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Rape is a crime and not a medical diagnosis to be made by the medical officer treating the victim. It is a charge made by the investigating officer on a complaint by the victim. The only statement that can be made by the medical officer is whether there is evidence of recent sexual activity.
References of the construction of evidence has been made through various case listed in the article.
Mathura Rape case 1979
This case raised certain important issues in the law of evidence.
Mathura, a 16 years young girl, was raped at the police station where she had been called in the night for interrogation along with her husband, Ashok, on a complaint lodged by her brother against Ashok, herself and some others.
After interrogating for several hours, the police constable, Ganpath, took Mathura into a latrine situated near the police station and raped her. Mathura complained her brother soon after getting consciousness and consequently the complained was lodged in the police station. The medical examination of Mathura made 20 hours after the incident revealed that she had no injury on her person and that her hymen revealed old ruptures. However, the presence of semen was detected on the girl’s clothes and on the accused. The Supreme Court examined and concluded that the sexual intercourse in the question has not proved to the amount of rape which resulted in raising an unprecedented amount of protest amongst the social worker and soon developed in country which led to change in the law of rape and recognising that the custodial rape by a person in authority including the policeman considered to be rape.
Another development took in Sakshi v Union of India with Sudesh Jakhu v Narendra verma AIR 2004 where a public interest litigation was filed by Sakshi a woman organisation to issue a writ declaring ‘inter alia’ that ‘sexual intercourse’ as contained in s 375 IPC to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vaginal and finger/anal penetration and object/vaginal penetration and for issue of a direction for registration of all such cases to be filing under s 375, 376, and 376A- 376D, IPC.
In Madan Gopal Kakkad v Naval Dubey & another 1992 in Supreme Court in an alleged case of rape of a minor aged eight years on the examination of the victim after five days, the medical officer found an abrasion on the medical side of labia majora and redness around labia minora with white discharge but the hymen was intact and was admitting the tip of the little finger and in view of the absence of the signs of full penetration, the medical officer opined that there was an attempt to rape and accordingly the trial court convicted the accused and the conviction was further approved by Supreme Court in subsequent appeal. This judgment further codified into law in Criminal Amendment Act, 2013.
In Kumari Narayanamma v State of Karnataka & ors 1995 the Supreme Court held that the ruptured hymen and admission of two fingers cannot be viewed as if the victim was habitual to sexual intercourse and also the presence of spermatozoa in vaginal smear is not a must in all acts of rape as the absence may be due to various factors.
In State of Haryana v Jung Bahadur 1999, the lady doctor who conducted the medical examination of the victim found the hymen torn but could not give any definite opinion whether the rape had been committed or not. The chemical analysis of the undergarment of the accused, salwar of victim and chaddar on which the accused committed rape showed presence of semen of the same group. The trial court convicted the accused but the conviction was set aside by Punjab and Haryana Court and the accused was acquitted on the grounds that the case of rape was not established from the medical evidence and the evidence of the victim suffered from improbabilities. However, the Supreme Court set aside the order of the High Court and convicted the accused on the ground that the report of the chemical analysis and the medical evidence supported the case of the prosecution.
The Supreme Court in State of U.P. v Munshi 2009 pronounced a landmark judgment against the hypocrite society wherein it was held that even assuming that the victim was previously accustomed to sexual intercourse, that is not a determinative question. On the contrary, the question which was required to be adjudicated was, did the accused commit rape on the victim on the occasion complained of. Even if it is hypothetically accepted that the victim had lost her virginity earlier, it did not and cannot in law give licence to any person to rape her. It is the accused who was on trial and not the victim. Even if the victim in a given case has been promiscuous in her sexual behaviour earlier, she has right to refuse to submit herself to sexual intercourse to anyone and everyone because, she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone.