Health Law Project.pdf

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW 2019-2020

PROJECT HEALTH AND MEDICINE LAW Topic: MEDICAL JURISPRUDENCE: AN ANALYSIS

SUBMITTED BY:

SUBMITTED TO:

SANKALP PATEL

DR. PREM KUMAR GAUTAM

160101131

ASSISTANT PROFESSOR (LAW)

B.A. LLB (HONS.), SEMESTER VIII

Dr. RMLNLU, LUCKNOW

ACKNOWLEDGMENT

I would like to express my gratitude to all those who gave me the possibility to complete this project. This project is the result of extensive literature study, hard work and labour put in to it to make it worth reading. I extend my heartily thank to Dr. Prem Kumar Gautam who inspired me to do this project. I am deeply indebted to him. I further extend my thanks to library staff of DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY who helped me in getting all the materials necessary for the project.

CHAPTERIZATION 1. Introduction 2. Fields of Forensic Science 3. Medical Evidence 4. Dying Declaration 5. Insanity 6. Insanity in Medical Terms 7. Indian Law on Insanity 8. Burden of Proof 9. Provision of Crpc 10. Judicial Interpretations 11. Conclusion and Suggestions

INTRODUCTION:Forensic Science or Medical Jurisprudence, also called forensics, the application of science to law. Forensic science uses highly developed technologies to uncover scientific evidence in a

variety of fields. Modern forensic science has a broad range of applications. It is used in civil cases such as forgeries, fraud, or negligence. It can help law-enforcement officials determine whether any laws or regulations have been violated in the marketing of foods and drinks, the manufacture of medicines, or the use of pesticides on crops. It can also determine whether automobile emissions are within a permissible level and whether drinking water meets legal purity requirements. Forensic science is used in monitoring the compliance of various countries with such international agreements as the Nuclear Non-Proliferation Treaty and the Chemical Weapons Convention and to learn whether a country is developing a secret nuclear weapons program. However, forensic science is most commonly used to investigate criminal cases involving a victim, such as assault, robbery, kidnapping, rape, or murder. Medical Jurisprudence which teaches the application of every branch of medical knowledge to the purposes of the law; hence its limits are, on the one hand, the requirements of the law, and on the other, the whole range of medicine. Anatomy, physiology, medicine, surgery, chemistry, physics and botany, lend their aid as necessity arises; arid in some cases all these branches of science are required to enable a court of law to arrive at a proper conclusion on a contested question affecting life or property.

The principles of science and law developed over the centuries in response to their differing objects of interest. Science, engineering, and technology seek knowledge through an open-ended search for expanded understanding, whose “truths” are subject to revision. Law, too, conducts an open-ended search for expanded understanding; however, it demands definite findings of fact at given points in time. When these two disciplines meet in the courtroom the differences between the two cultures are magnified. For example, the legal tradition of adversarial proceedings contrasts with the cooperative ethic of science. Even the search for truth does not serve the same aims and may not be subject to the same constraints and requirements. Simply stated, science,

engineering, and technology1 aim to understand, predict, modify, and control aspects of the natural and manufactured world, while the law seeks current truth about scientific and other facts of cases in order to serve the much different goal of justice between parties (as well as other societal goals). In today's high-technology society the two professions are increasingly often forced to interact in legal disputes involving patents, product liability, environmental torts, regulatory proceedings, and criminal cases. Further, law and science encounter each other in the laboratory through a number of federal actions governing intellectual property, research misconduct, access to research data, and conflicts of interest. The fact-finding agendas of the two disciplines now frequently have begun to overlap, if not merge. Because there is a general lack of understanding of each culture, these interactions often lead to a cognitive friction that is both disturbing and costly to society.

Fields of Forensic Science A Medico-legal expert should look at a dead body more with the eyes of a legal man than with the eyes of a medical man.1 Lyons2 has divided the wide field of Medical Jurisprudence under the following heads: I.

Identification of (i) wounded and (ii) the dead

II.

General examination of persons.

III.

Death: (i) Natural (ii) Unnatural- homicide, suicide, accidental and fabricated.

IV

Assaults,wounds and injuries (i) (ii) (iii) (iv)

V

Homicidal wounds, Sucidal wounds Accidental wounds Fabricated wounds and self- inflicted.

Sexual offences, Virginity, Impotency, Defloration, Pregnency, Birth, Delivery, Abortion,Infanticide, Foeticide and Unnatural sex offences.

VI 1 2

Insanity; and

Woodroffmand Amie Ali, LAW OF EVIDENCE,(1979) 14th Edn, p 1301 L.A. Lyons, MEDICAL JURISPRUDENCE FOR INDIA, 5TH Edn,1914

VII

Toxicology

MEDICAL EVIDENCE:A medical man is required to provide assistance to the cause of justice by furnishing certificates and reports consequent upon examination of a living person and a dead. I.

In civil cases, the opinion of a medical expert is revelant to prove, (i) Age, in matters of minority and majority disputes, (ii) Death, whether natural or unnatural, (iii) Ill health, required for leave on medical grounds from offices and exemption from court attendance, (iv) Certificate of fitness for Govt. Services and other jobs, whatever this is required according to rules, (v) Mental conditions of a person at the time of making a will, (vi) Mental capabilities of a person to manage his own state of affairs,

II.

In criminal matters , the opinion of a medical expert may be required to prove, (i) Types of hurt, injuries and their severity, (ii) Post- mortem report regarding the cause of death, time since death, manner of death, type of weapon or to prove the actual weapon involved in the case, (iii) Insanity and other mental disorders, (iv) Age, to decide minority or majority in sexual assault cases, validity of marriage and cases of kidnapping, (v) Drunkenness, delirium tremens, etc, (vi) Virginity or otherwise of a woman, (vii) Impotence, sterility of a man, (viii) Pregnancy and childbirth, gestation period, (ix) Medico- legal facts in sexual offences, (x) Dying declaration

OTHER DUTIES Examination of accused persons by medical practioner at the request of police officer under the provisions of Section 53 CrPC,1973- Section 53 states:

“(1) When a person is arrested on a charge of commiting an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his personal will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as it is reasonably for that purpose. (2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner. Explanation- In this section and Section 54, ‘registered medical practitioner’ means a medical practitioner who possess any recognized medical qualification as defined in cluse (h) of Section (2) of the Indian Medicsal Council Act, 1956 (102 of 1956), and whose name has been entered in a State Medical Register.” In Kapil Kumar v State of Assam3 the Gauhati High Court held that subjecting an arrested person to medical examination under Section 53 forms a part of investigation as defined in Section 2(4) CrPc. Medical examination may include taking of blood, semen, sputum, urine, etc, and taking of their samples as well. The collection of sample may inflict some tourture or pain and this allowed by law. Even such reasonable force can be used to subject an arrested person to medical examination that may discomfort him.

DYING DECLARATION A dying declaration is relevant and material evidence in the prosecution of the offenders and a truthful and reliable dying declaration may form the sole basis of conviction even though it is not corroborated. But the court must be satisfied that the dying declaration is truthful. If the court finds that circumstances of the case, consider it unsafe to convict the accused on the basis of the declaration alone without further corroboration.4 A dying declaration cannot be equated with the evidence of an accomplice or the evidence furnished by a confession as against the maker of the confession. The declaration, like the evidence of an accomplice, does not come form a tainted source. Generally, the maker of a dying declaration cannot be tarnished with the same brush as the maker of a confession or an approver.5 The statement of a medical officer who had attended on the deceased showed that the deceased was in critical condition whe he reached the hospital. He was in severe bodily pain and 3

1983 Cri LJ (NOC) 66 (Gau.) Thurukanni Pompiah v. State of Mysore, IR 1956 SC 939 : (1956) 2 Cri LJ 31 5 Khushal Rao v. State of Bombay, AIR 1958 SC 22 : 1958 Cri LJ 106 4

in state of profound depression resulting from the injury. There was profuse bleeding from his injury, his pulse was feeble, and blood pressure was not recordable. In these circumstances the deceased could not be said to be in a fit mental and physical condition to make a statement of his own volition after he reached the hospital. 6 The dying declaration amply corroborated by circumstantial evidence as also by the medical evidence cannot be ignored or discarded because it did not mention the mane of certain persons and it did not account for certain injuries received by the accused persons. 7 The fact that the language used in the dying declaration is chaste, while that used in F.I.R. as well as the statement to the police officer have some words which are spoken in villages is not in much significance because there is abnormal or unusual chaste and refined language while taking to another.8 Where the deceased gave the narration in Punjabi but the statement was recorded in Udru it was held that in Punjab, the language used in subordinate courts and that employed by the police for recording of statement has always been Urdu. The recording, therefore , of the dying declaration in Urdu cannot be a basis for saying that the statement was not correctly reproduced. This is wholly inadequate reason for rejecting the dying declaration. 9 When the deceased had died as a consequence of burns caused by her clothes being set on fire by the accused and this is supported by her dying declaration, the correctness of which has not been challenged by cogent reasons, conviction based on such evidence is sustainable. 10 In Brij Raj Singh case11, there was mention of one shot in the dying declaration. The autopsy report mentioned two injuries, one inward and the other outward which was indicative of two wounds caused by two separate shots. The High Court held that the dying declaration cannot be falsified on the ground that the victim must have sustained two wounds by two separate shots.

6

Balak Ram v. State of U.P., (1975) 3 SCC 219 : 1974 SCC (Cri) 837 : AIR 1974 SC 2165 Ghurphekan v. State of U.P.,1972 SCC (Cri) 531 8 Barati v. State of U.P., AIR 1974 SC 839 9 Bakhshish Singh v. State of Punjab, AIR 1957 SC 904 10 Tarachand Damu Sutar v. State of Maharastra, AIR 1962 SC 130 11 Brij Raj Singh v. State, 1983 Cri LJ 1916 (All). 7

INSANITY:- The meaning of insanity in civil law, medicine and neuroscience is different from its meaning in criminal law.

Insanity in Law Insanity or unsoundness of mind is not defined in the act. It means a disorder of the mind, which impairs the cognitive faculty; that is, the reasoning capacity of man to such an extent as to render him incapable of understanding consequences of his actions. It means that the person is incapable of knowing the nature of the act or of realising that the act is wrong or contrary to law12. A person, although of unsound mind, who knows that he is committing an unlawful act, may not get the benefit of IPC, s. 84. The nature and extent of the unsoundness must be so high so as to impair his reasoning capacity and that he may not understand the nature of the act or that it is contrary to law.It excludes from its preview insanity, which might be caused by engendered by emotional or volitional factors. There are four kinds of person who may be said to be non compos mentis (not of sound mind) (1) an idiot – an idiot is one who from birth had defective mental capacity. This infirmity in him is perpetual without lucid intervals; (2) one made so by illness – by illness, a person is made non compos mentis. He is therefore excused in case of criminal liability, which he acts under the influence of this disorder; (3) a lunatic or a madman – lunatics are those who become insane and whose incapacity might be or was temporary or intermittent. A lunatic is afflicted by mental disorder only at certain period and vicissitudes, having intervals of reason 13; and (4) one who is drunk – this is covered under IPC, s. 85.

Insanity in Medical Terms There is a difference between the medical definitions of insanity. According to medical science, insanity is a disorder of the mind that impairs the mental facilities of a man 14. Insanity is another name for mental abnormalities due to various factors and exists in various degrees 15. Insanity is

12

13 14

15

Basu’s Indian Penal Code, 9th ed, 2006. 7 Russell, Vol. 1, (12th ed.), pp. 105. KD Gaur. Srivastava, R.C., Law Relating to Crime and Punishment, 2006, Manav Law House, Allahabad.

popularly denoted by idiocy, madness, lunacy, to describe mental derangement, mental disorder and all other forms of mental abnormalities known to medical science. Insanity in medical terms encompasses much broader concept than insanity in medical terms. Therefore, the scope of the meaning of insanity in medical terms is much wider when compared to its legal meaning. ENGLISH LAW ON INSANITY The English law on insanity is based on the Mc’Naghten rules.

Development of the Law The insanity defence has a long history, and is evolved after many tests that have been tried and tested. Wild Beast test: It was the first test to check insanity that was laid down in the case of Arnold Case in 1724. Justice Tracy, a 13th century judge in King Edward’s court, first formulated the foundation of an insanity defense when he instructed the jury that it must acquit by reason of insanity if it found the defendant to be a madman which he described as ‘a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast, such a one is never the object of punishment’ 16. Good and Evil test: This test was laid down in the case of R vs. Madfield. The test laid down in this case is ‘the ability to distinguish between good and evil’. In this case, the accused was charged or treason for attempting to kill the King. The defence pleaded that he was not able to distinguish between good and evil and ‘wild beast test’ was unreasonable. He was acquitted. Mc’Naghten test: The law relating to the defence of insanity is to be found in the rules set out in Mc’Naghten17 that delineate the circumstances in which an accused will be held not to have been legally responsible for his conduct.

INDIAN LAW ON INSANITY The Indian law relating to insanity has been codified in the IPC, s. 84 contained also the general exceptions. Indian Penal Code, s. 84: ‘Acts of a person of unsound mind— Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is

16

Christopher Slobogin, An End to Insanity: Recasting the Role of Mental Disability in Criminal Cases, 86 Va. L. Rev. 1199, 1208 (2000). 17

(1843) 10 Cl & F 200.

incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law’.

IPC, s. 84 and the Mc’Naghten rule: IPC, s. 84 deals with the law of insanity on the subject. This provision is made from the Mc’Naghten rules of England. In the draft penal code, Lord Macaulay suggested two sections (66 and 67), one stating that ‘nothing is an offence which is done by a person in a state of idiocy’ and the other stating that ‘nothing is an offence which a person does in consequence of being mad or delirious at the time of doing it’ to deal with insanity. The Law Commissioners in replacing these two provisions by IPC, s. 84 have adopted a brief and succinct form of the Mc’Naghten rules. It has been drafted in the light of the replies to the second and third questions, which is generally known as Mc’Naghten rules. But, IPC, s. 84 uses a more comprehensible term ‘unsoundness of mind’ instead of insanity. Huda says the use of the word ‘unsoundness of mind’ instead of insanity has the advantage of doing away with the necessity of defining insanity and of artificially bringing within its scope different conditions and affliction of mind which ordinarily do not come within its meaning, but which nonetheless stand on the same footing in regard to the exemptions from criminal liability. 18

Ingredients This provision states that an unsoundness of mind is a defence to criminal charges. It is accepted as a defence to a criminal charge on the theory that ‘one who is insane has no mind and may not have the necessary mens rea to commit a crime’.19 The act of a mad person is unintentional and involuntary, no court may correct him by way of punishment.20 To invoke the benefit of IPC, s. 84, it must be proved that at the time of commission of the offence, the accused was insane and the unsoundness of mind was of such a degree and nature as to fulfill any one of the test laid down in the provision. These are:

18

Huda, S.S. Principles of Law of Crimes in British India, as quoted in K.D. Gaur,

‘Commentary on Indian Penal Code’, 1st ed. 2006, Universal, pp. 271. 19

Gour, Penal Law of India, 11th ed. Vol. 1, 2000, pp. 602: ‘A mad man has no will’; Furoisis nulla voluntas east; as quoted in KD Gaur. 20 Ibid.

(1) firstly, the accused was incapable of knowing the nature of the act. It covers two situations, namely, automatism and mistake of fact due to unsoundness of mind as a defence 21; and (2) secondly, that the accused was precluded by reason of unsoundness of mind from understanding that what he was doing was either wrong or contrary to law. It covers those cases wherein a man by reason of delusion is unable to appreciate the distinction between right and wrong22. The accused is protected not only when, on the account of insanity, he was incapable of knowing the nature of the act, but also when he did not know either the act was wrong or it was contrary to the law. He is however, not protected if he knew that what he was doing was wrong, even if he did not know that it was contrary to the nature of the law or vice versa23. The defence of insanity may be established if it is proved that at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature or quality of the act he was doing, or if he did know it, that he did not know that he was doing what was wrong 24. The benefit of this provision may be taken only if at the time of committing the crime, the offender by reason of unsoundness of mind was incapable of knowing the real nature of his act or that the act was morally wrong or contrary to law25. The Cuttuck High Court has laid down certain principles in the case of Sundra Majhi26: (1) every type of insanity is not legal insanity; the cognitive faculty must be so destroyed as to render one incapable of knowing the nature of his act or that what he is doing is wrong or contrary to law; (2) the court will presume the absence of such insanity; (3) the burden of proof of legal insanity is on the accused, though it is not as heavy as on the prosecution; (4) the court must consider whether the accused suffered from legal insanity at the time when the offence was committed;

21

Pillai, K.N. Chandrasekharan, General Principles of Criminal Law, 1st Ed., reprint, 2005, Eastern Book Company, Lucknow. 22 Ibid. 23 Geron Ali, (1940) 2 Cal 329 as quoted in Ratanlal And Dhirajlal. 24 Mc’Naughten case. 25 State of Madhya Pradesh vs. Ahmedullah AIR 1961 SC 998, Dahyabhai C. Thakur vs. State of Gujarat AIR 1964 SC 1563 26 1971 Cut LT 565.

(5) in reaching such a conclusion the circumstances which preceded, attended or followed the crime are relevant considerations; and (6) the prosecution in discharging its burden in the face of the plea of legal insanity has merely to prove the basic fact and rely upon the normal presumption of that everyone knows the law and the natural consequences of his act. The law on the point has been well summarised by their Lordships of the Calcutta High Court in Kader Nasayer Shah in the following words: ‘it is only unsoundness of mind which materially impairs the cognitive faculties of the mind that may form a ground of exemption from certain responsibility, the nature and extent of unsoundness of mind required being such a nature would make the offender incapable of knowing the nature of the act, or that he is doing what is (1) wrong or (2) contrary to law27.

Burden of proof

The principle that the court follows is that ‘every person is sane unless contrary is proved’ 28. The onus of proving insanity is one the person who is pleading it as a defence. In the case of State of Madhya Pradesh vs. Ahamadullah29, it was observed that burden of proof is on the accused. The Supreme Court also upheld the principle in the case of S.W. Mohammed vs. State of Maharastra30 and said that the accused have to prove that he is insane. However, this requirement of proof is not heavy as on the prosecution to prove the offence and is based on balance of probabilities. It has been criticised that the McNaughton rules of the 19th century England, on which IPC, s. 84 is based are outdated since they do not provide protection under IPC, s. 84 to behaviour out of abnormality of mind, or partial delusion, irresistible impulse or compulsive behaviour of a psychopath. Court in India also stressed the need for adopting a more progressive attitude in the application of law related to insanity. The Indian Law of insanity must be amended and the concept of diminished responsibility must be inserted.

27

1896 ILR 23 Cal 604 (608) as quoted in Gour, Hari Singh, The Penal Law of India, Vol. 1, 11th ed., 2002, Law Publishers (India) Pvt. Ltd., Allahabad. 28

Allen, Michael, Textbook on Criminal Law, 7th ed., 2003, Oxford University Press, AIR 1961 SC 998 30 AIR 1972 SC 216 29

PROVISIONS OF THE CODE OF CRIMINAL PROCEDURE ,

197331

The procedure for the trial of insane person is laid down in the Code of Criminal Procedure, 1973, Chapter XXV. Code of Criminal Procedure, 1972, ss. 328 and 329 deals with the procedure to be followed in case the accused is a lunatic. It says that when a magistrate while conducting an inquiry feels that the person is of unsound mind and consequently, incapable of making his defence, he may ask a medical officer to examine the person and postpone the trial of the case. Code of Criminal Procedure. 1973, s. 330 provides that when an accused is found to be a lunatic, he will be released on bail provided that sufficient security is given that he will not harm himself or any other person. If sufficient security is not given or the court thinks that bail may not be granted, the accused will be detained in safe custody. Code of Criminal Procedure, 1973, s. 331 provides that when an inquiry is postponed under Code of Criminal Procedure, 1973, ss. 328 and 329, the magistrate will resume the inquiry at any time after the person concerned ceases to be of unsound mind. The inquiry will proceed against the accused when the magistrate thinks that he is capable of making the defence as per Code of Criminal Procedure, 1973, s. 332. Code of Criminal Procedure, 1973, s. 333 says that when the accused is at the time of the inquiry is of sound mind, but he was of unsound mind at the time of committing the offence, the Magistrate will proceed with the case. Code of Criminal Procedure, 1973, s. 334 states that when any person is acquitted on the ground that at the time of committing the offence, he was by reason of unsoundness of mind incapable of knowing the nature of the act or that it is contrary to law, the state will specify whether he committed the act or not. Code of Criminal Procedure, 1973, s. 338 says that when the person detained under Code of Criminal Procedure, 1973, ss. 330(2) or 335 and the inspector general certify that in his judgment, he may be released without danger to himself or any other person, the state government may order him to be released or to be detained in custody or to be sent to a public lunatic asylum. The Code of Criminal Procedure, 1973 also makes favourable provisions for the infants. JUDICIAL INTERPRETATION Ratanlal vs. State of MP32 31

32

Code of Criminal Procedure, 1973, ss. 328 to 339. AIR 1971 SC 778.

The appellant on 22 January 1965, set fire to the grass lying in the khalyan of Nemichand. On being asked why he did it, the accused said; ‘I burnt it; do whatever you want’. The accused was arrested on 23 January 1965. He was referred to a mental hospital. The psychiatrist of the hospital reported that the accused remained silent, was a case of maniac depressive psychosis, and needs treatment. The report declared the accused to be a lunatic in terms of the Indian Lunatic Act, 1912. The issue before the courts was whether insanity might be used as defence against a charge of mischief by fire with intent to cause damage under the IPC, s. 435. The crucial point in this case was whether unsound mind may be established at the time of commission of the act. The Supreme Court held that the person was insane and acquitted him. Dayabhai Chhaganbhai Thakkar vs. State of Gujarat 33 In this case, the accused was charged and convicted under the IPC, s. 302 for the murder of his wife. The accused killed his wife with wife by inflicting her with 44 knife injuries on her body. The accused raised the plea of insanity at the trial court. Trial court however rejected the contention on the ground that the statements made to the police immediately after the incident did not showed any sign of insanity. This conviction was confirmed by the high court. The accused made an appeal to the Supreme Court. The Supreme Court also upheld the conviction of the accused and laid down certain criteria according to which a accused in entitled to the defence under the provision. It said that in determining whether the accused has established his case under the perview of Indian Pena lcode, 1860, s. 84, ‘the court has to consider the circumstances which preceded, attended and followed the crime. The crucial point of time for determining the state of mind of the accused is the time when the offence was committed. The relevant facts are motive for the crime, the previous history as to mental condition of the accused, the state of his mind at the time of the offence, and the events immediately after the incident that throw a light on the state of his mind’. Ashiruddin vs. King34

33

AIR 1964 SC 1563.

34

AIR 1949 Cal 182.

In this case, Ashruddin had killed his son while acting under the delusion of a dream believing it to be right. The accused had dreamt that he was commanded by someone to sacrifice his son of five years. The next morning the accused took his son to mosque and killed him by thrusting a knife in his throat. The Calcutta High Court observed that it was a case of insanity under IPC, s. 84 and discharged the accused from criminal liability. The court said that in order to enable an accused to obtain the benefit of the aforesaid provision, he must establish any one of the following three elements (1) the nature of the act was not known to the accused; (2) the act was not known by him to be contrary of law; or (3) the accused did not knew that the act was wrong. The Bench held that the third element was established by the accused, namely, that the accused did not knew that the act was wrong. This was obvious on the ground that the accused was laboring under the belief that the dream was a reality. However, this view of the Calcutta High Court was criticised by Allahabad High Court in the case of Laxmi vs. State35 as ‘it will be open to an accused in every case to plead that he had dreamt a dream enjoining him to do a criminal act, and believing that his dream was a command by a higher authority, he was impelled to do a criminal act, and therefore, he would be protected by IPC, s. 84. It also said that it was a case of medical insanity and not legal insanity.

CONCLUSION AND SUGGESTIONS The introduction of medical jurisprudence has immensely benefited both the medical and the legal field of work. A better understanding and cooperation has resulted and has facilitated a smoother working of both disciplines. Previously unsolvable cases are now solved with ease with the development of the field of medical jurisprudence. It covers in its ambit the provision of evidence for a wide range and scope of cases. It can be used to determine the Paternity of a child and also be employed in determining the identity of human bodies, which have been mutilated beyond recognition in accidents like bomb blasts, factory explosions etc. In the field of Evidence

35

AIR 1953 All 534.

Laws, it can be appropriated to solve cases involving murder, rape etc. Medical jurisprudence techniques like autopsy can also be employed to discover important facts vital to the case. However, despite their vast benefits to the field of law, medical jurisprudential techniques are not treated as primary evidence till date. The present Indian Evidence Act continues to treat technical findings, such as the results of DNA tests, as expert evidence. This situation will continue till a legislation is drafted and enacted by the Parliament. Under section 45 of the Indian Evidence Act, 1872, it has been, inter alia, provided that, when the court has to form an opinion upon a point of science, or art, or as to identity of handwriting or finger impression, the opinions upon the point of persons specially skilled in science or art or any question as to identity of handwriting or finger impressions are relevant facts and such persons are called experts. The expression opinions upon a point of science of persons specially skilled in science is capable of application to all future advances in science which enable an expert opinion on a point. Due to the heavy misuse and lack of knowledge of the courts as regards scientific evidence, they are hesitant in applying these techniques. In order to determine whether scientific evidence is admissible, the court may consider(1) whether the principle or technique has been or can be reliably tested, 2) whether it has been subjected to peer review or publication, (3) its known or potential rate of error, (4) whether there are standards or organizations controlling the procedures of the technique, (5) whether it is generally accepted by the community, and (6) whether the technique was created or conducted independently of the litigation. The situation appears hearty only as regards autopsy reports, which have been given the status of documentary evidence under the Indian Evidence Act. The merit attached to them, however, remains subjective and varies from case to case. The complete benefit of these medical jurisprudential techniques can be enjoyed only by an enactment recognizing these techniques as primary evidence, giving it the credit it deserves.

BIBLIOGRAPHY BOOKS REFFERED:1.

Woodroffmand Amie Ali, LAW OF EVIDENCE,(1979) 14th Edn

2.

L.A. Lyons, MEDICAL JURISPRUDENCE FOR INDIA, 5 TH Edn,1914

3. Basu’s Indian Penal Code, 9th ed, 2006. 4. Russell, Vol. 1, (12th ed.) 5. KD Gaur. 6. Allen, Michael, Textbook on Criminal Law, 7th ed., 2003, Oxford University Press 7. The Penal Law of India, Vol. 1, 11th ed., 2002, Law Publishers (India) Pvt. Ltd., Allahabad.