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With the advent of different techniques in the criminal justice system, the medical examination has become an intrinsic part of the investigation if the circumstance demands so. The medical examination concept has evolved all over the world considering the importance of the evidence collected after the examination of the accused or victim. The medical examination of parties involved in the crime is made victim-friendly in India. The concerned authorities involved in the process are mandatorily directed to follow the rule of law. The victims right to privacy is protected in any case. The Supreme Court in many of its judgments has pronounced the need to protect the basic fundamental rights of the citizen while doing his/her medical examination.

The objective of this paper is to study the Medical Examination of the Victim of rape and Collection of forensic Samples.

There are two very important rights for rape victims:

Free medical treatment in any hospital Section 357C of the Code of Criminal Procedure. It includes "treatment of victims". All hospitals, public and private, shall offer unfastened first-resource or scientific remedy to sufferers of any crime indexed in Section 357C of Cr.P.C. and Section 166B of I.P.C. of the Indian Penal Code and need to file the incident to the police as quickly as possible. lt specifies the penalty for failing to treat a victim. lf a hospital refuses to treat rape victims.

Medical examination in cases of sexual violence can yield useful forensic evidence for trial. Medical examination of the accused and victims of rape finds statutory recognition in the Indian legal system. Over the years, the judiciary has interpreted these provisions to emphasise the need for eliminating delays in medical examination and the importance of evidence gathered from such examinations.

Section 164A which was also inserted in 2005 deals with medical examination of a victim of rape. As per law, the medical examination of a victim requires the consent of the victim or any person on her behalf who is capable of giving consent. In case of a child, section 27 of Protection of Children from Sexual Offences Act, 2012 provides for the presence of a parent or a person who the child trusts while conducting the examination. It is imperative that the medical examination is conducted without delay to ensure that timely therapeutic care is provided to the victim and to prevent loss of evidence. Section 164A mandates that an examination is conducted within 24 hours from receipt of information of the offence. Further, section 357C (inserted through Criminal Law Amendment Act, 2013) provides for immediate and free treatment of victims by all hospitals. Contravening this provision carries punishment under section 166B of the Indian Penal Code, 1860. The need for conducting medical examinations without delay was emphasised by the Supreme Court of India in State of Karnataka v. Manjanna (2000). The Court observed that a refusal to conduct a medical examination could lead to loss of evidence.

As per law, medical examination in cases of rape includes, among other things, the collection of biological material for DNA profiling. In Krishan Kumar Malik v. State of Haryana (2011), the Supreme Court held that after the insertion of section 53A, it is necessary for the prosecution to conduct a DNA test to prove its case against the accused. Referring to Krishna Kumar Malik in Rajendra Prahladrao Wasnik v. State of Maharashtra (2018), the Court observed that the prosecution should use DNA evidence particularly in view of sections 53A and 164A. Further, the court noted that in the absence of evidence of DNA profiling in a rape case, “an adverse consequence would follow for the prosecution”. While the courts have placed a duty on investigators to conduct DNA profiling, this does not mean that a positive finding in a report is necessary to secure conviction. It is pertinent to note that the amended definition of rape under Section 375 of the Indian Penal Code, 1860 includes acts beyond penile-vaginal sexual intercourse. Therefore, the absence of male DNA (either through semen, sperm or any other biological source) in vaginal samples is by itself insufficient to suggest that rape was not committed. A proper medical examination of the survivor or deceased victim will include examination of injuries, examination to ascertain pregnancy and sexually transmitted diseases, and collection and examination of biological and trace evidence on the body.

“164A. Medical examination of the victim of rape.– 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:-

(i) the name and address of the woman and of the person by whom she was brought;

(ii) the age of the woman;

(iii) the description of material taken from the person of the woman for DNA profiling;

(iv) marks of injury, if any, on the person of the woman;

(v) general mental condition of the woman; and

(vi) 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.”

Section 164A has introduced legal requirements for medical examination of a victim of rape. One of the major elements of this Section is that the consent of the victim is essential and it should be a part of the report of victim’s medical examination. The consent for medical examination can be given by the victim herself or in case of minor by parent or guardian. Section 164A (7) clearly specifies that the medical examination conducted without the consent of victim will not be rendered as lawful. The medical examination of the victim of rape may be conducted by any registered medical practitioner employed in a hospital run by the government or a local authority and in the absence of such a practitioner, by any other registered medical practitioner. Section 164A (1) explicitly provides that any registered medical practitioner with the victim’s consent can conduct the medical examination; this Section has solved all the doubts caused by the requirement that only Government doctors are competent to conduct medical examination of the rape victim.

As Section 53(2) provides that ‘whenever the person of a female is to be examined the examination shall be made only by or under the supervision of a female medical practioner” but under Section 164A of Cr PC there is no bar against a male doctor carrying out the medical examination when no women doctor is available and the victim consents for the same. It is always advisable to get the rape victim examined by female medical practitioner but the legislators after taking into consideration that a medical examination of the rape victim should not be delayed for want of female medical staff does not make it a mandatory practice. The sub Section (1) of Section 164A requires that a medical examination must be carried out within 24 hours of the police receiving information relating to the commission of such offence, thus legislators has recognised this as a medicolegal emergency by adding a timeframe for the investigating officer for medical examination of the rape victim.

Section 164A (2) states that the medical examination of the rape victim should be carried out without any delay and a reasoned report must be prepared giving the following particulars:

1. The name and address of the victim and the person by whom she was brought.[2]

2. Age of the woman.

3. A description of the materials collected from the victim for DNA profiling.

4.  Marks of injury if any, on the body of the woman.

5. General mental condition of the woman.

6. Other material particulars in reasonable detail.

The report shall specifically record the consent of the woman and consent of the person competent to give such consent on her behalf[3]and exact time of commencement and completion of the medical examination concerned.[4]Section 164A (6) mandates that the report should state precisely reasons for each conclusion made and it should also be forwarded without delay to the investigating officer who in turn shall forward it to the magistrate concerned.[5]

Section 164A (7) of Cr PC explicitly requires that nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or any person competent to give such consent on her behalf. This Section clarifies all doubts and makes it clear that consent is essential and nobody can force a victim of rape to undergo a medical examination without her consent and forcing woman to get her medically examined without her consent cannot be directed even by Courts.

In Section 164A the medical examination of the victim of rape can be conducted only during the stage when an offence of committing rape or attempt to commit rape is under investigation by police.[ ] In rape cases the doctors or registered medical practitioners employed in a hospital run by Government or a local authority should be empowered to examine such cases even without an FIR if the victim reports to the hospital authorities first. It is hereby suggested that sub Section (1) of Section 164A should be amended to that effect and a panel of doctors must be formed to conduct medical examination of the victim of rape. The sexual assault cases are very serious in their nature and it should be dealt without any inordinate delay because it can prove fatal for preservation of forensic evidence. In that situation hospital authorities must be well equipped to safeguard the forensic and other material evidence.

1. Clifton, T. Hutchinson, et.al., “Daubert v. Merrell Dow Pharmaceuticals, Inc.: Redefining the Bases for the Admissibility of Expert Scientific Testimony” 15 Cardozo Law Review 1875 (1994). 2. Cynthia Bryant, “When One Man’s DNA is Another Man’s Exonerating Evidence: Compelling Consensual Sexual Partners of Rape Victims to Provide DNA Samples to Postconviction Petitioners” 33 Columbia Journal of Law. & Social Problems 113 (2000). 3. Dan, L. Burk, “DNA Fingerprinting: Possibilities and Pitfalls of a New Technique” Jurimetrics 455 (1988). 4. David, D. Foore, “Post Conviction DNA Testing: A Cry for Justice from the Wrongly Convicted” 33 Texas Technology Law Review 491 (2002). 5. David, E. Bernstein, “Junk Science in the United States and the Common Wealth” Yale Journal of International Law 123 (1996). 6. David, H. Kaye, “DNA Evidence: Probability, Population Genetics and the Courts” 7 Harvard Journal Law & Technology 101 (1993). 7. David, H. Kaye, “Two Fallacies about DNA Data Banks for Law Enforcement, 67 Brookland Law Review.179 (2001). 8. David, Hodgson, “A Lawyer Looks at Bayes Theorem” 76 Australian Law Journal 109 (2002). 9. David, J. Balding & Peter Donnelly, “The Prosecutors Fallacy and DNA Evidence” (1994) Criminal Law Review 711. 10. David, L. Faigman, “Is Science Different for Lawyers” 297 Science 339 (2002). 11. David, L. Faigman, “The Tipping Point in the Law’s Use of Science: The Epidemic of Scientific Sophistication that Began with DNA Profiling and Toxic Torts” 67 Brookland Law Review 111 (2001). 12. Davina, D. Bressler, “Criminal DNA Databank Statutes and Medical Research, 43 Jurimetrics 51 (2002).

1. The Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005) besides introducing Section 164A which relates to medical examination of the victim of rape, has also introduced Section 53A for medical examination of a person accused of rape and Section 176(1A)(a)(b) for investigation by judicial magistrates of custodial rape and deaths.
2. The Code of Criminal Procedure, 1973 (2 of 1974), Section 164A (2).
3. Id., Section 164 A (4).
4. Id., Section 164 A (5).
5. Id., Section 164 A (6).