Corpus Delicti Vis-A-Vis-Criminal Prosecution

CORPUS DELICTI VIS-a-VIS-CRIMINAL PROSECUTION <!--[if gte mso 10]> CORPUS DELICTI VIS-a-VIS-CRIMINAL PROSECUTION By Farzana Shahzad Khan, Deputy Prosecutor General, Punjab, Lahore CORPUS DELICTI: Corpus deliciti is a Latin term which means dead body, substance or foundation of an offence In criminal law, Prosecution and Corpus deliciti are collateral to - each other because it is well-settled principle that before seeking to prove that accused is the author of the crime, it must be proved that the crime has been committed and the manner in which it is going to be proved is by way of a systematic and sophisticated examination and enquiry which is called criminal Investigation. INVESTIGATION: Section 4(1) of Criminal Procedure Code, 1898 defines investigating as: "investigation' includes all the proceedings under this Code for the collection of evidence conducted by a police-officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf. Investigation generally consists of the following steps i.e. 1. Proceeding to the spot. 2. Ascertainment of the facts/circumstances of the case. 3. Discovery and arrest of the suspected offender. 4. Collection of evidence relating to the commission of the offence. 5. Formation of opinion as to the trial of the case. The very purpose of Investigation is to find truth and place all the incriminating material before the Court in the form of submission of challan under section 173 of Criminal Procedure Code, 1898 but in Pakistan unfortunately the process is reverse that is the investigation Agencies firstly prove a person an accused and then try to prove that the particular crime has been committed by that accused. It is because of the reason that in Pakistan there is no systematic method of investigation, the Investigator lacks the passion and commitment which is required to solve the criminal cases. A case is considered to be solved when justice has clearly been done. A defective investigation destroys the whole prosecution case and in spite of the fact that morally Courts are convinced that an accused is guilty of crime, legal conviction is not possible because of insufficient evidence being collected by Investigating Officer (LO) In respect of homicidal cases, death investigation involves evaluating the cause, mechanism, and manner of death. One can categorized the manner of death into four heads: 1. Natural 2. Accidental 3. Suicidal 4. Homicidal DEATH INVESTIGATION CAN TAKE DIFFERENT FORMS: Which includes the search for a body when someone is missing and presumed .to be dead. Following steps are taken to solve the case: * The search for identity and clues about the manner of death when a body is found. * An autopsy to determine cause and manner of death. * The identification and analysis of skeletal remains. * An exhumation to find something that was missed the first time around. The search for a body is very difficult task. In Advanced Countries this task is to be taken by trained dogs, by team of Experts like biologists, geologists, chemists, meteorologists, geophysicist, plant ecologists, anthropologist and other specialist with most advanced technology but in Pakistan firstly, no such facility is available at all, secondly even if the unknown dead body has been found police is unable to find out or trace his identity and the case usually be thrown away in the heap of untraceable files. To understand the kind of Investigation Conducted in Pakistan one has to enter the arena which is prohibited for lay men. The idea to go to a police Station (Thana) is so horrifying and unpleasant that citizens have developed an extreme feeling of hatred for police. One could easily hear the crying and screaming of the suspects under investigation upon his entrance in the police Station. Instead of Investigating the matter by using technical methods, Investigating Officer tries to get recorded the confessional statement of accused by coercive measures like physical torture, abusive and filthy language, third degree methods which include inhumane and unexplainable acts by the police in spite of the fact that law is very clear on the point that an Extra Judicial Confession has no evidentiary value in the eye of Law. Because of this brutal treatment of police people do not want to be called in the police station and are not willing to co-operate with Police. In this way police itself wastes most of the valuable evidence even the independent eye-witnesses are not willing to get recorded their statement. The term Res gestae is defined as: anything said soon after the occurrence by the people gathered there, but usually the Investigating Officer does not bother to get recorded the same and resultantly by taking benefit of doubt the accused is able to be free from the clutches of law. It is incumbent on every police officer making Investigation to enter day-to-day proceedings of the investigation into a Diary. The Diary is a register to be kept in every Police station to record every report or complaint filed with police. The Diary must set forth the time at which the information reached, the time at which the Investigating Officer began and closed his investigation, the places visited by him and the statement of circumstances ascertained through his investigation but it is very pathetic situation that police does not follow the same and in most of the cases because of non-production of entry in Roznamcha/Diary makes the entire case of prosecution doubtful and unbelievable. Remand is considered to be part and parcel of criminal Investigation and for the purpose of extracting informations from the accused, Remand is usually granted to the police under section 167 of Criminal Procedure Code, 1898. The Magistrate may grant physical or judicial remand for not more then 5 days in total or 14 days after the expiry of the first 24 hours of police detention but the common notion about physical remand is that it is a license to physically torture the accused for the purpose of collecting the evidence in a crime under section 173 of Cr.P.C. the investigator is bound to submit a Report to the Magistrate through Public Prosecutor within 14 days from the date of recording of the first information report but in most of the cases this mandatory provision is not complied with by the police and the evidence presumed to be collected by the I.O. is of the nature which does not connect the accused with the commission of the crime and usually results in acquittal of accused by the Courts. It has been settled by the august Supreme Court and High Court in a chain of Authorities/Precedents that a criminal case cannot be decided on Oath. Procedure of swearing on Holy Qur'an (Oath Proceedings) is not applicable in criminal cases but most of the investigation is based on "Nian" (Oath Proceedings) or affidavits sworn in by the inhabitants which is a sheer illegality but this mode of conducting investigation is prevalent and is followed by the police. Next step in Investigation is collecting the Medical Evidence. It is said that a body itself is a death scene. The first known application of medical expertise to determine the cause and manner of death was in 44 B.C., when Roman physician Antistius announced which of 23 stab wounds inflicted on Juluis Ceaser had actually killed him. He declared this to the governing body, and in corpse, Jessica Snyder Sochs points out that this is the origin of the word "Forensic". Forensic Science helps in solving the most difficult and complicated criminal cases, with the help of Forensic Science the time of death can be found out and it can help to connect the accused with the commission of crime and eliminates alibis by the accused. Such an investigation might arrive at a post mortem interval (PMI) estimation although none are wholly reliable but pathologists believe that they provide a reasonable estimate Forensic, Science is a vast field which includes tephonomy, anetomology, anthropology, pathology, polynology, odontology, declytoscopy, toxicology and ballistics etc. The term "tephonomy" has been derived from the Greek words `taphos" means burial, and "nomos" means laws. The science of forensic tephonomy is the discovery, recovery, and analysis of human remains. A corpse undergoes a series of changes, which influences how Professionals may estimate time of death, the individual's identification, and the cause and manner of death. To get positive results from tephonomic reading a team work of Anthropologist, biologist, entomologist, pathologist etc. is required whereas the pattern of local investigation is concerned these terminologies sound alien to investigators. Even in Post Mortem Report, (PMR) the probable time between injuries and death and the probable time between death and post-mortem does not tally with the statement of doctor and sometimes the Doctor who has conducted the Post Mortem (PM) with dishonest intention gave a favour to accused which ultimately results in acquittal of accused,., Delayed Post Mortem in murder cases speaks Volume of dishonest concoction and fabrication by the Police. Firearms Evidence Identification via both the firearms themselves and the projectiles fired which has become the field of forensic ballistics was born in 1835 in England when the unique ridge on a bullet taken from a victim was linked with a bulleted mold in the suspect's home. Confronted with the evidence, the suspect confessed. At first, the ballistics experts were gunsmiths who knew how weapons were made, The first time an expert proved in Court that a specific gun was used for a murder was in America in 1902. Whereas in Pakistan if an accused is shown to be armed with a gun .12 bore in the F.I.R. (First Investigation Report), the Investigating Officer recovers a pistol .30 bore as per recovery memo. and the benefit of this contradiction goes to accused. Likewise if on the spot the crime empties recovered by the Investigation Officer (I.0.) is of .444 bore, the gun recovered from the accused is shown to be that of .12 bore, in most of the cases weapon of offence and recovered crime empties are not sent for matching. These are the naked facts which make the case of Prosecution highly doubtful. Investigation agency fails to collect sufficient incriminating material against the accused and this defective investigation causes disaster. Doctyloscopy, subcategory of laphoscopy, is the study of fingerprints. The smooth, hairless surface of the body inner surfaces of hands and sales of feet are convered with raised ridges known as friction or Papillary ridges. Those from the fingers are known to be unique to each person and can therefore, serve for identification purposes when the sweat glands discharge perspiration to leave an impression. These ridges form in the inner layers of the dermis in the developing fetus and remain the same throughout life. The characteristics that make a fingerprint unique are called minutiae or points of Identification. In 1892, Sir Francis Galton published the First book about finger prints and their forensic utility. The first modern trial in which a finger print was used as evidence was in Argentina. Juan Vucetich, a police officer, devised a finger print classification system and in 1892 opened the first finger print bureau, in Buenos Aires. Within two months, he used what he knew in the Court room. Francisca Rojes claimed that a man named Velosquez had murdered her two children in their beds. A search of the crime scene turned up several bloody fingerprints. But they did not match the accused man. Instead they matched the mother. When confronted, she confessed and was sentenced to life in prison. Fingerprint patterns are divide into four primary groups i.e. (i) ARCH---A ridge that runs across the fingertip and curves up in the middle, with tented arches showing a spiked effect. It has no backward turn, is generally missing a small triangle called the delta, and is the least common pattern. (ii) WHORL---An oval formation, often making a spiral or circular pattern around a central point. If a pattern contains two or more deltas, it will probably be a whorl. (iii) LOOPS---These show a stranger curve than arches, and the ridges exit and enter the print from the same side, folding back on themselves. Radial loops run in the direction of the forearm bone known as the reduis, whereas ulnar loops run in a direction of the forearm bone known as the reduis, whereas ulnar loops run in a direction towards the ulna bone. They constitute 60 and 70 percent of the pattern encountered. (iv) COMPOSITES--Combinations of the other patterns within the same print and accidentals are freak patterns that do not conform to conventional types. As, far as Local Investigation is concerned there is no concept of collecting finger prints from the scene of crime. The investigation in Pakistan is conducted by using both the adversarial and inquisitorial system but results are very disappointing. There are other modes of investigation in Advanced/developed countries like blood spatter investigation, DNA test, Criminal psychology which have no nexus with our pattern of investigation. In 1930s, Scottish pathologist John Graister classified blood splashes into distinct categories based on the energy needed to disperse the blood and on projectile angles which many experts still rely on today. DNA technology now a days is also used in criminal Investigation. DNA is made up of deoxyriboncleatides, each of which contains a sugar, a phosphate, and a base. There are four different kinds of nucleotide basis adenine (A), guanine (G), cytosine (C), and thymine (T). They join to form the rungs of what looks like a ladder. By looking at the parts of the DNA that make a person unique expert can determine whether a particular stand of DNA found in a biological specimen is indistinguishable to and over whelming statistical probability from the DNA of a particular person for crime Investigation, DNA identification is the most revolutionary discovery. In Pakistan this facility is available but is very costly and in most of the cases Report is awaited. It is need of modern era that investigation should be conducted on the pattern adopted by the advanced countries. An Investigator should be well conversant with the modus operandi and he must be innovative, experienced, and resilient. Every investigator should have the spirit that he doesn't seek recognition or rewards rather he wants justice for the victim otherwise an accused who supposed to be a favourite child of law will never be punished by the Courts. Likewise special training programmes should be arranged for Police Officer. A police officer as a public functionary is expected to act fairly, honestly and without bias to either party and the investigation should be conducted in such a manner that it is free from all sort of political and foreign elements or without nepotism and favortism.