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View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Etheses - A Saurashtra University Library Service Saurashtra University Re – Accredited Grade ‘B’ by NAAC (CGPA 2.93) Molia, Tarkesh J., 2008, “An Analytical Study of Expert Evidence with Reference to Adminsitration of Human Rights Jurispruidence and Criminal Justice in India”, thesis PhD, Saurashtra University http://etheses.saurashtrauniversity.edu/id/eprint/727 Copyright and moral rights for this thesis are retained by the author A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the Author. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the Author When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given. Saurashtra University Theses Service http://etheses.saurashtrauniversity.edu [email protected] © The Author “AN ANALYTICAL STUDY OF EXPERT EVIDENCE WITH REFERENCE TO ADMINISTRATION OF HUMAN RIGHTS JURISPRUIDENCE AND CRIMINAL JUSTICE IN INDIA" A THESIS SUBMITTED TO SAURASHTRA UNIVERSITY, RAJKOT FOR THE AWARD OF THE DEGREE OF DOCTOR OF PHILOSOPHY IN LAW BY MOLIA TARKESH JAMANBHAI Under the Supervision of Dr. B. L. SHARMA Professor and Head Department of Human Rights and International Humanitarian Laws FACUTY OF LAW SAURASHTRA UNIVERSITY, RAJKOT, (GUJARAT) Ph.D. Registration No. : 2968 Date of Registration: 15-09-2003 October 2008 DEPARTMENT OFHUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW SAURASHTRA UNIVERSITY, RAJKOT. CRTIFICATE This is to certify that the thesis entitled “AN ANALYTICAL STUDY OF EXPERT EVIDENCE WITH REFERENCE TO ADMINISTRATION OF HUMAN RIGHTS JURISPRUIDENCE AND CRIMINAL JUSTICE IN INDIA" submitted for the award of Degree of Doctor of Philosophy in Law, is a record of the research work done by MOLIA TARKESH JAMANBHAI, under my guidance and supervision during the period of September, 2003 to October, 2008. I Certify that this is a bonafide work of Molia TarkesH Jamanbhai. ( Dr.B.L.Sharma ) PLACE : RAJKOT Professor & Head DATE : 20/10/2008 DECLARATION I hereby declare that thesis entitled ", “AN ANALYTICAL STUDY OF EXPERT EVIDENCE WITH REFERENCE TO ADMINISTRATION OF HUMAN RIGHTS JURISPRUIDENCE AND CRIMINAL JUSTICE IN INDIA" which I am submitted for the award of Degree of Doctor of Philosophy in Law, to the Saurashtra University, Rajkot is an original research study conducted by the present research work done by me. I also declare that this thesis or any part of it has not been submitted to this or any other University for the award of any Degree, Diploma or Fellowship. Place : Rajkot Date : October, 2008 MOLIA TARKESH JAMANBHAI Lecturer in Law Gujarat National Law University, Gandhinagar ACKNOWLEDGEMENT I am extremely grateful to all those who have not only inspired me but, have also provided me innovative ideas to colourfully complete the Herculean task I have undertaken. As such, there are series of names flash in my mind which all are worthy to be mentioned. My first salutation goes to Smt. Anjana Pate and Jay Pater both my beloved, spouse and son respectively for constantly providing mean atmosphere to carry on the research. I am very much indebted upto my guide Professor Dr. B.L. Sharm, who has been my friend, Philosopher and guide in real sense of that phrase. His able, innovative and constant guidance has enabled me to undertake this work successfully. The role of Mr. Rishikesh Dave, Mr. Omprakash Pandey, Mr.Prakash Kagda, Mr. Uday Khachar & Mr.Rajesh Solanki are an unforgettable one which too have helped me in devoting the research subject. I honestly beg apology from the rest of the community people who have rendered their help and have made it possible for me to come out with this work if I have failed to acknowledge them in express terms. But, I acknowledge each concerned, directly or indirectly from bottom of my heart. Place : Rajkot Date : 20/10/2008 Tarkesh J. Molia C O N T E N T S Chapter Detail Page No. No. 1 JURISPRUDENCE OF HUMAN RIGHTS 1 - 58 2 EXPORT OPINION IN INDIA 59-70 3 EXPERT OPINION IN U.K. 71-109 4 IDENTIFICATION & RIGHT AGAINST SELF- 110-144 INCRMINATION 5 IDENTIFICATION : ITS METHODS & 145-213 EVIDENTIARY VALUE 6 VARIOUS KINDS OF METHOD 214-310 7 IDENTIFICATION OF THINGS, RTICLES, 311-383 DEAD BODY,BLOOD, STAINS AND POISON ETC. 8 ROLE OF EXPERT IN THE 384-486 ADMINISTRATION OF JUSTICE 9 RECENT SCIENTIFIC DEVELOPMENTS IN 487-533 THE FIELD OF EXPERT OPINION 10 CONCLUSION AND SUGGESTION 534-554 11 BIBLIOGRAPHY 555-559 1 CHAPTER-1 JURISPRUDENCE OF HUMAN RIGHTS 1.1 Human Rights – Evolution of the Concept The law of Human Rights has been envolved to solve the Human Rights issues and day-today problems of the people. A uniform approach for the development of theory of Human Rights law has not been made yet. It is to confessed that there are various factors that hinder in development of the theory of Human Rights and to provide them a conclusive shape. The observations determined hereunder have to be accepted as ground reality in shaping the concept of Human Rights. The present Researcher, therefore, submits these hindrances as confession. 1.2 STATEMENT OF CONFESSIONS : 1.2.1 Involvement of diverse culture : Culture and standard of living vary from place to place, community to community, region to region and country to country. The concept of right also changes according to the culture, which has an important role in shaping the Human Rights, e,g, Right to privacy, standards of meaningful life etc. 1.2.2 Positive underpinnings are shaky : The present jurisprudence of Human Rights is based mainly on the negative concepts of rights. Secondly, it is rather difficult to develop positive definition covering all aspects in all time for all groups. In absence of positive jurisprudence of rights in this regard poses difficulty in shaping the concept of Human Rights. 2 1.2.3 Implementation mechanism are non existent or fragile : The Human Rights jurisprudence is a part of International Law Jurisprudence, which is described as no law since it does not have an effective mechanism to implement rights. For the same, reasons are described as rights lacking the enforcement mechanism and does not have an element to satisfy the requirement of legal relationship necessary to constitute even the concept of right. 1.2.4 Which rights are absolute : The concept of Human Rights consists in it, right to life, liberty, equality and dignity. It is difficult to say that among these four, which is absolute and which is not. Secondly, one right, absolute in one case need not be absolute in another. Therefore, poses, difficulty in deciding the nature of right as an absolute one. 1.2.5 Which rights are universal : Human Rights are considered to be universal, because of its nature and feature. All human beings benefit from the Human Rights. Just for dignified human life, Human Rights are indispensable. Human Rights, has universal source, acceptance and recognition. But the secondary rights emerge from Human Rights as their variable may or may not be universal in all situations and thus creates and thus creates an illusion about their universal nature. 1.2.6 Which should be given priority : Human Rights are considered more important and necessary than other types of individual, social or political rights. But it is difficult to 3 determine a mechanism to give priority and decide the supremacy of one right over other in all cases and in all situations. 1.2.7 Which can be overruled by other interests : Human Rights used to satisfy and protect individual and community interests. It is difficult to evolve principle to decide priority between individual and community interests with singly formulated norm for all cases. 1.2.8 Which call for international pressures : Civil wars, communal violence, terrorism, ethnic violence, class conflicts etc. are man made tragedies. Human Rights violations in a massive scale, within a state, can be stopped by calling international pressure and sanctions. It is a difficult to decide that which right in which situation call international pressure or not. It is difficult to formulate uniform and conclusive norms. 1.2.9 Which can demand programme for implementation : The present world has several problems, which hit Human Rights, such as poverty, unemployment, racial discrimination, disease, mal-nutrition etc. It is difficult to formulate a norm to deal with such recognized and unrecognized and unrecognized challenges. 1.2.10 Which will be fought for : Human Rights jurisprudence through International Instruments, identity several variables of Human Rights in addition to the four concepts of Human Rights. It is difficult to determine which right to fight for and not, since their seriousness go on changing from situation to situation. 4 1.2.11 Process of definition is crucial : It is, therefore, difficult to come out with a definition of Human Rights acceptable to all, covering all situations and ensure fool-proof justice to the concept. So it is difficult to explore a definition, since it consists in it a crucial procedure both at international and municipal level. 1.2.12 Submitted that it is difficult to develop theories and norms, which can shape and define Human Rights in conclusive sense. Even then, the society cannot live and endeavor in furtherance of the goal of determining Human Rights, since the process of determination of Human Rights forms a part of organic jurisprudence. STATEMENT OF COMPULSIONS 1.2.1 Right definitional process complex : Rights mean different things to different people.