Forensic Jurisprudence by Dr. Ramesh Parajuli

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Contents

Preface V
Acknowledgement IX
List of Cases XII
Abbreviations XIX
Publisher's Note XXIII

Part 1: Forensic Science

Chapter 1: Introduction to Forensic Science
1. Concept of Forensic Science 1
2. Definition of Forensic Science 5
3. Forensic Science, Forensic Medicine and
Medical Jurisprudence: Differences & Similarities 7
4. Scope of Forensic Science 9
5. Importance of Forensic Science 10
6. General Principles of Forensic Science 13
7. Development of Forensic Jurisprudence in Nepal 15
8. Role of Judiciary in the Development of
Forensic Science 32
9. Fields of Forensic Science 37
10. Legal Provisions Related to Forensic Science 42

Chapter 2: Physical Evidence

1. Concept of Physical Evidence 49
2. Importance of Physical Evidence 51
3. Forms of Physical Evidence 55
4. Scene of Crime 57
5. Steps During Examination of Scene of Crime 57
6. Chain of Custody 65

Chapter 3: Trace Evidences

1. Meaning of Trace Evidence 68
2. Hair: Importance, Types and Examination 69
3. Fiber: Nature, Types and Evidence 73
4. Paints: Nature, Types and Evidence 77
5. Glass: Nature, Types, Importance 81
6. Soil 85

Chapter 4: Fingerprints

1. Introduction to Fingerprints 88
2. Classification of Fingerprints 90
3. Importance of Fingerprints 93
4. Lifting of Fingerprints 94
5. Examination and Comparison of Fingerprints 96
6. Reliability of Fingerprint 97
7. Technique of fingerprinting 98
8. Fingerprints on Decomposed Bodies 99
9. Judicial Views on Fingerprint 100

Chapter 5: Biological Evidences

1. Meaning of Biological Evidences 102
2. Importance of Biological Evidences 103

3. Classification of Biological Evidences 105
A. Blood 105
• Scientific examination of Blood Evidence 109
• Medico-legal importance of Blood 111
B. Semen 114
C. Saliva 116

Chapter 6: DNA Profiling

1. Meaning and Structure of DNA 118
2. Importance of DNA in Administration of Justice 121
3. Collection of DNA evidence in Criminal Cases 126
4. Establishment of Causation of Crime through
DNA Examination 128
5. DNA Profiling Technology 131
6. Application of DNA in Paternity Disputes 134
7. DNA Report and Paternity Dispute in Nepal 135
8. DNA in Identification of Missing Person 140
9. DNA in Mass Disaster 141
10. DNA Data Bank 143
11. Judicial Views on DNA Evidence in Nepal 147
Chapter 7: Ballistics &Explosives
1. Firearms, Ballistics and Explosives: Concept 152
2. Legal Provisions 156
3. Investigation of Offence Involving Ballistics 158
4. Examination of Evidence Related to
Forensic Ballistics 159
5. Examination of Cartridge Case 165
6. Examination of Bullets 166
7. Explosives 168
8. Examination of Explosives 171

Chapter 8: Questioned Documents
1. Introduction of Questioned Documents 174
2. Nature and Importance of Document
Examination 176
3. Document Examination Techniques 178
• Hand written 178
• Type written 183
• Machine-printed documents 183
4. Types of Document Forgery 184
5. Imprint and Security Documents 186
• Currency Note 186
• Passport 187

Chapter 9: Drugs

1. Meaning and Nature 191
2. Classification of Drugs 192
3. Laws Regulating Drugs Offences 195
4. Modes of Drugs Administration 196
5. Drug Examination 199
6. Medico-legal Importance of Drug Examination 201

Chapter 10: Cyber Forensics

1. Meaning 207
2. Defining Cybercrime 210
3. Scope 212
4. Current Trends 213
5. Types of Cybercrime 216
6. Modus operandi of cybercrime in Nepal 218
7. Investigation of Cybercrime 220
8. Audio-visual Examination 222
9. Limitations of Examination 227

Forensic Jurisprudence  XXXI
10. Existing Laws 227
11. Initiatives to Combat Cyber Crimes 243

Chapter 11: Expert Opinion

1. Nature and Definition of Expert 248
2. Laws regulating Expert Opinion 249
3. Admissibility and Inadmissibility of
Expert Opinion 253
4. Expert Examination 258
5. Contradiction of Two Expert Opinions 260

Part 2: Forensic Medicine

Chapter 12: Introduction of Forensic Medicine
1. Concept of Forensic Medicine 267
2. Definition of Forensic Medicine 269
3. Significance of Forensic Medicine 271
4. Scope or Fields of Forensic Medicine 272
5. Personal Identification 275
6. Legal Provision Relating to Forensic Medicine
in Nepal 293

Chapter 13: Autopsy

1. Meaning of Autopsy 299
2. Purpose of Autopsy 300
3. Qualities of Autopsy Expert 304
4. What should be cared in autopsy? 305
5. Types of Autopsy 306
6. Death and Autopsy 307
7. Death Investigation 311
8. Declaration & Certification of Death 316

XXXII  Dr. Ramesh Parajuli
9. Types of Death for Medico-Legal Autopsy 321
10. Legal Provisions & Procedure for Autopsy
Examination in Nepal 323
11. External & Internal Examination of Dead Body 327
12. Medico-legal Importance of External and
Internal Examination 331
13. Estimation of Time of Death 333
14. Determination of Cause and Manner of Death 343
15. Examination of Mutilated Body 343

Chapter 14: Asphyxia

1. General Concept of Asphyxia 347
2. Symptoms of Asphyxia 348
3. Causes of Asphyxia 348
A. Suffocation 349
B. Smothering 354
C. Choking 357
D. Traumatic Asphyxia 360
E. Hanging 360
F. Strangulation 370
G. Drowning 381
Chapter 15: Wounds And Injuries
1. Concept 395
2. Types 396
3. Types of Injuries Recognized by Nepalese Law 456
4. Medico-legal Examination of Wounds
and Injuries 459
5. Medico Legal Importance of Injuries 459
6. Injury Identification, Documentation
& Reporting 460

Forensic Jurisprudence XXXIII

7. Homicide, Suicidal & Self-Inflected
Wounds: Differences 461
Chapter 16: Special Medico legal Examination
1. Examining Cases of Domestic Violence 466
2. Examination in Rape Offence 472
3. Intoxication/Drunkenness/Drunken Driving 482
4. Examination of Mental State and Insanity 485
5. Examination of Bones 489
6. Infanticide 492
7. Examination of Traffic Injury 495
8. Gender Based Violence 499

Chapter 17: Toxicology

1. Definition, Nature and Principles of Poison 503
2. Classification of Poison 506
3. Types of Effects Produced by Poisons 509
4. Routes of Poison Administration 512
5. Chemical Analysis & Modern Analysis
Techniques 513
6. External & Internal Examination of
Body in Poisoning 516
7. Collection of Viscera & Other Samples
from Human Body 519
8. Medico Legal Importance of Poisoning 520
Chapter 18: Forensic Medicine & Human Right Issues
1. Medical Examination of Detainees for
Torture Identification 522
2. Investigation of Custodial Deaths 527
3. Forensic Medicine in Extra-Judicial
Killings and Disappearances 535

XXXIV  Dr. Ramesh Parajuli
4. Exhumation & Identification of Dead Bodies 540
5. Forensic Medicine in Mass Disaster 544

Chapter 19: Medical Negligence
1. Concept, Elements & Rationale of
Medical Negligence 546
2. Medical Negligence versus Medical Malpractice 551
3. Tests to Determine Medical Negligence 558
4. Legal Remedies on Medical Negligence
in Nepal 582
5. Security of Health Professionals
and Health Institutions 586
6. Criminal Negligence versus Civil Negligence 595
7. Judicial Views on Medical Negligence 598

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Contents

Preface V
Acknowledgement IX
List of Cases XII
Abbreviations XIX
Publisher's Note XXIII

Part 1: Forensic Science

Chapter 1: Introduction to Forensic Science
1. Concept of Forensic Science 1
2. Definition of Forensic Science 5
3. Forensic Science, Forensic Medicine and
Medical Jurisprudence: Differences & Similarities 7
4. Scope of Forensic Science 9
5. Importance of Forensic Science 10
6. General Principles of Forensic Science 13
7. Development of Forensic Jurisprudence in Nepal 15
8. Role of Judiciary in the Development of
Forensic Science 32
9. Fields of Forensic Science 37
10. Legal Provisions Related to Forensic Science 42

Chapter 2: Physical Evidence

1. Concept of Physical Evidence 49
2. Importance of Physical Evidence 51
3. Forms of Physical Evidence 55
4. Scene of Crime 57
5. Steps During Examination of Scene of Crime 57
6. Chain of Custody 65

Chapter 3: Trace Evidences

1. Meaning of Trace Evidence 68
2. Hair: Importance, Types and Examination 69
3. Fiber: Nature, Types and Evidence 73
4. Paints: Nature, Types and Evidence 77
5. Glass: Nature, Types, Importance 81
6. Soil 85

Chapter 4: Fingerprints

1. Introduction to Fingerprints 88
2. Classification of Fingerprints 90
3. Importance of Fingerprints 93
4. Lifting of Fingerprints 94
5. Examination and Comparison of Fingerprints 96
6. Reliability of Fingerprint 97
7. Technique of fingerprinting 98
8. Fingerprints on Decomposed Bodies 99
9. Judicial Views on Fingerprint 100

Chapter 5: Biological Evidences

1. Meaning of Biological Evidences 102
2. Importance of Biological Evidences 103

3. Classification of Biological Evidences 105
A. Blood 105
• Scientific examination of Blood Evidence 109
• Medico-legal importance of Blood 111
B. Semen 114
C. Saliva 116

Chapter 6: DNA Profiling

1. Meaning and Structure of DNA 118
2. Importance of DNA in Administration of Justice 121
3. Collection of DNA evidence in Criminal Cases 126
4. Establishment of Causation of Crime through
DNA Examination 128
5. DNA Profiling Technology 131
6. Application of DNA in Paternity Disputes 134
7. DNA Report and Paternity Dispute in Nepal 135
8. DNA in Identification of Missing Person 140
9. DNA in Mass Disaster 141
10. DNA Data Bank 143
11. Judicial Views on DNA Evidence in Nepal 147
Chapter 7: Ballistics &Explosives
1. Firearms, Ballistics and Explosives: Concept 152
2. Legal Provisions 156
3. Investigation of Offence Involving Ballistics 158
4. Examination of Evidence Related to
Forensic Ballistics 159
5. Examination of Cartridge Case 165
6. Examination of Bullets 166
7. Explosives 168
8. Examination of Explosives 171

Chapter 8: Questioned Documents
1. Introduction of Questioned Documents 174
2. Nature and Importance of Document
Examination 176
3. Document Examination Techniques 178
• Hand written 178
• Type written 183
• Machine-printed documents 183
4. Types of Document Forgery 184
5. Imprint and Security Documents 186
• Currency Note 186
• Passport 187

Chapter 9: Drugs

1. Meaning and Nature 191
2. Classification of Drugs 192
3. Laws Regulating Drugs Offences 195
4. Modes of Drugs Administration 196
5. Drug Examination 199
6. Medico-legal Importance of Drug Examination 201

Chapter 10: Cyber Forensics

1. Meaning 207
2. Defining Cybercrime 210
3. Scope 212
4. Current Trends 213
5. Types of Cybercrime 216
6. Modus operandi of cybercrime in Nepal 218
7. Investigation of Cybercrime 220
8. Audio-visual Examination 222
9. Limitations of Examination 227

Forensic Jurisprudence  XXXI
10. Existing Laws 227
11. Initiatives to Combat Cyber Crimes 243

Chapter 11: Expert Opinion

1. Nature and Definition of Expert 248
2. Laws regulating Expert Opinion 249
3. Admissibility and Inadmissibility of
Expert Opinion 253
4. Expert Examination 258
5. Contradiction of Two Expert Opinions 260

Part 2: Forensic Medicine

Chapter 12: Introduction of Forensic Medicine
1. Concept of Forensic Medicine 267
2. Definition of Forensic Medicine 269
3. Significance of Forensic Medicine 271
4. Scope or Fields of Forensic Medicine 272
5. Personal Identification 275
6. Legal Provision Relating to Forensic Medicine
in Nepal 293

Chapter 13: Autopsy

1. Meaning of Autopsy 299
2. Purpose of Autopsy 300
3. Qualities of Autopsy Expert 304
4. What should be cared in autopsy? 305
5. Types of Autopsy 306
6. Death and Autopsy 307
7. Death Investigation 311
8. Declaration & Certification of Death 316

XXXII  Dr. Ramesh Parajuli
9. Types of Death for Medico-Legal Autopsy 321
10. Legal Provisions & Procedure for Autopsy
Examination in Nepal 323
11. External & Internal Examination of Dead Body 327
12. Medico-legal Importance of External and
Internal Examination 331
13. Estimation of Time of Death 333
14. Determination of Cause and Manner of Death 343
15. Examination of Mutilated Body 343

Chapter 14: Asphyxia

1. General Concept of Asphyxia 347
2. Symptoms of Asphyxia 348
3. Causes of Asphyxia 348
A. Suffocation 349
B. Smothering 354
C. Choking 357
D. Traumatic Asphyxia 360
E. Hanging 360
F. Strangulation 370
G. Drowning 381
Chapter 15: Wounds And Injuries
1. Concept 395
2. Types 396
3. Types of Injuries Recognized by Nepalese Law 456
4. Medico-legal Examination of Wounds
and Injuries 459
5. Medico Legal Importance of Injuries 459
6. Injury Identification, Documentation
& Reporting 460

Forensic Jurisprudence XXXIII

7. Homicide, Suicidal & Self-Inflected
Wounds: Differences 461
Chapter 16: Special Medico legal Examination
1. Examining Cases of Domestic Violence 466
2. Examination in Rape Offence 472
3. Intoxication/Drunkenness/Drunken Driving 482
4. Examination of Mental State and Insanity 485
5. Examination of Bones 489
6. Infanticide 492
7. Examination of Traffic Injury 495
8. Gender Based Violence 499

Chapter 17: Toxicology

1. Definition, Nature and Principles of Poison 503
2. Classification of Poison 506
3. Types of Effects Produced by Poisons 509
4. Routes of Poison Administration 512
5. Chemical Analysis & Modern Analysis
Techniques 513
6. External & Internal Examination of
Body in Poisoning 516
7. Collection of Viscera & Other Samples
from Human Body 519
8. Medico Legal Importance of Poisoning 520
Chapter 18: Forensic Medicine & Human Right Issues
1. Medical Examination of Detainees for
Torture Identification 522
2. Investigation of Custodial Deaths 527
3. Forensic Medicine in Extra-Judicial
Killings and Disappearances 535

XXXIV  Dr. Ramesh Parajuli
4. Exhumation & Identification of Dead Bodies 540
5. Forensic Medicine in Mass Disaster 544

Chapter 19: Medical Negligence
1. Concept, Elements & Rationale of
Medical Negligence 546
2. Medical Negligence versus Medical Malpractice 551
3. Tests to Determine Medical Negligence 558
4. Legal Remedies on Medical Negligence
in Nepal 582
5. Security of Health Professionals
and Health Institutions 586
6. Criminal Negligence versus Civil Negligence 595
7. Judicial Views on Medical Negligence 598

Dedicated to those judges, lawyers, prosecutors and investigators
who have contributed in their own ways to:
(a) transform crime victim's crying hearts into
smiling hearts;
(b) enhance public trust and faith on our justice
system; and
(c) emphasize justice delivery rather than judgment
delivery, ignoring the hardships of non-
compromise.

 

Preface

The traditional evidence against offender had been
eye witnesses, confessions, statements of approvers but
they are no longer the current currency. Witness may
be purchased in money, bribed, influenced, threatened,
favoured and won. Confessions may be extracted by
torture, inhumane treatment or undue influence. But,
these evidences do not cut ice before an efficient lawyer
who has sound understanding in Forensic Jurisprudence.
The downhill slide apparent in dissemination of justice due
to confession-centric and witness-centric investigation,
prosecution, and adjudication needs to be stemmed in
Nepalese justice system.
For practicing lawyers, the study of forensic
jurisprudence is an opportunity to bring theory of law
and science into focus and help courts deliver justice. For
a teacher of forensics, it provides a chance to encourage
their students to learn how to think with conscience rather
than just blind reliance on science. For students of law and
medicine, it furnishes such materials which ultimately
help in cultivating one’s creative ideas in relation to crime
investigation, cross examination of experts, medico legal
examinations, and justice delivery. To put in other words,
forensic jurisprudence is a discipline whose knowledge is
the foundation of effective, objective, scientific, and soundjustice delivery system and that is why it has considerable
importance for law students, teachers, practicing lawyers,
investigators, forensic experts, human right activists,
health care providers, policy makers and even the judges.
The book has been written with certain particular aims.
They are, firstly, to supply a want which I have often felt
while lecturing on Forensic Medicine and Forensic Science
in a Nepalese college, viz. that of a concise manual of the
subject specially adopted for use in Nepal; secondly, to help
actors of legal and judicial system be acquainted with overall
aspects of forensic jurisprudence both forensic science and
forensic medicine with minute discussions emphasizing
Nepalese laws and scenario; thirdly, to explain theories and
principles of forensic science and forensic medicine through
examples and illustrations from Nepalese laws and cases
decided by Nepalese Courts; fourthly, to identify existing
defective practices in Nepalese forensic and medico-legal
sector and suggest better solution; fifthly, to propose first
hand definitions by author regarding various terminologies
used in forensic jurisprudence sector; sixthly, to give a
firsthand knowledge of the subject in simple English to
enable readers and students to handle those masterpieces
and most voluminous works on forensic jurisprudence
written by numerous foreign authors of high calibre and
eminence.
The book has two major parts- Part 1 has 11 chapters.
In this part, I have discussed the overall comprehensive
aspects of forensic science. Discussions has been made
only on those aspects which have immediate and near
future relevance to the practical investigation, prosecution
and adjudication works like digital forensics, drugs,
questioned documents, expert opinion, biological/
physical/trace/DNA/ballistic & explosive evidences,
development of forensic jurisprudence in Nepal and so on.Part 2 has 8 chapters. This relates to medical aspects of
forensic Jurisprudence such as autopsy, asphyxia, wounds
& injuries, special medico-legal examinations, toxicology,
human right forensics, medical negligence and so on.
The salient features of this book are:
1. Addressed to those involved in both criminal and
civil justice.
2. Contents of book are concise and precise, yet
comprehensive.
3. New criminal procedure Code, 2074 B.S and Crime
Investigation Regulation 2075 B.S.
4. Hundreds of relevant forensic cases including those
published in NKP since 2015 B.S. till date and few
landmark unpublished cases from SCB have been
discussed along with foreign landmark cases.
5. Helpful for law and medicine students, practicing law
and medical professionals.
6. The book is live with lots of comparison charts,
diagrams, sketches, photographs and illustrations
which authenticate all relevant aspects of the subjects
discussed besides making the book interesting, easily
intelligible and convincing.
7. The text is in layman’s language- simple and non
technical. Any matriculate should not find it difficult
to follow.
8. The contents of the book are not only the results of
the author’s labour alone. Literatures of renowned
experts and relevant information at the internet, in
the libraries etc. have made attempt to make the book
complete, comprehensive and precise; useful and
handy to all in Nepal and abroad.

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