MODULE 2 – INVESTIGATION BY THE POLICE- PART I
FIR, INVESTIGATION, COLLECTION OF EVIDENCE, INJURY REPORT, DNA PROFILING,
POST MORTEM
DR SATYAJIT MOHANTY, IPS RETD
MODULE 2; INVESTIGATION BY POLICE (PART 1)
Cognizable and non-cognizable offences
First Information Report, its evidentiary value, Zero FIR, e-FIR
Investigation of cognizable offences
Procedures of investigation
Collection of evidences – evidences of persons (victim, witness and accused), collection of physical
evidences, digital evidences, application of forensic science, direct and circumstantial evidences
Injury report, DNA profiling, Inquest, Post mortem reports, Expert opinion
WHAT IS INVESTIGATION ?
Investigation, according to the CrPC [Sec 2 (h)] / [S 2(1)l BNSS] includes all proceedings under the Code for the
collection of evidence conducted by a police officer or by any other person authorised by the Magistrate on this
behalf.
Thus, under the Code investigation consists generally of the following steps: ( H. N. Rishbud and Inder Singh
[Link] State Of Delhi,1955 AIR 196)
(1) Proceeding to the spot,
(2) Ascertainment of the facts and circumstances of the case,
(3) Discovery and arrest of the suspected offender,
(4)Collection of evidence relating to the commission of the offence which may consist of
(a) the examination of various persons (including the accused) and the reduction of their statements into writing
(b) the search of places of seizure of things considered necessary for the investigation
(5) Formation of the opinion as to whether on the material collected there is a case to place the accused before
a Magistrate for trial and if so, taking the necessary steps for the same by the filing of a charge-sheet under
section 173 CrPC [ S 193 BNSS]
POLICE, WHEN TO INVESTIGATE
The police can proceed to investigate;
1. on the information received from any person as to the commission of any cognizable offence ( Sec 157)/ S
176 BNSS
2. even without such information, if they have the reason to suspect the commission of any cognizable offence
(Sec 157)/ S 176 BNSS
3. on receiving any order (to investigate) from any Judicial Magistrate empowered to take cognizance of any
offence under Sec 190 [ Sec 156 (3)]/ S 175 BNSS
Police officer can not investigate a non-cognizable case without the order of the Magistrate having power to
try or commit such case ( Sec 155 )/ S 174 BNSS
If the case relates to two or more offences of which at least one is cognizable and the other non-cognizable, the
case shall be deemed to be cognizable
COGNIZABLE & NON –COGNIZABLE OFFENCES
IS THERE ANY RATIONALE TO DIFFERENTIATE ?
Cognizable offence means an offence for which a police officer may arrest without warrant in accordance with the First
Schedule (of CrPC) or under any other law for the time being in force ( Sec 2 c )/ S 2(1) g BNSS
Non cognizable offence means an offence for which a police officer has no authority to arrest without warrant [Sec
2(1) o BNSS]
The emphasis is on the authority to “arrest” in stead of that for “investigation”
According to the National Police Commission ( Third Report 1980, para 22.25), the emphasis on arrest makes the police
think that an arrest is mandatory under the law while investigating a cognizable case
“The emphasis should really be on the police competence for investigation and not on the power of arrest. The question
of arrest arises only after an investigation has been taken up, and it is always incidental to investigation.”
Before the 1973 amendment the First Schedule did not mention whether an offence is cognizable or non-cognizable, but
merely referred whether or not the police can arrest without warrant
This irrationality was set right with mention of “cognizable” or “non-cognizable” in Col 4 of the First Schedule
This amendment in the first schedule was apparently omitted in the definition of the cognizable offence in Sec 2 ( c)
which continues to refer the power of arrest without warrant, while the first schedule makes no such reference at all
now
A suggested definition could have been – cognizable offence are those offences under the First Schedule of the Code or
under any other law for the time being in force, which the police can investigate without an order from the Magistrate
FIRST INFORMATION REPORT; SOME FACTS
Information by whomsoever given, to the officer in charge of a police station in relation to commission of a
cognizable offence which is first in point of time & on the strength of which the investigation into the offence is
commenced
A police officer is legally bound to record in writing every information relating to the commission of the crime
within his jurisdiction
The substance of the information shall then be entered by the police officer in a book called, ‘Station Diary’
A copy of the information as recorded shall be given free of cost to the informant
What about copy of the FIR to the accused person?
SC in Youth Bar Association of India v. Union of India (Writ Petition (Crl.) No .68 of 2016) rules that
an accused is entitled to get a copy of the First Information Report at an earlier stage than as prescribed under
Section 207 of the Cr.P.C ( S 230 BNSS)
FIRs are to be uploaded on the police website within 24 hrs, if not sensitive in nature
Accused can get certified copies from the police or court immediately after registration or submission to the
court, as the case may be
Image to PDF [Link] General_Diary001.pdf General_Diary_002.pdf [Link]
FIRST INFORMATION REPORT; SOME FACTS
FIR does not constitute substantive evidence; it can be used as a previous statement for the purpose of
corroboration and contradiction of its maker under Sec 157 or Sec 145 of the Indian Evidence Act (S160/S 148
BSA)
FIR is relevant under Sec 8 of the Indian Evidence Act; (S 6 BSA) any fact is relevant which shows or constitutes a
motive or preparation for any fact in issue or relevant fact; soon after the occurrence the victim made a
complaint before the police relating to the offence and the circumstances are, therefore, relevant
It is well settled that a first information report is not an encyclopaedia, which must disclose all facts and details
relating to the offence reported.
An informant may lodge a report about the commission of an offence though he may not know the name of the
victim or his assailant. ( SP CBI v Tapan Kumar Singh AIR 2003 Supreme Court 4140 )
FIRST INFORMATION REPORT; SOME FACTS
The registration of FIR is either on the basis of the information furnished by the informant under Section 154(1)
of the Code ( S 173 BNSS) or otherwise under Section 157(1) of the Code ( S 176 BNSS) is obligatory.
The obligation to register FIR has inherent advantages:
a) It is the first step to ‘access to justice’ for a victim.
b) It upholds the ‘Rule of Law’ inasmuch as the ordinary person brings forth the commission of a cognizable crime
in the knowledge of the State.
c) It also facilitates swift investigation and sometimes even prevention of the crime. In both cases, it only
effectuates the regime of law.
d) It leads to less manipulation in criminal cases and lessens incidents of ‘ante-dates’ FIR or deliberately delayed
FIR. ( Lalita Kumari v. Government of UP AIR 2014 Supreme Court 187 )
FIRST INFORMATION REPORT; ZERO FIR
However, it has been held that territorial jurisdiction should not prevent the police officer from recording the FIR
and forwarding the same to the police station having jurisdiction over the alleged offence ( State of AP v.
Punati Ramube, 1993, Cr L J 3684 SC)
This is known as “zero FIR”. Why ?
In Madhu Bala vs. Suresh Kumar (1997) 8 SCC 476, SC held that FIR must be registered in the FIR Register
which shall be a book consisting of 200 pages.
It is relevant to point out that FIR Book is maintained with its number given on an annual basis. This means that
each FIR has a unique annual number given to it.
BURKING OF CRIME : CONCERN OF THE SUPREME COURT
Quoting various studies, the SC views that the number of FIRs not registered is approximately equivalent to the
number of FIRs actually registered.
Keeping in view the NCRB figures that show that about 60 lakh cognizable offences were registered in India
during on an average annually, the burking of crime may itself be in the range of about 60 lakh every year.
Thus, it is seen that such a large number of FIRs are not registered every year, which is a clear violation of the
rights of the victims of such a large number of crimes.
Burking of crime leads to dilution of the rule of law in the short run; and also has a very negative impact on the
rule of law in the long run since people stop having respect for rule of law.
Thus, non-registration of such a large number of FIRs leads to a definite lawlessness in the society
Therefore, reading Section 154 (S 173 BNSS) in any other form ( i.e., its mandatory nature) would not only be
detrimental to the scheme of the Code but also to the society as a whole
However, in certain cases preliminary enquiry by the police may be allowed to arrive at the veracity of the
allegations- whether is reveals a cognizable offence – matrimonial dispute, commercial offence, medical negligence,
corruption cases, abnormal delay in initiating criminal proceedings ( Lalita Kumari v. Government of UP AIR
2014 Supreme Court 187 )
WILL E-FIR BE HELPFUL IN IMPROVING THE SITUATION ?
BNSS - Sec 173; Every information relating to the commission of a cognizable offence, irrespective of the area
where the offence is committed, may be given orally or by electronic communication to an officer in charge of a
police station, and if given ……
by electronic communication, it shall be taken on record by him on being signed within three days by the person
giving it
On receipt of information relating to the commission of any cognizable offence, which is made punishable for
three years or more but less than seven years, the officer in charge of the police station may with the prior
permission from an officer not below the rank of Deputy Superintendent of Police, considering the nature and
gravity of the offence,—
(i) proceed to conduct preliminary enquiry to ascertain whether there exists a prima facie case for proceeding in
the matter within a period of fourteen days; or
(ii) proceed with investigation when there exists a prima facie case. (Lalita Kumari directives diluted ?? )
STAGES OF INVESTIGATION
The investigation implies collection of evidences which are admissible in a court of law during the trial
of a case. Such evidences are generally collected from two sources i.e. (A) Persons and (B) Things
(physical evidence) (C) Electronic or Digital
(A) Evidences from persons –
(a) Victim
(b) Witness
(c) Accused
THE VICTIM’S STATEMENT
(1) Identity of the offender if known.
(2) Descriptive roll of the offender
(3) Mode of operation
(4) Method of escape and direction.
(5) Physical evidences to be found in the body of the offender.
(6) Probable motive of the offender.
(7) Properties taken/damaged.
WHAT A WITNESS CAN PROVIDE?
A witness, besides the facts stated by the victim, can throw light on :
1) Subsequent conduct of the offender
2) Previous conduct of the offender
3) In what order did the events occur ?
WHAT INFORMATION CAN BE ELICITED FROM THE ACCUSED?
1) Consistency of facts stated by victim and witnesses
2) If he denies the guilt – his alibi.
3) Motive behind the crime
4) Reconstruction of scene of crime
5) Names and address of his accomplices.
6) His involvement in other offences etc.
7) Recovery of weapon of offence or stolen articles
PHYSICAL EVIDENCES
Physical evidences mostly relate to transfer of materials i.e. from victim to offender and vice-versa and from scene
of crime to offender and vice-versa. The transfers of materials are caused mainly by two ways. 1. Unintentionally/
Deliberately 2. Accidentally
Unintentionally/Deliberately - 1. Weapons and tools used for perpetrating the crime.
2. Properties of the victim used by the offender or taken by him.
3. Properties of the offender used in the crime scene and abandoned.
4. Documents
Accidentally - 1. Materials like blood, hair, semen, clothing, fibers, skin scraps transferred from the victim to
accused and vice-versa.
2. Foot prints, finger prints, cloth fibers and impressions, tool marks etc. left at the spot.
3. Dust, debris etc. carried from/left at the scene of crime by the offender.
ELECTRONIC RECORD
Section 62 of the BSA provides a special provision for electronic records to be considered as evidence, while
Section 63 governs their admissibility
Various form of electronic record:
Call Detail Records
Memory Chip
Hard Disk
E mail, SMS, MMS
Legal Interceptions
SCENE OF OCCURRENCE
People & Things
All criminal investigation is concerned either with people or with things
Only people commit crimes, but they invariably do it through the medium of things
It is these things that together constitute the broad field of physical evidence
The Locard’s principle of exchange is applicable in most such cases
Recording of crime scene
1. Preservation of scene of crime
2. Sketching the crime scene
3. Photography & videography
PHYSICAL EVIDENCE AT THE CRIME SCENE
Fibres, hair
Blood stains, semen, saliva, sputum, urine etc.
Chemical stains like paint, grease, acids, petrol etc.
Dust, debris, soil, vegetable matter, pollen etc.
Fragment of glass, metals, metal filings etc.
Firearms, cartridge cases, pellets, bullets, powder marks
Tyre marks, skid marks, teeth mark, tool mark
Finger prints and palm prints
Foot prints, shoe prints & track marks
Poison – vomits, viscera, phials, residue in the bottle or tumbler etc.
Documents
Implement or weapons used for committing the crime
Any article left inadvertently by the criminal at the scene of crime
UTILITY OF PHYSICAL EVIDENCE
The help that investigating officers can get from the forensic and scientific examination are as follows:
Physical evidence can establish ‘corpus delicti’ i.e., to establish that a crime has actually been committed
Physical evidence can link suspect with the crime scene or with the victim
Physical evidence can establish the identity of the persons involved in the crime, can exonerate the innocent or
corroborate victim’s testimony
It is factual and hence more reliable than the eye witnesses who often tend to turn hostile
It is more relied by the Court
It is the only evidence in the absence of direct or circumstantial evidence
INDIVIDUALITY OF FINGERPRINTS
Of all methods of personal identification, fingerprint offers the one of the most successful methods of identifying a
person
1. Uniqueness: The fingerprints from two different fingers are never identical the ridge patten differs from individual
to individual and also from finger to finger in every individual. Even all the identical twins studied so far have stood
the test of uniqueness of fingerprints (like a QR code)
2. Permanence: The ridge pattern on the fingers never change during
the life of an individual. The adult fingerprints are an enlargement
of the fingerprints of the person as a child
Chance finger prints from the scene of crime
are thus taken for identification with the suspect
FORENSIC BALLISTICS
It is the systematic study of fire arms and
ammunition used in the commission of crime for the
purpose of investigation and identification
Terms to be acquainted; calibre, bullet, barrel,
magazine, cartridge, gun powder, scorching, entry
wound, exit wound
DNA FINGERPRINTING (PROFILING)
The role of blood typing in forensic investigation has the following utilities: establishing the presence of blood at
crime scene; determining the number of individuals involved; exploring the relationship between the suspect and
victims; identifying the potential blood related evidence
But it is has a limitation- the blood types being A, B, AB & O, the individualisation is not conclusive – for example
the probability of a particular blood sample in a group is always more than one
To forensic scientist, the single most genetic marker and the most powerful tool for individualising and
discriminating the biological evidence is DNA Fingerprint.
The observable variation in human DNA is called polymorphism
These polymorphic segments in DNA molecule serve as a means to identify individuals
It can be extracted from any tissue or body fluids and matched with the trace elements collected by forensic
experts from the scene of crime or from the victim’s person
Serious offences like sexual assault, homicide or cases of mutilated bodies ( recent train accident in Balasore) or
paternity disputes can be solved with clinching evidences
INJURY REPORT
Injury report are generally obtained from the Medical Officer (MO) in the prescribed form on the requisition of
the investigating officer (IO)
The Medical Officer gives his opinion on the nature of injury ( grievous or simple ), age of the injury, possible
cause etc.
On the query from the IO the MO gives his opinion whether the injuries can be caused by the suspected weapon
of offence
This helps the IO to ascertain under which of the penal sections the accused could be charged (e.g., 115, 117 or
118 BNS)
Significance of 52 & 184 BNSS (injury report in rape case for the accused and victim)
Injury [Link]
INQUEST
This expression occurs in section 194 and section 196 BNSS.
Literally, it means a legal inquiry.
Strictly speaking, it has been employed in the BNSS to mean the inquiry held u/s 196 by a competent Executive
Magistrate into the cause of an unnatural or suspicious death.
Loosely, it is also applied to refer to the investigation conducted by a police officer u/s 194 BNSS for purpose of
ascertaining the apparent cause of an unnatural or suspicious death.
Hence, the term, “Inquest” is commonly used to mean either an investigation by the police u/s 194 BNSS,
undertaken by them under the law to find out the cause of an unnatural or suspicious death.
Such inquests mandatory by the Executive Magistrate in case of custodial death, custodial rape and dowry death
under Sec 196 BNSS
INQUEST
Reporting such death to the nearest Executive Magistrate competent to hold inquest.
Proceeding to the spot for investigating the cause of such death unless otherwise directed.
Inviting at least two local and respectable persons to be present at the inquest.
Viewing the dead body and its surrounding carefully & closely.
Noting down relevant features, such as number, position and direction of injuries, sign of inflammatory reaction, sign of
struggle, presence of saliva, blood, froth, semen, swab, vomit etc.
Examining witnesses supposed to be conversant with the facts and circumstances of the case.
Preparing the report on the spot indicating, among other things, the apparent cause of death.
Affixing of the signature by the police officer to the report and also getting therein the signature of the persons who
witnessed the inquest and concurred with him
Forwarding the report to the DM or the SDM.
Sending the dead body to the authorised medical officer for post mortem examination unless the cause of death is
clearly free from doubt. A copy of the Inquest report should accompany the memo of requisition for post mortem
examination. inquest [Link] inquest Dead body [Link] UD FIR -[Link]
POST MORTEM
Post mortem (autopsy) is mandatory under the four circumstances;
Homicide
Death otherwise than under normal circumstance of a woman within seven years of marriage.
There are suspicions regarding cause of death.
The police officers consider it expedient to have the post mortem done.
It is for the police to send the dead body to the MO for post mortem examination.
Post mortem may be dispensed with when the case is not covered by any of the four mandatory circumstances
specified
HOW DOES THE POST MORTEM REPORT HELP IN INVESTIGATION?
Nature & cause of death ( suicidal, homicidal, accidental etc. )
Time elapsed since death
Nature of injuries – sharp cutting, gun shot, burn, acid, road accident etc.
Position of injuries – why important? Proves intention of the accused – vital for proving the ingredients u/s 300
IPC
Often, the definite opinion by the MO conducting autopsy is preserved pending the examination of viscera- e,g., in
case of poisoning
Post mortem [Link]
CATEGORIES OF EXPERT EVIDENCES
The expert evidences are divided into the following types:
Medical Evidence- Cause of Death in cases alleged to be due to physical violence; Cause of Death in cases
alleged to be due to causes other than physical violence; Whether Death was accidental, suicidal or homicidal; To
prove Legal Insanity; Sexual Offences; To determine age; In disputed Paternity cases; and Miscellaneous matters.
Non-Medical Evidence - Fingerprints; Footprints; Handwriting; Typewriting; Forensic Ballistics; Narco-analysis;
Polygraph Test; Brain Mapping, Digital Evidences etc.
Many new methods and techniques are being developed and will soon be in use for the purpose of investigation,
but in each method it must be ensured that the rights of the individual are not hampered. In cases where the
rights of the accused are affected, the constitutionality of the evidence comes into question.
THE RELEVANCY OF EXPERT OPINION
The State and Central Forensic Laboratories are equipped with the following divisions; Ballistics, Biology, Chemistry,
Documents, Physics, Serology, Toxicology etc. Besides, every state has a handwriting bureau for questioned documents
The forensic scientists and handwriting experts are generally considered as “experts”
Legal interpretation of an expert is found in Section 39 of the BSA which delas with “opinion of third persons when
relevant”
It states “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 especially skilled in such foreign law, science
or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called
experts.
Sec 39(2) BSA recognises Examiners of Electronic Evidence as “experts”
Sec 40 BSA provides facts bearing upon the opinion of the expert when relevant
Sec 45 recognises the “grounds of opinion” based on which the expert forms his opinion to be relevant
LEADING CASE LAWS
The constitutionality of expert evidence was challenged as against Article 20(3) and Article 21 of the Constitution in
State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808 ( Constitution Bench 11 judges)
The Court upheld that compelling the accused to provide fingerprint and handwriting samples under Section 73 of the
Evidence Act for the purpose of expert opinion was not in derogation of Article 20(3), and hence was constitutional.
It was discussed in this case that giving samples was not equivalent to being a witness against themselves, as the samples
were not evidences per se.
Rather, the report made by the expert would be the evidence in this case, and the expert would act as a witness against
the accused.
Moreover, this case narrowed down the scope of protection under Article 20(3) by stating that the clause “to be a
witness” means imparting knowledge about facts of which the person has personal knowledge through oral or written
statements, whereas giving specimens of fingerprints or handwriting do not fall under this, as these have an intrinsic and
unchangeable nature that is verifiable.
So, here, the distinction between “physical” and “testimonial” evidence was maintained.
It holds good till date
LEADING CASE LAWS
It was held that the evidence of an expert is rather weak type of evidence and the courts do not generally consider it as
offering ‘conclusive’ proof and therefore it is not safe to rely upon the same without seeking independent and reliable
corroboration. Gopal Reddy v. State of A.P. 1996 4 SCC 596
The medical opinion, being an opinion, is not binding upon the Court. The Court has to form its own opinion
considering the material data and the opinion on the technical aspects rendered by the medical experts. Madal Gopal
v. Naval Dubey 1992 3 SCC 204
The evidence of DNA expert is admissible in evidence as it is a perfect science. Pantangi Venkat Ganesh v State of
AP 2003 CrLJ 4508 AP
The opinion of ballistic expert is reliable if there is no strong ground to disbelieve such opinion. Only because of delay in
sending the pistol for obtaining expert opinion is not the ground to discard such opinion when there was clear evidence
of seizure of the weapon and there was no suggestion that the pistol has been substituted. SS Ajmer Singh v. State of
Punjab 1993 SCC (Cri) 1113
It can no be laid down that as a rule of law that it is unsafe to have conviction on the uncorroborated testimony of a
fingerprint expert. The true rule seems to be one of caution. The Court cannot delegate its authority to the expert in
the same way as to the value given to any other evidence. The Court has to ultimately weigh and satisfy itself about the
correctness of the conclusion by the expert. State of M.P. v. Sitaram Rajput 197 CrLJ 1220
Thank You