INTRODUCTION:
In a criminal trial, in order to zero down on the relevant facts, the judge has to rely on the knowledge and opinion of certain experts, as he/she may not be in a position to appreciate the technical details involved in a particular case. Evidence is given by the expert of the relevant field in the form of his opinion which is based on the information that he has gathered from the facts of the case. This evidence supplements the assertions of the judge and together, they complement each other and combine to form the basis of the judgment. However, the evidentiary value of the opinion given by the expert is not unshakeable because of the discretionary power in the hand of the court, which may choose to accept it or reject it. This discretionary power in the hand of the court arises from Section 45 of the Indian Evidence Act, 1872, which theoretically, gives a lesser degree of importance to expert evidence by terming it as merely corroborative in nature.
Medical examination of both the victim and accused always plays a very important role in case of rape. As there is usually no eye-witness of the act, and the accused and victim usually say in their interest only, the medical evidence is one of the ways which can help to find out the true fact. Medical Examination of the victim had always been a mandatory requirement.[1] However, after the amendment of the Act, the medical examination of the accused has also become the mandatory provision.[2]
MEDICAL EXAMINATION OF RAPE VICTIMS /SURVIVORS:
Violence, especially sexual violence results in several physical and psychological consequences that warrant immediate medical examination and treatment. The Criminal Law Amendment Act, 2013, lays emphasis on examination, treatment both physical and psychological in addition to mere evidence collection that was the case earlier. These changes warrant a change in procedures for medical examination of survivors/victims. Given below are a few guiding points with relation to medical examination:
• There is no need to have a police requisition or a Court order to do the medical examination.
• All hospitals whether they are public or private are mandated to carry out medical examination of survivors/victims of sexual violence.
• As per MOHFW guidelines, efforts should be made to find a lady medical officer to conduct examination of a women survivor. However, if a lady medical officer is not available, examination can be conducted by a male doctor in presence of a female attendant.
• As per POCSO Act, a child is one who is aged below 18 years. As per Section 27 of POCSO Act, a lady medical officer should examine a girl child (one who is below 18 years of age).
• As per Section 27 of POCSO Act, whenever examination of a child is done, a parent or any person whom the child trusts should be present throughout the examination. If such persons are not available, then it is the duty of the hospital to provide a person who is trustworthy.
• As per section 357 C of CrPC and Rule 5 of POCSO, it is compulsory for doctor / hospital to provide treatment to all survivors/victims of sexual violence.
• As per the Supreme Court judgment in Ashwani Kumar Saxena v.s. State of M.P.[3], it is not necessary to do medical age estimation of the survivor in all cases. Age estimate should be done when in doubt and when reliable documentary proof of age is not available.
• Whenever a sexually assaulted child requires immediate care and protection, the doctor should inform the local police station to seek assistance of the Child Welfare Committee (CWC).
• Anesthesia can be administered only in those cases to enable medical examination which are done in the best interest of the survivor and are not possible otherwise.
• It is not necessary to document past sexual practices/history during medico legal examination of survivors/ victims of sexual violence.
• It is mandatory for a doctor to inform jurisdictional police (local police station) regarding the case of sexual violence. If however the survivor does not wish to participate in a police investigation, it should not result in denial of treatment.
• As per Rule 5 of POCSO Act and Section 357 C of CrPC, first aid and treatment should be provided to survivors/victims of sexual violence without any delay. Treatment should be provided for injuries, STIs including HIV, pregnancy, emergency contraception and psychological counselling.
• HIV prophylaxis should be administered only if survivor/victim reports within 72 hours of assault and after assessing for HIV risk.
• For treatment guidelines please refer to MOHFW Guidelines and Protocols for Medico-legal care for survivors/victims of sexual violence, 2014. (Page 33)[4]
In case of State of Karnataka v. Manjanna[5], it was observed that medical examination of rape victims is a “medicolegal emergency.” It is the right of every victim and a duty of every hospital to medically examine the victim before filing of a legal complaint, and the hospital at the request of the victim, can afterwards file a complaint. A hospital may receive a victim of rape when victim voluntarily reports to the hospital, on requisition by the police or by the court.
A survivor/ victim of sexual violence may report to a doctor/hospital in any of the following three ways:
Through a police requisition after the survivor/victim has lodged a police complaint;
When the survivor/victim finds the hospital as a trusted place and visits the doctor/hospital either for therapeutic care and /or evidence collection; or
When the survivor/victim directly goes to the Court and lodges a Court complaint and visits the doctor/hospital through a Court order.
In all three circumstances, it is mandatory to seek an Informed Consent/Refusal for examination and evidence collection. Consent should be taken for the following purposes: examination, sample collection for clinical and forensic examination, treatment and police intimation.
Section 164A sub-clause (7) of CrPC clearly points out that it would be illegal for anything done during medical examination, which is outside the scope of consent of the survivor/ victim. Consent can either be sought from the survivor/victim herself or from legally established agencies/persons acting in the best interest of the survivor/ victim where the survivor/ victim is unable to give consent either due to age, trauma, mental condition or disabilities.
MEDICAL EXAMINATION OF THE RAPE ACCUSED:
The examination of the accused is as important as the examination of the victim, hence the examination of the accused has to done as early as possible. After the amendment in the provisions of Cr.P.C., the Accused has to medically examined by the medical practitioner made compulsory. For the medical examination consent of the accused is required to obtained, and he has to be informed that such an examination may go against him, and then only medical examination should be done.
Medical Evidence (in Rape cases) is usually of the following types:-
1. Injuries due to sexual act. Often it is absent.
2. Injuries (scratches bite marks etc) due to resistance offered by the victim. Location? Number? Extent? They are often found if the female is health and spirited.
3. SMEGMA? Presence of it is a useful clue. It can refute the charge of false rape. Absence of it does not prove rape.
4. Capability? Is the culprit if performing sexual act?
5. Venereal disease? Is the culprit suffering from any venereal disease?
Physical evidence:-
1. Vaginal fluid stains, blood stains, semen stains on the penis, on pubic hair, on the area around the male organ and thighs and on clothes. Smears from male organ from pubic hair, from the surrounding skin should always be obtained.
2. Foreign hairs- especially in the private parts and intermingled with pubic hairs. The doctor should collect them for further investigations.
3. Fibres from the clothes of the victim. They are mostly on his clothes.
4. Stains of cosmetics on the person and clothes.
5. The fingernail scrapings may contain vaginal fluid, skin, fibres, cosmetics etc. from the victim.
6. Dust, dirt, flora or fauna from the scene, especially in outdoor cases.
7. Torn clothes. They should be taken into possession.
As per Section 53A of CrPC, reasonable force can be used during medical examination of accused. But nowhere in the IPC or any other law has ‘reasonable force’ been defined. The said section also provides for use of reasonable force for medical examination of accused of rape. However, all doctors have to seek informed consent before doing such examinations which includes collection of blood, semen, saliva, hair, body fluids, etc, (trace evidence / evidentiary materials).
When the accused consents for medical examination, it means that the consent includes consent for collection of evidentiary materials also. However, if an accused refuses to give consent (inspite of being explained the consequences of not getting medically examined and its possible adverse inferences by the Courts against the accused) then informed refusal of the accused has to be documented.
With the change in the definition of rape/sexual assault as per the Criminal Law amendment, 2013, which includes both penetrative and non-penetrative assault, practices such as potency examination should be discontinued.[6] Section 53A of CrPC which specifically deals with medical examination of accused of rape does not mention anything about potency examination. Moreover, medically a definitive opinion cannot be given on whether a person is potent or not because of the limitation of not ruling out psychological impotence by physical examination. In India, a suspect/accused is routinely sent to the doctors by the Judicial Magistrates and the police for the examination of sexual potency when accused claims the defence of impotency. Initial examination will reveal his incapacity if there is obvious anatomical abnormality, inherited genetic disorders or definite illness that may affect potency. Thus, doing a potency examination of the accused need not be conducted and is largely irrelevant today. As far as semen sample collection is concerned, there is no scientific basis for a doctor to mandatorily collect semen sample (by making the accused masturbate) during accused examination, it is highly unethical and inhuman to make accused masturbate by showing him pornography or other such material. Even if the investigating officer makes a request for comparing the semen samples of the accused with samples available at the scene of crime, the answer of the doctor should be that “for DNA profiling any body material can be used and material such as blood are easier to obtain for DNA comparison”.
Use of Colour Doppler examination of the penis or papaverine injection to certify potency for therapeutic purposes is done in erectile dysfunction cases for the benefit of that person. But in a medico-legal case, performing such examinations without the consent of the accused would be illegal. Further in such cases, the evidence obtained through these tests may go against the interests of the accused. According to Article 20 sub-clause 3 of the Indian Constitution, an accused need not provide evidence to incriminate themselves.[7]
In cases where the accused reports voluntarily to the doctor/hospital for treatment of either injuries sustained during sexual violence, treatment of STIs or for psychological counseling, the doctor should provide treatment, mandatorily inform police (nearest / jurisdictional police station) and also carry out a medico-legal examination. However, it is the duty of the doctor to provide treatment to the accused following a medical examination. This is because post-sexual violence there are possibilities of accused also sustaining injuries, contracting STIs (including HIV, HBsAg) or even suffering from psychological disturbances.
As far as verification of age is concerned, the Hon’ble Supreme Court in the case of Ashwani Kumar Saxena vs State of M.P[8], it was held that, “.....Only in cases where those documents or certificates are found to be fabricated or manipulated, the Court, the J.J. Board or the Child Welfare Committee need to go for medical report for age determination.....”. Hence, only in those cases where documentary proof of age is not available or seems fabricated or manipulated, medical age verification tests need to be conducted.
MEDICAL REPORTS AS CORROBORATIVE EVIDENCE:
The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances.[9]
According to Section 114-A of the Evidence Act, the Court presumes that the woman who was the victim of the rape had not consented and that offence was committed against her will. In certain prosecutions for rape under Sec. 376(2) (a)-(g) of the IPC, where sexual intercourse is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the court shall presume that she did not consent. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors, which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons, which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury.[10]
In the case of State of Karnataka v. S.Raju[11], the Karnataka High court upheld that even in the case of absence of medical evidence, rape accused can be convicted. Therefore the corroboration with medical reports is not necessary in every case.
Similarly, In State of MP v. Dayal Sahu[12] the Supreme Court ruled that an appellate court shall not reserved the findings of guilt on the basis of irrelevant circumstances. Where the evidence of the victim and other witness was found reliable, accused shall not get the benefit of doubt for non examination of doctor of prosecution.
According to Section 45 of the Evidence Act, the opinion of persons specially skilled in some science, art, foreign law, identity of handwriting and finger impressions are relevant. In order to bring the evidence of an expert, it has to be shown tht he is skilled and has adequate knowledge of the subject.[13] Opinion of an expert cannot be the substantive evidence as it is an opinion of the third person and can be used for the purpose of the corroboration.[14] It is not conclusive.[15] Expert opinion is not necessarily binding on the court.[16] Duty of an expert witness was to furnish the judge with the necessary scientific criteria for testing. Thus, the medical and forensic evidence can not be the sole evidence on the bases of which conviction can be made, as it may be possible that the victim has been raped which is proved by the medical and forensic evidence, but at the same point of time victim has been raped by the accused only has to be proved with the help of other corroborative evidences.
[1] Section 53, The Code of Criminal Procedure, 1973 [2] Section 53A, The Code of Criminal Procedure,1973 [3] (2012) 9 SCC 750. [4] https://india.unfpa.org/sites/default/files/pub-pdf/Violence%20Kit-1.pdf. [5] AIR 2000 SC 2231. [6] Supra at 4. [7] Ministry of Law and Justice, Government of India. The Constitution of India. Nov 9, 2015. Available from; http://lawmin.nic.in/olwing/coi/coi-english/coi- 4March2016.pdf [8] Supra at 3.
[9] Ram Pal v. State Of U.P., Criminal Appeal No. 1105 of 2000, Allahabad High Court, Lucknow Bench, (MANU/UP/3000/2017) [10] State of Punjab v. Gurmeet Singh (1996) 2 SCC 384.
[11] (2007) 11 SCC 490. [12] (2005) 8 SCC 122. [13] State of Himachal Pradesh v. Jai Lal, AIR 1999 SC 3318 [14] Khyall v. State, 1980 ALJ 230. [15] Chandreshwar Singh v. Ram Chandra Singh, AIR 1973 Pat. 215 [16] Las Society of India v. Fertilisers and Chemicals Travancore Ltd. AIR 1994 Ker. 308.
[Author: Nayan Saini, Paralegal at S&D Legal Associates and Shivangi Chawla, Intern at S&D Legal Associates]