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Statutory provisions relating to medical examination in India

Read this article by Project 39A forensics team to understand the statutory provisions pertaining to medical examination in sexual offences.
© Project 39A, National Law University, Delhi

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.

Medical examination of the accused

Section 53 of the Code of the Criminal Procedure, 1973 or CrPC deals with medical examination of the accused by a medical practitioner at the request of a police official. It is conducted where there are reasonable grounds for believing that the examination of the accused will provide evidence relevant for investigating the commission of any offence. It includes examination of various biological samples such as blood, semen, sweat, etc which are mentioned in this section. Section 53A specifically deals with examination of a person accused of rape. This also includes collection of evidence for DNA profiling. Considering the crucial nature of such biological evidence, it is important that only a registered medical practitioner collects such evidence from the accused. Section 54 provides that when any person is arrested, they shall be examined by a medical officer. Such an examination is important to record all injuries and marks of violence on the arrested person and provides a check on any form of torture or coercion that may have occurred in police custody.

Medical examination of the victim

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.

Importance of DNA profiling in cases of rape

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.

© Project 39A, National Law University, Delhi
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