A STUDY ON FORENSIC EVIDENCE IN THE CONTEXT OF NEPAL

Submitted to: Dipak Silwal

Nepal Law Campus

Faculty of Law, Tribhuvan University
Exhibition Road, Kathmandu, Nepal

A Seminar Report Prepared

In Partial Fulfillment of the Requirement

For B.A. LL.B. Program

Submitted By:
Sony Baniya
B.A. LL.B. Seventh Semester
Campus Roll No.: 105
Examination Symbol No.: 420090
T. U. Registration No.: 6-2-468-2-2016
December 17, 2021

RECOMMENDATION LETTER

The Seminar Report titled "A Study on Forensic Evidence in the context of Nepal"
prepared by Mr./Ms./Mrs. ......Sony Baniya........................., student of B. A. LL. B.
Seventh Semester;Nepal Law Campus under my supervision has been approved
and submitted to Nepal Law Campus, Faculty of Law, Tribhuvan University for

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final examination and evaluation.

Dipak Silwal

Lecturer
Nepal Law Campus
Date: 2078/09/02

ACKNOWLEDGEMENT

First and foremost, I would like to acknowledge my supervisor,

Sir Dipak Silwal, Professor In-Charge, Nepal Law Campus , without whose guidance and
inspiration this dissertation would not have completed.

I would sincerely like to thank ,Rakesh Singh chief of Central Police Forensic Laboratory and
the staff of DNA Unit for their cooperation and providing me with the necessary information and
materials. I would also like to thank Mr. Jivan Prasad Rijal,chief of National Forensic Science
Laboratory for his insights in the subject matter.

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Further, I would to extend my gratitude to Nepal Law Campus and its Library &staff, and
Central Law Library for providing me the necessary resource materials.I am indebted to my
family and friends for their immense support and motivation in course of preparing this
dissertation.

Sony Baniya

B.A. LL.B. Seventh Semester

Nepal Law Campus

Date: 2078/09/02

Preface

Learning is a complex process in itself and learning of a subject like Forensic evidence that bases
on matters ranging from abstract philosophy to concrete technicality of all different disciplines
is, nonetheless pretty interesting, even more convoluted only. However, it is a truth of almost
universal nature that gathering and sharing of knowledge is the best way of learning and building
a scholarly ambience in society. This seminar is a product of the same thought process; an
attempt to share what I have learned and reflected in the elemental concepts of forensic evidence
and an expectation to scholarly assertions and better academia in the society.

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It is expected that everyone be aware of law. The fascinating scope of forensic evidence draws in
many fresh high school or campus graduates to law. For forensic evidence is an all-pervading
study, students and professionals of various discipline and sector have to study or work on
matters of evidence very often. The number of graduates and professionals intending to study
forensic evidence despite their successful niche in respective fields is rapidly increasing only. In
this scenario, this seminar intends to provide a competent and proper guidance to anyone who
intends to start legal education or grab basic knowledge of forensic evidence.The chapters in this
seminar have been written with utmost care so that readers get hold of fundamental ideas of
forensic evidence for sound knowledge of the basics is indispensable for proper grip in the
intricacies.

Despite efforts made, the seminar,surely, is not error free. With the guidance of readers, the
following editions shall be made even better in terms of both content and accuracy. Any
feedbacks are always welcome. Let us all march in unison towards the future where legal
fraternity is impeccable and competent in knowledge, integrity and pragmatism.

21 December 2021

List of Abbreviation

A.D. Anno Domini

B.S. Bikram Sambat

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CPFSL. Central Police Forensic Science Laboratory

DAO. District Administration Office

D. Not. Decision Number

DNA. Deoxyribonucleic Acid

e.g. For Example

F.Y. Fiscal Year

GoN. Government of Nepal

HMG. His Majesty's Government

INTERPOL. International Criminal Police Organization

Ltd. Limited

MIDNA Mitochondrial DNA

N.K.P. Nepal Kanoon Patrika (Nepal Law Journal)

NFSL. National Forensic Science Laboratory

PCR. Polymerase Chain Reaction

Pvt. Private

RFLP Restriction Fragment Length Polymorphism

RONAST. Royal Nepal Academy of Science and Technology

SCB Supreme Court Bulletin

STR Short Tandem Repeats

USA United States of America

V Versus

Vol Volume

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VNTR Variable Number Tandem Repeats

List of Figures

Organization Structure. 43

Board of Directors. 44

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 Cases

List of Cases. Page No

Buddha Ahir and others v Junga Bahadur Ahir ............................................................... 45

Shanta Kumari Pandeya (Pant) v. Chol Kumari Pandeya and others................. 46

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Orlando and Brandon Nembhard: identity crisis................................................... 46

Pritam Singh and Another v. State of Punjab AIR 1956 SC 415 .................................... 47

Shankaria v. State of Rajasthan (1978) 3 SCC 435 …………………..................................... 48

State of U.P. v. Sunil…………………………………………………………………...................................

49

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 TABLE OF CONTENTS

Title Page................................................................................................ I

Declaration............................................................................................. II

Recommendation Letter…………………………………………………………………………
III
Preface……………………………………………………………………………………………...
....... IV
Acknowledgement
………………………………………………………………………………….. V
List of Abbreviation………………………………………………………………………………..
VI
List of
Figures……………………………………………………………………………………....... VII
List of
Cases……………………………………………………………………………………….......
VIII
Table of Content…………………………………………………………………………………...
IX -XI

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Content

Preliminary Section

CHAPTER-I: INTRODUCTION
1.1 General Background
1.2 Statement of Problem
1.3 Objectives of the Study
1.4 Literature Review
1.5 Methodology of the Study
1.6 Significance of Study
1.7 Limitations of Study
1.8 Organization of the Study

CHAPTER-II: CONCEPTUAL FRAMEWORK ON FORENSIC EVIDENCE

2.1 Concept of Forensic Evidence

2.2.Definition of Forensic Evidence

2.3.Types of Forensic Evidence

2.4.Nature of Forensic Evidence

2.5.Scope of Forensic Evidence

2.6.Importance of Forensic Evidence

CHAPTER-III: HISTORICAL DEVELOPMENT OF FORENSIC EVIDENCE LAW IN

NEPAL

3.1 Brief Historical Development of Forensic Evidence Law in Nepal

3.1.1 Before Codification of Muluki Ain, 1910

3.1.2 After Enactment of Muluki Ain, 1910

3.1.3 After Enactment of the Criminal Code, 2074

CHAPTER-IV: FORENSIC EVIDENCE LAW IN SOME OTHER COUNTRIES

4.1 Forensic Evidence Related Laws in India

CHAPTER-V: LEGAL FRAMEWORK OF FORENSIC EVIDENCE LAW IN NEPAL

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5.1 Constitution of Nepal,2072B.S

5.2.Muluki Criminal Procedure Code,2074B.S

5.3.MulukiCriminal Procedure Regulations,2075 B.S

5.4.Evidence Act,2031B.S

5.5.Police Act ,2012B.S

5.6.Muluki Criminal Code ,2074B.S

CHAPTER-VI: Forensic Organisation and FORENSIC EVIDENCE CASES IN NEPAl

6.1.National Forensic Science Laboratory

6.2.Central Police Forensic Science Laboratory (CPFSL)

6.3.Cases

CHAPTER-VII: FINDINGS, CONCLUSION AND SUGGESTIONS

7.1 Findings

7.2 Conclusion and Suggestions

Bibliography

Appendix

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INTRODUCTION
1.1General Background of the study
The beginning of 20th century has marked the development of science and technology. The uses of
scientific techniques and tools have ussisted in the growth of different branch of science. Among such
branches, Forensic Science is a branch of science that deals with the application of scientific knowledge
and methodology to the legal problems, criminal investigation.[1] There are different methods of
collection and scientific examination of evidences on Forensic Science. Forensic evidence involves the
efficacy of information that has been scientifically generated for a particular case, the validity of which is
grounded in past experiences in similar cases as evidenced in the forensic literature. Among the various
branches of Forensic Science, such as Fingerprints, Questioned documents, Toxicology. Forensic
Medicine, Forensic Ballistics, etc., Forensic DNA finger printing has emerged as the new "gold standard"
of scientific evidence.[2]

Forensic science has come up in a big way to assist criminal investigation. It helps to interrogate suspect,
victim and even witness to get the truth. Neurological tests viz. hypnosis, psychological detection of
deception (Lie detection), Narco-analysis and Brain mapping has revolutionized the police investigation
saving time money and effort and providing far superior results. These scientific methods of
interrogation has made the interrogations more humane and legal, thereby eliminating notorious third
degree methods of: which most often prove disastrous.

Criminal investigation is a pragmatic science that comprises the study of facts, used to categorize,
uncover and demonstrate the culpability of an accused criminal. A comprehensive criminal investigation
can include probing, consultations, cross-examinations, evidence collection, preservation and various
methods of investigation.[3]

Criminal investigation is an antediluvian science (pre-historic) that may have origins as far back as 1700
BC in the writings of the Code of Hammurabi. In the code it is advocated that both the accuser and
accused had the right to present evidence they collected.[4]

In Nepal, prior to the establishment of National Forensic Science Laboratory in 1986[5] there was no
proper Forensic Laboratories to examine the evidences scientifically and those evidences were sent to
India for the examination. DNA Profiling started in Nepal from 2005 A.D. In 2006, DNA Unit was only
focusing on Paternity disputes through blood tests as a beginning step which has extended to criminal
cases, immigration, baby switching, personal identification from human remains etc..[6] Now, the

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Central Police Forensic Science Laboratory has also started the DNA testing with the machine donated
by Asia Foundation.[7]

There is no single statutory recognition of forensic science in Nepal, however, its use is scattered in
various legislations such as the Muluki Ain, 2020 (Chapter on Homicide, Counterfeiting, Kutpit, On
Medical Practitioners, Rape etc.);l Evidence Act, 2031; Government Cases Act, 2049; Torture
Compensation Act, 2053; Police Act 2012; Narcotic Drug Control Act, 2033 and the like. The Supreme
Court has given established various precedents with regard to the application of forensic science.

However, due the lack of a single statute the scientific application of forensic science in judicial decision-
making is not yet realized by our courts. Even in the case of DNA technology Nepal lacks a specific
statutory mechanism. US, Canada and UK have particular DNA legislations such as the US DNA
Technology Act, 2003; Canada DNA Identification 1998 and the Criminal Justice Act, 1995 respectively.

Similarly, Nepal has yet to acquire the modern technology for DNA analysis and the charge for DNA
analysis for paternity disputes is very costly. In some cases Nepal still relies on the investigation acquired
from Indian cities.

The courts should also gradually do away with the practice of interpreting the forensic evidence openly
and rely upon established scientific principles. Therefore, there is a dire need for the proper mechanism
establishing the direct use of forensic science in the Nepalese courts.

1.Available at: http://legal-dictionary.thefreedictionary.com/Forensic Science, Accessed on 3 December

2015. Ronald D. Bran, DNA Tesning: Modern Trends and Judicial Analysis, 2010, p 2

2.Available at hnp://acct:info/index.php?view=article&id-2233 Adna-testing-modem-trends-and-judicial

analysis&format-pdikepnou-com_contem, Accessed on 22 November 2015.

3.25Charles E. O'Hara and Gregory L. O'Hara, Fundamentals of Criminal Investigation (Sixth Edition,
1994), page132.

4.26Ann Wolbert Burgess, Albert R. Roberts, Cheryl et al, Learning: Victimology : Theories and
Applications 2009, page 103.

5.Available at:http://moste.gov.np/Forensic, Accessed on November 3, 2015.

6.Available at: http://forensic pov.np/technical-unita dna Accessed on 3 November 2015.

7.Available at: http://kantipuronline.com/2014/03/18/development police-in-stan-dna-test-service-

from-next work/386887.html. Accessed on 9 June 2015.8Available at
:https://legalinfonepal.wordpress.com/2015/11/24/forensic-science-and-justice-in-nepal/

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1.2Statement of the Problem
It is an undeniable fact that the crime rate in every country is growing very fast. That’s why, forensic
science is very important in dealing with criminal investigations in order to help solve crimes faster.
Being a vast subject, the number of scientific techniques involved in forensics are also more and it
primarily contributes its value and techniques to reinforce the legal system of a country. The importance
of the forensic investigation process is huge and the forensic department of a country certainly reduces
the burden of the government in criminal investigations. Forensic analysis is not an easy task to
accomplish. It involves a lot of hindrances and challenges. This science is not a single independent
subject. It is a combination of various subjects like engineering, pathology, linguistics, forensic
seismology, forensic toxicology, forensic anthropology, microchemistry, criminalistics etc. The law
enforcement agencies are highly dependent upon forensics to establish justice. [9] In Nepal various
legislations such as the Muluki Ain, 2020 (Chapter on Homicide, Counterfeiting, Kutpit, On Medical
Practitioners, Rape etc.);l Evidence Act, 2031; Government Cases Act, 2049; Torture Compensation Act,
2053; Police Act 2012; Narcotic Drug Control Act, 2033 and the like. The Supreme Court has given
established various precedents with regard to the application of forensic science.

In this context, the following research problems are given below :

 Whether the courts of Nepal do accept forensic evidence as a conclusive admissible evidence or
not?
 Is it used to enforce laws and government regulations and statutes?
 Does it help to create new precedent?
 Is there any crime scene investigation science foundation in Nepal?

9.Available at :https://sciencestruck.com/forensic-science-advantages-disadvantages

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1.3Objectives of the study
The legal system clearly understands the role that forensic evidence plays in criminal trials. This is
because there isn’t much room for bias or discrimination while using scientific techniques and methods.
This is why a variety of forensic evidence are commonly recognized in courts around the world.
Interestingly, the Chinese (650 A.D.) dates back to the first forensic technique ever used that involved
finger and palm print recognition.

Forensic testimony is commonly used across the world for both convicting and exonerating suspects.
Thus, forensic science labs have been mushrooming across the globe over the past few decades. In
addition, Special Acts have been passed to enhance the delivery of forensic services in the US, Canada
and Australia. This ensures greater certainty in the detection of crimes, and consequently, rates of
conviction may increase. Such Acts place great emphasis on timely and high-quality crime scene
management.

The main objective of the study is to analyze the trend related to the application of forensic evidence by
courts in Nepal. The specific objectives are as follows:

 To analyze admissibility of forensic evidence in court.

 To analyze the different cases concerning forensics evidence decided by the Supreme Court of
Nepal are discussed.
 To understand legal aspect of forensic evidence in Nepal.
 To find out foundation ,institution or laboratary of forensic Science in Nepal.

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1.4Literature Review
Science and Technology is the development of twentieth century. It is of great importance in the field
of science, especially forensic science. Forensics Evidence is considered as reliable and accurate
evidence by many forensic scientists. There are various research conducted on this subject matter and
a number of literatures related with forensics evidence are also published. Among the vast literatures
found in books, articles, research papers, journal etc., the following literatureis studied to have a
proper understanding regarding the content of evidence and for reviewing the trend following
forensics evidence.

Books

This book Techniques of CRIME SCENE INVESIGATION

A book written by Barry A. J. Fisher is about the proper and effective use of science and technology in
support of the police. The seventh edition of Techniques of Crime Scene Investigation is written for
students of crime scene investigation, police investigators, crime scene technicians, and forensic
scientists. The material presented in this text is basic, covering the proper ways to examine crime
scenes and collect a wide variety of physical evidence that may be encoun tered at crime scenes. It
cannot cover every possible situation and is a guide. The areas are discussed in general terms in order
to give the reader some idea of the information that can be developed from physical evidence if it is
collected properly. Few of the procedures mentioned in the book are inviolable.

FORENSIC SCIENCE : AN INTRODUCTION TO SCIENTIFIC AND INVESTIGATIVE TECHNIQUES

This book IS Written by highly respected forensic scientists and legal practitioners Stuart. H. James,
John. j Nordby and Suzanne Bell, Forensic Science: An Introduction to Scientific and Investigative
Techniques, published by CRC press, Second Edition covers the latest theories and practices in areas
such as DNA testing, toxicology, chemistry of explosives and arson, and vehicle accident
reconstruction. This second edition offers a cutting-edge presentation of criminalistics and related
laboratory subjects, including many exciting new features.

Forensic Science in Criminal Investigation and Trials

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 This book written by B.R. Sharma, Forensic Science in Criminal Investigation and Trials ,2nd edition
published universal publication included the DNA Profiling as the changing trend in scientific
investigation of crimes. The book highlights the importance of DNA profiling in comparison with the
fingerprints. This book states DNA profiling is important for the identification of individuals from all
body materials containing cells. This book also provides the list of different materials from where DNA
is extracted which includes the blood and blood stains, semen and semen stains, hair and hair roots,
finger nail low rings, etc. The writer has rightly pointed out that the DNA Profiling being an
evolutionary in its concept and that there is reluctance in the part of courts to accept it. Therefore, the
writer provides the study of different cases from maternity identification to DNA profile inducing
confession to show the importance of DNA Profiling. The writer at the end with the case study of India
concludes with the need of admission of DNA. The writer in this book advocates for the admission of
DNA Profiling for the settlement of legal disputes and for criminal investigation. This book is useful in
order to understand the concept of DNA Profiling and its importance in the investigation of crimes.

Article

Use of Forensic Evidence in Court

This article is written by District Judge Rajendra Kharel. The article is one of the compilations in the
book of DNA Bisleshan Yewam Baigyanik Praman Sambandhi Kanoonshastra. According to him, the
science and technology is essential to solve the cases. The role of judges is of gatekeeper in relation to
forensic evidences. He opines that expert opinion in the cases regarding science and technology,
including DNA should be taken (admissible). In this article, the writer mentions that DNA is used in the
civil as well as criminal cases. Though there is less chance of error in DNA, it is regarded as important
evidence in courts, the court does not blindly accept DNA evidence. The court should trust that the
analysis of the expert after DNA test has no error or while collecting samples, custody and
presentation there is no contamination.In other words DNA can be taken as reliable evidence only
when corroborated with other evidences following the expert opinion for the accuracy of DNA test

In this way the article has presented the judicial perspective towards DNA evidence giving examples of
cases decided by the courts of India and Nepal. Also the writer has analyzed the problems in
application of DNA evidence by the courts. This article is helpful in understanding perspective of
Nepalese judiciary regarding application of DNA

DNA Testing: Modern Trends and Judicial Analysis

This article discusses about the DNA testing in modern trend with the judicial analysis of United
States. This article begins with the change in the context of rebuttable presumption with the scientific
testing of DNA. This article focuses more on the issue of paternity testing with the help of DNA. The
article states that the fastest growing and most common

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application of DNA testing is resolving disputed claims of paternity. It also has showed the data that"
In 1968. 10 percent of live USA births were registered as illegitimate. By 1982, that number had
increased to 17 percent, and recent estimates exceed 30 percent of annual births. 31 over 250000
paternity cases are resolved by genetic testing each year." The article concludes that this
advancement leads to results that meet or exceed the threshold of the statutory burden of
presumption.

In light of this article, we can say that the presumption of paternity on the basis of mother's
statement have shifted to the use of scientific forensic DNA evidence in Nepal as well and most of the
cases of disputed paternity is solved through this scientific evidence

Barry, A.J. Fisher- Techniques of Crime Scene Investigation, 7th ed. R.C. Press, New York (2003)

James, S.H. and Nordby, J.J.; Forensic science: An introduction to scientific and investigative
techniques, 2nd ed.CRC press, USA (2003)

Sharma B.R.; Forensic Science in Criminal Investigation and Trails; Universal Pub. Co. (2003)

Kharel (17) pp. 113-128.

Bratt (2).

1.5Research Methods
This examination is essentially of doctrinal nature. As the doctrinal approach recommend zeroing in
on resolutions, case laws and other lawful wellsprings of primary power. This examination has been
directed to break down legal arrangements, case laws and other primary authoritative lawful
materials that are connected with scientific proof . Next to this, analytical and descriptive approaches
have likewise been embraced any place important to finish this investigation. This investigation
depends on both primary authoritative wellsprings of data just as optional information. Under
primary authoritative sources constitutions, resolutions, case laws, shows, rules, guidelines were
viewed as where as under optional sources books, diary articles, magazines, web sources on related
subject has been thought about to achieve this examination.

1.6Significance of the study

The advancement of science and technology has raised varied complexities in the nature of traditional
legal disputes and criminal investigation. One of the ways to deal with these complexities is the Forensic
Evidence. Forensic Evidence includes the application of science for law and justice. DNA is understood as
the best tool to deal with the legal disputes, basically of criminal nature after finger prints, as it is unique
and reliable evidence used in Forensic Science. Forensic evidence holds the secret to the biological

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information of concerned persons which help to identify the paternity in civil cases or the accused in the
criminal cases.

In Nepal the application of Forensic evidences and its admissibility is still in the development stage.
There are two Forensic Science Laboratories in Nepal situated at the center which deals with physical
evidence . As the emergence of the complex nature of cases in the courts of Nepal, it is necessary to
understand the perspective of the Judiciary regarding the use of physical evidence in Nepal.

1.7Limitations of the study

The study of this research paper is limited with the trend of application of forensic evidence by the
judiciary with reference to the cases published in Nepal Kanoon Patrika and Supreme Court Bulletin in
Nepal. The study has been also limited within the premise set by the very objective of the study. This
research paper has discussed about the legal aspect relating to forensics evidence but has not
discussed about the techniques or the process used for forensics evidence.

1.8Organization of the study

This study is divided into 7 chapter which are given below :

First chapter concern introduction of the study ,

Second chapter focus on conceptual frameworks on forensic evidence,

Moving on to third chapter historical development of forensic evidence law in Nepal,

After that fourth chapter focus on forensic evidence law in some other countries,

Chapter fifth include legal framework of forensic evidence law in Nepal,

Chapter sixth include use and important of forensic evidence in Nepal,

Lastly chapter 7 deal with finding, conclusion and suggestions.

CHAPTER-II

CONCEPTUAL FRAMEWORK ON FORENSIC EVIDENCE

2.1.General Understanding of Evidence

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Evidence, in law, any of the material items or assertions of fact that may be submitted to a competent
tribunal as a means of ascertaining the truth of any alleged matter of fact under investigation before
it.

The word “ evidence” is originated from a Latin term “evidentia” which means to show clearly, to
make clear to the sight to discover clearly certain, to ascertain or to prove. Thus, evidence is
something, which serves to prove or disprove the existence or non-existence of an alleged fact. The
party who alleges the existence of a certain fact has to prove its existence and the party, who denies
it, has to disprove its existence or prove its non-existence.

However, all facts traditionally considered, as evidence may not be evidence in the eyes of evidence
law. Rather, evidence is something presented before the court for the purpose of proving or
disproving an issue under question. In other words, evidence is the means of satisfying the court of
the truth or untruth of disputed fact between the parties in their pleadings.

Importance of Evidence
Preservation of evidence is important because it can impact the entire course of a criminal case and its
influence can extend well beyond the initial resolution through the appeals process. The government
has a duty to properly collect and preserve evidence in a criminal case to fulfill the obligations spelled
out in the constitution. A criminal defense attorney will go to great lengths to examine the evidence,
as well as its collection and preservation, to make sure that the rights of the defendant are respected.
Read on to learn more about the reasons that evidence preservation is critical in a criminal case.

1. Establishes Prosecution Arguments

Because the state and authorities in charge of investigating criminal cases will use the
evidence collected during the investigation to establish key facts about the case, it’s critical
that the evidence is collected correctly and in accordance with recognized standards. If the
evidence wasn’t correctly collected and preserved, then its credibility is significantly damaged,
and it may even be rendered inadmissible. A good defense attorney will question not only the
credibility of the evidence, but the integrity of its collection and preservation. Failure to
preserve evidence properly can lead to a mistrial or abandonment of charge against the
accused since evidence is the basis of a prosecution case.
2. Establishes Defense Arguments
The evidence is equally as important to the defendant’s case in a criminal trial. First, a defense
attorney can examine evidence assembled against the defendant and assault its credibility if it
wasn’t properly collected and preserved. Also, because the defendant may have evidence to
submit of an exculpatory nature that can be used to establish an alibi, it’s important that such
evidence is preserved to protect its integrity as well.
3. Protects Due Process for Accused
Even if a criminal case has reached its initial resolution, the defendant has the right to an
appeals process that could stretch on for a considerable time. Therefore, any evidence that
could reasonably be important to the appeals process must also be preserved to ensure that

20
 it’s available for use in future legal proceedings to reach a just final disposition. Preservation
of evidence is a key component in the due process rights of the accused and is, therefore, an
integral component in the pursuit of justice in the legal system.
4. Can Be Used for Exoneration
There have been many cases in which evidence that initially proved damning to a defendant
was later used to provide exoneration years later. For example, DNA evidence that couldn’t be
tested in the past may be used to prove the innocence of a defendant years later. However, if
that evidence isn’t properly preserved, it won’t be available and could result in an innocent
person remaining incarcerated for crimes he or she didn’t commit.
In a criminal case, the evidence collected and presented is critical to both the prosecution and
defense, and therefore, must be collected and preserved with the highest standards of
integrity.

Types of Evidence
1. Direct evidence
Direct Evidence is considered as imperative evidence for deciding the matter in the issue. It
directly proves or disproves the fact. In such evidence, a specific fact is established directly
without providing a reason to connect to the fact. One hardly needs to point out the
illustration provided as the evidence of the witness in court is direct evidence as opposed to a
testimony to a fact suggesting guilt.
2. Such evidence is real, tangible, or clear evidence
A fact that requires no thinking or consideration to prove its existence. However, relying on
the evidence completely without any reasoning to prove its existence can be considered as a
drawback as well. For instance, one may be prosecuted for perjury.
3. Circumstantial evidence
Circumstantial or indirect evidence refers to evidence which proves the facts in issue by
providing other facts, that is, indirect facts and then proving their relevance. A satisfactory
conclusion can be drawn from such evidence by relating a series of other facts to the facts in
issue. Such indirect facts must have been associated with the facts in issue and have a cause
and effect relation.
Under the Nepalese Evidence Act 2031, “circumstantial evidence” is covered under the
expression “relevant facts”. Here, “relevant facts” need to be proved by direct evidence which
includes oral or documentary evidence.
4. Analogical evidence
Analogical evidence is underutilised evidence and usually comes in to play at the end
moment. It saves the day when one doesn’t have statistics to refer to or any other matter to
quote.
5. Anecdotal evidence
Anecdotal evidence refers to evidence which is based on a person’s observation of the world.
Personal observations can also be useful for introducing as well as building up a topic. Such

21
 observations must be supported with statistical evidence to ensure the validation of such
observation.
It is another underutilised type of evidence, which is generally considered as untrustworthy
and meaningless. However, it can be beneficial for disproving generalisations by coming up
with an appropriate example for contradicting a claim. The same can also be used to support
claims.
6. Character evidence
Character evidence is an important type of evidence for determining the guilt of a person. This
practice is being used since time immemorial. The character of a person is a general quality
which is the summary of his/her past actions, whether good or bad. The same is considered to
be vague and subjective. For instance, a person with ‘good character’ may be considered as a
trustworthy and decent person, however, there is not any universal measure for the same.
Moreover, it is not impossible for such a person to commit a heinous crime. Sometimes, the
material evidence is covered by the character evidence. Such evidence may be proved where
it is an imperative issue in a dispute, such as defamation.
7. Demonstrative evidence
Demonstrative evidence refers to evidence that is shown to the judge (and in some case, jury
as well) in litigation. This evidence is neither testimony nor substantive evidence. Generally, it
includes charts, diagrams, demonstrations and illustrations of the testimony of a witness.
Such evidence should not be harmful or detrimental but should assist in proving something. It
is admissible only when it fairly and accurately reflects the witness’s testimony. Witnesses
create such evidence at trial. The same set of evidence can be used by the opposing counsel in
order to prove contrary positions.
8. Digital/Electronic evidence
Originally, digital or electronic type of evidence was not mentioned or covered under the
definition of evidence. However, the definition of evidence was amended by the Information
Technology Act, 2000 to include ‘electronic records’ within the same. An electronic record
includes record generated, data generated, the image stored, sound stored, or any
information received or sent in an electronic form.
Such evidence must be collected with a reasonable and least objectionable means. The
manner of the collection depends upon various factors, such as:
 System configuration encountered.
 Type of investigation.
 The evidence should be relevant to support the investigation.
9. Documentary evidence
It refers to any matter described or expressed upon any substance by means of letters, figures
or marks or by more than one means which can be used for recording the matter.Such
evidence is produced in the form of a document in order to prove a disputed fact.
10. Exculpatory evidence
Exculpatory comes from the word ‘exculpate’, which comes from two Latin words ‘ex’
meaning from and ‘culpa’ meaning blame.Exculpatory evidence refers to evidence which

22
 discharges the defendant and helps them to establish their innocence, thus proving him/her
not guilty.
11. Forensic evidence
Forensic evidence might lead to crucial investigative leads. Such evidence help in looking at
and analysing things that cannot be seen with the naked eye. It varies from the type of crime
one is investigating. For instance, in the case of a vehicular burglary, the DNA or fingerprints
can be traced. Here DNA (deoxyribonucleic acid) is the founding block of all human beings.
Investigators can find preparatory DNA in biological evidence found at a crime scene.
12. Hearsay evidence
Hearsay evidence refers to evidence which the witness has neither personally seen nor heard.
It is just reported by the witness and considered to be very weak evidence. In other words, it
refers to something that others have said or heard. There are no set standards to receive such
evidence provided it has reasonable credibility and nexus. In the absence of such credibility
and nexus, it is difficult and dangerous to act upon such evidence. Thus, such a piece of
evidence cannot be used if its credibility is not assured and questioned.
13. Physical evidence
Physical evidence refers to any evidence which is found at the crime scene. It includes
fingerprints, cut marks, tool marks, handprints, footprints, etc. According to the American
Academy of Forensic Sciences (AAFS), it refers to anything that needs a microscope to view
something that cannot be seen by the naked eye.
14. Prima facie evidence
Prima facie evidence refers to the evidence whose existence is questionable but at the same
time, it establishes a fact. The existence of such evidence cannot be questioned until it is
rebutted. It is also called as presumptive evidence as it is sufficient to raise a presumption of
the truth of a fact until and unless it is argued and rebutted.
Such evidence is sufficient to establish a basic fact. For instance, the performance of people
can be considered as discriminatory, if white people perform better than black people.
15. Statistical evidence
Statistical evidence refers to the data which people search or investigate for the purpose of
proving a particular point. Such evidence measures the strength of the evidence. Every time
one uses numbers to prove a point or establish a fact he/she tends to use statistical evidence.
16. Testimonial evidence
Testimonial evidence refers to evidence used to prove a particular point by testimony to the
courts. Testimony can be either spoken or formal written statements.
17. Judicial evidence
Judicial evidence refers to evidence received by the court that proof or disproof the facts.

2.2 Concept and meaning of Forensic Science

23
Forensic science refers to a branch of knowledge which deals with the application of all sciences for
the administration of both criminal and civil justice. It is a scientific discipline that deals with the
recognition, identification, individualization and evaluation of physical evidence by applying the
principles and methods of natural sciences for the purpose of administration of justice in both
criminal justice system as well as in resolving civil disputes. The word "Forensic" is derived from Latin
word¹ forensis meaning forum, a public place where in Roman times, senators and others debated and
held judicial proceedings.

Forensic science is that discipline where the knowledge of all sciences is applied to help courts deliver
justice. Few examples of application of the knowledge of various sciences for the administration of
justice include- identification of rape offender through scientific examination of semen collected from
vagina of victim, identifying the cause of death through autopsy examination, identifying thief by
confirming fingerprint at the scene of crime, relationship establishment through DNA test in paternity
dispute or inheritance claim disputes and so on.

As already discussed, forensic science contributes in justice administration, both civil and criminal, by
supplying forensic evidences or scientific evidences. Identifying murderer based on confession
corroborated with hearsay evidence, is not application of forensic science. But, identifying murderer
and convicting him by relying on two viz- (a) fingerprint attached into the of stabbed knife,
corroborated with (b) deceased's blood stain discovered from the stabbed knife, is an example of
application of the knowledge of forensic science in criminal justice administration. Opinion of
fingerprint expert in first case and opinion of forensic lab expert in second case discussed above, are
the examples of forensic evidence The knowledge/principles of forensic science that 'every person in
this world has unique fingerprint' and 'the blood of deceased when examined for DNA, is unique and
no two persons in the world can have same DNA' are applied to identify offender in the above
scenario respectively.²

The more investigation, prosecution and adjudication proceedings are made forensic oriented, the
more effective and scientific becomes the system of justice delivery in any country. Only the
investigators who are well trained forensically, can collect better forensic evidences from the Scene of
Crime, can effectively forward the samples to forensic labs that helps to obtain quality and accurate
forensic reports. These quality forensic reports and evidences forwarded to prosecutors by
investigators enable prosecutor to frame charge-sheet with certainty giving higher success rate at
conviction through courts.

1.https://www.casdschools.org/site/handlers/filedownload. ashx?
moduleinstanceid=7592&dataid=6762&FileName=01 Intro ForensicLaw.pdf (REtrived:

2.Parajuli Ramesh,"Forensic Science and Its Historical Development in Nepali Justice Administration"
Prosecution Journal, Office of the Attorney General Nepal, Vol. 4, Year 2018, p. 259.

Definition of Forensic Science

24
A universally accepted definition forensic science capable to specify its horizon of concept, meaning,
nature and importance has not yet been propounded. Though there lacks a universal definition,
scholars have used different languages and words to express what they understand about the forensic
science. It covers vast areas of science and technologies that are used in the investigation of a
particular case or issue. For ease understanding, it would be relevant to review the definitions given
by various scholars.

Richard Saferstein defines "Forensic Science is the application of sciences to those criminal and civil
laws that are enforced by police agencies in a criminal justice system."5 This definition highlights on
criminal justice system. However, application of forensic science is massive even in civil justice system
such as inheritance claim, paternity disputes, relationship disputes and so on.

Max M. Houck has defined "Forensic science describes the science of associating people, places, and
things involved in criminal activities; these scientific disciplines assist in investigating and adjudicating
criminal and civil cases. This definition highlights the application of forensic science in criminal
investigation connected with crime victim, scene of crimes and object or vehicle used in the offence.
The result or evidences extracted by such investigation assists in criminal adjudication. This definition
has rightly touched the importance of forensic science even in civil cases. Had the definition explained
in what sort of civil disputes are forensic science really helpful, it would have been comprehensive.
Execution of fake deeds to cheat or fraud somebody else by making false signature or handwriting,
DNA profiling in resolving paternity etc. could be the subject matters of forensic science in civil cases.

B.R. Sharma has defined this discipline as "Forensic science in criminal investigation and trials is
mainly concerned with materials and indirectly through materials with men, places and time." It
processes, identifies, and compares the materials. This definition provided importance of forensic
science at two stages of criminal justice. They are during criminal investigation and during trial of the
accused. It focuses on collection, processing, identification and even comparison of physical evidences
that could be found on the body of victim or offender and at the scene of crime.

There is general understanding among jurists and scholars regarding the concept of forensic science
that its essence is to apply principles, and knowledge of all sciences in the course of solving disputed
facts or issues in law in order to ensure justice. The application of principles and knowledge of science
in the process of investigation and

3.Richard Saferstein (2004). Criminalistics: an introduction to forensic science, 8th edition, p.3-23.

4.Max M. Houck, Forensic Science: Modern Methods Of Solving Crime 7 B.R. Sharma, Forensic Science
and Criminal Investigation and Trials, 1,(Praeger publisher, 2007). 4th Edition (2003) Universal
Publication, New Delhi, Ed. IV p.6.

2.3.Types of Forensic Evidence

25
The following list will show you the different types of forensic evidence that are commonly found at
crime scenes. Forensic Investigators will search for specific types of evidence based on the type of
crime they are investigating. Forensic evidence doesn’t just help people in court today, either. There
are countless examples of cold cases solved by the invention of new forms of evidence, as well as
wrongful convictions overturned by the same. Let’s take a closer look at the most common types of
forensic evidence.

1. Blood Splatter
Some of you might be already familiar with this type of forensic evidence. It has been featured
as one of the key pieces of evidence presented in the Netflix documentary Making a
Murderer. The science involves the analysis of the shape and size of blood splatters by experts
in the field.
This analysis can help garner a lot of information about the alleged events. An expert can
determine where the blood came from, what type of wound was involved, and the direction
and velocity the blood was moving as it splattered, all useful in re-constructing a crime scene.
2. DNA Evidence
One of the most well-known types of forensic evidence is DNA evidence. Most will be familiar
with its use in investigations, even if they’ve never heard the word ‘forensic’. DNA is a genetic
footprint that is unique to each person, and this can be used in several ways to verify the
identity of a suspect.
Nearly any tissue or bodily fluid containing DNA can be used to find a match. Hair, blood, and
even flakes of dead skin left at a crime scene could be the positive link that leads to a
conviction. A nationwide DNA database is maintained for the purpose of finding matches.
3. Entomology
Entomology refers to the study of insects, in general. Forensic entomology involves the study
of insects present on a post-mortem body to gather information. While it might not seem all
that obvious, the analysis of what bugs are present on a body can say quite a lot about what
might have happened.
It can help with determining the geographical location of the death, for example, if certain
bugs are from a certain area. The growth stage of eggs and larvae that have been laid on the
remains can be used to determine the time of death. They can also offer toxicology samples.
4. Dentistry
Dentistry has several applications within forensic investigations and evidence. The one that
may immediately come to mind is the identification of a dead body through the use of dental
records. Bodies that have been lost for some time and which have begun to decompose
probably can’t be easily identified on sight.
A forensic dentist can verify whether the teeth of a found body match the dental records of a
missing person. Forensic dentistry also comes into play in the analysis of bite marks. Often,
attackers are also bitten in self-defence by their victims – a dentist can identify the bite.
5. Fingerprints

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 Among the earliest forms of forensic evidence was/is the collection and analysis of
fingerprints. Fingerprints are unique to each person and the oils on a person’s hands leave
distinctive patterns on nearly everything they touch.
Areas that are likely to have been touched at a crime scene are dusted to find fingerprints. The
dust sticks to the oils left behind. The fingerprints are then photographed to be compared
with a database of prints collected from suspects. Even some partial fingerprints may be
enough to sway the balance of a case towards conviction.
6. Ballistics
Ballistics refers to the study of trajectories of objects that are propelled from a source by a
burst of energy and sent flying until gravity pulls them down, such as a ballistic missile or a
bullet. In the case of forensics, it’s typically bullets which are being studied. The term can also
be typically applied to other gun-related evidence.
Ballistics experts use their knowledge of physics to re-construct crime scenes, in an effort to
determine things like the angle the bullet came from. With this knowledge, they can also
determine where the shooter was relative to the victim as well as other information.
7. Autopsies
Evidence is often found through the autopsying of a victim’s body. Many different facts can be
ascertained by a medical professional through this analysis. The findings that autopsies are
best known for is the cause of death, something crucial to murder investigations and trials.
Various physical, chemical, and medical tests are performed on a body to find out exactly
what it is that killed him. Medical science will oftentimes show that a believed murder was
really an accident or even a natural death. Alternatively, an autopsy may also reveal
information which shows a death assumed to be innocent could merit criminal investigation.
8. Digital evidence
It is any digital information which is received from computers, audio files, video recordings,
digital images etc. The evidence obtained is essential in computer and cyber crimes. The
digital evidences such as word processing documents, spreadsheets, internet browser
histories, databases, the contents of computer memory and computer backup can be
produced in Court of law. The authentic digital evidences are accepted for the cybercrime
case.
9. Finger Print Analysis
Along with DNA, fingerprints are a main identifier for who we are. We give them when
applying for some jobs, they give access to our criminal records, and they can be used to
identify who we are in death. Even more importantly, when it comes to crime, fingerprints
can help identify individuals who may have been at the crime scene.
10. Handwriting Exemplars
Handwriting Exemplars are forensic evidence that can be used to help with a criminal
investigation by analyzing the writing on a document. Each person’s handwriting is a unique
marker of whom they are, and it can even go as far as to project certain personality traits.
Using handwriting samples, investigators can show if a document matches another document

27
 from a person in question, or can help identify a profile for the person in question. This can all
be used in solving the crime and litigating it.

5.http://www.outlookmagazine.ca/science/7-most-common-types-of-forensic-evidence/

2.4.Nature of forensic evidence

 Foundation for arguments that attorneys will likely pursue.
 Impartial, objective information that leads a judge or jury to their conclusions
 A lot goes into getting evidence ready for court (physical evidence itself, exhibits,
presentations, preparation by witnesses/experts/attorneys, etc.) than simply evidence
collection and analysis
 Uses information or evidence to determine if statements made by witnesses are true
 Evidence is information which can be personal testimony, documents, material objects
produced to make a fact or proposition more or less likely true.
 Most evidence is real (has weight and takes up space)
 Items that are Generated/Distributed/Lost Left during the commission of the crime and then
recovered at the scene (i.e.hairs, fingerprints, paint chips, blood, shoeprints)
 Some evidence is created to augment or explain real evidence diagrams, computer
simulations, demonstrations, reenactments are examples of such evidence
 This could be testimony, documents, or material objects.

6.https://www.coursehero.com/file/8052635/Nature-of-Forensic-Evidence/

2.5.Scope of forensic evidence

I. It is described as “applying science to statutes enacted in criminal justice by law enforcement
agencies.” Forensic Science is concerned with the application of scientific concepts and
methods of the various science disciplines to legal matters.
II. The proof analysis consists of multiple areas such as sociology, physics, forensic chemistry and
biology, DNA profiling, computer science, and engineering. Physics, for example, is used to
understand the blueprint of a blood dispersion; biochemistry seeks to strengthen the basis for
an unverified suspect, and chemistry helps us to find out the chemical composition of
different drugs.
III. It is an integration of nearly all scientific skills and acts as a critical and qualified tool that
makes the dispensation of justice possible in criminal, civil, legislative, and social contexts. It
helps to describe all of science’s applications in addressing the questions of legal significance.

28
 IV. Forensic evidence is now a highly advanced research method used in criminal and civil
investigations, able to address critical questions and an integral part of the criminal justice
system. It includes all renowned techniques such as the analysis of fingerprints, DNA analysis,
ballistics and explosives, firearms, culture, etc.

7.https://www.sarvgyan.com/courses/science/forensic-science

2.6.Importance of Forensic Evidence

The importance of forensic evidence in court cannot be overstated, as it is often the key to proving
that someone is guilty or innocent of the actions for which they’ve been charged.Some of the
highlights are numbered below:

 Forensic evidence is useful in helping solve the most violent and brutal of cases, as well as
completely nonviolent cases related to crimes such as fraud and hacking.
 If a decomposing body is found in the woods somewhere, forensic scientists can use DNA,
dental records, and other evidence to identify the person, determine the cause of death, and
sometimes determine if the body contains material from another person who may have been
present at the time of death.
 Investigators often look for forensic evidence in cases where sexual assault is suspected. In
some cases, DNA evidence can prove or disprove allegations of rape or child molestation.
 Forensics are also useful in drug and DUI cases. Scientists can test unidentified substances that
were found on an individual to confirm whether or not they are cocaine, heroin, marijuana, or
other controlled substances. Investigators use forensic toxicology to determine whether a
driver was impaired at the time they were involved in an accident.
 The field of forensics isn’t only limited to evidence obtained from people’s bodies. Ballistics
(otherwise known as weapons testing) can tell investigators a lot about cases where gunfire
was involved. Did a bullet come from a particular gun? Where was the shooter standing? How
many shots did they fire? Ballistics can help answer all of these questions.
 Another area of forensic evidence lies within the circuits of our phones and computers. Those
who commit cyber crimes leave behind traces of their activities in databases and documents
scattered throughout the digital world. Forensic computer specialists know how to sort
through the information to discover the truth.

9.https://www.bangerterlaw.com/the-importance-of-forensic-evidence-in-court/#:~:text=Forensic
%20evidence%20is%20useful%20in,such%20as%20fraud%20and%20hacking.

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 CHAPTER-III

HISTORICAL DEVELOPMENT OF FORENSIC EVIDENCE LAW IN NEPAL

3.1. Before Codification of Muluki Ain, 1910
Nepalese laws since the ancient period until the establishment of democracy in 1951 were based on
religion, local customs, and royal edicts. Law is considered to be a branch of religion. Prior to the
codification of the Country Code (Mulki Ain) of 1854, the legal system of Nepal was very much
influenced by religion. In ancient times, there was no differentiation between law and religion,
between law and native religion.
Many of the rules were based on the social customs, traditions, culture values, and
religion.Traditional concepts of fairness and impartiality under the laws of religion were basic rules of
justice. The kings of subsequent dynasties began to promulgate laws with the advice of
Dharmadhikara (the owner of justice) and pundits. Laws during Malla period were Sruties, Smirities,
Manab Nyaya Shastra. The practice of ordeal (trial) was legalized in the administration of Justice. Prior
to the unification of Nepal (1768), the whole system was governed by the Hindu religious text book
and the local customs.

3.2. After Enactment of Muluki Ain, 1910

In Nepal, in order to administer justice, the tradition of taking help of the expert was started from the
era of Rana Regime. At that period, if Shree 37 government felt the necessity to call an expert, the
expert was called before deciding the cases. The application of Forensic Science for effective
investigation of crime in Nepal started with the establishment of photography department in the year
1960 A.D. (2017 B.S.) and finger print department for the examination of finger prints from the year
1962 A.D. (2019 B.S.). after the establishment of Nepal Police in 1995 A.D. (2012 B.S.). The other
physical evidences were sent to India for examination, which took long time as well as the chances of
contamination and errors in results remained as a challenge.

3.3. After Enactment of the Muluki Ajn, 2020

30
The Country Code, 1963A D. (Muluki Ain, 2020) is the one of the oldest code which defines the
offences and prescribes the punishment for such offences. Some scientific approach for investigation
of crime has been incorporated in this code

The Chapter on Homicide 2 (4) prescribes the compulsory post-mortem examination of the dead body
in hospitals and dispensaries. Similarly, the Chapter on Hurt (Kurpit). Section 6, 7 and 8 prescribes the
examination of victim in hospitals. The Chapter on Rape also prescribes for the collection of the
evidences related to crime such as clothes. semen, and examination of the body of the victim. Similar,
in Section 4 of the Chapter of Treatment (Illaz Garne Ko Mahal) requires the examination of wounds,
examination of medicines etc.

In 1971 A.D.(2028 B.S.) Forensic Branch was established under Police Headquarters, with the objective
of using forensic science with the passage of time. But it was not used for the purpose of
investigation, rather by appointing a doctor and some medical personnel it was used for the
treatment of the police employees. In 1975 A.D.(2031 B.S.), the officers of Nepal Police were sent to
foreign for training in different branches of forensic science" and only after the year 1979 A.D. (2036
B.S.) Forensic Science Laboratory was established under Police Head Quarter, and the sections of
serology, toxicology, chemistry, ballistic, photography was operated?

In 1983 A.D. (2039 B.S.) the Justice Reform Commission recommended for establishment of well-
equipped and independent national level modern forensic science laboratory in Nepal for modernizing
the justice system in its report. In the wake of this recommendation the National Forensic Science
Laboratory was set up and run under the former Royal Nepal Academy of Science and Technology
(RONAST) in 1986 A.D. (2042 B.S.). It remained under RONAST from 1986 A.D. (2042 B.S.) till 1995 A.D.
(2051 B.S.).

On the other hand, the contemporary His Majesty's Government felt the necessity of Forensic Science
Laboratory within Nepal Police, hence, on 25 January, 1995 A.D. (2051/10/11) Central Police Forensic
Laboratory was established under Crime Investigation Department. Police Headquarters in accordance
with the decision of the Council of Ministers. From 1995 A.D. (2051 B.S.) to 2000 A.D. (2056 B.S.) NFSL
operated under Ministry of Law and Justice as an autonomous organization. As per the decision of
Government of Nepal, this laboratory is now running as an autonomous organization under the
Ministry of Science. Technology and Environment.

10.https://www.academia.edu/38294201/
Judicial_Trend_over_the_Application_of_DNA_Evidence_in_Nepal.pdf

31
 CHAPTER-IV

FORENSIC EVIDENCE LAW IN SOME OTHER COUNTRIES

4.1.Forensics Laws in India
In the Indian law context, laws related to Forensic Science are more numbered in the Indian Evidence
Act (IEA), compared to Code of Criminal Procedure (CrPC) and Indian Penal Code (IPC).

The Indian Evidence Act contains rules, regulations and legislations regarding the admissibility of
scientific evidence in the court of law. This act is classified into 3 parts with a total of 11 chapters.

 The first part deals with relevancy of facts. It has 2 chapters.

 The second part has chapters 3 to 6 and each has its own peculiarity. Chapter 3 describes
about facts that need to be proved before the court of law. Chapter 4 deals with oral
evidence. Chapter 5 gives in details of documentary evidence and Chapter 6 provides you with
circumstances where documentary evidence has or should be given preference over oral
evidence.
 The third part has chapters 7 to 11. Chapter 7 gives importance to burden of proof and how
important it is to prove evidence and facts. Chapter 8, 9, 10 talks about estoppels, witnesses
and examination of witness respectively. The final Chapter 11 defines improper admission and
rejection of evidence.

Forensic Science is admissible in Indian law considering the IEA, within 4 aspects: Witness, Admission,
Facts and Circumstantial evidence. Here are superficial details of some widely known laws that make
forensic evidence admissible in the court of law:

Most important and widely known aspect of Forensic Science is DNA and it’s testing. There is no
official legislation passed w.r.t. to DNA testing in the Indian constitution, but Sec 53 and 54 of CrPC
deals with examination of alleged person by a certified medical practitioner on reasonable grounds of
inquest.

32
Sec 293 of CrPC lists some Government Scientific Experts for the admissibility of expert opinion in the
court of law. The expert is examined as a witness for his/her opinion to be valid after cross
contamination. Also Sec 45 of IPC provides relevancy to expert opinion in any field of expertise in
forensic science, to help the court in framing judgements considering technically complicated and
sophisticated .

Forensic Toxicology has been the most active branch of Forensic Science where separate acts were
introduced amending the existing laws and legislations. Sec 272 to 278, Sec 284, Sec 328 of IPC deals
with poisoning. Along with general description of poisons, corrosive substances, adulterants,
chemicals and medico-legal aspects, there are acts like:

 The Poison Act (1990)

 Drugs and Cosmetics Act (1940)
 Narcotic Drugs and Psychotropic substance (NDPS) Act (1985)
 The Pharmacy Act (1948)
 The Drug control Act (1950) CITATION DrM l 16393 (Dr. Mrs. Vimal Rarh)

Another commonly heard term w.r.t. Forensic Science is fingerprints. According to Sec 73 of IEA any
person is compelled to give his/her fingerprints on orders from the court. The Supreme Court has
given special mention that this section isn’t a violation of their fundamental rights. Sec 5 and 6 of
Identification of Prisoners Act has the same context and allows acquiring thumb impressions and
handwriting samples. It also declares that these shall not be used against the person as personal
testimony.

Forgery, fraudulence and cheating are quite common in current scenario and are gaining momentum
to be the commonly occurring white-collar crimes. Indian laws have defined every term related to
crimes related to documents.

 Sec 29 of IPC defines document

 Sec 29A of IPC defines electronic records.
 Sec 463 of IPC and Sec 44 of IEA defines forgery.
 Sec 420 of IPC defines cheating and Sec 417 defines punishment for the same.
 Sec 47 of IEA is for handwriting opinion and elaborates the circumstances under which the
handwriting expert shall consider it to be a disputed handwriting.
 Sec 67 of IEA gives details of methods of how a signature in a document should be
proved.Though it’s been neglected from a quite long time, psychology plays an important part
in legal proceedings and Forensic Psychology is very crucial in the processing of a case. There
are 3 specific laws related to admissibility of forensic psychology in court of law.
 Sec 84 of IPC is related to an act of a person of unsound mind.

Indian Lunacy Act (1912) was introduced to amend laws related to lunacy and define certain
terms.The Mental Health Act (MHA) (1987) was enacted for improving hospitality and treatment
towards mentally ill people keeping in mind to protect the human rights of individuals.Indulgence of

33
Forensic Psychology in court proceedings help in assessment of mental condition, prediction of
violence and risk-management, assessment of child custody in divorce and competency to stand trial.

Wildlife crimes are yet another commonly occurring crime, but are least noticed. It is because they
take place at remote locations devoid of any witness and surveillance. The Wildlife Protection Act
(1972) places stringent restrictions on trade for protection and conservation of wildlife and the
schedules of this act are dedicated to wildlife forensics in specific and protocols to be followed.

Entering into the new millennium of 2000s, there was global advancement in fields of science and
technology and criminal activities took a new dimension. It was necessary for the law to be updated
with necessary amendments. It was the beginning of the era of cyber crime. Information and
Technology (IT) Act (2000) was enacted to provide legislation in the booming cyber space. The second
schedule of this act specifically deals with computer crime in India.

 Sec 2(t) of IT act defines electronic data.

 An amendment in IT act in 2008, gives importance to communication devices under Sec 2(ha).

Few terms were foreign to the Indian law and they needed proper definitions. Expressions like ‘digital
signature’, ‘certifying authority’, ‘electronic record , ‘secure network’ and ‘subscription’ had their
meanings assigned clearly while preparing the IT act in 2000.

11.https://www.google.com/amp/s/blog.ipleaders.in/admissibility-forensic-evidence/%3famp=1

CHAPTER-V

34
 LEGAL FRAMEWORK OF FORENSIC EVIDENCE LAW IN
NEPAL

Legal Provisions Related to Forensic Science

5.1 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.

5.2.Muluki Criminal Procedure Code, 2074 B.S.

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.

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 Main or a recognized laboratory.

35
Section 22: The legal provision in this section ge mandates medico-legal examination of wounds and
injuries to be done through government doctor or ubs health worker.

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.

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.

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.

5.3.Muluki Criminal Procedure Regulation, 2075 B.S.

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.

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.

5.4.Crime Investigation Regulation, 2075 B.S.

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.

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.

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

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 legalguidelines 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 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.

5.5. 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.

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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 evidence before court. namuilos finish
adt

36 Published in Gazette dated 2077/02/20 (Khanda 70, Atriktanka 10).

Section 35(1): The second amendment to Evidence Act, 2031 B.S." 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.

5.6.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.

5.7.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 ldbut are not limited to- abortion,
malafide investigation and prosecution, hurt, adulteration in food and drugs, estimation in rape and in
child marriage, acid or chemical or corrosive attack, counterfeiting of coins and notes, negligent
medical treatment etc.

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 CHAPTER-VI
Forensic Organisation and FORENSIC EVIDENCE CASES IN NEPAL
6.1.National Forensic Science Laboratory
Science and Technology has played an ever-increasing role in our society. In fact, forensic science must
be seen to act as a "Watch Dog" on behalf of the community against all hazards and abuse that may
threaten it. Hence the service of a forensic science laboratory can be considered as one of the
essential needs of the society.Good forensic science laboratories have been created in different
countries of the world for the purpose of processing of physical evidence on the search of truth.

Realizing the need for a modern forensic science laboratory in Nepal, The Judicial Reform Commission
(1983) recommended for the establishment of a well equipped and independent forensic science
laboratory in the country. In the wake of this recommendation, the National Forensic Science
Laboratory was set up and run under the aegis of Nepal Academy of Science and Technology (NAST)
from 1986 to 1995.

From 1995 to 2000 the laboratory was under the Ministry of Law, Justice & Parliamentary Affairs as an
autonomous organization. As per the decision of Government of Nepal, this laboratory is now running
as an autonomous organization under the Ministry of Education, Science & Technology.

Organization Structure

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 Fig-1

Objective

 Provide necessary services to concern agencies by analyzing and testing physical evidence
pertaining to investigation and justice administration.

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  Help tribunals find fact by giving scientific opinion and appearing in law court as an expert
witness.
 Conduct research activities and develop appropriate technology in different aspects of
forensic science.
 Conduct training program for those involved in investigation and judicial practice.
 Establish and run satellite laboratories in other parts of the country to make forensic services
easily available.
 Interact and establish relationship with national and international organizations concerned
with Forensic Sciences.

Board Of Directors

Fig-2

Clients

Main user of the laboratory is Judiciary. Besides, the laboratory also receives samples from the
Department of National Parks and Wild Life Conservation, District Forest Offices, Police, Commission
for The Investigation of Abuse of Authority, Public Service Commission, Narcotics Control Bureau,
British Gorkha, Department of Revenue Investigation, Department of Immigration, Department of
Labour, District Administration Offices, Regional Administration Offices, Banks and Hospitals etc.

Facilities

41
The laboratory is equipped with basic facilities and some modern equipment such as DNA Analyzer,
GC, GCMS, Raman Spectrometer, VSC 6000 and RT PCR. Technical units are headed by qualified and
experienced forensic scientists and are supported by trained staffs.

6.2.Central Police Forensic Science Laboratory (CPFSL)

The CPFSL was established on 2051 B.S. under Crime Investigation Department. Police Headquarters,
as per the decision of Council of Ministers. It is located at Samakhusi, operating under Crime
Investigation Department. Currently, the following units are operative in this laboratory.

1. Fingerprint Unit

2. Photography Unit

3. Biology/Serology/DNA Unit

4. Toxicology Unit

5. Chemistry/Narcotics/ Explosives Unit

6. Ballistics Unit

7. Physics Unit

8. Questioned Documents Unit.

One of the recent development of CPFSL is the introduction of DNA testing in 2014 (2071 B.S.), which
is performed in DNA Unit. For this purpose, Asia Foundation has donated the machine. It conducts
DNA test mostly on the criminal cases.

12.https://www.forensic.gov.np/

13.https://nepalpolice.gov.np/

6.3.Cases

Buddha Ahir and others v Junga Bahadur Ahirs

Fact of the case

Junga Bahadur Ahir claimed property from his father (according to plaintiff) Muse Ahir. But Muse Ahir
along with others denied the fact that the person claiming to be his son was not his son. His son Junga
Bahadur died when he was 5 or 6 years old. Adhya Prasad Ahir, younger brother of Muse Ahir,
accepted that Junga was only son of Muse Ahir. The District Court decided int favor of the defendant
whereas the Appellate Court decided in favor of the plaintiff. The question of paternity was raised and

42
the Supreme Court ordered for DNA test between Junga Bahadur Ahir, Muse Ahir and Chinki, to prove
or disprove the paternity of Junga Bahadur.

Decision of the Court

As the paternity of Junga Bahadur was not established to be Muse Ahir, on the basis of DNA report
and other supporting evidences, the Supreme Court quashed the decision of Appellate Court. With
this decision the court put forward the precedent that DNA testing can be one of the evidence. among
other evidences, but there is no compulsion to the court to conduct DNA test if the paternity can be
determined on the basis of other evidences. The court is not obligated to provide order for DNA test
only because the party has claimed. It is possible that DNA test report, which includes importance of
expert opinion. may not be considered as conclusive proof. If the direct and trustworthy order of
evidences draws the conclusion affecting the DNA test report, then the court can make proper
concept on the basis of the order of evidences.

Analysis

In this case, it was expressed that the evidential value of DNA testing is considered according to
Section 23 (1) of Evidence Act, 2031 B.S. In the judgment, the court gave emphasis on the DNA testing
to he scientific means to determine biological father and mother of a person, that is paternity, but it is
not the only means to determine paternity. If there is other evidence sufficient for determining the
paternity, then DNA testing is not necessary. The court has termed the importance of DNA testing to
be secondary.

The court stressed on the part that the court should be careful while giving order for DNA test, as it
may be used as revenge or raise question of chastity of woman, or create chaos in society or family.
The court seems skeptics to the accuracy and reliability of DNA testing, as it cannot be taken as true
cent percent. Also, the environment, time and means used for testing may affect it. However, while
the plaintiff, his mother and the younger brother of the defendant stated Muse to be his paternity,
DNA testing report was accepted by the court and gave its verdict that the paternity is not determined
between Junga and Muse.

Shanta Kumari Pandeya (Pant) v. Chol Kumari Pandeya and others

Fact of the Case

Shanta Kumari Pandey claimed property from Bishwamitral Pandey for her and her daughter. The
District Court held the claim of the plaintiff and provided property with marriage expenses of the
daughter. But the defendant appealed to Appellate Court that he is not the father of the child of the
plaintiff. The DNA test was conducted and the report stated that the defendant was not the biological
father ofthe child. The Appellate Court then partially upheld the decision of the District Court that is

43
the defendant shall not provide marriage expenses to the child. The plaintiff being dissatisfied with
this decision appealed to Supreme Court.

Decision of the Court

The Supreme Court upheld the decision of the Appellate Court. The court stated that the plaintiff is
not entitled to the property of defendant which is increased after the decision of the District Court.
Regarding the child, it cannot be decided now.

Analysis

The decision of the Appellate Court was based on the DNA test and it seems that the Court has
considered it as the conclusive evidence. The issue brought before the Supreme Court was related
with the property but the issue of paternity was dealt by the Appellate Court through the application
of DNA evidence, which was upheld by the Supreme Court as well.

Orlando and Brandon Nembhard: identity crisis

The case of Orlando and Brandon Nembhard illustrates that forensic evidence is only as good as the
technology used to analyze it. In 2011, witnesses claimed they saw Orlando brandish a pistol and
shoot a young man dead outside a nightclub in Chandler, AZ. It would have been an open-and-shut
case, except that Orlando’s identical twin, Brandon, was also present at the crime scene. No forensic
evidence from the crime could reveal which brother was responsible, and police had to drop the case.

Pritam Singh and Another v. State of Punjab AIR 1956 SC 415

TYPE: CRIMINAL APPEAL NO. 69 OF 1955

CORAM: N.H. BHAGWATI, T.L.VENKATARAMA AYYAR, BHUVANESHWAR PRASAD SINHA, JJ.

AUTHOR: N.H. BHAGWATI, J.

DECIDED ON: NOVEMBER 4, 1955Facts

This was an appeal against conviction for murder and sentence of death by the Trial Court confirmed
by the High Court. Foot-prints were found at the spot which corresponded to a pair of shoes which fit

44
one of the appellants Pritam Singh Fatehpuri and which were recovered from his house along with
some other articles. The track evidence was also relied upon with regards to the second appellant
Pritam Singh Lohara due to the fact that impressions made by him when he walked on the sandy
patch in the Jail prepared for this purpose tallied with the moulds of the foot-prints prepared on the
spot.

Findings

It was argued that the track evidence was unsatisfactory and should not have been relied upon by the
courts below.The Court noted that the science of identification of footprints was a rudimentary
science and not much reliance could be placed on the result of such identification. However, it added
that the track evidence can be relied upon as a circumstance which along with other circumstances
could point to the identity of the culprit even though by itself it would not be enough for a conviction.
In the facts of the case at hand, the Court concluded that the track evidence was a circumstance
which was available to the prosecution against Pritam Singh Fatehpuri and Pritam Singh Lohara.

Shankaria v. State of Rajasthan (1978) 3 SCC 435

CITATION: (1978) 3 SCC 435

TYPE: CRIMINAL APPEAL NO. 561 OF 1976

CORAM: R.S. SARKARIA, N.L. UNTWALIA, P.S. KAILASAM, JJ.

AUTHOR: R.S. SARKARIA, J.

DECIDED ON: APRIL 26, 1978

Facts

45
This case pertains to a double murder. The appellant was sentenced to death by the Trial Court which
was then confirmed by the High Court. Moulds were prepared from the foot-prints of the suspected
culprit and matched with the footprints of the appellant. At trial, the expert testified that the foot-
mould of one of the bare footprints found at the scene of crime tallied with the specimen left foot-
mould of the appellant.

Findings

On the point of the footprint evidence, the Supreme Court held that the science of identification of
foot-prints is not a developed science, and track evidence, by itself, is not sufficient for a conviction.
However, it is a relevant circumstance which can be taken into account along with the other evidence
and may then reinforce the conclusion on the identity of the culprit. In the matter at hand, the other
evidence was also sufficient to fix the identity of the culprit. However, the footprint evidence
provided further assurance to what the appellant stated in his confession statement about his going
barefooted inside and outside the Gurdwara about the time of committing the crimes in question.

State of U.P. v. Sunil

CITATION:(2017) 14 SCC 516

TYPE: CRIMINAL APPEAL NOS. 1432-34 OF 2011

CORAM:PINAKI CHANDRA GHOSE, ROHINTON FALI NARIMAN,JJ.

AUTHOR: PINAKI CHANDRA GHOSE, J.

DECIDED ON: MAY 2, 2017

Facts

46
In this case, the High Court set aside the order passed by the trial court and acquitted the respondents
of murder. In considering the evidence, one of the questions before the Supreme Court was -
“Whether compelling an accused to provide his fingerprints or footprints, etc. would come within the
purview of Article 20(3) of the Constitution of India i.e. compelling an accused of an offence to be a
“witness” against himself? “

Findings

The Court held that a person can be directed to give his footprints for corroboration of evidence and
the same cannot be considered as violation of Article 20(3) of the Constitution of India, 1950. The non-
compliance with such direction of the court may lead to adverse inference. However, this cannot be
entertained as the sole basis of conviction. After examining the entire evidence in this case, the Court
said that prosecution failed to prove its case and upheld the judgment of acquittal by the High Court.

14.https://www.forensic.gov.np/navigation/services

15.Available at http://forensic.gov.np/publications/annual-reports/, Accessed on 5 January 2016

Handbook of Central Police Forensic Science Laboratory, Ceirrd 28

16.Buddha Ahir's Case n (82)

17.SCB 2072, Year 24, Vol. 12, p. 34

18.https://www.rd.com/list/forensic-cases-that-stumped-everyone/

19.https://www.project39a.com/forensics-landmark-judgments

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 CHAPTER-VII
FINDINGS, CONCLUSION AND SUGGESTIONS

7.1Finding
In this research paper I tried to find out the development of Forensic Evidence in Nepal as well as the
recent trend concerning application of Forensic evidence in Nepal by the judiciary. From this research
paper, it is observed that the development of Forensic Science started in Nepal since 1983A.D.The first
judicial application of DNA evidence in Nepal started from a criminal case. However, the first judicial
and legal admissibility of DNA as evidence started from a civil case to determine paternity. The
judiciary has taken DNA into consideration as evidence on the basis of the Evidence. Act, 2031 B.S. But
the sad part is that even after a decade long development of DNA Profiling in Nepal, there is still no
specific law regarding DNA.

In Nepal, forensics infrastructure is so weak it can end up helping criminals.According to Dr. Harihar
Wasti, a forensic expert at the Tribhuvan University Teaching Hospital (TUTH), the law is “severely
lacking” when it comes to the medico-legal sector in which forensics science falls and “about 90% of
criminal investigations are extremely flawed because of the problems in how the system has been set
up.”

“The new criminal code provides guidance for crime scene investigation by the police. But regarding
medico-legal aspects, it only states that medical examination needs to be carried out at the nearest
hospital. Even in cases of sexual violence, it doesn’t say that medical examination needs to be done
and report written, that is only in practice. There is no procedural or substantive law, and guidelines
are completely absent,” Wasti said.

In the section of the new criminal code that contains provisions regarding the proper investigation of
cases, it is stated that police personnel must not destroy and must properly preserve all evidence
relating to a crime, and if “police investigating a case require assistance from any personnel, required
assistance shall be provided.” However, the code does not specify who the police may seek assistance
from. For cases involving death, the code specifies that “the investigation officer must take the corpse
to be examined by a medical professional either at a government hospital or medical professional
recognized by the government” and “if the investigation officer believes the cause of death is
suspicious and needs further examination, relevant medical experts may be contacted for
examination.”

In reality, police rarely contact “relevant medical experts.” Instead, doctors in government hospitals,
who have little or no forensic expertise, are tasked with gathering accurate, precise and reliable
information about a crime.

48
It is well known that the forensic evidence is important in crime investigation, civil proceedings and
justice delivery. DNA is that scientific technique which can be applied in various nature of cases, from
identification of a person, either alive or dead, to the descent of the person, from paternity testing to
the determination of child in case of exchange, from inheritance to immigration, from identification of
accused in criminal offences to establishment of crime. etc. With this wide variety of scope of
application of DNA evidence, the judiciary has also accepted its importance.

7.2 Conclusion

The Judiciary of Nepal is positive towards the admission of forensic evidence in Nepal. Within a
decade long application of forensic science in Nepal, the judicial trend of admission of forensic
evidence is gradually gaining the status of as conclusive evidence. In order to he conclusive in Nepal,
DNA has to be procedurally and technically correct followed by the expert opinion with complete
court proceedings. DNA evidence helps for rebuttal as well as acceptance of presumption of court.

The judicial trend over the issue of application of DNA evidence is still limited towards paternity
testing in cases of civil nature. Its scope of application of DNA evidence has not been expanded but
the scope regarding subject matter, that is, the jurisdiction of court to order DNA test, authority to
order such test in reasonable grounds and recognition of DNA as individual's interest has been
developed by the judiciary of Nepal.

In conclusion, forensic science, as conclusive evidence, has helped the judges to impart the justice by
means of scientific examination. DNA holds the genetic information of every individual, which is
important in establishing the relationship in civil cases like Buddha Ahir's Case or establish an offence
in criminal cases, as in the case of Chameli Khadka's Case. It has supported the Nepalese Judiciary in
the cases of relationship establishment, property and incest. In most of the cases discussed in this
research paper, DNA evidence is used as the means to reveal the truth and render justice by the
judiciary. This provided fairness of justice to the public. In the cases, where this is not possible, the
judiciary relied on its presumption.

7.3 Suggestions

 On the basis of findings and conclusion following recommendations have been given to the
concerned authority to maintain problems regarding to forensic evidence. The major
suggestions are as follow:
The prevailing provision in the Chapter on evidence of the Muluki Criminal Code cannot cope
up with the challenges and need of today. Therefore, Nepal Government should go ahead to
formulate separate Forensic Evidence Act as soon as possible.
 Separate Court should be formed to decide cases relating to forensic evidence negligence with
the provision of at least one medical expert.
 While deciding cases expert opinion from reputable and unbiased experts of the similar field
of medicine should be taken.
 National Standard Treatment Guidelines (STG) needs to be introduced to bring uniformity and
transparency in the method of treatment and prescription of drugs throughout the country.

49
  Government should have clear policy whether evidence is a service or a business.

Bibliography

PRIMARY SOURCE

A. Constitutions, Policies, Statutes (Acts), Rules, Regulations of Nepal and India

a.Nepal

Constitution of Nepal, 2072 (2015)

Muluki Criminal Procedure Code,2074B.S

MulukiCriminal Procedure Regulations,2075 B.S

Evidence Act,2031B.S

Police Act ,2012B.S

Muluki Criminal Code ,2074B.S

b. India .

The Evidence Act

IT ACT 2000

The Poison Act (1990)

Drugs and Cosmetics Act (1940)

Narcotic Drugs and Psychotropic substance (NDPS) Act (1985)

The Pharmacy Act (1948)

The Drug control Act (1950) CITATION DrM l 16393 (Dr. Mrs. Vimal Rarh)

B. Government Documents and Reports

Nepal Kanoon patrika

Nepal Law Comission

50
C.Law Reporters

Nepal Bar Council Law Journal

Nepal Kanoon Patrika2077

D.Dictionary

Garnar, Bryan A... (2019). Black's Law Dictionary. West Group, St. Paul. Minn. Shrestha, Shanker
Kumar, (2012), Dictionary of Law and Justice: English-English-Nepali, Pairavi Prakashan, Kathmandu,
Nepal.

2. SECONDARY SOURCES

A. Books

Barry, A.J. Fisher- Techniques of Crime Scene Investigation, 7th ed. R.C. Press, New York (2003)

James, S.H. and Nordby, J.J.; Forensic science: An introduction to scientific and investigative
techniques, 2nd ed.CRC press, USA (2003)

Sharma B.R.; Forensic Science in Criminal Investigation and Trails; Universal Pub. Co. (2003)

B.Article

Kharel (17) pp. 113-128.

Bratt (2).

c.Journal Articles

Parajuli Ramesh,"Forensic Science and Its Historical Development in Nepali Justice Administration"
Prosecution Journal, Office of the Attorney General Nepal, Vol. 4, Year 2018, p. 259.

d.Newspapers/Magazines Articles

http://www.outlookmagazine.ca/science/7-most-common-types-of-forensic-evidence/

e.Reports and Publications

https://www.coursehero.com/file/8052635/Nature-of-Forensic-Evidence/

https://www.sarvgyan.com/courses/science/forensic-science

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https://www.academia.edu/38294201/
Judicial_Trend_over_the_Application_of_DNA_Evidence_in_Nepal.pdf

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