Medical evidence as an expert evidence in certain offence against women

Author- Nishtha Kheria, Amity University, Noida.

Abstract

Due to the increase in crowds naturally, there is a decline in cultural preferences and acceleration in crimes. Crime against women is on the increase, particularly sexual crimes. Though crime is prevailing in every nation and community, most of them either go undetected or unreported. Forensic medicine acts a significant role in assisting to check, early discovery, giving expert medicolegal and scientific records at earliest, which will appear in immediate trial and instantaneous administration of trial to victims. Due to a lack of legal or medicolegal and scientific information and awareness among 'victims, reviewing firms, medical and paramedical personnel, the outcome is either justice rushed is justice buried’ or justice delayed is justice denied' to the victim.

Keywords: decline, forensic medicine, trial, victims, medico legal

Introduction

India is a developing country, where the women are fairly participant in the advancement of the country as men do. From the very inception till the modern time women make themselves live in every part of the construction, may it be the sports or politics or of science.[1] still, some factors lead to the rudeness of the women. And one of the said components is rape. Rape is one of the monstrous crimes defined in our penal terms.

Consent

no, wherein our criminal law the lawmaker has described the term consent, but in the Indian penal code, it has been determined what is not amounting to the permission. According to section 375(6) when the sexual intercourse has been done with or without permission when the female is below the age of eighteen years, the said act will amount to rape.[2] that implies an act with the permission of the woman would not amount to rape if she is beyond eighteen years of age. But the said permission is not true if, it is taken by fraud as, by impersonation of the husband, or it was received by placing her or any other person in the terror of death, or whentaken from a woman when she is of unsound mind or in the impact of liquor, or when she has not attended the age of eighteen years.[3]

Sources of evidence

Role of the investigator

The charges of the rape are simple to level against the person but hard to prove.[4] but now following the variation in the time, and the variation in the laws, the onus of proof in the rape cases is there on the accused person that he has not performed rape.[5]. The number of rape cases is growing day by day and which will further strengthen as well as the social values has been modified.[6]

In such a monstrous crime like rape, the investigating officer must be more careful and assemble proper evidence orderly and he has to provide proper evidence which confirmed the fact beyond a rational doubt that the victim has been raped by the accused.[7]

The victim

the victim is the most crucial source of evidence in rape cases. The evidence is of three types: -

1. Awareness of the event

2. Medical evidence

3. Evidentiary clues

Awareness of the event

The occurrence is best known either to the victim or to the culprit. As the culprit is involved in not carrying the data the only source left is the victim. This data has to be obtained through rigorous examination

Medical evidence

medical examination of the victim always plays a very vital role in the matter of the rape. As there is ordinarily no eye-witness of the act, and the accused and victim used to say in their concern only, the medical evidence is one of the methods which help to find out the fact. Medical examination of the victim had always been a necessary precondition.[8] and after the alteration in the act, the medical examination of the accused has also graced the necessary prerequisite.[9]

The victim displays relevant medical evidence, which, with time, is wasted. The review of the victim should, hence, be conducted at the earliest.[10] the medical examination of the victim cannot be done without the authorization from the court or the police officer, but the court cannot compel a woman for the medical examination.[11] the approval of the victim is expected for the medical examination and in case of the victim is under the age of eighteen or is of unsound mind the permission of the legal guardian is needed.[12]

Evidentiary evidence: -

• Vaginal discharge and swabs for semen.

• Alien hairs and fibers on the appearance of the victim.

• Exemplar pubic hairs from the victim.

• Semen spots from the body.

• Fingernail scrapping which may carry tissues, hairs, skin, blood from the culprit. The evidence can join the accused, with the victim and therefore with the crime.

• The age of the victim often appropriates great importance.

• All the clothes of the victim covered at the time of the incident.

Physical evidence

1. Vaginal fluid spots, blood spots, semen spots on the penis, on pubic hair, on the space encompassing the male organ and thighs and on clothes. Tricks from the male organ from pubic hair, from the encircling skin, should always be taken

2. Alien hairs- especially in the private parts and combined with pubic hairs. The doctor should accumulate them for additional searches.

3. Fibers from the clothes of the victim. They are often on his clothes.

4. Spots of makeups on the person and clothes

5. The fingernail scrapings may comprise vaginal fluid, skin, fibers, makeups, etc. From the victim

6. Dust, dirt, flora or fauna from the view, particularly in outdoor cases

Medical evidence: - corroborative evidence

the evidence of the girl and her father backed by medical evidence may be perceived to be enough to discover the offense.[13] however, in absenteeism of corroborative medical evidence, which would have been significant guidance, an accused charged with the crime of rape by a married girl, below 16 years, and inhabiting away from her husband, was not condemned.[14] the corroboration which can be traced reasoning by the medical evidence from the inside and outside injuries present on the body of the victim and the accused, seminal spots on the clothes, private parts of the victim joined with the idea of a medical specialist that there is a penetration of penis or any purpose can found the testimony of the victim.[15]when there is inconsistency of some hours between the idea of the doctor and the story of the prosecution about the time of the performance of the rape, the view of the medical officer should not be dismissed on this ground only.[16]

The non-production of a medical report is not lethal, if the other evidence in the case is convincing.[17]in state of MP v. Dayal sahu[18] the supreme court directed that an appellate court shall not be kept the verdicts of guilt based on extraneous factors. Where the evidence of the victim and other witnesses was found credible, the accused shall not get the benefit of the doubt for non-examination of doctor of prosecution.

Authenticity of expert evidence in rape cases: -where prosecutrix had testified that she had suffered injuries on her back during the event. There was an assumption of the doctor investigating her that she said wounds were 4to 5 days old. Held, the view of the doctor about the age of damages could not be regarded as conclusive evidence. As the said view could never be accurate, hence granting of sometimes upward and downward should have been granted. As such prosecution evidence could not be disbelieved simply based on the theory of doctor.[19]

Where the victim was a single girl and accused had supposedly performed rape on her taking hold of her weak position. Evidence of victim was supported by other prosecution witnesses. Judged that sec. 114-a of evidence act could be brought against accused persons. Conviction of accused persons was just, but the sentence was decreased[20]

Thus, the medical and forensic testimony cannot be the single evidence on the roots of which conviction can be made, as it may be probable that the sufferer has been raped which is determined by the medical and forensic evidence

Legal provisions

Under sec.45 of the evidence act, the notion of persons specially experienced in some science, art, foreign law, identification of handwriting, and finger impressions are related. To produce the evidence of an expert, it has to be recorded that he is experienced and has enough understanding of the subject.[21] conclusion of an expert cannot be the substantive evidence as it is an assumption of the third person and can be utilized for the corroboration.[22] it is not convincing.[23] expert opinion is not undoubtedly obligatory on the court.[24] the duty of an expert witness was to provide the judge with the required scientific standards for testing.[25] as such prosecution evidence could not be disbelieved simply based on the opinion of doctor.[26]

Under sec. 114-a of the evidence act, the court assumes that the woman who was the victim of the rape had not allowed and that offense was performed against her will. In several prosecutions for rape under sec. 376(2) (a)-(g) of the ipc, where sexual intercourse is determined and the issue is whether it was without the permission of the woman claimed to have been raped and she declares in her testimony before the court that she did not permit, the court shall assume that she did not consent.[27]

Under sec. 53-a of the code of criminal procedure during the research, the medical examination of a person accused of rape would be non-productive if there are no sensible grounds for considering that such medical examination would yield evidence as to the performance of such offense.[28] tracing of a blood sample for exposure to the offense of rape wherein the research bureau has to build its case past sensible doubt, cannot be termed as violative of art. 20(3) of the constitution.[29]

Under sec. 164-a of the code of criminal procedure, the sufferer of rape is medically reviewed by the registered medical practitioner engaged in a hospital run by the government or a local authority and in the loss of such a practitioner by any other certified medical practitioner.[30] the time deadline of 24 hours has been directed under this sec, for transferring the victim for medical examination.

Judicial trends: journey from past to present: -

In the case of bidhia alias bidhi chand v. State of himachalPradesh,[31] on medical research it was discovered that there were injuries on the breast, the breast was fully formed, various abrasions over the left breast, red in color, outside genitalia were common; hymen was broken with no bleeding and there was no release from the vagina and no incision of the vagina; semen found on the slide of vaginal distortion and according to doctor the term of injuries was six to 24 hours; doctor opined that she was not used to sexual intercourse because vagina allowed two fingers with difficulty and that break of the hymen was due to rape.[32]

In the contemporary case of om Prakash vs. Dil bahar[33], it was believed that even if the medical examination of the victim is not caused due to any of the reason, then also if the sufferer says that she has been raped, without medical examination as well her explanation can be considered as a real and understood that she has been raped.

Conclusion & suggestions

The medical and forensic science testimonies find the ultimate place in the examination of the crime of rape and determining its existence. The age-old means of investigation i.e. Inquiry, expansion of references, and monitoring to detect the crime. The brutal, torturous, and slow-pace examinations have no place in today’s community. It is in these circumstances; medical and forensic science have ascertained their value. After attending research, the researcher has found out the hypothesis to be somewhat accurate. These tools are discovery tools and they cannot be put to use until the crime is recorded and that also within the proper term.

[1]Http://docslide.us/documents/relevancy-of-medical-and- forensic-science-evidence-in-rape-cases.html. [2] section 375(6) of Indian penal code,1860 which was amended by the criminal law amendment act,2013. [3]supra note: 2. [4] k.d.gaur, text book on Indian penal code 1860, universal law publication. [5] k.d. gaur, text book on Indian penal code 1860, universal law publication. [6]ibid. [7]supra note: 1. [8] section 53 of the code of criminal procedure. [9] section 53 a, the code of the criminal procedure. [10]supranote: 1. [11]supra note: 2 [12]ibid. [13] hari ram v. State, air 1960 mp 59. [14] manjali v. Emperor, air 1941 sind 121. [15] shyarna v. State of rajasthan, 1977 raj lw 146 [16] pratap mishra v. State of orissa, air 1977 sc 1307. [17] sheikh zahir v. State of bihar, air 1983 sc 911. [18] (2005) 8 scc 122. [19] shanabhai madhurbhai koli patel v. State of gujarat, 2004 cri lj 268 (guj.). [20] burla Venugopal Krishna v. State of a.p. 2005cri lj 1164 (ap). [21] state of himachal Pradesh v. Jai lal, air 1999 sc 3318. [22] khyall v. State, 1980 alj 230 [23] chandreshwar singh v. Ram chandra singh, air 1973 pat. 215. [24] las society of india v. Fertilisers and chemicals travancore ltd. Air 1994 ker. 308. [25] state of h.p. v. Jai lal, air 1999 sc 3318. [26] shanabhai madhurbhai koli patel v. State of gujarat, 2004 cri lj 268 (guj.). [27] gopal s. Chaturvedi, field’s commentary on law of evidence 4209 (12th ed. Delhi law house 2008). [28] sarkar, the code of criminal procedure, 10th ed., 2012, lexis nexiis butterworths. [29] halappa v. State of karnataka, 2010, crljj 4341 (kant). [30]supra note: 68. [31] 1985(1)crimes 559. [32]ibid. [33] air 2006 sc 743.