Medical Evidences

Evidences are:

“All statements which the court permits or required to be made before it by a witness in relation to matters of fact under inquiry and documents produced for the inspection of the court”

Types

1. Documentary Evidence
2. Oral evidence

Documentary Evidence

Documents produced before a court as evidence

It includes:

1. Medical certificate
2. Medico-legal report
3. Post mortem examination
4. Dying declaration

Medical certificate:

• These are simplest form of documentary evidences
• These are certificates issued by the doctor regarding ill health (sickness certificate), unsoundness of mind, death certificate, birth certificate, fitness certificate, vaccination etc.
• Court accept certificates issued by only Registered medical practitioners (RMP) registered under state medical council (SMC)
• Court my require attendance of the doctor to testify on oath the facts mentioned
• He/she can be cross examined if necessary

Important points to remember:

• Issuing a false medical certificate is an offense and viewed as professional misconduct
• The certificate should contain all relevant information and identification marks of the holder like thumb impression
• An illness certificate should contain exact nature of Illness.
• In disability, the cause of it, whether permanent or temporary
• In vaccination, exact date of it
• In death certificate, if he/she is convinced about the natural death, death certificate can be issued, cannot charge a fee, cannot delay the process
• Certificate must state the immediate cause of death like coronary thrombosis instead of vague terms such as heart failure.

Doctor must make sure:

• The person is actually dead and not in suspended animation
• The cause of death is natural
• If there is a suspicion or foul play, death certificate should not be issued and reported to police before disposal of the body
• In such case if Doctor issues a certificate, he will be accused as contributing to the crime

To avoid issuing a death certificate in unnatural cause:

• Doctor should inspect face for petichiae on eyelids, conjunctiva, lips, mouth for injuries, neck for bruises, ligature marks, signs of violence
• Inspect the scalp and back for bumps, lacerations and wounds, abnormal discoloration of the skin due to poisons, upper and lower limbs for marks of injuries
• Examine the body for temperature, postmortem lividity, rigor mortis and check whether they are consistent with alleged time of death as stated by relatives.

Medico-legal report:

• These are documents produced and issued by the doctor on request of an investigating officer (Police or Magistrate) of the case (assault, rape, murders etc.)
• It includes injury certificate, age certificate, post-mortem reports, reports regarding exhibits of weapons, clothes etc.
• Consist of three parts:
• Part 1: preamble or introduction containing name, age, sex, address, identification marks, date and time of examination
• Part 2: Examination/Observation consisting findings and recorded by the doctor
• Part 3: Opinion (inference): consisting opinion of the doctors from the medical examination
• The report should be written with great care and should bear the signature and name of the examining doctor.
• Any exhibits e.g. Clothes or weapons etc. sent for medical examination should be described in detail with diagrams or sketches.

Dying declaration:

• A dying declaration is a statement, verbal or written, made by a person as to the cause of his death or as any circumstances of the matter which resulted in his death.
• When such a case is admitted who is dying, the doctor should call the magistrate to record the dying declaration
• Before recording, doctor should ensure healthy mental state of the patient (Compos mentis)
• If patient is very serious, the doctor should record the statement.
• When doctor or magistrate is not available, it may be recorded by the investigating officer under Section 32 of IEA (Indian Evidence Act)
• No oath is administered while recording a dying declaration.
• The declaration may be made orally, the person recording it should be writing at the same time
• It should be recorded in the exact same words (vernacular) of the declarant
• Two witness are required to be present
• There should not be any leading questions
• In case of extreme weakness, the patient can make signs to questions put to him/her
• The declaration should be read over to the declarant and signature or left thumb impression should be taken
• It is also signed by doctor and the two witnesses.
• If the declarant dies before conclusion the doctor should record as much as possible and sign himself
• The declaration should be sealed and forwarded to the appropriate magistrate.
• If doctor is available to record the statement, the investigating police officer is not allowed during the declaration.
• If the victim survives, DD holds no legal value

Dying deposition:

• Is statement given by the dying person on oath to magistrate in the presence of accused or his/her lawyer who has opportunity to cross examine the victim.
• The doctor should certify that the declarant is in sound mental state (compos mentis)
• It carries more value than Dying declaration because:
• Recorded by the magistrate
• Recorded in the presence of accused or lawyer
• The dying declaration hold full legal value even after the declarant has survived.
• It is also called as “bedside court”

Oral evidence

• All the statements which the court requires under inquiry by the witness verbally are Oral evidences
• As per section 60 of IEA
• The oral evidence should be direct evidence
• If it is seen, it should be the seen by that same person
• If it is heard, it should be heard by that person
• If it is perceived under circumstances, it should be perceived by the person
• If the person has some opinion, it should be the opinion of that same person
• Oath has to administered
• It can be subject to cross examination

Exceptions to the Oral evidences

• Dying declaration (section 32 IEA)
• Expert opinion expressed in a treatise (section 60 IEA)
• Deposition of medical witness taken in lower court (sec 291 CrPC)
• Report of government scientific experts (293 CrPC)
• Evidence given by a witness in previous judicial proceedings (sec 33 IEA)
• Statement of persons who cannot be called (sec 32 IEA)

Other types of evidences

• Hearsay evidence
• Circumstantial evidences

Hearsay:

• It is an indirect evidence in which witness has no personal knowledge of the facts but has only heard what others have said

Circumstantial evidence:

• Consist of facts from which inference may be drawn
• Finding of blood stains on accused
• Bullet recovered from the body of the dead
• Total yield from a crime scene qualifies for the circumstantial evidence

Witnesses

• Witness is person who gives sworn testimony or evidence in the court of law in relation to matter of facts under inquiry
• Who can be a witness or testify as witness
• Any person can testify as witness if the person understands the nature of question which may be put and who is able to give rational answers to the questions asked.
• The people of tender age may find difficulty if cross examined.

Types of Witness:

• Common witness
• Expert witness

Common Witness:

A common or ordinary witness who testifies as to facts actually seen or heard by him/her

Common witness cannot:

1. Draw inference from observations
2. Express any opinion on observations made by others
3. Volunteer a statement

Expert witness:

• An expert witness is a person especially skilled in foreign law. Science or art (sec 45 IEA)
• The professional training of such a person enables him/her to form opinions on observation made by him/her or others.
• He/she can also volunteer a statement if the court misses an important clue.
• Examples of expert witness are doctors, finger prints experts, hand writing experts, chemical analyzer, ballistic experts
• A doctor can be both a common witness and expert witness
• According to Indian Medical Council act 1956 in section 15 (2)(C) states that no person other than a medical practitioner enrolled on a state medical register shall be entitled to give evidence at any inquest or in any court of law as an expert under section 45 IEA on any matter relating to medicine.

Perjury

• Perjury means willful utterance of falsehood by a witness under oath
• It is a false evidence given by the witness in the judicial proceeding
• Giving false evidence is an offense under section 191 of IPC
• A witness is liable to be prosecuted for perjury under section 193 of IPC

Hostile witness

• It is a form of perjury
• Hostile witness is also called “adverse witness” or “unfavorable witness”
• A hostile witness purposefully give evidence contrary to the facts
• The common witness or expert witness may turn hostile
• When a witness is declared hostile, leading questions are permitted to ask to extract truth (section 154 IPC)

Procedure in court of recording evidence

• When a doctor is called in the court, oath has to be taken
• The purpose is to ascertain that the witness speaks only truth
• If the witness doesn’t speak truth, it becomes perjury

The oath taken in the court is as follows:

• “the evidence which I shall give to the court shall be truth, the whole truth and nothing but the truth. So help me God
• If witness doesn’t believe in god, “I solemnly affirm that the evidence which I shall give to the court shall be truth, the whole truth and nothing but the truth”

The sequence of recording

1. Oath
2. Examination in Chief
3. Cross examination
4. Re-examination
5. Questions by the court (judge)

Examination in chief

• It is carried out by the council (Lawyer) of the party who has called (summoned) the witness
• In government cases this examination is done by public prosecutor
• The objective is to keep all the facts regarding the case before the court of law
• No leading questions are permitted in this examination except when the court demands.

Cross examination

• In this part the defense lawyer of defense council questions the witness
• Objective is to elicit facts favorable to his/her case
• To test the accuracy of the statements
• To modify or explain what has been said
• To discredit the witness
• Leading questions are permitted during cross examination
• There is no time limit for cross examination
• Cross examination can be sometimes act as a double edged sword.

Re examination

• The lawyer who started the examination in chief re-examines the witness again
• Objective is to explain any ambiguities or correct any facts or add any further details to the statements given by the witness.
• Leading questions are not allowed in this part of examination
• No new subject can be introduced without the permission or consent of the judge or defense counsel.

Court questions

• The judge may ask any question at any point of time during the judicial proceeding
• The object is to clear any confusion or doubts for judgment
• The witness can be recalled after recording his statement if hi/her statement needs further clarification.

Conduct of a medical witness in Court

• When the summon is served, the doctor or medical witness should attend the court with great punctuality and dress according to his/her dignity
• The evidence of such a witness is taken on time understanding their duties
• If there is a delay, the medical witness can inform the public prosecutor politely
• Before attending, the doctor should refresh his/her memory of the facts written in the report or even carry a copy of it along
• Whenever in the court premises. Should not unnecessarily discuss the case facts
• When called in witness box, an oath is administered
• He or she must address the judge as “sir” or “your honor”
• Should give evidence slowly but in loud voice so as to enable the court clerk to record the statement
• Whenever practical, simple words are to be used so as to ease the understanding (cut instead of incised wound)
• The answers should be brief and precise and no vague terms are used
• Whenever possible, doctor can volunteer a statement in the interest of the Justice
• If the witness doesn’t know the answer, he/she should commit and say no to maintain credibility (since medicine is a vast subject)
• If the question remains unclear or ambiguous, he/she should ask to repeat the question politely
• If any quote is read from a medical book and appears false to him/her, the doctor may ask for the book and see for publication before replying
• The medical witness should be impartial understanding his/her responsibility and should be in position to reveal point which may be against the party called him.
• He should form opinions based on recent advancements and give reasons for his opinions
• The medical witness should not lose temper but keep cool and maintain dignity if questions are of irritable manner.
• The tricky questions should be dealt with caution and not just reaction.

Keeping confidentiality is considered as a moral duty of the medical witness or a doctor

• After recording the evidence, the statement is read over to him/her and taken initials (signature) with any corrections.
• The doctor should not leave the court until permitted by the judge
• He/she can be given an attendance certificate to claim the expenses or compensation to attend the court
• He/she can be recalled whenever necessary.