Comment

Victim’s account may be more conclusive than medical finding

A woman holds a placard as she participates in a protest against rape. File   | Photo Credit: AP

The alleged gang rape of a woman in Hathras, Uttar Pradesh, in September brought forth an important issue concerning the relevance of forensic evidence of the victim of rape, i.e., about the signs of recent sexual intercourse and struggle. This acquired more attention after a senior police officer of U.P. stated that the forensic science laboratory report did not confirm the allegation of rape. Since the Hathras case is still under investigation, instead of commenting on it, I will explain the general medico-legal status and the various judgments of the Supreme Court in this regard.

It is surprising that doctors conducting medical examinations on victims still use the word ‘rape’ in their conclusions. They forget that rape is an offence and not a medical diagnosis to be made by them. The issue of whether someone has been raped or not is a legal conclusion; it is to be made by an investigating officer on a complaint by the victim. The medical officer can only state whether there is evidence of recent sexual activity and injuries in and around the private parts of the victim or bite marks noticed in any part of the body.

Also read | Sole evidence of sexual offence victim is enough for conviction: Supreme Court

Collecting evidence

The presence of semen is always a material piece of evidence, but by no means conclusive. Semen, a human body fluid, is a suspension of a single type of cell known as spermatozoa. The nucleus of the sperm head contains deoxyribonucleoproteins which is used to establish the identity of the accused. The spermatozoa can be identified only for 72 hours after sexual assault and the likelihood of its presence after that is greatly reduced. Therefore, it is generally advisable to collect evidence up to 96 hours in case the victim is unsure of the number of hours that have elapsed since the assault. However, in such cases, swabs can still be collected for identifying semen. Evidence on the outside of the body and on material such as clothing can be collected even after 96 hours.

The courts have carefully examined the value of victim statements qua forensic evidence. In Tuka Ram v. State of Maharashtra (1978), also known as the ‘Mathura case’, the accused policemen were acquitted as the victim bore no traces of violence. But in later cases, absence of live or dead spermatozoa during vaginal examination was held to be irrelevant by the Supreme Court. It is established now that injury is not a sine qua non for deciding whether rape has been committed. In State of Punjab v. Gurmit Singh (1996), the court laid down that the victim’s ipse dixit is sufficient to record a conviction and no corroboration is necessary.

Hathras gang rape | Autopsy shows strangulation, fracture

Change in rape law

There was no change in the rape law from 1860 to 1983. The first major change came about after the apex court decision in the ‘Mathura case’ and the burden of proof was shifted to the accused. The Criminal Procedure Code was amended to incorporate medical examination of the victim within 24 hours of receiving information relating to commission of rape. The definition of rape was enlarged after the ‘Nirbhaya’ case in 2012. The expression ‘sexual intercourse’ has been removed from the definition for a shift in emphasis that it is not necessarily a union of sexual organs that could give rise to proof of rape. There is no need to find out whether or not the woman is habituated to sex. It is irrelevant and inappropriate to record such findings.

Watch | How Indian Laws on Sexual Crimes Have Evolved?
 

It is well settled that the testimony of a victim in sexual assault cases is vital and unless there are compelling reasons which necessitate corroboration, the courts should find no difficulty to convict the accused solely on the testimony of the victim. If the evidence is reliable, conviction can be based on the sole testimony of the prosecutrix. The forensic evidence is at the most corroborative evidence; not conclusive. Moreover, the forensic details need not be disclosed to the public when the matter is still under investigation. It may hurt the victim’s fundamental right to privacy.

R.K.Vij is a senior IPS officer in Chhattisgarh

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Printable version | Nov 25, 2020 6:14:08 AM | https://www.thehindu.com/opinion/op-ed/victims-account-may-be-more-conclusive-than-medical-finding/article32965786.ece

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