VISITING EXPERTSʼPAPERSCRIME INVESTIGATION IN DEVELOPING COUNTRIES:COORDINATION AND COLLABORATION OF INVESTIGATORS ANDPROSECUTORS
Yubaraj Sangroula, PhD.

I. GENERAL INTRODUCTION
The safety of a society,by way of getting all necessary arrangements for unfailing protection andpreservation of individualʼ
s liberty and rights relating to his/her person and property,is the fundamental goal of criminal justice,and for this reason it has been regarded as an indispensable system ofpeaceand order. In achieving this goal,the criminal justice system uses multi-pronged processes―investigation prosecution, and adjudication which exist as independent jurisdictions but function as one ʻ
integrated system.ʼThe final outcome appears in one of the two forms―i.e.either the suspect is declaredʻ
guiltyʼor he/she is ʻ
innocentʼ. The criminal justice system by application of this process,reaching thestate of conviction and making the offender subjected to a system of punishment, functions as aneffective instrument ofʻdeterring potential offendersʼ,thus guaranteeing an effective system ofpreventing transgression in person or property of one individual by other individual.1
Looking from this pragmatic point ofview,2 the criminal justice system in a society,which generally
holds the faith on democratic function of the State and affirms a deeply rooted trust in principle of theinalienability of fundamental rights of individuals,resolutely and meticulously follows some principles
as ʻ
indispensable or inevitableʼcomponents for building a worthy criminal justice system.3 These
principles are (a)the corpus delicti4 is the primary fact and evidence for driving the process of justice
to a dependable conclusion, and the corpus delicti is identified by way of resorting to the process ofscientific examination or inquest of the crime scene;(b) the relation between corpus delecti and theoffender is established by the scientific examination or scrutiny of the objects,exhibits or traces foundin the crime scene;(c)the analysis of evidence is carried out for generating reasoning for appropriate
indictment leading to the prosecution;and (d) the relation between the corpus delecti and the law isestablished, thus the authenticity, reasonability and validity of reason is confirmed.
The criminal justice system follows a ʻ
systematically designed course of action in its operationʼ,andthis course of action is guided by certain other inevitable principles. These principles5 are (a) the
fairness in all aspects of procedure;(b)the impartiality in attitude of applying procedures;and (c)theuse of judicial mind while adopting decisions or interpreting findings. Failure to consider theseprinciples will necessarily result in violation of the fair trial. The principles of fairness and impartialitys in criminal proceedings are taken as two important attributes of the criminal justice system of a
Professor in charge at Kathmandu School of Law and former Attorney General of Nepal. Email,sangroula195＠gmail.
com.
1Robert Weisberg, “A Cannon of the Criminal Law, Stanford Public Law and Legal Theory Working Paper Series,
Stanford Law School, California, 2000, No.10, p.4. Electronically available at http://papers.ssrn.com/papers.taf?
abstract id＝231952>.
2The criminal justice system is considered more effective and functional if it is able to achieve its goal of bringing theoffenders into the notice ofjustice,and make no mistake bypunishing an innocent person. The punishment to the offenderis considered essential viewing the peace and tranquility in the society. Hence, no society can see the criminal justicesystem merely as a ʻinstitution of state to exercise power to discipline the peopleʼ
. For more philosophical deliberation
See;Ibid.
3For critical observation in this regard See;Andrew Haplin,Definition of in the Criminal Law,Hart Publishing,Oxford
and Portland Oregon, 2004, pp.52-54.
4The phrase corpus delicti means the physical object upon which the crime was committed, such as dead body, or thecharred remains of a house. The corpus delicti can also be used to describe the evidence that proves that a crime has beencommitted. See;Westʼs Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc.

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democratic society. These two components represent ʻ
the concept of rule of lawʼin the context ofcriminal justice. The fairness and impartiality, in turn, require due attention for application oroperation of the several other principles relating the procedure, which not only make the criminal
justice system in that societyproperlyfunctional but also make its result dulycredible and trustworthy.
These principles are (a) that the burden of proof lies on the prosecutors so that the charge must be
proved beyond reasonable doubt;6 (b) that the right of a suspect to acquire adequate and competent
legal defense by professional representation is fully guaranteed,7 which includes the right to aninterpreter8 in the case if he/she does not understand the language in which the charge has been put
forth;(c)no suspect can be pressed to confess that he/she has committed crime and thus use of coercion
or deceptive interrogation for extraction of confession renders the same as inadmissible evidence;9 (d)a suspect must be presumed innocent until the concerned judicial authorityhas declared him/her guilty;and (e)no suspect can be charged twice for the same crime,so that an arrest and detention made undersuch circumstance will make such arrest and detention illegal and improper.
These principles plainly and adequately deny an argument,which is so common in most developing
countries, that ʻ
criminal justice is a Stateʼ
s instrument to justify the coercive actionsʼ. This looming
misconception that the ʻ
criminal justice system is an instrument of State for coercing citizens to abide
by rules of law and orderʼis a central problem of the fairness and impartiality in the criminal
proceeding in developing countries. The misconception gives rise to the following serious problems
destroying the positive impression of the general public to the criminal justice system:a. The police machinery in the developing societies generally takes criminal justice system as aʻpolice powerʼof the State;hence,no rights can be claimed by suspects who have been booked
for suspicion of committing crimes. This assumption of police machinery does give a false
impression to the investigators that ʻa suspect or accusedʼis an enemy to the State. Such a
psychology among investigators not only destroys the prospect of the fairness and impartiality
in the investigation process, but also maligns the prospect of a suspectʼs human rights protection. This unwanted psychology is accountable to engendering a host of problems within thecriminal justice systems of developing countries. M ost problems of torture are associated withthis feigned psychology.
b. The investigator becomes psychologically obsessed to consider that ʻ
the person who is a suspect
or accusedʼis the matter of central importance in investigation. Explicably,the ʻinvestigationof the fact and relevant evidenceʼdoes not make the centerpiece of investigation work. The
total concentration of the investigator, therefore, is likely to be driven to extract confession,
thus indiscreetly disorienting the investigator from culling forensic, toxicological, and serological and other material evidence.
c. In most developing countries,another saddening psychology,which is based on the misconception too, is that the work of crime investigation is related to an inherent power of the police

5There are allegations that the AngloAmerican adversarial system has adopted pro-defendant procedures,and occasion-

ally it is claimed that this system has increased the crime rate (See;Paul G. Cassell, The Guilty & The “
Innocent”: An
Examination Of Alleged Cases of Wrongful Conviction from False Confessions, 22 HARV. J.L. & PUB. POLʼY 523 n.30,
1999. However,a philosophical jusifictaion to this system is that ʻ
the social cost offalse or wrong conviction is far greaterthan the privileges given to the defendant facing the trialʼ. For additional discourse in this regard See;Keith N.Hylton
and Vikramaditya S. Khanna, “Towards Economic Theory of Pro-defendant Criminal Procedure”, Boston University
School of Law, Working Paper Series Index, http://www.bu.edu/lawʼfaculty/papers>.
6See;Emily Sherwin and Kevin M.Clermont,“
A Comparative View Standards of Proof”,University of San Diego Schoolof Law,Public Law and Legal Theory Working Papers 32,Winter 2000-2001. Electronically available at http://papers.
ssrn.com/abstract＝285832>.
7On critical importance of defense legal counsel in criminal trial, See;Margaret Etienne, “Declining Utility to Counsel
in Federal Criminal Court”: An Empirical Study on the Role of Defense Attorney Advocacy under the Sentencing
Guidelines”,Illinois Public Law and Legal Theory Paper Series,Research Paper No.03-10,2003.Online at http://papers.
ssrn.com/abstract＝447600>.
8The right to an interpreter is a human right under the International Covenant on Civil and Political Rights, 1966.
9 Torture of any form has been prohibited by the Convention against Torture as well as constitutions of democratic
countries. As such unacceptability of torture and similar practices have emerged as an important principle of fair trial.

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institution. This psychology brings a notion of thinking in police that police officers must beallowed to carry out investigation independently, i.e., without interference or guidance of any
other institution. This notion of thinking and belief is a greater source of argument on the partof the police investigator that ʻ
the act of arrest, detention and interrogationʼare exclusive
privileges of the police institution. The truth is that a police officer,when he/she is acting as
an investigator, is not working in the capacity of ʻ
the police officerʼ
,as a law enforcer,but asaʻ
researcher and scientistʼ. The power and function as a researcher is ʻ
power and functionʼofthe investigator under the law,so that his position as a patrolling or law enforcing officer has
nothing to do with the power and function he/she is supposed to entertain as an investigating
officer. The power and function of the police officer as an investigatorʻ
is a power and functionʼ
associated with the realm of justice but not with the realm of law enforcement.
d. The responsibility of ʻproving the guiltʼunequivocally lies on the prosecutor,and the prosecutor,thus,has to discharge this responsibility beyond a reasonable doubt. The responsibility is
carried out with the strength of ʻ
evidenceʼthat determine the ʻnature of corpus delicti and ʻtheobjective or factual relation between the corpus delicti and the suspectʼ. Analogically speaking,the investigation of crime, to look from this context, is an empirical research purported togenerate data for the prosecution of the offence. Explicably, an investigation is a part of theprosecution that generates evidence required. Obviously, the need for investigators working
under the guidance of prosecutors is inevitable. The notion of thinking that an act of investigation is ʻ
independent from prosecutors and, rather, is an independent function of police institutionʼis thus a stumbling block in the success of prosecution in many developing countries.10

II. EFFICIENT COLLECTION OF EVIDENCE AND CHALLENGES IN
DEVELOPING COUNTRIESThe brief discourse, above, emphatically highlights the significance of evidence for successfulprosecution which conspicuously underlies its importance for the conviction of offenders and theprotection of the innocent. The importance of evidence in criminal proceedings is thus crucial not only
because ʻ
it helps the criminal justice machinery to achieve conviction of offenders with proper penal
sanction but also because it prevents an innocent from being victimizedʼ
. Each aspect reinforces theother resolutely and,consequently,engenders a wider public credulity to the system of administrationof justice in that given society. Understandably,the efficiency in culling proper and concrete evidence
enables the ʻ
criminal justice system of a given societyʼto fulfill two major objectives as a civilizedsociety. Firstly,it achieves a goal of preserving the safety of the given society by protecting innocentsfrom being victimized. Secondly,it achieves the goal of deterring potential offenders by punishing thewrongdoers. These two goals fairly adequately indicate to the types ofʻevidenceʼthe prosecutors aresupposed to explore. It is also evident from the goal of protecting the innocent that ʻ
no evidence culledby the investigatorʼcan be dubious, doubtful, or unreliable. The goal of convicting the offender also
demands that the evidence the prosecutors have culled must be undubious,undoubtful and fullyreliable.
The efficiency relating to evidence collection is thus philosophically related with the ultimate goal of
the safety of the society the criminal justice system is to achieve.
A. Some Devastating Challenges to the Efficient Collection of Evidence in Developing Countries
The criminal justice systems in developing countries are, however, facing serious challenges inorder to smoothly achieve these goals, mainly due to the ʻlack clarity about the concept of criminal
justice system itselfʼ
. Some misconceptions discussed above do fairly adequately indicate to thesechallenges. More detailed discourse on some of them,to follow hereinafter,will make the understanding more tangible. The main challenge, however, is the looming insensitivity in the concerned
stakeholders of the criminal justice system in developing countries towards the need of transforming
the criminal justice system from a coercive apparatus of the State into ʻ
human rights protection
machineryʼ. The tendency of refuting the principle among the stakeholders of the criminal justicesystem in the developing countries is extensive. Owing to this insensitivity and the looming tendency
of indifference to the modernization of the system among the stakeholders of the criminal justice,the
10 M uch in this regard has been discussed in the article entitled “Comparative Survey of Investigation Systems in China,

India, Japan and Nepal:Some Challenges and Best Practices”.

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following problems are bound to arise, thus hindering the process of efficient collection of evidence:
B. Notional or Theoretical Misunderstanding about ʻPowers and PrivilegesʼConcerning Investigation of Crime
It is a general understanding among the investigators,the prosecutors and the larger section oflegal
intelligentsia in the developing countries that the power ofʻ
crime investigationʼis inherentlyassociatedwith the policing institution of the State, and as such the belief that crime investigation is a crime
control mechanism rather than an instrument of fair and impartial justice is widespread. As a result,
the tendency of using means of coercive and deceptive interrogation, as an inevitable instrument ofcrime investigation, for extracting confession is phenomenally practiced in the developing countries.
The root cause of this tendency lies on the misconception of the police institution that the function ofcrime investigation is a function inherently associated with the police power of the State. The
resistance of the police officers,who generally occupy the authority concerning crime investigation,totake the ʻfunction of crime investigation, as a tool of collecting evidence for fair and impartial
prosecution leading to adjudication of the offenceʼ
,is implausibly stronger. Of course,the function ofcrime investigation does contribute, as an essential component of preventing crimes by locating theoffenders,to the mission of crime control,but the core objective of the function of the crime investigation is to help in enhancing and fostering the course of fair trial by generating adequate and reliable
evidence for the trustworthy and dependable prosecution of alleged offenders. However, the misconception looming large in the police institutions as well as the other stakeholders of the criminal justicesystem that ʻ
the crime investigation is an inherent power and special privilege of the police institutionʼposes a serious hindrance in fostering necessary cooperation between the prosecutors and the investigators, especially for the purpose of collecting adequate, objective and reliable evidence. Owing to thismisconception, the tendency of the crime investigators in developing countries to work in isolationfrom prosecutors is a widespread problem.
Hence, what the tendency and claims generally found among the crime investigators is that theyshould be allowed to act,by all means and mechanisms,to investigate the criminal acts independently
as a prerogative of the police officer or institution. With no doubt, the police investigators, for themeaningful enforcement of criminal justice system in any society,have a key role to play. The crime
investigators are explicably placed in a key position to handle criminals,so that they have powers toarrest suspects, detain them and conduct interrogation. The investigator can use innumerable techniques, methods and equipment to reveal the thread of criminal acts. The responsibility of theinvestigator to cull evidence for conviction of the accused is thus vital and indispensable. But in nosense, it can be established that his/her work will yield good results without coordination andcooperation of the prosecutor.
To realize this responsibility of the prime importance in criminal justice,the crime investigators aresupposed to discharge the duties of (a)ascertaining facts and circumstances that are associated with,and relevant to,the act of crime,the corpus delicti,(b)apprehending suspects and obtaining necessary
information regarding the corpus delicti, (c) collating evidence, oral or documentary, or direct or
circumstantial, that is so necessary or vital for the prosecutors to discharge the onus of proof, (d)exercising the police power of the state in order to conduct search and seizure for the purpose ofcollating evidence,and (e)preserving the witness and evidence to be used by the prosecutors to ensureconviction of the offender, and prevent the innocent from being penalized. It is here necessary toconsciously gauge the nature of work the investigator is supposed to carry out. Undoubtedly, thecertain power exercised by investigators is associated with the ʻ
police power of the Stateʼ, whichenables them to legally encroach upon some freedoms or liberty of alleged suspects or accused whichin other circumstances is not allowed. Nevertheless, the power so used by investigators is neither aʻpower nor authorityʼbelonging to the police institution,nor can it be exercised by an investigator bysimply being a police officer. The power essentially belongs to the ʻ
officer who is designated by law
as the investigator of the crimeʼ.11 The misconception that ʻ
crime investigationʼis a power of police
officer is a ʻ
key problemʼbehind many faults and failures in achieving the goal of collating effective
and meaningful evidence.
This said misconception is a deadly cause for massive failure of prosecution in Nepal and otherdeveloping countries. This misconception emphasizes division of function between ʻ
investigator as a6

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police and prosecutor as an accusing lawyer of the Stateʼ. Hence,the investigation process is detachedfrom prosecutorial supervision and monitoring. As an outcome of the ʻ
misconceptionʼ,the function of
investigation is considered by theʻinvestigatorʼas a technical function of the police officers,so that theengagement or involvement of the prosecutor is considered not only unnecessary but also undesirable―the involvement of the prosecutor,in fact,is considered to be interference in the function ofinvestigation. This misconception is thus a stumbling block in ways of effective investigation and efficientcollection of evidence.
No need to explain that the investigation is a part of prosecution. To be precise, the necessity ofinvestigation may have no place if there is no prosecution is required. A meaningful prosecution isundoubtedly ʻcontingentʼupon the successful accomplishment of the investigation work. Accuracy offindings of the probe of corpus delicti, the examination of the pieces of evidence associated with andthe legality thereof are certain important aspects of investigation. The accuracy of the findings of theprobe of corpus deliciti is,undeniably and without any exception,governed by the ʻscience,technology
and technical skills of the investigator, whereas the legality of evidence is always protected andensured by the unfailing supervising investigator, prosecutors, instructions for obtaining credible
evidence and oversight of the fairness and impartiality of the prosecutor. The functional coordination
between investigator and prosecutor during the entire process of the investigation is thus a vital andrelentless process. Any failure in coordination between these two authorities or agencies is bad for thesociety,as well as the liberty of individuals.12 The assertion here implies that ʻ
the investigator duringhis/her performance is necessarily associated with the prosecutor, and is constantly guided by him/herʼ
.13 This cooperation is,however,broken or not practiced in most of the developing countries,whichconstitutes one of the serious causes of miscarriage of justice.
What are the rationales behind such cooperation between investigators and prosecutors? The
justification is self-evident. The administration of criminal justice brings up an offender to the noticeof appropriate justice,thereby rules out the prospect of random reprisal against people and an innocent
is being penalized. As already discussed before,the administration of criminal justice functions within
the bounds of concrete ʻ
principles and normative standardsʼ
. The suspect or accused is presumed to beinnocent until he/she has been proved committing the offence beyond reasonable doubt. This principle
requires the ʻprosecutorʼto discharge the resolute and absolute onus of proof. Now it is evident why
an investigator is so desperately obliged to work in collaboration with prosecutor while collecting
evidence. In other words, the main reason behind the collaboration is to ensure that the prosecution
is founded on ʻ
undubious, undoubtful and reliableʼevidence. Who is the investigator, a police officer
generally, working for? Definitely not for his/her institution―the police department. He/she isworking for the sake of the prosecutor, who has a legal duty to charge the alleged person. This
11 For instance, the State Cases Act, 1992 (2049)of Nepal specifically requires a police officer to be duly designated as

an investigating officer before he/she takes charge of an investigating officer. His/her authority of investigation is
generated by theʻState Cases Act,which underlies the procedure of criminal proceeding. The authority of the investigating officer is, in no way, a power of police officer entrusted by the Police Act of the country. As the State Cases Act
plainly provides that an act of investigation is to be carried out by a ʻdesignatedʼpolice officer as ʻinvestigatorʼ
,no otherpolice officers or the institution can interfere in the process of conducting enquiry or the process of evidence collection.
Being a police officer is, thus, not ʻ
enoughʼ. The prevailing law in Nepal explicitly requires that the officer is to berecognized as an “investigator”by law itself. The proceeding of investigation is thus valid only if such proceeding iscarried out by the designated investigator. Similar provisions are found provided by the Criminal Procedure Code ofIndia,1973. According to Section 204 (1b),to be read together with Section 87,the magistrate,taking cognizance of theoffence,can issue a warrant for arrest of the suspect. The warrant for arrest is a written order for arrest of the suspect.
Such warrant is signed and issued by the magistrate, and addressed to the concerned police officer. Seemingly, theprovision implies that the power of investigation carried out by the police officer is a ʻpower related to the delivery ofjusticeʼ. It is in no way a police power of the State.
12 See;George L.Kelling,“
Broken Windows and Police Discretion”:A Search Report,National Institute of Justice;USA,
1999, pp. 1-45. Online available at http://www.ojp.usdoj.gov/nij>.
13 Some research in Nepal, such as the Baseline Survey of Criminal Justice System, CeLRRd, 2002, the Comprehensive
Analysis and Reforms of the Criminal Justice System of Nepal, CeLRRd, 1999, National Survey of Criminal Justice
System, 2012 and dozens of research articles contributed by experts have established that the ʻcoordination between
investigator and prosecutor in Nepal is feeble giving rise to massive failure of prosecution. See,for ratio of success andfailure of prosecution,the Annual Reports of the Office of the Attorney General. For the Fiscal Year of 2067 (2011)and
2068 (2012).

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framework of the administration of criminal justice, in the societies that have opted to operate withadversarial systems,demands that ʻ
the investigator has to collate such evidence which are mandatory
to prove the guilt of the offenderʼ. Nothing more or less than that is required from the investigator.
However,there are serious problems in this regard. The following instances from Nepal will illustrate
the viciousness of the problem:
Section 6(2)of the State Cases Act,1993,stipulates the Government Attorney,who is to handle
the case,to provide required instructions to the investigators,upon acquiring the ʻ
preliminary
report on investigationʼ. The preliminary report, in practice, however, contains no objective
information on corpus delicti and other associated facts,scene of crime,and possible relevant
evidence. This report is submitted just for the sake of formality,and hence asks for no kindof instruction from the prosecutor that is supposed to be carried out. The investigatorinstantaneously takes up his/her work without any consultation in advance with prosecutors,
the government attorney. Obviously, the process of collecting evidence starts without priorknowledge of what the prosecutor is looking for.14
Section 7(5)also requires the investigator to seek advice or instruction from the prosecutor inconnection with the scene of the crime, which includes preparation of documents such as thecrime scene report, and concerning documents or exhibits found at the crime scene. This
practice is totally non-existent too. It also shows that the investigation follows or progresses
in total indifference of the prosecutorʼ
s concerns or needs.15
Section 9(1)requires the police to record deposition of the suspect in presence of the prosecutor, but this provision is hardly followed in accordance with its true spirit, which intends toprevent circumstances leading to misuse of the authority by the investigating officer. In mostcases,the prosecutor signs the deposition falsely stating the deposition was recorded in his or
her presence. Some improvements in this regard are seen after a series of sensitization
training activities, yet the situation is still unchanged.
Section 15(1)has a clear prohibition on detention beyond 24 hours after arrest except remand
from the judicial authority taking cognizance of the offence. However, the prosecutor ishardly informed of the process of remand. The investigator alone approaches the trial court,
without any information given to the prosecutor for the remand.16
Section 17(1)requires the investigating officer to submit the detailed case file,along with his/her opinion,to the prosecutor once the process of investigation is considered completed by theinvestigating officer. The timeframe left for the prosecutor for the critical appraisals or
understanding of the evidence is limited. Hence, the role of the prosecutor concludes by
preparing a charge-sheet and attaching the documents or evidence submitted by the investigating officer.17
The existing success rate of prosecution, including those cases tried by the Chief District
Officer,an executive body,which has jurisdiction to try cases of gangsterism or vandalism,isaround 70 percent.18 The chance ofacquittal in such cases is verylow. With this rate offailurein the court, we are forced to argue that either the criminal justice system is letting aconsiderably large number of offenders go scot free,or is falling in the trap of miscarriage ofjustice by placing a considerably large number of innocent persons in a state of unfounded
prosecution.

14 CeLRRd, Baseline Survey of the Criminal Justice System of Nepal, (a research report) Kathmandu, 2002.
15 Yubaraj Sangroula, et al., Jurisprudence in relation to DNA Analysis and Scientific Evidence, CeLRRd, 2070 (2014),

Kathmandu, pp. 1-32.
16 CeLRRd, n. 15.
17 CeLRRd, Analysis and Reforms of the Criminal Justice System of Nepal (a research report), Kathmandu, 1999.
18 Attorney General Office of Nepal and CeLRRd, Baseline Survey of the Criminal Justice System of Nepal (a research
report), Kathmandu, 2012.

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What would result by absence of ʻ
cooperation and coordinationʼbetween the crime investigatorsand prosecutors?The brief and candid answer would be ʻ
miscarriageʼof justice,and incessant rise ofrecidivism and the rate of crime. The ultimate victim of this situation is the ʻ
human rights of peopleʼ
.
The situation generates vicious circumstances of human rights violations and deterioration of thesocial safety respectively. The change in the situation is therefore not only desirable but also
mandatory, provided that the criminal justice system has to be able to address its benign goals.
Building or fostering efficiency for the collection of evidence is thus a vital or key concern of reformsof the criminal justice system in the developing countries,and this can be realized only by adopting thefollowing strategic reform initiatives:
The investigator must bring about changes in attitude by truly internalizing a principle thatʻ
his/her role as an investigatorʼis unquestionably related to the societal need of delivering fairand impartial justice,but not the exercise of coercive police power. An investigator of crime
is an agent of the criminal justice system but not a crime control or patrolling police officer.
The crime investigator is an expert of exploring and culling evidence that determines the
corpus delicti, ʻmodus operandi of crime as well as linkage between the modus operandi of thecrime and the alleged offenderʼ
.
The purpose or goal of the investigation is to procure evidence for sustainable prosecution.
The sustainable prosecution is that which is supported by unquestionable, authentic andlegitimate evidence. The responsibility of sustaining the prosecution definitely lies on theprosecutors through evidence collated by the investigators. The prosecutor is thus an expertof knowing the vitality of the evidence and its legality. He/she has thus right and responsibility to instruct the investigator on what kinds of evidence are required to sustain the claims put
forth before the trial.
It is now self-evident that the ʻinvestigator and prosecutorʼmust work as a team rather than
two independent institutions or officials. Their cooperation is necessary from the time theoffence has taken place. The investigator is to collect evidence in accordance with the needof prosecuting the offence and sustaining it in the trial. For instance, if a person is foundallegedly killed by poisoning,the prosecutor inevitably requires contents ofpoison in the bloodof the deceased as proof that the death had occurred by poisoning. The post-mortem report
may have concrete analysis of the cause of death if the autopsy-performer is so requested. The
prosecutor has to instruct the investigator in this regard, and this would be possible if theprosecutor knows about details of the offence. The cooperation between investigator andprosecutor is thus the most fundamental modus-operandi for exploring proofs for sustaining
the charge.
The evidence collected by the investigator needs to be scientifically and logically analyzed by
the prosecutor, and here, again, the cooperation between the investigator and prosecutor is
mandatory. The prosecutor has to draw reasoning for confirming the charge from evidencecollected by the investigator. The involvement of the prosecutor in investigation is thus not
only advisable but inevitable.
It now follows that ʻ
the workable modus operandiʼof the efficient evidence collection can only be
developed by ensuring the ʻcollaborative team work of the prosecutor and investigatorʼ
. The so-called
institutional autonomy and independence between prosecutors and investigators is a serious problem
facing the criminal justice system of the developing countries. The absence of collaboration and joint
efforts in exploration of evidence destroys the prospect of culling dependable proofs for sustainableprosecution. This situation can be illustrated by the following examples:
An investigator may not necessarily be a lawyer or person with legal expertise,and so he/she
may not know the procedural requirements ofcollecting evidence,therebycommitting a severe
mistake concerning legality of the evidence. Hence,prosecutorʼ
s involvement in investigation
is mandatory for ensuring the legitimacy of the evidence. In developing countries,one serious
reason for failure of the prosecution is the inadmissibility of the evidence caused by wrong
procedure applied while collecting evidence. For instance, the collection of blood, semen,

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saliva,and other fluids are collected without fulfilling the scientific procedures,thus rendering
their legitimacy destroyed. This kind of mistake happens because the investigator and his/her
subordinates may not have knowledge about ʻevidentiary value of the work they are doingʼ.
The investigator may have been psychologically and obsessively influenced by the culpability
or innocence of the suspect, and so the entire investigation process may be driven by his/her
subjective belief. The evidence collected in such a situation may not have any relevance withthe corpus delicti.
The difference between ʻ
evidence and proofʼis vital. Evidence is particular, associated witha fact of crime or available at the crime scene, documents or exhibits. It is an object or aproperty of a phenomenon. Proof is an evidentiary value of the evidence. The proof is areasoning on which the argument of prosecutor is to be founded on. The investigator may not
be aware of such reasoning underlying the evidence. The prosecutor is an expert of drawing
reasoning from evidence byʻcomparing the property of evidence with lawʼ. In most developing
countries the prosecutor is insensitive of drawing ʻ
proof for sustaining prosecution fromʼ
evidence.
To establish a linkage between the actus reus and mens rea is a vital function of the evidence,and this responsibility has to be discharged by the prosecutor. The investigator may not be
concerned with the need of linking such relation. The investigator maybe able to explore such
evidence only by suggestion of the prosecutor.
Again,the instances discussed above abundantly shed light on the need of a joint work or collaboration of the prosecutor and investigator. This now leads us to conclude that ʻ
the vital aspect of efficientevidence collectionʼprocess lies on the ʻactive,engaged and cooperative participation of the investigator and the prosecutor in the process of exploring and analyzing the evidencesʼ.19 The absence of suchcooperation thus can be identified as a serious problem affecting the efficiencyin collection ofevidence.
C. Impact of Exaggerated Institutional Autonomy Versus Individual Professional Accountability
In most developing countries, institutional accountability is overridingly emphasized by both theʻinvestigator and the prosecutorʼ
. What it implies is that theʻinvestigatorʼand ʻ
prosecutorsʼemphasize
the pride and prejudice of their respective institutions. This attitude begets an ʻ
invisible but strong
current of institutional competition for supremacy,if not rivalry,between the investigator and prosecutor. Both of them indulge in quests of ʻ
institutional autonomyʼrather than ʻ
professional participationor coordinationʼin performance. An investigator considers him-or herself more a ʻmember of police
forceʼ
, and the ʻprosecutorʼ
, a lawyer. The notion that prosecution is an agency for overseeing theinvestigation is largely sidelined. On the other hand, the investigator feels more accountable to ʻ
hisinstitutional bossʼrather than the prosecutor. The result is an ʻ
invisible tug of warʼbetween two
professionals. This attitudinal problem,which is crucially important in destroying the efficient modus
operandi of the collection of evidence and thus resulting in failure of the prosecution,is largely caused
by a misunderstanding about the ʻ
structure of the criminal justice systemʼ, because most developing
countries have transplanted the ʻadministration of criminal justice from the former colonial mastersʼ
.
In the adversarial model,each agency of the criminal justice system is supposed to function withina framework of ʻ
institutional independence and functional interdependenceʼ. Nevertheless,the notionof institutional independence cannot be considered as a license to function in isolation or disintegrationof other agencies and disregard ofthe fundamental principles ofjustice. The institutional independenceof each agency is understood as a guarantee of ʻ
its administrative autonomyʼ
. This doctrine implies
that the criminal justice system cannot stand as a disintegrated platform of various mutually unaccountable, scattered and disintegrated sub-systems. While each institution functions with its own
designated authorities and responsibilities, the goal of all is to ensure fair and impartial dispensationof justice without jeopardizing the public safety. In developing countries, this doctrine is, however,

19 M ark. A. M oor, “The legitimation of Criminal Justice Policies and Practices”in Perspectives on Crime and Justice:

1996-1997 ;Vol. 1 Research Report 1997, National Institute of Justice USA, pp 49-50.

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largely upset by the attitude of overriding and exaggerated pride and prejudice of criminal justiceactors.
The criminal justice system of an orderly and organized society is expected to function as ʻacomposite and fully integrated systemʼ. Any attempt to exclude or undermine any one of the components is not only unimaginable but also disastrous to the credulity of the entire system. The failure of
any agency in its mission of carrying out the designated responsibility is bound to generate a state of
malfunctioning of the entire system.20 The efficiency and effectiveness of the criminal justice systemis thus necessarily determined by an ʻ
active and coordinated performance of all agenciesʼ. No desired
result of the administration of the criminal justice system can be achieved without an active andsmooth functionality of all agencies.21
A well-devised synchronism of functions of these various agencies is a device to activate thismulti-pronged system towards its designated goal, and also forms a prerequisite for systematic andsmooth functioning of the system. Thus, a functional criminal justice system is conceptually marked
by two essentialities that (a) the functional independence of every agency is undeniable, and (b) an
active and meaningful oversight or monitoring of functions of that agency by others is also undeniable.
Failure to ensure independence of, and coordination between, the agencies of the criminal justicesystem is bound to give rise to a state of abuse of power and hence lead ultimately to the miscarriageof justice. Inefficiency and corruption will result as an outcome of failure to abide by the ʻprinciple ofprofessional coordinationʼ
. Nepalʼs criminal justice system is a unique example of such a situation. In
such a situation, every agency is tantamount to endorsing the use of extra-legal methods in its
performance. The need of kicking ass to keep people in order becomes a ʻgeneral ruleʼof belief. The
brutal policing would then be a phenomenal feature. This situation will intensify the social disorder,
injustice and ultimately appears with characters ofʻthe criminalization of politics and politicization ofcrimesʼ. Disorder, fear, and crime undermine social and economic institutions to such an extent thatfamilies, schools, commerce and other institutions cannot function smoothly.22
Some scholars have rightly argued that the criminal justice system is not a system in its ʻ
structural
frameworkʼ. For them, in a structural system in its true sense, the concerned actors are explicitly
directed towards a particular objective by some coherent centralized authority.23 In the criminal justicesystem,however,none of the agencies or actors have authority to command others in their respective
institutional administration and work. It can thus be argued that the criminal justice system is founded
on a theoretical notion that rejects the existence of a vertical control mechanism. Every agency of thecriminal justice system is associated with others horizontally, and, hence, functions with a scheme ofa horizontal control mechanism. Every agency is independent in its assigned functions, but is guided
by the indispensability of coordination between its respective functions,which provides for a system ofmutual control by each other.
Different agencies are linked together through a process of actions in which one agencyʼ
s “output ”
becomes the next agencyʼ
s “input ”.24 The weapons seized and the reports of fingerprints affixed on
the weapon, for instance, are “outputs ”of the investigatorʼ
s act, which becomes “input ”to theprosecutor,as the charge sheet to be prepared by him/her should essentially be based on such evidence.
The prosecutors cannot prosecute a person with evidence procured by themselves independently. The
charge sheet, on the other hand, is the “output”of prosecutors,which constitutes an “input ”for trial
20 Haribansa Tripathi (Dr.) “
The Adjudication Process in Criminal Justice System”(A Working Paper for National

Workshop on Criminal Justice System of Nepal, 10-12 June 1997);ILRR, Kathmandu, Nepal.
21 Ibid.
22 George L.Kelling,“
Boken Windows and Police Discetion”:A Research Report;National Institute ofJustice:USA,1999,
pp1-45. Online available at http://www.ojp.usdoj.gov.nij>.
23 In countries that follow adversarial system,it is impossible to fashion the criminal justice system on vertical structure.
In this system, each actor is accountable to its own central authority,and works independently. The police department
in Nepal,for instance,is accountable to the Ministry of Home,and the prosecutors to the Attorney General. The systemof courts is virtually independent of the executive control. Each of them is responsible to the other onlybecause no actionof one becomes meaningful without the otherʼs existence.
24 M ark. A. Moor, “The legitimation of Criminal Justice Policies and Practices”in Perspectives on Crime and Justice:
1996-1997 ;Vol. 1 Research Report 1997, National Institute of Justice USA, pp 49-50.

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courts. This functional framework of the system presents a scheme of tightly knit ʻinterdependenceʼ
between agencies and requires an unavoidable interrelationship among different agencies involved.
This scheme is an important benchmark of the successful criminal justice system. The interdependence
constitutes a system in itself,and as such it is entirely guided by the need of objectively operationalizing the various aspects of work within the system;in any case it is not guided by motivation of control
of one agencyʼ
s function by other.25
Of course, the framework for coordination between these institutions is fashioned and functionalized by pre-determined laws and an overall system of governance adopted by the given society. In thiscontext,various practical attributes such as the size and composition of the population,the historicalcontexts, the unique topography, the economic development pattern, the level of education, the functional capacity of agencies, etc. do play crucial roles in shaping the institutional framework andpsychology of the interagency coordination.
Functional coordination of criminal justice agencies

25 Ibid., p. 50.

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These various factors shaping the structure and psychology of the system are defined as dynamics
of the criminal justice system. The overriding and exaggerated institutional or organizational prideand prejudice generates serious obstacles in achieving the goals of the criminal justice system.
The adopted typology of the criminal justice model also is an important factor for shaping therequired framework of the coordination. It is whythe model or framework ofthe coordination adopted
by countries with adversarial systems is different from that of countries adopting the inquisitorial one.
When this framework is disregarded, the criminal justice system falls in a trap of chaos.
D. Coherent Function of the Criminal Justice System and the Professional Responsibilities ofInvestigators and Prosecutors
The fundamental objectives of the criminal justice system as discussed earlier make it clear that theʻcriminal justice systemʼis not a coercive instrument of the State to inflict pains on people. It has
specific goals to ʻ
protect and preserveʼhuman dignity and security. The criminal justice system in thissense is not a ʻ
law and orderʼinstrument of the police department;rather it is an ʻ
instrument of Stateto ensureʼsafety of the society by criminalizing unacceptable behaviors,penalizing the wrongdoers anddeterring the potential offenderʼ. These objectives have been fulfilled by the State byʻ
setting a fair andimpartial system of trialʼ. The principle of ʻfair and impartial trialʼdistributes powers to actors ofcriminal justice and rights to the accused in a wisely defined ʻscheme of operationʼ. The scheme canbe outlined as follows:a. Actors of criminal justice can curtail liberty of suspects as provided by the law. The suspect
can be arrested and detained subject to law. A lawfully carried out arrest and detention cannot
be challenged in court. However,the arrest and detention is to be based on objective evidence,but not on speculation or discretion of the arresting and detaining agencies. These values of
the criminal justice system are found seriously lacking in developing countries mainly due totendencies of violating or disregarding fundamental principles of criminal justice and laws
established by the State. Arrest and detention without warrant, the manipulation of evidence
by fabrication or failing to explore evidence, the excessive indulgence in interrogation to
extract confessions, the practice of torture to press the suspect to confess, and the use ofevidence without analysis are some examples of disregarding the value of fair and impartial
justice.
b. Investigators can indulge in using any legally possible means of obtaining evidence. The Statecan use any amount of financial or human resources to procure evidence,and can use any typeof expertise to sustain its findings. However, the State is expected to exercise this power byrecognizing and protecting the due process or procedural rights of suspects. Unfortunately,thetendency of criminal justice actors in overlooking or violating the procedural rights of suspects
or the accused is phenomenal. Torture is commonly used in developing countries as a legitimate tool for extracting confession.
c. Prosecutors can apply charges subject to laws that can be corroborated by evidence. They use
resources as required by the need for sustaining the charge beyond reasonable doubt. However,the practice in developing countries is quite frustrating. The accused have been charged
without adequate proof,and failure of such prosecution is bigger without any kind of accountability.
While using these authorities and powers, the investigators and prosecutors are supposed to pay
respect to the following liberties or rights of accused:
a. Presumption of innocence. These agencies are obliged by laws to treat suspects with fulldignity of their physical integrity and security of persons. The suspects ought not or cannot betreated like convicts. Therefore, no arrest, detention, interrogation or process of collating
proof can deprive suspects of their rights to physical integrity and security of persons.26
26 See; Devlin Report to the Secretary of the State for Home Department (Departmental Committee on Evidence on

Identification in Criminal Cases, 1996 H.C. 338, 1976.)UK.

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RESOURCE MATERIAL SERIES No. 95
b. Right against self-incrimination is respected without exception .The most significant rationale behind the right against self-incrimination is to prevent conviction of crime suspects basedon confession as it is not only an unreliable piece of evidence but also tantamount to torturous
or deceptive interrogation.27
c. Right to representation by lawyers. No suspect or accused can be denied access to adequate
legal defence.
The respect of suspectsʼrights does automatically provide an opportunity for investigators andprosecutors to ʻ
best coordinationʼbetween them. The respect of the right to silence does limit the scopeof dependence on ʻ
confessionʼas the basis of the charge. Prosecutors have to rely on investigators formore dependable proof of guilt, and thus it ensures their watchful attitude over the investigators.
Balancing the ʻpower of criminal justice actors and rights of suspectʼtheory is thus crucial for
successful operation of the criminal justice system in any society. This theory is important togenerating the belief among prosecutors that:a. Adequate and scientific investigation is a tool of effective prosecution :Hence,the prosecutor has to legally guard the proceedings of collating evidence and assist investigators legally inmatters of search and seizure and ensuring legal technicalities of the documents. Investigators
are thus part of the prosecution work. The investigatorʼ
s opinion about,and interpretation andconstruction of evidence,is a boon for prosecutors. The mutual collaboration between investigators and prosecutors is thus a ʻ
keystoneʼof a successful prosecution.
b. The objective of investigation is to supply data for prosecutors on the given criminal act
to prove the guilt of the accused beyond reasonable doubt :The prosecutor has to have thequalities of a ʻ
research analystʼ
. The evidence does not speak,but it should be made to speakby the prosecutor. Prosecutors are not ʻ
fax machinesʼto receive documents from the police andsubmit them to the court. They are professional actors with capacity to ʻ
conduct methodological enquiryʼof all evidence supplied by the investigators.
c. Investigators and prosecutors are individually accountable for the ʻ
success and failureʼof
their work. It is not their institution that is accountable for success of investigation andprosecution :Both these actors are responsible to ʻcollectively work for burden ofproofagainst［the］suspect on behalf of the stateʼ. The punishment and reward is thus individual notinstitutional.
d. The prosecution is a key agency in an adversarial system : Hence, he/she should acquireability to represent the State. The investigator has to coordinate himself/herself with prosecutors for acquiring reliable evidence with legal sustainability.
M ost of all, the lack of appropriate forensic technology is an equally important challenge indeveloping countries. This technology is expensive and unaffordable generally. The rapid changes ofthe societal structure,the system of governance and political instability,and lack of adequate researchfacilities are also serious challenges. However,such challenges can be easily handled provided that theʻinvestigators and prosecutorsʼbring about changes in their stereotyped institutional pride and prejudice and begin working as a team.

III. INITIATIVES FOR ENHANCEMENT OF PRESERVATION, ANALYSISAND USE OF EVIDENCE FOR WORTHY PROSECUTION AND FAIRAND IMPARTIAL TRIAL
The foregoing discussion argues that ʻ
the major problem of the criminal justice system in developing countries is associated with theʻevidence collection and analysis methodʼ. The method is generally
archaic,confession oriented,and stricken by abuse of power and torture. Most charge sheets brought
27 See;Laurie M agid, “Deceptive Police Interrogation Practices:How far is Too Far”
:Villanova Public Law and Legal

Theory Working Paper Series No. 2001-1, p. 1168.

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by the prosecutors are based on ʻ
confessionsʼextracted by use of deceptive interrogation or physicalforce. The use of mental torture is also a common tool of extracting confessions. The interest andinspiration of the investigator in exploring scientific evidence is not profoundly noticeable, hence theemphasis lies on ʻ
extractionʼof confessions. The tendency that the confession is the conclusive
evidence is random among the investigators and prosecutors of the developing countries. The overriding emphasis and reliance on confession deactivates the investigators and prosecutors ofthe developing
countries from exploring scientific evidence. Equally true is the fact the ʻ
the availabilityʼof forensic
facilities is scarcely limited. The evidence produced by forensic and other scientific means are also
found tainted by several reasons. The protection of the scene of crime and preservation of evidence
is a serious problem as well as a challenge in the developing countries. Some studies show that thefollowing problems are commonly encountered in this regard:
a. Protection of the scene of crime and preservation of the evidence:It is said that evidence thatis lying on the ground loosely can be collected and catalogued by using proper methods of collection
and preservation. Both the collection and preservation call for seriousness on the part of the investigators and the use of proper technology for collecting so that the properties of the evidence are notdestroyed or tainted. The serious challenge in this regard in developing countries is associated withthe level of awareness of the public as well as the police personnel. The invasion of the scene of crimeby flocks of members of the public and security personnel is a serious problem, which not only
contaminates the scene of the crime but also destroys the traces of evidence left by the offender;
evidence such as fingerprints,the footprints,the bodilyfluids,traces ofthreads and hair and other usefulevidentiary marks to be found at the scene of the crime are either contaminated,tainted or destroyed.28
In such a situation,the scope ofusing forensic technologyand DNA analysis ofthe evidence to be foundat the scene of the crime is markedly low in developing countries.29 Collection and preservation ofevidence from the scene of the crime is a serious challenge in developing countries. In Nepal, forinstance,numbers of samples collected are un-examinable for contamination during collection or delay
in sending them to the forensic laboratory.30 Considering the types of problems,the following remedies
are to be adopted in order to allow forensic science to enhance the quality of criminal justice:
Awareness training for grassroots police personnel on the importance of protecting the sceneof the crime and preservation of evidence and other traces found there. It is found that thegrassroots police personnel need to be educated about the authenticity and reliability of theevidence to be produced by the use of forensic science. This initiative will prevent unwanted
entry of the police personnel as well as the common people within the scene of crime. The
equipment and materials can be used for making the scene of the crime preserved.31
M aking provision of adequate numbers of scene-of-crime officers is essential, followed byintensive training on skills of collecting samples from the crime scene. Greater numbers ofscene-of-crime officers make it possible to reach the crime scene in time, so that many
important traces can be collected before they are destroyed by natural phenomena such as
rain, hot sun, or storms, fog, dust and so on.32
28 See; Jayabishnu Nepali, Praman ra bidhi bigyan: sankalan, samrakchan tatha parikchan ma aiparne samasya tatha

chunautiharu (Evidences and Forensic Science: The Problems and Challenges to be Encountered while Collecting,Preserving and Examining)in YubarajSangroula,et al.(eds.)Jurisprudence About DNA Analysis and Scientific Evidences,
CeLRRd, 2070 B.S. (1913), Kathmandu, pp. 64-65.
29 See generally, Betty Layne Desportes, “Improving the Practices and Use of Forensic Science: A Policy Review;
American Academy of Forensic Sciences, 2008. Available online www.thejusticeproject.org>, visited 14 August 2014.
30 See;Jivan Prasad Rijal,“
DNA and its Specific Property”in Yubaraj Sangroula,et al.(eds)Jurisprudence About DNA
Analysis and Scientific Evidences, CeLRRd, 2070 B.S. (2013), Kathmandu, pp.33-71.
31 In a forensic training for the crime investigators in Nepal,from November 2013 to M arch 2014,it was learned that thepreservation of the crime scene would be problematic due to lack of essential materials such as ribbons, pillars and soon. The senior police officer engaged in the training as a resource person, however, suggested that the ʻplastic role orlocally made organic ropesʼcould be used for this purpose considering their lasting nature. He thus suggested to makea long plastic rope as part of the ʻ
forensic kit-boxʼprovided to the scene of crime officerʼ
.
32 See; Jayabishnu Nepali, Praman ra bidhi bigyan: sankalan, samrakchan tatha parikchan ma aiparne samasya tatha
chunautiharu (Evidences and Forensic Science: The Problems and Challenges to be Encountered while Collecting,Preserving and Examining)in YubarajSangroula,et al.(eds.)Jurisprudence About DNA Analysis and Scientific Evidences,
CeLRRd, 2070 B.S. (1913), Kathmandu, pp.56-65.

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Training is also necessary on enhancing the sensitivity of the scene-of-crime officer to deliver
the collected samples in time. In Nepal,a large number ofsuch samples are destroyed bydelay
in delivery of the samples to the laboratory.33
It is also necessaryto clearlymark theʻtypes or categoriesʼ
ofsamples collected from the sceneof the crime. It is also necessary to mark the samples by indicating who they actually belong
to―the accused or the victim. It was learned that it was another important area of mistake
to be made by the scene-of-crime officer.34
Each piece of evidence is to be given an individual identification mark or number so that it canbe cross-matched against the corresponding investigative report. It was reportedly anotherarea of mistake to be committed by the scene-of-crime officer. Many samples were foundcollected in different bags or tubes and put into a bigger bag with one identification number.35
Investigators in the developing countries also need an elaborative training for maintaining
ʻ
chain of custodyʼof the forensic evidence. The chain of custody is a document to be filled out
by the concerned officer who wishes to use or view the evidence. This is necessary to prevent
loss of evidence and/or cross contamination by individuals who should not have contact with
it.36
The area of the scene of the crime is to be photographed as rule. The detail signs of injury
such blood stains are marked properly. These photographs are crucial evidence in the piecing
together of an event so that investigators who are not able to visit the scene of crime can get
detailed information of the situation.
b. Information of the scene of crime to the prosecutor :As it has fairly been described, the importance of ʻ
evidenceʼas a source of ʻ
reasoningʼalready before, the concentration of the investigating
officer should be laid on procuring such proof from the scene of the crime that it will provide a strong
reasoning to the prosecutor for making him/her able to determine the nature of corpus delicti and its
meaningful relation with the alleged offender. The prosecutor may be able to suggest the nature of
proof required in that given crime. The communication between the investigating officer and theprosecutor is not only desirable but inevitable. From this point of view,the prosecutor must take thelead in coordinating with the investigating officer in the following matters as a necessary modus
operandi for properly collecting and preserving evidence from the scene of the crime:

Autopsy: The prosecutor must be able to say what exactly he/she wants the performing
doctor to mention in the autopsy report. The prosecutor therefore must clearly instruct theinvestigating officer,who,in turn,must visit the performing doctor to advise on their requirement. It is advisable for the investigating officer to give a detailed perspective of the scene of
the crime to the doctor, and if possible, invite the doctor to visit the scene of the crime. In
Nepal, for instance,the autopsy is found largely undependable as evidence because it fails tomention the details which are necessaryfor generating reasoning for the prosecutor. The main
reason is that ʻ
the dead body is dumpedʼin the hospital by the junior personnel who has noknowledge of investigation.37
DNA analysis: The prosecutor must be able to suggest to the scientists carrying out theanalysis on his/her requirement. Scientific language is not common or comprehensible for all.
As a matter of fact,the prosecutor must require the scientists to make detailed elaboration of

33 Ibid.
34 Ibid.
35 Ibid.
36 See;Jivan Prasad Rijal,“
DNA and its Specific Property”in YubarajSangroula,et al. (eds)Jurisprudence About DNA

Analysis and Scientific Evidences, CeLRRd, 2070 B.S. (2013), Kathmandu, pp. 33-71.
37 For detail See; Yubaraj Sangroula, “Jurisprudential and Jurimetrics Analysis of Florence Evidence”in Yubaraj
Sangroula,et al.(eds)Jurisprudence About DNA Analysis and Scientific Evidences,CeLRRd,2070 B.S.(2013),Kathmandu,
pp.1-22.

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their opinions by graphs, notation, narration, or elucidation. Only such reports can besustainably used for generating the scientific reasoning. The importance of such elaboration
is particularly important considering the absence of specialist expert prosecutors,judges anddefence attorneys.

Custody Chain :The legality or legitimacy of the ʻ
chain of custodyʼ
―the document preparedby the scientist―must be obtained by the prosecutor for two main reasons:one,to prevent any
manipulation of the evidence;another, to prepare for examination of the expert witness incourt. The custody chain will thus be an important source of legality of the evidence.
This modus operandi of collection, preservation and examination of forensic evidence will ensure
the following:a. Circumvention of the possibility of contamination or destruction of evidence.
b. Prevention of the possibility of manipulation of evidence for an ulterior motive by any person
including the offender.
c. Establishment of the unchallengeable legitimacy of the evidence.
d. Establishing the accuracy and tangibility of the evidence.
Collectively, these elements will guarantee the success of prosecution, and thus avoid the miscarriage of justice.

IV. CONCLUSIONS
Considering from the wider perspective of the criminal justice systems in the developing countries,
the scenario seems not very encouraging. One of the major problems is generated, in most countries
in Asia, by the ʻ
unplanned transplantationʼof the system of past colonial masters. India has been aglaring example.38 The stereotyped attitude of the State and its criminal justice agencies that thecriminal justice system is a coercive apparatus of the State for peace and order in the society is
viciously responsible for blocking the desired change in the system. The tendency of sticking to aconventional approach of investigation, which does not emphasize the cooperation and collaboration
between the investigating officer and the prosecutor that overridingly focuses on a confession-oriented
investigation system, is another obstacle to reforms of the criminal justice systems in developing
countries. These problems and challenges can largely be addressed by popularizing the use of forensic
science in investigation. Hence, the developing countries must emphasize use of science and forensic
technology in dispensation of criminal justice.

38 For detailed information in this regard, see the Malimath Committee Report.

17