Government Cases Act, 2049 B.S. of Nepal Needs urgent amendment

Section 11(4) of Government Cases Act, 2049 B.S. of Nepal

Needs urgent amendment



Dr. Harihar Wasti, M.D.,M.Sc., B.L.

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Section 11(4) of Government Cases Act, 2049 BS cuts the path to justice. This provision avoids opportunity of discovering potential forensic evidences by destroying the dead body before being examined by Medical Doctor. Parliament has no authority to enact laws in such a way that the law itself becomes barrier to deliver justice. Police investigator may think that no evidence can be produced from decayed dead body but in fact Modi[1] recognizes that vital clues to solve the mystery of crime can be available even from decomposed dead body. Modi[2] advocates that it is very important to conduct Post Mortem examination of Decomposed Dead body as in normal dead body. The examination of decomposed body should be complete and should be held in same line as in ordinary autopsies.



* Existing provision:

It says that - If police finds or feels that a dead boody can not be examined because of extreme decomposition, it is not necessary for him him/her to forward the dead body to government's medical doctor for post mortem examination. Police is given power to burn down such dead body if no relatives of deceased take away the dead body.

* Defect in current provision:



It is not my intention to blame that police will misuse this legal lacuna. Rather what I am focusing is that if the law do not provide such discretionary space for police then there will not be room for suspecting over the act done by police under good faith. Current law provides ample space for public to criticize even an honest police who is acting under good faith. By making autopsy mandatory even in decomposed dead body, three more advantages will be achieved viz. firstly, opportunity to discover possible forensic evidences will not be blocked. Secondly the attempt of criminal or crime supporter to block post mortem examination will go to vain and thirdly, it will upgrade the dignity of police institution in the eyes of public because there will be no opportunity to criticize over the police by blaming that police is misusing this legal provision.



* Landmark Examples:

Ø By examining an extremely decomposed body of a 40 years old Hindu male, Modi gave his opinion that the deceased was first killed by a wound on the neck, and stab wounds on the chest, and then tied with a dhoti and thrown into a well. Before examination by Modi there was whim in public that the deceased had committed suicide. ---- (p. 109)

Ø Mode of death (Hanging[3] & drowning[4]), nature of weapon[5] used, clues to the cause of death[6] etc. have been discovered by examining the extremely decomposed dead body: ---- (p. 110)

Ø A body found in a well in very advanced state of decomposition was send for examination from police station Lacknow. All internal organs had disappeared, except a small portion of the small intestine and uterus. The lower jaw and the hands were missing. The skull was denuded free of soft tissues, but had a depressed fissured fracture at the junction of the parietal bones with the frontal. there was a necklace of glass beads round the neck, the soft pairs of which were destroyed in front of maggots, which were crawling all over the body. The body appeared to be that of a Hindu female, who had been killed due to the fracture of the skull bone with a blunt weapon and was then thrown into a well. ---- (Modi; p. 113)

Ø In Rex v. Dobkin MCR, Vol XI, Part III, 1943, 182 the husband was charged with murder, was found guilty and sentenced to death by examining the available skull, superimposed photographs, original portrait and fibroid tumour of the uterus remained in the extremely decomposed dead body of his wife. ---- (Modi; p. 115)

Ø A buried body of 370 days of burial was taken out from Sindhupalchowk, examined and the report could be prepared for complete positive identification and cause of death was found as cut injuries to head by heavy sharp weapon like Khukuri. (Record of autopsy CJ Hospital Kathmandu) The case was successfully prosecuted and accused was convicted.

Ø The body of alleged Mr. H. B. exhumed more than 2 years of illegal killing and burial at a jungle of Kavrepalanchowk on 2063-03-21.The autopsy report from Forensic Medicine Department Maharajgunj could be able to give opinion as the skeletal remains are of from Mr. H.B. on the basis of remains of citizenship, office ID document and clothing. The cause of death was found as a shotgun injury from close distance to pelvis (Record from Forensic Medicine Department FM63-0356, 2063-04-09).

Ø Dead body of another illegal custodial killing of M.S. was exhumed from Panchkhal Kavre after 4 years of burial.On the basis of morphological features and a unique type of necklace could give positive identification and she was the victim of gunfire injury to spinal column. (FMD 23-03-2007)



* Why amendment?



* Conclusion:

Post mortem examination of decomposed dead body must be made compulsory at any cost. Post mortem examination of decomposed body is equally important as of normal or fresh dead body. The legal provision must not give discretionary power to police to dispose dead body without conducting autopsy. Once the dead body is burnt down, the vital evidence will be lost forever and no power in the world can re-generate or recover the value of destroyed evidence. Section 11(3), (4) and (5) of Government Cases Act, 2049 BS needs to be urgently amended in this line.





The end













[1] Modi Jaising P is the most distinguished medical jurist in India who died on 19th June 1954. Dr. Modi was for many years considered the most reliable expert in medico-legal cases and his expert opinions were upheld in every court if India. He is the most trusted international medico-legal expert in Nepalese courts till the day).

[2] Modi Jaising P.; Modi’s Medical Jurisprudence & Toxicology, New Delhi, LexizNexis Tripathi Publication, (2002), Ed. 22; p. 109. (This book has no provincial boundaries or national border for it is considered as an international monument in the field of medical-law.)



[3] In a case of hanging, Modi found a ligature mark in the neck on the 6th day after death, when the body had been putrefied to a large extent. ---- (Modi; p. 110)

[4] At the post mortem examination held on the 5th day after death when the body was advanced in putrefaction, the presence of mud in the right bronchus led Modi to form a diagnosis of death due to drowning. ---- (Modi; p. 110)

[5] For example fracture of skull bones, cut injuries in the bones etc. will explore that they might have been caused by such and such weapon. ---- (Modi; p. 110)

[6] A foreign body such as a bullet, apiece of weapon or some other object found in body may give a valuable clue to the cause of death. ---- (Modi; p. 110)
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