Importance &Role of Court Opinions

Importance &Role of Court Opinions

You may wonder what is the significance of title "Importance &Role of Courts Opinions",when all judgements of the courts are significant ,important and crucial for the lawyers ,judges and interested general public.There is lot of difference between ordinary judgment and land mark judgments,some times, land mark judgement will become law of the land[Visakha Case-Sexual harassment ],some judgments will become important citations /case law for future reference[D.K Basu case,Maneka Gandhi case or Bhim Singh case],which will be used by lawyers and courts.  

Sweeping Remarks or Merely expression of opinion:




While delivering the judgement, judges often makes sweeping remarks on certain point of law or legislative pitfalls [ shortcoming] or certain incisiveness criticism on important issue or general observations on the pressing problem of the nation,even suggest remedial measures to overcome lacuna or even suggest the government to make new law or amend the existing law to address the lacuna or pitfalls[example: Decriminalizing 377 or women should also be punished for adultery or misuse of 498-A  or legal terrorism ]. But trial courts or lower courts don't have privilege to make such sweeping remarks as they are court of facts.


There is lot of criticism on the judicial activism or  sweeping remarks of judges ,some say its judicial overreach as court are supposed to implement the law and should not to transgress on law making functions of the legislators or judges has no business to tell  legislators,how law should be or law ought to be.
Some say it is judicial activism,when other organs of government like executive or legislation fails to perform its obligation under Constitution,the courts has to intervene to perform it's  duty as watch dog of the constitution to protect the constitutional values and save the people from poor governance.




Types of Opinions: 




Lower courts or trial are fact based courts ,where as,the High Courts and Supreme Court have both original jurisprudence and appellate jurisprudence.


High Court : 


At high court level,the single or division bench hears appeals against the trial or lower court judgement.The panel of judges or bench[full bench or larger bench] will be constituted to hear any issue or point of law brought before it under original jurisdiction.

Supreme Court :

At Supreme Court ,panel of judges will hear appeals against high court [ trial courts ,all courts below Supreme Court are called trial courts in S.C ]orders or any issue brought before it under original jurisdiction.If any issue of constitutional importance or important legal issues is involved ,larger bench or full bench will be constituted to deliberate on the issue.

Some questions will asked by  young lawyers , budding lawyers or common man about meaning of certain terms ;

• Majority opinion  
• Concurring opinion
• Dissenting opinion
• Plurality opinion
• Per-Incurium Opinion  

• Majority Opinion :Where majority of judges agree on a specific point of law or affirming the judgement of lower court,lawyers often refer such cases  in court as precedent ,which carries lot of importance in deciding the out come of the pending case.

• Concurring opinion : Concurring or agreeing  with fellow judges or majority of judges.

• Dissenting Opinion : Disagreeing with fellow judges or judge,judge disagrees with colleague judge or judges with specific  reason for the differing [Js.P.N Bhagwathi dissenting opinion in Bachan Singh case] 

• Plurality Opinion : Divergent opinions of judges. No consensus evolved in the case,because of lack of majority opinion. 

•  Per-Incurium Opinion: The term indicate that the opinion was given by court ignoring existing law or judgment.This opinion does not carry much weight age.

The legislators makes statutory law, they are called law -makers ,if executive makes law,it is called administrative law [Viz .G.O] and Court /Judge gives judgement -it is called case law or we often call it judge -made law. 


The main aim of all organs of the government is to uphold constitution,no organ is greater or lesser than others,but all three organs are strong pillars of the government.The concept of checks &balances is very important in democracy and its survival.

Role of Internet in Legal Practice-Legal Research

Role of Internet in Legal Practice-Legal Research:

Whenever you happened to visit the lawyer's chamber,you will wonder,whether such huge library is indispensable for a lawyer in the present Information Technology &communication age.

it is up-heal task for lawyers to maintain huge library,it is not only taxing monetary wise,but also difficult to get spacious accommodation in central location,but Technology is changing every thing in the world and influencing our daily life

some people are already speculating that present generation of lawyers will no more maintain huge library with voluminous journals,due to advent of newer technologies like Information Technologies user friendly solutions like Internet and virtual library is available in the cyber world [world wide web.] with a finger touch at an affordable price and apart from that ,free websites are also offering their services. 




Internet in legal practice  :


We are in the world of E-commerce,E- Governance and E- Courts.The new technology will replace age old traditional practices&mechanism of government machinery and courts,all activity of government like maintenance of land records ,release of G.O's ,and property tax/value calculation have become online.

All state government offices ,apart from Secretariat/head offices ,even grass root level offices like  gram Panchayat level / Municipal offices to District Collector are maintaining websites to cater the needs of the common man. 

We often feel that government will become paper -less administration within in matter of time and for the matter of fact,even courts are also bound to follow the paper- less  administration policy to a certain extent.

Presently ordinary citizen can know case status information ,cause list[list of cases] and judgments of Supreme Court ,High courts,Service tribunals,city civil courts,state consumer commissions ,commissions[HRC/SRC] and other courts.


Some hypothetical questions ,hard to answer.

• Whether e-justice  like e-filing of cases and e-filing of counter affidavits will replace conventional administration of the justice for speedy and effective delivery mechanism of justice, inter-linking prosecution,courts,police and jails will helps to improve the administration of justice through internet replace traditional system

• Whether excessive use of e-mail/SMS for service of notice will reduces the usage of postal services/Telegram and personal hand delivery of summons?

• Whether E-registration of documents &computerization of various governmental offices of public importance replace traditional files management  and sending scanned documents will replace hard copies to make way for paper -less administration,

• Whether printed cause list will disappear to make paper- less administration of justice.

• Whether production of accused before magistrate through web linked video conferencing will replace personal production of accused to reduce time and man power?

• Whether you will see books in lawyer's chamber in future or not?

  
Role of NIC &e-courts :
 

It is fact that today ,all organizational  activities &publications have become online Viz. court's s cause list[list of cases to be taken up],online e-filing ,online journals ,and Advocate's  database and are with in -reach of general public with minimum cost. The National Informatics Centre[NIC ]- http://www.nic.in/ is responsible for maintaining the websites of all courts in India.-http://www.indiancourts.nic.in/




The Indian judiciary comprises of nearly 15,000 courts situated in approximately 2,500 court complexes throughout the country.The National Informatics Centre (NIC) is a premiere Science&Technology institution of the Government of India, established in 1976,is providing e-governance support to central government ,state government , UT Administrations, Districts and other Government bodies. It offers a wide range of ICT services including Nationwide Communication Network (NICNET) for decentralised planning, improvement in Government services and wider transparency of national and local Governments.

The project scope is to develop, deliver, install and implement automated decision making and decision support system in 700 courts of Delhi, Bombay, Kolkata & Chennai; 900 courts in the 29 capital city courts of states and UTs and 13000 district and subordinate courts.

The objectives of the NIC project/E-courts are- http://ecourts.nic.in/

 

• To help judicial administrations of the courts in streamlining their day-to-day activities

• To assist judicial administration in reducing the pendency of cases

• To provide transparency of information to the litigants 

• To provide access to legal and judicial databases to the judges.     

Computer savvy Advocates-Social networking websites :

It is heartening to note that most Lawyers ,Judicial officers ,Judges have become computer-savvy and adopted new technology with ease.Most of them are effectively utilizing social networking utility services viz, Face book ,Linked in ,tweeter  for networking and exchange of information.It will bound have significant impact on professional advancement and enhancement of professional /advocacy skills.It has increased research skills of advocates ,most advocates are familiar with search engines like Google,Yahoo &encyclopedia like Wikipedia.They are also using online web services of SCC,AIR,Manupatra resources.    


It is hypothetical to answer, Whether we will not able to see lawyers chambers with huge volumes of AIR,SCC ,Crl L.J ,Supreme Today etc. But the Technology bound to change the lawyers approach to legal profession.Whatever may be the outcome of technological advancement,it will bound have positive impact on standards of legal profession. 


The internet technology[ICT] is changing the courts functioning and also changing the face of legal profession.The computer knowledge and internet are essential part of the legal profession ,moreover indispensable to survive in the legal profession.

Law Governing Experts &Scientific Evidence in India

Law Governing Experts &Scientific Evidence in India

 

We often hear in our formal and informal conservations that ,he is an expert speaker or he is an expert in a particular subject.The expert 's opinion is sought by many people or organisation or even courts on various issues or subject of importance,the expert help is also sought to solve a complicated problem or an medical condition.

There are many illustration to refer 'who is an expert person'.The expert is an extra- ordinary individual with high qualification in a particular field of study or who has acquired specialised skill and knowlegde in a particular area through rigorous training and scholarly pursuit by devoting considerable amount of time and mental energy.

Who is an Expert ?

"An expert, more generally, is a person with extensive knowledge or ability based on research, experience, or occupation and in a particular area of study. Experts are called in for advice on their respective subject, but they do not always agree on the particulars of a field of study. An expert can be, by virtue of credential, training, education, profession, publication or experience, believed to have special knowledge of a subject beyond that of the average person, sufficient that others may officially (and legally) rely upon the individual's opinion. Historically, an expert was referred to as a sage (Sophos). The individual was usually a profound thinker distinguished for wisdom and sound judgment."[1]

An Expert opinion can be taken in both Civil as well as  Criminal courts.Some of the areas which require expert evidence :

• Foreign Law
• Science
• Art
• Identity of handwriting
• Finger impressions

 Legal provision relating to Experts :

The Expert evidence is covered under S.45-51 of Indian Evidence Act ,1872,which deals with an opinion of third person ,where ever relevant and desirable .

According section 45 " 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 impression ,the opinion upon that point of persons specially skilled in such foreign law or science or art or in a questions as to identify of handwriting or finger impression are relevant facts,such persons are called experts."  

 Illustrations:

(a) The questions is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.

(b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law. The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant.

(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant. 

 Other sections :

• Section 47 :Opinion as to handwriting, when relevant 

• Section 48:Opinion as to existence of right or custom, when relevant 

• Section 49:Opinion as to usages, tenets, etc., when relevant 

• Section 50:Opinion on relationship, when relevant 

• Section 51 :Grounds of opinion, when relevant 

Law Commission Report -Recommendations : 

 {THE INDIAN EVIDENCE (AMENDMENT) BILL, 2003}

Amendment section 45 , In section 45 of the principal Act, for the portion beginning with the words “When the court has to form an opinion” and ending with the words “Such persons are called experts” the following shall be substituted, namely:-
“When the Court has to form an opinion upon a point of foreign law, or of science or art, or as to the identity of handwriting, or finger impressions or, footprints or, palm impressions or typewriting or usage of trade or technical terms or identity of persons or animals, the opinions, upon that point, of persons specially skilled in such foreign law, science or art, or as to the identity of handwriting, finger impressions, footprints, palm impressions, typewriting, usage of trade, technical terms or identity of persons or animals, as the case may be, are relevant facts. Such persons are called "experts.”

After section 45 of the principal Act, the following sections shall be inserted, namely:-

Supply of copy of Expert`s Report:

“45A.(1) Except by leave of the Court, a witness shall not testify as an expert unless a copy of his report has, pursuant to subsections (2) and (3), been given to all the parties.

(2) An expert’s report shall be addressed to the Court and not to the party on whose behalf he is examined and he shall owe a duty to help the Court and this duty shall override any obligation to the party on whose behalf he is examined.

(3) An expert’s report must -

(a) give details of the expert’s qualifications;

(b) give details of any literature or other material which the expert has relied on, in making the report;

(c) state who carried out any test or experiment which the expert has used for the report and whether or not the test or experiment has been carried out under the expert’s supervision and the reasons if any, given by the person who conducted the test;

(d) give the qualifications of the person who carried out any such test or experiment;

(e) where there is a range of opinion on the matters dealt with in the report –

(i) summarise the range of opinion, and

(ii) give reasons for his own opinion;

(f) contain a summary of conclusions reached;

(g) contain a statement that the expert understood his duty to the Court and has complied with that duty;

(h) contain a statement setting out the substance of all material instructions (whether written or oral) of the party on whose behalf he is examined.;

(i) be verified by a statement of truth as follows:“I believe that the facts I have stated in the report are true and that the opinion I have expressed are correct ”; and

(j) contain a statement that the expert is conscious that if the report contained any false statement without an honest belief about its truth, proceedings may be brought for prosecution or for contempt of Court, with the permission and under the directions of Court.

Procedure to prove Foreign Law and Court’s power:

45B. (1) A party to a suit or other civil proceeding who intends to raise an issue concerning the law of a foreign country shall give notice in his pleadings or other reasonable written notice.

(2) The Court, in determining a question of foreign law, in any particular case may, after notifying the parties, consider any relevant material or source, including evidence, whether or not submitted by a party, and the decision of the Court shall be treated as a decision on a question of law”.

 For section 48 of the principal Act, the following section shall be substituted, namely:-
 
Opinion as to existence of right or custom, when relevant:
 
“48. When the Court has to form an opinion as to the existence of any general or public right or custom or any matter of general or public interest, the opinions, as to the existence of such right or custom or such matter, of persons who are likely to know of its existence if it existed or of that matter, as the case may be, are relevant.
 
Explanation: The expression ‘general or public right or custom or any matter of general or public interest` includes rights or customs or matters common to any considerable class of persons.
 
Illustration:-
 
The right of the villagers of a particular village to use the water of a particular well is a general right within the meaning of this section.”

 

Amendment of section 50, in section 50 of the principal Act, for the proviso, the following proviso shall be substituted, namely:-“Provided that such opinion shall not be sufficient in any civil or criminal proceedings, where a person has to prove that there was a marriage”

Special Provision  in the Cr.P.C ,Relating to Attendance of Experts in Courts :

The Code of Criminal Procedure, 1973 , Section 293. Reports of certain Government scientific experts.

(1)Any document purporting to be a report under the band of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.

(2)The court may, if it thinks fit, summon and examine any such expert as to the subject matter of his report.

(3)Where any such expert is summoned by a court and he is unable to attend personally, he may, unless the court has expressly directed him to appear personally, depute any responsible officer working with him to attend the court, if such officer is conversant with the facts of the case and can satisfactorily depose in court on his behalf

(4)This section applies to the following Government scientific experts, namely.

(a)Any Chemical Examiner or Assistant Chemical Examiner to Government;

(b)The Chief Inspector of Explosives;

(c)The Director of the Finger Print Bureau;

(d)The Director, Haffkeine Institute, Bombay;

(e)The Director [Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State forensic Science Laboratory];

(f)The Serologist to the Government.

The Power of High Court for Second Report :

Under Section 482 Cr.P.C the High Court is vested with inherent powers to call for second report from Chemical Examiner   ,Section 482 Cr.PC:"Nothing in this code shall be deemed to limit or effect the inherent powers of high court to make such orders as may be necessary to give effect to any order under this code or to prevent abuse of the process of any  court or otherwise to secure the ends of justice "


Some of the Rulings of Supreme Court&High Courts on Expert Evidences:

• Expert opinion need corroboration-AIR 1957 SC 318,AIR 1963 SC 1940

• Expert opinion must be supported by reasons-AIR 1974 Ker 308

 

• Expert evidence is weak type of evidence -1996 4 SCC 596 [Gopal Reddy V State of A.P ]

 

• Expert has to face Cross Examination to establish his creditability -1999 7 SC 280[State of H.P V Jai Lal ]

• The opinion of government experts are reliable in case of two conflicting reports - Cri.LJ 810 Raj Mohamaddan V State of H.P

• The expert opinion on hand writing needs corroboration -AIR 1964 SC 529 

 

• Blood grouping perfect test to determine paternity -AIR 1986 M.P 57

• No one can be compelled to give sample of blood for analysis -AIR 1993 SC 2295 [Goutam Kundu V State of W.B]

• The court can order blood test on respondent but can not compelled to give blood sample-AIR 1993 SC 2295[Sadashiv M Kheradkar V Nandini S . Kheeradkar]

• A medical man is called an expert, he is not a witness of fact,A medical witness ,who performs a post-mortem examination is a witness of fact-1960 CrLJ 1020[ Nagindra Bala Mitra vs Sunil Chandra Roy]

• Medical certificates or reports are worst form of hearsay evidence and the writer who wrote or issued it should be called upon to prove its contents else there will be plenty of chance to create false certificates and reports.

The author of the informative peice of  article is presently practicing Advocate ,Andhra Pradesh High Court ,Hyderabad  and also Legal consultant &Freelance Legal Researcher-  worked as Legal consultant to A.P Women's Commission for some time .

References : 

1. [1]http://en.wikipedia.org/wiki/Expert
2. http://www.indiankanoon.org/doc/1025384/
3. http://lawcommissionofindia.nic.in/reports/185thReport-PartV.pdf
4. http://www.vakilno1.com/bareacts/CrPc/s293.htm

LAW AND SOCIETY: Importance of Medical reports in Paternity,Impotence ,Sterility&Sexual offences cases.

LAW AND SOCIETY: Importance of Medical reports in Paternity,Impotence ,Sterility&Sexual offences cases.

Importance of Medical reports in Paternity,Impotence ,Sterility&Sexual offences cases.

Importance of Medical reports in Paternity,Impotence,Sterility&Sexual offences cases.

Overview :  

The court faces herculean task while adjudicating highly complicated &highly contested cases and judges faces litmus test in dealing  cases of paternity, impotent,infertility or sexual offences,when no other reliable evidence is available ,only available corroborating piece of evidence is medical evidence to prove the guilt of the person or adjudicate the sensitive issue pending before the court. 

Most complicated &typical cases not only attracts lawyers and academicians interest,but also arouses curiosity among the general public through constant media coverage;

• Paternity &Legitimate[through DNA technology] to prove children are not illegitimate ,born with in wed lock or determine biological father or mother.

• To declare husband impotent[incapable of sexual intercourse]

• To declare women infertile & issue of virginity. 

• To decide sexual offences cases-especially rape accused pleads that there was consent to sexual act ,medical evidence plays crucial role prove or disprove false charges of rape.

The panel of expert doctors or doctor give expertise report of the issues involved in such cases.

Paternity &Legitimate:


The question of legitimate or paternity plays crucial role in  cases of inheritance of property &legacy of the family,more than that, it will become a prestige or an emotional issue for a women or a child or adult,no child will prefer to call himself or herself illegitimate ,no women will bear stigma of being called unchaste women.
There is case pending against one of prominent Senior national leader for declaring him as biological father of the man.


The children born out of lawful marriage is called legitimate, As per Indian Evidence ,Act S.112 child born during continuing marriage  with in 280 days of divorce or death is presumed to legitimate or proved otherwise ,it is illegitimate child.
The world is facing science and technology revolution,the newer technologies like DNA /finger printing technology is helping the courts and prosecution in high profile complicated cases.One of the most complicated cases are paternity &legitimate case,the victims approach the court to declare that Mr. X is their biological parent and victims approach court their child is born with in the wedlock ,not as a result of extra-marital affair, also to prove that child is not bastard or illegitimate,when husband alleges he is not biological father child due to various reasons non- access,physically incapable of begetting child ,blood groups are not compatible.
A women can appraoch court to declare particular man to be father of her child,magistrate can award maintenance, but medical test like blood test is compulsory in such cases,there is no clear law,where husband can be forced to give blood.

Impotency: 


Impotency is the inability of a male to perform sexual intercourse,sterility is inability of male beget a child., medically ,a 9 yrs boy  to 90 yrs man is fertile,if sperms are present in semen ,the impotency &sterility is one of the ground to seek divorce under Hindu Marriage Act ,1955 and Special marriage Act,the wife alleges the husband is impotent and unable to consummate the marriage ,due to said impotency or sterility ,some times, husband denies that he is impotent and he counter alleges that his  wife is infertile ,then in a such scenario,concern court may refer couple to a panel of doctors for medical examination to elicit the expert opinion on their allegation of impotency &infertility.

The opinion of impotent is inferential,after examination of male genital organs.if doctor does not find any physical abnormalities ,gives an opinion that he is capable of sexual intercourse,the absence or poor physical development of penis may result impotent due to genetic defects.there is no such thing diminished potency or impotency,impotency may result to due to physical as well as mental diseases.in case of sterility ,examination of semen is essential.


The defence of impotency also pleaded in case of rape,adultery, and unnatural offences. 

Women Fertility and virginity  issue:  


This is age of surrogacy ,test tube baby advance fertility treatments[IVF],In medical sense ,women will be fertile from the puberty to menopause,there are instances children are born in age group of 50's.Any defect of sexual organs [vagina ]clearly seen and same will be recorded in medical opinion,some times,physical defects like malformed sexual organs [absence of vagina] /organic defects may result infertility or over over-exposure to  X -Rays may result infertility.
Virgin is female,who never experienced sexual intercourse,the question of virginity arises in cases of nullity of marriage,divorce,defamation and rape.however it is difficult to diagnose virginity,merely physical examination may not useful,there may be true virgin or false virgin,some time hymen may ruptured ,specially sportswomen ,due to exercises like cycling or injury, ,some times hymen may not rupture even during first sexual intercourse or several intercourse.The signs of virginity intact of hymen ,narrow vagina normal conditions of fourtchette and posterior commissure.

The absence of intact hymen or unruptured  hymen  is a presumption not a  absolute evidence of  virginity. 

It is very discriminatory to conduct virginity test before marriage or jobs,such test are banned in some countries.

In land mark Air Hostess case,The Supreme Court of India faulted AIR INDIA employment policy, imposing condition that Air hostess should be virgin after employment,as one of per-condition of employment,it was struck down on the ground that it is unconstitutional and highly discriminatory,it is case of gender  discrimination to women.
This verdict is highly regarded for upholding the concept of gender justice

Banned in India: The medical Examinations to test for previous sexual activity were commonly performed in India on the rape victims,it was banned on 29th of January, 2012.Human Rights Watch "had strongly criticized the test as "degrading and unscientific” and a second assault on traumatized women, and raised concerns about Indian courts bringing views of rape victims' general moral character into their rulings"
The virginity test is not real indicator of recent sexual activity and most women rights activists sought ban on it.

Sexual Offences :

As per Indian Penal Code ,A man commits rape if he has intercourse ,against her will  or with out consent or consent obtained out of fear, ,intoxication like drugs/alcohol  or unsoundness of mind or misrepresentation or fraud like  false promise of marriage ,The slightest penetration of penis is rape with or with out emission of semen.some time ,the rape can be committed with out any injury.a young boy or old man can commit offence of rape.the victim of rape can be child or old women ;On rape ,United Nations says : "a physical invasion of a sexual nature, committed on a person under circumstances which are coercive."

Rape  can be vaginal, oral, or anal penetration by the penis or any other object without consent of the other person,most experts opined definition of rape should be changed.

Important points in medical report  : 


1.The cloths: cloths of women provides strong indication of intercourse,condition of cloths ,loss of buttons ,the cloths can be damaged or torn conditions,all foreign particles found on cloths like semen,hair or blood,,in case of murder after rape ,naked body or semi naked body or torn cloths or disarranged ,it is indication  that women has been brutally raped and murdered to cover up crime.


2.Marks of violence: In case of struggle ,injuries or wounds on the body viz mouth,throat,lips,chest thighs,legs,hands,shoulders,breast or  bite marks causing bruises /cuts on nipples,neck,shoulders,chest wall,lower abdomen ,upper thighs etc.presence of blood or oozing of blood from vagina during violent rape. 
The physical signs of ordinary rape and gang rape are clearly visible  through physical examination of the victim.when two or more men over power women and commit rape ,there can be no resistance from the victim or victim may faint after gang rape.




3.The blood stains and seminal  stains or other injuries like hymen rupture /tear.


4. Venereal disease [esp.accused person]


5.Examination of accused man ,whether  he is capable of performing sexual intercourse ,especially man claims that he is impotent&pleads innocence or marks of violence on the accused in case of resistance.  


6.The  examination of vagina of victim through finger called "two finger test",there is lot debate about this test,many women activists seeking ban on "two finger test" as medical evidence of recent sexual activity,it is humiliating women and invasion of her privacy.It is human rights violation of women.
“The word finger testing sounds rude and is not used in the format now. The PV examination will be done only if the doctor feels that it is necessary and that too with the consent of the victim,” said a senior official in the Health Ministry of India,ministry made it optional,even  changes have also been made in the way description of clothes was made in old format. In the old  format, the description of clothes worn by victims included whether they were “attractive” or “rags” or were there “fresh tears, stains of blood/semen/mud, etc” on them.


7.Rape victim suffers from shock,trauma,and may also suffer from epileptic fits ,convulsions or mentally disturbances or even death may occur due to shock or bleeding or grave injuries to genitals.


The legal proof is important not a medical proof as rape is not medical diagnoses,no doctor can give opinion of rape ,the doctor can only state recent of sexual activity or injury or intoxication,it is very difficult to probe rape as witness are not available to corroborate the victim story,only circumstantial evidence are presented.There can true story of rape or false allegation of rape.The false rape can be disproved through medical evidence.  


The medical reports plays very important role in many complicated cases and new medical technology is helping the courts in resolving many contentious issues like  rape,paternity ,legitimacy etc. 

Disclaimer : This is not reference material or expert opinion ,only a informative piece of article.

References :

• http://en.wikipedia.org/wiki/Virginity_test

• http://www.indianexpress.com/news/govt-makes-finger-test-optional-for-rape-v/764085/

• Dr.K.S N Reddy : The Essentials of Forensic Medicine and Toxicology.

IMPORTANCE OF MEDICAL REPORTS/FORENSIC MEDICINE

IMPORTANCE OF MEDICAL REPORTS /FORENSIC MEDICINE 

OVERVIEW : 

The bondage of law and medicine is ancient one ,as old as Egyptian civilization,The code of Hammurabi [Babylon-2200 BC]is oldest code on medical -legal cases.The Forensic medicine or legal medicine  &Toxicology and medical jurisprudence gained lot of importance in the modern world due to newer technology like Finger Printing and DNA.

It is prudent for young police officers ,prosecuting officers,defence counsels and general public to gain fundamental knowledge of medical jurisprudence , forensic medicine  and toxicology.The forensic medicine deals with the medical aspects of law viz .death,injuries,sexual offences ,infant deaths, poisoning ,accidents, homicide.The Medical jurisprudence deals with the legal aspects of practice of medicine viz.medical negligence ,rights &duties of doctor ,professional misconduct.Both Forensic medicine and Medical Jurisprudence are very important subjects in the criminal Justice system.    
  

The medical students will be familiar with 'Medical Jurisprudence' , 'Forensic Medicine and Toxicology'.The 'Forensic medicine&Toxicology' is a branch of 'Medical Sciences',which plays crucial role in deciding medico-legal court cases.

The highly experienced forensic medicine professional act as expert witness and their evidence[as per Indian Evidence Act under section 45 e.g doctor,firearms expert,finger prints experts,handwriting experts etc are called expert witnesses]will be considered  crucial[or even clinching evidence] corroborative evidence in all court cases viz.cause of the death[medico-legal death investigation],time of death,sexual offences,paternity,fertility,determination of age etc.

INQUEST: 

An inquest is an detailed inquiry or investigation into the cause of death or sudden death,it is conducted , in case of suspicious or sudden death,murder ,mass killings ,killing by animals and accidents.

1. The Police inquest.
2. The Coroner inquest.
3. The magistrate inquest.
   

1.The Police Inquest : The police  conducts inquest  under section 174 of Criminal Procedure code ,1929 ,inform the local magistrate about the crime.

2.The Coroner Inquest : The corner inquest is conducted in Bombay /Calcutta under Coroner Act ,1871.No need to inform the crime to magistrate.The law commission in its report  206 ,in the year 2008 ,recommended enactment of central act  called Coroner Act 2008.

3.The Magistrate Inquest:The District Magistrate or Sub Divisional  Magistrate [District Collector or  Dy.Collector or Tahsildar ] is empowered to conduct inquest in cases of custodial death, prison death,police firing ,dowry deaths and exhumation under section 174 &Section 176 of Cr.PC   

In some countries like USA ,the coroner system is prevalent ,a coroner is a government official,who Investigates human deaths, determines cause of death for the issuing the death certificates,In India,in Bombay ,the corner system is prevalent as per  corner act ,1871.

AUTOPSY : 

The ancient Egyptians used to perform autopsy on corpses  ,the removal and examination of internal organs for religious practice of mummification.
The term Autopsy is a Greek term autopsia,  which mean "to see for oneself"In 44 BC, Julius Caesar was the subject of an official autopsy after, he was  murdered by rival senators.

The Autopsy on corpses will be performed for medical examination of human and animal body parts by the medical students and it is also done to ascertain the cause of the death in medico -legal cases or sudden or suspicious death.  

The Post-Morten examination and Post Morten certificate are other terms used in the modern world,they are medico legal reports on the request of the investigating officer for corroboration of criminal case in cases of assault,murder,rape,homicide and poisoning.The medical conduct autopsy after receiving request form from I.O,magistrate or coroner.

The reports consists of facts drawn from detailed observation of the body and the opinion formed basing on said  facts,the same will be attached to the case file to be produced in the court during criminal trial,this will become evidence,once doctor attends the court and testify the facts under the oath.

FUNDAMENTALS OF  MEDICAL REPORT. 

 
The medical report should be two parts consists of examination of body and the opinion ,The Examination of body consists both external and internal. No doctor should sign the medical report with out examining the body & observing due formalities ,including visiting scene of crime to form suitable  expert opinion on the cause of the death.If doctor does not visit the scene of crime ,he may not know all details of the crime. 

CASE PARTICULARS:
 
1.Name of deceased or victim and as entered in the Jail or Police record

2.Address,Age (Approx)  yrs; Sex : Male/Female
 
3.Body brought by (Name and rank of Police officials)
of Police Station 

4.Identified by Names & addresses of relatives/persons acquainted

PART-I 

SCHEDULE OF OBSERVATIONS

 GENERAL

(l)Height__ cms.(2)Weight__ Kgs.

(3)Physique -(a)lean/medium/obese-(b)Well built/average built/poor built/emaciated

(4)Identification features (if body is unidentified), Finger prints be taken on seperate sheet and attached by the doctor.

(5)Description of clothes worn-important features:

(6)Post-mortem Changes:(a)As seen during inquest,Whether rigor mortis present Temperature (Rectal) others, (b) As seen at Autopsy.

(7)(a)External general appearance-(b)State of eyes(c) Natural orifices

  

EXTERNAL EXAMINATION OF BODY PARTS:

EXTERNAL INJURIES:Mention Type,Shape,Length x Breadth&Depth of each injury and its relation to important body landmark.Indicate,which injuries are fresh and which are old and their duration.(i) Injuries be given serial number and mark similarly on the diagrams attached.(ii) In stab injuries, mention angles,margins and direction inside body.(iii) In fire arm injuries,mention about effects of fire also.

EXAMINATION OF BODY PARTS:

 1.EXAMINATION OF HEAD

• Scalp findings

• Skull(Describe fractures here & show them on body diagram enclosed)

• Meninges,meningeal spaces&Cerebral vessels(Hemorrhage&its locations,abnormal smell etc.be noted)

• Brain findings & Wt.(Wt._gms.)

• Orbital,nasal&aural cavities-findings

 2. EXAMINATION OF NECK

• Mouth, Tongue & Pharynx

• Larynx & Vocal cords

• Condition of neck tissues

• Thyroid & other cartilage conditions 

• Trachea

 3. EXAMINATION OF CHEST

• Ribs and Chest wall

• Oesophagus

• Trachea & Bronchial Tree

• Pleural Cavities 

• Pleural Cavities-R-L

• Lungs findings & Wt.- Rt.__ gms.&Lt._ gms.

• Pericardial Sac 

• Heart findings & Wt__

• Large blood vessels

 4. EXAMINATION OF ABDOMEN

• Condition of abdominal wall

• Peritoneum & Peritoneal cavity 

• Stomach(wall condition,contents&smell)(Weight__ gms.)

• Small intestines including appendix

• Large intestines & Mesentric vessels

• Liver including

• Gall bladder (wt _gms) 

• Spleen (wt._gms.)

• Pancreas 

• Kidneys finding & Wt. - Rt._ gms & Lt._ gms.

• Bladder & urethra 

• Pelvic cavity tissues

• Pelvic Bones 

• Examination of Genital organs(Note the condition of the vagina, scrotum, presence of foreign body,presence of foetus,semen or any other fluid,and contusion,abrasion in and around genital organs)[helpful in determining the sexual assault]

5.EXAMINATION OF SPINAL COLUMN&SPINAL CORD(To be opened where indicated)

PART-II

OPINION: 

 
i)Probable time since death(keep all factors including observations at inquest)

ii)Cause &manner of death-The cause of death to the best of my knowledge and belief is :-

(a)Immediate cause -

(b)Due to -

(c)Which of the injuries are ante-mortem/post-mortem& duration if antemortem ?

(d)Manner of causation of injuries

(e)Whether injuries (individually or collectively) are sufficient to cause death in ordinary course of nature or not ?

iii)Any other

SPECIMENS COLLECTED & HANDED OVER [Enclosures ] 

a)Viscera(Stomach with contents,small intestine with contents, sample of liver,kidney(one half of each),spleen, sample of blood on gauze piece (dried),any other viscera, preservative used)

b)Clothes

c)Photographs(Video cassettes in case of custody deaths, finger prints etc)

d)Foreign body(like bullet, ligature etc.)

e)Sample of preservative in cases of posioning &Sample of seal

g)lnquest papers (mention total number & initial them)

h)Slides from vagina, semen or any other material.

MEDICAL EXAMINATION OF RAPE VICTIM&PROCEDURES/ FORMALITIES:  

No doctor can examine women without prior request form from I.O or magistrate and no women can be forced to undergo medical examination,her prior consent is required,if victim is under 12 yrs or unsound mind ,the consent of parents or guardians must be taken in writing.

The victim should be examined in the presence of female nurse or attendant.The I.O should also ensure that victim should be taken to hospital immediately[not take bath or change cloths prior to medical examination]. 

The moot questions  for the doctor is

[1]whether there is recent evidence of sexual intercourse with presence of semen or other discharges.

[2]physical signs  to confirm use of the force viz. pain or oozing of blood  from vagina or bruises ,wounds,scratches,teeth bites  on the body parts e.g face,chest[breast],hands,thighs and genital organs. 

[3]Whether medical evidence confirm the allegations of sexual assault. 

  

OTHER PROCEDURAL FORMALITIES :

PM report in original,inquest papers,dead body,clothings and other articles (mention there) duly sealed (Nos.) handed over to police official No.of PS-whose signatures are herewith.Signature,Name of Medical Officer:(in block letters),Designation,Seal.


The medical report prepared by doctor should based on his own observation,the doctor should be able to defend the same in the court of law personally testifying ,he should not hesitate to give details of observation in the court and answer all questions diligently posed by the court and patiently face the cross examination of defence counsel by answering questions in an unbiased manner. He should confine himself to medical knowlegde,his role is furnishing the expert opinion of  the crime.The presumptions,conjectures and assumptions are not expert evidence or proof.There should be no scope for vagueness or inaccuracy in preparing the medical report.

THE MEDICAL CERTIFICATION OF DEATH :

India follows the International Statistical classification of diseases,injuries, and causes of the death as per classification ,the reports are prepared in India.No doctor should sign death certificate without examination of body.



The medical reports play crucial role in courts cases,it is corroborative peice of evidence in determining  the crime.It has become indispensable part of   criminal justice administration.

References :

1. http://en.wikipedia.org/wiki/Autopsy
2. http://en.wikipedia.org/wiki/Inquest
3. http://uppolice.up.nic.in/All%20Rules/Dr%20Training%20material%20for%20CD/Annex%202%20custodial%20rape%20death.pdf -NHRC guidelines in custodial deaths.
4. UN model format of Post-Mortem /autopsy report 
5. Dr.K.S Narayana Reddy:The Essentials of Forensic Medicine and toxicology.

Disclaimer :This is only informative peice of article not reference material or expertise work.



Next : Importance of Medical reports in Paternity,Impotence ,Sterility&Sexual offences cases.

Importance of Scene of Crime /Offence

Importance  of  Scene of Crime /Offence.

In Arushi murder case,CBI accused Rajesh Talwar &Nupur Talwar disturbing the scene of the offence.The scene of offence or scene of crime is one of the most important component of criminal investigation.It is a place where crime committed or reported, place where alleged crime has been committed by the accused,where victim body found dead or injured or raped,it can be murder,rape ,assault ,or it can be mass disaster like bridge or building collapse or railway accidents or road accidents,even theft or dacoity &other property related or  economic offences also,scene of crime is one of the most important component of investigation.

whenever police officer /investigating officer[I.O]receives information that crime/offence has committed ,foremost duty  of police officer is to rush to scene of crime or offence and  cordon off the area and starts investigating the crime in an logical manner,diligently and scientific manner,he should seek the help of experts like DNA/Finger print experts or medical experts to gather vital clues from the area.

He should not cause delay in sending dead body for postmortem to as-certain the  cause of the dead ,which proves vital in investigating the crime ,similarly he should send all materiel picked from scene of the crime [exhibits ]dispatch it   to forensic lab for further examination.

The action to be taken by the police:

1. First Information Report [FIR ]: As soon as police receives information about the commission of crime /offence, ,he should enter &note it in  general dairy  ;[a]date of &time of receipt of said information[b]mode of receiving information [telephone ,letter or in person][c]Name and address of informant[d]place &location of occurrence of crime.As per procedure,FIR should be sent to local magistrate.
2. Scene of Crime :  The concerned Investigating officer [IO] should rush to the scene of crime /offence with finger print experts,medical experts or other experts ,if necessary.
3. Procedural formalities : I.O should note the following[a] Time of arrival[b] condition of victim[c] no. of persons present &their details at the scene of crime[d]other information.
4. Examination of Victim /Body :if victim is alive ,he /she should be shifted to local hospital for treatment.Note the Details of Victim/dead body:[a]What is identity of the body[b]What is condition of body  [e.g on set of putrefaction  or highly decomposed][c]What are nature of wounds found on injured or dead  body [cuts,wounds,burns,spells  of acid or petrol or other smells  etc][d]What are conditions of clothing[strains,tears,buttons].
5. Shifting body: One of the most difficult job is shifting dead body to nearest civil hospital for conducting postmortem and getting the doctors report.This is most difficult and embarrassing job for police ,because some times dead bodies will be in very bad or decomposed state[ with foul smell ],police find hard to gather people to shift the  dead bodies.
6. Dying Declaration :One of the important job for police get Dying Declaration statement from the victim before magistrate,if his or her chances of survival is bleak.It is well established that dying declaration plays crucial role in crimes ,it is well accepted notion that dying man never lie,so his statement taken seriously ,while convicting the accused in the crime.  

  The scene of crime helps the police coming to the conclusion that;

• The alleged offence has been committed at a given place &time by the accused with eye witness present or circumstantial evidence  to prove the commission of the offence.
• Such offence has been committed by the accused with guilty mind /intention.
• In a stated manner.
• By exhibited means or instrument.
• The act or omission is punishable with prescribed punishment under provisions of the law.[IPC]   

The scene of offence is one of the important component in the investigation of the criminal cases.