While noting that in most of the medico-legal cases, the
sentence in most of the medico-legal cases, the outcome of the criminal case
depends upon the findings in the autopsy certificate and also the doctor's
evidence, the Madras High Court in a latest, landmark and laudable judgment
titled RM Arun Swaminathan Vs The Principal Secretary to the Government and 3
others in W.P.(MD) No. 78 of 2019 delivered on September 28, 2020 has clearly,
cogently and convincingly held that if the autopsy reports are prepared in a
shabby and unscientific manner and without actual performance of autopsies by
doctors, it will lead to collapse of criminal justice delivery system in the
country.
The two Judge Bench of Madras High Court comprising of Justice N Kirubakaran and Justice SS Sundar explicitly, elegantly and effectively said in
para 38 that:
The Doctors are the most respected citizens of this country and
they are doing yeoman service and also aid in the justice delivery system in
medico-legal cases. Therefore, corrective measures have to be taken as
otherwise, criminals would escape from the clutches of law because of the
negligence and deliberate failure on the part of the Doctors who are doing
post-mortems. Very rightly so!
While outlining the prayer made by the
petitioner, it is first and foremost pointed out that:
Petition under Article
226 of the Constitution of India praying for issue of a Writ of Mandamus
directing the respondents to:
- strictly follow the Tamil Nadu Medical Code while conducting autopsies
- to implement videography of all autopsies across the State in order to avoid issues and re-postmortems and the same videography shall be sent to the jurisdictional Magistrates
- the postmortem certificates shall be sent to the Jurisdictional Magistrates on the same day of the post-mortem as stipulated in Article 621 of the Tamil Nadu Medical Code
- to appoint the Scientific Officers in the Medical Colleges to enable to conduct fair and proper autopsies and
- to adhere the directions given by the Hon'ble High Court in Criminal O.P. No. 12582 of 2007 dated 16.02.2008 in letter and spirit.
To start with, this notable judgment authored by Justice N Kirubakaran for himself and Justice SS Sundar after observing in para 1 that:
This Public Interest Litigation has been filed by a practicing Advocate before this Court seeking issue of directions with regard to conducting of autopsies then sets the ball rolling in para 2 wherein it is put forth that, The petitioner states that there is a huge shortfall of qualified Forensic Medical Experts.
They are available only in Medical Colleges and not available in any of the Government Hospitals resulting in conducting of post-mortems without following the procedure as contemplated in Tamil Nadu Medical Code. The Medical College Hospitals are coming under the purview of Director of Medical Education and other Government Hospitals are coming under the Director of Medical Services.
According to the petitioner, about a lakh of post-mortems are being done every year in the Government Hospitals. Due to shortfall of qualified staff, various shortfalls/lacunas are found in the procedure followed in conducting post-mortems. There is no transparency apart from lack of infrastructure for performing post-mortems. Dissection kits are not used for conducting autopsies and according to the petitioner, hammer and other tools are used.
Quite remarkably, the Bench then very rightly points out in para 38 that:
One more shocking revelation made in the report is that even though more Doctors are said to be attending duty, the reports give the details as to how only one Doctor conducts more than 10 autopsies in a single day which is impossible. The following tabular column given in the report would fortify the allegations made by the petitioner that the Doctors are not conducting autopsies themselves scientifically as it is impossible for a single Doctor to do autopsies ranging from 10 to 17 per day. Even in paragraph No. 8(a) of the counter affidavit, it is stated that duration of a post-mortem varies from 1 to 3 hours depending upon each case. However, very shockingly, one Doctor alone has done more than 10 autopsies in a single day. This fact would show that the Doctors are not doing it, which proves the allegation of the petitioner.
Sl No. | Date | No of Medical Officers as per attendance register (In the Dept. of F.M.) | Name of the Doctor who conducted the Autopsies | No. of postmortems conducted on the same day by the sole Doctor |
1 | 19.01.2018 | 11 Doctors | Dr. Sadasivam | 11 |
2 | 27.02.2018 | 9 Doctors | Dr. Manigandan | 10 |
3 | 27.04.2018 | 7 Doctors | Dr. Manigandan | 12 |
4 | 02.05.2018 | 10 Doctors | Dr. Juliyana Jayanthi | 10 |
5 | 28.06.2018 | 7 Doctors | Dr. Saravanan | 11 |
6 | 13.07.2018 | 8 Doctors | Dr. Devi Bhiansha | 12 |
7 | 09.10.2018 | 7 Doctors | Dr. Juliyana Jayanthi | 17 |
8 | 07.11.2018 | 7 Doctors | Dr. Juliyana Jayanthi | 16 |
The aforesaid tabular column would prove the contention of the
petitioner that almost, all the findings given in one post-mortem is being given
in another case even without any post-mortem, which goes against the very
purpose of post-mortem and it is as good as not doing post-mortem at all. In
most of the medico-legal cases, the outcome of the criminal case depends upon
the findings in autopsy certificate and also the Doctor's evidence.
If in this
shabby and unscientific manner and without actual performance of autopsies by
Doctors, the autopsy reports are prepared, it will lead to collapse of criminal
justice delivery system in this country. The Doctors are most respected citizens
of this country and they are doing yeoman service and also aid in justice
delivery system in medico-legal cases.
Therefore, corrective measures have to be
taken as otherwise, criminals would escape from the clutches of law because of
the negligence and deliberate failure on the part of the Doctors who are doing
post-mortems. There can be no denying it!
More significantly, the Bench then observes in para 49
that, As already stated, this Court, in Crl.O.P. No. 12582 of 2007 in Muniammal
V. The Superintendent of Police and others, by order dated 16.02.2008, gave a
slew of directions to be followed while conducting autopsy. Paragraph 32 of the
order contains the directions of the Court and they are usefully extracted
hereunder:
32. Medical Evidence is a scientific factor, which plays crucial role for
determining many of the crimes perpetrated against the human body. Further the
know-how in Forensic Medicine on the part of Medical Officers is of utmost
significance for Justice Delivery System. At this juncture, this Court, after
going through the materials available in this case and in the backdrop of the
authorities on the subject, deems it appropriate and feels compelled to place
some suggestions for consideration and implementation by the authorities
concerned, in the following manner:
- Directorate of Medical Sciences and Directorate of Medical Education
with the concurrence of the State Government may contemplate imparting
periodical training to the Medical Officers, who are in Government service,
on Forensic Medicine, to make their efficiency updated in the field.
A standardized format of noting down the injuries and their signs can be evolved so that a uniform procedure for issuing medical certificate be followed state wide. The said authorities may constitute a team of experts to prepare the format, so as to make the job of doctors, who perform medico-legal functions, easier. - Every doctor posted in any Government hospital may undergo a week's training in Forensic Science Department in the nearby Government Medical College periodically and the State Government may evolve a scheme in this regard.
- The Government may provide sufficient infrastructural facilities to the
mortuaries and places where autopsies are conducted.
- Directorate of Medical Sciences and Directorate of Medical Education
with the concurrence of the State Government may contemplate imparting
periodical training to the Medical Officers, who are in Government service,
on Forensic Medicine, to make their efficiency updated in the field.
- In certain cases, the internal organs extracted from the corpse by the Doctor at the time of necropsy have not been properly preserved, resulting in the de-composition or dis-integration of the tissues by autolysis. When they are subjected to histopathological examination, desired result could not be secured leading to the loss of valuable evidence, which plays a crucial role in determination of the case by the Courts.
- The knowledge of the Medical and Para-medical staff should be updated by
imparting periodical training to them. Adequate exposure to the preservation
techniques is the need of the hour in order to secure accurate results.
Hence, exhaustive examination of viscera can be obtained, only if the
Medical and Para-medical personnel are possessing updated knowledge in
preservation technique. The Government through Department of Health have
been issuing circulars containing the procedures to be observed and followed
by Medical and Para-medical Staff then and there. In some cases, errors
occur on account of mis-application
or improper handling of the procedures concerned, resulting in confusion in
procedures, which screen the crimes from getting exposed to the eyes of
Judiciary. So, it is desirable to issue the circulars whenever necessity arises,
that is to say, if settled or codified procedures were violated or ignored,
followed improperly and misapplied even for a single occasion.
- Medical Officers, who prepare the medical certificates, shall ensure
that the findings written by them are legible. Inadequate, illegible and
incomplete particulars in medical certificates are stumbling blocks in the
administration of Criminal Justice System. The dimensions of the injuries
and their colour age
in certain cases and other features shall find place in the medical
certificates. The format, presently maintained for the post-mortem certificate,
may be modified so as to enable the doctor, who conducts autopsy, to furnish all
his findings in detail, with reference to each organ and region as per procedure
generally adopted.
- Expertise of Forensic Medicine Experts may be availed to train the
Medical Officers as to the special features on the subject, to guard against
the loss of valuable evidence.
- It is high time, the Governments, the Medical Council of India and the Medical Universities, which control the quality of medical education in this country, took serious view of this aspect and brought about appropriate measures.
- Every student of medicine should get familiarised with the intricacies of Forensic Medicine apart from academic knowledge, right from his/her undergraduate level i.e., from the educational institution itself after passing through the curriculum prescribed for him/her.
- To facilitate a better understanding of nuances of Forensic Medicine, the teaching of the subject may be taken up in the later part of the clinical years. In case of their having this subject in the early years of their study, they know the importance of the principles applicable to the given circumstances. The students may read this subject for the purpose of getting through the examination, but the real involvement therein could not be expected.
- During the internship, all the House Surgeons (Compulsory Rotating
Resident Internees) may be compulsorily posted in the Department of Forensic
Medicine for a reasonable period, for a better comprehension of the subject.
This suggestion is made, viewing that the medical students would
sufficiently be equipped at the later part of their studies and the niceties
of the features in the subject would be appropriately appreciated by them.
- It is the bounden duty of the Government to produce Medical Experts in
the educational institutions with a strong academic background, who would be
fit for becoming members in the Health Delivery System and also for
rendering yeoman services, to assist the Justice Delivery System, for which
their exposure in the field of Forensic Medicine is indispensable.
- The authorities concerned may initiate efforts to increase number of
admissions to Post Graduate Course in Forensic Medicine and to get due
recognition from Medical Council of India, and ensure output of such experts
cater to the needs to a greater extent.
- The brass of police may issue directions to the Investigating Officers of the crimes, to get final opinion as regards the nature of wounds in injury cases and time and cause of death, in cases where unnatural death has occurred, before taking any decision either to proceed with the case or to drop further action. Instructions may also be issued, not to make any slipshod or improper investigation in the cases handled by the police, on the strength of wound certificates or post-mortem certificates, which lack material particulars. Necessary training may also be given to the police personnel, with regard to the appreciation of medical records, at the time of investigation in medico-legal cases.
Having said this, the Bench then
laments in para 50 that, Though the said directions were given as early as in
the year 2008, even after passing of one decade, all the directions have not
been complied with even as per the counter affidavit filed by the
respondents stating paucity of funds, which is found in paragraph No. 10 of
the counter affidavit. Paucity of funds cannot be an excuse for
non-implementation of the order passed by this Court about 12 years ago.
Therefore, appropriate steps have to be taken by the authorities to
implement the directions which are given in the interest of public and
compliance should be reported to this Court.
As a corollary, it is then very aptly and
appropriately summed up in para 51 that, In view of the above, the following
directions are given while disposing of the writ petition:
- There shall be a direction that the Doctors shall follow Article 621 of
Tamil Nadu Medical Code by sending the post-mortem certificate as soon as it is
over to the Judicial Magistrate and send a copy to the Head of the Department on
the same day failing which departmental proceeding shall be initiated against
them.
- The Health Secretary shall issue a circular directing the Doctors to
follow Article 621 of Tamil Nadu Medical Code in letter and spirit.
- The post-mortem certificates should be issued based on the NHRC model
and following the regulations governing the same.
- The Government Servants shall mark their attendance only through
biometric system while entering as well as at the time of leaving the office
including hospitals.
- Based on the biometric attendance only, depending upon the number of
days attended, the salary should be proportionately paid after deducting the
days for which the employees had not attended subject to their leave
entitlement.
- There shall be a direction to the respondents to videograph post-mortems
whenever a request is made by the relatives or friends of the deceased.
- There shall be a notice in the hospitals especially in the mortuaries
dissection halls informing that there will be videographing of post-mortem in
case of request apart from advertising in the newspaper that at the request of
relatives, videographing of post-mortem could be done.
- All important points in the mortuaries as well as in the dissection
halls, CCTV cameras shall be placed and shall be operational at all times.
- The Government shall ensure that all the hospitals where the post mortem
are done are provided with sufficient set of equipments, tools and other
consumables within a period of six months.
- The Health Secretary has to nominate a higher official to conduct an
enquiry with regard to the negligence in treating the patient Murugan in Karaikudi,
Sivaganga, especially in Madurai on 09.04.2019, who died out of burn injuries.
- The web based system namely, MedLeaPR developed by NIC, Haryana shall be
followed by all the Doctors of the Hospitals in the State of Tamil Nadu, in
Government Health Institutions, Private Nursing Homes and Hospitals and this
direction shall be with effect from 1st January, 2021.
- The Government should appoint Scientific Officers in all the Government
Medical College Hospitals and in every District headquarters. The
qualification, duties and responsibilities for the post of Scientific
Officers shall be defined by the Government with the assistance of a
Committee of Experts constituted by the Government consisting of experts in
Forensic Science, Criminology and medical examination and in other fields as
may be suggested by the Forensic Department.
The State Government is directed to constitute a Committee of Experts within six months and the appointment of required number of Scientific Officers should be made within one year after the qualifications and duties and responsibilities of the Scientific Officers should be made within one year after the qualifications and duties and responsibilities of the Scientific Officer are defined by the Committee of Experts.
- Mr. K Loganathan, Scientific Officer, Stanley Medical College and
Hospital, Chennai and Mr. J. Ramesh, Scientific Officer, Madurai Medical
College, Madurai, who assisted the Court by giving the true facts shall not be
victimized by the respondents or Government authorities.
- Directions given by this Court in Crl.O.P. No. 12582 of 2007 in Muniammal V. The Superintendent of Police and Others by order dated 16.02.2008 shall be complied with on or before 28.02.2021
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.