Study on Forensic Evidence in the context of Nepal

A STUDY ON FORENSIC EVIDENCE IN THE
CONTEXT OF NEPAL
Submitted to: Dipak Silwal
Nepal Law Campus
Faculty of Law, Tribhuvan University
Exhibition Road, Kathmandu, Nepal
A Seminar Report Prepared
In Partial Fulfillment of the Requirement
For B.A. LL.B. Program
Submitted by:
Sony Baniya
B.A. LL.B. Seventh Semester
Campus Roll No.: 105
Examination Symbol No.: 420090
T. U. Registration No.: 6-2-468-2-2016
December 21, 2021

RECOMMENDATION LETTER
The Seminar Report titled "A Study on Forensic Evidence in the context of Nepal"
prepared by Mr./Ms./Mrs. ......Sony Baniya........................., student of B. A. LL. B.
Seventh Semester; Nepal Law Campus under my supervision has been approved and
submitted to Nepal Law Campus, Faculty of Law, Tribhuvan University for final
examination and evaluation.
Dipak Silwal
Lecturer
Nepal Law Campus
Date: 21/12/2021
ii

ACKNOWLEDGEMENT
First and foremost, I would like to acknowledge my supervisor,
Sir Dipak Silwal, Professor In-Charge, Nepal Law Campus, without whose guidance
and inspiration this dissertation would not have completed.
I would sincerely like to thank, Rakesh Singh chief of Central Police Forensic
Laboratory and the staff of DNA Unit for their cooperation and providing me with the
necessary information and materials. I would also like to thank Mr. Jivan Prasad Rijal,
chief of National Forensic Science Laboratory for his insights in the subject matter.
Further, I would to extend my gratitude to Nepal Law Campus and its Library &staff,
and Central Law Library for providing me the necessary resource materials. I am
indebted to my family and friends for their immense support and motivation in course
of preparing this dissertation.
Sony Baniya
B.A. LL.B. Seventh Semester
Nepal Law Campus
Date: 21/12/2021
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PREFACE
Learning is a complex process in itself and learning of a subject like Forensic
evidence that bases on matters ranging from abstract philosophy to concrete
technicality of all different disciplines is, nonetheless pretty interesting, even more
convoluted only. However, it is a truth of almost universal nature that gathering and
sharing of knowledge is the best way of learning and building a scholarly ambience in
society. This seminar is a product of the same thought process; an attempt to share
what I have learned and reflected in the elemental concepts of forensic evidence and
an expectation to scholarly assertions and better academia in the society.
It is expected that everyone be aware of law. The fascinating scope of forensic
evidence draws in many fresh high school or campus graduates to law. For forensic
evidence is an all-pervading study, students and professionals of various discipline
and sector have to study or work on matters of evidence very often. The number of
graduates and professionals intending to study forensic evidence despite their
successful niche in respective fields is rapidly increasing only. In this scenario, this
seminar intends to provide a competent and proper guidance to anyone who intends to
start legal education or grab basic knowledge of forensic evidence. The chapters in
this seminar have been written with utmost care so that readers get hold of
fundamental ideas of forensic evidence for sound knowledge of the basics is
indispensable for proper grip in the intricacies.
Despite efforts made, the seminar, surely, is not error free. With the guidance of
readers, the following editions shall be made even better in terms of both content and
accuracy. Any feedbacks are always welcome. Let us all march in unison towards the
future where legal fraternity is impeccable and competent in knowledge, integrity and
pragmatism.
21 December 2021
iv

LIST OF ABBREVIATION
A.D. Anno Domini
B.S. Bikram Sambat
CPFSL. Central Police Forensic Science Laboratory
DAO. District Administration Office
D. Not. Decision Number
DNA. Deoxyribonucleic Acid
e.g. For Example
F.Y. Fiscal Year
GoN. Government of Nepal
HMG. His Majesty's Government
INTERPOL. International Criminal Police Organization
Ltd. Limited
MIDNA Mitochondrial DNA
N.K.P. Nepal Kanoon Patrika (Nepal Law Journal)
NFSL. National Forensic Science Laboratory
PCR. Polymerase Chain Reaction
Pvt. Private
RFLP Restriction Fragment Length Polymorphism
RONAST. Royal Nepal Academy of Science and Technology
SCB Supreme Court Bulletin
STR Short Tandem Repeats
USA United States of America
V Versus
Vol Volume
v

VNTR Variable Number Tandem Repeats
vi

CHAPTER Ι
INTRODUCTION
1.1 General Background of the study
The beginning of 20th century has marked the development of science and
technology. The uses of scientific techniques and tools have subsisted in the growth of
different branch of science. Among such branches, Forensic Science is a branch of
science that deals with the application of scientific knowledge and methodology to the
legal problems, criminal investigation.1There are different methods of collection and
scientific examination of evidences on Forensic Science. Forensic evidence involves
the efficacy of information that has been scientifically generated for a particular case,
the validity of which is grounded in past experiences in similar cases as evidenced in
the forensic literature. Among the various branches of Forensic Science, such as
Fingerprints, Questioned documents, Toxicology. Forensic Medicine, Forensic
Ballistics, etc., Forensic DNA finger printing has emerged as the new "gold standard"
of scientific evidence.2
Forensic science has come up in a big way to assist criminal investigation. It helps to
interrogate suspect, victim and even witness to get the truth. Neurological tests viz.
hypnosis, psychological detection of deception (Lie detection), Narco-analysis and
Brain mapping has revolutionized the police investigation saving time money and
effort and providing far superior results. These scientific methods of interrogation
have made the interrogations more humane and legal, thereby eliminating notorious
third degree methods of: which most often prove disastrous.
Criminal investigation is a pragmatic science that comprises the study of facts, used to
categorize, uncover and demonstrate the culpability of an accused criminal. A
comprehensive criminal investigation can include probing, consultations, cross-
examinations, evidence collection, preservation and various methods of investigation.3
Criminal investigation is an antediluvian science (pre-historic) that may have origins
as far back as 1700 BC in the writings of the Code of Hammurabi. In the code it is
1 Available at: http://legal-dictionary.thefreedictionary.com/Forensic Science, Accessed on 3 December
2015. Ronald D. Bran, DNA Tensing: Modern Trends and Judicial Analysis, 2010, p 2
2 Available at hnp://acct:info/index.php?view=article&id-2233 Adna-testing-modem-trends-and-
judicial analysis&format-pdikepnou-com_contem, Accessed on 22 November 2015.
3 25Charles E. O'Hara and Gregory L. O'Hara, Fundamentals of Criminal Investigation (Sixth Edition,
1994), page132.
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advocated that both the accuser and accused had the right to present evidence they
collected. 4
In Nepal, prior to the establishment of National Forensic Science Laboratory in
19865there was no proper Forensic Laboratories to examine the evidences
scientifically and those evidences were sent to India for the examination. DNA
Profiling started in Nepal from 2005 A.D. In 2006, DNA Unit was only focusing on
Paternity disputes through blood tests as a beginning step which has extended to
criminal cases, immigration, baby switching, personal identification from human
remains etc.6 Now, the Central Police Forensic Science Laboratory has also started the
DNA testing with the machine donated by Asia Foundation.7
There is no single statutory recognition of forensic science in Nepal, however, its use
is scattered in various legislations such as the Muluki Ain, 2020 (Chapter on
Homicide, Counterfeiting, Kutpit, On Medical Practitioners, Rape etc.); l Evidence
Act, 2031; Government Cases Act, 2049; Torture Compensation Act, 2053; Police
Act 2012; Narcotic Drug Control Act, 2033 and the like. The Supreme Court has
given established various precedents with regard to the application of forensic
science.
However, due the lack of a single statute the scientific application of forensic science
in judicial decision-making is not yet realized by our courts. Even in the case of DNA
technology Nepal lacks a specific statutory mechanism. US, Canada and UK have
particular DNA legislations such as the US DNA Technology Act, 2003; Canada
DNA Identification 1998 and the Criminal Justice Act, 1995 respectively.
Similarly, Nepal has yet to acquire the modern technology for DNA analysis and the
charge for DNA analysis for paternity disputes is very costly. In some cases, Nepal
still relies on the investigation acquired from Indian cities.
The courts should also gradually do away with the practice of interpreting the forensic
evidence openly and rely upon established scientific principles. Therefore, there is a
dire need for the proper mechanism establishing the direct use of forensic science in
the Nepalese courts.
4 26Ann Wolbert Burgess, Albert R. Roberts, Cheryl et al, Learning: Victimology: Theories and
Applications 2009, page 103.
5 Available at:https://moste.gov.np/Forensic, Accessed on November 3, 2015.
6 Available at: http://forensic pov.np/technical-unita dna Accessed on 3 November 2015.
7 Available at: http://kantipuronline.com/2014/03/18/development police-in-stan-dna-test-service-from-
next work/386887.html. Accessed on 9 June 2015.8Available
at:https://legalinfonepal.wordpress.com/2015/11/24/forensic-science-and-justice-in-nepal/
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