MEDICO-LEGAL EVIDENCE AND ITS RELEVANCE

Transcription

1 CHAPTER VI MEDICO-LEGAL EVIDENCE AND ITS RELEVANCE 6.1 Introduction In every trial for manslaughter or for the offence of causing hurt to human body, opinions of medical officers are invited to ascertain the cause of death, injuries, whether the injuries are anti-mortem or post mortem, the probable weapon used, the effect of injuries, medicines, poisons, the consequences of wounds whether they are sufficient in the ordinary course of nature to cause death, the duration of injuries and the probable time of death. In such trial sometimes the plea of unsoundness of mind or minority is taken by the accused. In trials for offences of kidnapping and rape, the question invariably in dispute is the age of the person kidnapped or of the girl raped. In all such cases the medical opinion is adduced to establish minority. In rape cases apart from showing the minority of the girl, the medical opinion is tendered to establish the offence of rape. The medical evidence adduced by prosecution has great corroborative value. It proves that the injuries could have been caused in the manner alleged and the death could have been caused by the injuries so that the prosecution case being consistent with matters verifiable by medical science, there is no reason why the medical witness should not be believed. The use, which the defense can make of medical evidence, is to prove by it that the injuries could not possibly have been caused in the manner alleged or death could not possibly have been caused in the manner alleged by the prosecution. 139 The medico - legal work is of a specialized nature. It is entrusted to Medical officers who have knowledge about it and who have been trained. The quality of medico - legal work has its repercussions on law proceedings. 139 Singhal M.L., Medical Evidence and its Use in Trial of Cases, J.T.R.I.U.P. Journal First Year, Issue-3, Year-July-September,

2 All cases of burns, tetanus, poisoning and suspicious cases are to be treated as medico-legal. It may happen that cases at the time of admission may be purely surgical or medical, but later they may assume medico legal importance on account of changed circumstances. Age certificates in many cases are of medico legal importance. Deaths on the cause of which cannot be certified are medico legal cases Medico-legal Evidence A medical practitioner will have to frequently give medical evidence to prove the innocence or guilt of the accused, or to authenticate or disprove a criminal charge of assault, rape or murder brought against an individual. Medical evidence consists of doctor s report of the examination, reports of the chemical examiner and serologist, and the doctor s oral evidence Meaning Medical evidence given before a Court of Law is of two forms 1. documentary 2. oral The documentary evidence is the evidence presented by the doctor, i.e., a. a medical certificate including the physical and mental state of a person b. a medico-legal report c. a dying declaration In the documented evidence, first the physical injuries are taken into consideration. In case of rape, more particularly ano-genital injuries as well as extra injuries (injuries on rest of the body) are examined properly. In other cases, only the victim is examined. In rape case, both the victim and the accused are examined. In case of victim, in the medical examination, age of the victim, marks of violence on the body, blood stains, virginity, depth of the injury, such factors are taken into consideration. The emotional state is also examined. The victim may be in depressive or maniac 140 Post mortem and Medico Legal work ref: Hospital Administration Manual (2012) Vol. 1 chapter XII. 141 Modi Jaisingh P., Modi s Medical Jurisprudence and Toxicology, ed. by K.Mthiharan and Paranaik Amrit K., (2005) Lexis Nevis, Butterworths 87

3 state. The intellectual state of the victim may have been hampered. She may be suffering from illusions, hallucinations, sometimes her behavior may have become psychopathic. The mental state of the accused is also examined. Because sometimes it may happen that the accused wants to prove himself as an insane person, which he may not be. He may be pretending to get exempted from the punishment. The samples and specimens are collected from body or clothing, including 1. Seminal fluids : Semen is a human body fluid, a stain of which is of then involved in sexual offences. Examination of semen is generally done for the forensic purpose. The presence of blood stains with or without seminal stains is caused by the physical violence associated with sexual offences. 2. Head hair, public hair : With the help of examination of head hair, it may be possible to understand many things. Examination of public hair helps in sex determination. The signs like sindoor on the forehead can be helpful to identify the person's religion. 3. Blood examination : Blood examination helps in understanding the sexual diseases. In case of poisoning, blood test is very important. Urine analysis helps when the patient is unconscious. 4. Debris : It means nail pieces or carbon debris. They help examining the patient. 5. Bones : In case of dead bodies, examination of bones, becomes important. The age determination is possible with the help of examination of elbow of a person. Examination of fingers helps understand the difference between a male and a female body Interview by Dr. Arya (ex-principal, Dhondumama Sathe College, Pune) on 28 th July

4 Medico legal evidence is collected generally from victim s body. In any legal action pursued in relation to her case this evidence is typically used to aid the investigation and prosecution of the accused. More specifically, the medico legal evidence taken from a sexually assaulted woman may be used in determining the occurrence of recent sexual activity and identifying the assailant and establishing the use of force or resistance. The medical forensic examination is conducted to collect available medico legal evidence for potential use in the court. In most regions, all relevant samples are collected from the victim during the examination. In some countries the examination provided comprises a number of key components: 1. Consent: Written consent is required from the victim of sexual assault prior to a medical forensic examination. She is asked to consent to the release of the evidence to relevant law enforcement, court related services. 2. Medical History: A medical history is commonly taken to assess the victim s state of health and identify any pre existing health problems that might be relevant to her care. The information taken as a part of history may or may not be forwarded to the police. 3. Sexual Assault History: The victim is usually asked to recount the relevant details of the sexual assault including the date, time, location as well as the details about the assailant. This account of the assault can be used to guide the medical forensic examination. The victim is also asked to provide information as whether she bathed, changed her clothes, etc. since the assault took place. 4. Medico Legal Findings: The clothing worn by the victim at the time of sexual assault is often collected, if available. It is then secured in a bag together with any trace evidence found on it. The woman s hair may be combed to capture any foreign hairs or materials. She may also be asked to provide a urine or blood sample. A physical examination follows in which both the extra neutral and genital injuries and marks are documented. 89

5 The abrasions lacerations, swelling, bites and scratches are documented. A speculum, colposcopes and staining agent like toluidine blue dye is used to further detect injuries to the genital. The injuries, if any, may be photographed and included as evidences. The skin is examined for secretions, such as semen and saliva and body cavities are swabbed for seruinal fluid. A victim's emotional state may be observed and recorded. In some areas a particular focus of the examination is on checking for evidence of defloration i.e. ruptured beymen. 5. Treatment Guidelines: The victim is frequently offered treatment for sexually transtruitted infections. She may also be given information on counseling and available social services and asked to return for follow up case Purpose of Medico-legal Evidence The purpose of Medico-legal evidence is to aid the investigation and prosecution of an accused. With the help of medico-legal evidence, in case of rape, it would be possible to determine whether a sexual activity occurred or not. The sexual assault or rape occurred or not can be understood with the help of medical examination only. When the accused is examined or when more than one suspect are examined, it becomes easy to identify the assailant. Though the law may not take into consideration how much resistance was there on the part of the victim. However, to understand whether the consent of the victim was given or not, the use of force of the accused or resistance by the victim can be established in the medico-legal evidence. More particularly, in case of drug related violence, the medical evidence can be used to indicate an inability to consent due to the influence of alcohol and drugs. 143 Janice Du Mont and Deborab White: The uses and impacted of medico legal evidence is sexual assault cases. A global review Sexual Violence Research Initiative published by World Health Organisation

6 The settings where medico-legal evidence is collected are hospitals, forensic institutes and police stations. From hospitals, one can collect birth certificate, death certificate, cause of death etc. From forensic institutions, poisoning, firearms etc. can be examined. From police stations, one can collect panchnamas, so that overall case can be examined. Generally, the samples are collected by the officers. The staff deals with the samples and evidence consists of doctors, police surgeons, forensic examiners, nurses, sonographist etc. Day by day, with the improvement in technology many other fields are included in the examination of medical evidence. The medical forensic examination is usually carried out within 72 hours of a sexual assault. After the period of 72 hours there is a possibility of not getting proper evidence from the samples. Processing of medico-legal evidence is necessary. When the samples are collected they are air-dried and sealed in separate containers. The possibility of mixing the specimen with others should be totally avoided. The life span of the sample is very less, i.e., why immediate processing is advised. The evidence may be stored or frozen in certain circumstances. In India, it is compulsory for the victim to prosecute and when the victim goes to the police to file F.I.R. it becomes mandatory for her to go through necessary medical examination. The medical forensic examination comprises of certain key components, such as taking medical history of the patient. The history of sexual assault incidence is also necessary, such as place, nature or duration of the act. In the examination, documentation of various medico-legal findings is necessary. There is a possibility that the same doctor or surgeon making the examination, may not be able to stand in the Court of Law as a medical witness. When in his place, another officer has to be present in the Court, the documents become important, At the same time, the treatment guidelines which are provided to the victim must be noted down more particularly in the document e.g., in a serious rape case, the treatment provided to the victim, can become a necessary proof of evidence. In the processing of medico-legal evidence, the evidence given by medical officer is handed over to a law enforcement 91

7 official who may either take it directly to a forensic laboratory or store it at the police station until it is to be analysed, once submitted to a forensic laboratory, the evidence is analysed and a report produced and then at the end, laboratory findings and documented injuries, may be introduced in the Court Relevancy of Medical Evidence Types of Medical Evidence Types of cases labeled as Medico-legal The following cases are to be considered as medico-legal and due police notifications in all these cases must be done. Where there is death /injury/debility/infirmity due to: 1. Poisoning 2. Injury with sharp object/fire-arms. 3. Tetanus. 4. Burns 5. Drowning 6. Death on the operation table or immediate postoperative death. 7. Death.injury in a woman within 7 years of marriage. 8. Conditions which require notification as per the laws for the time being in force. 9. Any other conditions where there is a suspicion of some foul play. 10. Where the cause of death is not certain. It is a common belief that all deaths, which occur within 24 hours of admission, become medico-legal cases. This is not true. When there is no doubt in establishing the cause of death and when there are no reasons to believe that there is any foul play, a death certificate can definitely be given by the treating physician. The above mentioned belief was established because in olden days a firm diagnosis as to the illness /cause of death, of patient could fairly be arrived at after 24 hours, by which time all the reports of the investigations were available. The scenario is different today with the advent of better and faster diagnostic means. 144 Interview by Dr. P. Vijaykumar, Medical Officer, at Belgaum on 14 th July

8 6.3.2 Articles to be Preserved for Medico-legal Cases Medico-legal evidence on the persons or the patients needs to be preserved and handed over to the police authorities for evidence in the court as soon as possible. These articles should be preserved in sealed covers for a maximum period of 3 months and subsequently destroyed after informing in writing to the police authorities concerned. In cases of polytrauma: 1. Clothing worn by the patient and showing evidence of stab, cut marks, firearm injury evidence, blood stains etc. 2. All foreign bodies like bullets etc. recovered from the body of the patient. In cases of poisoning: 1. Gastric lavage/gastric contents/ vomitus or soiled clothing should be preserved for chemical analysis. 2. Blood, urine samples should also be taken for chemical analysis. In cases of burns: 1. Soiled articles with inflammable substances, burnt pieces of clothing, scalp hair etc. 2. Blood sample for carbon monoxide levels. A comparative study had been made about the process of medico-legal evidence and it is stated as - Sexual assault victim/survivor is not obliged to submit to a medical forensic examination (e.g. Canada), in India, it is compulsory for the victim - May go to a facility for a medical forensic examination of her own volition (e.g. parts of France) or upon referral by the police or another government body (e.g. Iraq). Similar provision is there in India. In Russian Federation, sexual assault victim/survivor must undergo a mandatory medical forensic examination. However, in Lesotho, the victim is first presented to a 93

9 police station to have the assault documented, complete a report and or obtain a medical form or sexual assault kit that is then to be taken to the facility where the evidence is collected. In Philippines, the doctors have authorization for an examination from law enforcement, prosecution representative or judge. In Belize, none in place to guide the collection of medico legal evidence in cases of sexual assault. The protocols for medico-legal evidence are developed but not widely implemented in India, South Africa. However, in certain parts of Canada, they are thoroughly institutionalized. When the legal outcome studies reviewed, those undertaken specifically to evaluate the association with legal outcome of distinct types of medico legal evidence (e.g. anon genital injuries, sperm/semen), 13 retrospective reviews were conducted in Canada, Denmark, Finland, Norway and the United States and drew on cases of sexual assault reported to hospitals and their related police and or prosecution files. Some of the studies intended to evaluate the relationship with legal outcome of other factors, but which included either injury to the victim or physical or forensic evidence as variables in their designs, 31 studies had been conducted in Australia, Canada, United Kingdom and the United States, which are predominantly published in social science journals. Other studies are those that have constructed medico-legal evidence as a single yes no variable and examined its impact on legal outcome, 5 descriptive studies were conducted in Brazil, Canada and South Africa. In many studies attrition in the processing of sexual assault cases was associated with the victim/survivor s: a. Age(older) b. Socioeconomic status(poorer) c. Reputation(e.g. psychiatric history) d. Prior to an assault( e.g. drinking) e. During an assault ( e.g. lack of resistance) f. Following an assault ( e.g. promptness of report) 94

10 With the studies of medico-legal evidence in socio-cultural context, certain outcomes are noticed - 1) Male dominance, gender inequality, anti-woman and rape-supportive attitudes can influence the allocation of resources for sexual assault services and ultimately the existence, quality and effectiveness of medico-legal evidence. 2) These forces may determine the availability of trained staff, adequate facilities for the collection of evidence and the effective interagency co-ordination necessary for its processing 3) They may negatively influence the ways in which medico-legal protocols and technologies are constructed, as well as the practices of the professionals responsible for their use. 4) There are no formal rules related to corroboration of a sexual assault victim/survivor s testimony, but there is a continued demand in legal practice for corroboration based in part on widespread distrust of women. 5) Staff is not adequately prepared to collect and testify to medico-legal evidence and specimens are mishandled leading to results usually being unreliable. 6) Post sexual assault professionals (e.g. police, prosecutors, judges) attack woman s character and use her prior sexual history to discredit her (even where clearly irrelevant or prohibited) These studies have put forth certain questions and certain recommendations can accordingly be made. The minimum amount of medico-legal evidence is necessary to aid in the adjudication of a case. In circumstances of rape cases and murder cases, medico-legal evidence is most valuable. Recommendations There is a possibility of having direct influences of socio-cultural factors on the operations of services, the development of protocols, and the practices of sexual assault professionals, which may hamper the evidence. The improved training of sexual assault personnel will enhance the value of medico-legal evidence. The 95

11 medico-legal policies and protocols will certainly improve the efficacy of medicolegal evidence. The value and meaning of the medical forensic examination for sexual assault victim/survivors is to be understood. There is a need to further examine viable alternative measures for enhancing justice for victim/survivors of sexual assault. The measures be prioritized in terms of resources allocation vis a vis existing criminal justice and medico-legal practices Importance of Medical Evidence at Various Stages of Investigation The doctor, being a witness in the Court has to be careful and cautious while delivering a judgment. However, according to Indian Penal Code, the doctor is held liable under the following sections. The Indian Penal Code Section 191- Giving false evidence. Section 192- Fabricating false evidence Section 193- Punishment for false evidence. Section 197- Issuing or signing false medical certificate. Section 291: Deposition witness. The deposition of a civil surgeon or other medical witness taken and attested by a magistrate in the presence of the accused may be given in evidence in any injury or other proceeding under this section of law. Section 293: Reports of certain government scientific experts Such reports may be provided in person, or a responsible officer, who is conversant with the facts of the case, may be deputed to satisfactorily depose in court on his behalf. 145 Janice Du Mont & Deborah White Women s Worlds Madrid, Spain, July 8 th Sexual Violence Research Initiative, The uses and impacts of medico-legal evidence in sexual assault cases: A global review, Available from: 96

12 The Indian Evidence Act 1872 Section 45: Opinion of experts When the court has to form an opinion upon a point of foreign law, or of science or art, or as identity of handwriting [or finger impressions], the opinions upon that point of persons [experts], who are specially skilled in such issues are relevant facts. Section 61:Proof of contents of documents It means that the contents of documents may be proved either by primary or by secondary evidence. Section 62: Primary evidence It means that the document itself is produced in court. Medical witness Medical witness also plays an important role as an expert in case of injured patients. He owes an onerous duty towards maintenance of a proper case record, that involves: a) Noting down of injuries. b) Making entries in the accident register. c) Intimating to the police instances of accidents and deaths. d) Postmortem certificates, wound certificates etc. e) In addition, patient s own statement of injuries or dying declaration needs to be recorded diligently Post Mortem Report The concept of a medico legal autopsy has been mentioned in the Sections 174 and 176 of criminal Procedure code. S. 174 is related to that when the police officer receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence he shall immediately give information to the nearest Executive Magistrate, empowered to hold inquests and proceed to the place where the body of such deceased person is and shall make an investigation and draw up a report of the apparent cause of death, describing such wounds, fractures, 97

13 bruises and other marks of injury as may be found on the body and stating in what manner or by what weapon or instrument (if any) such marks appear to have been inflicted. When the case involves suicide by a woman within 7 years of her marriage or the case relates to the death of a woman within seven years of her marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman or the case relates to the death of woman within seven years of her marriage and any relative of the woman has made a request in this behalf or there is any doubt regarding the cause of death or the police officer for any other reason considers it expedient to do so. He shall, to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed. S. 176 states that when the case is of the nature, as mentioned in S. 174, the nearest Magistrate empowered to hold inquests shall make an inquiry into the cause of death. Where in certain circumstances, mentioned particularly in the section. The objective of the post mortem examination is to establish the identity of the body when not known, to ascertain the time since death and the cause of death, and whether the death was natural or unnatural and if unnatural, whether it was homicidal, suicidal or accidental. A medico legal post mortem can be conducted only after a written request has been made by the police or by the order of the court. It can be conducted only by a medical officer who has been authorized to do so. Medical officer should always try to study all the available facts of the case prior to post mortem examination, from inquest report, hospital records, summary of the death etc. The condition of the deceased before death must be perused to know his clinical condition, treatment and terminal events for taking precaution for self as well as staff of the mortuary in case of high risk infectious diseases like AIDS, rabies etc. in hospital deaths. 98

14 As per settled principles of law, post mortem report is not a public document. The opinion of Medical officer contained in the post mortem report is to aid the investigating officer in investigation. Post mortem report being an expert opinion can be given only on specific orders of the court on clear direction regarding issuing of the same, whether the post mortem report is to be supplied to the applicant or not. 146 Medical officers should remember that it is on the basis of case paper only, that they will be able to give evidence in the court of law and to stand the rigors of cross examination. The notes on case papers are essential for issue of medico legal certificates. Before starting a post mortem examination the Medical officer should read panchnama and the Police Report carefully. If either of them is illegible the fact should be brought to the notice of the police. If the Medical Officer finds any major discrepancy between the injuries as described in the documents and as found out by him, he should cause a fresh Panchanama to be made by a Magistrate. The Medical officer must do this at most to arrive at the cause of death or the probable cause of death. For this he must take into consideration all the findings. The cause of death is to be based only on the basis of findings and not on extraneous factors. Evidence in Court of Law It is important for the Medical Officer to realize that giving proper evidence in the court of law is necessary not only for projecting a good image of the medical department but also in the interest of law, order and justice. A person suffering from an injury may secondarily get tetanus infection as the result of which the patient may die. The original injury may also be a severe one. The Medical officer is called upon to give an opinion in the court of law, as regards whether the injury was primarily fatal. In this case the Medical Officer has to consider 146 Sirohiwal Basantal, Sharma Luv, Paliwal P. K., Critics and Skeptics of Medico legal Autopsy Guidelines in Indian context, Indian Acad Forensic Med. (Oct. Dec. 2013) Vol. 35 no

15 whether the injury, though severe by itself, could have given rise to fatality and whether it was not the secondary infection by tetanus bacilli that caused the fatality. The Medical Officer s opinions so important in this case that the life of person may well depend upon it. If the wound was not primarily fatal, the charge against the accused is mitigated. If a contrary opinion is given, the charge would be very serious. The important classification of injuries, besides that given above, isa) Wounds which are necessarily fatal. b) Wounds, sufficient in the ordinary course of events to cause death. c) Wounds likely to cause death. d) Grievous hurts, and e) Simple hurts. According to the rules of evidence, an ordinary witness is not supposed to state his conclusions but only facts. In the case of Medical Officer, however, he is considered as an expert witness and therefore, there is a great amount of significance attached to the opinion given by him. Medical Officers should not presume that the magnitude of the importance at their evidence parallels the magnitude of injuries. Even very ordinary injuries may be of very great medico-legal significance Post mortem and Medico-Legal work Ref. Hospital administration Manual (2012) Vol. 1 chapter XII. 100