‘Archaic laws leading to miscarriage of justice’Some archaic laws still govern the processing of evidence in the country, which experts say could often lead to miscarriages of justice as some of these laws contradict facts established by forensic science.
Some archaic laws still govern the processing of evidence in the country, which experts say could often lead to miscarriages of justice as some of these laws contradict facts established by forensic science.
Take for example the evidence collection process in the case of deaths.
The Muluki Ain (General Code) has laid out some provisions for deciding whether an incident of death suicide or homicide. As per the Muluki Ain provisions, to determine suicide, the dead body has to be hanging, in addition to other evidences like tongue protruding from mouth and pressed with lips; blood, saliva and fluid oozing out of the mouth and nose; and traces of faeces or semen in the genitals.
For experts in forensic science, these provisions are archaic as they are nowhere closer to science.
Dr Harihar Wasti, who has been practising and teaching forensic science for around two decades, says, “If a person has gone to the toilet shortly before committing suicide then chances of not finding traces of faeces are high.” According to Dr Wasti, faeces could be found only if the individual had not evacuated the bowels for long.
“Judgments based on these kinds of provisions will eventually affect justice delivery,” he says.
Experts worry that such unscientific clauses might lead to nexus between prosecuting officers and offenders.
And it is not only The Muluki Ain that is riddled with errors.
There are other Acts with similar unscientific provisions.
For instance, Clause 11 (4) of Government Cases Act, 1992 states that if a corpse is found decomposed and cannot be sent for further examination, police officials have the authority to prepare the deed of inquiry (muchulka) without going through any tests or holding consultations with experts.
This particular definition of decomposition is too ambiguous and is based on individual judgement.
Experts argue that it is the same country that undergoes forensic test to identify deaths of persons killed during insurgency and here are provisions that deny examination of a decomposed corpse.
They claim that such loopholes have often been misused by police and criminals on many an occasion.
Senior Advocate Lav Kumar Mainali, who specialises in criminal law, says even courts have been taking experts’ decisions arbitrarily. “There are instances when homicide verdict has been passed despite doctors testifying that the case was a suicide,” said Mainali. “We have long been ignoring science.”
Hum Bahadur KC, deputy spokesperson at the Ministry of Law, Justice and Parliamentary Affairs, agrees that science and scientific method must be taken into consideration. “To avoid such erroneous provisions, we are planning to repel The Muluki Ain. We have already presented five such codes, including penal and civil codes, and criminal procedural code presented before Parliament. They are under review at parliamentary committees,” said KC. The review was first presented in Parliament in 2011, but due to change in government it never got approved, said KC.