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How to prove rape when even sexual intercourse is in question?

This article is an attempt to make the victim and the advocate conscious of her right and the way to fight and win for her right. It shall not be used contrary to the objective of making it, even if done, it would be of no use, because the truth ultimately shines though it takes some times.

The definition of “Rape” as contained in section 375 IPC refers to “sexual intercourse” and the Explanation appended to the section provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Intercourse means sexual connection.[1] For the purpose of establishing sexual intercourse with coercion the genital organ of the victim needs through examination.

Read: Construction of evidence in rape case

During the examination following points may be noted :

  1. In grown-up females, if the public hairs are found mated due to presence of semen, they should be cut off with a pair of scissors and examination for the presence of human spermatozoa, if possible, or they should be preserved to be forwarded to the Chemical Examiner for the same purpose.

Dried Seminal stains found on the external genitals and thighs should be carefully scraped by means of a clean, blunt knife, and preserved for subsequent examination, or moistened with normal saline and slides prepared for microscopical examination.

  1. Recently effused or dried blood may be found upon the genital organs or in the neighbourhood, and in recent case there may be bleeding from the vagina, which is usually very slight. It should not be forgotten that the bleeding may be due to menstruation, which is possible to be induced by sexual intercourse.
  2. Bruising and laceration of the external genitals may be present with redness, tender swelling and inflammation.
  3. In nubile virgins the hymen, as a result of complete sexual intercourse, is usually lacerated, having one or more radiate tears,( more so in posterior half) the edge of which are red, swollen and painful, and bleed on touching, if examined within a day or two after the act. these tears heals within five or six days, and after eight to ten days become shrunken and look like small tags of tissue. Frequent sexual intercourse and parturition completely destroy the hymen, which is represented by several small tags of tissue, which are called carunculae hymenealis or myrtiformes.

According to Modi Medical Jurisprudence and Texicology, in case where the hymen is intact and not lacerated, it is absolutely necessary to note the distensibility of the vaginal orifice in the number of fingers passing into vagina without any difficulty. The possibility of sexual intercourse having taken place without rupturing the hymen may be inferred, if the vaginal orifice is capacious enough to admit easily the passage of two figures. The circumstances of the hymen can also be measured by a measuring cone. 9-10 cms circumference of hymen is considered the least necessary for coitus. For the girl above fourteen years the test mentioned above will not be reasonable.

Cases where sexual intercourse was not established, or lacks the coercion and the accused, in lack of proper evidence, was acquitted

In a case where neither any injury was found on person of the prosecutrix nor her clothes were torn but she was found habituated to sexual intercourse. There was no other evidence to point the guilt of accused who ultimately was given benefit of doubt.[2]

In another case accused was charged of committing rape on his niece and semen was detected on vaginal swab and garments. However, there was no tell tale injuries on body of the prosecutrix to show that intercourse was against her will or consent and capacity of the accused to perform sexual intercourse was not examined. It was held that the accused could not be convicted for the offence of rape.[3]

 In another case the prosecutrix told the occurrence to her sister-in-law and brother-in-law immediately but FIR was lodged after 10 days as husband of the proseturix was away on job. It was not satisfactory explanation and the case appeared to be doubtful. The accused was held entitled to benefit of doubt.[4]

Read: Women related law:- All compiled

Allegation was that the proseturic was subjected to rape by three accused at night in field but no injury on private part of back was found and doctor could not confirm theory of sexual intercourse. Similarly, no corresponding injury was there on private parts or body of the accused. He was held entitled to benefit of doubt.[5]

[1] Koppula Venkatrao v. State of A.P. AIR 2004 SC 1874 : (2004) 3 SCC 602

[2] Bibhishan v. State of Maharasstra, 2008 CrLJ 721 (SC) : 2007 (10) SCR 123 : 2007 (12) SCC 390 : 2007 (11) JT 545 : 2007 (9) SLT 432

[3] Ujjagar Singh v. State of Punjab, 2008 CrLJ 808 (SC) : 2007 (13) SCr 653 : 2007 (13) SCC 90 : 2008 (1) JT 1 : 2007 (14) Scale 428

[4] Chinta Sinku v. State 2008 CrLJ 2192 (Jhar)

[5] Suresh Govinda Nagdeve v. State, 2008 CrLJ 2943 (Bom)

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