Authored By: Divya Choudhary
Manipal University Jaipur
ABSTRACT
Nowadays, forensic evidence has significant importance in India’s criminal justice system in determining the accused, particularly after the introduction of the Bharatiya Nagrik Suraksha Sanhita (BNSS), 2023, which seeks to strengthen scientific investigation. However, this increasing reliance on forensic evidence also poses risks arising from erroneous, manipulated, or unreliable forensic reports. This paper critically examines how such errors can lead to wrongful conviction of individuals, thereby violating the constitutional guarantee of free trial and the presumption of innocence until proven guilty. Through an analytical and partly comparative approach, this article highlights the importance of forensic evidence in convictions in India, the provisions relating to forensic evidence under the BNSS, case laws involving controversial forensic reports, and a comparison of India’s forensic investigation and surveillance mechanisms with international jurisdictions.The comparative analysis demonstrates how stronger regulatory frameworks can prevent miscarriages in justice. This article further evaluates the BNSS provisions relating to forensic investigation and identifies key gaps in the law. This article concludes by proposing reforms that could be adopted in India to ensure that the rights of innocent individuals are protected, wrongful convictions are prevented, and justice ultimately prevails.
Key words: Forensic evidence, wrongful conviction, BNSS, miscarriage of justice.
INTRODUCTION
Forensic evidence can be defined as any information obtained through suitable scientific methods or the study of physical things and artifacts that provide a link and inference to other facts in order to reconstruct the crime scene. It is essential in helping authorities ascertain the guilt or innocence of the accused or a possible suspect. 2Both criminal and civil investigations require the analysis of forensic evidence. Crimes that are thought to be related to one another are connected through the use of forensic evidence.3 Forensic evidence is an essential part of the modern Indian legal system, serving as the scientific foundation of justice. Forensic evidence has become increasingly significant as courts shift away from solely depending on testimonial evidence. This shift reflects the growing recognition that scientific evidence often provides more reliable and objective insights than human testimony, which is prone to bias, memory issues, and other influences. The Supreme Court has emphasized the importance of forensic evidence in several important decisions, establishing precedents that have strengthened its role in the administration of justice.4
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which centres reliable and effective criminal investigations around forensic evidence, ushers in a new era in India’s criminal justice system. The BNSS implements significant modifications that incorporate cutting-edge forensic science and digital technologies into every phase of the legal and investigation process.5 The BNSS aims to improve the dependability, integrity, and credibility of evidence used in court by formalising scientific processes and building a strong forensic infrastructure. Ultimately, this will increase public confidence in the criminal justice system and facilitate the administration of prompt and equitable justice.6
RESEARCH METHODOLOGY
This study adopts a doctrinal and analytical research method, relying on statues, case law, and secondary sources like literature to examine the legal framework governing forensic evidence and wrongful convictions in India. Additionally, a comparative method is used to evaluate forensic admissibility standards and safeguards on international jurisdictions such as the United States, the United Kingdom, and Germany, highlighting gaps in the Bharatiya Nagarik Suraksha Sanhita (BNSS).
LEGAL FRAMEWORK UNDER BNSS, 2023
➢ S. 105- AUDIO-VISUAL DOCUMENTATION OF SEARCH AND SEIZURE7
Any audio-video technical equipment, ideally a mobile phone, must be used to record the process of performing a search or obtaining any property, article, or thing under this chapter or section 185. This involves creating a list of everything found during the search and seizure and obtaining witness signatures on it. The police officer is required to send the tape immediately to the District Magistrate, Sub-divisional Magistrate, or Judicial Magistrate of the first class.
➢ S.176(3)- INVOLVEMENT OF FORENSIC EXPERTS AND VIDEOGRAPHY8
Section 176(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) requires the police officer in charge of a police station to ensure that a forensic expert attends the crime scene to gather forensic evidence upon learning of an offence carrying a punishment of seven years or more in jail. Additionally, a mobile phone or other technical device must be used to videotape the process of obtaining evidence.
➢ S.193(I)- CHAIN OF CUSTODY FOR FORENSIC EVIDENCE9
Section 193(2)(i) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) mandates that police reports in events involving electronic devices include the chronology of custody. This is an essential step in establishing a transparent chain of custody to ensure that electronic evidence is not altered or tampered with during the investigation.
➢ S.329- GOVERNMENT SCIENTIFIC EXPERTS10
By permitting reports from government scientific experts to be entered as evidence, Section 329 BNSS makes it easier to employ scientific evidence in court. It ensures that technical and forensic research can be effectively incorporated into the judicial process with provisions for expert examination and delegation in case of non-attendance.
➢ S.497- DISPOSAL OF PROPERTY
The process for holding and disposing of property presented to a court or magistrate during an investigation, inquiry, or trial is outlined in Section 497 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. It gives the court the authority to determine how to manage the property until the legal process is finished, including directing its sale or disposal if it is in danger of rapid deterioration or is otherwise perishable.
Similarly, according to BNSS Section 52,11 a police officer may request that a registered medical practitioner evaluate a person who has been suspected of a crime. The report prepared by the medical expert must include DNA profiling if required. Section 5312 covers a medical officer’s examination of an arrested individual; a copy of the report is delivered to the arrested person or their agent. If the person who was arrested is female, the examination will be conducted by a female medical officer. Section 5513 states that before a subordinate can conduct an arrest without a warrant, a police officer must provide written instructions from the officer in charge.
These sections are meant to ensure that anyone involved in criminal trials, especially victims of crimes against women and children, receive fair treatment and protection
IMPORTANCE OF FORENSIC EVIDENCE IN CONVICTION
Forensic evidence has a significant influence on court outcomes by providing objective, scientifically proven facts that can establish timeframes, identify criminals, and support or refute testimony. Because of its accuracy and reliability, forensic evidence such as DNA, fingerprints, and ballistic data is an essential part of criminal proceedings. This type of evidence often carries considerable weight since juries and judges consider it to be less subjective than eyewitness testimony or circumstantial evidence.14
Forensic evidence plays a key role in court proceedings, particularly in cases where there is lack of eyewitness evidence, to ensure that criminals do not avoid punishment.15 Under Indian law, forensic evidence is admissible only when it meets four key requirements: it must be relevant to the case, lawfully collected while protecting fundamental rights, based on scientifically reliable methods, and presented by qualified, credible, and unbiased experts. These criteria ensure the reliability and proper use of expert evidence in judicial proceedings.16
According to Tomaso Bruno v. State of U.P.,17 the courts are not always bound by an expert report, especially if it is weak or unsupported. In general, courts consider expert testimony to be more credible. The primary objective of an expert opinion is to assist the court in making a decision, even though such a report is not conclusive. The court will review the report and weigh it against the other evidence in the case to determine whether it can be relied upon.
In the case of Mukesh v. State (NCT of Delhi),18 the Supreme Court relied heavily on DNA profiling, medical reports, and biological evidence to confirm the involvement of the accused. Forensic evidence played a decisive role in affirming guilt beyond reasonable doubt. In Santosh Kumar Singh v. State,19 forensic evidence such as DNA samples, bite marks, and post-mortem reports was crucial in overturning the acquittal and convicting the accused. In State of Maharashtra v. Mohd. Ajmal Kasab,20 the court relied on ballistic reports, fingerprints, DNA evidence, and post-mortem findings to establish kasab’s identity and role in the terrorist attack. In Krishan Kumar Malik v. State of Haryana,21 the Supreme Court emphasised that DNA evidence is scientifically accurate and can form the basis of conviction when properly collected and verified.
FORENSIC EVIDENCE LEADING TO WRONGFUL CONVICTION
Although forensic science is increasingly relied upon in India to strengthen the criminal justice system, existing systemic weaknesses such as poor infrastructure, understaffing, outdated equipment, and procedural delays often compromise forensic results, which can lead to wrongful convictions. Inadequate training of forensic experts and weak standard operating procedures reduce reliability, allowing flawed or overstated evidence to reach courts. Additionally, limited scientific understanding among judges and lawyers can result in misinterpretation or overreliance on forensic evidence. Together, these factors risk turning forensic evidence from a tool of justice into a cause of miscarriage of justice, violating the principles of natural justice.22 The most alarming issues in forensic science are erroneous convictions based on faulty forensic evidence. Many prisoners who had previously been unfairly convicted due to inadequate forensic evidence were freed as a result of DNA testing.23
The shortcomings of forensic procedures are clearly demonstrated in Dr. (Smt.) Nupur Talwar v. State of Uttar Pradesh,24 commonly known as the Aarushi Talwar case. The High Court observed that the initial investigating agency failed to preserve the crime scene, permitting multiple individuals to access the premises before any forensic examination was conducted. This lapse irreversibly destroyed crucial primary forensic evidence, including bloodstains and fingerprints. Furthermore, biological samples were collected, stored, and transferred inconsistently, while key physical exhibits, such as the alleged murder weapon and blood samples, were neither properly sealed nor adequately documented. These procedural failures severely compromised the integrity of forensic evidence and highlight systemic gaps that the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, fails to effectively address.
A similar danger of uncritical reliance on forensic evidence is evident in Anokhilal v. State of Madhya Pradesh,25 where the accused was sentenced to death twice by the trial courts based primarily on DNA evidence. However, during the third trial, thorough cross-examination of forensic experts revealed that the male DNA obtained from the victim’s vaginal sample did not match that of Anokhilal. This disclosure rendered the prosecution’s core forensic evidence unreliable, ultimately resulting in his acquittal. The case demonstrates that reliance on forensic evidence without rigorous judicial scrutiny, procedural safeguards, and accountability mechanisms can lead to grave miscarriages of justice and the wrongful conviction of innocent persons.
REASONS FOR FORENSIC ERRORS IN INDIA- GAP IN BNSS
The primary reason for forensic inaccuracy is lack of forensic specialists and the training required to conduct forensic investigations. More than half of the material used by forensic labs is still awaiting results due to a shortage of forensic specialists. Furthermore, the existing experts often lack the forensic training necessary to collect, store, and examine the forensic evidence obtained from crime scenes. Inadequate training results in the improper handling of evidence. Lack of sufficient financing is another significant problem affecting the handling of forensic science in the country’s court system. The variable quality of forensic laboratories, which results from their lack of equipment and funding, frequently affects the reliability of foreign evidence.26 There is a lack of a clear and comprehensive set of rules directing experts and police officers on how evidence is to be collected, preserved, and stored, the procedures that must be followed, and the need for regular checks, which would help in identifying errors at an early stage.27
The absence of adequate training for forensic experts and police officers in handling forensic evidence often results in contamination of crime scenes, rendering crucial evidence unreliable or inadmissible for determining guilt. The continued use of outdated tools and technology in forensic laboratories further compromises the accuracy and quality of forensic examinations. Moreover, the lack of a prescribed timeline for conducting forensic analysis leads to significant delays, weakening the evidentiary value of scientific findings and adversely affecting the administration of justice.28
Although the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 mandates forensic experts’ visits to crime scenes in serious offences and videography of evidence collection, it is silent on detailed procedures for crime scene examination. The Act lacks statutory guidelines for the collection, preservation, storage, and analysis of forensic evidence and does not mandate specialised training for police officers or forensic experts. Further, the BNSS provides no mechanism to review wrongful convictions or to establish accountability for fraudulent, manipulated, or grossly negligent forensic reports, thereby weakening forensic safeguards and increasing the risk of miscarriages of justice.
INTERNATIONAL COMPARISON
German law differs from Indian law by adopting a structured and accreditation-based approach to scientific evidence, while India follows a judge-centric, relevance-based system. In Germany, courts generally rely on pre-approved and accredited experts registered with public bodies (Kammern). The accreditation of experts is periodically reviews. The admissibility of scientific techniques, including DNA evidence, is governed by detailed statutory provisions under the Strafprozessordnung, ensuring that forensic methods are expressly authorised by law before use. This system minimises uncertainty by focusing on expert reliability and legality before trial.29
In United States, the approach under rule 702 is stricter and more structured than Indian law. Under rule 702, an expert is allowed to testify in court only if the expert is properly qualified, the testimony helps the judge or jury to understand the issue, the method and evidence are reliable, and the expert’s opinion clearly fits the fact of the case. In India, there is no fixed legal test for checking scientific reliability or fit. Indian courts treat expert evidence as supporting evidence, not final proof, and warn against relying on it alone, as held in Mahmood v. state of U.P.30
In the United Kingdom, expert evidence is tested through a detailed common-law reliability framework. Courts apply multiple admissibility checks, often called the Turner test, which require that expert evidence must assist the court, come from a relevant and qualified expert, be impartial, and meet a minimum level of evidentiary reliability. UK courts closely examine whether the field of expertise itself is well-established and scientifically credible, as seen in cases like R v. Dallagher31 and R v. Bonython.32 The trial judge plays a strong gatekeeping role, deciding whether the scientific basis and methodology behind the expert’s opinion are sufficiently reliable. UK law also clearly distinguishes between opinion evidence and expert evidence of fact, but both are subject to scrutiny to prevent misleading the court.33
SUGGESTIONS
The increasing reliance on forensic evidence under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 highlights the urgent need for effective safeguards against errors, misuse, and wrongful convictions. Although the BNSS aims to strengthen scientific investigation, its objectives risk being undermined in the absence of clear regulatory oversight, accountability, and procedural guidance. If forensic evidence is to truly serve the cause of justice, it must be supported by a framework that ensures reliability, transparency, and fairness. In this context, the following legal and institutional reforms are proposed to address existing gaps and prevent miscarriages of justice:
➢ All forensic laboratories should be mandatorily and periodically checked by independent expert authorities to ensure they follow proper scientific and ethical standards. These checks can help prevent mistakes or manipulation in forensic reports and increase public trust in the justice system.
➢ Police officers involved in investigations and judges adjudicating cases should receive mandatory training in forensic science so they can properly understand and evaluate forensic evidence. This would help courts critically assess expert reports instead of accepting them without scrutiny.
➢ Modern technologies, such as blockchain-based chain-of-custody systems, should be used to track forensic evidence from the crime scene to the courtroom. This would help prevent tampering, loss, or contamination of evidence and ensure greater transparency and reliability.
➢ A specialised National Accreditation Board should be established to regulate forensic laboratories and experts. Mandatory accreditation would ensure uniform scientific standards and reliable forensic analysis and only reports from accredited laboratories should be accepted by courts.
➢ The BNSS should grant the accused a legal right to seek a second forensic opinion or re-testing of evidence from an independent accredited laboratory. This would help prevent wrongful convictions in cases that rely heavily on forensic evidence and strengthen the right to a fair trial.
➢ An independent Forensic Ombudsman should be established to supervise forensic services and address complaints related to faulty or fraudulent forensic reports. This body would ensure accountability, investigate misconduct, and help maintain the credibility of forensic institutions.
CONCLUSION
Forensic evidence has become an indispensable component of India’s criminal justice system, particularly with the introduction of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which seeks to strengthen scientific investigation. While forensic science has the potential to enhance accuracy and objectivity in criminal trials, its improper collection, analysis, and interpretation can equally lead to grave miscarriages of justice. An analysis of statutory provisions, judicial decisions, and comparative international practices reveals that the BNSS, despite its progressive intent, lacks comprehensive safeguards relating to procedural clarity, training, accountability, and the review of forensic errors.
Without effective oversight and regulatory mechanisms, increased reliance on forensic evidence may inadvertently result in wrongful convictions, undermining the principles of a fair trial and presumption of innocence. Therefore, adopting institutional reforms such as accreditation of laboratories, independent oversight, specialised training, technological safeguards, and the right to seek a second forensic opinion is essential. Strengthening these safeguards will ensure that forensic evidence serves as a reliable instrument of justice rather than a source of injustice, thereby reinforcing public confidence in the criminal justice system.
Reference(S):
1 Author is a student at Manipal University, Jaipur, India.
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11 Bharatiya Nagarik Suraksha Sanhita, 2023, S.52.
12 Bharatiya Nagarik Suraksha Sanhita, 2023, S.53.
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17 Tomaso Bruno & Anr. v. State of U.P., (2015) 7 SCC 178.
18 Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1.
19 Santosh Kumar Singh v. State, (2010) 9 SCC 747.
20 State of Maharashtra v. Mohd. Ajmal Kasab, (2012) 9 SCC 1.
21 Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130.
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32 R v. Bonython, (1984) 38 SASR 45.
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