Medical Examination of Rape Victims under Cr.P.C.

INTRODUCTION

The era of the 21^st century has evolved breathtaking changes and advancements in the technological aspects creating humongous developments in the justice system in India. Starting from privacy, liberty, personal autonomy including self-incrimination everything unimaginable a few years ago is right now functioning at its best. The country has crossed its path from the times when there were no courts to resolve disputes to today when there has been a technological impact on the judicial system.

However, despite the development in the Criminal Justice system, crimes do not seem to have decreased. When a crime takes place it is necessary to examine the victim of that crime to collect evidence which will further lead to prove that crime has taken place. A victim is said to be one of the major sources of evidence mostly in rape cases. From a victim three types of evidence can be collected: Knowledge of occurrence of the crime; medical evidence; evidentiary clues.

Rape

Rape is regarded as one of the most heinous crimes. It is an act of infringing one’s body. According to section-375, “A man is said to commit ‘rape’ if he:

1. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
2. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
3. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of the body of such woman or makes her do so with him or any other person; or
4. applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person, under the circumstances falling under any of the following seven descriptions:—
5. Against her will
6. Without her consent.
7. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
8. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
9. Also with her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.
10. With or without her consent, when she is under eighteen years of age.
11. When she is unable to communicate consent”[1].

Judicial Developments

Before 2000, the doctors could conduct the medical examination of a rape victim; only after the request made by police officials. It is in turn made it mandatory for the rape victims to first file an FIR. Then only they could get a permit for medical examination. However, when it comes to rape victims, the evidence that is found on the body can get tampered with the passage of time, and hence it should be treated as an emergency. In the case of the State of Karnataka v. Manjanna[2], the court held that medical examination of rape victims shall be considered as a medico-legal emergency. It is the right of the victim to be examined and later on his request the hospital can go forward and file a complaint.

In the year 2005, Section 164A was amended to the Criminal Procedure Code. It gave much clarity towards the examination of rape victims. According to Section-164A of CrPC; “the woman against whom the offense of rape has been committed shall be sent for medical examination; within 24 hours of receiving the complaint; the medical examination shall be conducted with the consent with the consent of the victim or with the consent of a competent person on her behalf”[3].

In the case of Samira Kohli v Dr. Prabha Manchanda and Anr, the Supreme Court has held that the person giving consent for medical examination of the rape victim shall be competent to do so, he shall not be a minor. The consent shall be completely voluntary and should not be forceful. The victim and the person giving consent shall be made well aware of the nature of the treatment to be followed if any risks involved etc. The Supreme Court has also issued certain guidelines that have to be followed:

1. “Rape victim shall be examined by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner, by the Government or a local authority and in the absence of such a practitioner, by any other registered medical practitioner;
2. The medical examiner, to whom the woman is sent, shall examine without any delay and shall prepare a report containing the following information:
3. Consent of the woman or the person competent to give consent on her behalf
4. Exact time of commencement and completion of the examination
5. Name and address of the woman and the person who brought her
6. Age of the woman
7. The description of material taken from the person of the woman for DNA profiling
8. Marks of injury
9. Mental condition of the woman
10. Any other information/detail required
11. Consent is required for further procedure of examination. If the consent is not obtained, the examination shall not be deemed to be lawful”[4].

In addition to the procedure mentioned in amended Section-164A, after the Nirbhaya case, guidelines have been given by the Ministry of Health and Family Welfare in 2014[5]:

1. “Basic details and Consent: The Medical Practitioner must record the name, age, address, sex, and relationship of the person who got the victim to the hospital. It is also necessary to obtain the consent of the victim to carry out a medical examination. However, before obtaining the consent of the victim; she shall be informed about the nature of the examination or; the person giving consent shall be informed. When there is any life-threatening case then the doctor may proceed according to section-92 of IPC, 1860; without obtaining the consent of the victim.
2.  Identification marks: Identification marks (any two) found on the body of the victim shall be recorded by the medical practitioner.
3. Menstrual cycle and Vaccination History: Menstrual Cycle as well as Vaccination history of the victim is to be recorded by the doctor. If the victim is undergoing menstruation at the time of examination then a second examination. It is to be conducted on a later date for clarity of injuries found on the body of the victim.
4. History of incidence: Medical Practitioner has to record the history of the incident taken place as told by the victim. It will be later used as a form of evidence to the incident. If any other person narrates the incident other than the victim then his/her details shall be recorded.
5. Physical examination: Physical examination of the victim’s body includes, pulse rate, blood pressure, temperature, pupil, and stain or semen mark on the clothes.
6. Examination of injuries: Bodily injuries if any found the body of the victim such as braises, fractures, nail abrasions, teeth or bite marks, cuts, boils, lesions, weapon infection etc shall be recorded by the medical practitioner.
7. Examination of genital parts and orifices: External genital area and Perineum is observed for evidence of injury, seminal stains, stray pubic hair etc. A sample of pubic hair and matted pubic hair is to be examined. The examination of the vagina is done with the help of sterile speculum. It is lubricated with warm saline/sterile water to check the internal bleeding, bruises, or any other injuries. Such an examination is not required in case of a minor; where there are no signs of penetration or visible injuries. If at all the examination is required, it shall be done under the effect of anesthesia.
8. Two-Finger Test: Per vaginum examination must not be conducted for establishing rape/sexual violence. The size of the vaginal introitus has no bearing on a case of sexual violence. The guideline was given after the Supreme court’s judgment; which held that the test is a violation of a woman’s right to privacy. The two finger test, is a way to determine whether the hymen of the woman is intact or not. It is based on the assumption that hymen can rupture only when a female undergoes sexual intercourse. The method is unscientific, against human rights and has no bearing on determination of commision of rape. Any injury, swelling, bleeding, discharge or stain near anus, anal opening and oral cavity should be examined and recorded.
9. Collecting samples: if requested by police, radiographs of wrist, elbow, shoulders, dental examination etc. They are be advised to be collected for age estimation.
10. Urine sample: Collected to determine the pregnancy of the victim.
11. Blood test: blood sample is collected for evidence of baseline HIV status, VDRL and HbsAg.
12. Post examination: After examination, medical practitioner should document the report, formulate opinion and sign the report. A copy of report must be given to the survivor, as it is her right to know about the information.
13. All the evidences collected during the examination, like clothes of the woman, swabs from vagina, anal opening etc, pubic hair sample, foreign material, nail scrapings, swab sticks along with the report must be placed in an envelope and handed over to the police or judicial magistrate”[6].

Conclusion

Technology helps in restoring the evidences and does not damage anything which would happen if done manually. However, examination of victim is the key evidence of every case. Hence it is the right of every victim to be examined by a registered medical practitioner as well as the duty of doctor to do so.

References:

[1] Section-375 of Indian Penal Code, 1860

[2] Appeal (crl.) 1911 of 1996

[3] Section-164A, Criminal Procedure code 1973

[4] Samira Kohli v Dr. Prabha Manchanda and Anr. 16^th January 2008

[5] WHO | Guidelines for medico-legal care for victims of sexual violence, , WHO , https://www.who.int/violence_injury_prevention/publications/violence/med_leg_guidelines/en/ (last visited May 16, 2020).

[6] Ibid No. 4