FORENSIC SCIENCE & LAW: PROJECT REPORT

ARMY INSTITUE OF LAW

MEDICAL EXAMINATION OF RAPE VICTIMS: AN ACCOUNT U/S 164 A Cr.P.C

Submitted in partial fulfilment of requirements for BA. LLB Degree

Submitted To: Submitted By:

Dr. Bajirao A. Rajawade Gaurav Hooda
Astt. Prof. of Law Section-A
Army Institute of Law 1433
 ACKNOWLEDGEMENT

I would like to extend my sincere thanks to my Forensic Science & Law Professor,
Dr. Bajirao A. Rajawade, for allotting me this topic and guiding me through it. Your wisdom
and knowledge helped me immensely in the compilation of my project.

I would also like to thank my fellow batch mates and friends. If it hadn’t been for their criticism,
I would not have been able to improve the various flaws in my project.

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 TABLE OF CONTENTS

S. No Title Page No.

1. Introduction 4

2. Concept of Rape under IPC 4

3. Analysis of Definition of Rape 5

4. Medical Aspects & Rape: An Interplay 6

5. Medical Examination of Victim of Rape: S. 164A 7

6. Guidelines given by Ministry of Health & Family Welfare 8

7. Medical Examination of Prosecutrix 10

8. Delay in Medical Examination 11

9. Medical Examination & its use in Criminal Trials 12

10. Conclusion 12

11. The Way Forward 13

12. Author’s Perspective on Medical Examination 14

13 References 16

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 MEDICAL EXAMINATION OF RAPE VICTIMS: AN ACCOUNT U/S 164 A Cr.P.C

“The power of the harasser, the abuser, the rapist depends above all on the silence of
women.”

~ Ursula K. Le Guin

Introduction

According to National Crime Records Bureau’s Crime report of 2016, total of 38,497 rape
cases were reported in 2016, which means over 105 rapes in one day, i.e., almost four rapes in
one hour, and these are only the number of cases reported, rest remains a scary mystery.

Merriam- Webster’s Dictionary of Law defines rape as, “unlawful sexual activity and usually
sexual intercourse carried out forcibly or under threat of injury against the will usually of a
female or with a person who is beneath a certain age or incapable of valid consent because of
mental illness, mental deficiency, intoxication, unconsciousness, or deception.” 1

Concept of Rape under the Indian Penal Code, 1860

Rape is the most heinous violence against an individual’s sexuality. It is an act which violates
the autonomy over one’s body, it infringes the very private sphere over which an individual
has absolute control. Section 375 of Indian Penal Code defines rape rather narrowly. It says,

“A man is said to commit “Rape”2 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

1
https://blog.ipleaders.in/medical-examination-of-rape-victim/
2
Section 375, Indian Penal Code, 1860.

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 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 to do so with him or
any other person; or

4. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with
him or any other person, under the circumstances falling under any of the following
seven descriptions:—

o Against her will

o Without her consent.

o 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.

o 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.

o 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.

o With or without her consent, when she is under eighteen years of age.

o When she is unable to communicate consent.”

Analysis of the definition of Rape

1. Trans gender’s not included

Section 375 eliminates the possibility of the offence of rape being committed against a male,
transgender and marital rape. Sexual violence against a male shall not be constituted as an
offence of rape, but would come under the purview of unnatural offences, Section 377.
In National Legal Services Authority v. Union of India3, Supreme Court identified
transgender as the third gender and they are also entitled to the fundamental rights provided in
the Constitution. But the irony is that on one hand where Constitution is accepting them, on the

3
Writ Petition (Civil) No.604 of 2013.

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other hand other laws like IPC are gender specific to man and woman, and failed to consider
other classes of the society.

2. The issue of Marital Rape

The underlying notion of not treating marital rape as rape is that after marriage, wife is a
property of husband, and he is “entitled” to have access to her body. But an act cannot be
disqualified as “not rape” just because it happens with a woman carrying the tag of marriage.
It is equally heinous and grave. Rape is not just a violent act against woman but it also violates
the fundamental right of life and personal liberty and no relation between the victim and the
wrongdoer could justify these violations.

The definition given under Indian Penal Code, 1860 is indeed narrow, archaic and strongly
reflects patriarchal roots.

Medical Aspects & Rape: An Interplay

In every criminal offence, Medical Legal Report (MLR), Post Mortem Report (PMR) plays a
main role:

 In the case of injury through MLR and

 In death case through PMR of the victim who suffered the consequences.

When the victim of Rape complains about the offence to the Police, the doctor will be requested
by police to examine the alleged victim and also the accused. Such a request is officially
requested along with a written requisition produced by the police, which gives all the details
of the alleged victim and the prosecution version.

Prior to Supreme court’s judgement in 2000, the procedure for medical examination of rape
victims was very lax. Doctors would proceed with the examination, only after the request of
the police. Due to this, it became necessary for rape victims to file an FIR for getting a medical
treatment. This attitude towards the rape victims was very unjust and unfair, because the
doctors forgets about the intensity and heinousness of the offence and the human aspect, and
only focuses upon the procedural aspect.

In the case of State of Karnataka v. Manjanna4, it was held that medical examination of rape
victims is a “medicolegal emergency.” It is the right of every victim and a duty of every hospital

4
AIR 2000 SC 2231.

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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.

Prior to the insertion of Section 164A by 2005 amendment in Cr.P.C., the position of the
procedure was unclear. The questions like- whether a male or a female doctor should examine?
To what extent the examination is to be done?, kept on lingering.

Section 164-A: Medical Examination of Victim of Rape

The provision runs as under

(1) Where, during the stage when an offence of committing rape or attempt to commit
rape is under investigation, it is proposed to get:

 the person of the woman with whom rape is alleged or attempted to have been
committed or attempted, examined by a medical expert,
 such examination shall be conducted by a registered medical practitioner
employed in a hospital run by the Government or a local authority and
 in the absence of a such a practitioner, by any other registered medical
practitioner, with the consent of such woman or of a person competent to give
such consent on her behalf and
 such woman shall be sent to such registered medical practitioner within twenty-
four hours from the time of receiving the information relating to the commission
of such offence.

(2) The registered medical practitioner, to whom such woman is sent shall, without
delay, examine her and prepare a report of his examination giving the following
particulars, namely:-

 the name and address of the woman and of the person by whom she was
brought;
 the age of the woman;
 the description of material taken from the person of the woman for DNA
profiling;
 marks of injury, if any, on the person of the woman;
 general mental condition of the woman; and

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  other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The report shall specifically record that the consent of the woman or of the person
competent to give such consent on her behalf to such examination had been obtained.

(5) The exact time of commencement and completion of the examination shall also be
noted in the report.

(6) The registered medical practitioner shall, without delay forward the report to the
investigation officer who shall forward it to the Magistrate referred to in section 173 as
part of the documents referred to in clause (a) of sub-section (5) of that section.

(7) Nothing in this section shall be construed as rendering lawful any examination
without the consent of the woman or of any person competent to give such consent on
her behalf.

Explanation. – For the purposes of this section, “examination” and “registered medical
practitioner” shall have the same meanings as in section 53’.

In Samira Kohli v. Dr. Prabha Manchanda and Another5, Supreme Court held that the person
giving the consent must be competent to give consent and it must be voluntary and based on
adequate information provided by the doctor, like nature of the treatment, all the risks involved
etc.

Guidelines and Protocols Issued by the Ministry of Health and Family Welfare for medico
Legal care for the victims of sexual violence

To supplement the procedure laid down under Section 164A, after the Nirbhaya case, Ministry
of Health and Family Welfare in 2014 gave certain guidelines and protocols for medico legal
care for the victims of sexual violence:

1. Basic details and Consent: Medical examiner shall record the name, age, address, sex,
name and relationship of the person who brought the rape victim/ survivor and the
consent of the victim

5
Appeal (civil) 1949 of 2004.

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2. Before taking the consent of the victim, victim shall be informed of the nature of
medical examination. Only in life threatening cases, the doctor may proceed with the
examination without the consent as given in Section 92, IPC.

3. Identification marks: Two marks of identification should also be recorded, for

example moles, scars or any other mark.

4. Menstrual and vaccination history is to be recorded, and if the victim is menstruating

at the time of the examination then a second examination is required on a later date in
order to record the injuries clearly.

5. History of incidence: Medical examiner shall record the history of the incidence in
survivor’s own words, which shall have evidentiary value in court of law. If the history
is narrated by a person other than the survivor, his/her name shall be noted.

6. Details of the clothing, medical and surgical history should be recorded.

7. General Physical examination: Response to doctor’s questions, space and time

awareness, pulse rate, blood pressure, temperature, pupil and stain or semen mark on
the clothes of the victim should be examined and recorded.

8. Examination of injuries: the entire body surface should be examined for any injuries,
fractures, nail abrasions, teeth bite marks, cuts, boils, lesions, any discharge, weapon
infection or stain on the body and shall be recorded with particular details of these
injuries.

9. Examination of genital parts and orifices: External genital area and Perineum is
observed for evidence of injury, seminal stains, stray pubic hair, foreign material,
sample of pubic hair, and matted pubic hair is taken and preserved.

10. Examination of vagina is done with the help of sterile speculum lubricated with warm
saline/ sterile water to check the internal bleeding, bruises or any injuries. Such
examination is not required in cases of 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
anaesthesia.

11. Two- Finger Test: Per vaginum examination must not be conducted for establishing
rape/sexual violence and the size of the vaginal introitus has no bearing on a case of
sexual violence.

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 The guideline was given after the Supreme court’s judgement 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 commission
of the offence of rape. (Lillu @ Rajesh & Anr v. State Of Haryana)6

12. Any injury, swelling, bleeding, discharge or stain near anus, anal opening and oral
cavity should be examined and recorded.

13. Collecting samples: if requested by police, radiographs of wrist, elbow, shoulders,

dental examination etc. are advised to be collected for age estimation.

14. Urine sample: to determine the pregnancy of the female victim.

15. Blood test: blood sample is collected for evidence of baseline HIV status, VDRL and
HbsAg.

16. 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.

17. 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.

Medical Examination of the Prosecutrix and their Consequences

Medical examination of the prosecutrix as well as accused of Rape is the most important
supportive evidence that decides the clear picture of the offence. On the accused person, the
presence of scratches on any part of the body, on face, hands, neck, scratches around shoulder
flanks or hips, indicates where the prosecutrix might have attempted to injure him.

Notes on spots of blood or seminal stains found on the clothes, hairs, muds, buttons, clips or
any foreign presence which might lead to the ‘indication of struggle’ between the victim and
the accused must be preserved.

6
Criminal Appeal No. 1226 of 2011.

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Where there is scratches on the accused with finger nails of the victims, the nail scrapings and
pieces from the victim must be kept and sent for chemical analysis for matching the blood
group of the accused.

In Vellingiri Case7 Madras High Court observed that evidence of victim was found to be cogent
and reliable, inspiring confidence of court giving graphic narration of sexual violence
committed on her. Medical evidence that number of abrasions were found on different parts of
body of victim corroborated ocular evidence of victim. Considering age of victim and tradition
found non-permissive society she belonged to, minor contradiction present in evidence of other
witness did not affect the prosecution’s case.

Delay in Medical Examination and its Effect:

In rape cases delay of medical examination is due to many reasons namely:

 Absence of senior member of the family, or male person,

 Permutation & honor of the family,
 Illiteracy, backwardness, etc.
 Threatened by the accused or in cases where the accused is the near relative or care
taker of the victim, victim may be in traumatic state of mind, due to which the delay is
caused.

The main purpose of medical examination of the rape victim and its significance depends upon
case to case, the basic fact of the law is to provide the version of the victim and their harassment
with the signs and other things corroborated by the medical expert.

In Farukh’s Case,8 the medical examination of the prosecutrix was conducted after 3 days of
the rape incident. No semen was found in the swab or clothes of the prosecutrix. It was held
that delay in medical examination is not to disbelieve the prosecution story because prosecutrix
was examined 3 days after incident moreover, some weakness of prosecutrix not sufficient to
acquit accused when statement of prosecutrix did not suffer from any basic infirmity.

In State of Maharastra v. Suresh Nivrutti Bhusare & Others9, it was held that if there is delay
in medical examination of 2.5 days between the time of incident and medical examination of
prosecutrix, during these period traces of rape were bound to have been disappeared.

7
Vellingiri v. State, 2004 Cri. L.J. 738 (Madras).
8
Farukh v. State of Haryana, 2005 (2) RCR (Criminal) 211 (P&H).
9
1997 (2) Crimes 257.

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Medical Evidence and its use in Trial of Cases:

In every case of rape, when medical evidence is corroborated by the victim of the rape in
criminal trial then there is less chances to give benefit of doubt to the accused. If it does
corroborate with victim’s testimony, then the benefit of doubt goes to accused.

It proves that the injuries could have been caused in the sexual part of the body or other parts
and also death could have been caused by the injuries, so that the prosecution case being
consistent with matters verifiable by medical science, there is no reason why the eyewitnesses
should not be believed.

It was held in a case10 that the medical evidence on both sides is equally balanced; benefit of
doubt must be given to the accused. In such a case the supreme court refused to interfere with
the order of acquittal recorded by the high court and if there is deficiency in evidence, then the
court can come to its own conclusion11.

It was repeatedly held by supreme court in many cases that whenever it is intended to pace
reliance on a particular view taken by medical experts and their jurisprudence the said view
must be put to the doctor to assess how far the view taken by the experts apply to the facts of
the particular case.12

In a nutshell, the medical evidence gathered by the timely examination of the Rape Victim:

 Helps in understanding the account of the victim qua the incident.

 It helps in timely conviction of the accused.
 Helps to corroborate the oral testimony of the accused.
 Disqualifies the accused from obtaining the benefit of Doubt.
 Helps in ascertaining whether the ingredients of S.375 which constitutes the offence of
rape been met or not.

Conclusion

Today, we are living in the 21st century, but still we are being pulled back by the harsh
patriarchal & orthodox norms. Narrow provisions similar to weak roads, if not changed with

10
State v. Gulzari Lal, AIR 1979 SC 1382.
11
Brij Bhukhan v. State of U.P, AIR 1957 SC 474.
12
Bhagwandas v. State of Rajasthan, AIR 1957 SC 589.

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time will make us fall in the pit of patriarchy. At places, where guidelines and provisions are
strong, their enforcement is poor.

After the case of Nirbhaya, Ministry of Health and Family Welfare in 2014 gave certain
guidelines and protocols for medico legal care for the victims of sexual violence, but very few
states like Madhya Pradesh adopted them, and it is no wonder that even in those the condition
is still vulnerable.

Today, it is required that we must stop seeing people through various filters of gender, race,
caste etc. and treat them as a Human Being, as an individual, who has basic human rights and
need like any other person.

The Way Forward

It is pertinent to note that the Medical Examination of rape victims is not conducted in
consonance with guidelines set by the Health Ministry, a study has claimed while calling for
proper training of personnel for carrying out such exams.

The study was conducted by an NGO 'Partners for Law in Development' with support from
the Department of Justice, Ministry of Law and Justice and UNDP (United Nations
Development Programme).

Various lacuna’s were found, despite having clear cut guidelines, which has prompted the need
for efficient & strict enforcement of these rules and regulations. Some of them are as follows:

1. The study also found that some victims experienced obstacles and harassment from the
police in registering FIRs.
"A copy of the FIR is not immediately available, but is dispatched later to the victims.
Often, victims have to keep following up to obtain a copy," said the report.
2. The report also said that medical examinations were not carried out within the
guidelines set by the Ministry of Health and Family Welfare (MoHFW).
3. Consent is not formally taken and signatures and thumb impressions are often taken at
a later stage, it reported.
4. It recommended that only those garments that were connected with the crime scene
must be taken for the purposes of forensic examination.
5. The report also stressed on the need for victim-witness protection from the accused and
their relatives.

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 It said that there is a need for victim-witness protection outside court premises, where
the accused and their relatives continue to have access to the victim, and within the
court precincts in waiting areas.
6. The concept of day-to-day proceedings should be conducted. Courts can consider
blocking consecutive dates at once so as to proceed swiftly with a case.
7. Delays in receipt of Forensic Science Laboratory Reports, which overwhelms the ever-
existing case load.

It is to be noted with extreme caution that having laws and regulations alone, won’t help up
combat the problem of sexual abuse in our society. We live in a world, where Human Beings,
on account of being triggered by certain sexual impulses, loose control over their own body
and indulge in such heinous crimes.

That is where the education & upbringing of the individual comes into question. Moreover, lax
implementation of said guidelines have defeated the very purpose for which they were brought
into force.

The Author’s perspective on Medical Examination of the Accused

In my opinion, in order to make the provision of S. 164A more effective and worthy:

 An independent body should be constituted so as to oversee the procedures involved in

medical examination of the victim and their violation, if any.
 The doctor(s) conducting such medical examination on account of any proved
allegation of violation of the guidelines & rules, should be sent to life imprisonment; as
this would create a deterrent for the remaining medical fraternity as well as for the
society to treat such offences with much seriousness.
 The accused should be mandatorily examined, without his consent, if it can be
reasonably established that he had committed such a heinous offence. If he is innocent,
he won’t mind the forced medical examination.
 The Medical Reports should be kept in complete secrecy under CCTV Surveillance so
as to avoid any tampering on account of officials being bribed.
 Burden of Proof should be on the accused to prove that he had not committed such an
offence.
 A female doctor should be present at all times, with the victim during the course of such
medical examination.

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  The set of doctors conducting such medical examination should not be in any way
known to the accused or the victim in order to eliminate any biasness which would
hinder the course of justice.

In a country like India, laws on paper in black and blue look very attractive and gives us an
account of a very civilised society, but when it comes to the implementation of the same, things
go south. If implementation part of these rules can be improved, there will be a significant
development in crime reduction.

People should rise above the petty politics of greed for money and power, and try to live as
civilised human beings.

“As a girl, she was a legal prey, especially if she was dressed in a worn black leather jacket
and had pierced eyebrows, tattoos, and zero social status.”

~ Stieg Larsson

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 BIBLIOGRAPHY

List of Cases:

1. Bhagwandas v. State of Rajasthan

2. Brij Bhukhan v. State of U.P.

3. Farukh v. State of Haryana

4. Lillu @ Rajesh & Anr v. State Of Haryana

5. National Legal Services Authority v. Union of India

6. Samira Kohli v. Dr. Prabha Manchanda and Another

7. State of Karnataka v. Manjanna

8. State of Maharastra v. Suresh Nivrutti Bhusare & Others

9. State v. Gulzari Lal

10. Vellingiri v. State

List of Website(s):

1. https://blog.ipleaders.in/medical-examination-of-rape-victim/

2. http://pldindia.org/wp-content/uploads/2013/04/Manual-for-medical-examination-of-

Sexual-Assault-CEHAT.pdf

3. http://shodhganga.inflibnet.ac.in/bitstream/10603/132582/11/11_chapter%203.pdf

4. https://economictimes.indiatimes.com/news/politics-and-nation/norms-not-followed-

in-medical-examination-of-rape-victims/articleshow/60335143.cms

Statues Referred:

1. The Indian Penal Code, 1860

2. The Code of Criminal Procedure, 1973

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