IMPORTANCE OF EXAMINATION OF RAPE VICTIM IN CRIMINAL TRIALS Ambuja Srivastava Legal Article Sun, Aug 02, 2020, at ,11:40 PM The offence of rape is a major problem in India as is evident from statistics and reports. More than often the accused is not convicted and goes free either because the crime is not reported or because of collection of evidence is done poorly. Rape is considered as the most heinous crime against a person’s sexuality and modesty which is generally defined as the oral, anal or the vaginal penetration that involves force or threat against a person’s will or consent or if the person is incapacitated by way of intoxication or some form of cognitive or physical disability. Such penetration, whether done after seeking the consent of the victims or now, who are younger than the legal age to give consent is considered statutory rape. Rape is defined under section 375 of the Indian Penal Code and states that a man is said to have committed rape when he penetrates or manipulates any part of a woman’s body to penetrate his penis or any other object or a body part into the vagina, anus or urethra of a woman or makes her to do so with him or any other person. He is said to have committed rape even when he applies his mouth to the vagina, anus or the urethra of a woman or makes her to do so to him or any other person under the following seven circumstances: Against the woman’s will Against her consent With her consent but such consent is obtained by threatening her or one of her family members or loved ones with fear of hurt or death With her consent when she believes him to be her lawfully wedded husband but the man knows he is not her husband With her consent, when she is unable to understand the gravity of the act or the consequences of the act to which she is consenting either by reason of unsoundness of mind or under the influence of intoxication which may be administered to her by himself or any other person With or without her consent, when she is under the age of eighteen years When she is unable to communicate her consent Section 375 does not include the possibility of the offence of rape being committed against a transgender, male or in case of marital rape. Sexual offences against a male is dealt with under section 377 of the IPC which deals with unnatural offences. The medical examination of rape victims and presumed sexual assault victims is of crucial importance in the investigation and the trial of criminal cases involving the charges of sexual assault or rape. Therefore the documentation of forensic examination of rape victims must be conducted carefully. The decision of the prosecution is likely to depend on the medical examination of the victim. An in-depth medical examination must include a search for wounds or marks of strangulation or brute force. Routine testing should be done which includes pregnancy tests, serologic tests for HIV, hepatitis and syphilis. These routine tests are important as the victims of rape may show symptoms of pregnancy, sexually transmitted diseases, genital or extragenital injuries or even psychological symptoms. If these routine tests are done within a few hours of rape then they may indicate infections present before the rape and not those that developed afterwards. Preservation of body swabs and fluid in a correct manner is extremely essential since the new genetic/DNA fingerprinting techniques can easily accomplish the identification of the offender. Tests should also be done for alcohol or drug abuse as evidence of intoxication holds importance in rape cases and might be used to discredit the patient in some cases. The benefits of medical examination of rape victims in criminal trials include the increased likelihood of identification of the offender. The reports of the medical examination are treated as evidence and is crucial in holding the perpetrator accountable for the rape of the victim. In the case of Bodhisattwa Gautam v. Subhra Chakraborty and the case of Francis Coralie v. Union of Territory of Delhi, Supreme court held that article 21 of the Indian constitution is not only limited to the mere existence of the human body but also to the right to live with dignity and the right to privacy one’s own body. Rape not only violates one’s right of the physical body and the right of a person’s autonomy over the body but also her dignity and mental stability hence, it is a crime against basic human rights. How a rape victim is treated is very important, the police and the doctors or medical practitioner need to be gentle and careful while interacting with rape victims. Section 164A of the Criminal Procedure Code states the procedure for medical examination of rape victims. It states that the rape victim must be sent for the medical examination within 24 hours of the reporting of the crime and the medical examination is to be done only after gaining her consent or the consent of a competent person on her behalf. In the case of Samira Kohli v. Dr Prabha Manchanda and Another, the Supreme Court held that the person giving consent on the victim’s behalf must be competent to do so and the consent thus obtained must be voluntary after receiving all the information related to the treatment and the risks. The CrPC and the guidelines provided by the Ministry of Health and Family Welfare for medico-legal care for the victims of rape and sexual violence give a detailed description of how the medical examination is to be conducted and how the proper documentation of medical evidence thus obtained must be done. After the infamous case of Nirbhaya in 2014, the ministry of health and family welfare designed a set of guidelines as a supplement to the provisions of CrPC dealing with the medical examination of the victims of rape. These guidelines include: Basic information and details of the victim, such as name, address, age, sex, name and relationship with the person who brought her, etc., should be obtained and prior consent of the victim is necessary before conducting the examination. Only in life-threatening case, the doctors may proceed with the medical examination of the victim as stated under section 92 of the CrPC. At least two identification marks of the victim should be recorded. The account of the incident should be recorded in the words of the victim if possible in the presence of a magistrate as it holds crucial evidentiary value. General physical examination of the victim should be conducted thoroughly and vaccination and menstrual cycle history should be noted as it is important in defining the extent of injuries sustained by the victim. Any injuries sustained by the victim are to be examined and the examination of genital body parts and orifices should be done with utmost care and precision. The collection of body fluids and swabs must be collected diligently and any injury, stain, discharge, swelling or bleeding near the anus, anal opening or the oral cavity should be examined properly and recorded. If the police requests for radiographs of shoulders, wrists, elbows or dental examination for the estimation of age of the victim, then it must be provided by the medical examiner. The two-finger test or also known as per vaginum examination is a test which is conducted to determine whether the hymen of a woman is intact or not, as it is assumed that as a result of sexual intercourse, the hymen ruptures. In the case of Lillu @ Rajesh & Anr vs State Of Haryana, the Supreme Court held that the two-finger test is unscientific and it violates the victim’s right to privacy and the right to physical, mental integrity and dignity. It also held that this method has no bearing on determining the commission of rape. After the Nirbhaya case, the Ministry condemned the per vaginum examination and said that it should not be performed. After the medical examination of the victim is concluded, the medical practitioner must document the report of the examination, formulate his opinion and sign the report. A copy of the report should be provided to the victim as it is her right to have the information regarding her medical examination. All the primary evidence collected during the examination such as, the clothes of the victim, swabs from vaginal or anal opening etc, foreign material, nail scrapings, pubic hair sample, swab sticks, etc. must be safely placed in an envelope and handed over to the investigating officer who in turn must hand it over to the magistrate, along with the examination report. Medical examinations of the rape or sexual assault victims are necessary as it facilitates the criminal trial by providing crucial evidence in relation to the crime committed. It holds significant importance in determining the offender of the crime or even the acquittal of the accused. Medical examination of rape victims holds critical evidentiary value in the case.