If the law has made you a witness, remain a man of science. You have no victim to avenge, no guilty man to convict, and no innocent man to save. You must bear testimony within the limits of science.
– Paul H Bouardel
Forensic Medicine and Medical Jurisprudence are not synonymous terms. Though they are related to each other, however, carry different meaning. Forensic Medicine deals with application of medical knowledge in the administration of law and justice. In fact the word ‘Forensic’ is derived from the Latin word forensis–meaning forum that was the meeting place where civic and legal matters were discussed by people with public responsibility. Here doctor is expected to use his medical knowledge, which is helpful in solving civil and criminal matters. For example if a person is brought to doctor by police with alleged history of consumption of alcohol and causing public nuisance then doctor is expected to examine the person and opine whether he has consumed the alcohol and if yes then whether he is under its influence or not? Then doctor have to issue a certificate to police and also have to collect necessary samples (e.g. blood, urine) and forward to forensic science laboratory for further analysis. Other examples include application of medical knowledge in injuries, alleged murder, alleged sexual offenses, cases, pregnancy and delivery etc. Thus this branch of medicine deals with medical aspects of law.
The term Medical Jurisprudence (juris = law, prudentia = knowledge) deals with legal aspect of medical practice. This branch deals with legal responsibilities of doctor while practicing medicine. For example doctor is expected to have knowledge regarding disposal of hospital waste as per the Biomedical Waste (Management and Handling) Rules 1998. Other examples include – having knowledge of the Medical Termination of Pregnancy Act, medical negligence, consent, medical ethics, professional misconduct, doctor-patient relationship, rights of doctor, etc. In other words this branch deals with legal aspects while practicing medicine.
Medical men have to appear in Court of law to give evidence in matters related with medicolegal cases. Therefore it will be helpful if doctors are acquainted with legal procedure, legal terms and court procedures.
INQUEST (IN = IN, QUEST = TO SEEK)
Definition
An inquest is a legal inquiry or investigation to ascertain the circumstances and cause of death.
- It is conducted in sudden, suspicious or unnatural deaths.
- There are four types of inquests:
- Police inquest
- Magistrate inquest
- Coroner inquest
- Medical Examiner's system
- Only Police and Magistrate's inquest are held in India.
Police Inquest
- The inquest is held under section 174 of CrPC.
- It is conducted by the police officer, usually not below the rank of police subinspector.
- The officer conducting the inquest is called as “Investigating Officer” (IO).
- On receipt of information about any sudden, suspicious or unnatural death of any person, the IO forwards the information to the nearest Magistrate and proceeds to the place where the dead body is lying. At that place, the IO in presence of two or more responsible persons of the area (called as Panchas) makes an investigation and prepares a report called as Panchnama.
- The Panchnama (inquest report) includes the description of scene of crime, apparent cause of death and presence of any injuries over body. The IO and the panchas then sign the report. The IO then forwards the dead body to the nearest government doctor with the requisition and a copy of inquest report (Panchnama).
Magistrate Inquest
- Magistrate inquest is held under section 176 CrPC.
- The Magistrate empowered to hold inquests are: District magistrate, Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this on behalf of the State Government or the District Magistrate.
- It is considered to be superior to police inquest.
- Magistrate inquest is done in following circumstances:
- Death in prison/jail
- Death in police custody
- Death due to police firing
- Exhumation
- Dowry death (Under section 304 B of IPC)
- Death in mental hospital
- Similarly in any case of death, the Magistrate can conduct an inquest instead of police inquest or in addition to the police inquest.
- Difference between police and Magistrate inquest are summarized in Table 1.1.
Coroner's Inquest
- Under Coroner's Act 1871, previously it was held at Kolkata (Calcutta) and Mumbai (Bombay). However it was abolished in Kolkata way back and was discontinued on 29 July 1999 in Mumbai.
- A Coroner was an Officer of the rank of First Class Magistrate, appointed by State Government. The Coroner may be a doctor or a lawyer or both. Under Coroner's Act, the Coroner was empowered to inquire all unnatural or suspicious deaths and death occurring in jail. After examining a body he then decide whether an autopsy is required and if necessary he holds an inquiry and forward the body to government doctor for postmortem examination. He had also power to order for exhumation.
- Coroner's court is only court of inquiry into the cause of death. In pursuance of investigation, the Coroner examines witnesses on oath and records their evidence. After completion of an inquiry, the Coroner finds a verdict as to the cause of death. If the coroner founds a verdict of foul play, he issues warrant to the concerned accused and then handed over the case to the concerned Metropolitan Magistrate. When the accused was not found, the Coroner returns an open verdict. Open verdict means an announcement of the commission of crime without information regarding the accused.
Medical Examiner System
- Medical examiner system is a type of inquest prevalent in most states of USA.
- This type of inquest is done by a Medical Examiner who is a Forensic Pathologist. All sorts of sudden, unnatural or suspicious deaths are analyzed by Medical Examiner.
- This type of investigation is considered to be superior to all other type of investigations. In India this system is not followed.
COURTS
There are two types of Courts of law in India and they are:
- Civil Courts
- Criminal Courts
The criminal courts deal with criminal cases and are of four types and they are (Fig. 1.1):
- The Supreme Court
- The High Court
- The Sessions Court
- The Magistrate Court
Powers of different Criminal courts are summarized in Table 1.2
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The Supreme Court
- Located at Delhi and is the highest judicial tribunal in the country.
- It supervises all the courts in India and the rulings of Supreme Court are binding on all courts.
- For criminal cases, it acts as appeal court. No criminal case can be initiated in the Supreme Court.
- It can sustain or alter the punishment awarded by lower courts.
The High Court
- Generally they are located in the capital of state and are the highest tribunal in that state.
- It deals with appeal criminal cases.
- Confirms the death sentence passed in a Sessions court.
The Sessions Court
- Usually located at district headquarters.
- The court of sessions is presided by a senior judge known as Principal courts of sessions and other courts of sessions are called as Additional Courts of Sessions.
- The Sessions court can pass any sentence authorized by law; however, death sentence passed by it must be confirmed by the high court.
Assistant Sessions Court
- Usually located at sub-division in a district.
- Presiding officer is called as Assistant Sessions Judge.
- An Assistant Sessions court can pass a sentence of imprisonment up to 10 years and unlimited fine.
Magistrate's Court
They are of three types namely:
- Chief Judicial Magistrate
- First Class Judicial Magistrate
- Second Class Judicial Magistrate
- In every district, the High court appoints a judicial magistrate of first class to be the Chief Judicial Magistrate for the purpose of general control.
Special Courts1
- In some districts, Mahila courts have been established to try offenses against women. The Mahila courts are Additional court of Sessions presided by women judge.
- Special courts of sessions are also established to try offenses under Scheduled caste (SC), Scheduled tribe (ST), Prevention of Atrocities Act, Essential Commodities Act, Narcotic Drugs and Psychotropic Substance Act (NDPS), Terrorists and Disruptive Activities Act (TADA). Prevention of Terrorism Act (POTA), Maharashtra Control of Organized Crime Act (MCOOCA) and cases of economic offenses and corruption.
Juvenile Courts2
- The Juvenile Justice (Care and protection of children) Act 2000 has provided that a “juvenile” (or child) is a person who has not completed eighteen year of age. It is uniform for both sexes i.e. for boys and girls.
- ‘Juvenile in conflict with law’ means a juvenile who is alleged to have committed an offense. The juvenile offenders are produced before the Juvenile Justice Board. The Juvenile Justice boards are constituted to make juvenile system meant for juvenile and are more appreciative for the developmental needs of children in comparison to criminal justice system as applicable to adults.
- The Juvenile Justice Board consists of three persons comprising of:
- One the Metropolitan Magistrate or a Judicial Magistrate of the first class as the case may be.
- Two social workers, of whom at least one shall be a woman.
- Every such Bench shall have the powers conferred by the code of Criminal Procedure.
- The Metropolitan Magistrate or a Judicial Magistrate of the first class, as the case may be, shall be designated as the Principal Magistrate.
- Where an inquiry into a juvenile offender ceases to be a juvenile, the inquiry shall continue in the same bench.
Punishments
As per section 53 of IPC, the various punishments that can be awarded are:
- Death sentence
- Imprisonment for life (regarded as equal to 20 years in prison)
- Imprisonment-either-rigorous (with hard labour) or simple
- Forfeiture of property
- Fine
- Fine and imprisonment may be awarded one along with or without the other.
- Capital punishment refers to death sentence and in India it is carried out by hanging.
Offenses
The offenses may be:
- Cognizable
- Non-cognizable
- Cognizable offense refers to an offense in which a police officer can arrest a person without warrant from the Magistrate. Examples are – rape, murder, dowry death, ragging etc.
- In non-cognizable offense, for arrest of a person, a warrant from the Magistrate is necessary without which a police officer cannot arrest a person.
Different Types of Cases
The cases may be:
- Criminal cases
- Civil cases
Criminal cases: are related with commission of crimes and are tried in criminal courts. The cases may be of following types:
- Cognizable cases: related with cognizable offenses
- Non-cognizable cases: related with non-cognizable offenses
- Warrant cases: the offenses punishable with death, imprisonment for life or for a term exceeding two years are treated as warrant case.
- Summons cases: these are the cases, which are not warrant cases. In summons cases, the punishment for offense does not exceed more than two years.
Civil cases: These are the cases related with disputes between two individuals or parties and tried in civil courts. These cases are not related to offense or crimes. The individual who lodges the complaint is called as complainant and the other individual (the opposite party) is known as respondent.
SUMMONS OR SUBPOENA
Definition
A summons is a writ compelling the attendance of the witness in a court of law, at a specified place and time, and for 7a specified purpose under penalty (Subpoena, sub = under, poena = penalty).
Types
These are of two types and are:
- Subpoena adtestificandum
- Subpoena duces tecum.
Subpoena adtestificandum is a type of summons where a person is directed to appear personally before court to give evidence.
Subpoena duces tecum is a type of summons served to witness only to submit a document.
Procedure
A summons is issued by the Court in writing, in duplicate, signed by the presiding officer (Judge) and bears the seal of the court. It is served to witness by a police officer or an officer of the court or other government servant specifically authorized for the purpose. After receiving a summons, the witness should sign the other copy of summons and one copy is to be kept with him.
- A summons must be obeyed and the court must be attended on specified date and time. If the witness has a valid and urgent reason, he should communicate to the court.
- In spite of summons served on a person and if the witness remains absent without any sufficient reason, the court may issue bailable or non-bailable warrant or may order to attach the property of that person.
- In criminal cases, if court issues notice to witness under section 350 of CrPC and if court finds that witness has neglected or refused to attend, the court may sentence him to fine not exceeding one hundred rupees.
- Disobedience of summons issued by court is also an offense punishable under section 172 of IPC and the punishment may extend to simple imprisonment for six months or fine of Rs 100 or both.
- If a witness receives two summonses from different courts, say for example civil and criminal court, on same day, then the doctor should give priority to criminal court and accordingly inform to civil court. If two courts (criminal or civil) summons doctor (Witness) on the same day then, the witness should first attend the higher court. However, if a witness received summons from two different courts (civil or criminal) of same status, then the doctor should attend the court from where he received the summons first and inform the other court accordingly and can attend the second court after finishing his evidence in the first court.
Conduct Money
- It is the money given or paid to a witness in civil cases to meet the expenses towards attending the court.
- In civil cases, conduct money is paid to the doctor at the time of serving the summons. If the money is not paid or the doctor feels that the sum paid is inadequate, he can inform the court accordingly. Then the judge will decide regarding the amount to be paid.
- In criminal cases, no such money is paid to the witness at the time of serving the summons. The witness must attend the court because every citizen is duty bound to attend the court whenever summoned. However, conveyance charges and daily allowance is paid to the doctor according to the prevailing government rules.
MEDICAL EVIDENCE
Definition
Evidence means and includes
- All statements which the court permits or requires to be made before it by a witness in relation to matters of fact under inquiry (such statements are called as oral evidence).
- All documents produced for the inspection of the court (such documents are called as documentary evidence).
Types
Medical evidence is of following types:
- Documentary evidence
- Oral evidence
Documentary Evidence
It comprises of documents produced before the court and includes:
- Medical certificate
- Medico-legal report
- Dying declaration etc.
Medical Certificates
- These are the certificates issued by the doctor regarding ill-health (sickness certificate), unsoundness of mind, death certificate, birth certificate, fitness certificate etc.
- These certificates are the simplest forms of documentary evidence.
- Only certificates given by registered medical practitioners (RMP) registered with state medical council are accepted in the court of law as evidence.
- Doctors should exercise due care while issuing such certificates. Issuing a false certificate is an offense.
Medico-legal Reports
- Medicolegal reports are the documents prepared and issued by doctors on the request of the investigating officer (Police or Magistrate), usually in criminal cases such as assault, rape, murder etc.
- Examples of such reports are: Injury certificate, age report, postmortem reports, reports regarding examination of exhibits such as weapons, clothes etc.
- Generally these reports are made of three parts viz.:
- Part I — Introduction (Preamble): Comprising of preliminary data such as name of person, age, sex, address, identification marks, date and time of examination etc.
- Part II — Examination (Observation): Consisting of the findings observed and recorded by doctor and entered in the report.
- Part II — Opinion (Inference): Consisting of opinion or inference drawn by the doctor from the medical examination.
- The report should be written with great care and should bear the signature and name of the examining doctor.
- Any exhibits, e.g. clothes or weapons etc. sent for medical examination should be described in detail with appropriate diagram/sketches whenever applicable then these articles should be properly sealed, labeled and returned to the investigating officer.
Dying Declaration
Definition: A dying declaration is a statement, verbal or written, made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death (Section 32 IEA).
Whenever such patients are admitted and who are going to die, the doctor should call the Magistrate to record dying declaration. Before recording the statement, doctor should certify that the person is conscious and have sound mind (compos mentis). If the dying person is serious and there is no time to call the Magistrate, then doctor should record the dying declaration. When doctor or Magistrate is not available, dying declaration recorded by investigating officer is also admissible under section 32 of IEA. No oath is administered while recording a dying declaration since it is believed that the dying person tells the truth only.
Procedure of Recording
- The dying declaration, if possible, should be written by the person who is recording it. The statement should be recorded in the man's (dying man's) own words and in the language in which the person prefers to speak. It must be recorded in the presence of two or more witnesses. No addition of words or phrases should be made or altered. No prompting or suggestions should be made and no undue influence must be placed on the person.
- No information must be sought by asking leading questions.
- After recording a declaration, it should then be read over to the declarant who should affix his signature or thumb impression. The doctor and witness should also sign the declaration.
- While recording a statement if the person becomes unconscious, the doctor recording it must record as much information as he has to obtained and sign it.
- If the person prefers to write the statement himself then the statement should be signed and attested by witness,
- If the person is unable to speak and can only make signs in answer to questions put to him then the questions and signs can be recorded as verbal statement.
- The dying declaration should be forwarded to the Magistrate in a sealed envelope.
- A dying declaration can also be written in ink on hand also.
- A dying declaration is accepted in court as evidence after the death of a person who made it. However, if the declarant (person who make the statement) survives, the declaration is not admitted as dying declaration but the declaration has corroborative value.
Dying Deposition
- It is a statement or deposition made by a dying person on oath. The Magistrate in the presence of accused or his lawyer records it.
- The procedure of dying deposition is not followed in India.
- Dying deposition has more value then dying declaration in the court as it is recorded by the Magistrate in presence of accused.
- Difference between dying declaration and dying deposition are summarized in Table 1.3.
Oral Evidence
- It means statement made by the witness verbally in the court.
- As per Section 60 of IEA, the oral evidence should be direct i.e. it is to say:3
- If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
Table 1.3 Difference between dying declaration and dying deposition Dying declarationDying deposition1. Recorded by magistrate or doctor or investigating officer1. Always recorded by magistrate2. No oath is administered2. Oath is administered3. Inferior to dying deposition3. Superior to dying declaration4. Accused or his lawyer is not necessary while recording a statement4. Statement is always recorded in presence of accused or his lawyer5. No cross examination5. Cross examination is allowed6. Has corroborative value if patient survives6. Retains full legal value even if the person survives - If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
- If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
- If it refers to an opinion or the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.
- In other words, oral evidence is direct evidence of a witness regarding what he had seen, heard or perceived.
- Oral evidence is more important and superior than documentary evidence because:
- It has to be proved on oath or affirmation and
- It can be subjected to cross-examination.
Exceptions to Oral Evidence
Following are the exception to oral evidence:
- Dying declaration
- Expert opinion expressed in a treatise (for example opinion expressed by author in book) when the author is dead or cannot be found or is otherwise incapable of giving evidence.
- Deposition of medical witness taken in lower court.
- Chemical examiner's report.
- Evidence given by a witness in a previous judicial proceeding or in lower court.
- When the certificate or document is acceptable to the counsels (lawyer of accused) without cross-examination.
Other Types of Evidences are
- Hearsay evidence
- Circumstantial evidence
- Corroborative evidence
Hearsay evidence: It is type of indirect evidence in which the witness has no personal knowledge about the facts but he has only heard what others had said regarding the matter. For example witness “X” gives evidence in court that “Y” had told him (i.e. X) that he (i.e. Y) had seen “Z” beating to “W” with iron rod.
Circumstantial evidence: It is indirect type of evidence, which was obtained from the suspicious circumstances for example finding of blood stained shirt over body of accused, recovery of bullet shells at the spot of crime or recovery of weapon from the accused etc.
WITNESSES
Definition
- Witness is a person who gives sworn testimony or evidence in the court of law in relation to matters of fact under inquiry.
- Any person can testify as witness or give evidence in the court if the said witness is able to understand the nature of questions put to him or is able to give rational answers to the questions asked. Such difficulty may arise in witnesses who are of tender age (say for example boy of 6 years) or of extreme old age or affecting from any disease of body or mind.
Types
There are two types of witnesses and they are:
- Common
- Expert
Common Witness
- Common witness is one who testifies or gives evidence to the facts observed or heard or perceived by him.
- The common witness cannot draw inferences or form opinions.
Expert Witness
- Examples are doctor, handwriting expert, fingers print expert, ballistic expert, and chemical analyzer.
- A doctor is both common and expert witness. For example, if a doctor is giving evidence in relation to injuries, when he mentions size, shape or position of injury he is acting as common witness. When the doctor says that the injury is antemortem or postmortem, caused by such type of weapon etc. then he is acting as expert witness.
- The Indian Medical Council Act 1956 in section 15 (2) (C) states that no person other than a medical practitioner enrolled on a state medical register shall be entitled to give evidence at any inquest or in any court of law as an expert under section 45 of IEA on any matter relating to medicine.
Hostile Witness
- A hostile witness is one who purposely makes statements contrary to facts or does not give his evidence fairly and with a desire to tell the truth to the court.
- The common or expert witness may turn hostile.
- While examining a hostile witness, leading questions are permitted even during examination-in-chief
Perjury
- Perjury means willful utterance of falsehood by a witness under oath.
- It is false evidence tendered by witness and he fails to tell what he knows or believes to be true (Section 191 of IPC).
- A witness is liable to be prosecuted for perjury under section 193 of IPC.
PROCEDURE IN COURT
When a doctor is called in the court of law as a witness, he has to take oath before tendering his evidence. The evidence is recorded in the following sequence (Section 138 of IEA) (Fig. 1.2):
- Oath
- Examination-in-chief
- Cross-examination
- Re-examination
- Questions put by the court (Judge).
Examination-in-Chief
- It is carried out by the council (Lawyer) of the party who called the witness (Section 137 of IEA). In government prosecution cases say for example in murder case, the public prosecutor (Government lawyer) first examines the doctor to elicit the findings of case under inquiry.
- Objective of this examination is to put all the facts before the court.
- No leading questions are allowed in this part of examination. Leading questions are the question that suggests the answer (Section 141 of IEA). For example “doctor, was the injury caused by sharp cutting weapon?” is a leading question and the suggested answer may be “yes” or “no”. The proper way to put the question is “doctor, what weapon would cause this injury?”
Cross-Examination
- In this part of examination, the lawyer for the opposite party (Lawyer for accused or Defense council) questions the witness.
- Objectives of this examination are:
- To elicit facts favorable to his case.
- To test the accuracy of the statements made by the witness.
- To modify or explain what has been said.
- To discredit the witness.
- Leading questions are permitted during cross-examination (section 143 of IEA).
- There is no time limit for cross-examination. Well-known author and eminent medicolegal expert, Prof Dr B. V. Subrahmanyam was crossed-examined for two complete days.4
Re-Examination
- The lawyer who has started the examination-in-chief has the right to re-examine a witness.
- Objectives of re-examination are to explain any ambiguities or correct any mistake or add details to the statements the witness has made in cross-examination.
- Leading questions are not allowed in re-examination.
- No new things or new subject may be introduced by the witness without the consent of the judge or the Defense counsel. If new subject have been introduced in re-examination, the lawyer of opposing party has the right to re-cross-examine a witness on the new matter.
- Under section 311 CrPC, the court is empowered to recall, re-examine any witness already examined if his evidence appears to be essential to the just decision of the court.
Court Questions
The judge or the presiding officer of the court may put the question to witness during any stage of examination to clear up any doubtful points.
- Doctor giving evidence in the court of law should be modest. He should well dressed and have appropriate personal appearance.
- Doctor should be honest, impartial in his evidence. He should maintain the dignity and should show respect for the court.
- He should address the judges by their titles. A High Court Judge is addressed as ‘My Lord’ and a District Court/Sessions Judge as ‘Your Honour’.1
- Refresh 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 soon afterwards that the court considers it likely that the transaction was at that time fresh in his memory (Section 159 of IEA).
- He should be modest in stating his qualifications and experience
- He should be attentive towards each question and should answer honestly. His speech should be clear, easily audible, confident and polite. Speak slowly so that the judge, recorder, who is recording/typing the evidence and defense council, may hear clearly.
- Use plain and simple language; avoid technical terms as far as possible. He should avoid using superlatives and exaggerations for example enormous bruise, ghastly injury, savage blow, most agonizing pain etc.
- He should state the facts observed by him. Avoid discrepancies between your earlier statements and your testimony in court.
- Do not evade any question. If question is unclear or ambiguous or not heard properly, request for repeating the question. If you do not know the answer to a particular question, be frank and admit it.
- Keep going cool; do not lose your temper. Always remain calm, composed and courteous. Do not argue over any point. If you want to disagree with any point, be firm but don't leave impression of being dogmatic. At times, defense council may put irritating questions to you or may take doubt over your honesty and creditability. Be cool; don't get irritated with such questions. The court may forbid any questions or inquiries which it regards indecent or scandalous (Section 151 of IEA). The court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in it, appears to the court needlessly offensive in form (Section 152 of IEA).
- As far as possible do not volunteer any statement. If you feel that by not making any statement or clarification, injustice may be caused, do mention it.
- Always remember to be honest and impartial. You are a man of science and remain a man of science. Please keep in mind, you have to help the court for admitting justice, you are not judge!
REFERENCES
- Mathiharan K, Patnaik AK. Legal procedure in criminal courts and medical evidence and medical witness. In: Modi's Medical Jurisprudence and Toxicology, 23rd edn. 2005. LexisNexis Butterworths, New Delhi. 19–76.
- The Juvenile Justice (care and protection of children) Act 2000 (56 of 2000). Published in Gazette of India.
- Satyanarayana Krishna Rao. In: The Law relating to medical profession in India, 1st edn. 1962. Bestseller Publications, Hyderabad.
- Subrahmanyam BV. Legal procedure in criminal courts. In: Modi's Medical Jurisprudence and Toxicology, 22nd edn. 2001. Butterworths India, New Delhi. 1–24.
- Pillay VV. Legal procedure. In: Textbook of Forensic Medicine and Toxicology, 14th edn. 2004. Paras Publishing, Hydrabad. 2–15.
- Rudra A. Medical expert in court and general guidelines on court appearances. In: Dogra TD, Rudra A (ed) Lyon's Medical Jurisprudence and Toxicology, 11th edn. 2007. Delhi Law House, Delhi. 20–7.