Relevancy of Medical and Forensic Science Evidence in Rape Cases

A Report on a brief doctrinal project study carried out on the topic of

“Relevancy of Medical and Forensic Science Evidence in Rape Cases”

Submitted by Sneha Singh

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INDEX CHAPTER 1: INTRODUCTION................................... 1.1 Rape: a Heinous Crime 1.2 What is Rape? 1.3 Sources of Evidences 1.4 Importance of Medical and Forensic Science Evidence 1.5 Nature and Scope of the Study 1.6 Objectives of the study 1.7 Hypothesis 1.8 Research Methodology 1.9 Review of Literature CHAPTER

2:

MEDICAL

EXAMINATION:

A

MANDATORY

REQUIREMENT ………………………………………… 2.1 Medical Examination of the Victim 2.2 Medical Examination of the Accused 2.3 Medical Evidence 2.4 Limitations of Medical Examination CHAPTER 3:

FORENSIC SCIENCE EVIDENCE: A NEW EVOLVED

TECHNIQUE……. 3.1 Application of Forensic Science to Rape Examination 3.2 Forensic Science Evidence 3.3 Limitations of Forensic Science Evidence CHAPTER 4: JUDICIAL PRONOUNCEMENTS 4.1 Conviction based on Examinations 4.2 Acquittals based on Examinations 2

4.3 Examinations vs. Testimony of Prosecutrix CHAPTER 5: RELEVANCY OF MEDICAL AND FORENSIC SCIENCE EVIDENCES………………. CHAPTER 6: CONCLUSION AND SUGGESTION………………. BIBILOGRAPY

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1. INTRODUCTION

The researcher through this project intends to discuss as to what are the medical and forensic science examinations carried out to detect the crime of rape. The research will evaluate the importance and relevancy of these evidences in detection of crime. The discussion will be based on judgments and opinion of medical jurists.

1.1 RAPE: A HEINOUS CRIME Down the ages right from Rani Lakshmi Bai, Indira Gandhi to the present day, women have brought glory and pride to the country. Today they excel in all the fields to name. From being a sports-person to an astronaut, a corporate personality to an IPS officer and now the President of the country; women are marching their steps along with their male counterparts. The times have come when it is expected that society and man in particular would recognize the role of women in our society and reciprocate accordingly. But what is happening is just reverse of what is actually expected. The expectations are blown to smithereens when women become the object of lust and their modesty and womanhood is defied by some demented minds. Cases like Narodia Patia, Bijal Joshi to Nithari Mass-murder are enough to send shiver down the spine of any right thinking citizen. Animal does not rape. It is only human beings, who are created in the image of God as the scripture teaches us, who rape and defile the most private aspect of a woman.

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Rape is a crime not only against the woman concerned but also against the whole society. This heinous crime challenges the sanctity and every essence of human society and the time is perhaps right to deal with rapists with an iron hand. Strict legislation and prompt action by the law enforcing agencies will certainly help in checking the occurrences of rape. It is scary to think that one of the two genders of mankind is in danger of being raped by some demented minds and there is nothing to exaggerate about it. The effects of Rape are not only physical but also mental and psychological. Effects on victims Victims of rape can be severely traumatized by the assault and may have difficulty functioning as well as they had been used to prior to the assault, with disruption of concentration, sleeping patterns and eating habits. After being raped it is common for the victim to experience Acute Stress Disorder, including symptoms similar to those of posttraumatic stress disorder, such as intense, sometimes unpredictable, emotions, and they may find it hard to deal with their memories of the event. The shock and shame may prevent the victim from revealing their ordeal to friends or family, or seeking police or medical assistance. The conditions may be so acute that many of the victims commit suicide after rape and others may loose their mental balance and confidence.

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1.2 WHAT IS ‘RAPE’? Today there is a dire need of locating the inhumane criminals who take away the true sense life of a girl/a woman from her and establishing the crime against them ‘Beyond the reasonable doubt’. There are several evidences which are needed to prove the crime of rape but to understand their use we need to understand as to what can be constitutes as rape under Indian Law. Section 375 of Indian Penal Code, 1860 lays down the meaning of rape. Section 375, IPC, 1860 says375. Rape. A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First: - Against her will. Secondly: -without her consent. Thirdly: - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly: -With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly: - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or 6

through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly: - With or without her consent, when she is under sixteen years of age. Explanation: - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception: -Sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape. Interpretation of Provision In simple non-legal words rape means sexual intercourse with a female (other than his wife who is not younger than 15 years of age) by a person when: 1. The female is not willing (even when the female is prostitute or is habituated to sex). 2. The consent is obtained by threat. 3. The consent is obtained by deceit or misrepresentation (posing as her husband or misrepresenting the act as medical treatment). 4. When the victim is mentally deficient: imbecile, idiot. 5. When the victim is under the influence of drugs or liquor. 6. When the person is unconscious. 7. When the victim is young - below the age specified in law - (16 years), even with her consent. 8. Penetration of male organ into the female parts incurs the offence. But these provisions are of no help if the proper evidences are not traced.

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1.3 SOURCES OF EVIDENCES The charge of rape is easy to level against a person but difficult to prove. The number of cases is increasing and it is bound to increase further because of the changing social values. The investigator has to be vigilant. The investigator has to proceed systematically to collect proper evidence and to provide proper proof as in cases of rape there are usually no eye-witnesses. It is complainant’s statement versus accused person’s statement. Of course circumstantial evidence (and hence scientific evidence) is available. As the culprit and the victim come in close contact, there is plenty of exchange of traces. If the case is handled early and efficiently convincing evidence should be forthcoming. Both, the victim and the culprit carry important evidences. This evidence is medical and forensic, physical and knowledge of the occurrence.

1.4 IMPORTANCE OF MEDICAL AND FORENSIC SCIENCE EVIDENCE Medical Examination of the victim had always been a mandatory requirement1 for the establishment of the crime of rape. And now after the insertion of Section 53-A2 in Cr. P. C. by the Amendment Act of 2005, medical examination of person accused of rape has also become an important requirement. The medical examination proves of a great help especially in cases of un-consensual forceful acts of rape which leave behind marks of struggle and blood. It is also useful to find out traces of semen, blood and other body fluids on the clothes and bodies of both victim and culprit. 1

S 53, Code of Criminal Procedure, 1973.

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53A. Examination of person accused of rape by medical practitioner.

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Now application of forensic science evidence comes in play to detect the sourceperson of blood, semen, foreign-hair, broken-skin; fingernail scraping containing skin, hair, fibres and blood on the person of others. Age of the victim often assumes a great importance in case of consensual sex. Forensic science is of great help to determine all these questions with utmost accuracy and solve the knot of suspicion. We would now study the application of these evidences to investigation and their importance in judicial pronouncements.

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1.5 NATURE AND SCOPE OF THE STUDY The present research is purely academic in nature i.e. a doctrinal and analytical study of the medical and forensic science evidences to ascertain the commission of rape and their relevance. The study is not exhaustive, but is only an attempt to understand the underlying principles of examination of crime of rape and subsequently discussing the judgments reflecting the application of these evidences. The researcher has limited the scope of the study to describing the various methods of the medical science and forensic science evidences to detect rape and their application to investigation.

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1.6 OBJECTIVES OF THE STUDY: In view of the foregoing discussion, the main purpose of the present work is to introduce the concept of Rape and identification of the methodologies to determine the crime. Keeping in view this aim, the researcher has analyzed the application of the medical and forensic science evidences to investigation of the Rape and throwing a light upon the scope and application of the concept. The main focus of the study is to determine the importance of above mentioned evidences in judicial pronouncements. Other underlying object is to construe that whether they have served the purpose of providing full-proof mechanism of detecting and punishing for crime.

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1.7 HYPOTHESIS: The focal points and assumptions are normally available through the formulation of hypothesis. The major hypothesis developed on the basis of study of available literature, day to day observations of the people from various walks of daily life and evaluation of primary as well as secondary data and work done earlier including related studies are: 1. The Medical and Forensic Science Evidences find the utmost place in the investigation of the crime of rape and ascertaining its occurrence. 2. These examinations have a high success rate and thus have led to higher conviction statistics.

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1.8 RESEARCH METHODOLOGY: The present research study is mainly a doctrinal and analytical. Keeping this in view, the researcher utilized the conventional method of using libraries consisting of primary sources like books, journals, e-journals, reports. As the study is analytical- academic in nature, historical and doctrinal methods are adopted because it is not possible to study purely by experimental method.

1.9 REVIEW OF LITERATURE For the research the relevant material is collected from the secondary sources. Materials and information are collected both legal and political sources like books on Medical Science and Forensic Science by eminent authors like Vinod Nijhawan, etc. are also referred. Material is also collected from print and electronic media like various search engines and internet databases. The reason for selecting this mode of research for this type is that it’s a probably quickest and most economical way for research to find possible hypothesis and to take advantage of the work of to others and utilize their own earlier efforts. From the collected material and information, researcher proposes to critically analyze the topic of the study and tries to reach the core aspects of the study.

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2. MEDICAL EXAMINATION: A MANDATORY REQUIREMENT As discussed earlier rape is a crime mostly done in secrecy and thus it is quite difficult to find witnesses who can substantiate the testimony of the victim prosecutrix. The charge of rape is easy to level against a person but difficult to prove. In that case the analysis of circumstantial evidences along with medical examination of the victim and now even the accused has been made mandatory3 in the rape cases.

2.1 MEDICAL EXAMINATION OF THE VICTIM The victim bears important medical evidence, which, with passage of time, is lost. The examination of the victim should, therefore, be carried at the earliest. Consent of the victim is essential. The doctor should be qualified and experienced. The medical examination must be carried out by a female doctor whenever possible or in the presence of a female. Medical evidence is commonly required to support a charge of rape but is seldom more than corroborative. It is very rare that medical cases are tried without medical evidence. Medical evidence in cases of rape may be from the following sources: 1.

Marks of violence on the person of the prosecutrix or the accused i.e.

injuries consistent with forcible rape, 2.

Marks of violence about the genitals,

3.

Presence of blood or seminal stains on the clothes of the prosecutrix or the

accused, 3

Section 53 and Section 53-A, respectively of Code of Criminal Procedure, 1973.

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4.

Torn clothes

5.

Signs of venereal infection,

6.

Presence of spermatozoa in vaginal secretion,

7.

Signs of loss of virginity.

2.2 MEDICAL EXAMINATION OF THE ACCUSED In case of culprit/accused medical examination is of the following types: 1. Injuries due to sexual act. Often it is absent. 2. Injuries (scratches, bite marks, etc.) due to resistance offered by the victim. They are often found if the female is healthy and spirited. 3. Presence of Blood and Seminal Stains on clothes and on body especially on private parts. 4. Presence of smegma is useful clue. It can refute the charge of false rape. Absence of smegma does not prove rape. 5. Capability of the accused to perform sexual act. 6. Venereal Disease.

2.3 MEDICAL EVIDENCE After discussing as to what are the medical examinations that should be carried out to ascertain the crime of rape, now the researcher would lay down the effect of these findings in particular cases:

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1. Marks of violence and injuries, internal and external, on the person of both, the victim and the accused. In the case of un-consensual rape there is a great possibility that injuries can be found on the person of the victim as well as that of accused due to resistance offered. This method is not of much use in cases of consensual rape as there is very less possibility of injuries being caused. The injuries can be both external and internal. The position of injuries near the genitals is of quite importance. There can bruises on the arms or neck which constitutes evidence of struggle. Similarly bruises of scratches about the inner side of the thighs and knees may be inflicted during attempt to abduct. Other substantial injuries on prosecutrix constitute namely painful separation of thigh, swollen labia majora and labia minora, red and tender vaginal canal, hymen can rupture and bleed and there can be a tear on the wall of vagina. These injuries mainly indicate the loss of virginity and that the woman is not habitual to sex, this evidence is of great importance. Due to struggle and resistance injuries can also be found on the body of the accused. These injuries can be in the form of nail marks present on face, hands, and multiple abrasions on both legs and on other parts of the body. Abrasion can also be found on prepuce. Otherwise mostly the injuries are absent as the accused is much powerful than the victim. Sometimes the hymen of girl is not torn. Merely because the hymen was intact or congested and not torn it cannot be said that the rape was not committed 4. This is 4

As per opinion of the doctor it is not necessary that the hymen was torn in all cases. The conviction upheld. Jairaj v. State of Karnataka, 1991(1) Crimes 278 (Karnataka).

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based on the principle that ‘Partial penetration of the penis within the labia majora of the vulva or pudendum with or without cruission of semen or even an attempt at penetration is quite sufficient for the purposes of the law. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains.’5 In other cases, the accused is able to over-power the girl and thus injuries are not found on the body of victim or the accused. Thus these situations pose a challenge to the authority of medical evidences. But as held in many cases absence of injuries solely does not demolish the theory of rape in every case and depends on circumstances of each case. 2. Presence of blood or seminal stains on the clothes of the prosecutrix or the accused. Visual location of semen is a difficult task, because the stains are almost colourless and can be destroyed by washing. Semen stains are found on the persons of the victim and the culprit, on their garments, at the scene of occurrence and in the vehicle if one is used for the commission of the crime. The victim carries semen stains on the affected parts, on the skin and hair, close to these parts and on the clothes, especially on the undergarments. All the clothes should be taken into possession. The help of a doctor should be obtained to collect swabs from the affected and close-by parts of the body, and hair suspected to carry semen stains. 5

Modi’s Medical Jurisprudence.

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Seminal stains may be found on the flies and front parts of trousers, undergarments and on the front or back flap of the shirt of the culprit. The culprit may have used handkerchief or other loose piece of cloth, paper or fibres to wipe off the seminal fluid. It may be found in his pockets or at or around the scene of occurrence. The culprit’s sexual organ and skin close to it may also carry seminal stains. Pubic hair of the culprit is also likely to carry seminal stains. 3. Presence of spermatozoa in vaginal secretion Modi in his Medical Jurisprudence and Toxicology has noted that the presence of spermatozoa in the vagina after intercourse has been reported by Pollak (1943) from 30 minutes to 17 days and by Morrison (1972) upto 9 days in vagina and 12 days in the cervix. However, in the vagina of a dead woman they persist for a longer period. The presence of spermatozoa dead or alive would differ from person to person and its positive presence depends upon various circumstances. However, if spermatozoa are not found in the vaginal smear, its mere absence does not mean that there was no sexual intercourse6.

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In law the term sexual intercourse is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen.—Medical Jurisprudence and Toxicology by Parikh.

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4. Venereal disease infection It is a well-known rule7 that in cases of rape the alleged victim and the accused persons should be specially inspected for venereal diseases. 5. Presence of smegma The smegma is a natural creation of human body and absence of smegma indicates no recent sign of sexual intercourse and recent time meant within twelve hours. Thus in various cases presence of smegma around glans penis shows that the accused has had sexual intercourse within 24 hours. 6. Capability of the accused to have sexual intercourse In some cases when the accused is of younger age the question arises whether he is capable to commit the crime of rape or not. In such cases his male organ has to be developed, which means that penises of the accused have to be normal and capable of sexual intercourse.

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Modi’s Medical Jurisprudence, Tenth Edition, p. 303 and p. 305.

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2.4 LIMITATIONS OF MEDICAL EXAMINATION With the discussion above we have come to a conclusion that there exist several limitations to the aspect of medical examination. Some of them are: Medical examination mainly focuses upon the physical examination. It tends to determine whether there was any physical assail, injury on private parts, presence of spermatozoa and smegma respectively, seminal stains on clothes etc. All these approaches have limitation to them. We have seen cases where there was no injury found on the person of victim or accused but still the crime of rape was established. Sometimes even the hymen was not torn as the penetration was not complete. Delay in medical examination is the greatest setback to the possibility of establishing the crime of rape. Detection of spermatozoa can be made only within one and a half week while smegma can be appropriately tested within only 24 hours. Even their presence cannot constitute rape sometimes.8 Seminal and blood traces on clothes can be found only when clothes are submitted to the examiner the condition as was after the rape. If washed or spoiled they are left of no evidentiary value. The 'reasonable medical certainty' is of utmost importance and in these cases it is of a great difficulty to reach it. Medical practitioners have taken a contrary view to the

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In case of married woman, presence of spermatozoa indicated semen in her genital or on her clothes is not sufficient proof of rape.—Harnath v. State, AIR 1952 Ajrner 49.

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statement of prosecutrix, but in further investigation it had been proved that the rape had been committed9. This uncertainty of the medical examination has still not let it contribute to the solution of the numerous pending rape cases. It has been a mandatory requirement since the institution of the Code of Criminal Procedure in the year 1973, but the delay of victim to reach doctor has posed the hindrance to the success of this mechanism10.

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According to the Medical Examination, there were no injury marks and therefore, the doctor could not give opinion about commission of rape. First of all she was a married woman and used to sexual intercourse. She clearly stated that she was overpowered by the accused and therefore, there will be no question of marks of injury. Commission of rape was proved by other prosecution witnesses. The conviction was therefore upheld. Sevak v. State of U.P., 1995 Cri. L. J. 2778 (All.). Available on http://www.dancewithshadows.com/rapes_india.asp visited on September 15, 2009.

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3. FORENSIC SCIENCE EVIDENCE: A NEW EVOLVED TECHNIQUE Forensic science (often shortened to forensics) is the application of a broad spectrum of sciences to answer questions of interest to a legal system. This may be in relation to a crime or a civil action. Besides its relevance to a legal system, more generally forensics encompasses the accepted scholarly or scientific methodology and norms under which the facts regarding an event, or an artefact, or some other physical item (such as a corpse) are ascertained as being the case. In that regard the concept is related to the notion of authentication, whereby an interest outside of a legal form exists in determining whether an object is what it purports to be, or is alleged as being.

3.1

APPLICATION

OF

FORENSIC

SCIENCE

TO

RAPE

EXAMINATION Two of the sub-divisions mainly which contribute to the Criminal investigation and trials are:



Criminalistics: It is the application of various sciences to answer questions relating to examination and comparison of biological evidence, trace evidence, impression evidence (such as fingerprints, footwear impressions, scratch marks and tire tracks), controlled substances, ballistics, firearm and toolmark examination, and other evidence in criminal investigations. Typically, evidence is processed in a crime lab.

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

Forensic DNA analysis takes advantage of the uniqueness of an individual's DNA to answer forensic questions such as determining paternity/maternity or placing a suspect at a crime scene.

Medical examination may prove that traces of semen and blood stains have been found, spermatozoa have been discovered in vagina, but the question arises as to who was the actual source person, whether the time of crime is the same as narrated by the victim, etc. are the questions to which the Forensic Science provides answers. Moreover forensic science also provide answers to the source of foreign-hair, brokenskin; fingernail scraping containing skin, hair, fibres and blood on the person of others. Age of the victim often assumes a great importance in case of consensual sex. Forensic science is of great help to determine all these questions with utmost accuracy and solve the knot of suspicion. Victim and accused may be tested respectively for the following evidentiary clues of forensic importance: On the person of the Victim: 1.

Vaginal secretion and swabs for semen.

2.

Foreign hairs and fibres on the person of the victim.

3.

Specimen pubic hairs from the victim.

4.

Semen stains from the body.

5.

Fingernail scraping which may carry fibres, hairs, skin, blood from the

culprit. The evidence can link the culprit, with the victim and hence with the crime.

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6.

Age of the victim often assumes great importance. Medical evidence

for the age of the victim is important. It should be ascertained. If the victim is less than 16 years of age, consent of the victim does not have any sanctity. 7.

All clothes of the victim worn at the time of occurrence. They carry

semen, fibres and hair, blood stains, saliva stain from the culprit. They also indicate the extent of bleeding. 8.

Sometimes they carry dust, dirt, plant material from the scene which

help to corroborate the victim’s statement. On the person of the accused: 1.

Vaginal fluid stains, bloodstains, semen stains on the penis, on pubic

hair, on the area around the male organ and thighs and on clothes. Smears from male organ from pubic hair, from the surrounding skin should always be obtained to match the sample with that found of the clothes and body of the victim. 2.

Foreign hairs—especially in the private parts and intermingled with

pubic hairs. The doctor should collect them for further investigations. 3.

Fibres from the clothes of the victim. They are mostly on his clothes.

4.

Stains of cosmetics (lipstick, cream, powder, etc.) on the person and

clothes. 5.

The fingernail scrapings may contain vaginal fluid, skin, fibres,

cosmetics, etc., from the victim. 6.

Dust, dirt, flora or fauna from the scene, especially in outdoor cases.

7.

Clothes worn by the culprit at the time of occurrence must be taken

into possession. They carry stains, tears, hairs and fibres, flora and fauna and their fragments and dust and dirt from the scene.

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3.2 FORENSIC SCIENCE EVIDENCE Forensic science evidence is carried out to test the following in the respective ways: 1. Blood stains and seminal traces (DNA test) The test for the blood stains is mainly first the blood group test and in case of a common blood-group the DNA test. The identification of semen is important in practically every sexual case. Especially in the case when victim is a married woman or otherwise habituated to sex, so as to prove that the spermatozoa belongs to whom becomes an important requirement. In most assaults it will be found on the clothing of one or both parties; when full penetration and intercourse have occurred (rape, incest, etc.) it will be found on vaginal swabs if these are taken in time. Semen may be found in liquid form, smears or stains. Or, it may be found in vagina, anus or rectum. Fresh semen is a gel like fluid, which liquefies on exposure to atmosphere. Chemically semen is a complex mixture of organic and inorganic compounds. Important constituents of semen, from identification point of view, are proteins including enzymes, blood group factors, choline, fructose, citric acid, uric acid and zinc. The composition varies from individual to individual. Enzyme, acid phosphatase, found in semen, is in concentrations, which are significantly higher than those found in any other body fluid. The technique of Electrophoresis is becoming popular for the identification of semen.

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Indian doctors are now suggesting that the preferential growth of certain moulds on seminal stains in hot humid conditions might even be used for identification. The shape and size of the human spermatozoon is characteristic. But the morphology alone does not permit individualization. Semen of some persons does not contain any spermatozoon. It is called aspermic semen. This may be due to some disease or it may be due to vasectomy operation. In such cases this criterion for the identification of semen is lost. However immunological test using anti-semen sera against seminal plasma are increasingly being accepted as reliable test for aspermic semen. 2. Hair Another possibility can arise and that is of trace of foreign hair on the clothes and body of both victim and accused. The victim may carry hair in her hand, in her sexual parts (in sex offences) or on her clothes. If the victim has hit the accused with shoes or something else the same is likely to carry hair. Mutual transfer of hairs, due to contact, is a classical example of Locard’s principle of mutual exchange of traces. Hairs, if properly searched, are found in a large number of criminal cases. Individualisation of the hair vis-à-vis its source has been, however, eluding the scientist up till recently. The identification of hair is not conclusive at the present stage of development except through DNA profiling, if hair roots are available or through mitochondrial protein analysis. Without these it cannot be said that the hairs in. question belong to a particular individual and could not come from any other person. In extremely rare cases, the presence of some individual dye, contamination,

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some extraordinary defect or disease in the hair, however, may permit individualization of the source. On the other hand, it is possible to exclude some persons as the possible. sources of questioned hairs. This exclusion, the possible corroboration arid its identification, now, with the new techniques, make the hair evidence one of the important pieces of physical evidence. The hair evidence as corroboratory evidence is available in most of the serious cases, especially in offences against person. Every human being sheds hair, normally about 10 hairs a day. The falling rate, if the person is under emotional stress such as in rape or murder attempts, increases. The hairs are, therefore, likely to fall at the scene. 3. Fingernail scrapings The victim may scratch the accused in course of struggle, and in the course of this act and this may be visa versa. Fingernail scrapings may carry fibres, hairs, skin, blood from the culprit, and vaginal fluid, skin, fibres, cosmetics, etc., from the victim. With various chemical and other forensic tests the source of these clues may be ascertained. 4. Determination of age Forensic evidence for the age of the victim is important. It should be ascertained as if the victim is less than 16 years of age; consent of the victim does not have any sanctity. The science has developed so much so as to determine the age of an individual. Bone Density Test i.e. Osteoporosis is the tool for age determination. For age determination,

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different parts of the skeleton are more useful at different age ranges. The different age ranges include prenatal, neonate, infants and young children, late childhood, adolescence, young adult, and older adult. But the actual age can not be determined by bones only the approximate age of the individual can be. This ranges in the extent of two year on either side.

3.3 LIMITATIONS OF FORENSIC SCIENCE EVIDENCE Similar to Medical Science evidences Forensic Science evidences also have some limitations. But these are of different spectrum. The limitations of test results have now been dealt with by the possible solutions. But what poses a limitation to this examination to become an effective tool to investigate rape crimes is the fact that it is not a mandatory requirement. Moreover people are unaware of such mechanisms and in absence of their knowledge they are unable to avail their benefits. Not only this some of these tests are costly and need sophisticated apparatus, which neither the person of all the strata can afford, nor the government can provide these facilities on large scale due to scarcity of experts.

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4. JUDICIAL PRONOUNCEMENTS After discussing the tests carried out for the Medical and Forensic science investigation of the rape crimes, we need to discuss the judicial trend as to acceptance of these examinations for investigation of rape. The researcher would discuss the view of judiciary under the following heads:

4.1 CONVICTION BASED ON EXAMINATIONS In the case of Bidhia alias Bidhi Chand v. State of Himachal Pradesh, 1985(1) Crimes 559, on medical examination it was found that there were bruises on the breast, breast were fully developed, multiple abrasions over the left breast, red in colour, external genitalia were normal; hymen was ruptured with no bleeding and there was no discharge from vagina and no laceration of vagina; semen found on the slide of vaginal smear and according to doctor the duration of injuries was six to 24 hours; doctor opined that she was not used to sexual intercourse since vagina allowed two fingers with difficulty and that rupture of hymen was due to rape. The doctor who examined the prosecutrix found blood mark on her cloths and vulva and a tear mark on the perineum which bled on touch. The Hymen was torn. Morover there was blood stains over her cloths and a tear on the perineum. The conviction was therefore, upheld.—OmPrakash v. State, 1987(1) Crimes 645 (Del).

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4.2 ACQUITTALS BASED ON EXAMINATIONS Frock of the prosecutrix was seized along with inner garment known as “shamiz’ and sent to chemical examiner, over which stains of semen found. Merely because the semen stains were found, in absence of specific circumstances showing sexual intercourse, the conviction cannot be sustained.—Mahesh Kumar Bheru Lal Chawada v. State of MP, 1995 Cri. L. J. 2001. Victim girl of 16-17 years was having pregnancy of three months. According to Modi’s Jurisprudence two years has to be left on either side arithmetical and other error of examination on doctor’s evidence when the girl was aged 16-17 years she was having valid consent in illegal intercourse with accused. There cannot be conviction under Section 376, IPC.— Sakaldeo Sah v. State of Bihar, 1999(4) Crimes 224 (Patna).

4.3 EXAMINATIONS VS. TESTIMONY OF PROSECUTRIX The nature of medical evidence is merely corroborative. Even sometimes as in the following cases Supreme Court has ruled that there is no need of corroboration of the testimony of prosecutrix. Sometimes even when test of examinations stood against the witness by the victim the latter was given higher importance. The question of corroboration has been the subject-matter of a decision of the Supreme Court in Rameshwar Kalyan Singh v. State of Rajasthan, A1R 1952 SC 54. In that case the appellant was charged with committing rape on a young girl, eight years of age. The learned Sessions Judge held that the evidence was sufficient for moral conviction but fell short of legal proof because, in his opinion, the law requires 30

corroboration of the story of the prosecutrix connecting the appellant with the crime. He was satisfied, however, that the girl had been raped by somebody. Accordingly he acquitted the accused. In the appeal by the State against acquittal the High Court held that the law requires corroboration in such cases but held that the girl’s statement made to her mother was sufficient corroboration and setting aside the acquittal convicted the appellant. On appeal to the Supreme Court it was held: The first question is whether the law requires corroboration in these cases. The Evidence Act nowhere says so. A woman who has been raped is not an accomplice. If she was ravished she is the victim of the outrage. In the case of a girl below the age of consent, her consent will not matter. The learned High Court Judges were wrong in thinking that they could not, as a matter of law, convict without corroboration. The tender years of the child, coupled with other circumstances appearing in the case, such, for example, absence of motive to falsely implicate the accused, its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. In a case regarding the reliability of the evidence of prosecutrix it was held that, if evidence of prosecutrix was inspiring conviction of offence of rape could be based on her testimony alone.—Kuldeep Kumar Bittu and Anr. v. State of Punjab, 2008(1) Crimes 720 (P&H). In a case of rape of married woman it was laid that conviction can be based on the believable and ‘straightforward’ evidence of the prosecutrix. Offences against women require exemplary treatment.— State of Madhya Pradesh v. Babu Lal , 2008(1) Crimes I (SC).

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A victim is expected to offer resistance causing certain injuries on her body but it cannot be laid down as a rule that whenever resistance is offered, there must be some injuries. Thus where a girl of about 19 years was raped by four persons, marks of violence on her body cannot be expected.—Balwant Singh v. State of Punjab, AIR 1987 SC 1080: 1987(2) SCC 27: 1987 Cri. L. J. 971.

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5.

RELEVANCY

OF

MEDICAL

AND

FORENSIC

SCIENCE EVIDENCE These evidences are basically of corroborative nature as the evidence given by the medical officer is really of an advisory character11 given on the basis of the symptoms found on examination12. The expert witness is expected to put before the court all materials inclusive of the data which induced him to came to the conclusion and enlighten the court on the technical aspect of the case by explaining the terms of science so that the court although, not an expert may form its own judgment on those materials after giving due regard to the experts opinion because once the experts opinion is accepted, it is not the opinion of the medical officer but the court. Moreover in many cases court has given an overriding decision, canceling the medical opinion and upholding the prosecutrix witness when they both spoke against each other. Only in the cases of un-consensual sex they serve to be of greater help not in act of consensual rape cases. Moreover we have seen that in many cases the evidence and statement of the prosecutrix has a greater weightage than that of the medical evidence13 with their limitations. Though Forensic science evidences have served better than medical examinations but their use is extremely limited. Apart from this when we look at the criminal statistics, there has been a phenomenal eight-fold i.e. 678% increase in the number of rapes committed in India since 1971, the year from which data for rape cases has been collected by the National Crime 11

12 13

The evidence of a medical man or other skilled witnesses, however, eminent, as to what he thinks may or may not have taken place under particular circumstances, however, confidently, he may speak, is ordinarily a matter of mere opinion. The medical jurisprudence is not an exact science.— Pratap Mishra v. State of Orissa, AIR 1977 SC 1307. Section 45; The Indian Evidence Act, 1872. Available on http://infochangeindia.org/200601016316/Women/Judicial-Interventions-andWomen/Raped-woman-s-testimony-overrides-medical-evidence.html visited on September 20, 2009.

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Records Bureau (NCRB)14, two years after which the medical examination of rape victim was made compulsory. With this India stands third, leaving behind countries like Sri Lanka, Jordan and Argentina, when it comes to rape cases, as data of the Union Home Ministry suggested for the year 2008 with 8,359 rape cases being registered in India in only the first three quarters of the year.15 These tests have not even contributed to increase the rate of conviction of rape accused. It still lies as low as 4%.16 Whatever is said still these examinations serve as the best source of evidence to the crime of rape. It is not their drawback that the crime is not detected, rather it is the fear of humiliation by society and police that stops a girl to come and report the atrocity done upon her. It is due to the defects in existing system to secure justice for rape victims17. If the victims are brought for examination at the right time there is no hindrance to these examinations, just there are small limitations. Despite of their limitations medical and forensic science evidence have served to be of great importance.

14

Available on http://timesofindia.indiatimes.com/india/Rape-cases-in-India-jump-678-since-1971NCRB/articleshow/2678015.cms visited on September 20, 2009.

15

Available on http://www.expressindia.com/latest-news/Its-official-India-3rd-worst-offender-in-rapecases/396269/ September 24, 2009.

16 17

Available on www.highbeam.com/doc/1G1-113822185.html September 21, 2009. Held, the complaints are handled roughly and are not given the attention as are warranted in the nature of offence. The victim is humiliated twice. First, by the accused and second by the police and so on. The victims often say the ordeal to be even worse than the rape itself.— Delhi Domestic Women’s Forum v. Union of India, 1994(3) Crimes 597 (SC).

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6. CONCLUSION AND SUGGESTION The first hypothesis drawn by the researcher was that the Medical and Forensic Science Evidences find the utmost place in the investigation of the crime of rape and ascertaining its occurrence. The age old means of investigation i.e. interrogation, development of sources and surveillance to detect the crime. The barbaric, torturous and slow-pace investigations have no place in today’s society. The only way to turn is the developing science. It is in this context, Medical and Forensic Science have found their importance. After conducting research the researcher has found out the hypothesis to be partially true. These mechanisms are detection tools and they cannot be put to use until the crime is reported and that also within proper duration. Moreover these techniques have certain limitations to them and thus lack reasonable medical certainty. Moreover in many cases when the prosecution case stood against the medical and forensic opinion, evidence of prosecutrix has been admitted. Despite all these limitations in absence of these tools there would be no means to detect the crime. It is in exceptional cases and mainly delayed cases that discrepancy is found otherwise they are the best investigating tools. The suggestion researcher would like to provide is that this mechanism is not gaining progress only for the reason that the cases are not reported on time. And this is because of the defects in existing system to secure justice for rape victims, hostile procedures and police. Moreover the Forensic Science examination techniques, which are far more accurate, must be made available in as much extent as its counterpart.

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The second hypothesis was that these examinations have a high success rate and thus have led to higher conviction statistics. Well this hypothesis has crashed down by looking at the statistics of the union ministry in the year 2008. The suggestion provide by the researcher seems to be the only way to curb this menace of rape. Thus the research has been a success as the researcher has been able to detect the questions which were kept in the beginning of the study.

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BIBLIOGRAPHY:

Books: 1. Vinod Nijhawan (2008). Medical Science Helping the Process of Criminal Law. Delhi: Vinod Publications (P) Ltd. 2. BX Subrahmanyam (1999). Modi's Medical jurisprudence and toxicology, 22nd ed. New Delhi: Butterworths India. 3. Sharma B.R. (1974). Forensic Science in Criminal Investigation and Trials. Allahabad: Central Law Agency. 4. B.S. Nabbar (2007). Forensic Science in Criminal Investigation, Hyderabad: Asia Law House. 5. Kirk P.L. (1974).Crime investigation, 2nd Edition, New York: John Wiley and Sons Inc.

Journals: 1. Can Med Assoc J. 1959 September 1; 81(5): 407–408. 2. J R Soc Med. 1999 August; 92(8): 388–392. 3. Shepherd JP (1993). Presenting expert evidence in criminal proceedings. BMJ;307:817-18

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Governments, legislations 1.

Code of Criminal Procedure, 1973.

2.

Indian Penal Code, 1860.

3.

Indian Evidence Act, 1882.

Web Sites: 1. Available on http://www.google.com visited on September 3, 2009. 2. Available on http://www.wekipedia.com visited on September 4, 2009. 3. Available on http://www.manupatra.com visited last on September 28, 2009. 4. Available on http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1297312/ visited on August 26, 2009. 5. Available on http://www.dancewithshadows.com/rapes_india.asp visited on September 15, 2009. 6. Available

on

http://infochangeindia.org/200601016316/Women/Judicial-

Interventions-and-Women/Raped-woman-s-testimony-overrides-medicalevidence.html visited on September 20, 2009. 7. Available

on

http://timesofindia.indiatimes.com/india/Rape-cases-in-India-

jump-678-since-1971-NCRB/articleshow/2678015.cms visited on September 20, 2009. 8. Available on http://www.expressindia.com/latest-news/Its-official-India-3rdworst-offender-in-rape-cases/396269/ September 24, 2009. 9. Available on www.highbeam.com/doc/1G1-113822185.html September 21, 2009.

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Case Laws: Some of the most important case laws: 1. Harnath v. State, AIR 1952 Ajrner 49 2.

Sevak v. State of U.P., 1995 Cri. L. J. 2778 (All.).

3.

Delhi Domestic Women’s Forum v. Union of India, 1994(3) Crimes 597 (SC).

4. Bidhia alias Bidhi Chand v. State of Himachal Pradesh, 1985(1) Crimes 559 5. OmPrakash v. State, 1987(1) Crimes 645 (Del). 6. Mahesh Kumar Bheru Lal Chawada v. State of MP, 1995 Cri. L. J. 2001. 7. Rameshwar Kalyan Singh v. State of Rajasthan, A1R 1952 SC 54. 8. Kuldeep Kumar Bittu and Anr. v. State of Punjab, 2008(1) Crimes 720 (P&H). 9. State of Madhya Pradesh v. Babu Lal, 2008(1) Crimes I (SC). 10. Balwant Singh v. State of Punjab, AIR 1987 SC 1080: 1987(2) SCC 27: 1987 Cri. L. J. 971. 11.

Pratap Mishra v. State of Orissa, AIR 1977 SC 1307.

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