Forensic evidence is evidence that is obtained by scientific methods such as ballistics, blood tests and DNA tests and can be used in a court. It is often considered to be one of the most important tools in the adjudication of criminal cases. For victims of crimes or families of the deceased, it offers a pathway towards holding perpetrators accountable. For defendants, it is a means of avoiding wrongful conviction. Forensics science can condemn, acquit, or exonerate the accused; it can also determine and explain the nature of a crime or the cause of death. It is thus central to the proper functioning of the criminal justice system anywhere in the world.
In Nepal, however, 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.
In January 2019, The Record looked into the death of 14 year old Pramila Tharu in Sangharshanagar, Bardiya. Pramila was found dead on October 29, 2018. Her body was hanging from a low branch of a rhino apple tree, with her own dupatta fashioned as a noose around her neck. Her sandals were strewn about a 100 metres away from where her body was found. Pramila’s body was covered in injuries— a large thorn had made a deep gouge in her right toe, the tops of her feet covered in blood, there were also scratches and a bruise above her left eye. Her hair, shoulders, and back were covered in seeds and dried grass, and her family says that the waist button was missing from her trousers, which were covered in long streaks of dirt running down the back of the legs. Residents of Sangharshanagar who saw her body believed that Pramila had been raped and murdered.
The police, however, claimed that Pramila had died by suicide, claiming that forensic evidence “proved” no murder had taken place. When The Record looked into the case, it was clear that the evidence was weak at best, fabricated at worst.
Nawaraj Sharma, the 27 year old doctor at Tikapur hospital who conducted an autopsy of Pramila’s body, said that he had did not consider himself to be formally trained in conducting autopsies. He examined the body for 15 or 20 minutes (a thorough autopsy commonly takes much longer) and determined that the cause of death was “asphyxiation by hanging.” Sharma said that the police had not fully communicated to him the details of the scene of crime, and that he could not say with certainty whether Pramila had died by suicide or murder.
Nevertheless, for the police, the declaration by the doctor was “scientific proof” that the case did not need further investigation. After protests erupted in Rajapur where people demanded that the case be looked into further, blood samples from the ground near where Pramila was found, her menstrual pad, and her body were sent to the Central Police Laboratory in Kathmandu. The clearly flawed logic here was that if somebody had hurt Pramila, their blood must also have been at the scene of the crime. On January 5, 2019, the police told Pramila’s family that since all three blood samples showed that the blood was Pramila’s there was no foul play. The tests supposedly proved suicide.
“Many doctors have never witnessed even a single case before they start performing autopsies,” said Wasti. This has huge implications for criminal investigations— doctors are often unable to provide information that would aid police in their investigations.
Pramila’s case shows how weaknesses in the various stages of the forensics investigation process lead to criminal cases being mishandled. Doctors are not properly qualified, tests that are conducted are inappropriate, and processing of evidence takes a long time due to extensive backlogs in the two crime labs based in Kathmandu— the Central Police Forensic Science Laboratory of the Nepal Police and the National Forensic Science Laboratory.
Medico-legal examination is a very specialized field that requires years of careful study. According to Wasti, only around 50 people in Nepal are properly trained in forensics. Because the law specifies that only doctors working at government hospitals can conduct the examinations, not all of the trained forensic pathologists are allowed to practice. Instead forensic examinations are conducted by MBBS doctors, many of whom, like Nawaraj Sharma, know the basics but lack proper training.
“Many doctors have never witnessed even a single case before they start performing autopsies,” says Wasti. This has huge implications for criminal investigations— doctors are often unable to provide information that would aid police in their investigations.
In nefarious cases, police who are reluctant to investigate a case for any reason can use the flaws in the forensics system in order to justify their decisions. But according to Senior Superintendent of Police Uttam Subedi, national spokesperson for Nepal Police, the weaknesses in the forensics system disadvantage the police, too.
“While in other countries, forensics can yield a lot of information about a crime, in Nepal, the police cannot learn much from doctors’ reports, which makes investigations difficult,” Subedi said.
In recent years, there has been talk in many places around the world of the ways in which forensics science is fallible. According to American forensics expert Jessica Gabel Cino, “the attorneys and the jury should be fully aware that certainty is unattainable, human error is possible, and subjectivity is inherent.” Nevertheless, despite its shortcomings, a robust forensics infrastructure is crucial as a tool to find truth and deliver justice. Until Nepal recognizes the importance of medico-legal sector as worthy of investment, many criminal investigations will continue to be incomplete, allowing perpetrators of heinous crimes to walk away scot-free.
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