Stomach Contents v. Eyewitness Version

There is another aspect of the medical evidence which, though, not as important as the two aspects mentioned above, may also be referred to. The case of the prosecution is that Ram Sanehi had gone to his Kharbuza field with his son and daughter for eating Kharbuzas. There is evidence that they did eat Kharbuzas and almost immediately thereafter they started back for home. Within less than 5 minutes, Ram Sanehi met with his death near the culvert. The post-

|. Bhagoli v. State of Hyderabad, 1954 Cri LJ 1378. Also see Dhanna v. State of Rajasthan, AIR 1951 Raj 37; Abdul Salam v. State of Jammu and Kashmir, 1953 Cri LJ 1865; Thakur v. State of Uttar Pradesh, 1955 Cri LJ 473 (All).

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mortem report shows that Ram Saheni’s stomach was empty which means that the evidence that he had eaten Kharbuzas just a little time before his death is untrue. Bal Kishore tried to wriggle out of this situation by saying that Ram Sanehi had eaten just a small slice of Kharbuza. But even then, Dr. Pandiya has stated that if the entire slice of Kharbuza was eaten by Ram Sanehi, its remains would be found in the stomach provided there was no vomiting after the gunshot injuries. Since Ram Sanehi had not vomited, his large intestines could not

have been found to be empty if the story of his children was true.! 21.14.4 Delayed Death

The only question then is whether the accused is guilty of murder; in other words, whether it was the injury inflicted by him that was the cause of the death, and whether he had the requisite mens rea. The second part of the question can readily be answered in the affirmative. The accused goes at dead of night to the house of his wife who has left him, and then after locating her with the aid of his torch light, deliberately stabs her in the middle of the back with such force as to penetrate the spinal cavity and cause damage to the cord. The intention could only have been to kill.

On the second question, the comparatively long interval of seven months between the injury and the death might at first sight induce an element of doubt as to whether their relation as cause and effect is not too remote. For, after all causing of death by injury is but the hastening of an inevitable event, and, when that event is so long delayed, the mind is tempted to ask whether the cause of the death is not really to be found in something other than the injury. This is doubtless the basis of the rough and ready rule of the English common law (so rough and ready that it has not found acceptance in Scotland) that a death which occurs more than a year from the date when the injury was inflicted must be attributed to causes other than the injury and cannot form the basis of a charge of manslaughter or murder. In the present case however we are satisfied that there is no room for any doubt that both factually and legally the injury was the cause of death. And, although the English rule has no application, we might observe that the death in this case is within the time laid down by that rule. P.W. 9 has said that the injury had affected the spinal cord, and it is apparent both from the post-mortem findings and from the fact that complete paralysis of both the lower extremities was the immediate result of the injury, that the stab given by the accused had pierced the spine between the 6th and 7th vertebrae and cut the spinal cord. As P.W. 9’s evidence stands, it would appear that the several sequelae described by her are so directly connected with each other as cause and effect as to make the death attributable to the injury. There is no indication of any unexpected intervention, and as observed by Mayne at p. 469 of his Criminal Law of India, 4th Edn. “any act is said to cause death within the meaning of section 299, when the death results either from the act itself or from some consequences necessarily or naturally flowing from that 1. Subhash v. State of Uttar Pradesh, 1976 Cri LJ 1521 (SC).

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act, and reasonably contemplated as its result”. Where without the intervention of any considerable change of circumstances the death is connected with the act of violence by a chain of causes and effects, the death must be regarded as a proximate and not too remote a consequence of the act of violence. In discussing death from injury we find the following observations at p. 238 of Vol. I of Taylor’s Medical Jurisprudence (11th Edn.) under

the heading,

“Wounds indirectly fatal”: Certain kinds of injuries are not immediately followed by serious consequences; but an injured person may die after a long or shorter period, and his death may be as much a consequence of the injury as if it had taken place on the spot. An aggressor is as responsible as if the deceased had been directly killed by his violence provided the fatal result can be traced to the probable consequences of the

injury.

|

This we consider to be a correct statement of the law. And with particular reference to the injury in this case we might refer to the statement at p. 239 of the same book that wounds of the head and spine are particularly liable to cause death insidiously and that in injuries affecting the spinal cord or column, death is not an immediate consequence, unless the wound is above the origin of the phrenic nerves and that injuries affecting the lower portion of the spinal column do not commonly prove fatal for several months, death ensuing later from septic cystitis, bed-sores and toxaemia. Although for the purposes of this classification, Taylor has called such wounds indirectly fatal, in law it does not

matter that death is from a secondary cause so long as that secondary cause is a natural consequence of the injury. In his Medical Jurisprudence (11th Edn., page 260) Modi states as follows: When the dorsal (thoracic) vertebrae are injured, the patient becomes bedridden on account of paralysis of the lower limbs. He also suffers from paralysis of the bladder and rectum, and is always in danger of getting bed-sores and septic infection of the bladder and kidneys, which generally hasten death. Thus, death may occur after two or three weeks, ifthe upper dorsal vertebrae have been injured; while life may be prolonged for years with partial paralysis of the limbs, if the lower dorsal or the lumbar vertebrae have been fractured. In Price’s Medicine it is observed (at page 1542 of the 9th Edition) with reference to injuries of the spinal cord that with lesions at lower levels death is liable to take place within a few weeks or months from bed-sores or infection of the urinary tract. It would thus appear that paralysis of the lower limbs and of the bladder followed by cystitis and bed-sores and, in turn, by death are natural consequences of an injury to the spinal cord at its lower levels. And in this connection we notice that the post-mortem certificate, Ext. p. 10, speaks of three large ulcers on the body. These are obviously bed-sores, and so it would appear that the after-effects in this case were just those which, according to the text books cause as a result of an injury to the spinal cord in the thoracic region. Death from cystitis and bed-sores is the direct result of paralysis caused by the injury and it would appear that there are not so many links in the chain of causation as the medical evidence by its reference to syncope, asthenia and trophic changes would suggest.

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The murder was a cruel and deliberate murder and the fact that death was

not as immediate as was probably intended but was after months of suffering is no extenuation.!

21.14.5 Diminished Responsibility There were however, only two injuries on the body of the deceased and these injuries were not grievous. The medical evidence was to the effect that these injuries could not have ordinarily produced death. If the injuries can be called only the remote cause of death, and death of the deceased is not proximately

connected with the act of violence, the appellants cannot be held responsible for causing death, and cannot be credited with the knowledge that such bodily injuries as the deceased sustained were likely to cause his death. It follows that the appellants cannot be convicted for an offence of culpable homicide not amounting to murder. I am, therefore of opinion that the conviction of the appellants must be altered to one under section 323, Penal Code from that under

section 304, Penal Code.” 21.14.6 Post-mortem

21.14.6.1 Necessity But whether it was the injury caused by the passing of the bullet through the

body of Ladha which caused his death, is more than we can find. The bullet for aught we know, may not have touched any vital organ of his. Cases have not been wanting in which death has occurred not so much as a result of the injury caused as by the resultant shock. In the absence of medical evidence it is not safe to say that the death of Ladha was due to gunshot. In these circumstances the offence made out against the accused is not under section 302, Ranbir Penal Code. We have given our anxious thought to this aspect of the case. We think that section 326, Ranbir Penal Code is the appropriate section under which the

accused should be convicted.? 21.14.6.2 Ante-mortem injuries? It might have been possible to draw that conclusion in an indirect manner if there were convincing evidence on the record on the second point, namely, that

it was an ante-mortem injury which caused the child’s death. As already stated, the post-mortem report is totally silent as to whether the doctor adopted any method for arriving at this important conclusion. In his cross-examination he admitted that the following six signs establish an ante-mortem injury: (1) haemorrhage,

more

or less copious and generally arterial, (2) marks of

sprouting of blood from arteries, (3) clotted blood, (4) deep staining of the edges and cellular tissues, which is not removed by washing, (5) the edges gap owing to the reaction of the skin and muscle fibres and (6) inflammation and reparative

processes. He admitted that, except for sign No. (3) the remaining five signs D. Yohannan v. State of Kerala, 1958 Cri LJ 1021. 2. Kanhaiyalal Sewaram v. State of Madhya Bharat, 1954 Cri LJ 6. Also see Chinaihambi (in re:), 1953 Cri L] 449 (Mad). 3. Isher Dass v. State of Jammu and Kashmir, 1954 Cri LJ 505. 1.

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were absent in the present case. In other words, there were only 17 per cent. chances of the injury in question having been caused ante-mortem, while there was 83 per cent. chances of its having been caused post-mortem. The medical evidence being thus so overwhelmingly in support of the injury being a postmortem

one, it “would

be most unsafe to draw

any conclusion

from mere

conjectures. One such conjecture would be that the appellant would not cause such an injury to the child if it were dead. The learned counsel for the appellant stated that she had given a plausible explanation for that in her confession. For reason already recorded, the confession cannot be looked into, but the explanation can certainly be considered even though it emanates from the appellant’s counsel. The explanation given was that the appellant had been

advised by her paramour to cut the child because in that way the decomposition would be accelerated. It is immaterial whether any such suggestion had in fact been made to the appellant, or whether it would have worked, it is, however, not

beyond the bounds of possibility that the cut may have been inflicted on the infant on the said supposition. It is also possible that the head may have been severed from the body in order to bury the two separately as a safeguard against detection. It is noteworthy that there is no evidence that the body and the head had been buried at-one and the same place. When they were discovered they were found at a few feet one from the other. The mere fact, therefore that the head

of the child had been severed from the body with some sharp weapon did not lead necessarily to the conclusion that the severance was caused by the

infliction of an ante-mortem injury.’ 21.14.6.3 Putrefaction The accused has appealed from jail. The perusal of the record shows that the legality of conviction under section 304 (II) is open to question. The body of the deceased was in a decomposed state, at the time of the post-mortem examination. The medical witness could not give any definite opinion as to the cause of death though he expressed the opinion that most probably death was due to the rupture of the spleen. Rupture, he thought, could be caused by striking with a piece of wood or even by a fall particularly if the spleen is enlarged. So advanced was the stage of decomposition that no external injury could be seen. The opinion that death was in all probability due to the rupture of the spleen particularly if it was enlarged is more in the nature of a hazardous guess than anything else. The fact, therefore, remains that the cause of death could not be found. In these circumstances conviction under section 304 (II) would not be

legal. If injuries caused by the accused are not shown to have caused death, the cause would not be covered by section 304 (II). It would be equally difficult to place it under section 325, Penal Code as the nature of the injuries is not proved. The accused admits beating. A conviction under section 323, Penal Code is all

that is possible in these circumstances.” 1.

Vidyamati v. State of Himachal Pradesh, 1953 Cri LJ 33.

2. Lianthlira v. State of Assam, 1952 Cri LJ 1272.

an

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21.14.6.4 Drowning

Though the boy was last seen in the morning of 15-11-54, and died according to the prosecution

case,

Biopartiguda P.S. in the occurrence. The body was being shown the place by mortem examination was

on

that

day, the F.ILR.

(E.T. 3) was

lodged

at

midnight of 21-11-54 six days after the alleged removed by the investigating officer (P.W. 17), after the appellant at about 3 A.M. on 22-11-54. The postheld by the medical officer (P.W. 7) at 1 P.M. on

22-11-54, that is, a week after the alleged occurrence.

He found one incised

wound at the lower part of the right ear which had cut the internal carotid artery and its neighbouring muscles. There was another incised wound at the right side of the neck lower to the first injury. The post-mortem report (Ext. 2) also discloses a sign of ecchymosis at the upper laryngeal part and the body of the hyoid bone as found to be grooved as an effect of some external violent pressure by some fingers. There were also four small simple injuries, one incised wound on the lower part of the chin, a lacerated wound at the distal part of the left tibia, an incised wound at the right iliac region, and a patch of ecchymosis at the left side of the forehead. According to the medical officer (P.W. 7), death

was due to shock, haemorrhage and asphyxia. The post-mortem report also discloses that the body was moderately built but swollen, decomposition set in, the cuticle had peeled off, rigor mortis was present, eyes were closed, the tongue was protruded, dried mud was present on hands, legs and hair, and hands and

feet were wrinkled and bleached. Brain substance was decomposed. Decomposition commenced in the right and the left lungs. The heart was empty and the stomach was empty. But curiously enough Ext. 2 does not contain the opinion of the medical officer whether the injuries found on the body were antemortem or post-mortem. One would naturally expect, as it is the object of the post-mortem examination, that the essential thing to be noted in the postmortem report is whether the injuries are ante-mortem or post-mortem. After the post-mortem report was received by the police the medical officer was again asked to state whether the injuries were ante-mortem or post-mortem and then it was stated by the medical officer that the injuries except one or two were antemortem. P.W. 7 in his evidence stated that all the seven external injuries were ante-mortem in nature. But, in cross-examination, he admitted that he had not

mentioned so in his post-mortem report and when the police sent a requisition to him on 26-11-54 he opined that except injury Nos. 4 and 6 others were antemortem in nature and that he based his conclusion on the post-mortem report. Injury No. 4 is a lacerated wound at the distal part of the left tibia and injury No. 6 is a patch of ecchymosis at the left side of the forehead. He also stated that rigour mortis starts after two hours of the death and continues for over seven hours and sometimes it lasts for 2 or 3 days; and that it again starts and vanishes when body starts decomposing. He also stated that on the region of injury No. 7, a sign of ecchymosis at the upper laryngeal part, he did not find any finger impression. On this evidence of the medical officer and Ext. 2 (the

post-mortem report) as also the inquest report (Ext. 4) the learned Sessions Judge

came to the conclusion that the injuries were ante-mortem. The learned counsel

for the appellant contends that the learned Sessions Judge had not given due

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weight to the non-mention of that fact by the medical officer in the post-mortem report which was, in the usual course of things, his first duty to state and also that the injuries present can be post-mortem injuries as the dead body was decomposed. In support of his contention he relies upon a passage in Modi’s Medical Jurisprudence and Toxicology, 12th Edition, at page 133: Owing to the formation of these gases under the skin blisters containing a reddish coloured fluid form on the various parts of the body. When these burst, the cuticle being softened peels off easily. Bruises and abrasions may become unrecognizable when the cuticle is denuded. Wounds, whether caused before or after death, begin to bleed once more owing to the pressure of gas within the heart and blood vessels, wounds also become so altered in appearance that it may be difficult to form an opinion as to whether they were caused before or after death, unless the presence of the clotted blood can be distinctly made-out. At page 137, it is stated: The rate of putrefaction of a body in water is more reliable than that of a body exposed to the air or interned, as the temperature of the water is more uniform, and

the body is protected from the air, as long as it remains sub-merged in water... Putrefaction is accelerated when once a body has been removed from water, as the tissues have imbibed much fluid. In such a body decomposition is so rapid, that the changes occurring in twenty-four hours exposure to the air will be more marked than those ordinarily resulting from a fortnight’s further submersion.

No doubt, in the case of death by drowning, asphyxia is a common cause in the majority of cases, as water getting into the lungs gets churned up with air and mucus, and produces a fine froth which blocks the air vesicles. It is also stated by Modi at page. 170. Occasionally, death may occur from asphyxia caused by laryngeal spasm set up by a small amount of water entering the larynx. In such a case water does not enter the lungs and the signs of drowning will be absent. He also states at the same page that shock is brought about by fright or terror, or it may be caused during a fall, the water striking against the chest and pit of the stomach; and that if water is very cold, it may induce shock through the recurrent laryngeal or trigeminal nerves, which reflexively inhibit the action of the heart and lungs and death may also be caused by syncope which may occur in persons suffering from epilepsy by falling suddenly into cold water. Modi also says at page 175: On the other hand, water may not be present in the stomach, if the person died from syncope or shock, or became unconscious immediately after falling into water, so that he could not struggle and swallow water in the act of drowning. There will also be no water in the stomach, ifit is present in the stomach, is forced out by the pressure of the gases of decomposition. Taylor in his Principles and Practice of Medical Jurisprudence, Volume, 1, 10th Edition, at page 554, under the heading ‘Was drowning the result of accident, suicide or homicide.” says: | A person may be suffocated, or may die from epilepsy, apoplexy, or from a sudden attack of any other fatal disease which may or may not be indicated by well

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marked appearances after death; the body is thrown into or falls into water, and remains there a few days. When taken out, water may be found in the lungs, but there may be none in the stomach; there may be no mucus froth in the windpipe, and the lungs may be more or less congested. In the case of a suffocated body without marks of external violence, it would be impossible to determine whether death has actually taken place within the water or not, since persons may die in water or at the moment of immersion, in circumstances in which the appearances of drowning would be either obscure or entirely wanting. There ts no reason why an adult should not be standing close to the water and fall in when taken with a fatal attack of disease.

Thus from the evidence of the medical officer and the post-mortem report, it cannot be said beyond the possibility of all reasonable doubt that the body of the deceased was thrown into the stream after he was killed. The learned Sessions Judge held that the injuries found on the deceased were ante-mortem. He relied upon the medical evidence as also the recovery of the knife (M.O. III) from the house of the appellant’s father at Mundiguda to arrive at this conclusion. M.O. III is the knife used for cutting vegetable and identified by P.Ws. 1 and 2 as theirs. It is quite likely that the accused might have had the knife with her at the time of taking the boy to his grand-father’s house. He also relied upon the inquest report (Ext. 4) showing that the persons present there noticed three big stabbing wounds respectively at the lower part of the right ear, at the right side of the neck and the lower part of the chin. According to that report, nine persons who attested were of opinion that death was caused by some sharp instrument and the evidence of P. Ws. 9, 11 and 12 was also relied upon to the effect that the

dead body disclosed marks of stabbing wounds. The learned Sessions Judge, in my opinion, erred in relying on the statements of nine persons who attested the inquest report that death was caused by some sharp instrument. He also erred in relying upon the inquest report (Ext. 4) in coming to the conclusion that body disclosed marks of stabbing wounds. The evidence of P.W. 9 no doubt should be remembered that he admitted having searched for the body in Tenda Khunto Munda prior to this day. P.W. 11 is the separated younger brother of Prusottam (P.W. 1) and he did not state in his evidence before the learned Sessions Judge

that the dead body which was recovered from underneath the water, bore any stab marks though he categorically admitted in his evidence that he was present when the dead body was recovered. The learned Sessions Judge evidently committed an error of record in relying upon the evidence of P.W. 11 that the dead body bore the injuries at the time of its being recovered. P.W. 12 was not examined by the prosecution but was only tendered for cross-examination. He ~ stated that he was present when the dead body was recovered but did not say anything about the existence of the injuries on the dead body at the time when it was recovered. In relying upon his evidence also the learned Sessions Judge evidently committed an error of record. Practically the learned Sessions Judge seems to have relied upon the statements contained in the inquest report to arrive at this conclusion. They are not substantive evidence and ought not to have been relied upon by the learned Sessions Judge. On a consideration of the post-mortem report and the evidence of the medical officer especially in view of

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the fact that it was not noted in the first instance in the post-mortem report that the injuries found on the body are ante-mortem coupled with the statement of Modi in his book on Medical Jurisprudence that after putrefaction sets in it is difficult to say from the injuries whether they are ante-mortem or post-mortem. I am of opinion that it cannot be definitely established in this case that the injuries are ante-mortem.! 21.14.7 Identity of the Dead—Skull Super-Imposition 1. The next question is, was it the corpse of Bai Dhanu?

We have already

discussed the evidence so far as the identity of the corpse is concerned. The corpse was identified to be of Bai Dhanu from the four red plastic bangles and the hair-pin found on the corpse by P.W. 3 Suman Bhaga. From the length of the hair and the find of the hair-pin it could be reasonably inferred that the corpse was of a female. The evidence of P.W. 2 Dr. Barot shows that the bones of the skeleton were packed and sealed in a wooden box and were handed over to the Investigation Officer for the purpose of obtaining the opinion of the Forensic Expert. The forwarding letter, Exhibit 61 shows that the said sealed box was sent to the Director, Central Forensic Science Laboratory, Calcutta, for examination and report. The report received from the Forensic Laboratory is at Exh. 62. Exhs. 64 to 66 is the correspondence on the subject. Now the report of the Forensic expert shows that the hair on the skeleton were identified to be of a human being probably derived from a female. From the hair it was not possible to ascertain the age of the victim. However, on the examination of the bones it was ascertained that they belonged to a female. So far as the question of age is concerned, according to the opinion of the Expert the deceased was of the age group of 20 to 26 years. If we turn to the statement of the appellant recorded under section 313 of the Code of Criminal Procedure, we find his age to be 22

years. His wife must, therefore, be around 20 years of age. As we have pointed out earlier, the enlarged photograph of Bai Dhanu was also forwarded to the Forensic Expert. By his report dated 19th Feb., 1979, which is part of Exh. 62 on the basis of the ratios derived from the measurements of the distance between various anatomical land marks on the photograph of the skull with mandible as well as on the photograph of the face of Dhanu, the Expert opined that there was a striking correspondence between the mandible and the photograph of the face of Bai Dhanu. The details of these measurements are also found in the said report. From the above evidence two things become abundantly clear, namely: (i) the skeleton was of a female above 20 years but under 26 years of age and (ii) the measurements of the skull with the mandible of the skeleton when superimposed on the photograph of the face of Dhanu showed a striking correspondence between the two. It was, however, vehemently argued by Mr. Padia, the learned advocate for

the accused, that these findings Bai Dhanu but a conviction for Mr. Mehta on the other hand skeleton was of a female about

would raise a suspicion that the skeleton was of murder could not be based on a mere suspicion. contended that once the court finds that the 20 years of age and under 26 years of age from

1. Adi Bhumiant v, State of Orissa, 1957 Cri LJ 1152.

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the opinion of the Forensic Expert, the court should have no hesitation in concluding that the skeleton was of Bai Dhanu in view of the find of four bangles and a hair-pin on the corpse, which according to the evidence of the prosecution witnesses, Bai Dhanu usually wore. Mr. Mehta further submitted that in addition to this evidence the conduct of the appellant must also be borne in mind by the court. The prosecution allegation is that the relations between Bai Dhanu and the appellant were strained because the appellant was keen to get rid of Dhanu as he wanted to marry Manjula. Bai Dhanu was last seen with the appellant in the hutment on the night of 11th Dec., 1978 when they retired to bed. Next morning she was found missing and the appellant trotted out an explanation that she had eloped with some Bhaija. However, the subsequent conduct of the appellant in getting engaged to Manjula post-haste betrays knowledge on his part that Dhanu was no more in this world. Even though foul smell was emitting from his Navania he remained totally inactive and did not try to ascertain the reason for the foul smell. That also shows that he was aware that the decomposed body of his unfortunate wife was giving out the foul smell. In addition, the evidence discloses that he pledged the silver ornaments through Chhotu Uka soon after the disappearance of Bai Dhanu. The appellant had not given any report to the police at the point of time that his wife was missing. He also offers no explanation regarding the find of the corpse from his Navania. In fact, he goes to the length of disputing his marriage with Dhanu. From all these facts Mr. Mehta submitted that it was safe to infer that the corpse found from his Navania was of Dhanu and none else. We have already dealt with each and every circumstance on which the prosecution relies. We have come to the conclusion that all the circumstances which were mentioned by Mr. Mehta in the course of his submissions have been established beyond reasonable doubt by the prosecution. The only question which now remains to be considered is whether the corpse found from the Navania of the appellant was of his wife,

Dhanu.! Lastly on the question of identity of the dead bodies we come to the expert’s evidence. P.W. 35 is Dr. J.K. Barua. He was Director of Forensic Science Laboratory, Assam in 1970. He is an M.Sc. in Chemistry, Ph.D. in Bio-Chemistry and has a law degree. He had undertaken 3 year’s training course in Bio-Chemistry in the National Orthopaedic Institute of London and obtained Ph.D. there. Before becoming Director he was Bio-Chemist in the Pasteur Institute of Shillong. Forensic Laboratory in Assam was established on 2nd April, 1969 and it started

functioning in July, 1970. He came to Dhubri on 14th August, 1970 and examined four skeletons remains at morgue of Dhubri. P.W. 35 deposed that the skeletons appeared to him to be of female at the first impression (the witness deposed from a Register). P.W. 35 then looked into the sternum which were found to be of female origin as manubrium portion of the sternum was more than the half of length the entire sternum. He also observed that the pelvic bone cavity was of ovoid structure and the sacrum of the vertebral column was wider 1. Kantu Chhagan v. State of Gujarat, 1982 Cri LJ 1113.

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in shape and coccyx pendulas. In one body there was union of manubrium with the rest of the sternum body i.e., the entire sternum had fused into one. He also found four braids of long hairs near each skull of four bodies. From the examination P.W. 35 came to the conclusion that all the bodies were females. P.W. 35 with the help of his assistants and hospital sweepers cleaned the skulls and also some long bones from each of the dead bodies and packed them and put them in separate packets marking the packets as A, B, C and D. Thereafter they cleaned the skulls and bones in laboratory and examined the humerus bones for ascertaining the height of each of the dead bodies. From his examination we find that the dead body, the bones of which are in packet ‘A’ was 153.56 cm., in height, the dead body, the bones of which are in packet ‘B’ was 157.426 cm., the dead body, the bones of which are in packet ‘C’ was 150.37 cm. and the dead body, the bones of which are in packet ‘D’ was 156.75 cm. in height. He then took the photographs of the four skulls and they were marked A, B, C and Das per the packet marks. Negatives of the skulls were developed and enlarged prints of those negatives were made to correspond with the life size of skull. Material Ext. 14 is the group photo of Mr. Rajkhowa, Mrs. Rajkhowa and the three daughters in the group photo Ext. 14 the photo of Mrs. Rajkhowa was marked (1), that of Miss. Linu was marked (2), that of Miss. Luna was marked

(3) and that of Miss Bhantu was marked (4). Then they took photograph of the four faces of photos

(1), (2) (3) and

(4). From

the negatives

they made

enlargement to as near as life size enlargement. The skull found in packet “A’ was marked as (1), that in Packet “B’ marked as (2) that in packet ‘C’ marked as

(3) and that in packet ‘D’ marked as (4). After so marking they sent these skulls to the Director, Central Forensic Science Laboratory, Calcutta. The braids of

hairs, bottles of soil samples, and the group photo material Ext. 14 were also sent to the same officer. P.W. 35 after preliminary examination agreed with the opinion of the surgeon who held the post-mortem regarding the sex. Regarding identification of skull, he identified the skull ‘A’ to be that of (1) in Material Ext. 14, ‘B’ to be of (2) in Material Ext. 14, ‘C’ to be of (3) in Material Ext. 14, ‘D’ to be of (4) in Material Ext. 14. The witness has stated sacrum is the end portion of the ‘. vertebral column. Female sacrum is wider than that of male. Sternum became

fused with the main body at the age of 35 and above. Since the witness has stated that there was union of manubrium with the rest of the sternum body, that is, the entire sternum had fused into one in one skull it is found that one skull belonged to a person of 35 years or more. The witness also has stated that the age of person referable to skull No. 4 would be above 18 years. In cross-examination P.W. 35 has stated that this was their first examination of the skeletons in the institute and the magistrate had required him to do the examination and he received the requisition (Ext. 23) at Gauhati. He received the group photo from the magistrate. He had not known Mrs. Rajkhowa and her daughters personally. He had established the identity by comparing the face photos with the photos of the skulls. He had found the data to be correct upto 90%. But he wanted to be 100% sure and so he sent the skulls to the Central Forensic Science Laboratory. The witness has stated that identification could be

Ds

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established by anthropometric measurement, that is, by measuring selected distances between different facial anatomical land marks and finding out their ratios. For this the photos need not be enlarged to life size. To avoid mistakes the skulls and photos were enlarged as much as possible to life size. In sternum there were five pieces of bones. He had inspected the manubrium and when he found that its length was more than half of body length of sternum, he concluded that it belonged to a female body. The witness also has stated that the male skull differs from female skull in many respects. At pages 27-28 of Modi’s Medical Jurisprudence and Toxicology, Seventeenth Edition, we found the following: The sternum in the female is shorter and its upper margin is on a level with the lower part of the body of the third thoracic (dorsal) vertebra, while in the male it is on a level with the lower part of the body of the second. The sternal body is less than twice the length of the manubrium in the female. While, it is more than twice its length in the male. This is due to the fact that the manubrium in the male is somewhat smaller than that in the female. The ribs are thinner and have a greater curvature, and the costal arches are larger. The pelvis affords best marked and most reliable characteristics for distinguishing sex in over 90 per cent of subjects. The female pelvis is shallower, wider, smoother and less massive than the male pelvis. The ilia in the female are less sloped, their posterior borders, are more rounded, the anterior superior iliac spines are more widely separated and the great sciatic notches are much wider, forming almost a right angle than in the male. The female sacrum is short and wide, and is sharply curved forward in its lower half, while the male sacrum is long and narrow, has a uniform curvature along its whole length and may have more than five segments.” P.W. 21 Basudev Bhattacharjee is the Assistant Director, Central Forensic Science Laboratory-Cum-Assistant Chemical Examiner he had deposed that he has been Assistant Director since February, 1968 and before that he was a Junior

Scientific Officer of Central Forensic Laboratory. He is an M.Sc. in Zoology and Comparative Anatomy. He has acquired experience under the then Assistant Director for examination of biological materials including photographic superimposition. On 31-10-70 he received 9 parcels from the Director, Forensic Science Laboratory, Assam, under Memo. No. F.S.L. IV/67/70/984, dated 27-1070 in connection with the present case. In his deposition he has given the details of the articles received in those 9 parcels. On examining the articles he stated the result of his examination as follows: Each of the four samples of hair contained in packets marked 1 (b), 2 (b), (3)(b) and 4(b) respectively was identified to be human head hair probably derived from adult female. Neither arsenic nor any metallic poison could be detected in the hair samples sent for examination. The report on photographic super-imposition of skull of each of the four skulls is as under: (a) There was a correspondence between the anatomical land marks of the skull marked ‘I’ (M. Ext. 18) and the photograph of the deceased face

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marked (1) in the group photograph (M. Ext. 14) when photographically

super-imposed. It is, therefore, concluded that skull in question marked ‘’ could have been the skull of deceased person shown as (1) in photograph (M. Ext. 14). (b) There was a correspondence between the anatomical land marks of the skull marked ‘2’ (M. Ext. 20) and the photograph of the deceased face marked (2) in group photograph when photographically superimposed. It is, therefore, concluded that the skull in question marked ‘2’ |

could have been the skull of deceased

person shown

as (2) in the

photograph (M. Ext. 14). (c) There was a correspondence between the anatomical land marks of the skull marked ‘3’ (M. Ext. 22) and the photograph of the deceased marked (3) in group photograph (M. Ext. 14) when photographically super-imposed. It is, therefore, concluded that the skull in question could have been the skull of deceased person shown in the group photograph as (3). (d) There was a correspondence between the anatomical land marks of

skull marked ‘4’ and the photograph of deceased face marked (4) in group photograph when photographically super-imposed. It is therefore concluded that the skull in question could have been the skull of a deceased person shown in the photograph as (4). The report submitted by P.W. 21 to the Director, Forensic Science Laboratory, Assam in Ext. 25. P.W. 21 has stated that in case of skull No. 1 with photo marked (1) in M. Ext. 14 there was a correspondence of Nasion point, sub-nasion point, prosthion, the

canthuses molar prominence. By Nasion is actually meant a point where the two nasal bones meet the frontal bone. By sub-nasion is meant the uppermost point below the nasal aperture where the two maxillae unite at the mid segittal plane is the skull. Prasthian in the lower-most point of maxilla at the mid seggittal plane. Canthuses are epicanthus and indocanthus, which correspond to outer and inner angle of eye. The cheek bones are molar prominences. The above correspondence was found in respect of all other skulls and photos. Shri R.C. Bannerjee (P.W. 22) the photographic expert took the photos. Shri Bannerjee had measured the anatomical land marks of the skull and photos in his presence. After getting the measurements, they arrived at certain ratios and Shri Bannerjee arrived at those figures. In the skulls the anatomical land marks are at a particular distance from each other. If identical differences in the photos are found there is a further help in establishing the identity of the deceased. Mr. Banerjee had sent his report to him (P.W. 21). The ratios indicated

a striking correspondence between the skulls and their respective photos thereby leading them to believe that the skulls were of the same person whose respective photographs were examined by them. Dr. W.M. Crogman in his book Human Skeleton in Forensic Medicine, has recommended a skull photograph comparison whenever possible making allowances for a degree of non-comparability in the head positioning in the photographs as relating to far more precisely oriented cranial positions.

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