With the advent of time, the commission of crimes is becoming more sophisticated, critical, digital and organised. The pattern of committing crimes is changing with the changes of science and technology. But the pattern of procuring forensic evidence remains the age old one. Bangladesh is yet to have unified and codified rules of taking forensic evidence in its justice system. Till now, the taking of forensic evidence into cognizance in the criminal and civil trial is wholly a normative practice, where the Judges send cases for forensic examinations according to their discretion. No well-founded rule has been enumerated either in the Code of Criminal Procedure 1898 or the Evidence Act 1872.
With remoter interpretation of section 45 of the Evidence Act, Judges may take expert opinion regarding hand writing, finger impressions or on foreign law, science, art, etc. The circumference is too narrow from the perspective of today’s instances of forensic evidence. As now it deals with DNA, saliva, skin, hair, thumb impressions, blood, semen and footsteps, ballistics, drug samples, paints, explosives, toxins, chemicals and what not. More importantly, it requires a different method or procedure to be procured and adduced before the court. This void of a procedure makes the procurement and adducing of forensic evidence more questionable and implausible in our country. Apart from that Judges are being given absolute discretion whether to receive the adduced evidence or not. This strongly proves the shaky existence of the practice in our legal system.
The development of forensic evidence has tucked to the enactment of DNA Act 2014. This Act has devised to collect DNA from the citizens of Bangladesh for making a database by setting forensic laboratories in the country. This would help in maintaining the DNA data, recognising the decomposed dead-bodies and identify criminals. Unfortunately, neither the DNA data was collected nor were the laboratories established. If this would have been done, the autopsy reports of Holey Artisan Attack Case would not take one year to be filed or the murderers of Tonu Murder Case would have been found after the second autopsy. As the second autopsy report of Tonu Murder Case found out three different kinds of semen in her body, it would have been very much easier to find out the murderers and rapists. This proves DNA as a mean of evidence is so strong that it can make every rape and murder unveiled along with the misdemeanors if executed appropriately.
Apart from that, the High Court Division has banned ‘Two Finger Test’ in pursuance of a writ petition recently. Undoubtedly, the judgement was a milestone but Court did not include the use of rape-kits to examine the rape victims. This kit includes sexual assault kit, sexual assault forensic evidence kit, sexual assault evidence collection kit, sexual offense evidence collection kit and a physical evidence recovery kit for examining a rape victim. In the absence of rape-kits, Banani Raintree Hotel Rape Case remains unsolved as the experts are unable to procure physical evidence. So how a rape victim would ensure justice for herself if the examining credentials are not yet fixed. This crippled stance also comes under the purview of forensic evidence. There are a lot of cases unsolved only because the practice of forensic evidence is inappropriate and nearly less-existent in Bangladesh.
The first thing required to solve these complications regarding forensic evidence is enacting a separate legislation for adducing them in the court and their procedures. The Evidence Act may also be amended complying with the practice of forensic evidence nowadays. The adoption of expert opinion may be made mandatory in the required cases under section 45 of the Evidence Act. The credentials may be set for those cases, like which cases ‘must’, ‘may’ and ‘doesn’t’ require an expert opinion. The government may start taking DNA samples for making DNA database under the DNA Act 2014. This would definitely accelerate the investigation process. Sufficient numbers of forensic labs and DNA centres may be established along with the appointment of qualified forensic experts for making the task of forensic examination faster. The Judges, Advocates and Police officers may be especially trained to deal with forensic evidence and collaterals to it as they are less accustomed and less known to it. Also, because they are the significant stakeholders to deliver justice in matters relating to forensic evidence. Lastly, the forensic examinations and reports may be made in front of the Judicial Magistrates to avoid false and forged examinations. Nonetheless to make the practice prompter, good intent of all the related stakeholders and absence of bureaucratic intricacy is very much exigent.
THE WRITER IS A STUDENT OF LLM, UNIVERSITY OF CHITTAGONG.