nepalese legal provision
Post on 13-Jul-2016
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DESCRIPTIONNepalese Legal Provision by Dr. Abhishek Karn
NEPALESE LEGAL PROVISIONDr. Abhishek KarnAsst.Professor Dept. of Forensic Medicine & Toxicology
Ignorance of the law excuses no man. Not that all men know the law, but because it is an excuse every man can plead, and no one can refute him
FORENSIC MEDICINE,thesciencethat deals with the application of medical knowledge to legal questions.
It deals with crime against a person in which medical examination & documentation is required as evidence.
Also known as LEGAL MEDICINE.
CIVIL & CRIMINAL LAWINQUESTCOURTS OF LAWOFFENCE & PUNISHMENTSSUMMONMEDICAL EVIDENCEWITNESSRECORD OF EVIDENCE
All legal cases can be broadly classified into:Civil (DEWANI)Criminal (PHAUJDARI)
In Nepal, each of this is again divided into:Pertaining to Country (SARKARWADI)Pertaining to People (DUNIYAWADI)
CIVIL LAWDeals with disputes between two individuals/parties.Eg. land disputes, trust (guthi), adoption etc.
Party bringing the action in civil cases: PLANTIFFAccused in both civil & criminal cases: DEFENDENT
CRIMINAL LAWDeals with offences which are considered to be against the public interest.
Eg. Offences against the person, property, public safety, security of the state.
The state is the party represented by the public prosecutor (in sarkarwadi phaujdari mudda) & the accused is the other party.
STANDARD OF PROOF:
CIVIL CASE: court should be certain of more than 50% of the defendants culpability.
CRIMINAL CASE: the court should be convinced beyond reasonable doubt
INQUESTLegal/ judicial Inquiry into the cause of death.Conducted in cases of :- -suicide -murder -killing by animal, machinery -accidents -suspicious (unnatural) death -death due to anesthesia/operation/tortureV.Imp.
Types of Inquest:Police inquest
Medical examiner system
Police InquestCommonest inquest. (Only inquest in Nepal)It is the police who gets the report of any death first, police then goes to the scene of death & starts investigation (INQUEST/ MUCHULKA)Conducted by investigating officer who should be at least of the level of sub-inspector.Inquest report is prepared in presence of two/more respectable persons.
Magistrate InquestConducted by district magistrate.
In cases of: -death in police custody, prison. -death due to police firing. -death in psychiatry hospitals. -dowry deaths. -exhumation.
Coroners InquestConducted in U.K., some states of U.S.A & in some other countries.
Doctor is summoned to his court to give evidence at the inquest.
Coroners court is the court of inquiry & accused need not be present.
Medical Examiners SystemConducted in most of the states of U.S.A.A medical practitioner known as Medical Examiner is appointed to perform the functions of a Coroner.Doctor visits the scene of crime & conducts the inquest, therefore superior to Coroners & Police Inquest.Medical Examiner doesnt have any judicial function nor can he/she order the arrest of any person.
COURTS OF LAWThree levels of court in Nepal:District court: -in each district (75 in no.) -1st court in all cases (civil/criminal)Appealate Court: -presently 16 in no.-appeal cases from district courtsV.Imp.
3. Supreme Court: -highest judicial tribunal. -except Nepal Army Court, all other Courts are under it. -one chief justice & maximum of 14 other permanent judges are present.
OFFENCEAny act or omission made punishable by the law.
COGNISABLE OFFENCE: an offence for which a police officer may arrest the offender without a warrant. Eg. Rape, grievous hurt, murder, robbery, death due to rash/negligent act, ragging.
NON-COGNISABLE OFFENCE: an offence for which a police officer may not arrest the offender without a warrant.
PUNISHMENTSCapital punishment (death) Imprisonment for lifeRigorous/ Simple Imprisonment Forfeiture of propertyFine
SUMMON / SUBPOENAA document compelling the attendance of a witness in a court of law under penalty, on a particular day, time & place for the purpose of giving evidence.Priority:Criminal Court > Civil CourtHigher Court > Lower CourtSummon 1st received > 2nd received
CONDUCT MONEYFee offered / paid to the witness in civil cases, at the time of serving the summons to meet the expenses for attending the court.Amount to be paid is determined by Judge.In criminal cases, no fee is paid. The witness must attend & give evidence in the court because of the interest of the state in securing justice.
EVIDENCEIt means & includes:
a. all the statements which the court permits / requires to be made before it by witness in relation to matter of facts under inquiry.
b. all documents produced for inspection of the court.
Evidence of eye-witness is POSITIVE.
Evidence of doctor/expert is an opinion which is corroborative.
Types of Evidence:1.Oral : (more important than documentary as cross examination is possible)(i) Direct(ii) Hearsay/Indirect (iii) CircumstantialV.Imp.
2.Documentary (i)Medical certificate ill health, death, vaccination, Birth certificate(ii)Medicolegal-report Injury report, PM. report, Report of Sexual offences, Pregnancy, Abortion(iii)Dying Declaration and Deposition.(iv)Miscellaneous Expert opinion from books
Accepted by the court only on oral testimony by the person concerned (exception:-iii, iv)
Dying declaration: Written/oral statement of a person, who is dying as a result of some unlawful act, relating to the material facts of cause of his death or bearing on the circumstances.Before recording the statement, doctor should certify that the person is conscious & his mental faculties are normal COMPOS MENTISNo leading questions & no oath as dying person tells truth.V.Imp.
Dying deposition:Statement of a person under oath, recorded by the magistrate in the presence of the accused/his lawyer who is allowed to cross-examine the witness.
WITNESSA person who gives sworn testimony in court of law.
All persons are competent to testify unless they are prevented from understanding the questions put to them or they cant give rational answers to those question due to tender years, extreme ages or d/s.V.Imp.
Types:Common WitnessExpert Witness
Types of Witness1.Common witness (witness of fact occurrence) witness who gives evidence about the facts observed or perceived by him, he must show that he was capable of perceiving the facts by one of his own senses.
2.Expert witness : is a person who has been trained or is skilled in technical or scientific subjects and capable of drawing opinions and conclusions from the facts observed by himself or noticed by others e.g. doctor, firearm expert, finger print expert, hand writing expert.V.Imp.
Hostile Witness : One who is supposed to have some interest or motive for concealing part of the truth or for giving completely false evidence.
Doctor can be both a common and expert witness.
PERJURY: giving willful false evidence while under oath.Witness is liable to be prosecuted for perjury.