BLOG- ADMISSIBILITY OF MEDICAL EXAMINATION REPORT IN SEXUAL OFFENCES

The sexual offences are not only derogatory to an individual, but the slightest increase in the rate of such crime against particular sex also reveals the outlook and concern of the society for that sex in general. Women have always been prone to such ferocious acts and their voice has been suppressed for so long. The medico-legal advancements turned out to be a great support to testify all the pieces of evidence. This paper beholds the idea as to what extent medical examination report of all the related shreds of evidence is admissible in the Court. The research also extends to the role of the expertise of a doctor in deposing the case.

INTRODUCTION

Sexual offences are generally considered to be a rigorous attack on the body especially molestation of genitals without the consent of the sufferer. Although in true sense it is an attack over the bodily integrity, outrages the modesty, dignity and self-respect of the victim. More comprehensively, Sexual offences are acts or expressions of violence and perversion unleashed on the weakest available female in the safest possible circumstances by the stronger male as a result of feelings of anger, frustration, depression, insecurity, deprivation and hostility and arising out of ignorance of his true nature of SAT, CHITT and ANANDA.[2] It is not that only women suffer such molestation by their male counterparts, in fact, increasing rate of sexual offences against men also underlines the fact that such offences need to be curbed immediately to save our social being from the clutch of mind pollution.

From the very beginning till the present time women make themselves alive in every part of the development, may it be the sports or politics or of science.[3]India takes it to be an honour if her daughter comes with flying colours in any of the fields in international fronts. The sooner we begin to celebrate her victory; the next headline of the barbaric incident of rape of a girl shakes our very core and puts the spotlight on India’s poor track record in protecting its women.

Violence is preventable and however, is not inevitable. There is a need to address the economic and sociocultural factors that encourage a culture of violence against women (VAW).[4] While we identify that there is a need to adopt a multi-sectoral framework of mutually reinforcing intercessions for prevention and management of sex-based violence particularly against women and girls, the focus of our work is to build health systems capacities. The health care system is the only institution that interacts with almost every woman at some point in her life and women living with violence are likely to visit health facilities more frequently than non-abused women.[5] Interventions by health providers can potentially mitigate, if not eliminate, both the short and long-term health effects of gender-based violence on women and their families.[6]

India being tagged with the label of developing country for 70 years as of now has successfully synthesised the advancements in medical and forensic science. Such advancements have made it easier for the investigator to produce genuine evidence before the court and the court, in turn, meets the ends of justice. This is however tragic that many a time it has been experienced in the past in cases of sexual offences that medical evidence has not been recorded and documented in a proper manner leading thereby to a poor conviction, particularly in rape cases.

FORENSIC SCIENCE EVIDENCE- A NEWLY EVOLVED TECHNIQUE

Forensic Science is the application of broad ambit of science which is to answer questions to help meet the ends of justice in a legal system. It processes to identify and compare the materials which in turn establish the presence or absence of a link between the crime, the criminal, the victim and the weapon of the offence, the place and the time of its occurrence. It embraces all the branches of science and applies them to the purpose of the law.

FORENSIC TECHNIQUES MAJORLY USED IN EXAMINATION OF SEXUAL OFFENCES 

• DNA Test (Bloodstain and seminal traces)
• Osteoporosis/ Bone Density Test
• Fingernail scraping

MEDICAL EXAMINATION

Medical practitioners play the very important dual roles in case of the sexual offences, particularly in rape cases. The first is to provide the required medical treatment and psychological support and second, is to assist the survivors in the medico-legal proceedings by collecting the essential pieces of evidence and documenting them properly. Hence, the medical examination report so prepared becomes all the more important too. As there is usually no eye-witness of the act, and the accused and victim used to say in their interest only, the medical evidence is one of the ways which help to find out the fact. Medical Examination of the victim had always been a mandatory requirement.[7] And after the amendment in the Act, the medical examination of the accused has also become the mandatory provision.[8]

Clues like stains, injuries, and trace evidence on the person of the culprit are collected by the medico-legal expert on the same pattern as in the case of the victim. They must be processed properly so that their authenticity, integrity and chain of custody is not disturbed. The victim bears important medical evidence, which, with the march of time, is lost. The examination of the victim should, therefore, be carried at the earliest to synthesis maximum information.

The medical examination of the victim cannot be done without the requisition from the court or the police officer, but the court cannot force a woman for the medical examination. The consent of the victim is required for the medical examination and in case the victim is under the age of eighteen or is of unsound mind the consent of the legal guardian is required. The victim should be scouted by the police officer and his/her name and number should also be recorded. For knowing the mental condition of the victim that she is out of mental shock or not first the medical officer has to ask very basic question relating to the said occurrence and the same has to be noted by the medical officer. The examination of the victim has to be done in the presence of another woman, if possible in the presence of nurse of the particular hospital. The medical examination should be carried out without delay because the delay may lead to non-appearance of some minor injuries like redness, and swelling. The victim should not be forced to remove her clothes, the officer can only request her once for the same and if she will not be ready in that case, the medical examination of the victim cannot be done.

The non-production of a medical report is not fatal if the other evidence in the case is believable.[9] In State of Madhya Pradesh v. Dayal Sahu[10], the Supreme Court ruled that an appellate court shall not reserve the findings of guilt based on irrelevant circumstances. Where the evidence of the victim and other witness was found reliable, accused shall not get the benefit of the doubt for non-examination of doctor of prosecution.

RECENT ETHICAL ADVANCEMENTS LAID DOWN THROUGH GUIDELINES

Several guidelines have been laid down by the Ministry of Health & Family Welfare, Government of India in association with WHO[11] to provide basic amenities to the survivors of sexual offences in the first instance. A few of them are here:

Irrespective of whichever way the survivor/victim reach a hospital, the opportunity should be used for providing comprehensive health care. This would include:

• Obtaining informed consent,
• History taking,
• Medical examination,
• Collection and documentation of evidence and maintaining chain of evidence,
• Providing therapeutic care including immediate treatment of physical injuries, mental trauma, provision of emergency contraception, pregnancy advice, STI care, etc.
• Providing psycho-social support including counselling, rehabilitation and follow up care.

Violence, especially sexual violence results in various physical and psychological consequences that warrant immediate medical examination and treatment and the rigorous methods of examination and investigation furthermore victimizes the victim. It is of great importance that while conducting any investigation an empathic outlook for the victim is adopted that does not make them that they have lost everything which boosts their morale. The Criminal Law Amendment Act, 2013, adopts this perspective and emphasizes 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 the 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 section 357 C of CrPC and Rule 5 of POCSO, doctor/hospital must provide treatment to all survivors/victims of sexual violence.
• Anaesthesia can be administered only in those cases to enable medical examination which is done in the best interest of the survivor and are not possible otherwise.
• It is not necessary to document past sexual practices/history during the medico-legal examination of survivors/ victims of sexual violence.
• No Court or person can force a medical examination on a survivor when the survivor does not consent for the same.

LEGAL PROVISIONS 

There are a few legal provisions which help to begin the medical examination in a better direction and also provide a set of presumptions and principles before the examination. They are as follows:

• Section 114-A of the Evidence Act provides that the Court shall presume that the consent of the victim (woman or a girl) of the rape had not been obtained and that offence was committed against her will.
• It is provided in Section 53-A of the Criminal Procedure Code that during the investigation the medical examination of a person accused of rape would be non-productive if there are no reasonable grounds for believing that such medical examination would afford evidence as to the commission of such offence.[12]
• Under Section 164-A of the Code of Criminal Procedure, the victim of rape is medically examined by the registered medical practitioner employed in a hospital run by the government or a local authority and in the absence of such a practitioner by any other registered medical practitioner.[13] It also provides the time limit of 24 hours for sending the victim for medical examination. This is necessary because any delay in sending the rape victim for examination may baffle the purpose for which the medical examination of the victim of rape or attempted rape is required to be done for the proper decision of the Court on the accused charged with rape or attempted rape.[14]

RELIABILITY OF EXPERT EVIDENCE IN SEXUAL OFFENCES

The expert witness is expected to put before the court all the material information inclusive of the data which induced him to draw the conclusion and enlighten the court on the technical aspect of the case by explaining the terms of science so that the court although, not an expert may form its judgment on those materials after giving due regard to the expert’s opinion because once the expert’s opinion is accepted, it is not the opinion of the medical officer but the court. All the stakeholders dealing with a case of sexual violence expect a doctor to positively conclude the medical opinion immediately after a medical examination, forgetting that medical evidence and findings observed during a medical examination vary depending on the delay in medical examination, post-assault activities, type of assault, etc.

Section 45 of the Evidence Act provides that the opinions of persons specially skilled in some science, art, foreign law, the identity of handwriting and finger impression are relevant. It was held in State of Himachal Pradesh v. Jai Lal[15] that to bring the evidence of an expert, it has to be shown that he is skilled and has adequate knowledge of the subject. An expert has to furnish the judge with the necessary scientific criteria for testing.[16] The relevance of the opinion of an expert was challenged in Khyll v. State[17]  in which it was held that opinion of an expert cannot be a piece of substantive evidence as it is an opinion of the third person and can be used for the corroboration and it is also not exhaustive and conclusive[18].

In a case where prosecutrix had alleged that she had received injuries on her back during the incident, there was the opinion of the doctor examining her that she said injuries were 4 to 5 days old. It was held that opinion of doctor about the age of injuries could not be considered as conclusive evidence as the said opinion could never be exact; hence concession of sometimes upward and downward should have been allowed. It was also held that prosecution evidence could not be disbelieved merely based on a doctor’s opinion.[19]

Thus, the medical and forensic evidence cannot 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 evidence. Also on the opinion of the third person only who was not an eye-witness, even if it is of an expert, the conviction cannot be made. Moreover, it is found that in many cases the evidence and statement of the prosecutrix have a greater weightage than that of the medical evidence.

EFFECT OF MEDICAL EXAMINATION IN JUDICIAL PRONOUNCEMENTS

Since these examination reports serve the purpose of justice it is required to discuss the judicial trend as to acceptance of these examinations for investigation in a sexual offence.

The researcher hereby discusses the view of the judiciary as follows:

In the case of Bidhia alias Bidhi Chand v. State of Himachal Pradesh[20], on medical examination it was found that there were bruises on the breasts, breasts were fully developed, multiple red-coloured abrasions over the left breast, external genitalia were normal; hymen was ruptured with no bleeding and there was no discharge from the vagina and no laceration of the vagina; semen found on the slide of vaginal smear and according to doctor the duration of injuries was 6-24 hours; doctor opined that she was not used to sexual intercourse since vagina allowed two fingers with difficulty and that rupture of the hymen was due to rape. This led to the conviction of the accused.

In Om Prakash v. State[21], the conviction was upheld when the doctor found out that the prosecutrix had blood mark on her clothes and vulva and a tear mark on the perineum which bled on touch. The Hymen was torn. Moreover, there were bloodstains over her clothes and a tear on the perineum.

The conviction could not be sustained in Mahesh Kumar Bheru Lal Chawada v. State of MP[22] because merely the semen stains were found on the frock of the prosecutrix seized with inner garment known as ‘shamiz’. Specific circumstances were showing sexual intercourse.

In the case of Sakaldeo Shah v. State of Bihar[23], a victim girl of 16-17 years was having pregnancy of three months. According to Modi’s Jurisprudence, two years has to be left on either side arithmetical or other error of examination on doctor’s evidence when the girl was aged 16-17 years she was having valid consent in an illegal intercourse with accused. There cannot be a conviction under Section 376, IPC.

A victim is expected to offer resistance causing certain injuries on her body but it cannot be laid down as a rule that whenever resistance is offered, there must be some injuries. As held in Balwant Singh v. State of Punjab[24], in which a girl of about 19 years was raped by four persons, marks of violence on her body cannot be expected. Thus, the absence of marks of injuries does not change the nature of the crime.

In a case regarding the reliability of the evidence forwarded by the prosecutrix, it was held in Kuldeep Kumar Bittu and Anr. v. State of Punjab[25] that, if evidence of prosecutrix was inspiring, the conviction of offence of rape could be based on her testimony alone.

In the case of Om Prakash v. Dil Bahar[26], it was held that even if the medical examination of the victim is not done due to any of the reasons, then also if the victim says that she has been raped, without medical examination as well, her contention can be considered as a valid one and be believed that she has been raped.

CONCLUSION AND SUGGESTION

The first conclusion drawn by the researcher is that the Medical and Forensic Science Evidence find a very crucial place in the investigation of the cases of sexual offences and ascertaining its occurrence. The age-old means of investigation i.e. interrogation, development of sources and surveillance to detect the crime, the barbaric, torturous and slow-pace investigations have no berth today which earlier used to deny justice because of delay.

The researcher also reasons out that these mechanisms are detection tools only and they cannot be put to use until the crime is reported and that also within the appropriate duration.

The suggestions researcher would propose is that this mechanism is not gaining progress only for the reason that the cases are not reported on time. This is because of the defects in the existing system to secure justice, hostile procedures and carelessness of the investigating team.

Another suggestion is to the doctors that they should base their opinions with proper scientific reasoning explaining both positive and negative determinations during the medical examination.

AUTHOR – SHIVANI PANDEY;

Student- B.B.A. LL.B-3rd Yr.,

Jamnalal Bajaj School of Legal Studies, Banasthali Vidyapith.

*check out the video below.

ENDNOTES

[2] Available at  www.legalserviceindia.com/article/l201-Changing -facts-of sexual-offences.

[3] Sneha Singh, Relevancy of Medical and Forensic science evidence in rape cases. Available at: http://docslide.us/documents/relevancy-of-medical-andforensic-science-evidence-in-rape-cases.html.

[4]Available at http://pbhealth.gov.in/Guidelines%20for%20the%20State%20of%20Punjab.pdf accessed on 1st June 2020.

[5] Dr Nata Menabde; WHO Representative to India; GUIDELINES & PROTOCOLS-Medico-legal care for survivors/victims of Sexual Violence. Available at – http://www.mohfw.nic.in/sites/default/files/953522324.pdf

[6] Available at http://pbhealth.gov.in/Guidelines%20for%20the%20State%20of%20Punjab.pdf accessed on 1st June 2020.

[7] Section 53 of the Code of Criminal Procedure, 1973.

[8] Section 53 A, the Code of Criminal Procedure, 1973.

[9] Sheikh Zahir v. the State of Bihar, AIR 1983 SC 911.

[10] (2005) 8 SCC 122.

[11] Available at   http://www.mohfw.nic.in/sites/default/files/953522324.pdf  accessed on 27th May 2020.

[12] Sarkar, The Code of Criminal Procedure, 10th ed., 2012, Lexis Nexis Butterworths.

[13] Supra note 9.

[14] Durga Das Basu, Criminal Procedure Code, 1973, 5th ed., 2014, Lexis Nexis, p.914.

[15] AIR 1999 SC 3318.

[16] Supra note 12.

[17] 1980 ALJ 230.

[18] Chandreshwar Singh v. Ram Chandra Singh, AIR 1973 Pat 215.

[19] Shanabhai Madhurbhai Koli Patel v. the State of Gujarat, 2004 Cri LJ 268.

[20] 1985(1) Crimes 559.

[21] 1987(1) Crimes 645 (Del).

[22] 1995 Cri. L. J. 2001.

[23] 1994(4) Crimes 22 (Patna).

[24] AIR 1987 SC 1080.

[25] 2008(1) Crimes 720 (P&H).

[26] AIR 2006 SC 743.

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