LL.M.

Program on

Criminal Law and Justice

First Year (2020-2022)

USE OF FORENSIC SCIENCE IN NEPAL

For the Fulfillment of Requirement of

Forensic Jurisprudence

Term Paper

Submitted to:

Purbanchal University

Through

Kathmandu School of Law

Dadhikot - 9, Bhaktapur

Submitted by:

Shruti Kharel

1
 Table of Content

CHAPTER 1.................................................................................................................................1
1.1 General Background...........................................................................................................1
1.2 Research Problem...............................................................................................................2
1.3 Objective.............................................................................................................................2
1.4 Limitation............................................................................................................................2
1.5 Methodology.......................................................................................................................2
CHAPTER 2.................................................................................................................................3
2.1 How forensic science can help in criminal cases by solving the case of forgery?.............3
2.2 Use of expert opinion on Handwriting and Signature in the case of Charles
GurumukhSobraj v Nepal Government, N.K.P 2067, and D.N. 8378......................................6
CHAPTER 3...............................................................................................................................10
3.1 Findings:...........................................................................................................................10
3.2 Conclusion........................................................................................................................10

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 CHAPTER 1

1.1 General Background:

The more forensic evidence is applied by the court in its judgments, the more
scientifict competent and sound becomes a criminal justice system. In order to find
out how scientific and how competent is a particular judiciary, the first thing to
examine is how committed the court feels in applying the forensic evidences. 1
According to Jivan Prasad Rijal, government is unsuccessful in about 80% of the total
criminal cases in the court, one of the reason being the failure to properly utilize the
forensic evidence.2

A person accuse of the crime can be tortured to confess and the witness may be persuaded but
the forensic evidences (scientific evidences) speak the same all the time at all the places. In
today’s scenario forensic science importance is considered paramount in determining the
innocence or guilt of an accused.

The sensibility, psychology of the judges, lawyers, police officers highly depends on the
awareness of the forensic evidences and principles in order to disseminate the correct
judgment in the court of law.

The constitutionally guaranteed right i.e. the right to remain silent 3does impede the rendering
of fair and impartial justice. In this dilemmatic situation, forensic evidence acts as the last
resort to conclude on the fact in issue. Forensic evidence can be the strong evidence for
police investigators and prosecutors to unveil the reality and establish the guilt beyond
reasonable doubt.4

Forensic science is science used in the resolution of legal disputes. Also any branch of
science used in the resolution of the legal disputes is forensic science. 5The failure or success
rate of any prosecutor is directly depended on how strong and credible evidence do they have
in their custody to establish the guilt of the dependent. 6 Forensic science when corroborated
with other circumstantial evidences is the best and highly credible evidence discovered till
the day.

In many of the cases when the prosecutor fails to properly utilize the scientific analysis or is
unaware of the forensic examinations, when the police investigators lacks the tactful method
to collect and maintain the chain of custody 7 of the physical evidence, this culminates in

1
ChudaBahadurShrestha, Criminal investigation, prosecution, justice administration and forensic science,
PrakashWasti; kanoon, issue 28, p.37
2
J.P. Rijal, Trends of forensic serological examination in Nepal, National Forensic science Laboratory Nepal,
3rd National Conference on Science and Technology proceedings, Volume I march 8-11, 1999, Ronast,
Kathmandu Nepal.
3
Constitution of Nepal, Article 20
4
Ibid n(2).
5
[Link], ‘ Crime science to court, the essentials of forensicscience’ second edition, 2004, page no 1.
6
B.R Sharma, Forensic Science in Criminsl Investigation And Trials, Fourth Edition, Universal Law Publishing
Co. Pvt. Ltd, Delhi, 2005, p.6
7
Bam BahadurBasnet v Nepal Government N.K.P 2070, D.N. 8709.
minimum success rate of conviction and the criminals would roam free without any sense of
guilt.

1.2 Research Problem:

What is the relevance of forensic evidence in homicide case in Nepal?

1.3 Objective:

This issue has been dealt in by the researcher to explore the application of forensic evidence
by the Court to determine the fact in issue.

1.4 Limitation:

This research paper based on only one case i.e. the highlighted case of a serial killer Charles
Sobraj, i.e. Charles Sobraj v Nepal Government, N.K.P 2067, D.N. 8378.

1.5 Methodology:

This researcher has applied the doctrinal research method based on case laws, i.e. primary
source of authority and secondary source of data, i.e. books and literatures.

2
 CHAPTER 2

2.1 How forensic science can help in criminal cases by solving the case of forgery?

Forensic science is the science used for the purpose of law. Consequently, any branch of
science used in the resolution of legal dispute is forensic science. 8 The primary purpose of
Criminal Justice System is also to protect the innocent from wrongful conviction, punish the
culprit and provide justice to the victim. For this the legal decision must be within the
boundaries of scientifically sound knowledge and should reflect scientific state of art9.

It is for this reason forensic science is essential and there is urgent and wide spread need for
the application of forensic science in the criminal justice delivery system. Forensic science is
one of the modern methods used in identifying crimes and criminals. 10 Basically Forensic
science is required and is applied for the clarification of three issues and they are:

 Has a crime been committed?

 If so, who is responsible?
 If the responsible person has been traced is there enough evidence to charge the
person and support a prosecutor?11

What the Forensic expert does is they examine material collected or submitted in order to
provide information previously unknown or to corroborate information already available. 12
They provide the results of any examination in a report that will enable the investigator to
identify an offender or corroborate other evidence in order to facilitate the preparation of a
case for presentation to a court.13 They present written or verbal evidence to a court to enable
it to reach an appropriate decision as to guilt or innocence 14 and may have to testify as an
expert witness in the court.15

In everyday human life documents play an important role. The criminals have not been slow
to realize the importance of documents. 16 S/he has been exploiting the possibilities of their
falsification every year the forged document is showing the tremendous increase. 17 The art or
8
P.C White, Crime Scene to Court, The Essentials of Forensic Science, , Second Edition, The Royal Society of
Chemistry, Uk, p.1
9
Deepak Ratan, HasanZaidi, Forensic Science in India and The World, Alia Law Agency, Allahabad,2008, p.3
10
B.R Sharma, Forensic Science in Criminsl Investigation And Trials, Fourth Edition, Universal Law
Publishing Co. Pvt. Ltd, Delhi, 2005, p.6
11
White (n 1), p.7
12
Alfred Allan Lewis &Herbert Leon MacDonnell, ‘The Evidence Never lies: The Casebook of Modern
Sherlock Holmes’,Holt Rinehart & Winston, 1st edition, October 1, 1984, p.16.
13
Joseph Peterson, Ira Sommers, Deborah Baskin &Donald Johnson, ‘The Role and Impact of Forensic Evidence
in the CriminalJusticeProcess’,September2010,p.11,Available at
[Link] accessed on 17th July, 2020.
14
White (n 4), pp. 9-10.
15
H.J. Walls, Forensic Science, Second Edition, Universal Law Publishing Co. Pvt. Ltd, Delhi, 1974, p.1.
16
All Answers ltd, 'The crime scene is most important area of forensic science' ([Link], July 2020),
available at [Link]
[Link]?vref=1, accessed 17th October 2020.
17
Ibid n(16).

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craft of forgery is not difficult. A little patience, good penmanship, sufficient practice,
intelligence and courage to face the consequences are the only requirements. 18

The scientific detection of forgery is possible in a fairly large number of cases. The
questioned document problems vary in nature. The important ones are:19

1. Identification of handwriting
2. Evaluating the transcript
3. Examination of writing material
4. Evaluation of altered document
5. Matching of seals and stamps
6. Handwriting

The matching of handwriting is the most important branch of questioned document. The
following types of identification are required:20

1. Are the signatures genuine or forge?

2. Are the signatures in the hand of suspect?
3. Are the signatures in the hand of the victim?
4. Are the signature disguised?
5. Are the signatures transplanted?

The necessity of document examination may arise in among the following circumstances: 21

 The genuineness of a signature may be disputed. In fiction this occurs most frequently
in connection with wills, arises mostly in connection in one or two other ways. Either
in connection to stolen and forged or allegedly forged cards, drafts etc.
 A genuine document may have or appear to have been altered in some ways to
defraud or to make it appear that some necessary condition has been complied with.
 Another type of forged document comprises false paper money and stamps for large
amounts
 It may be important to show that the two pieces of the document were originally one
or that a sheet of paper came from a certain notebook.
 It may be important to link a certain person with a certain piece of writing by other
meas than handwriting comparison.

Handwriting22 examinations most commonly have to be made to decide if possible whether:

a. A particular signature is forged, or

b. Two passages were or were not written by the same person.

18
Available at [Link] accessed on 4th
November, 2020.
19
Ibid.
20
Ibid n(18).
21
Ibid n(18).
22
H.J. Walls, Forensic Science: An introduction to scientific crimedetection, second edition 1974 ,p. 213.

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While answering the first question, a real signature may be forged either by copying or
tracing. Copying requires skills or patience or both. With a degree of the former which is
fortunately rare. The forgery may indeed be undetectable. 23 More commonly the copier
possibly after the several dummy runs tries in effect to copy his genuine model by drawing it,
this inevitably produces a hesitant and irregular line with frequent pen lifts which is quite
different from the free flowing line of a genuine signature.24

A traced forgery may be done either directly by superimposition of the sheets against a line or
via an intermediate tracing paper or carbon paper stage. 25In either case forgery will again
betray hesitancy and irregularity of line due to the laborious operation in tracing. The general
examination and comparison of the handwriting is much larger and more complex subject.
The factors which determine the appearance of a piece of handwriting are: 26

a. The style which the writer was taught as a child

b. The personal idiosyncratic characteristics of the writer.
c. The extraneous factors operative at the time of writing.
 The fortuitous one where the writer was hurried or unhurried, fresh or tired,
comfortable or uncomfortable
 Whether or not the writer was trying to disguise his handwriting.

Now answering the second question, it is the business of the handwriting examiner to isolate
and distinguish the effects of these three sets of causes. 27 The task involves an analytical
appreciation of the recurrent or characteristics features of the piece of the writing under
examination and of the difference between the piece and the handwritings of different
people.28

These factors will then enable him to tell whether or not the two pieces of writing were
certainly probably or possibly as the case may be written by the same person. The examiner
must first collect all the control material he can get, preferably written at various times under
various circumstances and if possible include some written with or on the same materials as
the suspected documents. The characteristics will be noted such as:29

1. Letter slope
2. Upward or downward trend of writing
3. Word letter and line spacing
4. Ratio of heights of small to large or capital letters.
5. The positions relative to their parent letters of the dots of I’s and the bars of t’s
23
Ibid.
24
Alfred Allan Lewis &Herbert Leon MacDonnell, ‘The Evidence Never lies: The Casebook of Modern
Sherlock Holmes’,Holt Rinehart & Winston, 1st edition, October 1, 1984, p.16.
25
Ibid.
26
Joseph Peterson, Ira Sommers, Deborah Baskin &Donald Johnson, ‘The Role and Impact of Forensic Evidence
in the CriminalJusticeProcess’,September2010,p.11,Available at
[Link] accessed on 17th July, 2020.
27
Ibid.
28
Ibid.
29
Sally Stoecker, The Rise in Documnt Forgery Insider Dealing on the rise’, Demokratizatsiya (2000), pp 129-
131.

5
 6. the position or absence and the length if present of the initials and terminal strokes are
smooth flowing or irregular or tremulous
7. pen lifts whether runs together or the writer frequently lifts his/her pen
8. if an ordinary nib has been used
9. Shading difference between upward and downward strokes is slight or pronounced.

2.2 Use of expert opinion on Handwriting and Signature in the case of Charles
GurumukhSobraj v Nepal Government, N.K.P 2067, and D.N. 8378

A. Title:

1. Name of the case: Charles GurumukhSobraj v Nepal Government

2. Year: 2067
3. Decision Number: 8378
4. Victim: Connie Jo Bronzich, Laurent Carriere
5. Accused: Charles GurumukhSobraj

B. Fact of the case:

The police report of Head Constable, GunhariAdhikari, stated that on 2032/9/8, while
patrolling around the Kathmandu to Bhaktapur road, the crowd was noticed on the west of
Manaharariver in Sinamangal road. On reaching the place, the dead body of around 18/20
years old victim was found which was naked and burnt by the petrol. The dorsal part of the
body was burnt, the stab wound on the stomach near the heart could be seen and the case
could be inferred to be the case of homicide. The race of the victim could not be
distinguished but the victim looked like a European national.

C. Case inventory file:

Within the 4 walls, proximate 100 gaj from Manaharariver, around 25 gaj north from Araniko
highway, east from the Sinamangal road, below the same road, a dead body is found.

D. Dead Inquest Report:

Head on the west direction, folded leg, burnt hair, closed eyes, burnt body from head to toe,
closed nostrils because of the blood drippings and foam from the right nostril and the fluid
flow from the left nostril, clenched teeth with tongue in between them, mutilated breasts
nipples, around 3 cm scratch on the right breast, 4 stab wound around the heart, clenched
fists, burnt fingers, burnt genitals, metal ornaments on the left hand, burnt left ear,
unrecognizable metal earrings on the ears, the remains of the cloth tied in the left leg,
contusion in the inner left thigh, revealed nerves in the buttocks due to fire burnt, burnt waist
exposing the muscles and nerves, completely burnt right leg with blisters from toe to thigh.

E. Mode of homicide:

Cause of death as per post mortem report: Cause of death is heart stroke due to excessive
blood loss resulting from the heart injury.

6
F. Charge sheet:

Allen Gauthier (Charles GurumukhSobraj) , Monique Leclerc (Marie Andre Lucie Leclerc)
and Ajay Chaudhary is charged under Clause 13 of Chapter on homicide of MulukiAin for
the homicide of Connie Jo Bronzich and Laurent Armond.

G. Decision of the court:

1. Kathmandu District Court:

The modus operandi of burning the victim after killing them by the accused is in
coherence with the fact in issue. The accused, Charles GurumukhSobraj is guilty of the
crime and the act is punishable under Cause 13(3) of Chapter on homicide of MulukiAin.

2. Patan Appellate Court:

The decision of the Kathmandu District Court is agreeable. The convicted Charles
GurumukhSobraj is guilty of the crime and is punishable under the Clause 13(3) of
Chapter of Homicide of MulukiAin.

3. Supreme Court:

The decision of the Kathmandu District Court is agreeable. The convicted Charles
GurumukhSobraj is guilty of the crime and is punishable under the Clause 13(3) of
Chapter of Homicide of MulukiAin.

H. Basis of judgment:

a. In a criminal case, judge must be careful as not to acquit a criminal and punish the
innocent. The evidences brought against the criminal must be carefully assessed and the
victim of a crime must feel that the court has done justice to them. In a criminal case the
modus operandi, scene of crime, the evidence present in the scene of crime, the eye witness,
the past criminal records of the accused and its coherence with the criminal incidents that
occurred somewhere else, the indirect evidences such as behavior of the accused and his/ her
presence in and around the crime scene must be scrutinized.

b. In this case the accused is seen to have committed the crime at the night when the
disturbances or witness to the crime would not be present and burnt the victim to destroy her
identity and sex. Here the accused has tactfully triedto conceal his identity and destroy the
evidences. Assessing the modus operandi and nature of the crime, it can be inferred that the
accused was mentally aware to give efficacy to his pre organized plans.

c. In criminal law,

 ‘nullumcrimen sine lege’ : no crime without law,

 ‘nullapoena sine lege’ : no penalty without a law
 ‘nullumcrimen sine poena’ : no crime without punishment.

7
is considered the fundamental principle. Similarly international law considers homicide or
killing of another human being as a heinous crime in compared to other crimes. So the state
has made the provision of severe punishment in those cases, when a person becomes the
victim of any criminal act and their right to life is seriously hampered.

[Link] decide on whether Charles GurumukhSobraj and Gautier Alian are the same person or
not, the court looks into the cases filed in India. The copy of the decision of Supreme Court
of India, High Court of Delhi as mentioned below must be taken into consideration.

 The state (Delhi Administration) Versus Charles Sobraj alias Allen, Appeal no
479 of 1981
 Charles Sobraj alias Allen versus The state, Criminal Appeal no. 53 of 1979
 Charles Sobraj’s testimony in the South Delhi, Lajpatnagar Police station

In these cases and the accused testimony in the police station shows that Charles Sobraj and
Gautier Alain are the same person. In his testimony, the accused mentioned that in 1975, he
along with Monique and Ajay Chaudhary, travelled to Kathmandu from Bangkok, as Mr. and
Mrs. Bintanja. In Bangkok, the accused along with Ajay Chaudhary and Monique killed Mr.
H. Bintanja and Miss Cocky Hemmer on 16th December, 1975 and forged the victim’s
passport and pasted their respective photos and travelled to Kathmandu and stayed in Hotel
Soaltee, Oweraya. Therefore, from the abovementioned facts, it can be discerned thatthe
accused and Gautier Alian are the same person.

[Link] expert has given the opinion that the signature on the guest registration card as H.
Bintanjaand the signature on French passport of the accused Charles Sobraj belong to the
same person. Similarly, the experts opinion on the authentication of the signature in the Guest
Registration Card and the French Passport of Charles Sobraj can be taken as evidence as per
Section 23(7) of the Evidence Act, 2031 B.S.

[Link] the victim Connie Joe have any connection to H. Bintanja? The Australian citizen,
Kristy Marion Macmillion expressed the fact“ I met Connie joe in pokhara on 14.12.75
travelling on bus to Kathmandu I saw her again in Kathmandu in the oriental lodge. She
expressed on interest n morphine and heroine and asked us to accompany her to purchase
some morphine but we declined as we did not wish to become involved. I identified her body
on 24.12.75. there was a ring on her hand which I can remember her wearing I was also
shown a bracelet which I identified as belonging to Connie Joe. I also identified an earring
which I have seen Connie Joe wear. She mentioned that she had met a Vietnamese jeweler
and his friend wife who were stayinf at SoalteeOberoi. I know she visited them at the hotel.”
This statement can be taken as an evidence as per Section [Link] of Evidence Act, 2031 B.S.

This shows the accused Charles GurumukhSobraj, was a Vietnam origin French citizen and
his alleged wife Mary had stayed together with him in the Hotel Soaltee. The victim had a
connection with the accused impersonating as H. Bintanja.

g. Criminal psychology instigates a person to time and again repeat the offence if the offender
succeeds. After committing the crime the offender is excited and curious to see the effect

8
their action has had in the place of offence so their criminal psychology prompts them to visit
the place. That is why, the accused frequently travelled India and Nepal to and fro.

H. Did the court apply forensic evidence to identify the offender?

The court applied the forensic evidence in this case to identify the offender. The expert has
given the opinion that the signature on the guest registration card as H. Bintanja and the
signature on French passport of the accused Charles Sobraj belong to the same person.

Similarly the post mortem report showed the cause of death to be heart stroke due to
excessive blood loss resulting from the heart injury. The court inferred the victim incurred
sharp force injury and died due to the excessive blood loss.

9
 CHAPTER 3

3.1 Findings:

In this case the accused made use of his right to remain silent and the prosecutor had the
responsibility to prove beyond reasonable doubt. In this dilemmatic situation forensic
evidence acted as the last resort to conclude on the fact in issue. The accused Charles
GurumukhSobraj, who impersonated as Gautier Alian, and forged the passport of H.
Bintanjia to travel to Kathmandu from Bangkok on 16 th December, 1975 after killing the
actual passport holder. The prosecutor had the burden of proof to prove that Charles
GurumukhSobraj and Gautier Alian was the same person and the handwriting in the passport
of H. Bintanjia belonged to the accused.

The expert had given the opinion that the signature on the guest registration card as H.
Bintanja and the signature on French passport of the accused Charles Sobraj belonged to the
same person. Similarly, the experts opinion on the authentication of the signature in the Guest
Registration Card and the French Passport of Charles Sobraj can be taken as evidence as per
Section 23(7) of the Evidence Act, 2031 B.S. Hence forensic method of comparing the
handwriting was applied in resolving the fact in issue.

In this case the accused may have forged the real signature either by copying or tracing.
Copying requires skills or patience or both. With a degree of the former which is fortunately
rare. The forgery may indeed be undetectable. The accused may have copied after several
dummy runs trying in effect to copy his genuine model by drawing it. The expert could
discern the difference in the handwriting by observing a hesitant and irregular line that is
produced by frequent pen lifts which is quite different from the free flowing line of a genuine
signature and observing the letter slope, upward or downward trend of writing, word letter
and line spacing, ratio of heights of small to large or capital letters.

3.2 Conclusion

In many of the cases when the prosecutor fails to properly utilize the scientific analysis or is
unaware of the forensic examinations, when the police investigators lacks the tactful method
to collect and maintain the chain of custody of the physical evidence, this culminates in
minimum success rate of conviction and the criminals would roam free without any sense of
guilt. But in this case the proper analysis of the evidence by the expert using forensic
procedures helped the court do justice to the victim. Forensic science when corroborated
with other circumstantial evidences is the best and highly credible evidence. In this case the
circumstantial evidences were linked to prove the guilt of the accused using the forensic
science procedures. Therefore, forensic science is science used in the resolution of legal
disputes and is the most important tool in the legal system to bolster the administration of
justice.

10
BIBLIOGRAPHY

White C.P ‘Crime science to court, the essentials of forensicscience’ second edition, 2004

J.H, Forensic Science: An introduction to scientific crimedetection, second edition 1974

ShresthaBahadurChuda, Criminal investigation, prosecution, justice administration and

forensic science, PrakashWasti; kanoon, issue 28.

Rijal, J.P. Trends of forensic serological examination in Nepal, National Forensic science
Laboratory Nepal, 3rd National Conference on Science and Technology proceedings, Volume
I march 8-11, 1999

Sharma B.R., Forensic Science in Criminal Investigation And Trials, Fourth Edition,
Universal Law Publishing Co. Pvt. Ltd, Delhi, 2005

Ratan Deepak, HasanZaidi, Forensic Science in India and The World, Alia Law Agency,
Allahabad,2008.

Sharma B.R., Forensic Science in Criminsl Investigation And Trials, Fourth Edition,
Universal Law Publishing Co. Pvt. Ltd, Delhi, 2005.

Alfred Allan Lewis &Herbert Leon MacDonnell, ‘The Evidence Never lies: The Casebook of
Modern Sherlock Holmes’,Holt Rinehart & Winston, 1st edition, October 1, 1984.

Joseph Peterson, Ira Sommers, Deborah Baskin &Donald Johnson, ‘The Role and Impact of
Forensic Evidence in the CriminalJusticeProcess’, September2010

Walls H.J., Forensic Science, Second Edition, Universal Law Publishing Co. Pvt. Ltd, Delhi,
1974.

11