-By Muskan Jhunjhunwala
Introduction
Sexual offences, in a general sense, are a rigorous attack on the body, particularly the molestation of genitals without the sufferer’s consent. It tends to outrage the dignity, self-respect and modesty of the victim and in its true sense is an attack on bodily integrity. Rape, in India, is considered a heinous crime as specified in our penal provisions. In India, rape is associated with a sense of shame. Even though the Indian Penal Code penalizes the offence of rape, it does not offer any reprieve from shame, stigma and pain that the victim goes through. Medical and Forensic Science Evidences play an important role in investigating and ascertaining the occurrence of rape. However, these are mere detection tools and can be used only when the crime is reported within the proper duration, which does not happen in a majority of cases relating to sexual offences. Moreover, many times the medical evidences are not properly recorded and documented thereby leading to a poor rate of conviction, especially in cases of rape.
Legal Provision and Procedure
Section 53 of The Code of Criminal Procedure (CrPC) was introduced in the year 2005 to do away with the difficulty in conducting the medical examination. According to this section, the examination should be done by a registered medical practitioner and he/she shall prepare a report after the examination which shall also contain precisely the reasons for arriving at each conclusion. Section 53(2) of CrPC mandates the presence of a female registered medical practitioner when an examination of a female is to be performed. Section 164A of CrPC provides for the medical examination of victim by a registered medical practitioner who is employed in a Hospital run by a local authority or the government or in his/her absence any other medical practitioner who is registered as per Section 2(h) of the Indian Medical Council Act, 1956. The time limit of twenty-four hours is crucial because any delay in sending the victim may defy the purpose for which such investigation was to be done. Medical examination of the victim must be performed with her consent or with the consent of any person who is competent to provide consent on her behalf. In the case Samira Kohli v Dr. Prabha Manchanda and Another, the Apex Court held that the consent has to be given by a competent person and it should be voluntary. The consent should be based on proper or adequate information given by the doctor, like risks involved, nature of the treatment, etc.
Section 45 of The Indian Evidence Act, 1872 provides relevancy to opinion of skilled persons. In Shanabhai Madhurbhai Koli Patel v State of Gujarat, it was held that the evidence rendered by the prosecution could not be disbelieved merely on the basis of the opinion given by doctor as the said opinion might not be exact. Section 114A of The Indian Evidence Act states that presumption with regard to absence of consent in certain rape cases under Section 376(2)(a)(g) of The Indian Penal Code can be made by the Court.
Recent Developments
After the Nirbhaya case, in addition to the procedure laid down in Section 164A, certain protocols and guidelines were issued by the Ministry of Health and Family Welfare in 2014. Guidelines with respect to recording of basic details and consent, identification marks, menstrual and vaccination history, history of incidence, general physical examination, examination of injuries, examination of genital parts and orifices, Two- Finger Test, collecting samples, urine sample, blood test, etc. were laid down. Focus must be placed on the guidelines laid down with respect to the two-finger test.
Two-finger test is also known as per vaginum examination and it tends to ascertain whether or not the hymen of a woman is intact. This method fails to take into consideration that hymen can rupture in ways other than sexual intercourse. In Lillu @ Rajesh & Anr v State of Haryana, it was held by the Supreme Court that the two-finger test breaches a woman’s right to privacy, mental and physical dignity and integrity and is unscientific. The Ministry, in its guidelines, also condemned the test and gave various alternatives. A study was conducted by an NGO named “Partners for law in development” along with United Nations Development Programme, the Department of Justice and Ministry of Law. The report stated that medical examinations of victims were not performed according to the set guidelines and that the victims faced hurdles in lodging an FIR. There are still a number of cases in which the two-finger test is performed despite it being in violation of the fundamental right of the victim.
Under the Union Ministry of Home Affairs, The Directorate of Forensic Science Services (DFSS) has issued certain guidelines regarding the collection, preservation and transportation of forensic science evidences in sexual offences for Medical Officers and Investigation Officers. Sexual Assault Evidence Collection Kits have been issued to every State or Union Territory and the use of these kits have been made mandatory. Training of Trainers (ToT) Programmes are being regularly conducted by the Bureau of Police Research and Development and National Institute of Criminology and Forensic Sciences for preservation, collection and handling of forensic evidences by medical officers and police or prosecutors. If any lapses are noticed, immediate stringent actions are to be taken against the officers responsible for it.
Efficiency of the Techniques being used
The forensic use of DNA was discovered by Sir Alec J. Jeffereys in 1984. It was used for the first time in England in the Enderby case in which two girls were raped and murdered. DNA tests are considered to be highly effective as every individual has unique DNA and it cannot be altered or tampered. As DNA tests are capable of being correct upto 100% if negative and 99% if positive, they can be used as strong evidence. DNA test is provided in Section 53A of CrPC.
The use of forensic sciences in investigation of rape cases was recommended by the Malimath Committee. The committee further suggested addition of DNA experts under Section 293(4) of CrPC, which was added by a subsequent amendment. Further, establishment of more laboratories to handle DNA samples was suggested. Moreover, a uniform statute with respect to handling DNA evidence was also recommended by the committee.
Non-DNA forensic evidence, in cases where there is no availability of DNA evidence or it is not easily available, can be used to identify the accused and associate him or her with the crime scene and corroborate the other evidence. Non-DNA forensic evidence may include glove pattern evidence, shoe prints, etc.
While conducting the forensic examination, it is important that the sexual offence survivor is provided with a gentle and decent environment which provides psychological support. Careful remarks must be made by the doctors, police, counsellors or instructors in front of the victim as it can leave a long-term impact on the victim mentally. These people should bear in mind that their words don’t traumatise the victim, who is already in a bad frame of mind. The victim should be treated with nobility and deference independent of the victim’s race, sexual direction, societal position, religion, way of life, culture, occupation or sex.
Conclusion
A double job is assumed by the health workers when dealing with the survivors of sexual offences. The first role is to provide mental help and the clinical treatment which is needed. The second role is to assist the survivors in the medico-legal procedures by guaranteeing good quality documentation and by gathering evidence. The survivor’s needs should be taken special care of in the wake of rising police brutality. Section 164(A) has laid down the legal obligation of health workers in sexual violence cases. The Criminal Law Amendment Act, 2013 in Section 357C states that both public as well as private health professionals have an obligation to provide treatment to the survivors of sexual offences. If such a treatment is denied to the survivors, it is punishable under Section 166B of the Indian Penal Code with imprisonment which may extend to a term of one year or with fine or with both imprisonment and fine. It is expected that health workers would respond to the survivors’ needs in a comprehensive way.
The relevance of medical and forensic examination in sexual offences cannot be ignored. It is through medical examinations that sometimes the identity of the victim is established. Forensic evidence is a great aid to investigation and there is growing use of the same. It is a well established fact that the accused generally leaves his/her impressions at the crime scene. It is by way of these techniques that these impressions can be converted into substantive pieces of evidence. While we have several guidelines and provisions for the same, their enforcement still remains a challenge as very few states have adopted the guidelines. Today, it is required that we human beings stop seeing others through filters of race, gender, caste, etc. and treat them as individuals with basic human rights.
[The author is a third year student of B.A. LL.B.(Hons.) at National Law University Odisha.]