Forensic Investigation Section 176(3)

Section 176(3), BNSS 2023

Where an offence is punishable for seven years or more, the officer in charge of a police station shall cause the forensic expert to visit the crime scene to collect forensic evidence in the offence and also cause videography of the process on mobile phone or any other electronic device:

Provided that where forensic facility is not available in respect of any such offence, the State Government shall, until the facility in respect of that offence is developed or made in the State, notify the utilisation of such facility of any other State.

📖 Dharam Deo Yadav v. State of Uttar Pradesh, (2014) 5 SCC 509

Facts: A conviction rested substantially on scientific and forensic material, and the Supreme Court took the occasion to consider the place of such evidence in the investigation and trial of serious offences, and the standards to be expected of those who collect it.

Held: The Supreme Court held that the criminal justice system must keep pace with developments in science and technology, and that courts should encourage the use of scientific and forensic methods in the investigation of crime. It observed that forensic evidence is independent of human recollection, and that its value lies precisely in being unaffected by the fear, interest or persuasion which so often affects oral testimony — a consideration of growing importance as witnesses turn hostile. But the Court emphasised that such evidence is only as good as the manner of its collection and preservation: the crime scene must be protected, the material collected promptly by competent persons, the chain of custody maintained and provable, and the connection between the sample examined and the place from which it came established by evidence. It held that investigating agencies must be trained and equipped for this, and that a court should scrutinise the collection and custody as carefully as the laboratory result itself.

Ratio: The criminal justice system must keep pace with science, and forensic evidence is valuable because it is independent of human recollection. But it is only as good as its collection and preservation, and the chain of custody must be maintained and proved.

📖 Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130

Facts: In a prosecution for a serious offence, forensic and scientific tests which the circumstances plainly called for had not been conducted during the investigation, and the prosecution relied on oral evidence alone. The Supreme Court considered the consequence of that omission.

Held: The Supreme Court held that where scientific and forensic evidence could have been obtained and the investigating agency failed to obtain it, the omission tells against the prosecution. The Court observed that with the advance of science, an investigating agency is expected to resort to scientific investigation in a serious case, and that a failure to conduct tests which would have conclusively established or excluded the accused’s involvement leaves the case resting on material weaker than it need have been. It held that such a failure does not by itself entitle the accused to an acquittal, but that the court is entitled to take it into account in assessing the sufficiency of the remaining evidence, and to ask why the obvious step was not taken. The Court found the oral evidence insufficient to sustain the conviction in the circumstances, and acquitted.

Ratio: Where scientific evidence could have been obtained and was not, the omission tells against the prosecution. It does not by itself require an acquittal, but the court may take it into account in assessing the sufficiency of the remaining evidence.

⚠ What the videography requirement is for

It fixes what was found, where it was found, and in what condition — which is the first link in the chain of custody, and the one most often missing.

It shows who was present and what was done, so that an allegation of planting or of contamination can be tested rather than merely asserted.

It supplies a record which does not depend on the recollection of the seizing officer years afterwards, when he may have conducted a hundred such seizures and can remember none of them distinctly.

And it disciplines the process itself: an officer who knows the collection is being recorded conducts it differently from one who knows it is not.

The position stated shortly

1. Section 176(3): where an offence is punishable with seven years or more, the officer in charge shall cause a forensic expert to visit the crime scene to collect forensic evidence.

2. The word is shall. The visit is an obligation, not a step to be taken if convenient.

3. The officer shall also cause videography of the process on a mobile phone or other electronic device.

4. Where a forensic facility is not available, the State Government shall notify the utilisation of the facility of another State — so the absence of a local facility is no answer to the obligation.

5. The provision sits within section 176, the general provision on the procedure for investigation, and adds to the ordinary steps.

6. The value of forensic evidence is that it is independent of human recollection — increasingly important as witnesses turn hostile: Dharam Deo Yadav.

7. But it is only as good as its collection and preservation. The scene must be protected, the material collected promptly, and the chain of custody maintained and proved.

8. Where scientific evidence could have been obtained and was not, the omission tells against the prosecution, and the court may ask why the obvious step was not taken: Krishan Kumar Malik.

9. The videography fixes what was found, where and in what condition — the first link in the chain of custody, and the one most often missing.

10. And it makes an allegation of planting or contamination capable of being tested rather than merely asserted.