Chapter 3: The Doctor and the Law

3.1: Criminal Procedure Code

• Criminal Procedure Code (CrPC) — which came into force with effect from April 1st, 1974.
• The entire law is covered in 484 sections in two schedules. These two provide machinery for the punishment of offenders against the substantive criminal law of the land.
• It is a procedural law. It deals with the constitution and structure of criminal courts, their classification and powers, and prescribes the procedure for criminal proceedings.
• Codified Law or Statute Law — law as laid down by the State and the Parliament.
• Common Law or Law of Torts — includes certain wrongs or injuries caused by one man to another, which are usually not covered by statute law.
• Indian Penal Code (IPC) — defines the various offenses and provides the punishments.

3.2: Courts in India

Courts of Law in India are of two types:

• Civil Courts — whereas criminal courts try only criminal cases.
• Criminal Courts — Supreme Court, High Court, Sessions Court, and Magistrates Court.
• Supreme Court — the highest judicial tribunal of the country and is located in New Delhi, the capital of India.
  • Powers of Supreme Court:
  • It is a court of appeal.
  • It supervises and interprets laws in the country.
  • The law declared by Supreme Court is binding on all other courts of the country.
  • It usually takes the cases referred from State High Courts.
  • Cases can also be filed directly in Supreme Court. • It can pass any sentence stated in the law.
• High Court — the highest judicial tribunal in the State and is located usually in the State Capital.
  • Powers of the High Court:
  • It is also a court of appeal.
  • It can take up all cases of criminal offenses.
  • It can pass all sentences authorized by the law.
• Session’s Court — this is the highest judicial tribunal for the district and is located in the district headquarters.
  • Powers of Session Courts:
  • It takes up only the cases of criminal offenses referred by Magistrate’s courts.
  • It can pass all sentences authorized by the law; the death sentence passed by it has to be confirmed by the High Court.

Magistrate’s Court

• Magistrate’s courts — criminal courts presided over by the Judicial/ Metropolitan Magistrates.

• Executive Magistrates — usually officers of the revenue department and placed in charge of a district, subdivision, or taluk and have all the powers of a district or sub-divisional magistrate.

• Judicial Magistrates — magistracy differs according to the population figures.

  • Functions of Chief Judicial Magistrate
  • CJM will be the chief of all other Judicial Magistrates in the district.
  • CJM will allocate work to different courts and supervise their functions in the district.
  • He can pass any sentence authorized by the law, except a death sentence, sentence of life imprisonment, or imprisonment for more than 7 years.

• Special Magistrate — a metropolitan, judicial, or executive magistrate, appointed for special purposes.

  • Railway Magistrate — the rank of First Class Judicial Magistrate and is appointed to try cases of offenses under The Railway Act.
  • Juvenile Magistrate — principal magistrate/ a chief judicial magistrate and usually a woman and she presides over a Juvenile Court and tries juvenile offenders, who are children less than eighteen years of age and are accused of having committed a crime.
  • Cases Tried by Judicial Magistrates:
    • Warrant case — a case relating to the commission of a cognizable offense. It makes one liable for arrest without a warrant.
    • Summons case — means that in cases of non-cognizable offenses and being not a warrant case, a police officer has no authority to arrest without a warrant.

• Public Prosecutor — a public servant, a legal expert, appointed by the Central or State Government for conducting court prosecutions or other proceedings like appeals, etc. on behalf of the government.

Coroner’s Court

• Coroner’s Court — a court of inquiry and not a court for trial presided by the officer appointed by the government, called Coroner.
• Duties and Powers of a Coroner:
  • To hold an inquiry in all cases of all unnatural or suspicious deaths, death of a prisoner, etc. dying within his jurisdiction.
  • To view the dead body and decide whether to hold an inquiry or not.
  • He can order any medical man, usually, a Police Surgeon, to hold a postmortem examination and summon him to give evidence in his court.
  • He can also summon other persons as expert witnesses.
  • He can order an exhumation examination of a dead body for identification and a medicolegal postmortem examination.
  • When a verdict of foul play is established in his court, he can issue a warrant for the arrest of the accused person for trial in the Magistrate’s Court. If the accused cannot be identified, he usually returns an open verdict against this unknown person.
  • Open verdict — It means that the inquest is adjourned indefinitely due to want of information and could be reopened at any later date if further information becomes available.
• Indications
  • When the cause of death is not found after autopsy due to putrefaction.
  • In cases of poisoning where evidence is not available to differentiate between accident and suicide.
• After the inquest, he forwards a copy to the Commissioner of Police.
  • He can grant remuneration to the medical man for attending the court for giving evidence. The fee offered is usually the traveling expense.
  • He can appoint a Deputy Coroner during his illness or unavoidable absence.

Legal Sentences that can be passed under Law

As per Section 53, IPC, on conviction, criminals are punished by:

• Death sentence is to be passed by the court of sessions, subject to confirmation by the High Court.
• Life imprisonment is to be passed by the court of sessions, the time usually comprises 20 years, which can be reduced to 14 years for the good behavior of the prisoner.
• Imprisonment types:
  • Rigorous imprisonment with hard labor — all courts and First Class Magistrate can pass this order.
  • Simple imprisonment — all courts and magistrates can pass this order.
  • Solitary imprisonment — all courts and First Class Magistrates can pass this order.
• Monetary fine: High Court and Sessions Court can impose any amount of fine.
  • But First Class Magistrate and Second Class Magistrate cannot impose more than Rs. 5000/- and Rs. 1000/- respectively.
• Attachment of movable property: This can be done by High Court, Sessions Court, and Chief Judicial/Metropolitan Magistrate as per the court’s direction and power.
• Detention in reformatories: This can be ordered by the Chief Judicial Magistrate or Judicial Magistrate of Juvenile Court, where the offender is below 18 years and sent to Reformatory Centres/Borstal Schools.

3.3: Exhumation

• Exhumation — a lawful disinterment or digging out of a buried dead body from the grave for examination.
• Exhumation is done with definite objectives and basically, they are:
  • Identification: Confirm individuality for civil or criminal purposes.
  • Autopsy with or without chemical examination of viscera in case of deaths, in which foul play is suspected.

Precautions at Exhumation

• The grave is first identified and after the grave is dug, the undertaker identifies the coffin, if any.
• The body has to be identified by as many persons as possible before sending for a postmortem examination.
• The following viscera and materials are sent for chemical analysis:
  • About 500 gm of soil from above, below, and in actual contact with the body.
  • Hairs from the head and pubic region.
  • Nails, teeth, and bones.
  • Viscera such as the liver, stomach, and intestines.

3.4: Inquest

• Inquest — the preliminary inquiry into the cause of sudden, suspicious, and unnatural death, which is not due to natural causes.

Types of Inquest

1. Magistrate Inquest —an inquest conducted by a District Magistrate, Subdivisional Magistrate, and magistrate of the first class rank or any other magistrate as empowered by the State Government.
   • Held cases of:
     • Lock-up deaths
     • Deaths while under police interrogation
     • Deaths in prison
     • Deaths in police custody
     • Deaths due to police firing
     • Exhumation
     • Alleged dowry death
     • In all cases where the police normally conduct inquests, the magistrate can hold an additional inquest, or in place of the police inquest.
2. Police Inquest — held by an Investigating Officer, not below the rank of Senior Head Constable.
   • Postmortem Reports — documentary evidence, always written by the doctor who has done the autopsy, in prescribed forms.
     • The first copy is sent to the investigating officer, through an authorized constable who collects the same.
     • The second copy is sent to the Police Superintendent or Magistrate of the area in a sealed cover.
     • The third copy is filed in the office files for further reference.
3. Coroner’s Inquest — an official, public inquiry, led by a coroner (and in some cases involving a jury) into the circumstances of a sudden, unexplained, or violent death.
4. Medical examiner’s system of the inquest — a type of inquest held by medical practitioners.
5. Procurator Fiscal — a type of inquest, charged statutorily with the duty of making public inquiry into the causes of fatal accidents, and in special circumstances of sudden death in Scotland.

3.5: Court Procedures in Criminal Courts

1. Attendance: Most of the medical reports/medical certificates are not acceptable in a court of law unless testified in the presence of the accused.

   1. The medical officer as an expert witness will have to attend the court on a particular day, during the trial, for deposition and cross-examination of the contents in the report issued by him to the court.

2. Subpoena — a document compelling the attendance of a witness on a particular day and time in a court of law under penalty.

   • Rules of Summons:
     • Criminal cases should be given preference over civil cases.
     • If both are criminal cases, higher courts should be given first preference. The medical officer should inform the other court that he or she is not attending.
     • If both cases are of the same ranking courts, summons received earlier should be attended to first.
     • Noncompliance to summons in a civil case may render one liable to an action for damages, but in a criminal case, a fine or even imprisonment (unless some satisfactory excuse is given) may be ordered.
     • He or she cannot leave the court without the permission of the magistrate or the judge.
     • If he or she fails to attend the summons in time, a warrant can be issued to compel his or her attendance.
     • An attendance certificate will be issued by the court on demand.

3. Warrant — an authority under the seal and signature of the presiding officer of a court to a person to be arrested and produced before the court to be dealt with according to law.

   • Bailable warrant
   • Non-bailable warrant
   • A court may issue this instead of or in addition to a summons for appearance in the court for the following reasons:
     • If there is reason to believe that he or she will abscond or will not obey the summons.
     • If a witness has failed to appear before without prior reasonable excuse, though served with summons.

4. Conduct Money — the fee offered to a witness in a civil case, at the time of serving of summons to cover the traveling expenses for attending the court.

5. Oath taking — Before the deposition of evidence begins, the witness must take an oath or affirmation. Unoathed evidence is not admissible to a court of law, except when a person is below 7 years of age.

6. Recording of evidence: After taking the oath, the recording of evidence will be done by following four steps:

   • Examination-in-chief
   • Cross-Examination
   • Re-examination
   • Court questions

3.6: Medical Evidence

Medical evidence could be in two forms:

1. Documentary evidence

   • Medical certificates — documents issued by a doctor only after confirming for what reasons it is being issued. It usually consists of three parts:
     • Date, time, and place of examination.
     • Name, age, and sex of the person to be examined with his/her signature and two identification marks.
     • Final opinion: Include the number of days of rest/such other advice given with reasoning. The name, Signature, Designation, Medical Council Registration Number, and address of the doctor with rubber stamp/seal should follow it.
   • Death certificate — must be issued in a specified manner, as suggested by the World Health Organisation (WHO format) mentioning facts like name, age, sex, address, cause of death, etc.
   • Medicolegal reports — documents prepared by the Medical Officers after being asked or ordered by the Police Officer or Magistrate.
   • Dying declaration — a statement, verbal or written (or even by gestures) made by a deceased person before his/her death, relating to the circumstances leading to death.
   • Dying deposition — almost a dying declaration. It is more valuable than a dying declaration as the accused has got the opportunity to challenge and cross-examine.

2. Oral evidence — is always superior to documentary evidence in a trial for the reason that, the person has to prove on oath that the evidence is true and is cross-examined.

   • A person giving documentary evidence is also supposed to do the same, with exceptions being:
     • Dying declaration.
     • Printed opinions of experts in the form of textbooks, when
     • the author is either dead or stays at a very distant place, and to bring him/her would mean an unnecessary loss of time and money.
     • Evidence was previously given in a judicial procedure.
     • Deposition of a medical witness in a lower court, attested
     • by the magistrate.
     • The chemical examiner’s report is sufficient and his/her personal
     • attendance is usually not necessary.
   • Two Types of Oral Evidence:
     • Direct Oral Evidence— Refers to facts, which are seen, heard, or perceived in any other sense.
     • Circumstantial Oral Evidence — It proves one or more of the subsidiary circumstances or associated events.

3.7: Witness

• Witness — a person who provides evidence about a fact in a court of law under oath and is summoned to court to attend without failure and under penalty.
• Common Witness — that person, who narrates what he/she has heard or perceived or states the facts observed by him/her.
• Expert witness — on account of his/her special professional training and skill, is capable of giving an opinion or deducing inferences from the facts observed by himself or by others.
• Medical witness — generally considered as both common and expert witness.
• Skilled or scientific witness — who has specialized knowledge of technical subjects. He/she may be an expert but usually, he/she has no first-hand knowledge of the particular case.
• Hostile Witness — makes statements against the interest of the party who has called him/her.
• Unfavorable Witness — one called by a party to prove a particular fact, but fails to prove such fact or proves an opposite fact.

3.8: Doctor and Scene of Crime

• Scene of crime — the place of any suspicious or unnatural death.

Crime Scene Examination Kit

• Hand lens for examining injuries
• A measuring tape and ruler
• Autopsy instruments
• Personal camera for the record of features of your own interest • Clean containers (glass/plastic) with proper fitting stoppers/ lids and paper/polythene envelopes with labels, rubber gloves, swabs, glass slides, etc.
• Suitable thermometer for recording rectal temperature/ atmospheric temperatures.

3.9: Conduct at Scene

On receiving a call from investigating officer (IO), the doctor should report to the scene of the crime punctually before any interference. Do not alter the position of the deceased.

• Always describe things in detail before their being picked up or even before touching and examining them.
• Never make hasty opinions or conclusions.
• Leave the place only after you have finished your examination.

Enumerated below are certain points of medicolegal concern that a doctor cannot afford to miss and they are described as follows:

• Prepare notes: On the position of the deceased, highlight the details about things around you.

• Always sketch the scene mentioning relevant measurements.

• Photographs may be taken along with.

• Use hand lenses, U-V lamps, etc, as they are not only essential but are also of great help in visualizing certain things in detail.

• Collect all the trace evidence materials such as smears and stains of blood, mud, semen, saliva, any other material, or any poison.

• Collect empty/partly full or partially empty containers — if any. If suspected of containing harmful materials they are noted and collected for further analysis.

• Clothing of the body — look for whether it is normal or disturbed, deranged, such as a lifted-up skirt with pulled-down panties, or unhooked or torn buttons of a blouse or brassieres.

• Tear in the dress worn may also be important to note as they may correspond to a stab wound or firearm wound, etc.

• Blood at the scene — the following should be noted:

  • The amount of bloodshed
  • The distribution of blood
  • The shape of splashes, drops, or smears
  • Blood and its location
  • Bloodstains and their shapes
  • The skin ridge impressions in smears
  • The relation of the blood to the body
  • Presence of drag marks of blood under the body
  • Blood and resembling material stains
  • Photograph of bloodstain

• Seminal stains — may be noticed on the clothing worn by the victim or may be seen at the scene on some other objects.

• Postmortem hypostasis—distribution, color, and fixing of postmortem hypostasis needs careful study and reporting.

• Hairs or fibers at the scene — hairs can be the only clue to the crime that happened. Hairs can provide crucial information about the criminal when properly identified.

• Importance of good illumination — scenes always must be examined with proper illumination, with accessories such as hand lenses, UV light, etc.

  \n \n