This Article is written by Surbhi (pursuing BALLB from ICFAI UNIVERSITY, DEHRADUN)
Introduction
Sexual offenses are offence against the human body which is defined as interference of the physical body in inappropriate way by another person without the consent of the victim. It violates the dignity& self -respect of the victim and it leads to disrespect for the integrity of women. The sexual offense is considered a horrible crime as it is a crime against society and the norms and the value of society. Indian Penal Code laid down severe punishment and fine for such offenses.
Medical and forensic science is crucial in collecting the evidence that play important role in examining and determining the existence of rape. It plays a vital role in proving the offences of rape. it provides a piece of evidence especially in the case where there is no other witness to the incident. However, these tools are only useful when the examination is conducted within the limited time after the occurrence of rape which usually doesn’t happen due to delay in reporting the crime in the police station. And sometimes even after conducting the examination within the time period, the report is not recorded and documented properly which leads to injustice towards the victim.
By keeping in mind the rate of offences increasing against women, the legislature has broadened the concept of sexual offense by bringing some amendments to criminal law of India which is indeed an important step towards the safety of women.
Medical examination
In the case of rape, medical examination of the victim plays an important role. As in such cases, there is usually no eye witness available at the place of incident, and both the victim and accused give self-serving statements to make their argument strong. therefore in such cases, medical examination plays a very important role in proving or disproving the fact in issue.
Moreover, medical examination of the victim has been prescribed as a mandatory provision under section 53A of The Code of The Criminal Procedure. However, it cannot be done without the permission of the court. but neither the court nor the police officer can force the victim to go through such an examination without her consent. the consent of the victim is mandatory for such examination and if the victim is minor or unsound then the consent of the legal guardian of the victim is obligatory. And such examination must be conducted in the presence of a female medical practitioner.
The Medical examination must be conducted at the earliest stages as the passage of time may reduce the efficiency of evidence. Hence it must be done without any unreasonable delay because delay may cause disappearance of Some minor injuries like swelling and redness that are crucial in medical examination.
Medical evidence include:-
- Injuries caused by the sexual act.
- Injuries caused by victim’s resistance to the sexual act.
- Torn clothes of the victim.
- Any stain in the body or clothes. V)Potency test of accused. VI)Presence of smegma.
Forensic evidence include:-
- Clothes – for detection of blood, saliva, semen, vaginal secretions, etc and to identify the accused by DNA test.
- Sanitary pad – for detection of the presence of semen
- Condom- to deter the presence of semen at the inner surface and vaginal epithelial at the outer surface.
- Hair on the head – for DNA test.
- Hair around a public place
- Swab of vulva
- Swab of vagina
- Swab of cervical
- Swab around anal region
- Oral swab – to detect the Oreo- genital contact, if there was any.
- Swab of penis
- Swab of urethra
- Urine sample
- Blood- for blood grouping and DNA test
- Fingernail scrapping
- Vaginal wash and aborted foetus – to detect the presence of semen
Factors that affect the nature of forensic evidence:-
- Act which is done during the sexual offense.
- The time gap between the act done and the examination conducted.
- Whether the victim has taken shower, washed, or changed her clothes after incident after incident or not.
Legal provisions
Section 53A of the code of criminal procedure laid down the provision regarding the examination of a person who is accused of rape by the medical practitioner. As per the provision of the said section, the examination must be conducted by a registered medical practitioner. He/she Shall prepare a report that shall contain the age, name, and address of the accused along with the description of material taken from the body of the accused for DNA profiling and marks of injury, if any present at the body of the accused. And the reports shall also contain the reason for each conclusion he has arrived at.
The medical examination of the accused would be non-productive if there are no reasonable grounds to believe that the medical examination would provide sufficient evidence in favour of the commission of sexual offence[1] . Taking the blood sample out of the body of the accused for detection of sexual offence in case where the investigation agency has to prove its case beyond q reasonable doubt, is not a violation of article 20(3) of the constitution of India[2].
Section 164A of the court of criminal procedure prescribes the provision for medical examination of the victim of rape. as per the provision given in the said section, the medical examination of the victim must be done by the person who is a registered medical practitioner and employed in a hospital run by the government or private authority. There must be the
consent of the victim for doing medical examination and if the victim is a minor, unsound, or in a vegetative state then the consent must be given by the legal guardian of the victim. And the examination must be conducted within n24 hours of the occurrence of this incident as the delay may affect the purpose of examination and it may lead to reduce the efficiency of evidence.
In the case Samira kohli vs Dr. Prabha Manchanda & anr[3]., the apex court held that the consent given under section 164A must be given by a competent person and it must be voluntary.
Section the 45 of Indian Evidence Act deals with expert opinion. it states that the opinion of the person who is skilled in the field of science, art, foreign law, identification of handwriting, or finger impression, are relevant. the essentials condition of this section is that the person must be skilled, expert, and have adequate knowledge of that subject. However, the opinion of an expert is not considered as substantive evidence as it is merely a piece of corroborative evidence. And it is also not conclusive in nature as it is up to the discretion of the court to consider such evidence as reliable evidence or not.
Conclusion and suggestions
In the contemporary world, when technology and science have been developed to a large extent medical and forensic evidence play a vital role in proving the sexual offences and live up to the expectations of society in order to provide justice to them. Medical and forensic evidence is also the requirement of the time as old means of investigation i.e interrogation or surveillance is too slow to cope with the developed technology and science.
However, the Medical and forensic evidence are also having some drawbacks. time limit is one of the major said drawbacks. Due to such time limit, it lacks some reasonable medical certainty. And the other major drawback is that such examination cannot be done until the crime is reported which usually does not happen in India due to so many reasons like lack of education, lack of awareness of rights, shame, social stigma, defects in the legal system, adverse procedure and many more.
There is a need to bring some progress to medical and forensic evidence in order to overcome these drawbacks. and it should be made available to society at large as other legal techniques.
[1] Sarkar, the code of criminal procedure, 10th edition, 2012.
[2] Halappa vs State of Karnataka, 2010, CrJJ 4311.
[3] 1(2008( CP J 56 (SC).
