LEGAL PROCEDURECHAPTER 1

Forensic (legal) medicine deals with application of medical knowledge to aid in administration of justice, i.e. it deals with medical aspects of law, such as assault, murder, sexual offences, poisoning, etc.

Medical jurisprudence deals with legal responsibilities of doctor, i.e. with legal aspects of practice of medicine, such as medical negligence, consent, professional misconduct, duties of doctors, etc.

INQUEST: An inquest is an enquiry or investigation into the cause of death (S.174, Cr.P.C). It is conducted in cases of unnatural and suspicious deaths, such as suicide, murder, accident, etc.

(1) POLICE INQUEST : (1) It is conducted throughout India. (2) The officer - incharge of police station, informs the Executive Magistrate, and proceeds to the place where body of deceased person is. (3) He conducts investigation (panchanama), in the presence of two witnesses (panchas). (4) The report includes the description of wounds, the nature of weapon and apparent cause of death. (5) The report is signed by police officer and witnesses. (6) If foulplay is suspected, the body is sent for autopsy with a requisition to the authorised Government doctor. (7) If no foul play is suspected, the dead body is handed over to the relatives for disposal.

(2) MAGISTRATE's INQUEST : This is conducted by an Executive Magistrate (who are revenue officials), such as District Collector, deputy Collector, Tahasildar, etc. It is done in cases of (1) death in 2prison, (2) death in police custody, (3) death due to police firing, (4) dowry death, (5) exhumation, (6) death in a psychiatric hospital (S. 176, I.P.C).

Coroner's inquest is not done in India, but is done in U.K., some states in U.S.A and some other countries.

Medical examiner's inquest is done in most States of USA.

Trial by Jury is not done in India.

COURTS OF LAW : (1) Civil. (2) Criminal. In India, criminal courts are of four types.

(1) Supreme Court is the highest court. It has the power of supervision over all courts in India. The law declared by it is binding on all courts. It is purely an appellate court in criminal cases.

(2) High Court is highest court in every state. It may try any offence and pass any sentence authorised by law.

(3) Sessions Court can only try cases which have been committed to it by Magistrate. It can pass any sentence authorised by law, but a sentence of death passed by it must be confirmed by High Court. Assistant Sessions Court can pass any sentence except death sentence and imprisonment not exceeding ten years.

(4) Magistrates’ are of three types.

In Metropolitan cities (population more than one million), Chief Judicial Magistrate and First Class Judicial Magistrates are designated as Chief Metropolitan Magistrate and Metropolitan Magistrate respectively.

Cognisable offence is an offence in which a police officer can arrest a person without warrant from the Magistrate, e.g. rape, murder, robbery, dowry death, rash or negligent act, etc. In such offences, the person is sent by the police to the doctor for medical examination.

Punishments authorised by law are: (1) death, (2) imprisonment for life, (3) imprisonment; (a) rigorous (hard labour), (b) simple, (4) forfeiture of property; (5) fine.3

CONDUCT MONEY: It is fee paid to a witness in civil cases only at the time of serving summons to meet the expenses towards attending a Court. If the amount is less, the witness can appeal to the Judge, who will decide the amount to be paid. In criminal cases no fee is paid.

SUBPOENA OR SUMMONS : (1) It is a written document issued and signed by the Court in duplicate, and served on the witness under penalty, for giving evidence on a particular day and time. (2) It is served on the witness by a police officer, or other public servant. (3) It may also be sent by registered post. (4) Apart from giving evidence, the witness should produce documents if asked for. (5) If the witness fails to attend the Court in a civil case, he will be liable to pay damages, and in criminal case, fine or imprisonment. (6) The witness will be excused from attending the court, if he has valid and urgent reason. (7) Criminal Courts have priority over Civil Courts and higher Courts have priority over lower. (8) If he is summoned from two courts of same status, he must attend the court from where he received the summons first, informing the other court about it.

MEDICAL EVIDENCE: Evidence means, all legal means which help to prove or disprove any matter in question.

Direct evidence is evidence of a fact which is actually in issue, e.g. a prescription or a consent form. Indirect or circumstantial evidence is evidence of a fact which is not actually in issue, but which is derived from the circumstances. Hearsay evidence is any statement made by any person other than the witness giving evidence in Court.

Documentary evidence is of three types.

(1) MEDICAL CERTIFICATES: (1) They refer to ill-health, insanity, age, death, etc. (2) They are accepted in a Court of law, only when they are issued by a qualified registered medical practitioner. (3) A doctor is legally bound to give death certificate, stating the cause of death without charging fee, if a patient being treated by him dies. (4) The doctor should not issue death certificate (a) without inspecting the body himself, and satisfying that the person is really dead, (b) if he is not sure of cause of death, (c) if there is least suspicion of foulplay. In such cases, the police should be informed. (5) Death certificate 4should not be delayed, even if the doctor's fee is not paid. (6) Issuing or signing a false certificate is punishable.

(2) MEDICOLEGAL REPORTS : (1) They are reports prepared by a doctor usually in criminal cases, e.g, assault, rape, murder, poisoning, etc. (2) The injured person or dead body is examined, when there is a requisition from a police officer or Magistrate. (3) They consist of (a) facts observed on examination, and (b) opinion drawn from the facts. (4) They are admitted as evidence in court only when the doctor gives oral evidence under oath. (5) Exaggerated terms, superlatives, etc. should not be used. (6) The opinion should be based on the facts observed by the doctor. (7) The report will be given to the defence lawyer, as such care should be taken in writing the report. (8) The doctor should sign or initial at the bottom of each page, if the report exceeds one page in length. (9) If immediate opinion is not possible, the patient should be kept under observation, and investigations done.

(3) DYING DECLARATION: It is a written or oral statement of a person, who is dying due to some unlawful act, relating to the cause of his death. (1) A Magistrate should be called to record the declaration. (2) The doctor should certify that the person is conscious and his mental faculties are normal. (3) If the patient's condition is serious, the doctor, police, village headman, or any other person can record the D.D. in presence of two witnesses, but its evidential value is less. (4) Oath is not administered, because it is believed that a dying person will only tell the truth. (5) It is recorded in the man's own words. (6) Leading questions should not be put. (7) No influence or outside prompting should be permitted. (8) Questions may be put to make points clear. (9) The statement made must be of fact and not opinion. (10) If it is made in the form of an opinion, questions should be put to bring out the facts. (11) If the dying person is unable to speak, but is able to make signs in answer to questions, this can be recorded, which is considered as “verbal statement”. (12) The doctor and the witness should sign the declaration. (13) Even if the declarant was not under expectation of death, it is admissible in the court. (14) If the declarant survives, the declaration is not admitted but has corroborative value.5

Dying deposition is statement of a dying person on oath. It is superior to dying declaration, as it is recorded by the Magistrate, and the accused or his lawyer can cross-examine the dying person. This is not parcticed in India.

Chain of custody of evidence: It is a method to verify the actual possession of an object from the time it was first identified until it is offered into evidence in the Court room. Each specimen when obtained, should be labelled with the victim's name, the time and date, the nature of the specimen, identification number, and signed by the doctor. This information must be documented, each time the material is handled by another person, and that person must give receipt for the material and will be included in the chain of custody. The evidence must not be damaged, contaminated, or altered in any significant way. The shorter the chain the better.

Oral evidence: It is evidence which is given orally by witness under oath in a court of law. (1) It is more important than documentary evidence, as it admits cross-examination. (2) In all cases, it must be direct, i.e. evidence of a peroson who saw, heard or prceived it. (3) A deaf and mute witness may testify by signs, by writing or through interpreter. (4) If oral evidence refers to any material thing, e.g, weapon, blood stained clothing, etc, it must be produced in the court. (5) Documentary evidence is accepted by court only on oral evidence by concerned person.

Exceptions to oral evidence: (1) Dying declaration. (2) Expert opinion expressed in a treatise. (3) Evidence of doctor recorded in a lower Court. (4) Evidence given by a witness in a previous judicial proceeding. (5) Reports of Chemical Examiner. (6) Reports of Director of Central and State Forensic Science Laboratories. (7) Reports of Director Finger print Bureau. (8) Report of Serologist to Government.

WITNESSES: (1) Common witness is a person who gives evidence about the facts observed or perceived by him. He must show that he was capable of perceiving the fact by one his own senses and that he actually observed this fact. (3) This is known as “First-hand knowledge rule”, which may be used to establish the exact circumstances of the case for the court.6

(2) Expert witness is a person who has been trained or is skilled in technical or scientific subject, and capable or drawing opinions and conclusions from the facts observed by himself, or noticed by others, e.g doctor, fingerprint expert, handwriting expert, firearms expert, etc. (2) An expert witness may give his opinion (a) upon facts which are either admitted, or proved by himself or other witnesses at the trial, (b) on matters of common knowledge, (c) on hypothetical questions based thereon. (3) The main obligation of an expert is to point out professional facts. (4) The opinion on a key question must be given in a guarded manner using terms such as, that the findings are consistent with an alleged form of trauma, such as a fall aginst a hard object, or with the striking of the head with a blunt instrument. (4) An expert witness may refer to books to refresh his memory or to correct or confirm his opinion. (5) A doctor can be both a common and expert witness.

Hostile witness is one who is supposed to have some interest or motive for concealing part of truth, or for giving completely false evidence. (2) The court will declare a witness as hostile on the suggestion of the lawyer of the party who has summoned the witness or prosecution lawyer. (3) A hostile witness can be cross- examined by the same side lawyer. (4) Common or expert witness can be hostile.

Perjury means wilful giving of false evidence by witness while under oath, or failure to tell what he knows or believes to be true (imprisonment up to 7 years).

RECORD OF EVIDENCE: (1) Oath: “I do swear in the name of God (solmenly affirm in case of atheist) that what I shall state, shall be the turth, the whole truth, and nothing but truth.” (2) Oath is required by the law which is compulsory. (3) A chid below 12 years is not required to take an oath.

(2) Examination - in chief: (1) In this questions are put to the witness by the lawyer for the side which has summoned him. (2) In criminal trial, Public Prosecutor first examines the witness. (3) The object is to elicit all relevant medical facts, and the conclusions drawn from these facts. (4) “Leading questions are not allowed”, except when witness is hostile. (5) The questions are short and demand 7some specific fact and short answer. (6) The answer can be given in narrative form, if it would be more informative and convincing.

A leading question is one which suggests to the witness the answer desired, or which includes the answer implied in the question itself and admits of a conclusive answer by “Yes” or “No”.

(3) Cross-examination: (1) The witness is questioned by the lawyer of the opposite party, i.e. defence lawyer. (2) The main objects are: (a) to elicit facts favourable to his case, (b) to test the truthfulness of the statements made by witness, (c) to modify or explain what has been said, (d) to develop new or old facts, (e) to discredit the witness, (f) to remove any excessive emphasis, which may have been given to any facts. (2) It need not be confined to the facts to which witness testified in exam-in-chief. (3) The competence, credibility and character of the witness may be tested. (4) The judge can always disallow questions which are irrelevant, incriminating or scandalous, but if they are relevant to the matter, they cannot be disallowed. (5) Leading questions are permissible. (6) It has no time limit. (7) It may act as double-edged sword, i.e. it may damage both the prosecution and defence.

(4) Re-examination: (1) This is conducted by the lawyer who has conducted examination-in-chief. (2) The objects are: (a) to correct any mistake, (b) to clarify or to add details to statements the witness has made in cross-examination. (3) The witness should not introduce any new subject. If he does so, he will be liable for cross-examination again. (4) Leading questions are not allowed.

(5) Questions by Judge: At any stage of examination, the Judge may ask any questions to clear up doubts.

MEDICOLEGAL MASQUERADES: Many cases of homicide go undetected because of the lack of suspicion and improper or inadequate investigation. All cases of death should be regarded as unnatural, until proved otherwise. Violent deaths may show minimal or no external evidence of injury, and conversely natural deaths can occur under such circumstances as to suggest falsely that violence was used. Accidental deaths and suicides can occur under circumstances which suggest homicide. In a suicide case, alterations may be made 8at the scene because of stigma. In a homicide case, the scene may be altered or rigged to suggest that death resulted from suicide or accident. The doctor must look for any possible inconsistencies between the apparent death scene and his actual scientific findings. In a case of hanging, the manner in which a ligature is applied to the neck, or the mode of suspension of a body may be determining features in the circumstances. In such cases, the real cause of death can be established by complete autopsy and police investigation.

CONDUCT AND DUTIES OF THE DOCTOR IN WITNESS BOX: (1) Be well prepared. (2) Take all records. (3) Be relaxed and calm. (4) Be pleasant, polite and courteous. (5) Never attempt to memorise. Memory can be refreshed from copies of reports already submitted. (6) Answer briefly and precisely, but may be qualified for accuracy and completeness. (7) Be confident. (8) Use simple language. (9) Avoid superlatives and exaggerations. (10) Do not evade a question. Say I do not know if it is so. (11) Be honest, impartial, unbiased. (12) Do not lose temper. (13) Give opinion from your own knowledge and experience. (14) Do not volunteer information which will be liable to cross-examination. Volunteer only, if you think that injustice will occur if the statement is not made.

Scene of death: (1) Verify that a crime has been committed, (2) look for signs of how it was committed, (3) recover and preserve evidence.

Disadvantages of doctor not visiting scene of crime are: (1) Fresh abrasions may be produced on body during transit, (2) clothing will be disarranged, and blood stains form on parts of clothes originally free from them, (3) fresh tears may be produced in clothing, (4) partial breaking of rigor mortis.

Warrant case means, offence punishable with death, imprisonment for life, or for a term exceeding two years. Summons case is one in which punishment is less than two years.