MEDICO-LEGAL LEASH ON CRIME LOST IN THE MORTUARY OF TIME

Subhas Chandra Pattanayak

When the real culprits who precipitated the Kalinga Nagar massacre on January 02, 2006 have not yet been punished, the Doctors, suspended from service in the aftermath of mass protests against chopping off of the palms of five victims of police firing, have been subjected to stringent disciplinary proceedings and penal prosecution. They are charged for having exceeded their briefs while conducting the autopsies. To what extent the prosecution shall succeed can be seen in future; but it is discernible that the action against these particular doctors has a demoralizing effect on the community of doctors.

Of course, chopping of the palms of people killed by police at Kalinga nagar is too grotesque an act that neither clinical nor legal necessities could be sited for justification. Why then did the doctors do this? Under pressure from the police, as they had then said. But Law does not permit a doctor to conduct any autopsy under pressure from the police. Hence Law shall not come to their rescue. It is they, who alone shall remain answerable for the uncalled for chopping off of the palms.

Here lie the intricacies of legal management of human casualties.

Before going to that, let us first look at the phenomenon called autopsy. Qualified doctors are the only persons to conduct it. And it is the most dependable medical process to pave the path of human society to greater safety and soundness.

An autopsy is conducted on a dead body to determine the cause of death. This word itself is derived from a Greek word “autopsia” that means “seeing in own eyes”. This means, the doctor is to see in his own eyes the reason of death of the deceased. The reasons of death are only two in number: clinical and non-clinical. So, seeing the reason of death in his own eyes by a doctor rests with two different types of autopsies, namely clinical autopsy and coroner’s autopsy.

Clinical Autopsy

The autopsy conducted to discover the reason of death when there was no dearth of medical attention is known as clinical autopsy. It is conducted, subject to permission from proper quarters, on the body of a person who despite best of medical care, succumbs to a disease, beyond the known realm of diagnosis, whatever be the age, in presence of a doctor, to study the inner symptoms of the unknown disease. It helps in expansion of medical knowledge for more safety of human body.

Coroner’s Autopsy

But when a person dies without a disease and unattended to by a treating doctor, autopsy on his/her body is conducted to determine as to which extra-physical force extinguished the life. This is called Coroner’s or Medico-legal autopsy.

Every death without disease is bound either to be suicidal or self-accidental or homicidal- whether or not intentional.

For every such death, an external factor or a person other than the deceased is individually or collectively responsible.

If suicidal, there must be one or more persons responsible for having driven the deceased to that mental stage where life must have become unbearable. If self-accidental, the deceased might have succumbed to external factors such as slipping into a dug-well while collecting water, slipping into the trap of water-currents while bathing in a river or a sea, falling from a tree while collecting fruits or flowers or dry wood, crashing into another object while driving a vehicle, slipping into the zone of a serpent or an animal to earn its assault and etc. If homicidal the deceased might have been killed by criminals intentionally or by a non-criminal unintentionally or accidentally.

So when a person dies unattended to by a treating physician, the death needs medical investigation to determine the cause thereof so that human society could be provided with better guidance and safety.

As such, autopsy, be it clinical or medico-legal, is an unavoidable must factor in the best cause of human body as well as human society.

In this discussion that aims at addressing the issue of prosecution of doctors who conducted autopsies on Kalinga nagar victims, we are concerned with the second type of autopsy, i.e. coroner’s or medico-legal autopsy.

Importance of medico-legal autopsy

When cause of death is external, it must either be judicial or criminal. Judiciary orders to kill a person by hanging till death. No investigation is needed on that; because that is judicial. The society gains by a death if that is judicially induced. But criminally induced death of a person is a loss to the society. So, that is to be investigated upon to find out and punish the culprit. This responsibility is discharged in our country under the Indian Penal Code that has given the power to investigate and prosecute the culprit to the Police.

The police locates the culprit through three types of tests. It may be depositional test such as the versions of eye-witnesses. It may be forensic test such as matching a gun with the bullet. It may be medical test such as matching body fluids or determining if an injury projected as the cause of the death is ante-mortem or postmortem.

So, besides the eye-witness accounts, the two most important tests to find out the culprit are the forensic and medical tests.

Forensic tests are conducted by personnel belonging to or controlled by police as forensic laboratories spread from Center to States form parts of police network. When police itself is involved with the crime, as in custodial deaths or when politico-administrative nexus is involved like in Chhabirani murder case, forensic test is of no unveiling use. The tactics adopted by police in such cases may be best defined as “a conspiracy of silence from top to bottom” by borrowing the words from former Director General of Police of U. P. Mr. N. S. Saxena as published in Indian Police Journal (January-March, 1999). A more scathing unveiling of police involvement in brutal crimes is perhaps available in the words of the West Bengal Human Rights Commission when he says, “Records maintained in police stations are not based on facts, but on convenience… Evidence is fabricated so as to implicate the targeted individual… Monetary considerations largely determine the fate of investigations.” I owe this quotation to a Report of National University of Juridical Sciences, Kolkata, published recently under the Criminal Justice India Series. In fact, seldom one finds a man in India who has undiminishable confidence in police. So forensic test left entirely to the forensic experts belonging to and under control of police, though heavily relied upon for discovery of crime and determination of who committed it when and how, is some times inadequate to convince the society on its correctness. Medical tests, beyond police control as administratively they are, help establish the cause of death, in a more authentic manner in most of the cases. There lies the importance of medico-legal investigation of death or coroner’s autopsy.

The Crime Scenario

The crime scenario of the country presented by the 2005-06 annual report of the Union Home Ministry indicates a continuous rise in IPC crimes, notwithstanding concealments as quoted from Saxena supra. The reported IPC crimes during 2004 (18,32, 015) increased by 2.9% and 6.8% respectively, over the years 2002 (17,80,330) and 2003 (17,16,120); out of which crimes against the body, specifically murder, culpable homicide not amounting to murder, kidnapping and abduction and hurt in the year 2004, stood at 3,37,738 and were 6.1% more than those in the year 2003 (3,18,181 ) and 3.7% more than those in the year 2002 (3,25,789). This continuous rise of crime against human body is going on despite utmost importance given to forensic tests. Since 1973, records the National Crime Records Bureau, even as homicide rate has increased, there has been a sharp reduction in the disposal of murder cases, from 35 percent in 1973 to about 15 percent in 2005 with a steady decline marked in conviction rates for murder and culpable homicide. It is sad that how far lack of importance on medico-legal studies is responsible for lack of punishment to culprits is not being looked at.

Absurdity as reported by Bhore Committee

If we look at the Bhore Committee Report, in 1946, the position “in regard to the investigation of medico-legal problems was very unsatisfactory”. The Report had noted, “Every medical; practitioner in charge of a remote dispensary whatever his qualification or experience, is asked to undertake medico-legal postmortem in complicated cases of crime and he is liable to be held in question thereafter, the presumption being that every medical man is competent to undertake these responsibilities, but unfortunately neither the profession nor the judiciary nor the State have stopped to consider the absurdity of such a presumption.”

“Untrained and ill-trained” Doctors

In the 1950s, the union Government has constituted the Central Medico-legal Advisory Committee (CMAC) to advise the Central and the State Governments on matters of medico-legal procedure and practices and on how to use medical science in determination of crime against human body like murder and rape. It had reported, “The one important single factor in the stalemate in the medico-legal practice in our country is the lack of Medico-legal Institutes or full-time Departments of Forensic Medicine in Medical Colleges imparting post-graduate training in Forensic Medicine. This has resulted in the paucity of regularly qualified experts. The work has been carried on by “untrained or ill-trained” State Medical Officers. We would urge and emphasize that forensic medicine is as much a specialty as any specialized branch in medicine or surgery and medico-legal work cannot be lightly thrown on the shoulders of any every medical man. The fact that all medical jurists in the United Kingdom are experienced forensic pathologists might be followed in India with advantage”.

CMAC ultimately killed: What next?

But the Committee was killed unnoticed and its observations/ recommendations have been, like that of Bhore Committee, abandoned in the mortuary of time.

In absence of independence and autonomy, the doctors, “untrained and ill-trained” in forensic pathology as they are, while conducting medico-legal autopsy are left under the mercy of fate under the whims and caprices of police, administration, scheming politicians and gullible public.

Thinking minds must ponder over the issue.