Legal Provisions Related to Forensic Science

1) Constitution of Nepal, 2072 B.S.

Article 20 (9) is a constitutional guarantee of right to fair trial which requires trial based on fair, objective , scientific evidences . Such evidences are the outcome of forensic science.

Article 51 (k) 1 requires state to pursue policy relating to justice and penal system that will ensure justice administration in speedy, efficient, widely available, economical, impartial, effective and accountable manner. This is possible through wider application of Forensic science in our justice delivery system.

Article 51 (f) 4 requires state to pursue policy of enhancing investment in development of science. This requires application of forensic science in justice delivery to be promoted.

Keeping in view such triangular situation created as a result of above three constitutional provisions, the constitution impliedly conveys a clear message that state investment in forensic science and its increased use in investigation, prosecution, adjudication as well as in resolving civil disputes will be in tune with our constitutional spirit

2) Muluki Criminal Procedure Code, 2074 B.S.

a) Section 20 : As per this section , investigating authority after completing dead body examination has duty to send corpse for autopsy examination to a government medical doctor or to an expert designated in that behalf by the Government of Nepal or to a licensed medical doctor , at government expenses . If autopsy could not be possible due to decay , investigator has to execute a deed stating the same matter in the presence of local distinguished persons . But , if , in spite of corpse being decayed , there is possibility to find cause of death by any other scientific examination , it is to be performed . Post mortem could also be conducted by a team of experts in order to find out cause of death . Previously , laws were not clear regarding possibility of carrying such scientific examination in case of decayed corpse as well as regarding the possibility of expert team involvement in such examination . This scenario of confused legal vacuum has been addressed by the Code .

b) Section 21 : This includes provision for the examination of physical evidences such as blood , semen , hair or other part of body , arms , thing , object , DNA or any other physical evidence . Such evidences are to be conducted by a government medical doctor or a recognized laboratory .

c ) Section 22 : The legal provision in this section mandates medico - legal examination of wounds and injuries to be done through government doctor or health worker .

d) Section 23 : The new provision allowing investigating authority to take support of any expert in course of investigation has been introduced by the Code in this section . Such expert is paid and has duty to support investigator when support is requested.

e) Section 102 : Previously , the law was silent in case of death of expert . Currently , this section has clarified that in case of death or inability of opining expert to attend at court , the examination of another equal status expert witness is to be done .

f) Section 113 : Previously , there was no clear and specific law to provide allowance to expert witness but after the introduction of this section of the Code , expert witnesses currently are entitled to daily allowance , travel allowance and security . The concerned police office has duty to provide witnesses who appear before the court , on behalf of the Government of Nepal , in any cases listed in Schedule - 1 or Schedule - 2 with such daily and travel allowance as is receivable by the non - gazetted first class government employee and for expert witness with that of receivable by the gazetted third class officer under the prevailing laws .

3) Muluki Criminal Procedure Regulation, 2075 B.S.

a. Rule 8: Allows court authority to issue decree for conducting bodily examination of following persons in following situations- where a person is presented before court seeking permission to keep in custody , where custodian ownself or anybody on his behalf has applied to get bodily examination showing reasonable ground of custodial torture , where court is informed about need of bodily examination because of any other reason . The concerned hospital has duty to forward such examination report within 3 days through investigating authority and the report is to be attached in case file.

b. Rule 9: This provision confers power on court to recommend for departmental action against investigator who tortured custodian , alone with order for carrying required medical treatment of victim custodian , and order to provide interim relief amount to such custodian.

4) Crime Investigation Regulation, 2075 B.S.

a) Rule 14: Torture prevention through bodily examination of accused in course of interrogation prior to and after detention through government doctor as far as possible or through authorized doctor.

b) Rule 22: Audio - visual enquiry or statement of witness { disable / insecure } has to be recorded in pendrive or CD for re - listening , watching , reading ; statement in police can be recorded in audio - visual mode ; it is duty of concerned authority to store such certified record so as to prevent anyone from tampering it.

c) Rule 23: Concerned police office has to bear expenses for autopsy.

d) Rule 24: Imposes duty on examining doctor or lab to immediately forward examination report back to concerned police office after filling all legally required information as prescribed in various annexes:

1. Medico - legal examination of female subject in sexual offence ( Annex 11 )

2. Medico - legal examination of male subject in sexual offence ( Annex 12 )

3. Age Estimation Report ( Annex 13 )

4. Intoxication / Drunkenness Examination Report ( Annex 14 )

5. Consent of DNA giver for examination ( Annex 15 ) [ Investigation officer may forward for scientific or DNA examination to concerned body if deems necessary believing it could give significant evidence related to crime . ]

6. Forensic Examination Report of Lab ( Annex 16 ) [ for any exhibit ]

7. DNA Examination Report ( Annex 17 )

The detail columns and data to be filled by examining expert has been legally determined . This helps in uniformity in report through the country . Besides , following legal guidelines have been issued while filling these reports by experts :

i. Examination is to be performed by experts of forensic science as far as possible . If impossible , examination 2013 could be done even by doctor trained in forensics .

ii. The examining expert or doctor ownself has to prepare the report .

iii. Report has to be in computer typed format as far as possible . If not possible , the contents of report must be mentioned in a clearly understandable manner . The original copy of examination is to be attached together with report .

iv. Extra page can be used if the detail information could not be adjusted in the limited space given in the standard format of the annexes.

5) Evidence Act, 2031 B.S.

Section 13A: The second amendment to Evidence Act , 2031 B.S.36 has added section 13A according to which , items recorded in audio - visual electronic forms can be taken as evidence .

Section 18: The Act provides two exceptional situations in which expert opinions can be considered as direct evidence even if experts do not attend the court to testify opinion . Undisputed autopsy report and opinion expressed in an expert's book or article kept under public sale are these two exceptions .

Section 23: This provision defines expert . If a person acquires specific knowledge in the area of foreign law , science , arts , signature or fingerprint through special study , training or experience , the person is considered as expert and such expert's opinion is admissible as grevidence before court .

Section 35 (1): The second amendment to Evidence Act , 2031 B.S.37 has added explanation clause to section 35 ( 1 ) according to which " document " denotes anything kept in digital or electronic record . Section 52: It deals about examination - in - chief and cross examination of expert.Accordingly , when it is necessary to reach to the conclusion regarding any fact relating to signature , finger impression , law of a foreign country , science , custom - tradition , art or any other similar subject , the court may cause to appear , the person who deserves special expertise , experience or training and examine him / her as a witness . In case an expert witness is so examined by the court , it has to provide opportunity to the parties to the case for cross examination of such witness in accordance to the Act .

6) Police Act, 2012 B.S.

Section 22A: This Act provides that when a Police Office has found a dead body of a person who died of accident or by committing suicide or any other suspicious circumstances , no dead body shall be handed to medical institute or relatives without completing investigations including post mortem examination in according to law . If the police officer finds unknown deceased died naturally , it may hand over such corpus to medical college for study purpose or may arrange to cremate through the Local Village Development Committee or Municipality or social organization .

7) Muluki Criminal Code, 2074 B.S.

This statute does not have specific section that expressly mentions about relevancy of forensic science in justice administration . However , there are numerous crimes in which forensic examination report becomes significant for conviction by court . These crimes include 37 Id but are not limited to- abortion , malafide investigation and prosecution , hurt , adulteration in food and drugs , age estimation in rape and in child marriage , acid or chemical or corrosive attack , counterfeiting of coins and currency notes , negligent medical treatment etc.