Srija Choudhury
After the infamous Delhi rape case of 16th December 2012, the stand of the
judiciary on rape cases has changed dramatically. The 2013 amendment in rape
laws has also come into effect which has broadened the scope of rape laws in
India. Medical examination of the rape victim is conducted under Section 164 A of
the Criminal Procedure Code.
Supreme Court of India has also given out guidelines which ban the two finger test
on rape victims. These guidelines were given out in the case of Dilip v/s State of
Madhya Pradesh (Criminal Appeal no. 1156 of 2010). The above mentioned
guidelines were announced by the Union Health Ministry. The Department of
Health Research (DHR) and Indian Council of Medical Research with the help of
experts formulated these national guidelines (“The Forensic Medical Care for
Victims of Sexual Assault – DHR guidelines”) to deal with criminal assault
cases. It has given all the measures necessary to examine a rape victim, irrespective
of her being a virgin or otherwise (sexually active or married). These guidelines
are based on forensic examinations and reports from taking vaginal swabs and
checking clothes and fingernails of the victim to test for DNA, blood samples,
semen/sperm samples and lubricants as well as carrying out alcohol tests on the
victim etc. The Indian Development of Health Research has also drafted guidelines
on psycho-social impact of sexual violence including victim counseling.
The broken hymen test is unnecessary and invasive, since a woman does not need
to be a virgin to be raped. In the case of Ladka Pola v/s State of Delhi (Criminal
appeal no. 133 of 2006), the findings of the court were upheld, holding the
appellant guilty of offence under Sec 376 of the Indian Penal Code when the
hymen of the victim was found intact. Modi in medical jurisprudence and
toxicology (21st edition) also states that, to constitute the offence of rape, it is not
necessary that there should be complete penetration of the penis with emission of
semen and rupture of hymen. Partial penetration of penis or ‘any other item’ within
labia major or vulva would be sufficient to constitute the offence of rape.
In this regard, it can be inferred that whether the hymen is intact or broken is not
the concern for deciding the rape of the victim.
Circumstantial evidence (i.e. the evidence surrounding the scene of a crime) holds
a lot of importance in rape cases.
As per the Indian Evidence Act, 1872, the circumstances which link to the fact in
issue are relevant to the case as it is part of the same transaction.
Circumstantial evidence makes it more difficult to fabricate the crime executed by
the accused.
Circumstantial evidence can also be taken as the sole basis of conviction.
In the case of Bodh Raj v/s State (criminal appeal 921 of 2000), the essentials of
using circumstantial evidence of the purpose of conviction were given out.
The essentials are as follows:-
1. Circumstances from which guilt is established must be fully proved.
2. That all the facts must be consistent with the hypothesis of the guilt of the
accused.
3. That the circumstances must be of conclusive nature and tendency.
4. That the circumstances should, to a moral certainty, actually exclude every
hypothesis expect the one proposed to be proved.
Humiliation of the rape victims is more or less similar in all the countries.
National Policing Improvement Agency has published “guidelines on
investigating and prosecuting rape, 2010” in United Kingdom for dealing with
the medication examination of the rape victims. The Crown Prosecution Services
has also given out guidelines for medical examination of rape victims which is
more or less similar to the India’s DHR guidelines.
Use of colposcope is upheld by Appellate Court of California in the case of
Mendibles v/s Superior Court (1984). Colposcopy helps the examiner to identify
and photograph genital injury not readily visible to the naked eye, thereby
clarifying the location and extent of injury as well as providing evidence for court
proceedings. Colposcopic examination is not prevalent in India.
Rape can occur in multitude of circumstances, including in the most difficult to differentiate like a newly married woman indulging in daily sexual intercourse with her husband getting raped while returning intoxicated from an party. The two finger test, colposcope etc all will fail to establish the possibility of rape.
Here the circumstances, testimony of accused and victim and facts/events preceeding/following the incident are all relevant to establish the veracity of testimony of the victim. At the end, what must infer is this "No Prudent man could come to any other conclusion other than rape has occured !" i.e. the likelihood rape occured must have been far more acceptable than likelihood rape did not occur.
